Walton Caring Center

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dasal Caring Centers, Inc., d/b/a Lemay Caring Center, and Dasal Caring Centers, Inc., d/b/a Walton Caring Center and Service Employees International Union, Local 50, AFL-CIO. Case 14-CA-17421 30 May 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 21 February 1985 Administrative Law Judge Phil W. Saunders issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings,' findings, 2 and conclusions and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law i The Respondent has excepted to the judge's adoption, with only minor modifications, of many portions of the General Counsel's posthear- ing brief as part of his decision . We do not encourage this practice but because both the record and case law cited fully support the judge's find- ings, we do not find that the judge has acted prejudicially See Washing- ton Beef Producers, 264 NLRB 1163 fit. 2 (1982), enfd. mew. 735 F 2d 1371 (9th Cir. 1984). The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cit. 1951) We have carefully examined the record and find no basis for reversing the findings. 2 We agree with the judge's general statement of the law concerning the adverse inference rule, but do not adopt his use of the rule in one instance. We do not agree with his drawing an inference from the Re- spondent's refusal to produce the subpoenaed employment applications that the employees it hired were less qualified than those of its predeces- sor or that they failed to meet the Respondent's purported standards for hiring While it is proper to infer that the employment applications are unfavorable to the Respondent's position, it is not proper to draw such specific conclusions from applications which might give rise to more than one inference regarding their substantive content. Cf. Auto Workers Y. NLRB, 459 F 2d 1329 (D C Cir. 1972), where the failure to produce sub- poenaed hiring records was found to warrant the striking of a cost-cut- ting defense to allegations that employees were discharged in violation of Sec. 8(aX3) and (1). Our refusal to adopt the judge's inference concerning the employment applications does not, however, affect our adoption of his finding that the Respondent violated Sec. 8(aX3) and (1) inasmuch as other evidence, particularly the credited testimony concerning Acting Administrator Sczpanski's comments to employees, amply demonstrates that the Respondent refused to hire its predecessor's employees because of their union affiliation 8 We shall modify the judge's recommended Order to provide for the reinstatement of employees who were discriminatorily denied employ- ment. We also shall provide a new notice which reflects this modifica- tion, modifies the language to conform the standard language used for cease-and-desist provisions and to conform with other provisions of the recommended Order, and sets forth the names of the discriminatees. judge as modified below and orders that the Re- spondent, Dasal Caring Centers, Inc., d/b/a Lemay Caring Center, and Dasal Caring Centers, Inc., d/b/a Walton Caring Center, St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(b). "(b) Offer to each of the employees named in the appendix, within the previously described units, im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any rights or privileges previously en- joyed." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to employ former employ- ees of Walton Homes, Inc., because of their mem- bership in or representation in the Union, or be- cause of their coverage by a contract between Walton Homes and Service Employees Internation- al Union, Local 50, AFL-CIO. WE WILL NOT refuse to bargain with Service Employees International Union, Local 50, AFL- CIO concerning the rates of pay, wages, hours, and other working conditions of our employees at our Walton and Lemay Centers. WE WILL NOT tell employees that they must withdraw from the Union in order to be hired. WE WILL NOT tell employees that continued em- ployment depends on their withdrawal from the Union. WE WILL NOT interrogate employees about their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, recognize and bargain in good faith with Service Employees International Union, Local 50, AFL-CIO concerning the rates of pay, wages, hours of work, and other working conditions of our employees at our Walton and Lemay Centers in these bargaining units: 280 NLRB No. 7 LEMAY CARING CENTER All employees at our Walton facility at 4527 Forest Park Blvd., St. Louis, Missouri, exclud- ing office clerical and professional employees, guards and supervisors as defined in the Act, and All employees at our Lemay facility at 1204 Telegraph Road, St. Louis, Missouri, including certified medicine technicians, nursing assist- ants, activity employees, laundry, dietary and housekeeping employees, excluding office cler- ical and professional employees, registered nurses, licensed practical nurses, guards and supervisors as defined in the Act. WE WILL offer all the employees listed below within the units who were represented by Local 50 and covered by contracts between Service Em- ployees International Union, Local 50, and prede- cessor Walton Homes, Inc. as of 30 April 1984, im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any rights or privileges previously en- joyed. Adams, Brenda Sue Cockrell, Wanda Darby, Cheryl Duffen, Rozella Duroso, Deborah Furgerson, Jacquelyn Robinson, Annette Rothiff, Beulah Smith, Bobbie Jean Smith, Elizabeth Wilson, Virginia Donaldson, Alberta Martin, Carol A. Rogers, Sarah Irby, Magnolia Thompson, Edna Cluck, Paula Bishop, Edna Hall, Lucinda Hatcher, Ruth Mitchell, Diane Gries, Anita Kiser, Dorothy Lambert, Mary Ann Malady, Corlotta Martin, Elizabeth Newton, Linda L. Rozgowski, Debbie Glass, Evelyn Drennan, Marie WE WILL reimburse the above employees for any losses they may have suffered by reason of our refusal to employ them upon our commencement of operation of the Walton and Lemay facilities less any interim earnings, plus interest. DASAL CARING CENTERS, INC. Sandra J. Holman, Esq., for the General Counsel. Gerald Tockman, Esq., for the Respondent. Linda Krueger MacLachlan, Esq. and Boneva Brown for the Charging Party. DECISION 61 STATEMENT OF THE CASE PHIL W. SAUNDERS, Administrative Law Judge. Based on an original charge filed on May 9 , 1984,1 by Service Employees International Union, Local 50, AFL-CIO (the Charging Party, the Union, or Local 50) a com- plaint and amendment to the complaint was issued on June 13 and 18 against Dasal Caring Centers, Inc. (Re- spondent or Dasal) alleging a violation of Section 8(a)(1), (3), and (5) of the Act. Respondent filed an answer to the complaint denying it had engaged in the alleged matter, and subsequent to the hearing, both the General Counsel and Respondent filed briefs in this matter. On the entire record in the case, and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Walton Home Inc. is a corporation duly organized under and existing by virtue of the laws of the State of Missouri and, at all times material herein , has maintained an office and place of business at 1204 Telegraph Road in St. Louis, Missouri (the Lemay Home or Center). Walton Home, Inc. also maintained another place of business at 4527 Forest Park in St. Louis, Missouri (the Walton Home or Center). Walton Home, Inc. was at all times material herein engaged in the business of operat- ing proprietary nursing homes, and their former places of business located at 1204 Telegraph Road and 4527 Forest Park are both involved in this proceeding. During the 12-month period ending April 30, 1984, which period is representative of its operations during all times material hereto, Walton Home, Inc., in the course and conduct of its business operations, derived gross rev- enues in excess of $100,000 and delivered at its Lemay Home and Walton Home places of business supplies, goods, and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its places of business at 1204 Telegraph Road and 4527 Forest Park, directly from points located outside the State of Missouri. Walton Home, Inc. was, at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent Dasal Caring Centers, Inc. is a corpora- tion duly organized and existing by virtue of the laws of the State of Missouri and, at all times material herein, Respondent has maintained an office and place of busi- ness in St. Charles, Missouri. Respondent maintains an- other place of business at 4527 Forest Park, St. Louis, Missouri (the Walton Home or Center), and also main- tains a place of business at 1204 Telegraph Road in St. Louis, Missouri (the Lemay Home or Center). Respond- ent is, and has been at all times material herein, engaged in the business of operating proprietary intermediate care facilities, and Respondent's places of business located at 1 All dates are 1984 unless stated otherwise 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1204 Telegraph Road and 4527 Forest Park are both in- volved in this proceeding. Based on a projection of its operations about April 30, at which time Respondent commenced its operations, Respondent, in the course and conduct of its business op- erations, will derive gross revenues in excess of $100,000 and will annually purchase and receive at its 1204 Tele- graph Road and 4527 Forest Park, St. Louis, Missouri places of business supplies, goods, and materials valued in excess of $50,000 directly from points located outside the State of Missouri. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party is, and has been at all times mate- rial herein, a labor organization within the meaning of Section 2(5) of the Act.2 III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent violated Sec- tion 8(aXl) in the following respect: On or about April 30, Lemay Home Administra- tor Sczpanski told employees they would be hired by the Respondent if they withdrew from the Union. On or about April 30, Lemay Home Administra- tor Sczpanski conditioned an employee's continued employment on the employee's withdrawal from the Union. Sometime in May 1984, Lemay Home Adminis- trator Sczpanski conditioned an employee's contin- ued employment on the employee's withdrawal from the Union. Sometime in May 1984, Lemay Home Adminis- trator Sczpanski interrogated an employee about the employee's intent to engage in Union activities. It further alleges, as amended, that since April 30, 1984, and continuing to date, Respondent has failed and refused to hire the following employees previously em- ployeed at the Lemay Nursing Center and Walton Nurs- ing Center by Walton Home, Inc.