Parkview Gardens Care Center

PARKVIEW GARDENS CARE CENTER 47 Beverly Enterprises, Inc. d/b/a Parkview Gardens Care Center and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America. Case 18-CA-9125 30 May 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 6 February 1986 Administrative Law Judge Peter E. Donnelly issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-excep- tions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and 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, Beverly En- terprises, Inc., d/b/a Parkview Gardens Care Center, Waterloo, Iowa, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. 1 The General Counsel and the Respondent have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951). We have carefully examined the record and find no basis for reversing the findings. In finding that the Respondent violated Sec . 8(axl) when St. Paul Ad- ministrator Waalen told employees , that if they went on strike they would have to resign from the Union in order to return to work, the judge stated that employee Cindy Bakken testified she heard such statements on 16 February 1985. Employees Michelle Webb, Elneice Pullin, and Alyce Walter all credibly testified that Waalen made such statements on 16 Feb- ruary and Webb and Bakken both credibly testified similar statements were made on 19 and 20 February 1985 We adopt the judge's other find- ings and conclusions concerning the three meetings. cultural Implement Workers of America (the Union or Charging Party). An amended charge was filed on 14 April 1985 and a complaint thereon was issued on 17 April 1985 alleging that Beverly Enterprises, Inc., d/b/a Parkview Gardens Care Center (the Employer or Re- spondent) coercively threatened, interrogated, and made promises to employees in violation of Section 8(a)(1) of the Act and further that Respondent violated Section 8(a)(5) of the Act by unlawfully withdrawing recogni- tion from the Union, and thereafter unilaterally imple- menting changes in wages, benefits, and working condi- tions. On 7 May 1985 an amendment to the complaint issued alleging that Respondent violated Section 8(a)(l) of the Act by permitting solicitation of signatures for a decertification petition while maintaining and enforcing a no-solicitation rule. At the hearing, the complaint was further amended to allege an incident of interrogation in violation of Section 8(a)(1) of the Act. Answers thereto have been timely filed by Respondent. Pursuant to notice a hearing was held before me on 26 and 27 June 1985. Briefs have been timely filed by the General Counsel and Respondent, which have been considered. FINDINGS OF 'F'ACT 1. EMPLOYER'S BUSINESS The Employer is a California corporation with an office and place of business in Waterloo, Iowa, where it is engaged in the operation of a nursing home facility providing convalescent care to the aged and infirm. During the past calendar year, the Employer derived gross revenues in excess of $100,000 from its Waterloo facility and derived gross revenues in excess of $10,000 from sales or performance of services directly to custom- ers outside the State of Iowa . It purchased and received at its Waterloo, Iowa facility products, goods, and mate- rials valued in excess of $5000 directly from points out- side the State of Iowa . The complaint alleges, the Em- ployer admits, and I find that the Employer is an em- ployer engaged in commerce within the meaning of Sec- tion 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 Larry Witherell Esq., for the General Counsel. Howard E Cole, Esq., of Pasadena, California, for the Respondent. Walter Schneider, of Waterloo, Iowa, for the Charging Party. DECISION STATEMENT OF THE CASE./ PETER E. DONNELLY, Administrative Law Judge. The original charge was filed on 6 March 1985 by Interns- ' tional Union, United Automobile, Aerospace and Agri- A. Facts' As noted above, Respondent operates a nursing home, caring for the aged and infirm in Waterloo, Iowa. On 22 i There is conflicting testimony regarding some of the allegations of the complaint. In resolving these conflicts I have taken into consider- ations the apparent interests of the witnesses. In addition, I have consid- ered in the inherent probabilities, the probabilities in light of other events; corroboration or lack of it; and consistencies or inconsistencies within the testimony of each witness and between the testimony of each and that of other witnesses with similar apparent interests . In evaluating the testimo- ny of witnesses, I rely specifically on their demeanor and have made my findings accordingly While apart from considerations of demeanor, I Continued 280 NLRB No. 5 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD December 1983 the Union was certified as the collective- bargaining representative of some 75 employees in a bar- gaining unit described in the complaint as: All full-time and regular part-time employees, in- cluding nurses aides, medical aides, records clerk, dietary aides, cooks, housekeepers, activity aides, therapy