Americare Convalescent Center

1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shore Pointe Associates, Inc., d/b/a Americare Con- valescent Center and Michigan Health Care As- , District 1199M, National Union of Health Care Employees, AFI.-CIO. Case 7- CA-24086 15 July 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 17 April 1986 Administrative Law Judge Walter J. Alprin issued the attached decision. The General Counsel 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 conclusions3 and to adopt the recommended Order as modified. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 2. "2. By soliciting grievances, by threatening em- ployees, by making promises to employees, and by conveying to employees the futility of selecting a union as their bargaining representative, the Re- spondent has violated Section 8(a)(1) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Shore Pointe Associates, Inc., d/b/a Americare Convalescent Center, Detroit, Michi- gan, its officers, agents, successors, and assigns, ' No exceptions were filed by the Respondent. We find meet in the General Counsel's exceptions to the judge's finding that the statement of the Respondent's official, Seghk, that if the Union came in, "she would not be able to give employees recognition or bonuses for excellent work" constituted a promise of benefit rather than, as we find, a threat of reprisal . We also note his incorrect reference to discriminates Ronnie Williams as Gloria Williams , and his failure to in- clude in the notice language in the order relating to the Respondent's un- lawful solicitation of employee grievances. In addition, we note that the judge erroneously stated in the first sen- tence of the "Discussion" in sec. III,B of his decision that "Love was clearly never a supervisor within the meaning of Section 2(11) of the Act." Rather, the record shows, and the judge's next sentence reflects, that Love had previously been a supervisor of the nurses. s The General Counsel has excepted to the judge's failure to make a separate legal conclusion and provide a remedy for his finding that the Respondent engaged in conduct which conveyed to employees the futilr ty of selecting a union as their bargaining representative We find ment in this exception and shall amend the conclusions of law and modify the Order and notice accordingly. shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1(b). "(b) Soliciting grievances from or threatening or promising benefits to any employee to affect his union support or activities, or conveying to em- ployees the futility of selecting a union as their bar- gaining representative." 2. Substitute the following for paragraph 2(a). "(a) Offer Thelma Hooper, Vickie Bey, Steph- anie Thompson, Fred Evans, Margaret Killough, Patricia Garrett, Charles Smith, Carolyn Scott, April Rae Gilliard, Vilma Curry, Francine Schaffner, and Ronnie Williams immediate and full reinstatement to their former jobs or , if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against them, in the manner set forth in the remedy section of the decision." 3. 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or otherwise discrimi- nate against any of you for supporting Michigan Health Care Associates, District 1199M, National Union of Health Care Employees, AFL-CIO or any other union. WE WILL NOT solicit grievances or threaten you or promise benefits to affect your union support or activities, or convey to you the futility of selecting a union as your bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- 280 NLRB No. 130 AMERICARE CONVALESCENT CENTER cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Thelma Hooper, Vickie Bey, Stephanie Thompson, Fred Evans, Margaret Kil- lough, Patricia Garrett, Charles Smith, Carolyn Scott, April Rae Gilliard, Vilma Curry, Francine Schaffner, and Ronnie Williams immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify each of them, that we have re- moved from our files any reference to his dis- charge and that the discharge will not be used against him in any way. SHORE POINTE ASSOCIATES, INC., D/B/A AMERICARE CONVALESCENT CENTER John Ciaramitero, Esq., for the General Counsel. Roy R. Hunsinger, Esq. (Stringari, Fritz, Kreger, Ahearn, Benett & Hunsinger), of Detroit, Michigan, for the Re- spondent. Eilleen M. Hayess Esq., of Detroit, Michigan, for the Charging Party. DECISION STATEMENT OF THE CASE WALTER J. ALPRIN, Administrative Law Judge. On charges filed on 10 December 19841 by Michigan Health Care Associates, District 1199M, International Union of Health Care Employees, AFL-CIO (the Union), the General Counsel issued a complaint on 31 January 1985 alleging that by soliciting grievances, promising benefits, making threats, and stating the futility of an imminent vote on union representation, and by discriminatorily dis- charging 12 employees, Shore Pointe Associates, Inc., d/b/a Americare Convalescent Center (Respondent) interfered with, restrained, and coerced its employees in the exercise of rights under Section 7 of the National Labor Relations Act (the Act), in violation of Section 8(axl) and (3) of the Act. A hearing was held before me at Detroit, Michigan, and all parties thereafter submitted