-herein the predeces- sor, Walton Homes or Daake: Adams, Brenda Sue Thompson, Edna Cockrell, Wanda Cluck, Paula 2 Respondent denies that the Charging Party was a labor organization within the meaning of Sec. 2(5) of the Act, arguing that it was not enti- tled to labor organization status because it did not meet the minimum standards of a labor organization such as notifying employees of the sale of the facilities, losing job descriptions, and also because it engaged in violence and made certain threats. The Board has long held that a union meets the requirement of Sec. 2(5) of the Act if it exists for purposes, in whole or in part, of dealing with employers regarding wages , hours, and other terms and conditions of employment, and it is an organization in which employees participate. The record in this case clearly establishes that this is the situation here. Moreover, there have been no charges filed against the Union by Respondent in relationship to any alleged threats of illegal conduct on behalf of the Union , and such matters and circum- stances, even if present, are not factors in determination of whether a labor organization meets the requirements of Sec . 2(5) of the Act Darby, Cheryl Duffen, Rozella Duroso, Deborah Furgerson, Jacquelyn Robinson, Annette Rothiff, Beulah Smith, Bobbie Jean Smith, Elizabeth Wilson, Virginia Donaldson, Alberta Martin, Carol A. Rogers, Sarah Irby, Magnolia Bishop, Edna Hall, Lucinda Hatcher, Ruth Mitchell, Diane Gries, Anita Kiser, Dorothy Lambert, Mary Ann Malady, Corlotta Martin, Elizabeth Newton, Linda L. Rozgowski, Debbie Glass, Evelyn Drennan, Marie" The complaint further alleges that Respondent was a successor to Walton Homes and violated Section 8(a)(1) and (5) of the Act by failing and refusing to recognize and bargain with Local 50. Basically, the matters and issues in this case arose in late April when Respondent purchased the Lemay and Walton intermediate care facilities from John Daake- president of Walton Homes, Inc. A. Procedural Matters Counsel for the General Counsel issued a subpoena duces tecum on Respondent Vice President Mathias Dasal, and Respondent filed a petition to revoke that subpoena, and which petition was referred to me for ruling. However, during the course of the hearing, the parties were able to reach agreement regarding the pro- duction of all items of the subpoena with the exception of items 4, 6, 9, and 10. Item 4 is for all job applications received by Respondent during the period April 1 through May 31; item 6 is for job descriptions and duties for all employees employed by Respondent at its Walton and Lemay Caring Centers; item 9 is copies of all per- sonnel policies and work rules currently in effect at Re- spondent's Walton and Lemay facilities; and item 10 is personnel files and employment records for all employ- ees employed by Respondent at its Walton and Lemay facilities including, but not limited to, wage rates and benefits. After considerable discussions on relevancy and other factors, I then directed counsel for Respondent to produce items 4, 6, 9, and 10, which Respondent refused to do, and based on Respondent's refusal to furnish the information, counsel for the General Counsel then re- quested the admission of secondary evidence on the issues raised by the subpoena, the exclusion of certain testimony relating to the items in the subpoena and pre- cluding cross-examination of the General Counsel's wit- nesses concerning such matters, and the drawing of an unfavorable inference on the issues in dispute against Re- spondent.4 8 The record shows and/or it was stipulated between the parties that the individuals specifically named above were former employees of Daake at either the Walton or Lemay Centers, and in late April filed ap- plications for employment with Respondent and that Respondent did not offer employment to any of them 4 Items 4, 6, 9, and 10 of the subpoena duces tecum go mainly to alle- gations in pars 2F, 2G, 6, and 7 of the complaint regarding Respondent's successorship status and which employees of Daake (Walton Homes) Continued LEMAY CARING CENTER Counsel for the General Counsel requests that the fol- lowing adverse inferences be drawn against Respondent as it relates to Respondent's failure to comply with pro- duction of items 4, 6, 9, and 10 of the subpoena: 1. That there were no interfacility transfers between Walton and Lemay after April 30. 2. That after April 30 all employees at the Lemay fa- cility enjoyed the same wages, hours, and terms and con- ditions of employment. 3. That after April 30 all employees at the Walton fa- cility enjoyed the same wages, hours, and terms and con- ditions of employment. 4. That since April 30, Respondent's employees at Walton and Lemay facilities had the same hours, terms, and conditions of employment as enjoyed by Daake's employees performing the same job duties as employees of the predecessor. 5. That the personnel files and employment records of employees hired by Respondent would reflect that em- ployees hired are less qualified than Daake's employees not hired, and that employees hired did not meet the standards allegedly set by Respondent for the hiring of employees. 6. That the personnel files and employment records would demonstrate that Sczpanski participated in the hiring decisions. 7. That all Daake's employees, unless otherwise agreed to by counsel for the General Counsel, filed job applica- tions with Respondent. 8. That employees were hired for the Walton facilities before Daake's employees at Walton were interviewed and/or completed employment applications. Counsel for the General Counsel would further move to strike the testimony of Terry Ervin on cross-examina- tion regarding any changes in wages, benefits, vacation, etc., after April 30 and Ervin's cross-examination regard- ing the personnel and/or employee manual for the Dasal Corporation. Moreover, counsel for the General Counsel would further move to strike the testimony of Mathias Dasal on behalf of Respondent where such testimony is in conflict with the General Counsel's witnesses; and re- quests that an adverse inference be drawn regarding op- erations of the facilities after April 30 along with Sczpanski's role in the hiring process, changes in person- nel policy, wages, and benefits; the hiring of outside em- ployees before even interviewing and/or taking applica- tions from Daake's employees at the Walton facility; the (inferior) qualification of outside employees hired to per- form work previously performed by Daake's employees not hired; and job duties performed by employees after April 30. Counsel for Dasal argues that the General Counsel's motion to strike evidence adduced by Respondent must be denied; that the Board has no statutory authority to made applications, Respondent's failure and refusal to hire Daake's em• ployees to avoid unionization, the agency and/or supervisory status of Charlotte Sczpanski during the period April 26 through 30, and the ap- propriateness of the bargaining unit, as well as rebutting Respondent's testimony regarding the procedures used to consider Daake 's employees for hire. Secondary evidence through witnesses was presented concern- ing some of the allegations affected by items 4, 6, 9, and 10 of the sub- poena 63 impose sanctions on a party for noncompliance with a subpoena, but, to the contrary, the sole authority to order this sanction rests exclusively in the Federal dis- trict courts-citing for authority 29 U.S.C. § 161 (2); NLRB v. International Medication Systems, 640 F.2d 1110 (9th Cir. 1981). Moreover, argues Respondent, no adverse inference may be drawn from Dasal's refusal to produce subpoe- naed documents; that adverse inferences are based on logic and experience, and because an inference is not evi- dence, the General Counsel cannot use such inferences to supply missing elements of the prima facie case. Fur- ther, maintains Respondent, the Administrative Proce- dure Act and National Labor Relations Act require that Board decisions be supported by substantial evidence- agency proceedings may not be trials by inferences; that in the instant case Respondent refused to produce the documents because the subpoena was nothing more than a fishing expedition by the General Counsel in an at- tempt to conduct a belated investigation and to establish the General Counsel's prima facie case, and that Re- spondent is justified in resisting these efforts until a Fed- eral district court has determined that the Board was en- titled to them. Moreover, it is contended by Respondent that the General Counsel elicited secondary evidence on the very issues it is demanding that Dasal be precluded from presenting evidence , and to permit the General Counsel to adduce such evidence and deny the same right to Respondent is a fundamental violation of due process; that the General Counsel should not be allowed to benefit from its refusal to seek enforcement of the sub- poena nor should Dasal be penalized for asserting its constitutional and statutory rights, and therefore no ad- verse inferences should be drawn from Respondent's re- fusal to produce subpoenaed documents without a court order. s I am in agreement that Board authority for the re- quested action by counsel for the General Counsel is clear and well established. Regarding admission of sec- ondary evidence on the issues here involved, see Bannon Mills, 146 NLRB 611, 633-634 (1964); American Art In- dustries, 166 NLRB 943, 951-953 (1967). With respect to exclusion of evidence or testimony offered by Respond- ent on the issues, see Bannon Mills and America Art, supra; Auto Workers v. NLRB, 459 F.2d 1329, 1388 (D.C. Cir. 1972), sometimes cited below as "Gyrodyne Co." Re- garding precluding cross-examination of the General Counsel's witnesses concerning the matter, see Midland National Life Insurance Co., 244 NLRB 3 (1979); and drawing unfavorable inferences on the issue against Re- spondent, Gyrodyne Co., supra, and also see Federal Rules of Civil Procedure 37(b).e 5 In its defense Respondent did not call any witnesses to testify, but relied on several motions made during the trial and at the end of the General Counsel's case The General Counsel called Vice President Ma- thias Dasal as her witness under Sec. 611(c) of the Federal Rules and, on the completion of her questions on direct examination, counsel for Re- spondent then made his inquiries. The adverse inference rule is based on the belief that a party will introduce all relevant evidence which is favorable to him, and even on his own initiation Gyrodyne Co., supra 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent further contends that the General Coun- sel's failure to seek Federal court enforcement of the sub- poena duces tecum demanding Respondent to produce certain documentary evidence is an invasion of its statu- tory rights and violates due process. I also find this argu- ment to be without merit. The General Counsel may not be forced to seek court enforcement of a validly issued subpoena at the whim of the party that refuses to comply with it. Hedison Mfg. Co. v. NLRB, 643 F.2d 32, 34 (1st Cir. 1981); Auto Workers v. NLRB, supra.? B. Statement of the Case Respondent contends that it did not unlawfully refuse to hire a majority of Daake's employees when it took over the Lemay and Walton Caring Centers; that Char- lotte Sczpanski, the individual involved in the 8(a)(1) statements, was not an agent and/or supervisor of Re- spondent at the times the statements were made; and, fi- nally, that it is not a successor employer within the meaning of NLRB v. Burns Security Services, 406 U.S. 272 (1972). Counsel for the General Counsel argues that the facts presented in this case establish that Charlotte Sczpanski, at all times