Crestfield Convalescent Home/Fenwood Manor

328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Manchester Health Center, Inc. d/b/a Crestfield Convalescent Home/Fenwood Manor and New England Health Care Employees Union, District 1199, NUHHCE, AFL-CIO. Case 39-CA-2982 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 19 February 1987 Administrative Law Judge Thomas R. Wilks issued the attached decision. The Respondent filed exceptions, a supporting brief, and an answering brief.' The General Counsel filed' cross-exceptions, a supporting brief, and an answer- ing brief.2 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,3 and conclusions as • modified, and to adopt the recom- mended Order as modified. We agree with the judge that the Respondent violated Section 8(a)(1) of the Act by promulgat- ing, maintaining, and disparately enforcing an overly broad, discriminatory, and ambiguous no- union-solicitation/no-union-discussion rule on and after 5 February 1986.4 We also agree with the judge that the Respondent violated Section 8(a)(3) and (1) of the Act by enforcing the unlawful rule when it issued a warning to Carol Chesky on 5 February, discharged Chesky on 6 March, and issued a warning to Suzanne Starling on 6 March. The General Counsel excepts to the judge's fail- ure to find that the Respondent also violated the Act by issuing other warnings to Chesky on 10 February and 6 March. We find merit in this ex- ception. The Board has consistently found that an overly broad rule governing solicitation is invalid for all purposes, and that consequently any disci- pline pursuant to such a rule is unlawful.5 The i The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 The General Counsel's motion to reopen the record is denied 3 At one point in the judge's decision, he inadvertently referred to both Chesky's and Starling's discipline as occurring on 5 February The date for the discipline of Starling should read 6 March 4 All dates are in 1986 unless otherwise noted Member Johansen agrees that Brigadier Industries, 271 NLRB 656 (1984), is distinguishable and does not pass on that decision 5 Mesa Vista Hospital, 280 NLRB 298 (1986), Presbyterian/St Luke's Medical Center, 258 NLRB 93 (1981), enfd 723 F 2d 1468 (10th Cir 1983), A T & S F Memorial Hospitals, 234 NLRB 436 (1978), Times Pub- lishing Co, 231 NLRB 207 (1977) record shows that the Respondent relied on the above-referenced no-solicitation/no-discussion rule as the basis for its warnings to Chesky on 10 Feb- ruary and 6 March. Accordingly, we find that these warnings violated Section 8(a)(3) and (1). We also find merit in the General Counsel's ex- ception to the judge's failure to find that the Re- spondent's delay in bargaining over Carol Chesky's termination violated Section 8(a)(5) of the Act. The judge made no specific findings concerning the al- legation that the Respondent initially refused to meet and discuss Chesky's discharge with the Union, concluding only that the Respondent ulti- mately "acquiesced in the Union's request to bar- gain." A grievance about a discharge is clearly a mandatory subject of bargaining. The Respondent discharged Chesky on 6 March. On 10 March the Union first asked the Respondent to meet and dis- cuss the discharge. Additional written requests were made on 11 March and 24 March. The Re- spondent consistently declined these requests both orally and in writing. It was not until 11 April that the Respondent reversed its position and agreed to meet concerning Chesky's termination. According- ly, we find that the Respondent's initial refusal and resultant delay in bargaining, violated Section 8(a)(5).6 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Manchester Health Center, Inc. d/b/a Crestfield Convalescent Home/Fenwood Manor, Manchester, Connecticut, its officers, agents, suc- cessors, and assigns, shall take the action set,forth in the Order as modified. 1. Insert the following as paragraph 1(c) and re- letter the present 1(c) as 1(d). "(c) Refusing to meet and/or delaying in meet- ing with the Union to discuss an employee griev- ance concerning discipline and/or discharge." 2. Substitute the following for paragraphs 2(b) and (c). 6 We shall modify the judge's recommended Order to require that the Respondent cease and desist from refusing to meet and/or delaying in meeting with the Union to discuss an employee's grievance concerning discharge Because it is undisputed that the Respondent did eventually meet with the Union regarding the Chesky discharge, we find it unneces- sary to order any affirmative remedial action in this regard In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be comput- ed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts ac- crued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel', Corp, 231 NLRB 65l (1977) 287 NLRB No. 34 CRESTFIELD CONVALESCENT HOME 329 "(b) Rescind and remove from its records any reference to the discharge of Carol Chesky and the unlawful reprimand and warnings issued to her on 5 February, 10 February, and 6 March 1986, and to Suzanne Starling on 6 March 1986. "(c) Rescind any and all rules restricting employ- ee union solicitation and/or conversation which are not clearly, unambiguously, and nondiscriminatori- ly worded and which limit employees' union solici- tation and conversation to times other than work- ing time and to areas other than immediate patient- care areas and specifically identified areas where employee solicitation and conversation have an un- reasonable effect on patient care." 3., Substitute the attached notice for that of the administrative law judge. with interest, for any losses incurred by reason of her unlawful discharge. WE WILL rescind and remove from our records any reference to the discharge of Carol Chesky and the unlawful reprimand and warnings issued to her on 5 February, 10 February, and 6 March 1986, and to Suzannne Starling on 6 March 1986. WE WILL rescind any rules restricting employee union solicitation and/or conversation that are not clearly, unambiguously, and nondiscriminatorily worded and that limit union solicitation and con- versation to times other than working time and to areas other than immediate patient-care areas and specifically identified areas where employee solici- tation and conversation have an unreasonable effect on patient care. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT promulgate, maintain, or discri-_ minatorily enforce any rule, regulation, or other prohibition against employees who solicit on behalf of New England Health Care Employees Union, District 1199, NUHHCE, AFL-CIO, or any other labor organization, or who engage in union refer- enced discussions on our premises by means other than a clear, unambiguous rule limiting or prohibit- ing solicitation in immediate patient-care areas or other specifically identified areas where employee solicitation has an unreasonable effect on patient care, during employees' nonworking time. WE WILL NOT discriminatorily warn or repri- mand employees about or discharge them in conse- quence of violations of no-solicitation/conversation rules not in conformance with the immediate pre- ceding paragraph. WE WILL NOT refuse to meet or delay in meeting with the Union to discuss an employee's grievance concerning discipline and/or discharge. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Carol Chesky full reinstatement to her former position or, if it no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges pre- viously enjoyed, and WE WILL make her whole, MANCHESTER HEALTH CARE CENTER, INC. D/B/A CRESTFIELD CONVALESCENT HOME/FENWOOD MANOR Stephen T. Fanning, Esq., for the General Counsel. Rolland Castleman, Esq, of Manchester, Connecticut, for the Respondent. Kevin J. Doyle, of Hartford, Connecticut, for the Union. DECISION, STATEMENT OF THE CASE THOMAS R. WILKS, Administrative Law Judge. This case was tried at Hartford, Connecticut, on 14-17 July 1986. The unfair labor practice charge was filed by New England Health Care Employees Union, District 1199, NUHHCE, AFL-CIO (the Union), against Manchester Health Care Center, Inc d/b/a Crestfield Convalescent Home/Fenwood Manor (Respondent), on 20 March 1986, and later amended on 23 April 1986. The com- plaint was issued by the acting officer in charge for Subregion 39 on 2 May 1986. The complaint alleges that Respondent violated Section 8(a)(1), (3), and (5) of the Act by unilaterally implementing a discriminatory no-so- licitation rule; disparately and selectively applying a no- distribution/no-solicitation rule otherwise valid on its face; disciplining two employees and discharging one employee in retaliation for their membership in and ac- tivities on behalf of the Union; refusing to disclose infor- mation to the employee's designated bargaining agent; and refusing to meet and negotiate regarding the dis- charge of a bargaining unit member. Respondent's timely filed answer to the complaint denied that Respondent committed any violations of the Act, but admitted the commerce facts, the jurisdictional conclusion, the labor organization status and designated employee bargaining agent status of the Union, and the supervisory and agency status of Administrator Gary Spieker and Director of Nurses Alice Plante. At the trial, counsel for the General Counsel amended the com- plaint to allege, and Respondent admitted, the superviso- 330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ry and agency status of Rolland Castleman, one of Re- spondent's owners, Supervisor Nancy LaPoint, RN; Su- pervisor Dianah Kilhstadius, RN; Supervisor Christopher Naylor; Director of Nurses Joan Brownstein; Staff De- velopment Coordinator Sue DeBari, RN; and Sherry Lynn Balanger, RN. At the trial the parties stipulated to the statutory supervisory status of all Respondent's RNs and LPNs at all material times. At the trial all parties were given full opportunity to adduce relevant evidence. After