briefs. On the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following i All dates are in 1984 unless otherwise indicated FINDINGS OF FACT 1. JURISDICTION 1207 Respondent provides longterm geriatric care services at its facility in Detroit, Michigan. It admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It is stip- ulated and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. BACKGROUND A. Respondent's Economic History and Sale Respondent's corporate predecessor filed Chapter XI bankruptcy in October 1982, while the Federal Internal Revenue Service was threatening foreclosure for failure to turn over withholdings on wages. An arrangement was approved by which Respondent was to pay its tax obligations in full, and 50 percent of other debts, over a 3-year period at the rate of about $8000 per month to the IRS; $4000 per month to state and local tax authorities; and $500 to $800 per month to general creditors. Subject to making these payments, Respondent was discharged from bankruptcy about December 1983. The controlling stockholder wanted to sell the business, but a purchaser could not be found until, in mid-October, an agreement was reached with Aysel Seglik, a registered nurse em- ployed by the absentee owner as administrator and gen- eral manager since 1978. Though the terms of the purchase are not in the record, it is undisputed that Respondent purchased the business retroactively as of 1 October, and that Respond- ent is obligated to continue the monthly payments of $12,500 to $12,800 under the agreement by which its predecessor was discharged from bankruptcy. Because it did not have the capital necessary to operate, Respond- ent borrowed receivables of about $170,000 from the seller to be repaid at the rate of $10,000 per month. B. Staffing and Staff Functions Respondent's facility has two residential floors, each of which must be staffed by at least one nurse2 and a suffi- cient number of nurses aides and/or orderlies to provide an employee-patient ratio of 1:8 from 7 a.m. to 3 p.m., 1:12 from 3 p.m. to 11 p.m., and 1:15 from 11 p.m. to 7 a.m. Certain functions, such as obtaining and dispensing medications, can only be performed by nurses, who must also sign approval on records required to be kept by aides, such as daily reports of body functions and vital signs and of food and supplement consumption by each patient. Nurses direct aides and orderlies and are author- ized to send an aid or orderly home if unable to works and to prepare written reprimands for failure to perform work properly. Such reports are forwarded to the office of the director of nurses (DON) for proper reprimand to 2 Seglik, as administrator, is a registered nurse, as is the director of nursing. Other personnel referred to as nurses are licensed practical nurses or graduate nurses awaiting licensing. s Nurses also see that aides and orderlies do not work over 40 hours per week, or overstaff or understaff a shift 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be given by the director. Nurses are not authorized to hire or fire aides or orderlies, or make effective recom- mendations pertaining thereto, and may direct them only to the extent of seeing that predetermined tasks are ac- complished. Nurses are hired and fired by and are responsible to the DON.4 There were two different individuals em- ployed as DONs, and they will simply be referred to as the DON rather than by name. Nurses, orderlies, and aides work a 40-hour week. Since staffing is required around the clock, 7 days per week, schedules of personnel assignments are required and are prepared by the DON on 6-week cycles. Nurses categorized as full time, i.e., 40 hours per week, are gen- erally assigned the same shift and operating on the same floor at all times; as part-time, i.e., less than 40 scheduled hours per week, and, after Seglik's purchase, as contin- gent, i.e., not scheduled but called on an as-needed basis. When a scheduled nurse is unable to work all or part of her shift, the absence is made up by trading scheduled shifts, by having another nurse work a double shift, by adding to the number of hours a part-time nurse will work or, after Seglik's purchase , by calling in a contin- gent nurse. C. Positions Added Prior to Seglik's Purchase Only one nurse per floor is required by state regula- tion, but in April as Seglik and the DON began prepar- ing for the annual licensing re-examination to take place in October or September it was recognized that many re- quired functions were not being performed. It was decid- ed to utilize one additional nurse daily on both morning and afternoon shifts to assist the charge nurses. In addition, the DON wanted a person to exercise au- thority over the nurses on those shifts . Harold Love was chosen and given the title of in-service patient care coor- dinator.5 The job summary provides, in part, the following: Orientation and on-the-job training for professional and nonprofessional Nursing Personnel. Will pro- vide skilled training, continued education, and lead- ership and management development for selected personnel in harmony with the basic policies of the facility. Systematically plans and documents pro- grams. A Nurse Attendant Manual