material herein, was a supervisor and/or an agent of Respondent, and who made undenied statements in violation of Section 8(a)(1) of the Act; that Respond- ent's failure to hire a majority of the predecessor's em- ployees (Daake) at the two facilities involved in these proceedings was motivated by antiunion animus and to avoid unionization and having to bargain with the Charging Party; and that Respondent is a successor em- ployer under Burns and its progeny of cases, violating Section 8(a)(5) by its admitted failure and refusal to rec- ognize and bargain with the Charging Party as the exclu- sive collective-bargaining representative in two "all em- ployee" bargaining units. It should also be initially noted that several aspects of this case are not in actual controversy-Respondent admits it is an employer within the meaning of Section 2(2), (6), and (7) of the Act; that after May 1, Sczpanski was a supervisor within the meaning of Section 2(11) of the Act; that it did not offer employment, nor has it of- fered employment, to Daake's former employees named in paragraph 6A of the complaint, as amended; and that the Union, on April 26, requested recognition and bar- gaining and which request was denied by Respondent. On April 20 Mathias and Nelda Dasal, owners of Dasal Caring Centers, Inc., signed an agreement with John W. Daake, president of Walton Homes, Inc., re- ferred to sometimes as Daake, to purchase certain assets of the Walton Homes, Inc. These assets included the real property, buildings, fixtures, equipment, and certain spec- ified personalty of three intermediate care facilities in St. Louis-the Walton Home located at 4527 Forest Park, Rockhill Rest Home located at 9803 Manchester Road r Several of the items which may fall within the adverse inferences re- quested and the precluding of cross-examination were matters solicited through witnesses for the General Counsel (largely undisputed events) and in such instances no adverse inferences are necessary nor are any drawn Generally, whether to draw an adverse inference from failure of a party to produce relevant evidence within his control, is a matter of dis- cretion for the factfinder. Auto Workers v. NLRB, supra. (not directly involved herein), and the Lemay Nursing Home located at 1204 Telegraph Road. Dasal did not, however, acquire the accounts receivable of Walton Homes. The sales agreement provided, inter alia, that Respondent was to commence operations effective 11:30 p.m., April 30, and Daake furnished to Dasal, prior to the sale, copies of the collective-bargaining agreements effective at the Lemay and Walton facilities. The sales agreement also provided that the purchaser (Respondent) did not have any responsibilities relating to Daake's col- lective-bargaining relationship with the Union, and Re- spondent assumed no liability to retain any of Daake's present employees." By letter dated April 23, James Daake notified Local 50 Business Representatives Boneva Brown and Joyce Scaife that the Lemay and Walton Nursing Homes had been sold to Respondent.9 Daake and Local 50 repre- sentatives then met on April 26 and on this occasion dis- cussed the sale here in question. Also, on April 26, the Union sent a mailgram to Respondent advising it of the current bargaining agreement at each Home and with hopes that the employees of Daake would be retained (G.C. Exh. 10). On April 27, Respondent responded to the Union's communication denying it was a successor, refusing to recognize and bargain with the Charging Party as representative of its employees, and noting the possibility of legal action if there was any violence or threats by the Charging Party (R. Exh. 4). Beginning about April 24, Respondent accepted em- ployment applications from the three division of employ- ment security offices located near the Dasal Care Cen- ters, and employees of the Daake Company were inter- viewed on April 27 at the three facilities here in ques- tion-it appears that John Daake would not permit Re- spondent to interview his employees before this time as he first wanted to notify the employees of the sale. Ma- thias Dasal testified that a total of approximately 560 ap- plicants applied for jobs at the three facilities, and that there were 29 positions available at both the Walton and Lemay facilities and 24 positions at the Rockhill facility. It appears from this record that all applicants were questioned in general about the following: Transporta- tion, uniforms, salary, the number of patients they could care for, their job expectations, and philosophy of nurs- ing. None of the applicants were questioned at this time about their union membership or union activities, and that all applicants-both Daake employees and outside applicants-were considered for employment at each fa- cility. It appears that Mathias Dasal interviewed the em- ployees at the Lemay facility and made the hiring deci- 8 Walton Homes, Inc. owned three other intermediate care facilities, which were not involved in the sale Under the sale agreement, Dasal was not permitted to use the name "The Walton Home" and, after April 30, the names of the three facilities were changed to Walton Caring Center, Rockhill Caring Center, and Lemay Caring Center 8 Local 50 represented separate units of employees at Walton and Lemay Nursing Homes. Rockhill was a third facility purchased by Re- spondent from Daake, but Rockhill was nonunion under Make and therefore its hiring practices at Rockhill were not the subject of the in- stant complaint Respondent operates one other caring center, Jennings Caring Center, purchased earlier and which had at all times been non- union. See G.C Exhs. 9a, b, and c LEMAY CARING CENTER sions for this facility; that Bobby Frank Reed Jr., admin- istrator at Respondent's Jennings Caring Center, inter- viewed the employees at the Walton Center and made hiring decisions for this facility; and that Wanita Hoeck- elman interviewed the employees at the Rockhill Center and made hiring decisions for this facility; and that Judith Thorpe, director of nurses at Fairways Caring Center, advised Dasal, Reed, and Hoeckelman about the hiring of the nursing staff. Dasal testified that on April 26 he offered employment to Bobby Reed and Charlotte Sczpanski to be effective at 11 p.m. on April 30, but the other people elected for employment were not notified of these decisions until after 11 p.m. on April 30, and that after completing the hiring decisions for the three facilities on Monday, April 30, he then requested his secretary, along with Judith Thorpe, Bobby Reed, Wanita Hoeckelman, and Char- lotte Sczpanski to contact the job applicants and convey his offer of employment at a specified salary. It appears that Reed then conveyed the offer of em- ployment to employees of the Daake Company at the Walton facility; that Sczpanski conveyed offers of em- ployment to employees of the Daake Company at the Lemay facility; that Wanita Hoeckelman conveyed offers of employment to the Daake Company employees at the Rockhill facility; and that his secretary and Judith Thorpe conveyed offers of employment to the "outside" job applicants, and Dasal stated that none of these indi- viduals, including Sczpanski, had any authority to change the terms of the job offer. It further appears that at the Walton Center Respond- ent offered employment to four Daake Company em- ployees-Jeanne Marshall (CMT), Margaret Irwin (CMT), Freddie Garvin (LPN), and Lucy Gordon (for- merly the Walton administrator but hired as a liaison be- tween Respondent and the Department of Mental Health)-and that at the Lemay Center Respondent of- fered employment to nine Daake Company employees- Terry Ervin (CMT), Ron Lindsey (CNA), Pam Winkle (CNA), Estelle Meyers (CNA), Judith Poe (CMT), Shir- ley Menendez (to become food service supervisor), Mary Huebner (activity director/social service designee), Dana Williams (LPN), and Charlotte Sczpanski (formerly as- sistant administrator but hired by Dasal as the facility ad- ministrator). At the (nonunion) Rockhill Center seven or eight of the Daake Company employees were offered employment by Respondent. All employees, including administrators, assumed their jobs with Respondent at 11 p.m. on April 30-that Bobby Reed, formerly administra- tor at Jennings Caring Center, a facility of Respondent, became administrator at the Walton Caring Center; Sczpanski became administrator of the Lemay Caring Center; and Wanita Hoeckelman, a charge nurse at Fair- ways Caring Center, became administrator at Rockhill Caring Center." o 10 Respondent, as aforestated, owns and operates Jennings Caring Center in addition to Walton , Lemay, and Rockhill and Dasal provides data processing and other personnel functions and consulting services (registered nurse , pharmaceutical, dietary, rehabilitation, and environmen- tal salutation consultation) to the four facilities and also provides the four facilities with a liaison to the Department of Mental Health 65 There is testimony by Dasal to the effect that follow- ing the takeover on April 30, he instituted substantial changes at Walton, Lemay, and Rockhill to conform the operations of these caring centers to Respondent 's orga- nizational structure, and that the changes made after April 30 include improvements to the physical structure, remodeling the interior to some extent, purchasing equip- ment and furniture, establishing patient care procedures, creating job positions, adding job functions, and chang- ing employee wages and benefits-specifically, Respond- ent built kitchen facilities, business offices, and nurses sta- tions at each of the three caring centers, laid new floor- ing, erected some new walls, consolidated dining facili- ties, equipped the kitchens with automatic gas shutoffs and fire suppression systems, furnished dining room fa- cilities, remodeled laundry facilities, and instituted a medication distribution system and patient feeding system different from that of the Daake Company. The positions of food service supervisor, food service worker, and cook were added at Walton, Lemay, and Rockhill. Dasal also testified that after April 30 the administra- tors of the Centers were given responsibility for negotiat- ing contracts, preparing budgets, making purchases, and handling personnel matters and any problems which arose at their facility, and that the director of nurses became responsible for dispensing medication and the charge CMT was given additional supervisory and ad- ministrative authority. He further stated that the identity and type of patient cared for at the three facilities changed after April 30; that some of the patients cared for by the Daake Company left, and unlike Walton Homes, Inc. Respondent accepted private patients as well as mental health patients.I I C. The Status of Sczpanski One of the crucial issues for determination in this case is whether Charlotte Sczpanski was a supervisor and/or agent of Respondent on April 30. Prior to the sale of the two nursing centers here in question, Sczpanski was the assistant administrator at the Lemay facility, but about April 26 after interviewing Sczpanski, Dasal hired her as his acting administrator (Sczpanski was hired as an acting administrator rather than as an administrator because she had not passed the test to be licensed as an administrator). After Sczpanski had been advised that she would be hired by Respond- I I The Walton facility is a 3-story building with no elevators and a 40- bed capacity Prior to the sale in April , the Walton facility had between 19 and 25 employees, of which 16 to 19 were in the bargaining unit, which included certified medical technicians (CMTs), certified nurses aides (CNAs), and housekeepers. Lucy Gardener was the administrator and Freddie Garvin was the assistant administrator at the Walton facility. The Walton facility operated on three 8-hour shifts with a CMT on each shift. In 1982, Daake eliminated its in-house kitchen at the Walton facili- ty, and provided meals to patients through a "meals on wheels " program The Lemay facility is also an intermediate care facility with a 38-bed ca- pacity. The building is two stones, and at the time of sale, there were about 30 or more patients In April, there were approximately 24 employ- ees at this facility working three 8-hour shifts Prior to the sale, Barbara Rickert was the administrator , Sczpanski was the assistant administrator, and Dana Williams was the director of nursing Sczpanski , as assistant ad- ministrator, had the authority and power to discipline and hire and fire employees at Lemay. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent, she then commenced distributing to (Daake) employ- ees at the Lemay facility job applications, which applica- tions were to be completed and returned to Dasal, and which she told the employees to do. On April 26 Re- spondent also sent letters to the families of patients at the Lemay facility advising those interested individuals that Sczpanski would be the administrator. 12 This record also shows that Sczpanski then had group meetings with employees , pursuant to Dasal's direction, telling the employees that some of them had been hired and others had not, that there would be changes in wages and other conditions of employment, and answer- ing employees' questions regarding operations under Re- spondent. Sczpanski proceeded to have individual meet- ings with employees Poe and Furgerson and a telephone conversation with Rozgowski. Counsel for Dasal contends that prior to 11 p.m. on April 30, Sczpanski performed no functions for Respond- ent-that she did not become an employee or supervisor for Dasal until 11 p.m. on April 30. The General Counsel argues that notwithstanding the fact that Sczpanski may have been in the employ of Daake until the time in question , she also had, during this period, responsibilities and duties on behalf of Re- spondent. The reply in part to this argument by counsel for Dasal is as follows: MR. TocKMAN: Now on the question of her status as an agent, the Board has in a number of cases and so have you, Your Honor, in a case dealt with the question of the status of a person who's a hold over from the prior owner to the successor. And I think as carefully looked at the pre-acquisi- tion of persons who are held over to see whether they are an agent and, if so, what their authorities are and whether or not they have exceeded them. So the fact that a person may stay over from the prior owner and go to work for the new owner does not give that person the full gamut of the posi- tions they get when they actually take them. In the pre-acquisition period, the law of agency as applied by the Board has been to see whether or not a person who did some acts was authorized to do the acts that are complained of. Counsel for Respondent further argues that the factor of apparent authority is missing since the employees could not have reasonably believed that Sczpanski was speaking on behalf of Dasal-that at the time the 8(a)(1) statements were allegedly made, employees did not know that Dasal had hired Sczpanski to be the administrator and, furthermore, Sczpanski was a supervisor (and agent) of Walton Homes or Daake at the time she allegedly made the statements in question . Moreover, if Sczpanski told employees that after she became administrator she would hire them on the condition that they obtained a union withdrawal card, she was then obviously referring to conditions of employment she alone was imposing and reflecting her views and those of her present employer, Walton Homes, and that the more likely reason for the 11 G.C Exh. 13 alleged statements is evidenced by Sczpanski's explana- tion to a Daake employee that Daake sold the facilities because of "the union." Thus, according to Respondent's counsel, employees would reasonably have believed that Sczpanski was expressing her own opinions and those of her present employer-Walton Homes-and not the views of Dasal. It is also contended that even if it is con- cluded that Sczpanski acted as an agent for Dasal, the issue becomes the type of agency created, and the facts show that Sczpanski was merely a special agent, and the distinction between a general agent and a special agent such as Sczpanski is that a special agent cannot bind its principal for unauthorized acts. As indicated previously herein, Sczpanski was hired by Respondent on April 26 to continue working in an analogous position to the one that she held before at the Lemay Center. Respondent then notified the families of residents on April 26 that Sczpanski would be serving as administrator, and some of the Daake employees were also aware that Sczpanski would be working for Re- spondent.' 3 She assisted Respondent in the distribution of employment applications to Daake's employees at Lemay, and Dasal even admits authorizing Sczpanski to contact the Daake employees on his behalf regarding which ones had been hired and under what terms and conditions they were hired. Moreover, on April 30, Sczpanski conducted meetings with employees of Daake in groups, as well as individually, indicating Respond- ent's plans for the future regarding wages, hours, and terms and conditions of employment. The standard for establishing agency for the purpose of Section 2(13) of the Act is whether the individual had been placed in such a position by management that em- ployees could reasonably believe that the individual spoke for management, 14 and, of course, it is irrelevant whether Respondent's management directed the supervi- sors and/or agents to make statements violative of Sec- tion 8(a)(1) because such unlawful conduct would be at- tributable to Respondent in any event without regard to whether it was pursuant to a specific direction. More- over, it is also well established that in finding agency it is not necessary to find direct evidence that the activities were actually authorized or subsequently ratified. An agency status may be inferred from the circumstances. Nor is it dispositive of the agency issue that Sczpanski had been officially placed on the payroll of Respondent as of April 30, because nonemployees can be agents within the meaning of Section 2(13). Cagle's Inc., 234 NLRB 1148 (1978). As pointed out, when an employer, like Respondent here, chooses a worker or supervisor as its agent to com- municate its antiunion position to the employees and places such person in a position identifying him with management so that the employees would reasonably un- derstand that he or she speaks for management, Re- 18 Jacquelyn Furgerson credibly testified that several days prior to April 30, she had seen a letter from Dasal to a relative of a resident of Lemay stating that Respondent was taking over the facility and that Sczpanski would be the new administrator. See G.C. Exh. 13. 1' See Limestone Apparel Corp., 255 NLRB 722, 733 (1981), enfd. 705 F.2d 799 (6th Cir 1982) LEMAY CARING CENTER spondent cannot then escape responsibility for his con- duct in carrying out its antiunion campaign. In the final analysis, Dasal admitted authorizing Sczpanski to contact employees regarding the hiring de- cisions at Lemay, and as noted, Sczpanski had meetings with employees indicating Respondent's plans for the future, and under these circumstances the employees had reasonably cause to believe that Sczpanski was speaking for Respondent. Clearly, Sczpanski on April 30 during her conversations with Poe, Furgerson, and Rozgowski and other employees was acting as an agent within the meaning of Section 2(13) of the Act. Finally, a fording that Sczpanski was an agent of Respondent becomes im- perative in view of Respondent's failure to repudiate Sczpanski's activities and actions, or to inform the em- ployees that Sczpanski at that time was not acting on Re- spondent's behalf. 15 D. The 8(a)(1) Allegations Jacquelyn Furgerson was a certified medication tech- nician working at the Lemay facility for Daake on the 3 to 11 p.m. shift. Furgerson was also a member of the Union and at one time shop steward and also on the bar- gaining committee. She had filled out an employment ap- plication for Respondent and was interviewed by Dasal on April 27. It appears that in the late afternoon of April 30- around 4:15 p.m.-Furgerson had an individual conversa- tion with Sczpanski in the kitchen of the Lemay facility. Furgerson testified that on this occasion she first noticed and observed that Sczpanski was crying, but she told Sczpanski that if she was crying for Furgerson because she was going to tell her she did not have a job, not to waste the tears on her. Furgerson stated that Sczpanski then went on to tell her that she was not one of the em- ployees who was retained by Dasal. Furgerson then asked, "Was it something I did, was it something about my job, one of my duties I didn't do?" Sczpanski then said, "No, Mr. Dasal told her that he had a gut feeling about you." Sczpanski said, "I told him that you were very qualified, that you were a good CMT, that you were a very responsible person, but he still did not want to keep you. I will tell you though, that if I'm still ad- ministrator here next week, if you'll bring an application in and you get a Union withdrawal card, that I'll prom- ise you your job back." During Furgerson's conversation with Sczpanski, it was obvious that Sczpanski was speak- ing on behalf of Dasal, not on behalf of Daake. Furger- son then informed Sczpanski that she would not "belit- tle" herself by filing another application-one should have been sufficient. Judith Poe worked at the Lemay facility for Daake as a CMT and was on the 7 to 3 p.m. shift. She was also a member of the Union, and was interviewed for employ- ment by Dasal on April 27 after filing her application. Poe testified that during the afternoon of April 30- around 2:30-she had a conversation with Sczpanski, and in which Sczpanski stated that Dasal wanted to hire her, but she would have to take a cut in pay to $3.35 per hour even though she would probably get a wage raise 15 See Wolverine World Wtde, Inc., 243 NLRB 425, 432 (1979). 