the trial the General Counsel and the Respondent filed written briefs that were received by me on or shortly after 7 October 1986. On the entire record, and from my observation of the demeanor of the witnesses and the evaluation of their testimony as to internal and external consistency and ob- jective probability, and in careful consideration of the comprehensive and well written briefs, I make the fol- lowing FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT to or bargaining with the Union, in violation of Section 8(a)(1) and (5) of the Act? 4. Was aide Suzanne Starling disciplined and aide Carol Chesky disciplined and discharged in consequence of the unlawful discriminatory enforcement of the previ- ously unenforced solicitation/distribution rule, or the en- forcement of a new inherently discriminatory solicitation rule in violation of Section 8(a)(1) and (3) of the Act? 5. Regardless of the validity of the solicitation rules, did Starling and Chesky in fact breach these rules, or were they punished for false or pretextual, proffered rea- sons in retaliation for their particular union activities, or in general retaliation for other employees' general union activities in violation of Section 8(a)(1) and (3) of the Act? 6. Did Respondent breach its statutory bargaining obli- gations by refusing to satisfy the Union's request for rele- vant information necessary for bargaining, consisting of a current list of newly hired employees' addresses and in- formation relating to the termination of employee Chesky, in violation of Section 8(a)(1) and (5) of the Act? At all times material, Respondent, a Connecticut cor- poration with a principal office and place of business lo- cated in Manchester, Connecticut (its facility), has been engaged as a health care institution in the operation of a nursing home providing inpatient medical and profession- al care services for geriatric patients. During the 12- month period ending 31 March 1986, Respondent, in the course and conduct of its Manchester business oper- ations, purchased and received at its facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Connecticut, and derived gross revenues in excess of $100,000. It is admitted, and I find, that Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a health care institution within the meaning of Section 2(14) of the Act. II LABOR ORGANIZATION It is admitted , and I find, that the Union is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Issues 1. Has the Respondent failed to enforce a patently valid solicitation/distribution rule that it had previously "maintained," as an unpromulgated work rule prior to February 1986, when solicitations of all kinds were knowingly tolerated? 2. Did Respondent on 5 February 1986 commence en- forcement of its solicitation/distribution rule selectively and disparately by applying it only to prounion employ- ees, while nonunion-related solicitations continued to be tolerated in violation of Section 8(a)(1) of the Act? 3. Did Respondent on 5 February 1986 promulgate an invalid and discriminatory new solicitation rule ad- dressed solely to union activities without proper notice B. Facts 1. Background Respondent operates a geriatric nursing home and in- patient medical service facility consisting of physically connected buildings that house two divisions, one of which is called the Crestfield Convalescent Home and one of which is referred to as Fenwood Manor. Crest- field houses a maximum of 95 bedded patients who re- quire intensive 24-hour-a-day skilled nursing care. Within Fenwood, intermediate nursing care is provided for a maximum of 60 ambulatory resident patients who are able to assume a greater degree of self-care The entire facility employs on a three-shift basis a total of about 180-190 full- and part-time employees, including RNs, LPNs, aides, and service staff. The ownership of the facility was acquired in May 1982 by Rolland Castleman, Howard Dickstein, Josiah J. Lessner, Gary Mercer, and Terry Hesser. In certain liti- gation, including this trial, Castleman or the firm of Lessner, Castleman and Falkenstein has represented the Respondent. Gary Spieker, under license from the State Health Department, has served as administrator of the entire facility since August 1983. He is responsible for overall management. All department heads are responsi- ble to him. The highest licensed nursing personnel is Alice A. Plante, RN, who undertook the position of di- rector of nursing service (DNS) in April 1985 after having previously served as infection control nurse at Crestfield from February 1981. Prior to a hiatus she had been assistant DNS from December 1982 to March 1983. As DNS she is ultimately responsible for the care of the patients and the direction of the nursing staff. Subordi- nate to her are the various supervisors referred to above, including all RNs and LPNs The Union initially campaigned in 1983 to be designat- ed as employee representative for the LPNs and service and maintenance employees, but that effort was rejected CRESTFIELD CONVALESCENT HOME 331 in a Board-conducted election on 9 September 1983 in Case 39-RC-452. On 26 October 1984 the Union filed a new representation petition with the Board in Case 39- RC-555 wherein it sought to represent only the service and maintenance employees. It was successful in a Board-conducted election on 6 December 1984. It was not certified as designated bargaining agent until 1 Octo- ber 1985. Respondent thereafter sought to test the certifi- cation. On 21 October 1985 a majority of employees en- gaged in a union- sponsored strike that ended when the strikers returned to work on 5 February 1986. On 5 March 1986 Respondent notified the Union that it would comply with an intervening Board Order and that it would recognize and bargain with it. Negotiations for a collective-bargaining agreement commenced on 26 March 1986 and continued to the date of the trial. On the day of the strikers' return to work, they were addressed in a meeting conducted by DNS Plante whose remarks included certain restrictions regarding the dis- cussion of the subject of the Union by the employees. On 5 and 10 February and 6 March returning striker Chesky was disciplined for engaging in a union reference conversation in a patient care area On 6 March former striker Starling was similarly disciplined. On 6 March Chesky was discharged for, allegedly engaging in the same purported misconduct. Chesky, a certified nurses aide, had established a 6- year work record free of disciplinary action of any kind associated with patient care and graced with letters of commendations. She joined the Union in 1983 and solic- ited employee membership on its behalf by conducting organizing meetings and distributing union representation materials . She is conceded to be known to the Respond- ent as an extensive union activist. Starling is a certified nurses aide with over 5 years' service, a union member, and a strike participant. 2. The alleged 5 February discriminatory no- solicitation rule promulgation Spieker, as did,other witnesses, testified without con- tradiction that the strike had generated bitter reactions between strikers and nonstrikers, inclusive of vandalism. Without contradiction, Spieker credibly testified that Union Agent Paul Fortier had been the responsible rep- resentative of the Union regarding various dealings be- tween Respondent and the Union during the strike and concerning the return of the strikers, and that he and Fortier engaged in several conversations regarding the return of strikers initiated by Spieker out of his desire to effectuate a healing process and to avoid a disruptive impact on the patients. He testified that Fortier con- curred in Spieker's concerns, and specifically agreed with his suggestion-that a meeting be held between Re- spondent and all employees whereby they would be told that all employees are prohibited from engaging in "any discussions about what happened [during the strike], or union activities." According to Spieker, Fortier thought it was a "good idea." Fortier was not called to testify and thus did not contradict Spieker. Union Vice Presi- dent Kevin Doyle testified that he and Union Attorney John Creane attended "one such meeting" with Re- spondent's attorney, Allan Scheer, regarding the negotia- tion of a strike settlement agreement and the condition of the striker's return The totality of the General Counsel's attempt to rebut Spieker's testimony consists of the fol- lowing question and answer of Doyle: Q. Was there any discussion during that meeting of no solicitation rules? A. No there was not. The 'record does not support counsel for the General Counsel's assertion in the brief that Doyle testified that at this single meeting there was no talk of "reorientation meetings." More significantly, there is no contradiction that Fortier was an authorized representative on the sub- ject of the return of strikers and that more than one such negotiation transpired. The General Counsel argues that Spieker should be discredited because he had no notes of his conversation with Fortier and because of Plante's failure to corroborate Spieker. It was Plante who con- ducted the meeting on 5 February The General Counsel gave no indication at the trial or in the brief about why Fortier was not called to testify, nor why Union Attor- ney Creane, nor any other witness, was not called to rebut Spieker's testimony. Plante testified that during the strike the patients ex- pressed apprehension about the possible impact of the strike on their care. She testified that a decision had been made to conduct an employee meeting to "reorient" the returning strikers, "because we had, indeed, put in, some new rules" and' she consequently arranged for a series of such meetings on all shifts on the 5 and early on the 6 February. When asked whether a request came from "anyone". for such meeting she responded, "I heard, again, a rumor that the returning people requested a meeting." In cross-examination Chesky admitted that the strikers had requested that an orientation meeting be held and she was aware in advance that such a meeting would be held Plante testified that she drafted written "min- utes" of the statement to be read to the employees and that she followed it without deviation or improvisation. She testified that she drafted the document and showed it to Spieker for his approval and that he made no changes The General Counsel argues that because Plante is silent as to any directive from Spieker to conduct such meeting that I must discredit Spieker Had Spieker been contradicted by Fortier, or otherwise rebutted, Plante's failure to explicitly and clearly corroborate would raise serious questions about Spieker's credibility. As her testi- mony on direct and cross-examination stands, it does not constitute a necessary contradiction or inconsistency with that of Spieker whose testimony was not self-con- tradictory and whose demeanor gave no basis for inher- ent disbelief on this point I must credit Spieker that a responsible agent of the Union negotiated and gave ex- plicit agreement to the promulgation of a rule prohibiting employees from discussing in the facility either the strike or union activities. A copy of ^ Plante's purported state- ment to employees was introduced as Joint Exhibit. 