Eskaton Sunrise Community

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eskaton Sunrise Communtiy and Hospital Workers Union, affiliated with Service Employees Inter- national Union Local 22, AFL-CIO. Cases 20- CA-18633 and 20-RC-15691 05 March 1986 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 15 July 1985 Administrative Law Judge Mi- chael D. Stevenson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions3 but not to adopt the recommended Order. The judge found that the Respondent committed numerous violations of Section 8(a)(1), including threats of loss of employment, threats of discrimi- nation as to shift assignment, and surveillance and interrogations of employees by supervisors.4 The judge further found that the Respondent violated Section 8(a)(3) and (1) of the Act by offer- ing certain employees the choice of transfers or ter- mination, by refusing to rehire employees, and by discriminating in shift assignments. These violations occurred after the filing of the representation peti- tion and continued throughout the critical period and following the election.5 We concur with the judge's finding that the General Counsel make a prima facie case that the Respondent violated Section 8(a)(3) of the Act. i The General Counsel has moved the Board to correct the spelling of employee Galvan's name and to correct the designation of the Union as Local 22 in the decision ; and to correct the spelling of Supervisor Van Santen's name in the transcript We grant the motions. We note that the judge inadvertently referred to employee Zettie Pip- kins Davis as employee White 2 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 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings a The judge relied on Asociacion Hospital del Maestro, 272 NLRB 853 (1984), in his decision Chairman Dotson finds it unnecessary to rely on this case 4 In the absence of exceptions, we adopt, pro forma, the 8(a)(l) viola- tions found by the judge as well as the judge's failure to find certain 8(a)(1) violations. 5 The results of the election, held on 12 January 1984, were 15 votes for the Union, 21 against, with 6 nondeterminative challenged ballots The General Counsel demonstrated that union animus, as exemplified by the statements of three supervisors, was a "motivating or substantial factor" in the transfers and terminations of the employees, the refusal to rehire employees, and in the discrimination regarding shift assignments. We also agree with the judge that the Respondent did not carry its burden by showing that these actions would have been taken even in the absence of pro- tected activity. With respect to the representation issues, the judge sustained three of the Union's objections to the election and he recommended that a second election be directed. We concur. We therefore agree with the judge's ultimate findings and conclusions. However, we have modi- fied the Conclusions of Law, the remedy, the rec- ommended Order, and the notice to employees to conform more precisely to our findings. In addi- tion, we have included in our remedy the standard reinstatement remedy for employees Somerville, Majestic, McGovern, Davis, and Humphrey.7 CONCLUSIONS OF LAW 1. Eskaton Sunrise Community is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hospital Workers Union, affiliated with Serv- ice Employees International Union Local 22, AFL-CIO is a labor organization within the mean- ing of Section 2(5) of the Act. 3. At all times material to this case, the Respond- ent's employees Phyllis Van Santen, Judy Axley, Lee Browning, and Michael Fitz were statutory su- pervisors, but Helen Green was not. 4. By engaging in the following conduct, the Re- spondent violated Section 8(a)(1) of the Act: (a) Supervisor Van Santen threatened employees with loss of employment if they supported the Union. (b) Supervisor Van Santen threatened employee Lisch with discharge if she wore a union button. (c) Supervisor Van Santen threatened employees with physical harm if they continued their union activities. (d) Supervisor Van Santen told employee Galvan that she would not be assigned a day shift and told employee Lisch that she would not be as- 6 Wright Line, 251 NLRB 1083, ( 1980), enfd on other grounds 662 F2d 899 ( 1st Cir 1981 ), cert. denied 455 U.S 989 (1982), approved in NLRB Y. Transportation Management Corp, 462 U S 393 (1983) ' The judge found that the Respondent violated Sec . 8(a)(3) of the Act with regard to these employees , but inadvertently neglected to recom- mend the standard reinstatement remedy 279 NLRB No. 12 ESKATON SUNRISE COMMUNITY signed a full-time shift because of their union ac- tivities. (e) Supervisor Van Santen told employees that they would not receive their paychecks unless they voted "no" in the union election. (1) Supervisor Axley threatened employee Galvan with loss of employment because she en- gaged in union activities. (g) Supervisor Axley created an impression of surveillance and asked employees if they had signed union authorization cards. (h) Supervisor Browning interrogated employees by asking them how they intended to vote in the union election. 5. By engaging in the following conduct, Re- spondent violated Section 8(a)(3) of the Act: (a) Supervisor Fitz offered the choice of a trans- fer or termination to employees McGovern, Som- erville, Davis, Humphrey, and Majestic because of their union activities. (b) Supervisor Fitz refused to reemploy former employees McGovern and Humphrey because of their union activities. (c) Supervisor Fitz refused to grant a full-time shift assignment to employee Lisch and a day-shift assignment to employee Galvan because of their union activities. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. The Employer engaged in conduct which af- fected the results of the election conducted on 12 January 1984, in Case 20-RC-15691, and a second election is warranted. 8. The allegations contained in paragraphs 8(a) and 9(a) of the amended complaint are dismissed, along with any remaining allegations not specifical- ly sustained. AMENDED REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act we shall order it to cease and desist and take af- firmative action which is necessary to effectuate the policies of the Act. Having found that the Respondent unlawfully of- fered the choice of a transfer or termination to em- ployees Linda Somerville, James Majestic, Susan Broyles McGovern, Zettie Pipkins Davis, and Jerri Humphrey, refused to reemploy McGovern and Humphrey and refused to assign Joanna Galvan to a day shift and Theresa Lisch to a full-time shift, we shall order the Respondent to cease and desist from such conduct and to post the appropriate notice. We shall order the Respondent to offer 69 Somerville, Majestic, McGovern, Davis, and Hum- phrey 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 other rights and privileges previ- ously enjoyed and to remove any reference to their terminations from their files. We shall also order the Respondent to offer a day-shift assignment to Galvan.8 Finally, we shall order the Respondent to make whole Somerville, Majestic, McGovern, Davis, Humphrey, Galvan, and Lisch for any loss of earnings or benefits they may have sustained as a result of the Respondent's unlawful conduct. The loss of earnings and benefits incurred by the discri- minatees shall be determined as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and awarded with interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board orders that the Respondent, Eskaton Sunrise Community, Citrus Heights, California, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Threatening employees with the loss of em- ployment if they support the Union. (b) Threatening employees with discharge if they wear a union button. (c) Threatening employees with physical harm if they continue their union activities. (d) Telling an employee that she would not be assigned a day shift and telling another employee that she would not be assigned a full-time shift be- cause of the employees' union activities. (e) Telling employees that they would not re- ceive their paychecks unless they voted "no" in the union election. (f) Threatening employees with loss of employ- ment if they engage in union activities. (g) Creating the impression that the employees' union activities are under surveillance. (h) Interrogating employees about how they intend to vote in the union election. (i) Offering employees the choice between a transfer or termination because of their union ac- tivities. (j) Refusing to reemploy former employees be- cause of their union activities. (k) Refusing to assign employees to day shifts and to full-time shifts because of their union activi- ties. 8 At the hearing, Theresa Lisch testified that when Joanna Galvan re- signed from Eskaton Sunrise Community in April 1984, Lisch was as- signed a full-time shift 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act. (a) Offer Somerville, Majestic, McGovern, Davis, and Humphrey immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges they previously enjoyed. (b) Offer Galvan a day-shift assignment. (c) Make Somerville, Majestic, McGovern, Davis, and Humphrey, Galvan, and Lisch 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 section of the deci- sion. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. (f) Post at its facility in Citrus Heights, Califor- nia, copies of the attached notice marked "Appen- dix."9 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the allegations in paragraphs 8(a) and 9(a) of the amended complaint are dismissed, along with any remaining allegations not specifically sustained. IT IS FURTHER ORDERED that the election con- ducted in Case 20-RC-15691 is set aside and that 9 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " Case 20-RC-15691 is severed and remanded to the Regional Director for Region 20 for the purpose of conducting a second election at such time as the Regional Director deems appropriate. [Direction of Second Election omitted from pub- lication.] 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten employees with loss of employment if they support the Union. WE WILL NOT threaten employees with dis- charge if they wear union buttons. WE WILL NOT threaten employees with physical harm if they continue their union activities. WE WILL NOT discriminate in the assignment of day shifts and full-time shifts due to employees' union activities. WE WILL NOT tell employees that they will not receive their paychecks unless they vote "no" in the union election. WE WILL NOT threaten employees with loss of employment if they engage in union activities. WE WILL NOT create the impression that the em- ployees' union activities are under surveillance. WE WILL NOT interrogate employees about how they intend to vote in the union election. WE WILL NOT offer employees the choice be- tween a transfer or termination because of their union activities. WE WILL NOT refuse to reemploy former em- ployees because of their union activities. WE WILL NOT refuse to assign employees to day shifts and to full-time shifts because of their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- ESKATON SUNRISE COMMUNITY cise of the rights guaranteed you by Section 7 of the National Labor Relations Act. WE WILL NOT offer Linda Somerville, James Majestic, Susan Broyles McGovern, Zettie Pipkins Davis, and Jerri Humphrey immediate and full re- instatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL NOT offer Joanna Galvan a day-shift assignment. WE WILL make Somerville, Majestic, McGov- ern, Davis, Humphrey, Galvan, and Theresa Lisch whole for any loss of earnings and other benefits resulting from discharges or discrimination against them in shift assignment, less any net earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to their dis- charge and that the discharges will not be used against them in any way. ESKATON SUNRISE COMMUNITY Eugene Tom, Nancy Watson, and Boren Chertkov, Esqs., for the General Counsel. N. Paul Shanley, Esq., of Sacramento, California, for the Respondent. Paul D. Supton, Esq., of San Francisco, California, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge. This case was tried before me at Sacramento, California, on 8 and 9 May 1985,' pursuant to an amended com- plaint issued by the Regional Director for the National Labor Relations Board for Region 20 on 1 February 1985. In addition, on 15 April 1985, the Acting Regional Director ordered consolidated certain issues arising from a representation election in Case 20-RC-15691. The amended complaint, based on charges filed on 12 Janu- ary 1984, 28 February 1984 (first amended charge), and 2 July 1984 (second amended charge), by Hospital Work- ers Union, affiliated with Service Employees Internation- al Union Local 28, AFL-CIO (the Union), alleges that Eskaton Sunrise Community (Respondent), has engaged in certain violations of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act. The Union's representation petition was filed on 31 October and sought a representation election among cer- tain of Respondent's care attendants, housekeeping, main- tenance, and kitchen employees. An election was held pursuant to a Stipulation for Certification Upon Consent Election on 12 January 1984. Objections to conduct af- fecting the outcome of the election were filed by the ' All dates refer to 1983 unless otherwise indicated 71 Union on 16 January 1984. In addition, it appears from the tally of ballots that six votes were challenged, and they are not sufficient in number to affect the outcome of the election. Issues2 (1) Whether at all times material, Respondent's present employee, Judith Axley, and former employee, Helen Green, were statutory supervisors. (2) Whether Respondent, acting through one or more of its statutory supervisors,, committed one or more of the following acts which interfered with, restrained, and coerced employees in the exercise of their rights guaran- teed to them by Section 7 of the Act: (a) Threatening employees with loss of employment if they supported the Union; (b) Threatening employees if they continued to wear union buttons; (c) Threatening to withhold one-half of employee pay checks unless employees agreed to vote against the Union. (d) Telling employees that they lost their jobs or that a certain employee would not receive a day-shift assign- ment, or that a certain other employee would not receive a full-time assignment, all due to union activities. (e) Creating in the minds of employees an impression that Respondent was engaging in surveillance of their union activities. (f) Interrogating employees how they planned to vote in an approaching union election and with respect to em- ployee union activities generally. (g) Telling employees they would earn less money if they selected the Union as their collective bargaining representative. (h) Telling employees they could vote in the union election only if they voted against the Union. (i) Promising benefits to employees in order to dis- courage employee support for the Union. (j) Telling employees that Respondent would not bar- gain with the Union if it was selected as the employee bargaining representative. (3) Whether Respondent committed one or more of the following acts, thereby discriminating against em- ployees in regard to the hire or tenure or terms or condi- tions of employment, and thereby discouraging member- ship in a labor organization in violation of Section 8(a)(3) of the Act: (a) Terminating three employees and thereafter refus- ing to reemploy two. (b) Transferring another employee to a nearby facility owned by Respondent. 2 Before the hearing formally began, the General Counsel withdrew pars 14 and 15 of the complaint pertaining to a bargaining order remedy This was done over the objection of the Union The General Counsel continues to seek a new election and other appropriate remedies Further, at hearing, the General Counsel was permitted to amend the complaint over the objections of Respondent that the statute of limitations barred the amendment However, because Respondent failed to raise the issue in its brief, I find that any issue regarding the limitation period has been abandoned 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Transferring another employee to a different de- partment within the Sunrise facility and thereafter not calling him to work. (d) Refusing to assign an employee to full-time work. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. On the entire record in the case, and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent admits it is a California corporation oper- ating a nursing home in Citrus Heights, California, and further admits that its annual gross volume of business exceeds $100,000 and that during the same period it pur- chased and received products, goods, and materials valued in excess of $5000 which originated from sources outside the State of California. Accordingly, it admits, and I find, that it is a health care institution within the meaning of Section 2(14) of th Act and engaged in com- merce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Hospital Workers Union, affiliated with Service Employees International Union, Local 28, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act.3 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Respondent owns and manages several nursing home facilities in the Northern California area. These facilities are classified according to the type of care required by the patients: (1) Skilled Nursing Facility (SNF), or sometimes called convalescent care facility, contains patients requir- ing the highest level of care. These patients are severly disabled due to age, injury, disease, or a combination these. One of Respondent's properties in this category is Eskaton Manzanita Manor (Manzanita) located about 3 miles from Eskaton Sunrise Community (Sunrise). (2) Intermediate Care Facility (ICF) contains patients requiring less care than the SNF, but who still require generally close attention. This may require assistance with personal hygeine, with bowel and bladder function, with mobility such as wheelchairs, and with preparation and, in some cases, administration of medication and food, and with laundry and room cleanup services. One of Respondent's properties in this category is "C" hall of Sunrise converted to ICF in early 1984 and containing 40 beds. s In its answer, Respondent denies this allegation However, at the hearing, Respondent stipulated to the Union's labor organization status (3) Board and Care Facility-Prior to 1984, Sunrise was divided into two areas: On one side were apartments for persons who could attend to most of their own daily needs. One meal was provided in a dining hall unless the person was sick, in which case the meal would be deliv- ered to the person's apartment. The other side of the facility was called residential and it was in turn divided into A, B, and C halls. These resi- dents required certain minimum assistance on a daily basis. For example, if the person took a shower, an atten- dent would monitor the activity to ensure safety. Also food and housekeeping services were provided. Some as- sistance with medication was also provided. During 1983 and 1984, Sunrise had approximately 180 residents: A hall contained 31 rooms, B hall 21, and C hall 31. Most of these were double rooms, and a few were singles. Working in Sunrise prior to 1984 were sev- eral groups of employees such as personal care attend- ants, who assisted residents to meet their daily needs such as bathing, taking medication, eating, and medical emergencies. A staff of seven to eight attendants plus a supervisor was employed. In addition, other employees worked in the housekeeping, maintenance, dietary, and administration departments of the facility. The adminis- trator and highest ranking official at Sunrise was Michael Fitz, a witness at the hearing. Employed at Sunrise for approximately 5-1/2 years, Fitz had previously worked also as administrator for Manzanita for approximately 13 months between No- vember 1978 and January 1980. Based on his experience in working there and his close working relationship with the current administrator of Manzanita, Fitz was general- ly acquainted with that facility. It had 99 beds, with a higher payscale and more skilled employees than Sunrise had. As will be more clear below, the relationship between Sunrise and Manzanita plays an important part in evluat- ing the facts of this case. For now, I turn to a series of exhibits which set the background for the key events in the case. The parties agreed that certain documents should be admitted into evidence as joint exhibits. Although not of equal importance, the documents reflect to a degree what is required within the State of California to convert a board and care facility to a higher level, ICF. In this case, Respondent desired to convert only C hall in Sun- rise to ICF level of care. It appears that the first step in this long paper trail oc- curred on 5 October 1981, when Fitz filed with the State a "Notice of Intent." In response, a state official sent him by return mail a "Certificate of Need" application (Jt. Exh. 1). There followed various correspondence, appli- cations, and other documents, all culminating in a ICF license effective 7 March 1984 (Jt. Exh. 2-20). During the conversion process, Respondent's employ- ees began to circulate rumors regarding the pending con- version. Questions arose how they would be affected, particularly with respect to their job tenure. In June 1982, Fitz had a meeting with the personal care staff re- garding another matter. According to Joanna Galvin, a witness at the hearing, Supervisor Pat Whicker, along ESKATON SUNRISE COMMUNITY with Zettie Pipkins (White), Linda Somerville, Jerri Humphrey, Fitz, and Galvin herself attended this meet- ing. After the other matter had bene disposed of, Galvin asked Fitz if the rumors were true, that Respondent was going to be converted to convalescent care. Fitz said that a change was coming, but not that particular change. One hallway would be turned into ICF, but that he was not aware of the exact date due to the many state requirements necessary to make the conversion . Fitz also said that after the conversion occurred, all personal care attendants would be required to become certified nursing assistants (CNA) pursuant to state law. Fitz went on to say that no one would lose his or her job or any hours or pay. Although he did not yet know the details, Fitz told the women that a certification program would be started, either by sending them to a class or having an instructor come there, and that the facility would pay for it. Galvin was one of three attendants who already pos- sessed the CNA, having received it in 1979. The other two were Lois Andrus and Theresa Lisch, a witness at the hearing . Essentially the CNA is earned by attending state-approved classes to learn procedures for dealing with the various needs of patients in nursing care. The difference between what the personal care attendants were already doing and what they would be expected to prove they could do in order to earn the CNA was not great. About 15 September Fitz held a second meeting re- garding the conversion. Among other matters discussed was a change in plans from what had been stated in June 1982. Fitz told Humphrey, Somerville, White, Andrus, and Supervisor Whicker that only two to three attend- ants would be kept and that whether a person had the CNA was not necessarily a determining factor Fitz also stated that a class to train interested employees for CNA would be starting in the next few days. Contrary to what Fitz had stated earlier, he also indicated that anyone de- siring to take the course would have to pay the cost her- self, but that Respondent was prepared to advance the funds to anyone who asked, from that person's next pay- check. According to Fitz, he also stated at this Septem- ber meeting that in order to stay, a person would have to have a CNA plus experience. I cannot credit this ac- count, because none of the other witnesses supported it. Other reasons stated below also make Fitz' testimony im- probable.4 In discrediting Fitz on this point and finding he never said only those with the CNA plus experience could expect to stay, I also rely on the testimony of former Personal Care Supervisor Pat Whicker. Unlike the other 4 I note a discrepancy between the testimony of Sue Broyles (McGov- ern) and the testimony of other witnesses who McGovern says were present McGovern named Zettie Davis as being present but that person makes no reference to the mid -September meeting in her testimony Jerri Humphrey was also alleged to be present by McGovern and generally supports the latter 's account of the meeting on substantive issues Howev- er, contrary to McGovern, Humphrey recalls that Somerville was not present Humphrey seemed to recall the meeting well, in part because the day was her birthday In her testimony, Sommerville refers to a private meeting with Fitz in which he told her essentially the same information that was described by McGovern Andrus was also alleged to have been present, but she did not testify 73 witnesses for the General Counsel, she never became in- volved with the Union and knew shortly after June 1982 that she would not be kept on after the conversion to ICF. Under state law, the supervisor of the personal care staff had to be a licensed vocational nurse (LVN). Re- spondent opted to hire instead a registered nurse (RN), named Phyllis Van Santen. Whicker left Respondent's employment about 14 November. Prior to her departure, Fitz offered to keep her on staff as a CNA, if she de- sired. She did not then have her CNA, but would have been able to earn this without difficulty as the other members of her staff did. Instead, she opted to leave be- cause it was not financially necessary for her to work and she did not desire to take one of the three CNA po- sitions which Fitz described in the mid-September meet- ing. She attended this meeting and recalls Fitz saying that only three attendants would be kept on. No mention was made of a requirement for CNA, experience, or job loss by anyone. Either shortly before or after this September meeting, Whicker recalled a private meeting with Fitz in the Tat- ter's office. At this time, Fitz told her that because the front office had desired to keep only three of her staff, he requested her recommendations of the "top of the line." Despite her loyalty to all the staff, Whicker recom- mended Galvin and Andrus-both then possessing the CNA, and McGovern, who did not, as being the best. Sometime before this meeting, Whicker had told Fitz that McGovern lacked her CNA. To these three recom- mendations, Fitz responded by agreeing that those were good choices. He asked her to assure the three in every possible way that they would be retained. Between the June 1982 meeting and the mid -Septem- ber meeting, Fitz had changed his position in one other way. He had originally stated that anyone not kept on would received 90 days' notice. In the September meet- ing, this was changed to 30 days' notice. The possibility of transfer as vacancies opened, either in-house or to Manzanita, was referred to in both meetings as viable possibilities. Despite the conflicts referred to above, all agree on two major points. Up to this time, Fitz had not an- nounced the names of the three attendants to be kept,5 and no union activities had begun. Galvin had not attended the mid-September meeting, but heard of Fitz' announcement from coworkers that same day or the next day. On 16 September Fitz called Galvin at her home to reiterate the information she had already heard, saying, "We'll be laying off all but three girls." When Galvin asked