Provincial House Total Living Center

158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Beverly Enterprises , d/b/a Provincial House Total Living Center and William Mulder and Antho- ny Coffman and Local 547, International Union of Operating Engineers, AFL-CIO. Cases 7- CA-20499, 7-CA-20500, 7-CA-20501, 7-CA- 20584, 7-CA-20779, and 7-CA-21176 15 December 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 26 September 1984 Administrative Law Judge Robert T. Wallace issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions as modified2 and to adopt the recom- ' The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive 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 Cir 1951) We have carefully examined the record and find no basis for re- versing the findings 2 In agreeing with the judge that the Respondent did not impose an urlawful no-solicitation/no-distribution rule by forbidding employees to post materials on the "official" bulletin board next to the lobby without first obtaining permission, we note that there is no credible evidence that the Respondent administered this rule in a disparate manner We also note that the testimony of Administrator White, which the judge credits, is that she informed employees that they could not solicit union member- ship or distribute union literature on "work time," rather than "work hours," as the judge states See Our Way, Inc, 268 NLRB 394 (1983) We agree with the dismissal of the allegation of unlawful impression of surveillance, but not for the reasons expressed by the judge The credited testimony of employee Hutchins was that Supervisor White had stated to an assembled group of aides that if they saw union organizer Lillie out- side of the facility again, they should "come and get her right away so she could call the police " The General Counsel argues that White was attempting to engage the assistance of employees in watching the union representative's activities, and thereby it was a "de facto request for re- ports on the Union activities of its employees " However, the evidence shows the following that the Employer had maintained a no- solicitation/no-distribution rule (upheld by the judge as lawful in form and application) that excluded nonemployees from the premises, that Lillie had previously trespassed on the Respondent's premises, and that White had ordered her off the property Following this episode, White again saw Lillie outside of the facility, distributing material, whereupon White summoned the employees and asked them to report any future oc- currences While it is true that White indicated her opposition to the Union, there is no suggestion that her request was designed to encourage employees to report either on the union agent off the premises, or on any instances of union activity generally among the employees themselves, which clearly would have been unlawful See Headquarters Plaza Hotel, 276 NLRB 925 fn 1 (1985), enfd mem sub nom NLRB Y Olnick, 800 F 2d 1136 (3d Cir 1986) Under the circumstances, the General Counsel failed to establish how the supervisor's request would in fact have had a reasonable tendency to prompt among employees fears of any reprisals or coercion for any of their own legitimate union activity mended Order which is modified to reflect the amended Remedy. The judge found that the Respondent violated Section 8(a)(1) by requiring second-shift employees arriving early for work to wait in the lobby instead of the breakroom for the purpose of inhibiting dis- cussions between employees on different shifts con- cerning union matters. However, the judge con- cluded that the Respondent's misconduct constitut- ed an insubstantial violation of the Act for which a remedial order would serve no purpose We dis- agree. The Respondent's second-shift employees were not required to start work until 2:30 p.m. Frequent- ly, however, second-shift employees arrived at the Respondent's facility as early as 2 p.m. Early arriv- ing employees normally waited in the Respondent's breakroom until the start of their shift. There is no evidence that, before the advent of the Union's campaign, the Respondent had restricted early ar- riving employees' use of the breakroom or employ- ee conversations in the breakroom. On one day during the Union's organizing cam- paign in late March or early April 1982, second- shift employees Tucker and Hutchins arrived early for work, at approximately 2 p.m. They went into the women's lounge where they began discussing the Union with two 'first-shift employees The di- rector of nursing, Scarff, then entered the lounge and, after a few moments, asked the employees whether they were discussing the Union. Hutchins replied that she did not think it was any of Scarff's business, and Scarff responded that she did not want them discussing the Union in the facility on facility time and that they would have to wait in the lobby until it was time to punch in. Meanwhile second-shift employees Goodman and Coleman, who had also arrived for work early that day and were in the breakroom, were told by Charge Nurse Yanny that they would have to sit in the lobby until their shift started. When Coleman asked why, Yanny stated that "a lot of Union ac- tivity was going on between shifts," and that Cole- man would have to talk to Scarff or Administrator White about the matter. When approximately 10 second-shift employees later congregated in the lobby, Administrator White appeared and explained to everyone present that the Respondent was enforcing a facility rule against premature arrivals and that the rule had been in its policy book all along.3 Although the 3 The testimony of employee Tucker, whom the judge generally cred- ited on this issue, was that White also told them that she was enforcing the rule because she did not want them talking with employees on other shifts about the Union 287 NLRB No. 19 PROVINCIAL HOUSE LIVING CENTER testimony was that White then went to get the policy book to show them, there is no evidence that she ever showed the book to the employees. It is evident that the Respondent enforced the rule against premature arrivals solely for the pur- pose of preventing discussions between first- and second-shift employees concerning union matters.4 This unlawful purpose was communicated to a sig- nificant number of second-shift employees by high- level officials of the Respondent. Furthermore, there is no evidence that the Respondent ever re- voked this rule Accordingly, we conclude that the Respondent- violated Section 8(a)(1), and we shall order an appropriate remedy. THE REMEDY Having found that the Respondent engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act, we shall order the Respondent to cease and desist from such conduct. We shall also order the Respondent to post an appropriate notice and take affirmative action in order to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that the Respondent, Beverly Enterprises, d/b/a Pro- vincial House Total Living Center, Kalamazoo, Michigan, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Prohibiting employees from arriving at work early and using the breakroom in order to prevent them from discussing union matters with other em- ployees. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its facility in Kalamazoo, Michigan, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to 4 See, e g, Dutch Boy, Inc, 262 NLRB 4, 6 (1982) 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 " 159 ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 prohibit employees from arriving at work early for the purpose of preventing them from discussing union matters with other employ- ees. 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. BEVERLY ENTERPRISES , D/B/A PRO- VINCIAL HOUSE TOTAL LIVING CENTER Cornele A. Overstreet, Esq., for the General Counsel. Ronald J. Santo and Robert L Duty, Esqs. (Dykema, Gos- sett, Spencer, Goodnow & Trigg), of Detroit, Michigan, for the Respondent. DECISION ROBERT T. WALLACE, Administrative Law Judge. On separate charges filed on April 5, 1982, by William Mulder, Anthony Coffman, and Local 547 (the Union), and by the Union on April 28, June 11 (amended June 25), and September 16, 1982, an original and two amend- ed consolidated complaints were issued on May 21, July 14, and November 15, 1983, respectively The primary issues are whether the above-named Respondent (TLC) during the Union's organizing drive engaged in unlawful surveillance, coercive interrogations, other wrongful interferences with employees' rights, discriminatorily dis- 160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD charged five nurses aides,' and unlawfully disciplined an- other (Donna Hutchins), in violation of Section 8(a)(1) and (3) of the National Labor Relations Act The cases were tried before me at Kalamazoo , Michigan, on Febru- ary 7-9, March 21-24, and. May 24-27, 1983. On the entire record , including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent , a California corporation , operates numer- ous nursing care facilities throughout the United States including , as here pertinent , a nursing home with 117 beds for developmentally disabled individuals of all ages at Kalamazoo . During a representative 1-year period ending December 31, 1981, it had gross revenues in excess of $500,000. It admits, and I find , that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Mulder was hired on February 26, 1981. During the course of his orientation interview , the assistant director of nursing, Kerrann Hassan, according to custom , recited an item from the policy manual as follows Provincial House employees do not need-and will never need-a union to further their interests The Company accepts full responsibility to take the steps necessary to satisfy employees wherever possi- ble. We know that an outside third party creates a barrier and weakens the cooperative spirit between employees and administration We believe we can most successfully satisfy employees and, therefore, provide quality patient care without the involve- ment of a union. . Unions generally promise that their representation will provide employees with better wages and working conditions. In fact, a union cannot assure employees of anything. It can only guarantee the additional expense of initiation fees, monthly dues, fines, special assessments and the possibility of the financial hardship of a strike Mulder worked as an aide until December 17 when he resigned on disapproval of his request for extended leave to vacation in Florida. During his 10 months on the job he occasionally overheard employees mention unions in casual conversations. On January 7 he applied for, and was granted, rein- statement by the director of nurses, Sonya Scarff. But she told him that although his work had been good she 1 Mulder, Coffman, Rose Tucker, Rodney Zabonick, and Carolyn Coleman hoped he would correct what she perceived as a deterio- ration of attitude (i.e., resistence to supervision and impa- tience with residents) occurring toward the end of his last term Mulder assured her his performance would im- prove. Shortly thereafter (on February 8) Hassan interviewed and hired "Tony" Coffman as an aide. The latter lived in the same house with Mulder and had been recommended by him. Two days later Mulder developed appendicitis, which necessitated an operation and emergency leave until March 5 Around March 1, Coffman was approaching the front entrance to the facility when a man handed him a proun- ion leaflet and a business card bearing the legend "Bruce Lillie-Field Representative . Local 547 " As he ac- cepted the items and proceeded toward the door, Coff- man observed the administrator of TLC, Evelyn White, staring at him and Lillie from her office window and, as he entered, White rushed out, headed towards Lillie. Coffman went to the nurses' station located in the center of the facility where he met aide Hutchins. He told her about the encounter and both found it to be "extremely funny" particularly because White seemed so upset After changing his clothes and punching in, Coffman re- turned to the nurses' station and found White addressing a group of nurses and aides. She told them, in effect, that a union man was out front, that he was not authorized to be on the premises, and that if he appeared there again they were to tell her right away so she could call the police.2 Aide Tucker missed hearing White's remarks as she was in the ladies lounge changing into her uniform But on overhearing conversation, of aides who had returned from the meeting, she blurted out: "Union? That's what this place needs I'm all for it!" Mulder returned to work on Friday, March 5 Be- tween that time and March 9 when he was terminated, he claims that he, Coffman, and Hutchins on "quite a few occasions" talked of the need for a' union within hearing range of other employees while on duty and in the breakroom I find his and similar testimony of other alleged discriminatees vague, contradictory, and general- ly insufficient to establish that any significant protected union or concerted activity took place during that period. 3 2 Coffman's initial version of White's comments differs materially from Hutchins' and, indeed , from his own restatement on cross-examination I have credited Hutchins' account Also I note, but have not credited, White's flat denial of the entire incident In addition , I decline to credit Mulder's contention that he was present during the incident Neither Coffman nor Hutchins corroborated his presence Indeed, both state that they related the incident to him 3 Although Hutchins vividly recalled an incident wherein she told Mulder "we need a union " as they sat back-to-back feeding residents in the dining room and then , on hearing a warning sound (ssh) from Mulder , looked up and saw a charge nurse (LPN Ann Williams) standing nearby "staring at us with her hands on her hips ," I find her account contrived and decline to credit her Among other things, I note that Mulder made no mention of the incident and Williams had no recollec- tion of it PROVINCIAL HOUSE LIVING CENTER B. Discharge of Mulder and Coffman Mulder and Coffman were terminated on March 9 and 10, respectively Concerning the surrounding circum- stances, their testimony, and that of other alleged discri- minatees also is marked by significant disparities. The ac- count that follows is a composite, key portions of which are based on a credited testimony of a charge nurse (LPN Ric Bubin) Mulder and Coffman rode to work together on March 9. After they punched in about 2:30 p m., Coffman was assigned to assist in giving baths in the "slab" room and Mulder, due to his convalescence, was given "shaving and nails," a light duty assignment usually performed in the rooms of residents . In assigning him to that job, Mulder's hall monitor (aide Coleman) cautioned him to be careful because another monitor (aide Mary Webster) had complained to her that he and Coffman were spend- ing too much time on each others' halls, to the detriment of residents When Coffman reported to the slab room he was visi- bly disturbed because he had dust been told by Webster to stay away from Mulder. The regular attendant, Hutchins, found him "grouchy" and she attributed that condition at least in part to the fact that he did not like giving baths and felt that he had been given that assign- ment too often. About 3 p in Mulder entered the slab room and, on noting the presence of several residents, asked Hutchins if she needed help in blow-drying their hair. On receiv- ing a negative reply, he sat down to rest "because [other- wise] I would get my work done too quick . . . [and at the end of the shift would] have to be sitting in the hall for three hours " He had barely sat down, however, when Coffman, in an apparent rage, shouted, "All I want to do is get the fuck out of here" and fled sobbing from the room. Shortly thereafter Coffman obtained Bubin's permission to go home and he left the facility Mulder continued to sit in the slab room tallking to Hutchins for about a half hour, at which time Bubin en- tered on routine inspection and asked him why he was sitting there Mulder's terse reply was, "Talking," where- upon Bubin told him, "I would rather have you work . . go back to your assigned area " Bubin then left and went to the nurses' station . Moments later Mulder came out, and as he entered a wing of the facility occupied by numerous residents he shouted , "They can take this god damn job and shove it up their ass." The outburst was loud enough to be heard clearly by Bubin, who was about 38 feet behind Mulder, and by aides, who were folding towels in the hallway of the wing approximately 80 feet ahead of him.4 4 I have not accepted the claim of Mulder and other alleged discrimm- atees that he uttered the quoted language softly and minus the words "god damn" and "up their ass " Among the more salient disparities in their testimony relating to this incident , I note that Hutchins agrees with Bubm that Mulder 's outburst occurred as he was walking away from the nurses' station (Tr 1162, 1657), while Coleman and Tucker claim that Mulder had been folding towels with them and that the incident hap- pened as he was walking away from them toward Coffman, who ap- peared at the entry of the wing and had beckoned Mulder to come to him (Tr 609, 758) Also, I note that in his testimony on direct examina- tion, Coffman states that after he left the slab room he did not see Mulder again at the facility that day (Tr 302) Further, I note that Zabonick ad- 161 Bubm quickly overtook Mulder and told him to punch out and report to Scarffs office. There Scarff accepted Bubin's account of the incidents and told Mulder that he was terminated for using obscene language in the pres- ence of residents.6 Concerned that a discharge might preclude him from obtaining work at a geriatric nursing home in Florida, Mulder asked and was given an oppor- tunity to resign in lieu of being fired. According to Mulder, in agreeing to his request Scarff said that "I better watch my mouth, that old people could tell on you where these retarded kids can't "' On reporting to work the next day, Coffman went to Scarff's office and told her he was upset by Mulder's ter- mination adding that "just because we live together and . . . are a little bit feminine doesn't mean we are gay." Scarff told him she was not going to respond to that and advised him to go back out and do his work Coffman then went to his assigned area where he promptly baited hall monitor Webster when she gave him an assignment by asking her if it was a direct order and if she would write him up for failing to obey Web- ster chose to ignore the challenge and Coffman proceed- ed to carry out the assigned job. However, stung by his sarcastic manner, she asked him shortly thereafter what was bothering him He replied that he was upset because she had told other hall monitors that he was gay With- out saying a word Webster left only to return moments later with two other monitors (aides Janice Phillips and Coleman); and she heatedly challenged him to say which one she had told. He opted not to reply, and Coleman eased the situation by asking Webster if Coffman could vances A version of the incident that differs from all others (Tr 511, 588- 595) and one that I find totally unreliable 5 Mulder claims that during the course of this interview Bubin volun- teered that he was going "to go through the facility with some kind of an ax [and] take care of a bunch of my friends " I decline to credit that claim noting , among other things , that he did not see fit to mention it when giving his affidavit to a Board agent on April 27, 1982 Although an attempt was made to show that Mulder's forced resigna- tion was discriminatory because other employees were not punished for using "cuss" words, I find the effort unpersuasive Although, as conceded by Bubm, there were occasions when employees swore in his presence without being disciplined, there is no indication that they did so loudly enough to be overheard by residents Nor is there any showing (apart from discredited testimony of Zabomck) that Bubm was in a position to overhear the above-described outburst by Coffman in the slab room As to the several specfic allegations that Bubm swore in the presence of resi- dents, I accept his denial In that respect , I note that Mulder testified that he never heard any supervisor swear in front of a resident and Coffman stated he was unable to recall a single instance where Bubm swore in the presence of a resident Hutchins claims that on the following day she overheard Bubm tell another aide (Barbara Janis) that he was sorry he had to fire Mulder but he was going to perform "a little surgery [to] get rid of the goof- offs " She also claims that Janis followed her back to the slab room and volunteered that Bubin had told her he figured the "Union stuff going on" would stop if he made an example of a good employee like Mulder Indeed , further along in her testimony Hutchins swears that Bubin told her essentially the same thing around April 8 in the presence of aides Jeff Hibbard and Sondra Minor Bubm denies ever having made the state- ments attnuted to him in that circumstance , and because the alleged con- versations lack corroboration and are not mentioned in an affidavit given by Hutchins to a Board agent on April 27, 1982, here too I decline to credit her 162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work with her that evening in exchange for another aide Webster agreed 8 Coffman continued to seethe with indignation over Mulder's termination and in the breakroom during the 4:30 p.m. lunch period he told a group of aides (includ- ing Mary Rhem, Webster, and Hutchins) that "some- thing" would happen later in the afternoon when Mulder returned to the facility with his attorney . Also, he ac- cused Bubin of dispensing drugs to aides and , referring to Webster as