5. It sets forth 17 different regulations dealing with a variety of work conditions, none of which are alleged to be uni- 332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lateral changes in work conditions except the first item that reads: There will be no solicitation or talk of union activi- ties in patient area or on work time, only on breaks or lunch time-if found doing so there will be an immediate warning given i Five General Counsel employee witnesses who,attended the meetings testified either, that'they could not recall or that in fact Plante did not refer to nor did she use the word "solicitation," but rather that she prohibited union talk in patient areas. Most of their recollections were vague, and many could not recall what else she said. To some degree the General Counsel's witnesses' testimony varied. Starling, for example, failed to recall not only that Plante referred to "solicitations," she also could not recall any reference to union talk,, but she only recalled that Plante stated "a few" changes in work rules, e.g., uniforms. Chesky also recalled that Plante referred to other restrictions relating to uniforms, eating, and drink- ing, etc. However, aide Carol Fritz only recalled the re- striction on union talk but could not recall a reference "to any other 'restrictions." Aides Esther Secondo and Paula LeBrec were silent as to-what other subject mat- ters were discussed. Thus, the General Counsel's wit-' nesses on this point were selective, generally vague, and uncertain, and somewhat inconsistent in their testimony. I credit Plante's more confident testimony that she read the statement as prepared. Whether that statement clear- - ly prohibits solicitations of other kinds as well as talk of union activities, or only prohibits solicitation of union ac- tivities is a matter for further analysis Although Plante testified concerning the longtime ex- istence of a solicitation/distribution rule, in cross-exami- nation she conceded that she made no explicit reference to; it on 5 February. She explained she had felt no need to do so, nor to refer to other types of solicitation, which she conceded might possibly upset patients, because at the point of the return of the strikers and in the context of their return it was urgent only to refer, to union dis- cussions. In direct examination she testified that on 5 February she was merely implementing longstanding policy. Her cross-examination reveals, however, that her intention was to convey a prohibition against union solic- itation and a discussion of union topics in any area at any time except for formal breaks and lunch periods. That is how the employees interpreted it, and that is, I find, the more reasonable interpretation, given the absence of fur- ther explication by Plante with respect to other kinds of solicitations, and the absence of a clear, conspicuous, continuing posting of a solicitation rule and its universal enforcement. 3. Respondent's prior solicitation/distribution policy On the purchase of the facility in May 1982, part- owner Castleman reviewed the predecessor's written policy manuals. Castleman testified that the old adminis- trative policy manual contained a solicitation/distribution rule, although the employee manual did not. Castleman ' Note that the word "solicitation" was used rather than solicitations testified that the rule contained in the old manual, which Respondent adopted, had also been posted in the facility. Subsequently, about 22 June 1983, motivated by develop- ments in Board law, Castleman testified that he effectuat- ed Respondent's modification of that rule as found in the administrative manual, and he testified that he drafted a notice to be posted in the facility that contained that same rule. It is stipulated that the administrative policy manual was modified to contain the revised rule. It is also stipulated that supervisors, but no employees, have access to that manual. The rule that was posted thereaf- ter, according to Respondent, but which posting is dis- puted by the General Counsel, is identical to that con- tained in the administrative manual and reads. Solicitation by an employee of another employee is prohibited while either person is on working time. Working time is all time when an employee's duties require that he or she be engaged in work tasks, but does not include an employee's own time, such as meal periods, scheduled breaks, time before or after a shift, and personal clean-up time. In addition, so- licitation is prohibited at all times in immediate pa- tient care areas. Employees are not permitted to distribute advertis- ing material, handbills, printed or written literature of any kind at all` times in immediate patient care areas or any other work areas of the Facility. The General Counsel concedes the validity of the lan- guage of the rule It is stipulated that the rule was not placed in the employee manuals to which every employ- ee has access. It is also undisputed that the rule was not promulgated in any written manner other than' posting. The General Counsel's witnesses, former striking aides Chesky, Fritz, Secondo, Starling, and Wilcox testified that during their employment at no time prior to the dis- charge of Chesky or prior to the strike did they observe a posted solicitation/distribution rule, nor were they ever made aware of the existence of such. Former employee, aide Caroline Hoffman, testified that she saw no posted solicitation/distribution rule and was aware of none during her tenure from April 1983 to September 1984. Sandra Cooksey, a former third-shift aide hired in July 1982, who had been discharged in December 1984, testi- fied she had seen no such rule posted nor was she spoken to about' "it. Chesky testified she saw no posted solicitation/distribution rule prior to her discharge, nor was she ever told of such. Second-shift aide Carol Fritz, employed since 1981, first observed the posted rule on an unknown date after the discharge of Chesky. Third-shift aide Paula LeBrec, hired in May 1983, testified that she never saw the notice until the day of the trial. First-shift aide Suzanne Starling, employed for 5 years, first ob- served the rule posted about 1 month prior to the trial. First-shift aide Tracey Wilcox, employed since February 1984, testified that she first observed the solicita- tion/distribution rule posted in the facility sometime in April after the Chesky discharge. However, second-shift aide Esther Secondo, employed since May 1984, testified that she first observed the posted notice at the timeclock, CRESTFIELD CONVALESCENT HOME 333 "when Carol Chesky began to have her problems with warnings . Castleman testified that on 23 and 24 June 1983 he conducted a series of meetings for the purpose of an- nouncing the modification of the solicitation/distribution rule and its subsequent posting He testified that he ful- filled that purpose and the rule was thereafter posted. Supervisory and management personnel testified about the posting of the rule Documentary evidence estab- lishes that Castleman did indeed conduct a series of meetings on those dates at which employees, several of whom testified as the General Counsel's witnesses, exe- cuted attendance sheets The substance of the meeting was not indicated on the face of the documents. In rebut- tal testimony, Chesky and Fritz acknowledged their sig- natures on the attendance sheets Chesky testified that there were frequent meetings conducted at that time, in- cluding "a lot of anti-union meetings." She had no recol- lection of what was discussed at the meeting she attend- ed on 24 June 1983, and reaffirmed her testimony of no knowledge of a solicitation/distribution rule prior to the strike. Fritz testified that she had no recollection of the discussion of the 23 June 1983 meeting she had attended, and no recollection of a discussion of a solicitation/- distribution rule and she reaffirmed her prior testimony. Her demeanor revealed a lack of certitude. Respondent's evidence concerning the actual modification of a prior solicitation/distribution rule and its codification on 22 June 1983 is essentially stipulated. Castleman's testimony concerning the drafting of the notice and its dating of,22 June 1983 is not refuted. Counsel for the General Coun- sel stipulated a copy of it into evidence as a copy of a notice Respondent claimed was posted, but he chal- lenged only its actual posting Although there are some minor inconsistencies in the testimony of some of Re- spondent witnesses, I credit them