aides, laundry workers and maintenance employees; excluding licensed practical nurses, reg- istered nurses, office clerical employees, profession- al employees, guards and supervisors as defined in the Act. Negotiations, in an effort to reach agreement on a con- tract, were conducted thereafter without success until February 1985, when International Representative Walter Schneider, on 14 February 1985,2 sent a letter to Respondent giving notice of the Union's intention to strike. The letter reads: This will serve as the official ten (10) day notifi- cation from the International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America (UAW) and its affiliated Local 838, that unless we are able to resolve our differ- ences for our first Labor Agreement by 7:00 A.M. February 26, 1985, a strike of your facility will take place at that time. It would be my recommendation that we sched- ule a series of consecutive day meetings in an at- tempt to resolve our differences prior to this dead- line. My schedule is open-I am available any time. On 16 February 1985 Joleen Waalen, administrator of Respondent's facility in St. Paul, Minnesota, arrived at Respondent's Waterloo, Iowa facility to assist in making strike preparations. To that end she spoke at various times to groups of unit employees covering those mat- ters. While addressing employees shortly after her arrival on 16 February, Waalen spoke about Respondent's con- tinuing obligation to care for patients during a strike and the work options available to employees in the event of a strike. In this regard Michelle Webb, an employee, testi- fied that on 20 February Waalen reiterated her remarks of 16 February. Webb testified, "Well, she again basical- ly just repeated everything they had told us on Saturday [16 February]. Told us that they had received the strike notice, and that preparations were being made and that she again said that we'd have to resign from the Union if we wanted to work or if we wanted to come back to work if we went out on strike." Employees Cindy Bakken, Elniece Pullin, and Alyce Walter all testified that they were told by Waalen at employee meetings on 16 February that if the employees went on strike, they would have to resign from the Union before they could return to work. Waalen denied having told employees that they would have to resign to either continue working during the have taken into account the above-noted credibility considerations, my failure to detail each of these is not to be deemed a failure on my part not to have fully considered it Walker's, 159 NLRB 1159 (1966) 2 All dates refer to 1985 unless otherwise indicated strike or to return if they went on strike. Rather, Waalen testified concerning the 16 February meeting, with re- spect to the matter of resignation, "I told them that they had a right to stay and work that they did not have to go on stike, and if they were going to do that then, and if they were dues paying members then they would have the option of resigning from the union or talking to their union representative about finding out what they could do, and the possibility that there might be some fines or some penalties that could be assessed to them if they de- cided to work and did not go out on the strike." Waalen was asked: "If a strike occurred, did you tell the employ- ees that if they wanted to work at the facility, that is not to go out on strike, that they would be required to resign from the union if they wanted to work at the facility? I see a blank expression on your face, do you understand the question?" Waalen responded: "Yes. As I previously stated it was in the context of if they were dues paying members in that there might be a possibility of some fines or penalties. We know that this does happen in case of strike situations, that to possibly avoid these types of fines or penalties they should resign from the union prior to the strike notice date." However, lined out item five of handwritten notes prepared by Waalen on the morn- ing of 16 February, from which her talk was delivered, was not so qualified. It read: If emp. wants to work, and they are a dues paying member, they must resign from the union before the strike. Waalen did not testify concerning the lined out language, that is, why, how, when, or where it came to be lined out. Neither did she make the statement which appears as item five of the handwritten notes. In the absence of such testimony, and especially in view of Webb's testi- mony, I do not accept the assumption proposed by Re- spondent in its brief that item five of the handwritten notes was crossed out when prepared rather than after the fact.3 Finally, in crediting the mutually corroborative testimony of Webb, Bakken, Pullin, and Walters, I con- clude that Waalen told employees at the 16 February meeting that their continued employment as well as their employment after a strike began was conditioned on their resignation from the Union. In another incident on 16 February, Beth Harvey, a nurses aide who was at home on maternity leave until 18 