a "two-faced bitch ," said that she had abused residents, and was spreading rumors about him. Webster promptly left the room and finished her lunch in the lobby. At the end of the lunch period, Coffman returned to his hall and shortly thereafter saw Mulder leave the fa- cility with his lawyer . Sensing that Mulder had not ob- tained reinstatement , Coffman was depressed ; and about 7 p in. he phoned Mulder's house only to find that his apprehension was well-founded . Angry, he again went to the breakroom where he sat with Hutchins and briefed her on the situation . She urged him to tone down so as not to be overheard by other aides present-including Rhem Rejecting that advice, he raised his voice all the more and told her, "That's okay. It's all going to be over tonight It's all going to be out in the open ." Then ad- dressing the other aides he urged them to come to Mulder's house that evening for free beer and pizza and an opportunity to see the place exposed on TV, adding that transportation would be provided. He extended the same invitation to about 10 people present in the breakroom at 9 p .m., including Activities Director Gloria Isenhour and aides Kevin O'Donnell, Diane Wallace, Minor, Webster, Rhem, and Hutchins This time, however, he prefaced the invitation with heated comments to the effect that Mulder had been treated unfairly and that it was necessary to' do some- thing to bring TLC to its knees by exposing the fact that Bubin and other nurses had given "drugs" to aides and that Bubin and Webster had abused residents verbally and physically ; and he concluded by again referring to Webster as "a two-faced bitch who talked about people behind their backs." With that, Webster stood up, shout- ed, "I've had it with this asshole," and left.9 Throughout the day Bubin received several reports of Coffman's remarks;' 0 and, when he observed Coffman about 9 30 p in chatting with four or five aides in the hall of a residential wing, he had had enough He called to Coffman, and as they walked together towards the nurses' station he told him to leave the facility at once, adding that he knew of the "repugnant" allegations he had been making against him. Coffman responded loudly, "You think you have the power of life and death over everybody in this building and that you are god and . . . can hire and fire people at will " By this time they had arrived at the desk area where Bubin again told Coffman to leave, and indicated he could use the phone to call for a ride Coffman, sensing Bubin's suppressed rage, began to bait him saying, "What if I don't wish to leave?" "Then," said Bubin, "I can make you leave" The dia- logue continued: Coffman- Are you threatening me? Bubin: No, I am not threatening you Coffman: Would you like to punch me? Break my neck? And before Bubin could reply. Coffman turned around and shouted at the top of his voice, "Everybody, every- body! Ric is going to assault me He wants to break my neck He wants to hit me." Bubin, struggling to control himself, responded, "No, I'm not going to assault you, but I will have you removed one way or another." Coff- man then called Mulder's home The latter's mother an- swered and he screamed at her to call the police because Bubin was going to assault him The police came a few minutes later, and with their arrival Coffman assured them that no assault had oc- curred and opted to leave, but not before calling Bubin "a god damn faggot "" To which the latter rejoined, "I'm not a practicing member of your religion " On returning the next day Coffman was met by Scarff who told him he was terminated for being loud and dis- ruptive to the detriment of resident care and for making false accusations in regard to distribution of drugs and patient abuse at the facility.' 2 He offered no defense In- stead he left in a hurry saying he would sign any neces- sary papers later. 11 Coffman mentioned his meeting with Scarf and the described en- counter with Webster only on cross-examination In his initial testimony he had claimed that he was transferred to Coleman's hall because he had told Webster to "shut up" after she had pestered him repeatedly about what he was going to do about Mulder's firing Also, I note that Cole- man, contrary to the testimony of both Webster and Coffman, states that Webster merely told her she was "having problems" with Coffman and did not say that Coffman had accused her of saying he was gay 9 Coffman claims that he addressed aides in the breakroom only once that day, that he used the word "medications" rather than "drugs," that he did not name any particular nurse as having dispensed them to aides or as having abused residents, that he referred to Webster only as "two- faced," that he did not mention TV coverage, and that he had invited a reporter to Mulder's house solely to obtain publicity for the beginning of an organizational drive I find improbable and have not credited any of those assertions, and, to the extent Hutchins' testimony agrees with Coff- man's, I have not credited hers either I note, however, Hutchins ' state- ment that Coffman referred to nurses who gave aides "drugs " Also I note that on cross-examination Coffman admitted having no personal knowledge of medications being given to aides with the exception of one instance when a nurse (not Bubin), whom he preferred not to identify, gave him "something" for a headache C. Discipline of Hutchins On March 7, Hutchins had been employed at TLC for 3 months; and in mid-March she received a 90-day eval- uation from her supervisor, Charge Nurse Williams. Al- though the evaluation reflected "average" performance in seven of eight listed categories, she received a "below 10 As filtered through the several acounts of Webster, Rhem, and O'Donnell, Bubm's perception was that Coffman intended to expose him to the media for "selling and distributing narcotics [as well as] abus- ing residents in the facility " 11 Coffman also testified that during the encounter Bubm pushed him and threatened to "rip my fucking face [and] run my fucking ass over " I credit none of this i2 I find patently contrived and self-serving Coffman's testimony that Scarff also told him he was being fired for trying to organize the aides and that she went on to say, "The only organization the aides needed was management " PROVINCIAL HOUSE LIVING CENTER 163 average" rating under "attitude" with a written comment as follows: "attitude needs improvement . . . must watch how she acts toward staff and aides, otherwise a good aide." According to Hutchins, Williams orally explained that the low mark was because "with all this stuff going on . . . you gripe about the place" and that White had told her to keep that circumstance in mind in giving evaluations. Williams denies making that statement as well as ever having been so instructed by White. I credit her denial. D. Organizational Drive Beginning on the evening of March 10 and extending at least through April 1982, a number of employee meet- ings were held outside'the facility.'3 Initially, discussion focused on possible ways of publicizing instances of al- leged malfeasance by Bubin, Webster, and other nurses in retaliation for perceived unfairness in the firing of Mulder and Coffman. But at the later meetings emphasis shifted to protecting and benefiting themselves by