regarding the posting of the solicitation/distribution rule at some point. The duration is another matter. I was most impressed with the testimony and demeanor of Pamela Olenchak, RN, who had been employed by Respondent for only about 1 year. She appeared to be one of the most spontaneous, certain, dispassionate, and convincing witnesses of all who testified. Although her first recollection- of seeing that notice was not until she had been employed for 5 months, she vividly recalled reading the posted notice in January 1986 when she was in the process of reorganiz- ing all the bulletin boards. Furthermore, I find that ob- jective probability supports the conclusion that the notice was posted about the date that it was codified in the administrative policy manual Castleman was respon- sible for the codification. He was concerned about devel- opments in Board law regarding solicitation/distribution rules. Respondent was conducting "anti-union meetings" in the same time period according to Chesky. Castleman conducted a meeting almost simultaneously with the codification. It is extremely unlikely that in such context he did not take the opportunity to announce the modifi- cation of a rule that restricted solicitations in the facility, and to announce its posting. I find that he did. Administrator Spieker testified, without corroboration, that in late 1984 in the context of the Union's organizing efforts, he met with unidentified groups of employees on unidentified shifts and reminded them of the rule restrict- ing solicitations of all kinds, including union organizing efforts; and again did so twice in October 1985. Testimo- ny of Respondent's own witnesses leads me to conclude that despite the promulgation of the rule and assuming its reiteration during times of union organizing efforts, its actual posting at all bulletin boards was sporadic. Owner Dickstein, who makes visits to the facility of undisclosed frequency, observed the absence of the notice on at least two occasions, and he ordered Spieker to repost it on those occasions. Although Dickstein testifed to numerous and more continuous citings of the notice, Spieker, who, as administrator of 3 years, must have had a more fre- quent presence and greater attention to what is posted than an absentee owner, testified hesitantly and uncer- tainly when asked whether he had observed the posting: I have seen this notice posted. I don't exactly re- member any dates when I saw it. I believe it was sometime after I was hired. He testified that he saw it posted at three different loca- tions and, contrary to Dickstein, on only one occasion of unknown date, he posted it on his own initiative. Spieker's testimony provides no firm basis on which to conclude that the posting was continuous and conspicu- ous. Furthermore, Plante, who testified that she observed the posting throughout her employment periods at the facility, admitted that from December 1982 to March 1983 she was assigned "strictly" to the Fenwood facility, where she failed to observe any such posting during that entire period. Assistant administrator at Crestfield, Sherry Lynn Be- langer, testified that when she was first employed she no- ticed the rule, posted in 1983 near the Crestfield time- clock and in the employee dining room at Fenwood. When asked whether she observed its posting throughout 1983, she hesitantly testified: I recall seeing it when I was first hired. I don't recall going to it after that and really looking at the board or anything. She then failed to affirm its subsequent continuous post- ing. Finally Olenchak, third-shift supervisor who had been employed since July 1985, testified that her first awareness of any solicitation rule came when she saw it posted, on the bulletin board in Wing IV in January 1986, during a "house cleaning" of all bulletin boards. She had no recollection of being explicitly advised of the rule before then. I infer from her testimony that she observed its posting on only one bulletin board, and that its pres- ence on that board was such that even a newly hired su- pervisory nurse, keen on learning the policies of her new employer, did not become aware of the rule or its post- ing until she commenced a bulletin board reorganization I must also conclude that Spieker did not discuss the so- licitation policy with the third-shift employees in Octo- ber 1985, in light of Olenchak's belated discovery of it and apparent lack of awareness of the codified rule. Regarding Spieker's meetings in 1984 and 1985 where- in he discussed the solicitation rules, it is not clear on 334 DECISIONS OF THE' NATIONAL LABOR RELATIONS BOARD what dates they occurred, how many employees were in attendance, or whether the meetings were limited only to the first shift. His testimony on this point is vague, un- certain, uncorroborated, absent from his pretrial affidavit, and inconsistent with Olenchak's testimony I do not credit it. Although I find that the solicitation rule was posted, I must conclude that its posting was sporadic and of a nature that during substantial duration it was not readily observable by employees and supervisors alike. Further- more, even if I were to credit Spieker, its public reiter- ation occurred only' during periods of union organizing campaigns. Under these circumstances, the employees most reasonably accepted Plante's oral promulgation as the rule of precedence. 4. Evidence of past toleration of solicitations It is undisputed that prior to 1986 no employee was ever disciplined for engaging in solicitations in violation of Respondent's rules. Thus there was either complete compliance with it or violations were unknown to Re- spondent. It is clear that much solicitation did occur within the facility. They involved solicitations 'by the staff, including aides, nurses, and supervisors of one kind or another for the sale of a variety of items, i.e., candy, houseware, clothing, toys, baked goods, etc., as'well as for charitable contributions. An enormous amount of largely uncontradicted testimony was elicited by the General Counsel regarding incidents of solicitations by aides of aides, in and out of the presence of and aware-, ness of supervisors who, on occasion, were actively or passively involved in some solicitations while one or more of the participants were on "active duty." Howev- er, it is not clear in much of this testimony that "on duty" means anything more than having "clocked in." It is not clear in these instances whether the participants were engaged in active work functions, whether they were in the presence of patients, or whether they were merely on call waiting for summons by a patient, which is experienced largely at night . In many of the solicita- tions, the employees, although 'not on a formal "break," were not engaged in active work functions, but were uti- lizing idle spare time in between work tasks, not within the immediate exposure of patients. Sometimes this activ- ity took place at the nurses' station as when an aide on the third shift, Cooksey, testified she observed Charge Nurse Deptula filling out invitations to an off-premises sales solicitation party. Cooksey supplied Deptula with the addresses on request. The solicitation itself took place off premises. It is not clear from Cooksey's uncer- tain recollection just what tasks Deptula would other- wise have been performing besides being passively, on call for a patient's summons, "chatting," and possibly charting "a little." Houseware and cosmetic catalogues were frequently left at the nurses' stations for aides and nurses to peruse while they waited on a patient's call. One such catalogue was seen by aide Fritz in a patient's room. It bore the name of the noinsupervisor Fenwood housekeeper, but no actual solicitation was witnessed. Many times these sales solicitations took place at un- specified locations on the "wing." Other times it took place in clearly nonpatient areas such as the rooms used by or for the staff or by supervisors.. However, there were occasions of solicitations during work activities. On one occasion Cooksey was solicited to contribute to a gift for a coworker by Shift Supervisor LaPointe while Cooksey was obtaining certain work materials from the medical room, i.e., nonpatient storage room. Prior to Christmas 1984, about 6 p.m., LPN Aggie Rezman was situated at a nurses' station with a crystal ware catalogue from which she solicited sales from aide Esther Secondo who had been stopped there, after returning patients to their rooms from the dining room, by Rezman explicitly for the purpose of the solicitation. Two weeks later, Se- condo was interrupted during the course of performing "paper work" at the nurses' station by Rezman's demand for payment on a prior sale . Shortly after the strike, Secondo requested permission from Supervisor Diane Kilhstadius to collect money for the benefit of a coworker's ill mother, and was granted permission with no explicit allusion to any solicitation rule. However, she failed to testify that these solicitations were effectuated in violation of the rules other than she was "on duty" and solicited "all over" the facility. It is not clear that Kilhstadius was aware of the manner of so- licitation. On another occasion after the strike, Secondo engaged in another charitable solicitation while "on duty," and as she was near the nourishment room where supplies are stored about to obtain drinking water for a patient, she was asked by LPN Anna Mae Turrell how much money she had collected. Turrell thereupon con- tributed to the collection. She recalled that this occurred after she had seen the posted solicitation/distribution rule after the strike. Also after that posting, she observed aide Ray Pease while "on duty" displaying dolls to patients who were sitting in wheel chairs along the hallway. Pease sells these dolls to other aides. The incident oc- curred as Pease walked through the hallway with a doll in