whether Fitz was going to choose those who already had the CNA, he responded no, that he would choose them strictly on their ability and the names would be announced later. Fitz concluded that conversation by saying that he hoped Galvin would be one of those to be kept. After receiving this information, Galvin began speak- ing to the other employees in her department, particular- ly to McGovern, with a view toward organizing a union 5 If Fitz' testimony had been correct regarding the 15 September meet- ing, there would have been no suspense Only three of the personal care staff had the CNA plus experience-Galvin, Andrus, and Lisch 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purpose of obtaining greater employee job securi- ty. Eventually in early October, a union organizer named Coleman spoke to Galvin and other employees in the former's home. The union representative directly respon- sible for organizing Respondent's employees was Steph- anie Batey, a witness at hearing . The union organization- al activities occurred during October and November. These activities included soliciting employees to sign union authorization cards, attendance at various meet- ings, distribution of literature and union buttons, and the wearing of these buttons by several employees to work and during work (G.C. Exhs. 4a and b). Union literature was also posted on Respondent 's bulletin boards. On or about 7 November, in the context of extensive organizing activities, Fitz held a meeting of the personal care attendants to announce who would be staying. All or most of the staff were wearing union buttons. Fitz stated that only employees who presently had the CNA would be staying. In this category were Galvin, Andrus, and Lisch. With respect to a question relative to possible transfers, Fitz replied that this was possible, subject to openings. McGovern, who had begun her CNA classes in September and was due to receive the CNA on 30 November, was not selected to remain. Galvin continued her employment with Respondent until April 1984, but left over her inability to receive a transfer to a day shift. McGovern was offered a transfer to Manzanita, but declined. Somerville was offered and accepted a transfer to Manzanita and remains there cur- rently. Lisch is a current employee at Sunrise. Davis re- tired in November, after learning that she would not be kept on. Although offered a transfer to Manzanita, Davis declined. In December, she received her CNA. Davis had been attending classes at Manzanita and, while there, Hoff, the administrator at Manzanita, offered her a posi- tion at $5.95 per hour. Although she had been making only $4.11 per hour, she nevertheless declined the offer. In an exit document, prepared by Davis when she left Sunrise, she indicated that she desired to retire in order to care for an ailing husband. Humphrey also left Sunrise in November, after declining a transfer to Manzanita. Her stated reason for declining to transfer was that her car could not be expected to make the additional drive every day. However, Manzanita, 3 miles away from Sun- rise, was about equal distance from where Humphrey lived. Like Davis, Humphrey received her CNA in De- cember. James Majestic, an on-call care attendant who did not testify, was offered an on-call position as a cook. He never responded to Fitz' offer to make the transfer. While all of this was happening, Respondent trans- ferred from Manzanita to Sunrise, an LVN and approxi- mately three to four CNAs. In order to replace these employees, new employees were hired by Manzanita. This development created a quesiton in my mind which I expressed at the hearing in my questioning of Fitz: JUDGE STEVENSON: When the four CNA's trans- ferred from Manzanita to Sunrise facility, were those voluntary transfers? THE WITNESS: Yes. JUDGE STEVENSON: Did their pay and benefits remain the same, or were they given an increase when they made the transfer? THE WITNESS: Their benefits and pay were the same. JUDGE STEVENSON: When they were transferred, I assume, that Manzanita had to hire new people to take their place. Is that right? THE WITNESS: They probably had to hire some people from the outside. But they, of course, were anticipating some of our people going over there. JUDGE STEVENSON: And those people from Sun- rise who would have gone over to Manzanita, then, they would have been performing what you just said, about the same jobs that the CNA's would have been performing who went over to Sunrise. Is that right? THE WITNESS: To some degree, yes. JUDGE STEVENSON: What was the reason, if you know, that the persons transferring to Manzanita, instead of from there, to [Sunrise], would have re- ceived pay raises of one sort or another. Do you know what the reason for that was? THE WITNESS: They would be going into Man- zanita's pay scale. JUDGE STEVENSON: And that was higher? THE WITNESS: Yeah. JUDGE STEVENSON: So, now, here's what I don't quite understand. The people going to Manzanita would be going to a facility that needed people with higher level of skills to attend to the patients who are more impaired than the Sunrise facility. Am I right so far? THE WITNESS: To a degree, yes. JUDGE STEVENSON: All right. And the people transferring to Manzanita would not have their CNA, but in most cases, they were in the process of earning it at the time. THE WITNESS: Yes, your Honor. JUDGE STEVENSON: And the people transferring from Manzanita already had their CNA's, and they would be going to a lower level- JUDGE STEVENSON: -of skill. Now, is there any inconsistency there that you could help me explain, there- THE WITNESS: Well, certainly not from what I can see. Our intent was to have the best possible- we were opening up a facility. And it was impor- tant to us that we try to get off to the best start that we possibly could,by getting the best, most experi- enced staff that we could get our hands on. That was our intent at Sunrise. Manzanita, being a larger facility in terms of staff, could certainly absorb those that were still in the CNA process, and work them into their schedule, and give them the necessary assistance and support to get them going on their job. Within a few days, two sisters named O'Brien who had transferred to Sunrise from Manzanita quit. This in- formation was conveyed to McGovern and Humphrey ESKATON SUNRISE COMMUNITY who by that time had earned their CNAs. Although their applications were accepted, they were not inter- viewed by Fitz and not rehired. According to Fitz, he did not hire them because they lacked sufficient experi- ence, after having earned their CNAs. B. Analysis and Conclusions 1. At all times relevant to this case were Judy Axley and Helen Green statutory supervisors The General Counsel alleges, but Respondent denies, that Axley and Green were supervisors. It is important to determine these threshhold questions because it is fur- ther alleged that Axley and Green-along with Van Santen and Lee Browning, admitted supervisors-made certain statements to employees in violation of the Act. I turn to consider the status of Axley and Green. During the fall of 1983, Axley and Green were Re- spondent's employees. Neither testified at hearing, al- though Axley is still employed at Sunrise as a "home- maker." The General Counsel contends that Axley was a housekeeping superviser and that Green was a 7 p.m. charge nurse. Section 2(11) of the Act states the following: The term "supervisor" means any individual having authority, in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employ- ees or responsibly direct them or to adjust their grievances, or to effectively recommend such action, if in connection with the foregoing the exer- cise of such authority is not of a merely routine nature or clerical nature, but requires the use of in- dependent judgment. The possession of any one of these criteria is sufficient to establish that an employee is a supervisor within the meaning of the Act.7 a. Evidence about Axley Galvin testified that Axley was the supervisor of housekeeping. More specifically, Axley assigned duties to housekeeping employees and checked on their work. She obtained replacements for sick employees and signed (ap- proved) Galvin's timecards. During the union election, Galvin successfully challenged Axley as Respondent's representative on the grounds that Axley was a supervi- sor. During weekends, the various supervisors rotated duty to work every fourth Saturday and Sunday, as the person in charge of the facility. Axley was one of the ro- tating supervisors (G.C. Exh. 6). In the above description of Axley's duties, Galvin was fully corroborated by e According to Fitz, a homemaker "provides services to the residents in residential care, with regards to their needs and their personal care needs, and housekeeping and things of this nature " 7 NLRB v Edward G Budd Mfg Co, 169 F.2d 571, 576 (6th Cir 1948), cert denied sub nom Foreman's Assn v Edward G Budd Mfg. Co, 355 U S 908 (1949), Sheet Metal Workers Local 85 (Suburban Sheet Metal), 273 NLRB 523 (1984) 75 Whicker, one of the other rotating weekend supervisors who was fully aware of Axley's duties. One of Axley's former employees was Vicki Weather- ford, a witness at the hearing. In doing laundry and cleaning