acting collectively through either their own "Association of Aides" or the Union. Until March 30, however, their ef- forts entailed nothing more than talk among themselves. On that day there was a lunchtime meeting of aides at Mulder's house during the course of which Hutchins phoned the "Union guy" (Lillie). He came right over, talked to them, and left a stack of union authorization cards as well as a generous supply of a prounion flier en- titled "It's The Law!" There followed a flurry of organizational activity be- ginning with distribution of copies of the flier through- out the facility that evening. According to Hutchins, she and other aides (Robin Massey and Hibbard) hung them "all over the place," including one that was taped to the door of Administrator White's office. The distribution effort elicited a comment from White on the following day (March 31) during the course of a previously scheduled monthly meeting of aides. She re- minded them of the no-distribution/solicitation rule in effect at TLC and went on to explain that soliciting union membership and distributing union literature could take place only on their own time in the breakroom and not during working hours or in the halls.'' In addition, White and Scarff addressed a large list of other items on a preprepared agenda. Those included: (1) an exhortation to report promptly any fall or other mishap involving residents's as well as any instance of abusive conduct 11 Eleven aides attended one or more of the meetings. These were the six alleged discriminatees as well as Minor, Hibbard, Deborah Harris, Laurie Phillips, and Joyce Goodwin. Zabonick attended two meetings (on March l l and 18) and promptly after each, and on his own initiative, he told Bubin what went on. In turn, Bubin told Scarff. '" Hutchins and Zabonick claim White told the assembled aides that "we couldn't hang things [anywhere] without permission," while Cole- man and Tucker understood her to say that nothing could be posted on the bulletin board without permission. Tucker, however, was aware that the no-solicitation/distribution rule was as stated by White, and she felt free to leave any kind of literature, including prounion fliers, in the breakroom. Also, the evidence shows that the "no posting without per- mission" rule applied to the "official" bulletin board near the lobby and not to another board located in the breakroom. Further, I find no credi- ble evidence that the rule was administered in a discriminatory manner. 15 This item was placed on the agenda because about I week earlier White and Scarff had observed extensive and unexplained bruises on the toward them; (2) an admonition that because of com- plaints aides would no longer be given aspirin or Tylenol for personal use; and (3) an announcement of policy changes entailing (a) immediate suspension of pay in- creases pending budget approvals, (b) cancellation, pend- ing resubmission and reapproval, of all special requests regarding work schedules, and (c) implementation of an employee benefit package including reimbursement for payment of medical insurance premiums and a stock pur- chase plan under which TLC undertook to contribute $3 for every $10 invested by employees. On the next day Hutchins and Tucker arrived at the facility about 2 p.m., one-half hour before their shift began. As they entered the lobby, Tucker began to chant exuberantly, "Union! Union! Union!" White was standing nearby. They went on to the ladies lounge where, while changing into uniforms, they began to discuss the Union with two aides (Julie and Annette) who were getting ready to leave after working the first shift. At that point Scarff entered the room and, after pausing momentarily at a stall, inquired whether they had been discussing the Union; and, when Hutchins replied that it was none of her business, Scarff directed them to wait in the lobby until their shift began. In the lobby they joined a number of other second-shift aides who also had been told to wait there. 16 White explained to all present that she was simply enforcing a rule that had been in the policy book all along. She went to get the book to show them the pertinent paragraph but was distracted from doing so on seeing Mulder and Coffman in the parking lot placing fliers on the windshields of cars. She became excited, called them trespassers, and ordered two office clericals to retrieve the fliers, a task they promptly performed. 17 On April 2, having learned that another flier (wherein, among other things, aides were urged to "STICK TO- GETHER FOR A STRONG UNION") had been dis- tributed throughout the facility, White used the occasion to call another meeting at which she reiterated TLC policy in regard to distribution of literature. In addition she told the aides that they did not need a union to speak for them as her door was always open to anyone wishing to make complaints or offer suggestions; and when an aide asked if they would lose benefits and go back to minimum wage if the Union came in, she replied that ev- erything would be negotiable.18 Also, either then or back and legs of resident C. The bruises had been called to Scarffs atten- tion by aide Shirley Rogers who worked the morning (or first) shift. " Aides Terry Goodman and Coleman were among the group. They had been in the breakroom but were told to leave by a first-shift charge nurse, Ellen Yanny, who volunteered that "a lot of union activity was going on between shifts" and suggested they talk to White or Scarff about the matter. " Regarding the events described in this paragraph I have credited testimony of Hutchins, Tucker, and Coleman finding their accounts more plausible than claims by White and Scarff that the ongoing organizational drive had nothing to do with their decision to begin enforcing a claimed rule against premature arrival at the facility and that the office clericals acted on their own initiative in removing fliers from vehicles parked in the lot. 18 Hutchins and Tucker have White saying that pending negotiations wages would revert to the minimum required by law and all benefits would be lost. Among other reasons for not crediting their testimony, I note that Coleman makes no similar claim. Indeed, in her affidavit dated Continued 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD around that time Scarff told them that only a moron would get involved in the Union 19 The latter comment induced Tucker to drive to work on subsequent days with a poster prominently displayed in the "hatchback" window of her automobile reading. "Don't be a moron Join the Union." The organizational drive continued with signatures on union cards being sought throughout the facility by Hutchins, Coleman, Hibbard, and Tucker, the latter being especially open about doing so in the presence of supervisors On one occasion Hutchins and Tucker wore pin-type buttons bearing the legend "Woman's Place is in Her Union " However, they promptly removed the buttons on being reminded by Scarff of the rule against wearing sharp objects or dangling jewelry while on duty in resident areas. Six aides (Hutchins, Tucker, Minor, L. Phillips, Mark Rhodes, and Camille Offord) each wrote "Union" across the top of their timecards. About April 8 Bubin had occasion to talk to a number of aides (Hutchins, Tucker, Minor, Hibbard, and "an- other bath aide") in the dining room and/or the nurses' office .20 After telling them he sensed their dissatisfaction with his judgment in regard to the terminations of Mulder and Coffman, he proceeded to explain that as a supervisor he sometimes had to make decisions that were not "popular", and he exhorted them not to be "polar- ized" against him but instead to work "as an integral team unit " When his message elicited mainly silence, he concluded by assuring them that he would sue and seek punitive damages from any employee who continued to accuse him of selling narcotics and abusing residents In mid-April White called a meeting at the central desk and told the assembled aides that organizing activi- ty on behalf of the Union appeared to have died down. She thanked them for their support And, in response to continuing questions from aides, she told them that it was possible to retrieve signed union cards by phoning agents of the Board in Grand Rapids 21 E. Discharge of Zabonick Zabonick was fired on April 23 , 1982, at which time he had worked at TLC for 10 months . As noted, he at- tended an employee meeting on March 11 and another April 27, 1982, Coleman states "I do not remember anything being said about losing benefits" Also not credited are Hutchins' uncorroborated claims (1) that on separate occasions White and Bubm said that unioniza- tion would lead to a strike during which "strangers would be caring for our kids" and (2) that White told the aides that she would never allow a vote 19 Although Hutchins and Tucker both claim that Scarff used the word "moron" in a different context (i e , they quote her as saying to the assembled aides "We can get any moron off the street to do what you are doing") I view their claims as mere hyperbole in that connection, I note that this claim also is not corroborated by Coleman Further, I find it difficult to believe that as head nurse Scarff would so demean the value of services provided by all aides in her charge 20 See fn 7 21 Hutchins, Tucker, Coleman, and Goodwin all claim that White also told the aides that she could learn who had signed union cards by asking the Board agents White denies that claim, and I credit her Among other things, I note that Hutchins, who was the most affirmative in testifying in regard to the alleged additional comment, did not mention it when she described the meeting in her affidavit dated April 27 Neither did she there mention getting "swamped" immediately after the meeting by aides asking for their cards back, as claimed in her testimony on March 18, and promptly after each, acting on his own initiative, he informed Charge Nurse Bubm about what had transpired At the end of an authorized break on March 18, Za- bonick punched back in on both his own time card and that of aide Massey But instead of going back to work he returned to the breakroom where he resumed talking to Massey They were discovered, however, by Assistant Head Nurse Hassan She gave written warnings wherein, in addition to citing them for taking excessive breaks, she faulted Zabonick for a rule violation involved in punch- ing another's timecard and Massey for allowing him to do so. Although she knew the incident was serious enough to warrant discharge, Hassan felt that the warn- ings were sufficient punishment because both aides ap- peared to be contrite Also she was aware that another employee (aide Judy Barnum) had not been terminated for doing essentially the same thing For his part, Zabon- ick considered himself lucky not to have been fired On April 2, Zabonick approached aide Jeff Hibbard in the breakroom and asked for a union card. On receiving one he signed it and gave it back to Hibbard. There were a number of other aides present who might have seen him sign the card, including his hall monitor (Rhem) and Doug Breninger The latter also signed and returned a card to Hibbard. At the time Zabonick was concerned because' Hibbard, once a good friend, was no longer speaking to him, and he believes that was because Hibbard somehow had learned of his role as an informer The incident that led to Zabonick's discharge occurred on April 19. According to his own account, he was in the slab room about 8 30 p m giving a resident a tub bath when he was interrupted by Charge Nurse Williams who told him to give the resident a whirlpool bath in- stead. He told her that he had almost completed the tub bath, that the resident's care sheet specified only a tub bath, that it was nearly breaktime, and that he had one more resident to bathe Her reply was that "she still wanted him to do it" He took his regular 15-minute break at 9 p in without having given the resident a whirlpool bath. He is aware that some aides continue giving baths until 10 p m., but after his break, he chose to join other aides who were watching a television pro- gram .2 2 Shortly after 10 p in Williams gave Zabonick a writ- ten warning for failing to perform the assignment. On the following morning Scarff told Zabonick that he was suspended pending an investigation of the incident, and on April 23, having completed her inquiries, she in- formed him that he was discharged However, at his re- quest, she allowed him to resign in lieu of being fired. 22 Williams states that she told Zabonick to give the resident a whir- pool bath on three separate occasions during the shift, and that hall moni- tor Rhem responded to her inquiry as to whether Zabonick had time to give a whirlpool by stating she had seen him reading a book dust before and after his 9 p in break In light of Zabonick's own testimony, as re- ported above, I see no need for additional credibility resolutions in this matter PROVINCIAL HOUSE LIVING CENTER F Discharge of Tucker Tucker also was discharged on April 23, at that time she had worked at TLC for about 15 months. The inci- dent that occasioned her discharge occurred on Satur- day, March 20, and it involved the extensive and unex- plained bruises on resident C. mentioned in fn 15 above. According to Tucker she was alone in a room with residents 0 and C. on the evening of March 20 She had put C. on a porta-potty and then proceeded to attend to O About 15 or 20 minutes later she went back to C , lifted her from the potty to a standing position, and at- tempted to get her to walk a few feet to her bed. Tucker did this by using her own foot to "tap" first one foot and then the other of the resident, all the while urging her to walk But after one or two tentative steps . . we got unbalanced . and she went up against the wall . . she slid down as I held her, and we wound up on the floor . . I had a hold on her the whole time, and I stood up for a minute [then] I went down to pick her up and I looked up and [aide] Karen Elliott was standing there looking at me . I kind of looked at her like, "could you help me?" and [it appeared] she just wasn't going to give any assistance so I picked her up . and . sat [her] on the bed, she fell up to the front and I picked up her legs . . put up the railing and shut the door, and I proceeded to get . . [her, and the other resident ready]-for bed. Before tending to residents who, like C, were not nor- mally under her care, Tucker's practice was to review their care charts. But she does not recall an item entered on C 's chart wherein C.'s walking program had been