Pease's possession. A patient asked Pease the price and he told her. Secondo did not testify as to what work task Pease was performing, if any, nor that a solicitation for a sale had actually transpired, nor that any supervisor was present. On 10 May 1986, about 6 p.m., a time when aides are busy transporting patients to their rooms and there is much corridor traffic, Secondo observed at the nurses' station LPN Shirley Ayers collecting sales bro- chures and discussing the merchandise with other nurses. It is not clear precisely what the other nurses' work functions were supposed to be at that precise moment or whether patients were actually within hearing range. Aide Paula LeBrec, in March 1986, observed Easter cakes placed by an aide at the nurses'-station along with an order form. While in the "med" room she and Super- visor Olenchak discussed the price of those cakes while LeBrec placed linen in the room. Again there is no evi- dence that Olenchak was aware that sales were verbally solicited during employees work task performance or in immediate patients' presence. Similar testimony was ad- duced as to other items of sale left for display at the nurses' station and, on one occasion, in the med room, but without evidence of actual verbal solicitations during the performance of a work task in the observance of a supervisor. CRESTFIELD CONVALESCENT HOME 335 LeBrec testified as to a variety of benevolent contribu- tions participated in by supervisors, particularly Supervi- sor LaPointe, but was not specific about the work cir- cumstance, often indicating that the activity occurred in nonwork times, or during periods of nonactivity In one instance in 1984, LaPointe approached LeBrec and RN Lorraine Lenere while they were in the "rec room" while Lenere was "doing charts" and LeBrec was "doing nurses notes," while both smoked cigarettes. The solicitation had by then been completed, and LaPointe, who was responsible for it, merely informed them what she did with the money. Lenere appeared to the indirect beneficiary of the solicitation. However, the context ap- pears to be that of a combined smoke break and work task setting. On one occasion in 1983, LaPointe delivered to LeBrec purchase money from Howard Dickstein for Girl Scout cookies, which Dickstein had ordered from her in an unspecified solicitation while she was waiting for patients' calls. The delivery of money took place at the start of the shift as LeBrec was "setting up" her first rounds, i.e., planning her work agenda. Aide Tracey Wilcox testified also to the display of Easter cakes at the nurses' station in March 1985. The first time she noticed it was just after her clocking in at 7 a.m. and her arrival at the nurses' station where two RNs were discussing a patient' s status report. Wilcox, who should have also listened to the request, interrupted by remarking on the appearance of the cake. The nurse who was receiving the report interrupted it and told her the name of the aide who brought it in. Wilcox testified to the general presence of patients in the corridor where the nurses' station is located. Respondent's own witnesses indicate the frequent presence of patients in the corridors during the first shift, unlike the quiescent night hours. The sample cake remained on display for a week. An- other display Easter cake appeared in March 1986, at the same place, early in the morning. It disappeared by the end of the day Wilcox testified that on August 1984 at 12:30 p.m. Staff Coordinator/Director RN Sue Debari solicited a contribution for the benefit of a departing employee from Wilcox while she was on duty, i.e., at the nurses' station where she had gone to retrieve a document necessary for the work task she was performing Wilcox testified that patients generally were in the vicinity at that time but she had no specific recollection of this occasion. Of course, patients' rooms were in the immediate vicinity. Thus she was interrupted in the performance of her duties by a supervisory charitable solicitation. In October 1984, Wilcox was engaged on the first shift in Crestfield, in the transporting of patients to and from the dining room and supervision of their meals. When so engaged, she expressed to fellow aides the need for union representation. She was thereafter summoned to the office of the then director of nurses, Joan Brownstein, who told her to cease such union discussions because it was not appropriate. There was no reference to solicita- tion rules nor was any other apparent discipline effectu- ated. The, General Counsel presents testimony of this event as evidence of the nonexistence and/or nonen- forcement of the no-solicitation rule insofar as no disci- plinary warning was issued, as is prescribed for rule vio- lations. It is evident, however, that union solicitation in the presence of patients was discouraged but not pun- ished by the former DNS if it ceased. On 5 April 1986 LPN Charge Nurse Shirley Ayers so- licited the sale of Girl Scout cookies to Wilcox who was engaged in assisting a patient in the bathroom. Immedi- ately thereafter, Wilcox ordered the cookies at the nurses' desk from Ayers while she was in the process of writing patient reports. Thereafter, Ayers accepted pay- ment while organizing and preparing medications prior to patient distribution. Subsequent to observing the posting of the solici- tation/distribution rule after Chesky's discharge, Wilcox testified, again without contradiction, that about noon- time she observed the Fenwood housekeeper, Barbara Deveron, deliver catalogue sale items to aide Pease in the dining room as patients' meals were supervised in part by Pease and where she also accepted payment. Wilcox later observed the same delivered package in a patient's room. Wilcox had taken particular note of the incident because after Chesky's discharge the catalogues for this product had "mysteriously disappeared" from the facility. She described nonsupervisor Deveron and Pease as acting in a secretive manner regarding this de- livery and payment, whereas in the past Deveron openly solicited sales. There is no evidence of supervisory obser- vation of the incident. Wilcox testified without contradiction that on a week- end in March 1986, while at the nurses' desk about 4 p.m., she observed LPN Anna Mae Turrell interrupt her task of transporting a medication cart to sell a candy bar to the porter, in the vicinity of a patient who was seated in the corridor outside his room. In late April 1986 on the second shift, subsequent to Chesky's discharge and her observance of the posted rule, aide Fritz testified without contradiction that on the third shift she observed RN Shirley Ayers solicit a cata- logue sale from LPN Joyce Erickson near the Crestfield nurses' station immediately outside a patient's room as patients were being prepared for supper and as Fritz was wheeling a patient past them. Other patients were seated in the corridor. 5. Enforcement of the codified solicitation/distribution rule After Chesky's discharge, aide Secondo served as a member of the union contract negotiating committee that met with Respondent's representatives, including its chief negotiator, Attorney Allan Scheer. It is her credible and uncontradicted, corroborated testimony that at one such meeting when reference was made to Chesky's dis- charge, Scheer leaned across the conference table and stated to Union Vice President Larry Fox: ... in the past we have been very relaxed about this solicitation rule . . . we have allowed candy bars and Girl Scout cookies and whatever things people wanted to sell for charity . . . but as far as the union goes, we are not going to allow any dis- cussion of the union in the patient's facility, in this patients facility. 336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In Respondent's posttrial brief, Owner Castleman read- ily concedes that Respondent had "problems concerning violations of rules, including the no-solicitation/no-distri- bution rule within Respondent 's facility," although he also argues that any violations were "trivial." Respond- ent contends that having acquired knowledge of the fail- ure of its shift supervisors for the second and third shift to enforce its rules generally , it took steps to correct the situations by discharging Shift Supervisors Naylor and LaPointe. Administrator Spieker testified that he became aware of the supervisors' nonenforcement and actual breach of rules and discharged Naylor in early 1985 and LaPointe in January 1985. Olenchak replaced LaPointe in the summer of 1985 after a period of substitute super- visors. Yet she acquired her first awareness of a posted solicitation/distribution rule in January 1986, and could recall no reference to the codified rule in her hiring ori- entation discussions . Thus the only evidence of a verbal reaffirmation of the solicitation/distribution rule is found in Spieker's vague testimony as to those unspecified meetings with employees that I have discredited. There is no other evidence that Respondent took any specific overt actions to have the new supervisors reassert those neglected rules. Spieker insisted that he did not become aware of spe- cific nonenforcement of the no-solicitation rule on the second and third shifts until he heard the testimony at the trial He testified, "I was not aware of those specific violations , and it was my feeling that they weren't en- forcing any rules." Thus, in denying knowledge of spe- cific breaches, he admittedly assumed that all rules were not enforced. Evidence in the record also indicates that there was some inconsistency in Respondent's interpretation of the solicitation rule as well as its application Thus, as noted above, in the past, prounion discussions in the presence of a patient did not warrant a formal reprimand in com- pliance with Respondent's progressive discipline system. Castleman conceded in cross-examination that on one oc- casion DSN