March, received a telephone call from Ann Rogers, di- rector of nursing, who was attempting to determine, for staffing purposes, which employees intended to strike and which intended to work. According to Harvey, she was told by Rogers that if she went on strike she could be terminated and wanted her answer within 2 days. By letter to Rogers dated 18 February, Harvey complained that she had not been given enough time to make the de- cision, and stating that she would give Rogers her deci- sion when her maternity leave ended on 18 March. Rogers recalls a telephone conversation with Harvey, 2 Conlon testified that he could not recall Waalen having mentioned anything about resignation. However, because Waalen testified that she did mention resignation, Conlon's testimony must be discounted, PARKVIEW. GARDENS CARE CENTER 49 but denies ever telling her that she would be terminated if she went on strike. Rogers testified that she told Harvey she wanted her to return when her maternity leave ended, and only that any striking employee would be permanently replaced. Having carefully reviewed the record I credit Rogers, and conclude that she did not threaten Harvey with termination if she joined the strik- ers, particularly since, under the circumstances, any threat would have been gratuitous and unnecessary at that time because Harvey was not even scheduled to return to work until 18 March. It is not improbable that Harvey, not being particularly sensitive to words of art in the world of labor relations, interpreted "permanently replaced" to mean "terminated," particularly since the immediate result would be the same, i.e., loss of employ- ment. In another 16 February incident involving Rogers and nurses aides Brenda Jones and Laura Gillette, Jones testi- fied that about 10:30 a.m. Rogers approached her and Gillette, ' asking Jones if she was going to strike or not. Jones testified that before she could answer Rogers told her that "if I walked out that I would be through be- cause I was on probation." Jones replied that "if that was the case I'd probably have to stay and not walk out." Rogers recalled a conversation with Jones and Gil- lette in which she inquired whether Jones intended to work in the event of a strike, but denies ever saying that she would be fired if she went on strike, only that strik- ers could be permanently replaced. Rogers concedes that she reminded Jones that she was on "orientation," i.e., probation,'' but does not know why she said it. Because it appears that Respondent was making an effort to con- tinue patient care during the strike, it was not coercive to ask these employees if they intended to work during the strike to be able to adequately staff the facility to ensure adequate patient care. Hovever, in these circum- stances, I am satisfied that Rogers' remarks were coer- cive to the extent that they suggested to Jones that she would be discharged, particularly in view of her proba- tionary status, if she elected to strike. Waalen again addressed the employees on 19 and 20 February5 about matters dealing with preparing for the strike set for 26 February. Webb testified that on 20 Feb- ruary, Waalen repeated basically what she had said the previous Saturday, 16 February, including reminders to the effect that if the employees went on strike and wanted to return to work, they would have to first resign from the Union. Bakken testified that at a meeting on 20 February Waalen told those employees assembled that if they struck and wanted to return to work they would have to write a letter to the administrator stating that they would not be represented by the Union. Waalen said that thereafter they would be considered for employment along with new applicants as job openings came up. Further, those who returned would come back as new employees, without seniority. According to Bakken, Waalen delivered essentially the same address 4 Rogers testified that orientation/probation is a 3-month period during which employees may be discharged without notice 5 The parties stipulated that employee meetings were held on 16, 19, and 20 February. on 20 February, as 16 February, including statements to the effect that striking employees who wanted to return to work would have to advise Respondent that they had resigned from the Union. Waalen, whose testimony in this regard is corroborated by housekeeping aide Sandy Buenneke, denies having made any such statement. Waalen testified that her remarks were limited to certain handwritten notes drafted by her on the morning of 20 February. Those notes treat, inter alia, the matter of how striking employees could be considered for reemploy- ment and do not contain any requirement that strikers resign from the Union to return to work. However, in all the circumstances, particularly because I have concluded that Waalen made such a statement to employees on 16 February, it is not unlikely that she would have repeated those remarks on 20 February and, in crediting the testi- mony of Webb and Bakken, I so find.6 In another incident, at the