discontinued as of September 23, 1981 During the inci- dent in question, however, she surmised that resident C. was not a walker Also, she was aware that a charge nurse was to be called promptly whenever a resident fell and that an incident report was to be filled out. But she did neither Another aide (Charles Fisher) claims to have wit- nessed the incident. He testified that he and Karen El- liott were alone in the room helping each other tend to C 's roommate Hearing a voice saying "You know you can help," he turned and saw Tucker guiding C. into the room At that point C. began to fall. Tucker made a "haphazard" and unsuccessful attempt to prevent the fall, and C sprawled out on the floor. Tucker then kicked C 's leg just below the kneecap repeating while doing so. "You know you can help." Fisher told her to stop the kicking and offered to help pick C. up. But Tucker re- buffed him, stating that she "could handle it." Fisher did not pursue the matter, and as he left the room he ob- served Tucker bend down, lift C. from the floor, and "shove" her into bed Although Fisher was aware of the rule that a charge nurse was to be called whenever a resident fell, he made no report because of another incident that occurred earli- er in the shift Resident D had wet herself in bed and he overheard Tucker tell D.'s assigned aide (Hutchins) that standard procedure was to leave D in the wet bed for half an hour. Intervening, he told Tucker that she was 165 wrong They exchanged "words," and Fisher left to complain to Charge Nurse Bubm The latter made no at- tempt to talk to Tucker Instead, he assured Fisher that Tucker's advice was wrong "to the best of his knowl- edge," adding that he would check into the situation with Scarff on Monday That experience, plus not want- ing to get into another argument with Tucker, led Fisher to opt not to report the second incident to Bubin. Scarff did not connect Tucker with resident C.'s bruises until several weeks later when Charge Nurse Williams told her of information she received in a casual conversation with aide Elliott Scarff then tried to get Elliott and Fisher to tell her what happened, but she was not successful until April 23 when they gave her written accounts that conform substantially with Fisher's testi- mony in this proceeding 23 Scarff relied on those ac- counts in terminating Tucker later that day for being abusive and negligent towards resident C As between conflicting accounts of events occurring on March 20, I credit Fisher's testimony over Tucker's. He appeared to be an impartial witness In that regard, I note that he was no longer employed by TLC when he testified, and his statement that he had never worked with or encountered Tucker before or after March 20 is uncontradicted 24 In addition, I find plausible and accept his reason for delay in reporting the incident in question to officials of TLC. Further, I find unpersuasive the General Counsel's claim that Fisher may have fabricated his story in order to retain, as depository of TLC funds, the banking institution for which he worked as a branch supervisor at the time he testified. Nor am I persuaded by his argument that charge nurse Williams' testimony that "No one had seen any bruises . ." belies heretofore credited testimony of White and Scarff (see fn. 15) that they saw extensive and unexplained bruises on C shortly after March 20 The quoted phrase at best is but a frag- ment of a patently confused answer of Williams to the General Counsel's question, "What did Karen Elliott tell you what had happened after that-after C had f -Allen to the floor?" Her answer was, "No. I asked her if C was hurt. No one had seen any bruises but I do not remem- ber the answer really." Taken in context, I think Wil- liams meant to say, "I don't remember Elliott's answer but she may have said that neither she nor Fisher saw any bruises on C. dust after C. fell." In any event the re- corded answer is ambiguous , and I do not accept an in- terpretation that suggests a conspiracy otherwise unsup- ported in the record. G Discharge of Coleman Aide Coleman was discharged on July 10, 1982. At that time she had been employed by TLC for over 3 years and she served as a hall monitor for most of that period. Shortly after February 27, 1982, Coleman received a 3-year evaluation in which she was given good or above average ratings in seven of eight listed categories. The 23 Elliott did not testify probably because, as suspected by Tucker, she went back to Jamaica shortly after quitting TLC on May 2, 1982 24 Fisher normally worked on the first shift and only on weekends 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD one category for which she received a below average rating was "dependability," and that rating was accom- panied by a notation indicating she had been absent a total of 23 days and tardy 8 times. The absences had been the subject of two written warnings by Scarf during 1981, each of which contained a reminder of TLC's policy that "more than one absence a month is ex- cessive." Despite those warnings Coleman's attendance record did not improve. As of the date of her discharge she had 19 absences during 1982, 4 of which occurred just prior to her discharge and under circumstances as follows: On May 25, Coleman submitted a written request for a vacation beginning on June 21 and extending through Thursday, July 1. Since she correctly calculated that she was due to be off on the weekend of July 2-4, approval meant that she would be off for 14 consecutive days. The request received prompt approval by Scarff despite the fact that, as of June 21, Coleman would have been entitled only to 5 vacation days with pay. On June 4, the duration of her vacation was extended by 3 more days when Scarff also approved Coleman's request to gain the weekend of June 18-20 by switching days off with two other aides.25 On June 17 Coleman did not report to work at 2:30 p.m. as scheduled. Instead, she phoned in at 3:50 p.m. and told a charge nurse that she would be absent that day because a doctor had given her "shots" that made her unable to work. TLC next heard from Coleman at noon on July 5 when she phoned in and told a charge nurse that she had missed a flight out of Baltimore on Saturday, July 3, be- cause "it was too early in the morning"; and she ex- plained that the only other flight she could take on her round trip discount ticket departed on the following Sat- urday morning. She did not call TLC until July 5 be- cause "she wasn't due back until that day." On Saturday, July 10, Coleman's immediate supervisor phoned and inquired as to whether she intended to report to work that day. Coleman replied that she was tired and preferred to remain at home. But on being urged to do so, she reported to TLC at 2 p.m. She was met immediately by Scarff who told her that her employment was terminated for habitual absenteeism. Coleman smiled and, on reading the termination notice, signed it and left. Another aide (Goodwin26) also was away on vacation during approximately the same period as Coleman. On June 30 she had her brother phone in and report her in- ability to be back at work on July 1 as scheduled because of "car trouble" she was experiencing in Atlanta. The message also indicated that she would be back " as soon as possible." She returned to work on July 4, 2 days late.27 Scarf asked her about the delayed return on the 25 Coleman claims she made this request only to accommodate the other aides. 