Plante ordered baked goods to be removed from the nurses' station without verbal or written disci- plinary warning to the employee who had placed them. Castleman construed the act of placing the cakes a mere attempt to solicit that desisted on request . However, this testimony reveals that the placement of the cakes at the nurses' station is currently considered to be an impermis- sible act. Yet, in light of the overwhelming credible testi- mony, I conclude that such conduct in the past was knowingly permitted by Respondent's supervisors, i.e, the display of items for substantial duration. DSN Plante, who is responsible for nursing supervi- sion, conceives the no-solicitation/no-distribution policy of Respondent much more rigidly than does Spieker, the administrator who is ultimately responsible for the over- all facility operation . According to Plante, the rule is to be applied equally and without variation to each shift, and she has never been instructed otherwise . Spieker tes- tified that enforcement application differs on each shift because the area of immediate patient care differs. He testified that an immediate patient care area is so consti- tuted by the actual presence of patients . Thus, on the day shift, the presence of patients in the corridors is frequent and those corridors become immediate patient care areas, whereas at night the corridors, as well as other multipur- pose areas , become nonimmediate patient care areas, some of which are utilized by the aides and nurses for formal breaks or informal breaks or lounging while wait- ing on a patient's call signal in between scheduled work tasks Spieker conceded that he never explicated this ra- tionale to the employees in any employee meeting or by any memorandum . He testified that he discussed this view with Castleman , but failed to reveal whether he did so with Plante to whom he testified he essentially de- ferred regarding operative disciplinary decisions al- though he must be apprised of them . There is no evi- dence that Plante's conception of the rule was explained to the employees. With respect to prohibited topics initiated by the pa- tients, Spieker explained that it is incumbent on the em- ployee to change the topic as soon as possible but that some discretion may be utilized as to when to disengage the topic. 6. Discipline and discharge of Carol Chesky a. The 5 February discipline Respondent disciplined and discharged Chesky for al- legedly willfully flouting its no-solicitation rule four times within a period of a month after her return from the strike. Respondent's "Employee Manual" sets forth on page 15 under "Terminations or Resignations ," 16 enumerated grounds for immediate termination without warning. None of these grounds refer to casual conversation or so- licitations . The section contains the following , reference to discipline. A warning system has been implemented . Supervi- sors are responsible for issuing warnings to employ- ees. Such warnings are then to be documented and submitted to the Administrator to become a perma- nent part of the employee 's file. One verbal and two written warnings constitute grounds for termination, at the discretion of the Administrator. There is no statement regarding what specific forms of conduct will warrant the issuance of a disciplinary warn- ing rather than immediate discharge . Under the subse- quent section "Personal Conduct" there is a generalized prohibition of nonprofessional behavior, e.g., brash or vulgar language or disclosure of patient confidence, but punishment for noncompliance is not specified . Finally, under the section entitled "Suggestions," there are 10 enumerated obligations, none of which pertain to solici- tations. Plante testified in conclusionary terms that on 5 Febru- ary 1986, first-shift aide Michele Geidel came to her with a verbal report that she had overheard Chesky talking to patient Russell Rice "about union activities," and that on Plante's request submitted her report in written form. Geidel, an employee since 9 December 1985, essentially corroborated Plante. However, Geidel testified that during the earlier orientation meeting that day Plante had explicitly instructed employees to report to her any CRESTFIELD CONVALESCENT HOME 337 kind of conversation about union ."during work time." This is inconsistent with Plante's own testimony about what she stated at the meeting She testified evasively and confusedly as to a conversation with two other aides that motivated her to make this report. According to Geidel, she solicited the opinion of these aides as to whether she ought to report "someone" for talking to her "about something we shouldn't discuss." Geidel's sketchy verbal and written report to Plante informed her that she overheard Chesky telling patient Russell Rice in his room during breakfast about the expe- riences of striking aides on the picket line, i.e., that they were paid, that they picnicked, they enjoyed tolerable weather conditions, and that strikers had "gab" sessions. She also reported that Chesky subsequently made a brief appearance in patient Thelma MacLaughlin's room and merely announced her return to work. She also disclosed to Plante that in the afternoon Chesky engaged in con- versation with Rice's visiting sister while Geidel was transporting Rice through the corridor, wherein she similarly talked about the strike. In her testimony she af- firmed the truth of the report, but could not recall any significant details of the afternoon conversation except that it related to a description of innocuous activity on the picket line that followed a casual greeting, much as she related to Rice. There was no representation made that Chesky's remarks were unsolicited, nor that they were disruptive or provocative nor solicitous of support or even sympathy for the Union. Plante testified that she thereupon summoned Chesky and "confronted" her with the substance of the cryptic report which Chesky denied by merely saying "Alice, I did not." Plante testified that she said, "Well I have it here in writing that you were- you had been overheard speaking of Union activities in Russell Rice's room," and that Chesky again, denied it Without further question or investigation, Plante gave Chesky a written "verbal warning . . . this would not be tolerated." The written explanation on the printed warn- ing form states: "Talking to patients R Rice and T. Ma- cLaughlin about union activities " As set forth at the trial Respondent does not contend that Chesky's conduct was in any way disruptive or unsettling to the patients. Rather, it contends that conduct in violation of the solic- itation rule per se is detrimental to the patient. There was, however, no explicit reference of the solicitation rules by Plante to Chesky either in the confrontation or in the memo. Furthermore, the per se policy is inconsist- ent with Spieker's concession that a certain amount of discretion may be utilized in disengaging from a conver- sation started by the patient Chesky testified that during the confrontation with Plante she denied the accusation that she had been "talk- ing 'union" but explained to Plante, who named patients Rice and MacLaughlin, that she had only briefly an- swered questions put to her by both of them, i.e., MacLaughlin asked if all strikers had returned and Rice, a particularly friendly patient, asked her about her chil- dren, whether she was glad to be back from the strike, how the other strikers were doing, and whether the Union treated the strikers well, to all of which she gave brief responses to both, and to Rice while assisting in im- mediate care I credit Chesky's testimony, particularly because it is not contradicted by, nor inconsistent with, Geidel's account, and was not rebutted to the extent it explains the context for Geidel's accusations. I fully credit Chesky that she protested these mitigating factors to Plante, as it is not manifestly inconsistent with the cryptic testimony rendered by Plante, and it is inherently most probable. I conclude that Plante not only failed to investigate the possibility of mitigating factors prior to the issuance of the reprimand, but rejected the proffer of such 2 b. The 10 February discipline The second reprimand issued to Chesky came in con- sequence of a report filed with Plante by aide Rosanne Coletto According to Plante, on an unspecified date Co- letto expressed reluctance and dislike of reporting Chesky for whom she expressed a liking. Plante did not testify to what Coletto orally reported, but rather she testified that on her request Coletto reduced the report to writing, on which basis Plante again confronted Chesky. According to Coletto, she was not asked to draft a statement until a day or two later. According to the written statement and Coletto's testimony, on Friday, 7 February, at 1.30 p.m during their joint performance of duties in a patient's room in the presence of two pa- tients, she and Chesky engaged in the following conver- sation After a general conversation initiated by Coletto, Chesky complained of the absence in her paycheck of some kind of Christmas bonus or raise that she asserted Respondent would be obliged to pay. Coletto's attempt to change the subject by alluding to someone having been disciplined for similar talk was greeted by Chesky with the revelation that it was she who had been repri- manded for talking to patient Rice despite the fact that she had merely answered his questions. Her written statement set forth that Chesky explained the circum- stances, which tracks closely Chesky's own testimony in regard to the 5 February discipline Coletto again changed the subject, he then explicitly referred to prop- erty damage. allegedly perpetrated by strikers, to which Chesky responded by alleging that nonstrikers recipro- cated in kind. Chesky then described in detail alleged vandalism by nonstrikers. According to her written state- ment, Coletto did