67 in about 2 months. Sczpanski also told Poe that she would not be working the 7 to 3 shift because ti e direc- tor of nursing would be working this shift , but Poe would work either the 3 to 11 or the 11 to 7 shift. Sczpanski then went on to say, "I have to tell you this, but I'm going to swear before God, the-President, and the-Pope, that I didn't tell you this, but you have. If you're going to take this job, you have to get a with- drawal card from the Union." Sczpanski also told Poe that she had told Dasal about her, that Poe was a good worker and had been at the facility a long time, and that Poe could "practically run the home" by herself. Poe also testified that Sczpanski further told her that she did not think the Nursing Centers here in question would have ever been sold by Daake had it not been for the Union, and that when she inquired about why she had been given a job offer by Dasal, Sczpanski replied, "gut feeling." Poe stated that she did not accept the job offer by Respondent because of the reduction in wages. Deborah Rozgowski worked for Daake at the Lemay facility for several years, and in April was a CMT on the 11 p.m. to 7 a.m. shift. She was also a member of the Union, on the negotiating committee, and shop steward. Rozgowski received her application for employment with Dasal from Sczpanski and was interviewed by Dasal on April 27. Rozgowski testified that she had a telephone conversa- tion with Sczpanski at approximately 7 p.m. on April 30, and stated that Sczpanski told her that the wages at the Center would be changed-that CMT's would drop down to $3.65 an hour and CNA's would drop down to $3.45 rather than making $4.12 an hour plus 7 cents dif- ferentiation. Sczpanski then proceeded by telling Roz- gowski, "But at this time, I have to tell you you was not one that was chosen to be kept, but if you come back next week and have your withdrawal card from the Union, I'll guarantee you a job if I have a position." Rozgowski then asked Sczpanski how Dasal could not use her today but could use her next week, and Sczpanski repeated again, "All I can say is if you come back next week, if you have your withdrawal card, I'll guarantee you a job if I have a position." Rozgowski then informed Sczpanski that she would not obtain a withdrawal card and has not worked since April 30. Terry Ervin, a union member for a month or so, was one of the employees of Daake at the Lemay facility who was retained by Respondent, and after April 30 continued to perform the same duties of a CMT that he performed prior to April 30 on the 11 p.m. to 7 a.m. shift. During the course of his work, Ervin was also able to observe the performance of other employees at the Lemay facility and in so doing observe that CNA's and other employees were performing the same duties that they had performed prior to the sale of the facility. Ervin testified that on May 3, after completing his shift, he had a conversation with Sczpanski near the ad- ministrator's office. Sczpanski said, "You know we're no longer union. . . . You know you're going to have to cooperate with us. You're going to have to cooperate so we can have some cooperation. . . . You know the Union is a thing of the past." Ervin responded, "It is?" 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Then Sczpanski said, "If we don't have cooperation, you also will be a thing of the past." Sczpanski continued the conversation by stating she understood that the Union was going to picket on Mother's Day then questioned Ervin whether he was going to cross the picket line and report to work. Ervin replied that he would do what he had to do depending on the situation and circumstances, and that he was still in the Union and had not obtained a withdrawal card. Respondent argues that the statements and testimony of Furgerson, Rozgowski, Poe, and Ervin attributed to Sczpanski should be stricken because they were gratu- itously made and not linked to the hiring process and Sczpanski was not an agent of Respondent. At this time it should be noted that Sczpanski did not testify at the hearing, and as a result all the testimony regarding Sczpanski's conversations with the employees in question is uncontroverted.16 Moreover, Respondent, in its motion to strike, present- ed no evidence nor any testimony from witnesses on these matters which would require me to discredit the testimony as related above. The testimony of the wit- nesses for the General Counsel clearly indicates that the statements by Sczpanski were linked to the overall hiring decision of Dasal, that the statements also indicated to employees the criteria used by Respondent in making its hiring decisions, i.e., Dasal's "gut feeling" about employ- ees in relation to their union activities. In the final analy- sis, Sczpanski was telling employees that she participated in the hiring decision, that she put in a "good word" for various employees, and that she would have the power in the next few days to hire employees if they would come back with withdrawal cards. I am in agreement that the only logical inference to be drawn from these facts is that when Sczpanski received acknowledgment that these employees and other employees of Daake were no longer members of the Union or supporters of the Union, she could then recommend to Dasal or, on her own, effectuate their hire. Furthermore, these uncon- troverted statements credibly attributed to Sczpanski clearly indicate antiunion bias and/or hostility by Re- spondent in selecting employees for hire. For these rea- sons, Respondent's motion to strike is denied. As pointed out, it is undisputed that after May 1, Sczpanski was a supervisor within the meaning of Sec- tion 8(a)(1) of the Act and that on May 2 or 3 she had a conversation with employee Terry Ervin wherein she told Ervin that "The Union was a thing of the past"; "Don't talk about the Union"; "If you talk about the Union, you will be a thing of the past"; and then ques- tioned Ervin several times regarding whether he would cross the Charging Party's picket line. Sczpanski's conversations with Ervin violated Section 8(a)(1) of the Act by interfering with employees' rights to discuss unions and/or engage in concerted protected activity, as well as interrogating an employee regarding an employee's union activity. Moreover, it is axiomatic that threatening an employee, either explicitly or implic- itly, with discharge or other job action if that employee 1e I have earlier detailed herein the status of Sczpanski and in late April have found her to be an agent of Dasal , as aforestated engages in union and/or concerted activity , violative of Section 8(a)(1) of the Act, and conjoining all the above with the specific threat that his employment could be "a thing of the past" if he continued his union support, would reasonably have led Ervin to the belief that his best interests demanded strict neutrality about unionism. See Rossmore House, 269 NLRB 1176 (1984). This record also establishes, as aforestated, that on April 30 Sczpanski told Furgerson and Rozgowski that although they were not hired by Respondent, "if they got a withdrawal card from the Union," Sczpanski would guarantee them a job if a position was available. Sczpanski also emphasized the importance of nonunion membership and/or nonunion sympathies and support as a condition of employment by telling Judith Poe that al- though she had been hired, Poe would have "to get a withdrawal card from the Union" as a condition of con- tinued employment. Each of these statements violated Section 8(a)(1) by conditioning continued employment on the withdrawal from the Union, or abstaining from membership in and/or activities on behalf of a union, and I so find. E. Whether Respondent Unlawfully Refused to Hire Predecessor Employees in Violation of Section 8(a)(3) of the Act The issue presented here is whether Respondent re- fused to hire a majority of Daake's employees to avoid union obligations and duties. The General Counsel duly acknowledges that there were some employees of Daake belonging to the Union who were hired by Respondent as noted previously herein, but points out that if an employer is making hiring decisions motivated by antiunion considerations not to hire a majority of the precedessor's employees in its effort to avoid the bargaining obligations, then it is a violation of the Act. Counsel for Respondent argues that there is no evi- dence to support the General Counsel's assertion that Respondent refused to hire Daake employees to avoid in- curring a bargaining obligation, and points to the testi- mony of Mathias Dasal who stated that the fact Walton and Lemay were unionized had no affect on his decision. Furthermore, maintains Respondent, the General Coun- sel did not establish a prima facie case that the selection of employees was motivated by union animus. Counsel for Respondent further points out that even though Dasal knew that Local 50 represented employees at the Walton and Lemay facilities, there is no evidence that Respondent was aware of any applicant's union membership or activity, and the uncontroverted facts show that none of the applicants were questioned about their union membership or activities during the inter- viewing process. Rather, applicants were asked about their salary requirements, means of transportation, uni- forms, and their reasons for working in a nursing home, and more significantly Terry Ervin, the only applicant who mentioned that he was a union member during the interview, was hired by Dasal. Thus, the General Coun- sel failed to prove knowledge of union membership or LEMAY CARING CENTER activity, one of the essential elements of a prima facie case. Counsel for Respondent also maintains that the inter- viewing procedure used at Walton and Lemay was iden- tical to that used at Rockhill and Jennings, the nonunion care facilities, and the criteria used to select all appli- cants for hire were identical at all facilities-possession of the requisite skills, licenses, and a philosophy of caring compatible with that of Respondent, and points to the testimony of Mathias Dasal to the effect that it is his phi- losophy that patients should be treated with respect to preserve their sense of self-respect and dignity and that this philosophy is reflected in every aspect of caring- from handling a patient's belongings to the treatment and therapy of the patient himself. As a result, Dasal re- quired that the successful applicant possess more than just technical skills. Moreover, that Dasal's decisions about hiring Daake employees were also influenced by the conditions he had seen when he walked through the facilities during the sale negotiations-and in so doing Dasal observed that the sanitary conditions at Walton, Lemay, and Rockhill did not meet his standards, ob- served some of the employees "sitting around," and sev- eral of the patients being neglected. Furthermore, when Dasal interviewed employees at the Lemay facility, he also considered the sincerity of their responses and as it related to his philosophy and the applicant's union mem- bership or activity was not a factor. In addition, maintains Respondent, there is nothing to suggest that antiunion considerations were used to screen out union members or activists, but on the contrary, this record shows that Dasal offered employment to two em- ployees (Judith Poe and Shirley Menendez) who were characterized as "100 percent union" by Local 50 Busi- ness Representative Boneva Brown, and this record also shows