and Nursing Procedure Manual will be continually assessed and any necessary changes will be implemented by eval- uating the needs of the personnel in relationship to the needs of the patient. In Service programs will be planned that will assure individualized rehabilita- tive nursing care. Will follow directions for infec- tion control tabulations and will give inservice to all nursing personnel-tabulate meetings. Actually, the administrator has also hired, and certainly has fired, nurses. a The job description titles the position as patient care coordination, but it was referred to by the nurses as the care coordinator, which is the title that will be used herein. The summary also provides: the title of jobs super- vised: all nursing personnel and nursing personnel in ori- entation. The testimony of individual nurses was that while Love occupied this position they considered him their supervisor, and in her statement to the Board and in her trial testimony Seglik also categorized Love as a supervi- sor. D. Union Organizational Effort Following Respondent's relicensing examination, it ap- parently received some letter derogatory of some aspect of nursing. Nurses Hooper and Brown, both of whom had been hired in May, asked to speak with Seglik about it, but she would not see them.6 They then spoke to Love, and asked him about contacting the Union.7 On 9 October, the Union filed a petition to recertify as exclusive collective-bargaining agent of a unit consisting of "all licensed Practical Nurses and all Graduate Practi- cal Nurses" with the usual exclusions. On 30 October Respondent consented to an election , to be held 30 No- vember. The Union won the election by a vote of 6 to 1, and on 10 December was certified the exclusive bargain- ing agent of a unit consisting of: All licensed practical nurses and graduate practical nurses employed by the Employer at its facility lo- cated at 19211 Anglin, Detroit, Michigan; but ex- cluding all employees covered under an existing collective bargaining agreement, Administrator, As- sistant Administrator, Director of Nursing, Assistant to the Director of Nursing, office clerical employ- ees, guards and supervisors as defined in the Act. E. Dates ofHire and Termination The following nurses were hired on the dates indicat- ed, and remained as employees of Respondent as of the hearing: Name Date of hire Reilly 8/26/76 Whitty 5/17/82 Vargesi 6/30/82 Galloway 12/3/82 Braxton 9/12/83 Love 12/27/83 Cox 4/11/84 Bryant 5/2/84 Brown 5/3/84 The following nurses were hired and terminated as in- dicated: s Seglik testified that during this period she was completely involved with details of the purchase and other matters, and did not have time for a meeting. T The Union previously represented a bargaining unit of Respondent's predecessor's nurses but, at a time not indicated in the record, was decer- tified. Love gave them the name and phone number of the union employ- ee to contact, and they did so. Hooper and Brown obtained authorization cards, which they distributed among the employees, had signed and re- turned to the Union, apparently had all nurses wearing union buttons, and had a number of employees, including Love, attending union meet- ings. AMERICARE CONVALESCENT CENTER 1209 Name Hire date Termination Hooper 5/7/84 11/26/84 Bey 5/8/84 11/26/84 Thompson 5/22/84 11/27/84 Evans 5/24/84 11/27/84 Killough 6/8/84 11/27/84 Garrett 7/23/84 11/27/84 Smith 8/14/84 11/27/84 Scott 9/10/84 11/27/84 Gilliard 9/11/84 11/26/84 Curry 10/12/84 11/27/84 Schaffner 10/15/84 11/27/84 Williams 10/27/84 11/27/84 Hooper, Bey, and Gilliard have thereafter been placed on the list of "contingent nurses" and have been phoned from time to time with requests to do part-time work. III. UNFAIR LABOR PRACTICES A. Seglik 's Direct Statements On 8 November Seglik called a mandatory meeting of nurses. She told them that she had become the owner of the facility; that because they all were "one family" there was no need for a third party to come in and rep- resent the employees; that she was always ready and willing to talk with employees and to help with their problems. Some employees spoke up, complaining that Seglik would not meet with them in the past, and that supplies were not always available . Seglik replied that she had been too engrossed in details of the purchase of the facility to meet as requested, but that she would be available to meet and to take care of supply shortages in the future. Other nurses complained of economic mat- ters, such as minimal benefits and holidays, and on these matters Seglik merely listened and "smiled" and made no response. On 16 November nurses were informed by the em- ployee from whom they normally received their pay- checks that distribution of the checks would be made by Seglik, in her office. A group of nurses went into the office together where Seglik again told them that they were all one "family," which did not need to bring out- siders in to solve problems; that if outsiders came in communications would break down and that she would not be able to give employees recognition or bonuses for excellent work;8 and that if they had any problems in the future they could come and discuss the problems with