conclusion of the meeting on 20 February, therapy aide Marietta Bagby ap- proached Waalen and they discussed such matters as em- ployee protection and surveillance during the anticipated strike. Bagby told Waalen that she had heard about some unionized nursing homes' in Minneapolis and she asked Waalen about them. According to Bagby, Waalen avoid- ed the question by responding that there was a Beverly Nursing Home in Minneapolis, but that it had been de- certified and that those employees got a 3-percent raise and an additional raise after that. Waalen also said that she was not telling Bagby that the employees at the Wa- terloo facility would get such a raise, only that it was an example of what happened at one home in Minneapolis. Waalen generally denied promising employees increased wages or benefits, but did not testify about any conversa- tion with Bagby. In these circumstances, I conclude that Bagby's version is substantially accurate; however, I cannot conclude that such a remark violates Section 8(a)(1) of the Act. This was essentially merely an obser- vation being made by Waalen in response to Bagby's question, and any coercive implication would have been dissipated by Waalen's telling Bagby that this was "one example," and not any representation that the same thing would happen at the Beverly Nursing Home in Water- loo. About 19 February, after the decertification petition had begun circulating among the employees, Doris Ost- dahl, nursing supervisor, came into the janitor room where Walter was getting supplies for her cart. Walter testified that Ostdahl told her that a petition was being circulated to decertify the Union and that if a certain percentage, which Walter could not recall, signed the petition then things could get back to normal. Ostdahl also testified that he made such remarks, but that they were in response to a question asked by another employ- ee, who she thinks was either Betty O'Leary or Cather- ine Arnold. In any event, Walter testified that later that " The complaint also alleges that Respondent violated Sec . 8(axl) of the Act by threatening striking employees that if they engaged in a strike they would be required to submit a new application to be rehired; that they would be rehired only at the mmium wage rate, and that they would suffer a change in hours or work; however, the record is totally insufficient to support these contentions 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same day, as Walter was leaving the facility, and while Ostdahl was on a break, Ostdahl asked her if she was going to to sign the petition and Walter replied that she would have to think about it. Despite Ostdahl' s denial, a careful review of the testimony of both Walter and Ost- dahl convinces me that Walter's version was the more credible and I conclude that such interrogation concern- ing Walter's intention about the decertification petition was unlawful under Section 8(a)(1) of the Act. Concerning the decertification petition, it appears that Nancy Schares, a dietary cook, first raised the matter on 16 February after a meeting at which Conlon and Waalen addressed the employees. One of the employees asked Conlon how they could get the Union out. Conlon told him that they would have to do it themselves. Thereafter Schares pursued the matter with Conlon asking him how this could be done. Conlon responded that the employees could draw up a petition signed by 50 percent of the employees saying that they no longer wanted a union, and "that would take care of it." There- after, on 18 February , Schares asked Jean Biers, nursing supervisor, to help her to word the heading for a decerti- fication petition . Biers wrote out a heading that said, "We the undersign [sic] no longer wish to be represented by Local 838." Schares copied this on another sheet of paper and left. Schares signed the petition on 18 Febru- ary and by Saturday, 23 February, had obtained signa- tures from majority of the unit employees.' On 23 February Schares called Conlon from Biers' office where they met. Schares told him that she had a petition with 48 names and did not know what to do with it. Conlon told her that she could either give it to the National Labor Relations Board on Monday or give it to him and he would take the appropriate action. Schares then left, obtained an additional signature, and about one-half hour later returned to Biers' office where she gave the petition to Conlon , who then met with Davis and Waalen. They went over a list of employees, and after determining that a majority of the unit had signed the petition, Conlon called Chad Spawr, Re- spondent's director of labor relations . After some discus- sion, Conlon sent the petition to Spawr on Monday, 25 February. Also on 25 February Conlon held two staff meetings at the facility. At these meetings Conlon read the following prepared statement to the employees: Respondent had in effect at this time a document entitled "Employ- er's Policies," which contained a section captioned "Solicitations" which reads: Solicitation by salesmen