rooms, Weatherford was supervised in her work by Axley. Further, Axley made written evaluations of housekeeping employees on a form "used for all nonsu- pervisory employees." (G.C. Exh. 21-5.) There is no evi- dence Axley was evaluated on a similar form by anyone else, indicating she was not considered to be a nonsuper- visory employee. Fitz denied that Axley was a supervisor, testifying that, prior to November, a person named Chuck Hodge was the maintenance and housekeeping supervisor. Al- legedly, Hodge was the only supervisor who had respon- sibility for more than one department. The record does not reflect whether Hodge still works for Respondent. However, he was not called as a witness and played no significant role in this case. I note that in two or three personnel action forms regarding Axley, Hodge signed with Fitz approving the particular pay raise: In June, 1982, Axley was give a pay raise from $3.90 to $4.20 because of "increase in responsibility" [G.C. Exh. 18]; in September, 1982, Axley then in "Maintenance and Housekeeeping" was given, an- other raise from $4.20 to $4.35 with a position de- scribed as "Housekeeping." This raise was approved by Fitz and Hodge [G.C. Exh. 19]. Then in Octo- ber, Axley was given another raise from $4.35 to $4.57 with her position described as "Lead House- keeper." Again Fitz and Hodge approved the raise [G.C. Exh. 20]. Other evidence also supports Fitz' testimony that Axley was not a supervisor. She did not attend one or more supervisor's meeting called by Fitz to discuss pro- cedures for responding to the Union's organizing cam- paign and other matters. Because attendance at supervi- sor's meetings is an indicia of supervisory status,8 the failure to attend supports Respondent's position. On balance, however, I find the other evidence out- weighs "the lead housekeeper" characterization and the failure to attend supervisor's meetings. I find that Axley was a statutory supervisor at all times material to this case. Thus she was considered by her subordinates and other supervisors to have supervisory authority.9 In the words of Section 2(11) of the Act, Axley had authority to assign and reward other employees, and to direct them, in a way that was not merely routine, but required the use of independent judgment." ° In further support of 8 Southern Indiana Gas Co v NLRB, 657 F 2d 878 (7th Cir 1981), Maine Yankee Atomic Co. v NLRB, 624 F 2d 347, 365 (1st Cir 1980) Salant Corp, 214 NLRB 171 (1974), enfd 526 F 2d 585 (2d Cir 1975). 9 Gerbes Super Market, 213 NLRB 803 (1974) to See Dunkirk Motor Inn, 211 NLRB 461 (1974), in which the Board stated that the test of responsible direction does not depend on the "com- plexity or difficulty" of the work, but rather that the alleged supervisor exercises independent judgment without consultation with higher man- agement (In Dunkirk, assistant housekeeper found to be statutory super- visor ) 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this conclusion, I note that Respondent failed to call Axley to rebut the prima facie case offered by the Gen- eral Counsel. This raises an adverse inference which fur- ther supports the General Counsel's case.' 1 b. Evidence about Green Helen Green was a licensed vocational nurse (LVN) employed by Respondent on its PM shift. Although Green did not testify, Lisch described her as the PM charge nurse and Lisch's supervisor on the PMs. During PMs there was a single LVN and aide on duty. Green was first employed by Respondent in January and left sometime after the summer of 1984. The evidence regarding Green's status is not conclu- sive and to a degree contradictory. For example, in April 1984, a personnel action form reflects that Green was transferred from regular part time to full time. The reason given was "to allow for supervisory adminis. . . (cannot be deciphered) (G.C. Exh. 10). However, be- cause Green's salary stayed the same, it is not likely her authority was increased. In June 1984, Green was evalu- ated by Judy Kredit, assistant administrator and director of nursing. The appraisal form was captioned "used for all nonsupervisory employees" (G.C. Exh. 11), suggest- ing that Green was a nonsupervisory employee. Further, I note that Green's name is not on the list of rotating su- pervisors scheduled for weekend duty (G.C. Exh. 6).12 Like Axley, Green did not attend supervisor' s meetings. On the other hand, I note that in August 1984, Green evaluated Lisch (G.C. Exh. 7), and in May 1984, evaluat- ed Andrus (G.C. Exh. 12). (The latter did not testify so it is unclear how Green happened to evaluate her, be- cause Lisch testified that only she and Green worked p.m.s. In addition to completing employee evaluations, Green initialed timecards of Lisch and Andrus (G.C. Exhs. 8, 9)13 and prepared schedules. Lisch testified that Green prepared everyone's schedule. I do not credit the testimony because it seems at complete variance with Green's job.14 Finally, Kredit told Lisch in April 1984, that Green was her supervisor. In evaluating this conflicting evidence, I begin with the Board-approved principle of law that persons in health care jobs who give direction to other employees and perform tasks in the exercise of their professional 11 American Chain Link Fence Co, 255 NLRB 792 fn 4 (1981) 12 In successfully claiming that Axley was a statutory supervisor, the General Counsel relied in part on the appearance of Axley's name on the supervisor's list (Br 22) It seems only fair, that the General Counsel should also be bound by the absence of Green's name from the same list 13 The General Counsel states (Br 23) that Green also initialed time- cards of several other employees None of these employees testified and I find no proof of the General Counsel's claim 14 The General Counsel states (Br 23) that Green prepared during July 1984 the schedule for all care staff in all shifts Lisch's exact testimo- ny in this respect is as follows Q Did she ever tell you what hours you would be working? A Yes, she made up the schedule for everybody Q Was this for the PM shift or for all shifts A She made it up for all shifts Taken literally, Lisch's testimony seems to refer to all Respondent's em- ployees in all shifts No one else so testified, and no evidence of such scheduling was presented Rather, I interpret Lisch's testimony to mean that Green merely scheduled someone to work on that p in shift when Lisch had completed her 32 hours judgment incidental to the treatment of patients are not statutory supervisors . ' s To the extent this record reflects what Green did on a day-to-day basis, I find that she merely directed Lisch in the exercise of Green's profes- sional judgment incidental to the treatment of patients. The General Counsel cites cases which the claims sup- port the theory of supervisory status for Green. Without citation of authority, the General Counsel first equates "licensed practical nurses" with LVNs. Assuming, with- out finding this to be so, I look first at Emory Convales- cent Home, 260 NLRB 540 (1982), cited by the General Counsel as having special application to the present case. In finding the p.m. charge nurse in Emory to be a super- visor, contrary to the argument of the General Counsel that p.m. charge nurses were not supervisors , the judge noted the authority of the charge nurse to evaluate em- ployees, and the concept that if the charge nurse was not a supervisor, then there was no supervisor for substantial numbers of hours per day. This was thought to be unrea- sonable and illogical. Finally, the person in question had access to administrative offices and personnel files to call in employees if the necessity arose. This case can be distinguished from the present case. First, there is no evidence that Green had authority to call in replacement employees or had access to Respond- ent's personnel office or files . ' a Furthermore , the admin- istrator in Emory said the charge nurse was a supervisor. Here, Fitz said she was not and, as proof, she did not attend supervisor's meetings . The present case presents a very sparse description of what Green actually did, while the description in Emory was clear and detailed. It is true that on two points the cases converge: the making of employee evaluations and the concept that Green must be a supervisor because no one else is, at the time in question; however, the mere evaluation by an LVN of a lower-ranking medical care practitioner is not sufficient to show supervisor status . 17 Concerning the second point, I conclude that if Respondent did have a statutory supervisor on duty on the p.m. shift, it was not Green. Conversely, if Green was the highest ranking medical person on duty for p.m. employees then, as un- likely as it may seem , Respondent did not have a statuto- ry supervisor on duty . 