that Dasal hired two Local 50 shop stewards (Mary Huebner and Margaret Irvin).17 Counsel for Respondent also argues that the undis- puted evidence in this record shows that Sczpanski did not interview any of the applicants and had no input in deciding who would be hired, and the record demon- strates that Dasal never discussed unions or withdrawal cards with Sczpanski. Moreover, that the General Coun- sel has failed to explain-the probative value of any statements made by Sczpanski about the motivation for 17 There is testimony in this record that Mary Huebner had obtained a withdrawal card from the Union in late April because she was promoted to a supervisory position for Daake as an activity director in social serv- ice, and that this job is a nonunion position per the contract (see R. Exh 2) Huebner was later hired by Respondent in a supervisory capacity as activity director at the Lemay Center, as aforestated Shirley Menendez did not testify, but according to Union Representative Boneva Brown, Menendez contacted her prior to April 30 and stated that she had to get a withdrawal card from the Union or she would be without a job (Men- endez was offered and accepted a job with Respondent ), and Brown tes- tified that after this request was repeated several times a withdrawal card was then issued to Menendez (see U Exh. 1) Counsel for Respondent moved to strike the testimony of Brown and U Exh I as being hearsay, arguing that Menendez would be the only proper witness to present such evidence as the testimony of Brown was being offered to show "the fact of the matter," and that the photocopies of U. Exh. 1 contain a different signature and numbers as compared to the original, and counsel surmised them to be forged. At the hearing I took Respondent's motion to strike under advisement, and after careful consideration of all aspects in relation thereto, I now grant Respondent's motion to strike 69 hiring decisions at the Walton facility because Sczpanski never had any relationship, authority, or responsibility at Walton, and the fact that similar statements were not made to Daake employees or other applicants at Walton and Rockhill strongly suggests that there is no relation- ship between Sczpanski's alleged statements and the hiring decisions. In sum, maintains Respondent, the Gen- eral Counsel has failed to prove any link between Sczpanski's alleged statements and the hiring decisions. Accordingly, these statements cannot be used to show the motive of those who actually made the hiring deci- sions on behalf of Dasal. The Board and courts have held that a successor em- ployer is not obligated to hire any or all of the predeces- sor's employees, and to establish a violation of the Act under such circumstances, discriminatory motivation for failure to hire must be proven. Blu-Fountain Manor, 270 NLRB 199 (1984).18 As also noted, a related principle is that if the General Counsel establishes discriminatory motivation and a prima facie case, Respondent then has an affirmative duty to rebut that prima facie case and establish that not- withstanding Respondent's antiunion motivation, the predecessor's employees would not have been hired. t 9 Moreover, when all or most of the predecessor's em- ployees are union members, as in this case, it is not nec- essary to demonstrate that Respondent had knowledge of each employee discriminatee's particular union activities before Respondent took adverse action against him/her, especially when Respondent's actions were part of a pat- tern of reducing support for the Union. Houston Distribu- tion Service, 227 NLRB 960 (1977). In the final analysis, to determine whether Respond- ent's conduct in refusing to hire the predecessor's em- ployees violated Section 8(a)(3), it must be established that there is substantial evidence of union animus; lack of a convincing rationale for refusal to hire the predeces- sor's employees; inconsistent hiring practices or overt acts or conduct evidencing a discriminatory motive; as well as a reasonable inference from the evidence that Re- spondent conducted its staffing in a manner precluding the predecessor's employees from being hired as a major- ity of Respondent's overall work force to avoid the Board's successorship doctrine. Houston Distribution Serv- ice, supra. As aforestated, Sczpanski's statements to several appli- cants clearly indicate antiunion animus toward the prede- cessor employees' membership in the Union and Re- spondent's goals, and efforts in getting the Daake em- to In Howard Johnson Co. v Hotel & Restaurant Employees, 417 U.S 249 (1974), the U S. Supreme Court in discussing a successor employer's freedom of action in the hiring of employees, held that a successor em- ployer was not obligated to hire any of the predecessor's employees, but specifically cautioned that the successor "could not refuse to hire solely because they were Union members or to avoid having to recognize the Union." The Board has consistently interpreted both Howard Johnson and Burns to this effect. See Kimbell Foods, 201 NLRB 933 (1973), enfd. 496 F.2d 117 (5th Cir. 1974); Macomb Block & Supply, 223 NLRB 1285 (1976), Mason City Dressed Beef, 231 NLRB 735 (1977), Love's Barbeque Restaurant No. 62, 245 NLRB 78 (1979). 19 See Wright Line, 251 NLRB 1083 (1980) 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees to abandon the union and/or their prounion sen- timents as a condition of employment. On April 26 Respondent was aware that the Charging Party wanted to continue representing employees at the Walton and Lemay facilities. On April 27 Respondent stated that it was not its intention to recognize and bar- gain with the Union, and during the period April 27 through 30, it is quite apparent that Respondent went through a process of evaluating which of the predeces- sor's employees it would consider retaining. As also indicated, Respondent attempts to divorce itself from any evidence of unlawful antiunion animus, as reflected by Sczpanski's statements, by arguing that the selection processes at the Walton and Lemay facilities were separate, with Dasal making decisions for Lemay, and Bobby Reed making decisions at Walton. However, I am in agreement that Dasal 's testimony vacillated on the issue of whether he participated with Reed in making a determination regarding hiring at the Walton and Lemay facilities. I am in further agreement that it is un- realistic to believe that an individual , such as Sczpanski, who was scheduled to take over as an admitted supervi- sor on May 1, would not be allowed to participate in any way in the decision regarding which individuals would be working with her, and especially individuals she had the opportunity to work with over a considerable period of time. The clear implication of Sczpanski's remarks that an- tiunion sympathies were a condition of employment early translates into the employees ' belief that Dasal ex- pected antiunion conduct or attitudes, and further carries an equally unsubtle implication that prounion employees would find their employment in jeopardy. Moreover, as further pointed out, Sczpanski' s statements to Furgerson and Rozgowski that if they withdrew from the Union and put in second applications, they would then have employment if positions were available, certainly indi- cates that the hiring process was not completed and was ongoing. While admittedly neither Reed nor Dasal asked questions about the Union during their interviews with the predecessor's employees, Sczpanski's statements, along with the knowledge by Dasal that Daake's em- ployees were represented by a union, clearly indicate that quite a number of employees of the predecessor, who were union members, were not hired because of their union affiliation. Finally, as more detailed in the argument by the Gen- eral Counsel, the evidence of antiunion motivation is quite obvious in that Respondent has continued to refuse to hire certain employees of the predecessor , and has re- fused to furnish records pursuant to a valid subpoena.zo 20 Due to the failure of Respondent to comply with certain paragraphs of the subpoena, as aforestated, I have drawn the adverse inference that the files, applications, and/or the employment records of outside employ- ees hired by Respondent would reflect that such employees are less quali- fied than the applicant employees of Daake who were not hired, and also such people did not meet the standards supposedly set by Dasal for the hiring of employees . There is also an adverse inference that the records and files here in question would have demonstrated that Sczpanski direct- ly participated in the hiring decisions. Moreover, Sczpanski's antiunion statements attributed to her on April 30 at the Lemay facility amply indi- cate and demonstrate the overall and collective antiunion feelings of Re- spondent and which were carried over by Reed in his hiring at Walton As further pointed out, Respondent's failure to articu- late any definite standard by which employees were evaluated for selection also raises the suspicion that Re- spondent's true motivation was discriminatory . Sczpanski told at least two employees they were not hired because of Dasal's "gut feelings" about them . Dasal testified he did not hire Corlotta Malady because she was on medi- cal leave. However, Malady testified that she filed an ap- plication, attended the interview, had been working at Lemay prior to the interview, and did not indicate to Dasal that she would be taking any immediate medical leave, but would have her hernia taken care of later on- that it was not "a pressing thing." Regarding Furgerson, Dasal testified that one of the reasons she was not hired was because of discrepancies in her applications. Howev- er, at no time during the interview did Dasal confront Furgerson with those discrepancies. Dasal further testified that the basic reason certain Daake employees were not hired at the Lemay facility was because they were not "compatible to his way of carrying on his operation," and that this was his standard for hiring. Dasal, however, did not specify in any par- ticular about how each predecessor employee not hired was incompatible, and although Bobby Reed did not tes- tify, Dasa] stated that Reed was familiar with Respond- ent's "criteria" for hiring, so, therefore, it can only be in- ferred that Reed applied the same criteria to the prede- cessor's employees who had worked at the Walton facili- ty during Reed's participation in the hiring process. Finally, Respondent makes the argument that based on Dasal's visits to the facilities, he was dissatisfied with the quality of the activities and work being displayed by the predecessor's employees and the conditions of the facili- ties under those employees. However, at no time did he confront any employees regarding such matters and he retained several of the predecessor's supervisors who would have the ultimate responsibility of ensuring that employees performed their work and that the facility was cleaned. It is, of course, very difficult to evaluate thoroughly Respondent's inconsistent hiring practices be- cause of Respondent's refusal to fully comply with the subpoena. However, I am in