her directly. Discussion A number of statements made by Seglik are alleged as violations of Section 8(aXl) of the Act. It is well settled that the test of interference , restraint, or coercion does S Respondent's practice had been to give Christmas bonuses of $50 to the nurses and up to $100 to department heads and others. not turn on Respondent's motive or its success . The test is whether Respondent engaged in conduct that could reasonably be said to tend to interfere with the free exer- cise of employees' rights under the Act.9 From these statements, from Seglik's statements made through Harold Love, next discussed, and through Seglik's mass discharge of employees, thereafter discussed, I find that Respondent displayed an antiunion attitude that in all the circumstances tended to interfere with the free exercise by employees of their rights. Seglik stated to the nurses prior to their representation election that there was no need for a "third party," i.e., a union, to represent employees. Section 8(c) of the Act provides that such a statement is not an unfair labor practice "if such expression contains no threat of reprisal or force or promise of benefit ." At the same time, Seglik solicited grievances and stated to her captive -audience employees that if the Union came in she would not be able to give bonuses, a clear promise of benefit,' ° and that communications would break down and she would not be available to meet and take care of adverse work- ing conditions in the future, an implied promise of bene- fits by correction." Regarding Seglik's failure to respond to the complaints of nurses about minimal benefits and holidays, no prom- ises can be implied from her silent smile, and no unfair labor practice arose from it. B. Seglik's Statements Through Harold Love Love was hired during 1983 as a nurse . In February or March he was made "afternoon supervisor," in which he assumed "total responsibility of the building ," advising, staffing, and disciplining the nurses, nurses aids, and or- derlies. In late April or the beginning of May, when the current DON was employed, Love was removed from the position of afternoon supervisor and made "patient care in service coordinator," as previously described. Love had no authority to hire, fire, or discipline employ- ees, those being functions of the DON and/or Seglik. At the end of November this position was eliminated and Love was returned to nursing duties. After the compulsory nurses' meeting of 12 November a group of nurses went to Love's office, where he told them12 Seglik had told him that if the nurses thought they had it easy that they had "another think coming" because she would make it "tough" for them and see that no union came in, and would not allow a union to tell her what she could do. Seglik denied that she had made any such statement. About the week of 19 November, Love told nurses that Seglik proposed to change his status as supervisor, but not his salary, so that he could vote "for her" in the representation election, and that if 9 Fairleigh Dickinson University, 264 NLRB 725 (1982); Waco, Inc., 273 NLRB 746 (1985). 10 Gayston Corp., 265 NLRB 1 (1982); Metro Center, 267 NLRB 288 (1983). 11 Windsor Industries, 265 NLRB 1009 (1982), as distinguished from Mariposa Press, 273 NLRB 528 (1984), in which it was found that there was no implied promise to, as here, "take care of" complaints. 12 Love was not called as a witness by either party. Decision was re- served and a continuing objection was noted in all testimony regarding Love's statements on the grounds of hearsay. 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he did not vote against the Union his job was in jeop- ardy. Seglik denied making any of the statements alleged. Discussion Love was clearly never a supervisor within the mean- ing of Section 2(11) of the Act. It is also true that Love had been a supervisory employee in terms of directing nurses in the performance of their duties, and at the time of his statements he was still in a position superior to that of the other nurses. The other nurses therefore could and properly did not consider Love to be an agent of Respondent. Seglik denied that Love was authorized to make statements on behalf of Respondent , but Section 2(13) of the Act provides that such argument is not pre- vailing. Seglik also denied that she had made the alleged state- ments to Love. Because Love did not testify in person, Seglik's denial is uncontroverted . t 3 However, self-serv- ing statements of an employer or of an employee are not to be accepted merely because they are uncontradicted, when the record as a whole casts doubt on those state- ments.' 