18 In any event, I find insufficent proof that Green was a statutory supervisor . It is unnec- essary, therefore, to consider the effect of any alleged 8(a)(1) statement she may have made. is Milwaukee Children's Hospital Assn, 255 NLRB 1009 ( 1981) In this case, four permanent charge nurses had evening or night-shift assign- ments in three inpatient units and were all held to be nonsupervisory em- ployees 18 Moreover, there is convincing authority that the power to locate replacements does not necessarily connote supervisory status anyway NLRB v St Francis Hospital of Lynwood, 601 F 2d 404, 421 (9th Cir 1979) 17 In NLRB Y. Res-Care, Inc, 705 F 2d 1461, 1466 (7th Cir 1983), LVNs were found not to be supervisors despite authority to make writ- ten evaluations of aides and despite one instance in which a recommenda- tion of discharge was followed , see also Doctors Hospital of Modesto, 183 NLRB 950, 956 (1970), enfd 489 F 2d 772, 776 (9th Cir 1973) 18 See NLRB v Res-Care, 705 F 2d at 1467 Compare, Sourthern Indi- ana Gas Co. v NLRB, 657 F 2d 878, 884-886 (7th Cir 1981) ESKATON SUNRISE COMMUNITY 77 2. The alleged 8(a)(1) statements a. As allegedly made by Phyllis Van Santen As noted above, Van Santen was an admitted supervi- sor who never testified in the present case . Essentially, the evidence regarding statements made by her to em- ployees is unrebutted and virtually admitted by Respond- ent. Indeed, in its brief (p. 8), Respondent states concern- ing the 8(a)(1) charge not specifically alleged as objec- tions to the election: They may or may not have happened . We honestly feel that Van Santen was the only one 'running amok' in our facility and are content to let his honor decide them based on the testimony, as they quite simply have no affect [sic] on the election. Although I welcome the admission , I do not agree with Respondent's final conclusion. Section 8(a)(1) of the Act provides: (a) It shall be an unfair labor practice for an em- ployer- (1) to interfere with, restrain, or coerce employ- ees in the exercise of the rights guaranteed in Sec- tion 7. . . . Section 157 of title 29, Section 7 of the Act provides in relevant part: Employees shall have the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection . . . . I find that about 7 November, Van Santen , then Re- spondent's director of nursing, told Galvin that various staff changes were made due to the union activities of Galvin and her coworkers, and that Respondent was out to get Galvin and others for the same reason . To empha- size her point, Van Santen then related a past experience from her prior employment. When an employee tried to organize a union there , someone cut off her friend's dog's head and threw it in the yard, in order to discour- age the union activities. In December , Van Santen told Galvin that she would never receive a day-shift assign- ment due to her union activities. This was after Fitz had transferred Manzanita employees with CNAs , allegedly senior to Galvin, and they were given day-shift assign- ments. Other evidence involving Van Santen was provided by Lisch. In late November, Van Santen touched the union button which Lisch was wearing and stated, "strictly off the record," that Fitz considered her union activities a personal insult, and that, although Lisch was a smart girl, she had better smarten up and that she was never going to get a full-time shift (Lisch had been attempting to get a full-time shift from Fitz). Finally, Van Santen said it was not real healthy or wise for her to continue her union activities. Then Van Santen repeated the story of the severed dog's head. On the day of the election, also payday, 17 January 1984, Van Santen told Galvin that she would only re- ceive her paycheck if she voted no in the election. In a slightly different context, a week before the election Van Santen told Lisch after giving her a paycheck with mock union dues deducted , that the only way to get the other check with the mock union dues , was to vote no in the election. When Lisch became angry , Van Santen said she was only kidding. I find that the statements made by Van Santen violated Section 8(a)(1) of the Act in that they reasonably tended to interfere with, restrain, or coerce employees in the ex- ercise of their Section 7 rights.19 (b) As allegedly made by Judy Axley I have examined Respondent 's eight-page brief and find no discussion of the allegations against Axley. I must assume that Respondent concedes that current em- ployee Axley made the statement in question and thereby violated the Act. In late October or early November , after Galvin began wearing a union button on a daily basis , Axley asked Galvin what the initials on the button stood for. When Galvin gave the Union's name, Axley loudly proclaimed that "if anybody here knows you are trying to bring in a union, you'll lose your job." In October, Axley told Weatherford that she knew who had signed cards for the Union and asked whether Weatherford had. The latter admitted she had and stated she was for the Union . Then Axley asked who else had signed, but Weatherford refused to give that information. I find that Respondent violated the Act by Axley cre- ating an impression of surveillance . 20 I find further that Axley violated the Act by restraining and coercing Galvin, by threatening her with loss of employment for her union activities. Concerning the General Counsel 's claim that Axley at- tempted to ascertain the names of other union support- ers, in violation of the Act, I find no allegation in the complaint with respect to this matter either as originally made, or after other amendments were made According- ly, I make no findings on this matter.21 (c) As allegedly made by Lee Browning Browning was one of two Respondent witnesses. An admitted supervisor, Browning testified that she became aware of the union campaign in late October or early November . At the time in question, Browning was super- visor of kitchen activities for Respondent. Two former employees named Tina Cain and Sharon Ingram testified for the General Counsel. Both had been fired for theft by Respondent . They testified that on election day, 19 See Armstrong Rubber Co, 273 NLRB 233 fn 2 ( 1984) Par 6(b) of the complaint alleges that Van Santen told employees on 8 November that they had lost their jobs No evidence supports this allegation, and I will recommend it be dismissed 20 Schrementt Bros., 179 NLRB 853 (1969) 21 Concerning par 7(b) alleging that Axley interrogated employees on how they would vote in the election, I find no evidence to support it and no discussion by the General Counsel, so I will recommend it be dis- missed 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Browning asked both how they would vote in the elec- tion and also asked them to vote no. Another former employee named Kristi Molder also testified. Like Cain and Ingram, Molder worked under the supervision of Browning. When Molder went to re- ceive her paycheck shortly before election, it was short $15. A note indicated this was for mock union dues. When Molder went to Browning's office to retrieve the remainder of her money, Molder received a fortune cookie with a notice inside, "Vote No." Then Browning handed her the check for the balance of her pay and said, "Remember to vote no." In her testimony, Browning denied making the state- ments to Cain and Ingram, but said nothing regarding Molder. I credit the testimony of Cain and Ingram as consistent with other witnesses and find these statements violated the Act due to their tendency to coerce employ- ees.22 Concerning Browning's admonitions to the three wit- nesses to vote "No," I find, first of all , no allegation in the complaint regarding these statements. Accordingly, I make no finding with respect to these statements. To the extent it may be held that Browning's statements are ade- quately encompassed by the pleadings, I find, contrary to the General Counsel, that these statements constitute a mere expression of an employer's expression, views, or opinions, are protected under Section 8(c) of the Act, and do not otherwise violate the Act.23 (d) As allegedly made by Michael Fitz A single witness, Ingram, testified that a few days before the election she attended a meeting in which Fitz stated he would not negotiate with the Union. Among the persons who Ingram testified attended the meeting were Galvin, McGovern, Somerville, Lisch, Weather- ford, Cain, and Humphrey . None of these General Coun- sel witnesses referred to Fitz's alleged statement in their testimony. The General Counsel opines that, although Ingram was confused concerning who attended the meet- ing, "she was clear on both direct and cross-examination as to what was and wasn't said at that meeting." (Br. at 18, fn. 22) This statement is not exactly correct. Witness this excerpt from Ingram 's cross-examination: Q. Did he say something to the effect that, if the Union wins, we'll refuse to negotiate. A. Yes. Something like that. Q. Something like that. But what did he say? 22 The Board 's recent decision in Rossmore House, 269 NLRB 1176 (1984), affd sub nom Hotel Employees Local 11 v NLRB, 760 F 2d 1006 (9th Cir 1985), does not suggest a different result here First, there is no evidence that Cain, Ingram, and Molder were open and active union sup- porters Ingram wore a small union button, but this does not bring her within the Rossmore House decision Moreover, nothing in Rossmore per- mits supervisors to inquire of employees of how they intend to vote, who signed union cards, or other matters involved in this case See Asocracton Hospital del Maestro, 272 NLRB 853 (1984) 22 Concerning par 8(b), creating an impression of surveillance, 8(d)- threats that employees