agreement that it is reasona- ble to infer there were inconsistencies in hiring, when, for example, Respondent chose to keep, especially at the Lemay facility, individuals who had worked for the predecessor for short periods of time and would not have strong union sentiments, rather than employees with 2 or more years ' experience. The evidence in this case clearly established that Re- spondent was aware that the predecessor's employees were members of the Union as a condition of employ- ment; that the Union was going to protect its employees' interests; and that Respondent through the undenied statements attributed to Sczpanski was unlawfully moti- vated in not selecting the predecessor's employees. A prima facie case of an 8(a)(3) refusal to hire the predeces- sor's employees has been established and Respondent presented no evidence effectively rebutting the General Counsel's prima facie case. LEMAY CARING CENTER F. Whether Respondent is a Successor Employer and has Bargaining Obligations The General Counsel contends that Dasal is a succes- sor to Walton Homes and therefore, under the successor- ship doctrine, is obligated to recognize and bargain with Local 50. Counsel for Respondent points out that in NLRB v. Burns Security Services, 406 U.S. 272, 280 (1972), the Su- preme Court observed that a necessary predicate for im- posing a duty to recognize and bargain with the bargain- ing representative of the seller's employees is the contin- ued appropriateness of the unit and retention of the em- ployees of the predecessor; that subsequent Court and Board decisions have relied on this language in finding that a new employer is not a successor because the conti- nuity of the bargaining unit was not maintained, and that the General Counsel has the burden of showing that the two separate bargaining units here involved are still ap- propriate. Counsel for Respondent also maintains that an analysis of the record shows that these units are no longer appro- priate due to the changes in operational structure and procedures instituted by Respondent-that Dasal's cen- tral business office is in St. Charles, Missouri, and the four caring facilities or centers, which constitute Re- spondent, are located in St. Louis and are centrally con- trolled; that all employees have similar skills, work clas- sifications, and working conditions; that the formulated labor relations policies and methods of operations apply to all four facilities; that all wages and benefits are set by Dasal and the wages of employees at all facilities are similar; and that the staffing levels of the facilities are similar. Moreover, Respondent performs all data process- ing functions and also provides personnel functions and consulting services to each of the facilities (e.g., regis- tered nurse, dietician, pharmaceutical); that this record also shows there have been temporary and permanent transfers of employees between facilities and since April 30 there have been five or six such transfers; and that based on the above factors, it is clear that the separate bargaining units at the Walton and Lemay facilities are no longer appropriate and the only appropriate unit is one consisting of all four facilities-that Dasal has added new job classifications (e.g., food service worker, cook) and has given supervisory authority to former bargaining unit classifications (e.g., charge CMT and activity director/social service designee); and that the additional classifications and change duties militate against a finding of the continued appropriateness of the bargaining unit. It is further argued by Respondent that the General Counsel has also failed to prove that there has been con- tinuity in the employing industry, and whether such con- tinuity exists depends on the following factors-the con- tinuity of the same business operations, the continuity of the work force, similarity of supervisory personnel, simi- larity of service, use of the same facility, similarity of working conditions, and similarity of the methods of pro- duction-and that in the instant case Dasal integrated the facilities into its centralized health care facility operation; that Dasal altered the wages, benefits, and other employ- ment conditions to conform to those of the corporation; that Respondent added new job classifications, changed 71 the number of employees, and added new responsibilities to previously existing classifications; that Dasal also reor- ganized the managerial hierarchy of the facilities by ex- panding the number of midlevel management and super- visory positions; and that none of the facility administra- tors of the predecessor were retained by Respondent as facility administrators. Furthermore, maintains Respondent, substantial capital improvements were made to the physical structure of the three facilities, as aforestated. It is also maintained by Respondent that Dasal altered patient care from the es- sentially maintenance care provided by the predecessor to that of a "caring center," and that Dasal also institut- ed new procedures for feeding patients and dispensing medication. Moreover, the number and identity of pa- tients at the three facilities changed after April 30, and Respondent also accepted private patients, whereas only Department of Mental Health patients were cared for prior to May 1. Counsel for Respondent further points out that the third criterion in determining the successorship issue is the continuity of the work force-that is whether a ma- jority of the new employer's work force were employed by the former employer, and that since Burns the Board has never found successor status absent a finding of this majority. Counsel for Dasal maintains that the uncontro- verted record evidence shows that a majority of Re- spondent's work force at the Walton, Lemay, and Rock- hill facilities were not employed by Daake-at Walton, only 3 Daake employees (Margaret Irvin, Jeanne Mar- shall, and Freddie Garvin) were employed in a work force of approximately 29 employees. At Lemay, 8 em- ployees (Charlotte Sczpanski, Dana Williams, Estelle Meyers, Ron Lindsey, Pam Winkle, Terry Ervin, Shirley Menendez, and Judith Poe) were employed (or offered employment) in a work force of approximately 29 em- ployees. At Rockhill, only 8 or 9 employees were em- ployed in a work force of 24. Moreover, argues Respondent, even if a successor em- ployer, Respondent had no obligation to recognize and bargain with Local 50 concerning the employees in the Walton and Lemay bargaining units because of a good- faith doubt based on objective considerations, and that one such objective consideration supporting an employ- er's withdrawal of recognition is statements made by union representatives implying the Union's lack of major- ity support, and in the instant case Local 50 President William Stodghill acknowledged that Local 50 did not represent a majority of employees. Finally, it is the contention of Respondent that Dasal's refusal to recognize Local 50 is also justified by Local 50's conduct toward employees of Dasal-that Local 50 has never expressed any interest in or willingness to rep- resent the employees of Dasal at Walton, Lemay, and Rockhill facilities, but rather it has repeatedly demanded that Dasal "rehire" the Daake employees at the Walton and Lemay facilities. Furthermore, the natural effect of this demand would be for Dasal employees to lose their jobs, and such a demand substantially conflicts with Local 50's obligations to employees of Respondent and is inimical to any bargaining relationship between Local 50 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Dasal. In addition, the Board has refused to require an employer to recognize and bargain with a union when the union has made threats of violence as did Local 50 and, at the very least, Local 50 should be required to demonstrate that it represents a majority of Dasal em- ployees (in an appropriate unit) in a Board election con- ducted in an atmosphere free of Local 50's coercive tac- tics and threats. 2 t It is well settled that when one employer becomes the successor to another, that employer is required by Sec- tion 8(a)(5) of the Act to assume the duty to bargain with the exclusive representative of the predecessor's employees in an appropriate bargaining unit. As the Board recently said, "In determining successor- ship, the keynote is whether there is substantial continui- ty of the employing industry ." Saks Fifth Avenue, 247 NLRB 1047 (1980). Analysis of this in turn requires con- sideration both of the work done and the work force doing it, and under Burns, supra, factors to be considered include: (1) whether there is continuity in work force; (2) whether there is continuity in the employing industry; (3) whether there is a continuity in appropriateness of unit; and (4) the impact of hiatus in operation. Respond- ent, in the instant matter, appears to argue, as aforestat- ed, that it is not a successor under Burns because (a) Re- spondent did not hire, as a majority of its employees, the predecessor's employees; (b) bargaining units alleged in the complaints are inappropriate as they relate to Re- spondent;22 and (c) there have been material changes in the operations at the Walton and Lemay facilities under Respondent. Respondent admits there was no hiatus in the operations of the facilities. The complaint alleges two separate bargaining units of employees.23 81 By mailgrams dated May 1, the president of Local 50, William Stodghill, notified counsel for Respondent that Dasal had faded and re- fused to rehire the predecessor employees to avoid bargaining, and de- manded immediate recognition on the basis that the Union would have represented a majority but for Respondent's unlawful conduct Stodghill then went on to state that if the employees of the predecessor were not rehired, he would assert their rights by all lawful means including picket- ing, and which might entail a strike beginning on May 13. Under the cir- cumstances here, I do not deem such mailgrams to imply the Union's lack of majority, nor do these notifications contain any unlawful threats or the instigation of any violence. The possible measures mentioned by Stodghill are well recognized and established protected activity in situa- tions of this kind, and the Union also notified Respondent that they re- mained ready and willing to meet in an attempt to resolve these matters peacefully. See G C. Exhs. 11 and 12. '$ Respondent points out that the Board did not determine appropn- ateness of either bargaining unit-the complaint states only that Local 50 was "designated" as the bargaining representative of the Walton unit, and the Lemay unit was the result of a stipulation of the parties. Thus, there has never been any conclusive determination that these units are appro- priate. ae The unit at Respondent's Walton facility is set forth as follows: All employees of the Employer at 4527 Forest Park Blvd., St Louis Missouri, EXCLUDING office clerical and professional em- ployees, guards and supervisors as defined in the Act, as amended The unit at Respondent's Lemay facility is set forth as follows. All employees employed by the Employer at its 1204 Telegraph Road, St Lows, Missouri facility, including certified medicine tech- nicians, nursing assistants, activity employees, laundry, dietary and housekeeping employees, EXCLUDING office clerical and profes- sional employees, registered nurses, licensed practical nurses, guards and supervisors as defined in the Act At the hearing before me no credible evidence or testi- mony was solicited by Respondent establishing that any other unit or units were appropriate or that these sepa- rate units were inappropriate, and no reliable evidence was presented that there had been any substantial dimi- nution in scope of unit , or organizational changes of Re- spondent reflecting smaller units, materially different, or showing a change in the employing industry. Moreover, as indicted, the presumptions of majority status applicable to the Walton and Lemay units under the predecessor are equally applicable to Respondent, unless overcome by the requisite evidence and degrees of proof. Concerning the Lemay unit , the presumption of con- tinued majority status on April 30 was irrebuttable, be- cause the certification year did not expire until May 2. Concerning the Walton unit, Respondent again did not rebut the presumption of continued majority status by any clear, convincing, or cogent evidence .24 In fact, no evidence was presented to rebut the presumption of con- tinued majority status , and this is especially so where Re- spondent did not hire a number of Daake employees for discriminatory reasons to avoid having a majority of the predecessor's employees at the facilities , as I have found previously. 