4 In view of the fording above that Seglik engaged in the unfair labor practices of interfering with, restraining, or coercing employees in the free exercise of their rights by telling them that selection of a union was not neces- sary, soliciting grievances, threatening that bonuses would be lost if the Union were elected and impliedly promising that working conditions would improve if it were not, I find a clear union animus on the part of Re- spondent. As I observed it, Seglik's entire testimony was too self-serving, always showing that her intentions were virtuous, and that it was others who misinterpreted her meaning. I find, in short, that Seglik did tell Love, and further through Love as an agent did tell the other nurses, that she would not let a union get in and would make difficulties for employees voting for a union to the point of discharging them. Each of such statements con- stitutes a separate unfair labor practice. C. Mass Discharges On 26 and 27 November, immediately prior to the rep- resentation election of 30 November, Seglik discharged 12 of the 21 nurses. Those discharged were the least senior, as can be seen from the lists previously set forth. Respondent presented testimony that the discharges were solely the result of economic necessity. Abramson, as accountant for the facility prior to as well as after its sale to Seglik, testified that the facility, had since bank- ruptcy, been operating marginally financially and that he was constantly reviewing costs with Seglik, urging her to reduce expenses in all categories . When Seglik pur- chased the facility, in addition to being required to meet the monthly payments established by the bankruptcy court, Seglik would have to borrow about $170,000 in 13 Testimony by the nurses of what Love said he had been told by Seglik is hearsay evidence, admissible only as proof that Love made the statements to the nurses, and not as proof that the statements were true. 14 Aero Corp., 237 NLRB 455 fn. 1 (1978), citing NLRB v. Walton, 396 U.S. 404, 408 (1962); and NLRB P. Howell Chevrolet Co, 204 F.2d 79, 86 (9th Cir. 1953), affd. 346 U.S. 482. receivables from the seller, to be repaid at the rate of $10,000 per month . Abramson testified that he advised Seglik not to go forward with the purchase on these terms, but she did and was later required to borrow an additional $435,000 to meet current obligations. At the time of the purchase, according to Abramson, current expenses exceeded current income by $12,000 per month. During 1984 and 1985 Seglik reduced the number of employees in the maintenance and the housekeeping de- partments, then merged them, and then did away with them completely, contracting the work out at a cost, whether additional or at a saving, not reported. One part-time office worker was also discharged . Abramson testified that after the purchase he specifically advised Seglik to review nursing costs and to reduce them if pos- sible. No nurses aides or orderlies were discharged. One part-time office worker was discharged. Only one employee was hired after the nurses were discharged. The daughter of a friend , this individual, named Max, was a licensed practical nurse but for per- sonal reasons was not working. Max became an unpaid "volunteer," cleaning up the office paperwork in January 1985. After about 10 days she had finished that assign- ment, and was sent by Seglik to the DON to assist there with accumulated paperwork prepared by aides and or- derlies, but which required review and signature by a nurse. Max was proficient at her work, and at some time not indicated in the record asked for and was given an unspecified hourly wage rate . Max would occasionally "pass medicine" or perform other nursing functions, but does not work full shifts as a nurse. During November, at the economic low point of the facility and in the face of the specific advice to reduce nursing costs, Seglik directed the DON to select two nurses and make them supervisors, for duties and at a salary to be determined later by Seglik.15 During this same period Seglik felt it necessary to re- furbish her office at a cost of $1500, and to increase her salary by $5000 per year. A more luxurious model car was leased for Seglik's use, but she testified that it cost no more than the cars previously leased. Christmas bo- nuses of $50 to $100 were paid to employees in Decem- ber. Discussion After the mass discharges of 26 and 27 November, a total of 9 full- and part-time nurses fulfilled the state min- imum requirement of one nurse for each of two floors, on three shifts per day, 7 days per week. In order to staff the facility with one extra nurse per shift, on only two shifts per day, a total of 12 additional nurses had been employed on full- or part-time status. The mass dis- 15 Nurses Brown and Hooper, the two most active union supporters, were interviewed by the DON. The nurses testified that the DON stated that Seglik had specified that she wanted Brown and Hooper to be the ones given supervisory status, which Seglik denies. The dispute is moot because the offers were not alleged as unfair labor practices, but proven merely to show that at the time Seghk in fact had no desire or intent to reduce nursing expenses and in fact recognized a need to increase nursing costa AMERICARE CONVALESCENT CENTER charges of 26 and 27 November thus effectuated a 25- percent reduction in function and expenses, while reduc- ing the staff by 59 percent. These discharges are alleged as violations of Section 8(aXl) and (3) of the Act, and the Wright Line method of analysis clearly applies.16 In the typical case, counsel for General Counsel must demonstrate that the Employer was aware of prounion sentiments or acts of the individ- ual employees discharged, and inferentially that all prounion employees were discriminated against. Counsel for General Counsel can, however, proceed on the theory that the Employer ordered general layoffs for the purpose of discouraging union activity even if not all prounion employees are directly affected.17 "[G]eneral retaliation by an employer against the workforce can dis- courage the exercise of section 7 rights just as effectively as adverse action taken against only known union sup- porters." 