would make less money if they selected the Union, and 8(e)-employees told they could vote in the election only if they voted no, no evidence supports these allegations , and I will recom- mend that they be dismissed A. I don't know. I just remember that word, "ne- gotiate." Q. So is that the only word you remember? Ne- gotiate? A. Yes. But he was talking about the Union. He was saying that we won't negotiate if. Q. If? A. If something. But I don't remember. In any event, Fitz denied making the statement in ques- tion and I note that Respondent prepared written hand- out sheets to its supervisors concerning the correct and prohibited conduct in dealing with the union campaign (R. Exhs. 1 and la). In view of all the evidence, I will recommend that this allegation be dismissed.24 3. The alleged 8(a)(3) transfers, refusals to reemploy, and other kinds of acts On 31 October the Union filed a representation peti- tion. Shortly before this, many employees had begun to wear union buttons to work and during work. Then in early November Fitz arranged the first of several super- visor's meetings dealing with Respondent 's strategy to counter the Union's organizational drive. All this is im- portant to show knowledge by early November of union activities. There is also abundant evidence of Respond- ent's animus toward the Union and its supporters as re- flected in the 8(a)(1) violations caused by three of Re- spondent's supervisors. 2 a Section 8(a)(3) of the Act forbids an employer "by dis- crimination in regard to hire or tenure of employment or any term or condition of employment to . . . discourage membership in any labor organization ... ." In NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the Supreme Court approved the Board's procedural framework for resolving the question of motivation in 8(a)(3) cases. The Board's framework, as set forth in Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989, requires the Board's General Coun- sel to show that an employee's protected conduct was "a motivating factor" in the employer's decision to take ad- verse action against the employee. A violation is then found unless the employer can show by a preponderence of the evidence that the action would have been taken even absent the employee's protected conduct. I turn now to consider separately the conduct alleged by the General Counsel to have violated Section 8(a)(3) of the Act. 24 1 will further recommend that the allegation regarding statements of Helen Green be dismissed due to the failure of the General Counsel to prove that Green was a statutory supervisor 25 Of course, Respondent, is responsible for the acts of its supervisors when the employees would have just cause for believing that the supervi- sors were acting for and on behalf of management in the commission of the acts in question Trey Packing v. NLRB, 405 F 2d 334, 338 (2d Cir 1968) ESKATON SUNRISE COMMUNITY a. The alleged 8(a)(3) transfers It is unnecessary to repeat in detail the facts as found above. It suffices to say that on 7 November, Fitz made a major change in his plan for the personal care staff. Only those who had the CNA would be kept. This meant that union supporters McGovern, Somerville, Davis, and Humphrey were offered transfers to Re- spondent's nearby nursing home .28 James Majestic, who did not testify, was offered an on-call position in the kitchen of Sunrise. The result of this move was to de- molish the Union's organizational campaign and to punish the affected employees for their concerted pro- tected activities.27 First I must note the timing of Respondent's change in plans coming a new days after notice of the Union's peti- tion. Next is the fact that the three retained CNAs, Galvin, Lisch, and Andreus, kept the same duties as before and through March 1984 until the ICF license was issued and the new patients entered the facility. Third, I note that the four who were offered transfers to Manzanita, although unfit for duty at Respondent's ICF facility which had not yet even opened, were perfectly acceptable at Manzanita, a SNF with a higher level of care than an ICF. Although all four earned the CNA in November or early December, at their own expense, they clearly were not as experienced as CNAs, but again were accepted at Manzanita. Fitz knew the difference between the two facilities because he had worked at both. All this becomes even more incriminating when it is noted that in order to replace those transferred to Sun- rise facility, Respondent had to hire brand new employ- ees for Manzanita. While these new employees were trying to learn their jobs at Manzanita, at least two newly tranferred CNAs at Sunrise were so dissatisfied with their positions they soon quit. Based on the above, I find a prima facie case of dis- criminatory action presented by the General Counsel. That is, the five employees' protected conduct was a mo- tivating factor in the employer's decision to lay off those' who declined to be transferred. As noted above, I find not credible Fitz' testimony regarding his remarks to the personal care staff in September. According to Fitz, he told them that only three experienced CNAs would be kept. No names were given then. This testimony is pre- posterous. Only three persons fit that description and ev- eryone would have known who was going to be kept. Fitz would not have had to ask Whicker for her recom- mendation. Fitz would have immediately ruled out McGovern, who, although highly rated by Whicker, did not have the CNA. 26 Because Majestic did not testify , I refused G C Exhs 36 and 37 which related to him It appeared that he may have requested the trans- fer offered to him However, in reviewing Fitz' testimony, I now find that Majestic should be treated like Galvin and the others Majestic was an on-call care attendant who was transferred to the status of on-call, cook, with a raise in pay from $3 70 to $4.10 This was supposed to occur on or about 21 November, but Majestic did not call Fitz to accept or reject the offer. I now admit G C. Exhs 36 and 37 into evidence and find that Majestic was transferred due to the union activities of the other per- sonal care attendants 27 State County Employees Louisiana Council No 17, 250 NLRB 880, 883 (1980). 79 Further evidence of Respondent's true motive in offer- ing transfers is provided by the terms and conditions of the offer. Employees were told they had to decide within 24 hours, even though they were not initially told the wages they would be paid. It is no more than common sense that a person could not decide on a new position without knowing all relevant facts and circum- stances including pay. Finally, Fitz testified the transfers were made in No- vember even though no ICF patients were due until Feb- ruary of 1984 or later, because Fitz wanted an early start, and to have full adjustment by the time the ICF license was issued. In the context of this case, I cannot accept this rationale. To recapitulate, I find that Respondent violated the Act by transferring the five personal care staff, based on the timing of transfers , closing related to knowledge of union activity, Respondent's inconsistent and shifting ex- planation for its actions, and the overall incredible nature of Respondent's evidence. b. The alleged 8(a)(3) refusals to reemploy As noted above, both McGovern and Humphrey re- fused to accept the transfers to Manzanita . Both, howev- er, obtained their CNA in November or early December. In December, Galvin told McGovern that two of the Manzanita transfer CNAs had quit, so McGovern reap- plied, indicating a desire for any hours (G.C. Exh. 5). Humphrey reapplied for work in late January 1984, after seeing a want ad in the newspaper for CNA positions available at Sunrise. She offered to work any hours on any shift (G.C. Exh. 35). Neither applicant was inter- viewed by Fitz, nor rehired, because they were not "ex- perienced" CNAs. Although Fitz was declining to rehire McGovern and Humphrey, he hired nine new CNAs during December, January, and February 1984 (G.C. Exh. 30). No evidence was presented by Respondent to show that these new hires had greater experience than the two women who reapplied.28 Based on all the evidence-including Fitz' assurance to McGovern in mid-September that she and Galvin would definitely be kept on, because they were "top of the line" as desired by him, I find that Respondent violated Sec- tion 8(a)(3) of the Act by refusing to rehire McGovern and Humphrey.29 28 I note Respondent's job description for the CNA position (G.C. Exh 31) Page 2 of the document calls for the CNA upon hire or enroll- ment in a CNA training program within 3 months of employment. Con- cerning experience, it was preferred that the applicant have previous ex- perience in a hospital or nursing home However, no particular type of experience was specified 28 In NLRB v Mount Desert Island Hospital, 695 F 2d 634 ( 1st Cir 1982), the Court held that refusals to rehire employees based on their past concerted protected activities violates the Act, citing Phelps Dodge Corp Y. NLRB, 313 US 177 (1941) 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. The alleged 8(a)(3) refusal to grant full-time status to one employee and a day-shift status to another employee This portion of the