25 Under these circumstances, there has been a continuity in the appropriateness of the units, and I so find. Respondent argues that the employing entity has changed as a result of its reopening of the kitchen and dining areas, and by changing certain operational proce- dures, as detailed earlier herein. I am in agreement that notwithstanding those changes, the record is clear that Respondent has continued to operate both the Walton and Lemay facilities as intermediate care facilities, pro- viding such care to the same patients, at the same facili- ties, in basically the same manner as was performed by the predecessor's employees and with no interruption of 24 Since 1973, the Union has been the designated collective -bargaining representative of the Walton unit, and such recognition has been em- bodied in successive collective-bargaining agreements , the most recent of which is effective by its term for the period May 1, 1983, through April 30, 1985. as A normal condition precedent underlining an obligation to bargain is, of course, a finding that the union in question represented a majority of the employees within the unit Clearly the Charging Party in the in- stant case did not represent a majority of Respondent's new hires when it requested recognition-may such a majority then be presumed as a matter of law? Several cases so hold on the theory that but for the suc- cessor Employer's discriminatory refusal to offer employment to the predecessor's unit employees, the Union would have continued to enjoy majority representative status within the unit , or that a bargaining order is necessary to provide an adequate remedy for the 8(a)(3) violation Certainly it was Respondent's discriminatory refusal to employ many of the unit employees which renders it impossible at this time to deter- mine whether , but for such discrimination, the Union would have repre- sented a majority of Respondent's employees within the unit on the take- over on April 30. However, a wrongdoer should not be permitted to rely on its own wrongdoing to avoid the consequences therefor; i e., Dasal should not be permitted to avoid a bargaining order by preventing the Union from securing majority representative status among its unit em- ployees by refusing to hire applicants for employment within the unit be- cause of their membership in or representation by the Union and cover- age by the bargaining contract . Foodway of El Paso, supra. Moreover, there is a presumption of majority for life of the contract, and in the in- stant case bargaining contracts were in effect at both centers at the time of the purchase by Dasal LEMAY CARING CENTER service or operation . Under these circumstances, the mere fact that there has been a name change , some re- modeling, a few administrative changes and designation, and resumption of previous operations in the kitchen and dining areas does not destroy the continuity of employer industry that exists at the Walton and Lemay facilities. Foodway ofEl Paso, supra at 936-937. In the final analysis, Respondent did not change patients/residents when it began operation after the sale, nor did the type of operations, i.e., providing intermedi- ate care, change after the sale ; Respondent also em- ployed basically the same classifications of employees as did Daake; Respondent is operating out of the same physical facilities with much of the same equipment as Daake, and, as aforestated, there was no interruption of services to patients/residents at either the Walton or Lemay facilities as a result of the sale. For the reasons set forth above, the record establishes that Respondent is a successor to Daake with a duty and obligation to bargain with the Charging Party as the rep- resentative of employees at the Walton facility unit and the Lemay facility unit. Respondent admits that it re- fused to recognize and bargain , on request, with the Charging Party. Under these circumstances, I have found that a violation of Section 8(a)(5) of the Act has been established. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of Respondent's adoption of the discriminato- ry policy of refusing to hire a majority of Daake's em- ployees within the units, I recommend that Dasal be di- rected to offer immediate employment to each of the em- ployees named on the attached Appendix A and to posi- tions they held on April 30, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, all employees in the units hired by Dasal since it commenced operations, and make them whole for any losses they may have suffered as a result of the discrimi- nation against them by paying to each a sum of money equal to that which they would have earned in Dasal's employ from the date Dasal commenced to operate the Walton and Lemay Caring Centers less their net earn- ings, if any, during the backpay period, computed in ac- cordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), together with interest at the rate of 6 percent per annum on the resultant backpay, in accordance with the principle set forth in Isis Plumbing Co., 138 NLRB 716 (1962). In view of Dasal's refusal to bargain with the Union at its request in violation of Section 8(a)(5) and (1) of the Act, I recommend that Dasal be directed to bargain in good faith with the Union at its request concerning the wages, rates of pay, and hours and conditions of employ- ment of the employees in the units. CONCLUSIONS OF LAW 73 1. At all times material, Dasal Caring Center, Inc. and Walton Homes, Inc. were employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The units set forth herein are appropriate ones for the purposes of collective bargaining, and at all times pertinent the Union has been the duly designated collec- tive-bargaining representative of a majority of the em- ployees within those units. 4. For the purposes of the Act, Dasal is a successor employer to Walton Homes with respect to the caring centers of Lemay and Walton. 5. By telling employees they would be hired if they withdrew from the Union, by conditioning employment on withdrawal from the Union, and by interrogating em- ployees about their union activities, Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 6. By adopting the policy of refusing employment to unit employees employed by Walton Homes because of their membership in or representation by the Union and their coverage by a contract between Daake and the Union, Dasal engaged in unfair labor practices in viola- tion of Section 8(a)(3) and (1) of the Act. 7. By failing and refusing to accede to the Union's re- quests for recognition and bargaining as the exclusive bargaining representative of a majority of the employees in the units, Dasal engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 8. The above-described unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed26 ORDER The Respondent, Dasal Caring Centers, Inc., d/b/a Lemay Caring Center, and Dasal Caring Centers, Inc., d/b/a Walton Caring Center, St. Louis, Missouri, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with the Union as the exclusive representative of the employees in the previously described appropriate units with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of the unit employ- ees. (b) Refusing to employ employees of its predecessor within the units previously described because of their membership in or representation by the Union and their coverage by conracts between Daake and the Union. 26 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 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Telling employees they would be hired on their withdrawal from the Union. (d) Telling employees that their continued employment depended on their withdrawal from the Union. (e) Interrogating employees about their union activi- ties. (f) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, recognize and bargain in good faith with the Union as the exclusive representative of the em- ployees in the previously described units with respect to the rates of pay, wages, hours, and other working condi- tions of the employees therein and, if understandings are reached, embody such understandings in signed agree- ments. (b) Offer immediate employment to each of the em- ployees within the previously described units as listed in Appendix A. (c) Make whole each of the employees described above in the manner set forth in the remedy section of the decision. (d) Preserve and, on request, make available to author- ized agents of the Board for examination and copying, all payroll records, social security payments records, time- cards, personnel records and reports, and all other records necessary or useful in computing the amount of backpay due or determining compliance with any provi- sions hereof. (e) Post at its Walton and Lemay Caring facilities, copies of the attached notice marked "Appendix."27 27 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- Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately 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 Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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." APPENDIX A Adams, Brenda Sue Cockrell, Wanda Darby, Cheryl Duffen, Rozella Duroso, Deborah Furgerson, Jacquelyn Robinson, Annette Rothiff, Beulah Smith, Bobbie Jean Smith, Elizabeth Wilson, Virginia Donaldson, Alberta Martin, Carol A. Rogers, Sarah Irby, Magnolia Thompson, Edna Cluck, Paula Bishop, Edna Hall, Lucinda Hatcher, Ruth Mitchell, Diane Gries, Anita Kiser, Dorothy Lambert, Mary Ann Malady, Corlotta Martin, Elizabeth Newton, Linda L. Rozgowski, Debbie Glass, Evelyn Drennan, Marie