not respond to that observation, but rather she explicitly asked Chesky to explain "What were you all fighting for." Chesky responded "for a Union " Coletto then expressed her feelings about union representation at Respondent's facility which were strongly negative. After Coletto expressed her disap- proval of the union representation, Chesky made no re- joinder and Coletto changed the subject As they were departing the room, Chesky commented that the strikers could walk out again if necessary. Coletto expressed dis- approval of shouting and name calling Chesky laughed and said, "that's part of it." Coletto observed the pres- ence in the corridor of a state inspector and urged 2 Plante's personal notebook entry of 8 February appears to refer to postdischarge conversations with Rice but, in the absence of any testimo- ny by Plante or Rice regarding such conversations, and because of the lack of clarity of the document itself, I find it to be of no probative value 338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Chesky to "shush" but Chesky said "its ok she belongs to" the Union. Coletto walked away. Coletto testified that her motivation in reporting the incident to Plante was that she was upset because of Chesky's allegation that nonstrikers perpetrated acts of violence and she "wanted to clear the air." Plante merely testified that Coletto stated only that she felt constrained to report Chesky. Plante testified that in her cogfrontation with Chesky on 10 February she told her that she had received an- other "complaint from an employee that she had been talking union activities," and that Chesky denied it, pro- testing that she had just received a warning with respect to the Rice incident. Plante immediately, without further inquiries or discussion , served Chesky with a prepared written disciplinary form that stated in handwritten nota- tion: "Observed talking in patients room with another aide about union activities. In violation of the no solicita- tion rule." It is not clear why Plante characterized Colet- to's report as a "complaint." Coletto testified that she re- alized that she herself was culpable. From her written report, it is clear that she encouraged a discussion by re- ferring to the Rice reprimand, by initiating the subject of property damage, by asking Chesky to explain the strik- er's motivation, and by proffering her own union antipa- thy. Such a report is more accurately characterized as a confession of provocation of union talk rather than a complaint of it. Indeed, on 10 February, Coletto received a written warning from Plante who told her only after she executed her report, ". . . only to be fair, I have to give you a verbal warning ." Coletto accepted it saying, "Fine, I was in the wrong as much as she was." Chesky testified that when Plante confronted her with another "complaint" she knew exactly to what Plante re- ferred. The testimony of Plante and Chesky is silent as to whether an explanation was elicited from Chesky. How- ever, Chesky failed to testify that she proffered any ex- planation to Plante. Chesky testified that a conversation did occur with Coletto in a patient's room in the presence of a patient, but that Coletto initiated the conversation by asking questions of her, including how long she had worked there, how long she had been involved in the Union, and why she thought a union was beneficial . Chesky testified on direct examination that she responded that she had al- ready been reprimanded and had no desire to discuss anything in the patient's room but that Coletto was wel- come to come and discuss union representation at an up- coming union meeting. In cross-examination, she denied making any reference to an unpaid Christmas bonus, or to striker violence or nonstriker violence, or any refer- ence to the presence of an inspector. According to her, it was Coletto who expressed curiosity about union repre- sentation . Despite all the denials of discussing topics de- scribed by Coletto, she admitted that for a period of time she did "talk about the Union" in front of the patient in response to Coletto's questions about it and then only later refused to talk further after she had responded to several questions. She did not elaborate the details or sub- stance of these responses. The admission is crucial in that it impairs credibility of her assertion that she did not want to talk about the Union at all in front of a patient and did not because she was previously warned for merely responding to a patient's questions about it. Yet she admitted responding again to such questions in front of patients. Coletto was not employed by Respondent at the time of the trial. A very quiet and subdued witness, on cross- examination Coletto exhibited much tension and defen- siveness and repeatedly volunteered that she was truth- ful. At one point in answer to no outstanding question she testified, "As I said, I have nothing to lose. I'm not there anymore." At the time of these crucial events, Co- letto had perceived her job status to be in jeopardy be- cause of her own inabilities. She testified, "I couldn't get my act together there . . . I couldn't keep up my full load of work there." She admitted in cross-examination conversing with former striker Tracey Wilcox about her work problems. Coletto was a nonstriker who had been called a scab and harassed as she crossed the picket line, and she admitted to having a lack of respect for "this particular" Union because of strike misconduct. At the time she reported Chesky she was concerned about her own job performance, and perceived herself to be vul- nerable. Thus she sought the advice of union bargaining committee member, aide Tracey Wilcox, regarding these perceived problems. Ingratiation with her employer by reporting the union instigators could possibly provide a bias for making a false report on her own initiative, if not at Respondent's behest. Once having made such a report, a bias to refrain from admitting it would counter- balance her apparent disinterest as a nonemployee. Future job references are not considerations to be taken lightly. However, Coletto is not now employed in the health care industry. If Coletto's report was contrived for the purpose of revenge for harassment, self-protec- tion, ingratiation, or at Respondent's secret instruction, its substance more likely would have been less revealing of her own participation and more incriminating of Chesky. Significantly, Chesky was not identified as having participated in striker harassment of Coletto. Moreover, counsel for the General Counsel himself elic- ited testimony from Coletto that she had conversed with Chesky after the reprimand, and on other occasions talked with another striker, in clear nonpatient areas, for the purpose of learning more about the Union, and she reported none of these conversations to Plante. Such conduct suggests that honest curiosity motivated her 7 February conduct rather than purposeful entrapment of Chesky. Her demeanor as a witness revealed that she was tense and defensive, but it also revealed that during the vast preponderance of it she was quickly responsive, without guile or calculation . It is not uncommon for even honest witnesses to perceive cross-examination as an impertinent hectoring refusal to accept the truth of their testimony and they thus become frightened, upset, and defensive. In contrast, Chesky's demeanor was ag- gressive and assertive to the point of combativeness in tone during cross-examination by Owner Castleman. In view of Chesky's admission and her inconsistency, in bal- ance of the foregoing probabilities and demeanor consid- erations, in view of Chesky's postdischarge admissions, discussed below, I credit Coletto. CRESTFIELD CONVALESCENT HOME c. The 6 March 1986 discipline and discharge of Chesky Chesky was allegedly involved in two more incidents of misconduct separately involving aides Martha Chatto and Laurine Gedraitis. Subsequent to the second repri- mand, on the occasion of an opening arising on the third shift, Respondent transferred Chesky to that shift in ac- commodation to her longstanding request for such trans- fer. The shift runs from 11 p.m. to 7 a.m. Gedraitis is now primarily employed in a nonhealth care business, but her income is supplemented by a sec- ondary job at another health care facility. She was em- ployed by Respondent from September 1985 until March 1986. She testified in cross-examination concerning the harassment she, a nonstriker, was subject to during the strike, including damage to her automobile and the paint- ing of the word "scab" on her house. She had refused to join the Union during her employment during which time she was a college student who had looked to her nurses' aide job as a temporary means of financial sup- port. Gedraitis testified that about 1 a.m. on 6 March, in the performance of her tasks, she entered the nourishment room in Wing II near rooms 41 and 45 where fresh water and ice for the patients is stored. She testified to the following. Subsequently Chesky entered and they conversed.3 Gedraitis had only seen Chesky previously "a couple of times" in the facility and believed Chesky did not even know her. However, Chesky stated to her that there were to be union meetings and that she felt Gedraitis should be made aware of it and "read off the date," to her.4 Chesky then stated that "they" were stupid to refuse to negotiate. Gedraitis made no comment but departed. Gedraitis testified that she had not wanted union rep- resentation before the strike, and that the harassment to which she had been subjected did not change her mind, nor did the "verbal aggravation" of prounion supporters, none of whom previously included Chesky. Prior to the return of the strikers, she spoke to her supervisors, Spieker, Plante, and Olenchak and expressed apprehen- sion of further prounion solicitations and her desire not to be "approached" again and was assured that she would "not have to put up with the aggravation any- more," and that if she was "approached," that "they wanted to know about it." On Chesky's reference to union meetings, Gedraitis testified in cross-examination: I was really very uncomfortable with this because I thought here we go again. More of this, and I had been told that I was not going to have to put up with it . . . the whole thing was just an aggravation with me. . . . I would not answer her [Chesky] be- cause I made an instant decision that I was not a Counsel for the General Counsel alludes to a purported inconsistency with her pretrial affidavit wherein Gedraitis estimated the conversation itself as occurring "about midnight " She explained it was between mid- night and 1 am and her estimation is approximate because she was not clock watching at the time The discrepancy is not significant. 