or representatives of outside organiza- tions, not associated with the day-to-day operations of the Center, are prohibited during an employee's working time or in areas fre- quented by residents of the Center No written materials, circulars or petitions are to be circulated. These restrictions apply to religious, fraternal and similar organizations. Each employee is expected to report any violation of this rule, or the presence of any outside solicitor , to the Center office immediate- ly. Despite this prohibition, it appears that solicitations in violation of the rule were conducted among and by both employees and supervisors. These solicitations included cookies and calendars for the Girl Scouts, pizzas for the Sweet Adobnes, T-shirts for the American Health Care As- sociation, and Tupperware. It also appears that eggs were sold and dehv- ered at this facility. 1. We have received a petition from the majority of the union bargaining unit stating they no longer wish the union to represent them. 2. In effect what that means is we as the employ- er no longer have to recognize the union as the bar- gaining agent for you our employees. 3. We greatly appreciate your support and as a result of the action you employees have taken we will be able to present to you within the week re- garding benefits [sic] and wage increases. I reline [sic] there will probably be some very un- happy people when they hear this news as well as some very, very happy people. We would ask that we put all of this union business behind us and get back to normal operation. If some individual chose [sic] not to do that I can only remind them that we will take whatever appropriate legal action to main- tain the normal working operation of our facility. Again I thank you and we will be getting back to you. Having thus concluded that the Union no longer rep- resented a majority of Respondent's employees, Re- spondent sent a mailgram dated 23 February from Spawr to Schneider reading: THE EMPLOYER IS IN POSSESSION OF OB- JECTIVE EVIDENCE WHICH RAISES A REASONABLE DOUBT THAT YOUR UNION REPRESENTS A MAJORITY OF EMPLOYEES IN THE ABOVE REFERENCED FACILITY. ACCORDINGLY, THE EMPLOYER WITH- DRAWS RECOGNITION FROM YOUR UNION EFFECTIVE AT 9 O'CLOCK AM MONDAY, FEBRUARY 25, 1985. ALL MEETINGS ARE CANCELLED. It is undisputed that about 28 February Respondent unilaterally implemented a new wage and benefits pro- gram known as the "Northern Division" program. B. Analysis and Recommendation 1. The 8(a)(1) threats and interrogation As noted above, I have concluded that Waalen in re- marks made to employees on 16 and 20 February advised them that if they wanted to continue to work, or if they went on strike and later wanted to come back to work, it would be necessary for them to first resign from the Union. Such remarks are coercive since Respondent may not legally condition employment on union membership considerations and statements which impose such restric- tions on employment are coercive within the meaning of Section 8(aXl) of the Act. With respect to the incident wherein Rogers, in con- versation with Jones, indicated that in view of her proba- tionary status she would be terminated if she went on strike, these remarks are clearly a threat to Jones' em- ployment in the event she elected to exercise her statuto- ry right to strike, and as such violate Section 8 (axl) of the Act. PARKVIEW GARDENS CARE CENTER As set out more fully above, it appears that Ostdahl did advise Walters about the petition being circulated and that signing by a certain percentage of employees would get things back to normal . Later she asked Wal- ters if she intended to sign it. In these circumstances, the interrogation by Ostdahl was coercive and constitutes in- terference by Respondent within the meaning of Section 8(a)(1) of the Act. The General Counsel also contends that disparate ap- plication of Respondent's no-solicitation rule constitutes interference with employee rights under Section 8(a)(1) of the Act.8 In order for the General Counsel to prevail, she must show more than the mere existence of the rule9 and permitting the circulation of the decertification peti- tion. The General Counsel must establish that Respond- ent permitted solicitation of the decertification petition while at the same time enforcing the no-solicitation rule concerning other types of solicitation. The record does not support this conclusion . What the record shows is that Respondent did allow solicitation among its employ- ees for other purposes, such as Girl Scouts, Sweet Ado- lines, American Health Care Association, Tupperware, and the sale and distribution of eggs. It is also clear that Respondent's supervisors were aware and involved in these solicitations. In these circumstances, I cannot con- clude that the rule was applied disparately to permit so- licitation of the decertification petition. 