26 As noted in fn. 13, aide Goodwin attended one or more union orga- nizational meetings. On April 17 she signed and gave back to Coleman a union card. 27 Goodwin had a scheduled day off on July 3 following day. She appeared to be satisfied with the ex- planation, and no discipline was imposed. Like Coleman, Goodwin had received two warnings during 1981 for ex- cessive absences. However, Goodwin had no previous absences during 1982. In light of what I regard as signifi- cant differences in their respective situations, I decline to find any unlawful discrimination resulting from the dis- parate treatment accorded Coleman and Goodwin. Goodwin also testified that, sometime after August 6, 1982, Coleman's name came up in a conversation she was having with a charge nurse (Myong Choi) in the break room, whereupon the following dialogue ensued: Goodwin: Yes, she used to be a hall monitor on C Hall. Choi: Oh, the one that got fired? Goodwin: Yes. Choi: Because of the Union? Goodwin: I don't know. Choi: Yes, because of the Union. In light of her earlier inquiry : "Because of the Union?" (Tr. 1141), I view Choi's asserted last comment as noth- ing more than speculation on her part. Although, as indicated above, a number of aides other than the alleged discriminatees (e.g., Hibbard, Minor, L. Phillips, Rhodes, Offord, and Goodwin) overtly support- ed the Union, they continued to be employed by Re- spondent as of the close of hearing-as did Hutchins al- though, at that time, she had been on medical leave for about 1 year. H. Respondent's Evidence Much of the evidence introduced by Respondent has been considered in connection with findings heretofore made. Based on credited testimony of its regional super- visor, Katherine May Williams, I make the following ad- ditional findings: Respondent acquired a number of nursing care facili- ties in Michigan on January 1, 1982, including the one here pertinent in Kalamazoo. Among other administra- tive changes put into effect at that time was a policy that made wage increases for employees dependent on the profitability of the particular facility at which they worked, i.e., unless and until a facility was being operat- ed at a profit, no raises would be given to employees working there. The nursing home in Kalamazoo operated profitably (+ $8367) during the month of January. On March 15, however, Williams received a printout that reflected a net loss (- $8242) incurred during February; and in a visit to that facility on March 18 she promptly advised White to tell the employees that raises (including automatic one's) would not be approved until the financial situation improved. As noted above, that message was orally com- municated at the next scheduled staff meeting on March 31. By September, however, operations again became profitable and the moratorium on wage increases ended. There is no indication of any discrimination in the ad- ministration of the moratorium. Williams also had occasion during the course of a visit to the facility on March 10 to examine a number of PROVINCIAL HOUSE LIVING CENTER records, including work schedules She found that staff- ing had become increasingly difficult because Scarff had been liberal in approving employee requests to have cer- tain days off That discovery prompted her to remind Scarff that approval of "request days" should be granted only when special occasions were involved such as doc- tors' appointments and family weddings , or when classes for professional training were being taken ; and she urged Scarff to advise the staff of that policy at the earliest op- portunity. As noted above, Scarff did so at the staff meeting on March 31 Here also, I discern no indication that the policy was applied in a discriminatory manner. Indeed, union activist Tucker's rerequest on April 12 "for Wednesdays off because of church services" was ap- proved promptly by Scarff, and three written requests by Hutchins for days off on April 15, May 28, and June 19 also received prompt approval even though no reasons for the requests were indicated thereon. Also, and as noted above, Coleman received quick approval of at least two requests for days off in connection with her ex- tended vacation in June and July Analysis Based on findings heretofore made I conclude that the discharges of aides Mulder and Coffman , as well as the "below average" rating given aide Hutchins, had nothing to do with any protected or union activities on their part. Indeed , activities of that kind are shown to have occurred at TLC only after those adverse actions were taken. On the other hand, the firings of aides Zabonick, Tucker, and Coleman took place after the organizational drive began But, as I view the evidence , that discipline would have been imposed regardless of the drive or their respective involvements . In that regard, and although it is clear that Respondent opposed unionization as a matter of policy, I discern no antiunion animus on the part of its supervisory personnel . Nor does it appear that it had a history of dealing less severely with employees involved in similar derelictions. Concerning violations of Section 8(a)(1), I find but one. That occurred on April 1 when Administrator 167 White and Head Nurse Scarff overreacted when aide Tucker entered the facility chanting "Union! Union! Union!" by telling aides arriving early for the second shift to wait in the lobby instead of the breakroom. The instruction patently was issued for the purpose of inhibit- ing communication between employees on different shifts concerning union matters in an area of the facility where unrestricted interaction and dialogue on other matters had previously been allowed. However, there is no indi- cation that the instruction was repeated or that employ- ees were prevented at any subsequent time from waiting in the breakroom until their shifts began, and those cir- cumstances , coupled with an apparent lack of antiunion animus on Respondent's part, induce me to view the inci- dent as an aberrant and de minimis violation for which a remedial order would serve no useful purpose . Compare, Pepsi-Cola Bottling Co., 211 NLRB 870, 872 (1974); Stumpf Motor Co, 208 NLRB 431, 433 (1974); and Hobart Corp, 228 NLRB 907 fn. 3 (1977). Regarding the remaining 11 violations of Section 8(a)(1) alleged in the complaint, I find that 10 are not es- tablished by credited evidence The 11th relates to White's remark to assembled staff on April 1 that they were to tell her right away if the union organizer again appeared in front of the facility; and I find that it did not create a violative "impression of surveillance of employ- ees' union activities" as alleged because they could expect to be observed if they chose to converse with the organizer in full public view immediately outside of Re- spondent's place of business . See Milco, Inc., 159 NLRB 812, 814 (1966), enfd. 388 F.2d 133 (2d Cir. 1968); Chem- tronics, Inc., 236 NLRB 178 (1978); and Emenee Accesso- ries, Inc., 267 NLRB 1344 (1983). CONCLUSIONS OF LAW With the single exception noted above , Respondent is not shown to have violated the Act as alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.]