case must be considered in the con- text of the 8(a)(1) violations found above. It will be re- called that Van Santen told Galvin that she would never receive a day-shift assignment due to her union activities. Similarly, Van Santen told Lisch that she would never get a full-time shift for the same reason. Further back- ground evidence is provided by the testimony of Lisch. In a meeting with Fitz on 14 November, he told her that he was hiring her on a full-time basis with full benefits and that her schedule would be made up by Van Santen. When Fitz was asked about this on direct examination he said: ... did you tell her [Lisch] earlier, when you told her that she had a job here, did you tell he that she'd get a full-time job? A. I do not recall that, no. Q. Mightn't you have told her that? A. I really couldn't say. I don't know. Q. . . . But when you got the people from Man- zanita and checked out the seniority, she had the least. A. That's correct. Q. . . . And that was the basis you made your scheduling on. A. That's right. A few days after they were transferred over from Man- zanita, the O'Brien sisters, both CNAs, quit (G.C. Exh. 30). Although Fitz knew that Lisch desired to work full time, the departure of these allegedly senior CNAs did not affect her part-time status. Concerning Galvin, Fitz knew that she had organized the union campaign and he told her that he had known it all along and took it per- sonally. In light of this specific context and the overall posture of the case, I cannot credit Fitz' testimony that Galvin and Lisch did not receive their desired shifts due to the higher seniority of the Manzanita employees. But for Re- spondent's scheme to defeat the Union in the first place, there would have been no transfers from Manzanita. Fur- ther, the Board need not treat self-serving declarations of an employer as conclusive, even if not contradicted by any direct testimony in the record.S° Therefore, I am not convinced that the CNAs from Manzanita were senior to Galvin and Lisch. Respondent presented no evidence other than Fitz' testimony to prove this de- fense. Accordingly, I agree with the General Counsel (Br. 31), that the seniority defense is pretextual and that Respondent violated Section 8(a)(3) of the Act as al- leged. 4. The objections to the election The Report on Objections is found in the record as General Counsel's Exhibit 3a. It reflects eight objections filed by the Charging Party. In this case, the critical period in question is between 31 October and 12 January 1984, the dates of the filing of the Union's representation petition and the date of the election. Those 8(a)(1) violations found to have occurred during the critical period can be considered in determin- ing whether the election should be set aside.31 Conduct which is violative of Section 8(a)(1) of the Act, is a fortiori conduct which interferes with the re- sults of an election unless the unlawful conduct is so de minimis to make it virtually impossible to conclude that the violations could have affected the results of the election.See Custom Trim Products, 255 NLRB 787 (1981); Enola Super Thrift, 233 NLRB 409 (1977); Dal- Tex Optical Co., 137 NLRB 1782 (1962). In determining whether an employer's unfair labor practice conduct is de minimis with respect to affecting the results of an election, the Board takes into consideration the number of violations, their severity, the extent of dissemination, the size of the unit, and other relevant factors. Caron International, 246 NLRB 1120 (1979). I agree with Respondent that only Objections 2, 7, and 8 are in issue as there is no evidence, or insufficient evi- dence, to support the others. Concerning Objection 2 (intimidation of eligible voters with loss of employment opportunities if they supported the Union), Van Santen told Galvin that she would never receive a day shift due to her union activities; she also told Lisch that Lisch would never get a full-time shift for the same reason. Both of these statements violat- ed Section 8(a)(1) of the Act. Concerning Objection 7 (interference with, and re- straint and coercion of Respondent's employees in the exercise of Section 7 rights), I have found a number of 8(a)(1) violations in this case. They all occurred within the critical period. The objection is couched in language defining the elements of an 8(a)(1) violation. According- ly, where the violation has been found, this objection has been fully sustained. Finally concerning Objection 8 (threats to known union adherents because of union activities), again Van Santen's severed head story repeated to two employees suffices here. Further, Van Santen said to Lisch that it was not "real healthy" for her to continue her union ac- tivities. Finally, Axley threatened Galvin with loss of employment for her union activities. This objection is sustained. Concerning Objections 1 (names of ineligible voters on "Excelsior List"), 3 (promises of benefits to employees to vote against union and promised benefits if union lost), 4 (publicly insulting and inciting known union adherents), 5 (material misrepresentations to employees about union matters including policies and dues without affording the Union an opportunity to reply), and 6 (threats to close the facility or to take other relatiatory measures if Union won election), I will recommend that these be overruled and dismissed as lacking in ment. Based on the number of serious violations found, the extent of dissemination-the entire personal care, kitch- en, and housekeeping staff were affected-and the rela- 30 NLRB v Searle Auto Glass Co, 762 F 2d 169 (9th Cir 1985) 31 Ideal Electric Co, 134 NLRB 1275 (1961) ESKATON SUNRISE COMMUNITY tively small size of the unit, a second election will be re- quired. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Eskaton Sunrise Community is an employer within the meaning of Section 2(2) of the Act engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Hospital Workers Union, affiliated with Service Employees International Union Local 28, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material to this case, Respondent's em- ployees Phyllis Van Santen, Judy Axley, Lee Browning, and Michael Fitz were statutory supervisors, but Helen Green was not. 4. By engaging in the following conduct, Respondent violated Section 8(a)(1) of the Act: (a) Supervisor Van Santen telling employees that vari- ous staff changes were made due to employee union ac- tivities. (b) Supervisor Van Santen threatening employees with physical harm if they continued their union activities. (c) Supervisor Van Santen telling employees they would not receive a day-shift assignment and another employee that she would not receive a full-time shift due to their union activities. (d) Supervisor Van Santen telling employees that they would not receive their paychecks unless they voted no in the union election. (e) Supervisor Axley threatening an employee with loss of employment for engaging in union activities. (f) Supervisor Axley creating the impression of surveil- lance and asking employees who signed union authoriza- tion cards. (g) Supervisor Browning interrogating employees how they planned to vote in the union election. 81 5. By engaging in the following conduct, Respondent violated Section 8(a)(3) of the Act. (a) Supervisor Fitz offering transfers or layoffs to em- ployees McGovern, Somerville, Davis, Humphrey, and Majestic because of their union activities. (b) Supervisor Fitz refusing to reemploy former em- ployees McGovern and Humphrey due to their union ac- tivities. (c) Supervisor Fitz refusing to grant full-time status to one employee and a day-shift assignment to another due to their union activities. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. The Employer did engage in conduct which affect- ed the results of the election conducted on 12 January 1984, in Case 20-RC-15691, and a second election is warranted. 8. Other than specifically found herein, Respondent did not engage in other unfair labor practices. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I will recommend that it be ordered to cease and desist and take certain affirma- tive action which is necessary to effectuate the policies of the Act. In particular, it will be recommended that Respondent be ordered to post the attached notice and mail copies of the notice to certain former employees. Further, having found that the Union's Objections 2, 7, and 8 to the election were sustained by the evidence, I shall recommend that the election of the 27 September be set aside, and that a new election be ordered by the Regional Director as soon as feasible. Finally, I shall rec- ommend that employees McGovern, Somerville, Davis, Humphrey, Majestic, Galvin, and Lisch be reimbursed for any loss in wages and benefits they may have suf- fered as a result of Respondent's discrimination against them including the offering of transfers or layoffs, the re- fusals to reemploy, and the refusals to grant full-time status and transfer to a day shift. Any backpay due will be determined in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950); Isis Plumb- ing & Co., 138 NLRB 716 (1962); and Florida Steel Corp., 231 NLRB 651 (1973). [Recommended Order omitted from publication.]