2. The 8(aX5) refusal-to-bargain allegations The General Counsel also alleges that Respondent, in violation of Section 8(aX5) of the Act, refused to bargain with the Union by unlawfully withdrawing recognition from the Union and instituting new wages and working conditions, i.e., the Northern Division program. The General Counsel theorizes that because the decertifica- tion petition was tainted by Respondent's unfair labor practices, any withdrawal of recognition or unilateral changes in wages or working conditions which depend on the decertification petition for their validity are un- lawful in violation of Section 8(a)(5) of the Act concern- ing both the withdrawal of recognition and the unilateral changes. First, Respondent admits that it both withdrew recog- nition from the Union and instituted the "Northern Divi- sion" program. This being the case, the General Coun- sel's position depends on whether the decertification peti- tion was tainted. Because I have already concluded that Respondent did not violate the Act by the disparate en- forcement of the no-solicitation rule, I conclude that the decertification petition was not tainted in that manner. However, there remains the issue of whether the coer- cion found in the statements made by Waalen to the em- ployees and the coercive remarks by Rogers and Ostdahl were sufficient to have tainted the decertification peti- tion. It is necessary in this regard to consider the nature of the remarks and the context in which they were made. s The General Counsel does not allege that Respondent unilaterally as- sisted in the formulation and circulation of the decertification petition, and that matter is not treated herein. 9 No contention is made that the rule as written is invalid. 51 As set out more fully above, Waalen addressed virtually all the employees telling them, inter alia, that if they wanted to keep working, or to return to work after they struck, they would have to resign from the Union. After the meeting on 16 February, Schares was advised by Conlon that decertification could be accomplished by a petition from 50 percent of the employees. Thereafter, Biers drafted decertification language for the petition and Schares obtained the signatures . Thereafter Schares turned in the decertification petition to Conlon. The de- certification then became the documentary basis for Re- spondent's withdrawal of recognition and unilaterally in- stituted a new employment program. In matters concerning employer assistance in the initi- ation and circulation of a decertification petition, the Board has held, "In short, the essential inquiry is wheth- er 'the preparation, circulation and signing of the petition constituted the free and uncoerced act of the employees' concerned."' Eastern States Optical Co., 275 NLRB 371 (1985), citing KONO-TV-Mission Telecasting Corp., 163 NLRB 1005, 1006 (1967). In applying that principle to the instant case, it is difficult to conclude that employee support for the decertification was uncovered in circum- stances where Respondent both prior to and during the circulation of the petition was pressuring unit employees to resign from the Union as a condition of their contin- ued employment . It appears to me that the logical and foreseeable impact of Waalen's coercive union resigna- tion remarks and those of Rogers and Ostdahl would be to induce employees to sign the decertification petition then circulating, and having done so, satisfied Respond- ent's demand that employees resign to continue to work during the strike. Also, given the small majority who signed the petition, i.e., 49 out of a unit of 94, it is entire- ly possible that without this coercion no decertification majority would have been acquired. In short, when an employer insists on resignation from a union as a condition of both continued employment and reemployment after a strike, and who thereafter as- sists in advising, drafting, and promoting a decertification petition which essentially serves as a vehicle to accom- plish that objective, the product of that effort is tainted and may not be used to support a withdrawal of recogni- tion from the Union based thereon. Accordingly, I conclude that Respondent was not jus- tified in either withdrawing recognition from the Union or unilaterally instituting a new employment program, and having done so, violated Section 8(a)(5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, in connection with Respondent's operations de- scribed in section I, above, have a close and intimate re- lationship 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. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- Having concluded that Respondent unlawfully with- drew recognition from the Union, I shall recommend that Respondent recognize and bargain with the Union as the collective-bargaining representative of its employ- ees in the appropriate unit set out below. Having further concluded that Respondent violated Section 8(a)(5) of the Act by implementing the changes in wages, benefits, and working conditions of the "Northern Division" program, I shall recommend that those wages, benefits, and working conditions in effect prior to the implementation of the "Northern Division" program be reestablished ; however, such reestablishment is not to reduce any greater wages, benefits, or working conditions presently in effect . I shall also recommend that any backpay or moneys due to employees as a result of this recommended remedy be provided with interest, computed in the manner described in F W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).10 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 organization within the mean- ing of Section 2(5) of the Act. 3. By telling employees before and during the circula- tion of the certification petition that they would have to resign from the Union as a condition of their employ- ment, Respondent violated Section 8(a)(1) of the Act. 4. By threatening employees with discharge in the event they went on strike, Respondent violated Section 8(a)(1) of the Act. 5. By interrogating employees concerning their union sentiments, Respondent has violated Section 8 (a)(1) of the Act. 6. All full-time and regular part-time employees, in- cluding nurses aides, medical aides, records clerk, dietary aides, cooks, housekeepers, activity aides, therapy aides, laundry workers and maintenance employees; excluding licensed practical nurses, registered nurses, office clerical employees, professional employees, guards and supervi- sors as defined in the Act, constitute a unit appropriate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act. 7. At all times material herein the Union has been and is the exclusive representative of the employees of Re- spondent within the unit herein found appropriate for purposes of collective bargaining. 8. About 25 February 1985 Respondent violated Sec- tion 8(a)(5) of the Act by withdrawing recognition from the Union as the collective-bargaining representative of the employees in the above-described bargaining unit. 9. About 29 February 1985 Respondent violated Sec- tion 8(a)(5) of the Act by unilaterally changing wages, benefits, and other conditions of employment by unilater- ally implementing a new employment program known as the "Northern Division" program. to See generally Isis Plumbing Co., 138 NLRB 716 (1962). ed" ORDER The Respondent, Beverly Enterprises, Inc., d/b/a Parkview Gardens Care Center, Waterloo, Iowa, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling employees that they would have to resign from the Union as a condition of their employment. (b) Threatening employees with discharge in the event that they went on strike. (c) Interrogating employees concerning their union sentiments. (d) Failing and refusing to recognize and bargain with the Union by unlawfully withdrawing recognition from the Union as the collective-bargaining representative of the employees in the above-described unit. (e) Unilaterally changing wages, benefits , and other conditions of employment by unilaterally implementing the employment program known as the "Northern Divi- sion" program. (f) 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) Recognize and, on request, bargain collectively with the Union as the exclusive representative of all em- ployees in the appropriate unit described above regard- ing rates of pay, hours of employment , and other terms and conditions of employment. (b) Reinstitute, to the extent that wages, benefits, and other working conditions are not reduced, those wages, benefits, and working conditions in effect prior to the un- lawful implementation of the "Northern Division" pro- gram. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records , timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Waterloo, Iowa, copies of the attached notice marked "Appendix." 12 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- 11 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. 12 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." PARKVIEW GARDENS CARE CENTER 53 sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell employees that they must resign from the Union as a condition of their employment WE WILL NOT threaten employees with discharge in the event that they go on strike WE WILL NOT interrogate employees concerning their union sentiments WE WILL NOT fall or refuse to recognize or bargain with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America by un- lawfully withdrawing recognition from it as the collec- tive-bargaining representative of our employees WE WILL NOT unilaterally change wages, benefits, and other conditions of employment WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL recognize and, on request, bargain collec- tively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America as the exclusive representative of all employees in the appropriate unit regarding rates of pay, hours of employment, and other terms and conditions of employ- ment WE WILL reinstitute, to the extent that wages, benefits, and other working conditions are not reduced, those wages, benefits, and working conditions in effect prior to the unlawful implementation of the "Northern Division" program BEVERLY ENTERPRISES, INC, D/B/A PARK- VIEW GARDENS CARE CENTER