18 I consider that counsel for the General Counsel has met his burden in proving a prima facie case. Respondent began hiring additional nurses on 11 April, and hired a total of 15 of them between then and 27 October in the face of what Abramson testified was a continuing series of warnings to reduce costs. After Seglik's purchase of the facility in mid-October, despite such alleged warn- ings, Seglik increased her own salary, refurbished her office, and paid Christmas bonuses. Either the alleged advice was not given, or was knowingly disregarded by Seglik. The only logical reason for the mass discharges is the implementation of the threats made by Seglik direct- ly to the nurses, and to and through Love, in order to impose a chilling effect on work unit members about to vote on union representation. The chilling effect of the discharges was of course supplemented by Seglik's im- plied promise of corrective changes in work conditions and threat not to pay bonuses if the employees voted for union representation. Having had a prima facie case presented against it, it became the burden of Respondent to show, by a prepon- derance of the evidence, that the employees would have been laid off even if they were not about to engage in the protected activity of voting in the representation election. This it attempted to do by showing an econom- ic basis for the discharges. I do not credit that such con- ditions existed. As pointed out above, Seglik had been hiring additional nurses between April and the end of October; she incurred other, avoidable business expenses; she was eventually required to hire another nurse to ac- complish required paper work. Allegedly losing over $12,000 per month while over its head in debt, Respond- ent somehow survived the 5 months prior to hearing.19 On the basis of the above, and of the previously dis- cussed union animus, I find that the 15 discharges consti- tuted violations of Section 8(a)(1) of the Act, as well as discriminations in the hire or tenure of employment of 1e Wright Line, 251 NLRB 1083 (1980), NLRB v. Transportation Man- agement Corp., 462 U.S. 393 (1983). 17 Birch Run Welding v. NLRB, 761 F.2d 1175, 1179-1180 (6th Cu 1985). is Birch Run Welding Y. NLRB, supra at 1180. 19 If Respondent is sufficiently by viable to file exceptions, it might be noted that it has miraculously survived a further period 1211 these employees in violation of Section 8(a)(3) of the Act. CONCLUSIONS OF LAW 1. Respondent Shore Pointe Associates, Inc., d/b/a Americare Convalescent Center is an employer engaged in commerce within the meaning of the Act. 2. By soliciting grievances, by threatening employees, and by making promises to employees, the Respondent has violated Section 8(a)(1) of the Act. 3. By discriminatorily discharging employees Hooper and Bey on 26 November 1984 and employees Thomp- son, Evans, Killough, Garrett, Smith, Scott, Gilliard, Curry, Schaffner, and Williams on 27 November 1984, in order to impose a chilling effect on employees about to vote in a representation election, the Respondent has vio- lated Section 8(a)(1) and (3) of the Act. 4. These violations constitute unfair labor practices that affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Respondent, having discriminatorily discharged 15 em- ployees must offer them reinstatement and make them whole for any loss of earnings and other benefits, com- puted on a quarterly basis from the date of discharge to the date of proper offer of reinstatement, less any net in- terim earnings as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed20 ORDER The Respondent, Shore Pointe Associates, Inc., d/b/a Americare Convalescent Center, Detroit, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee for supporting the Michigan Health Care Associates, District 1199M, National Union of Health Care Employees, AFL-CIO, or any other union. (b) Soliciting grievances from, threatening, or promis- ing benefits to any employee to affect their union sup- port or activities. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. S0 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. 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer Thelma Hooper, Vickie Bey, Stephanie Thompson, Fred Evans, Margaret Killough, Patricia Garrett, Charles Smith, Carolyn Scott, April Rae Gil- liard, Vilna Curry, Francine Schaffner, and Gloria Wil- liams immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other ben- efits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports , and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Detroit, Michigan, copies of the attached notice marked "Appendix."21 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. a' If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."