4 In cross-examination, she explained that Chesky was not reading from any document and that the phrase "read off" is a kind of malaprop- ism often committed by her. 339 going to put up with anything else. I was there to work and that is what I was going to do.... Yes, I guess that you would say that I did carry some anger because when I first went in, there was a lot of different people that approached me about join- ing, and I am the type of person that when I say something I like to be heard, and I had verbalized that I felt that I was not interested in joining the Union. I had no interest at the time. I had nothing to gain, and I had nothing to lose. I did not know what was happening. This [union organizing] start- ed before I came, and I felt that should be suffi- cient. There is no evidence on which to conclude that Ge- draitis had held Chesky personally responsible for the strike harassment. Counsel for the General Counsel's at- tempts in cross-examination to elicit an expression of enmity or bitter resentment by word or demeanor was not successful. On the contrary, she appeared to be dis- passionate, objective, and convincing. After their conversation Gedraitis ascertained Chesky's identity and reported the incident to Olenchak, and told her that she had been assured that she would "not have to put up with this anymore." Olenchak assured her she was correct and requested that she draft a statement which she did at her break period about 5 or 6 a.m. and which was presented to Plante through Olenchak. The written statement essentially tracks her testimony with the addition that Chesky described the purpose of the meeting as that of determining bargaining objectives and that she told Gedraitis that she ought to attend it. The statement is dated, "March 6, 1986," and refers to the incident as commencing "this evening" about "12 midnight," i.e., early on the morning of 6 March. Martha Chatto has been employed by Respondent as a first-shift aide for 1-1/2 years. According to Chesky, she was a "union person" who signed a union card but did not participate in the strike. There is no evidence on which to conclude that Chatto harbored any animosity toward the Union or toward Chesky. Chatto engaged in a conversation with Chesky at 6:28 a.m. in a patient's room, room 22, Wing III, which she had entered to re- trieve certain equipment, "geri chairs," and where Chesky was preparing to wash the two patients present -therein. Chesky, who was assigned to that wing encom- passing room 22, testified that she did talk with Chatto, but at 6:10 a.m., 6 March, not 5 March, at the end of Wings III and IV in the vicinity of the recreation room. Chatto testified that she entered the room, noted the time on the clock therein, and was greeted with Chesky's comment that there was a union meeting scheduled at which the Union was to decide on its bargaining objec- tives, and that if Chatto expressed a desire to attend she would be notified. Chatto testified that she merely grunt- ed "an okay or yeah" and walked away because the em- ployees had been assembled on 5 February and "given a ruling of rules of what we were allowed to and not al- lowed to do, and one of them was talking about unions, whether we were strikers or nonstrikers." She referred to no other rules. She explained that it was her custom to arrive in advance of the shift start to retrieve "geri" 340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD chairs and to assemble them on Wing III. Chatto thereaf- ter prepared and executed a brief written statement that summarized the above incident but did not set forth de- tails, particularly the presence of patients. It was dated 5 March. She did not testify about her motivation for pre- paring it nor the date of preparation. Plante testified that she was first apprised of the Chatto incident and thereafter the Gedraitis encounter. Plante testified to the following sequence of events. Chatto appeared in her office and informed her that on the morning of 5 March, Chesky had told her about forthcoming union meetings, to which she grunted a re- sponse. Plante testified to no other details of what Chatto verbally reported. Chatto was instructed to draft a written description. Chatto thereupon immediately wrote out her sketchy report in Plante's presence. At the "same moment" Plante received an envelope containing the Gedraitis statement. Thereafter, she did not investi- gate. She did not make independent inquiry. She did not confront Chesky. She did not seek out context, details, or possible ameliorating circumstances. Rather, Plante went directly to Spieker and informed him that she had "two more complaints" about Carol Chesky. There is no evidence to characterize Chatto's report as a "com- plaint." Chatto's testimony suggests that she refrained from responding to Chesky because of Plante's earlier prohibition, not because she was upset or antagonized. Spieker's swift reaction was to solicit Plante's recom- mendation. According to both Plante and Spieker, he also raised no questions about the veracity, accuracy, or context of the alleged incidents described in those "com- plaints." Plante forthwith recommended discharge pursu- ant to Respondent's progressive discipline policy, and Spieker agreed without hesitation. This occurred about 9 a.m. According to Plante, she received the 6 March Ge- draitis statement at the same "moment" she was receiv- ing the Chatto statement, which was dated "March 5" and which referred to the incident as occurring on the date of the execution of the report. This discrepancy is not explained by Respondent's witnesses. I must credit Chesky that her conversation with Chatto did occur on 6 March. Plante testified that later in the afternoon of 6 March, she summoned Chesky from her home despite Chesky's protests that she had dust awakened. About 5:20 p.m. on 6 March, Plante confronted Chesky with two more "complaints" from employees that she had been talking in patient areas about union activities. Chesky denied the accusation and demanded the identities of the "complain- ers." On being told, she denied knowledge of the identity of Gedraitis. Plante testified: She said "I do not even know her," then in the next breath she said she is one of the girls we were told not to talk to "because we didn't know if she would go [report] back to management." Plante summarily rejected Chesky's protests of inno- cence, and asked her to execute a termination notifica- tion, which she refused, and threatened "to fight this." Plante is essentially corroborated by assistant DNA, Sherry Lynn Balanger. The disciplinary documents were prepared by Plante on 6 March. Both are the same printed form as the prior warnings. One dated "3-6-86," relating to the Chatto in- cident, has encircled the printed portion of the heading entitled "Employee warning" and the word "written" in the left upper corner similar to second earlier warnings. It states under "Remarks": "Soliciting union activities to staff members during working hours, in patient areas. 3/5/86." The date "3/5/86" appears to have been writ- ten over an erasure This apparent alteration was not ex- plained. The second document dated "3-6-86," has encircled the printed words "Termination Notice" and states "So- liciting union activities to staff members during working hours in patient areas 3/6/86." Chesky testified that an encounter with Chatto oc- curred 6 March at 6.10 a.m. in Wing III in the approach to the physical therapy room, not in a patient's room, and not in room 22, which was six rooms diagonally down the hall. She testified without contradiction that her assignment to Wing III, on the 11 p in. to 7 a.m. shift entailed an obligatory procedure of working with Lor- raine Lenere, the nurse on duty, with whom she per- formed nightly rounds and jointly visited patients' rooms to perform her duties. She testified without contradiction that these rounds commenced at 11.30 a.m. at room 22 and were repeated twice more and that only she and Lenere were assigned to Wing III on that shift. Chesky insisted that the only person she spoke to in room 22 was nurse Lenere. Her testimony that Lenere accompanied her on each of her scheduled visits to room 22 is uncon- troverted. She -testified that her only visits to room 22 were in execution of those three rounds. Chatto testified that the encounter occurred while Chesky was com- mencing the duties involved in round three in room 22. According to her, only two patients were present. Re- spondent did not call as a witness nurse Lenere, nor did Plante interview Lenere prior to the discharge. The General Counsel did not call Lenere nor any other wit- ness to corroborate Chesky about Lenere's presence. Chesky did not testify that there was no occasion for Lenere to have briefly left her alone in the room on that night to attend some other contingency. Her testimony described the normal routine and stated that on the night in question Lenere accompanied her on the rounds. According to_ Chesky, the Chatto incident occurred as follows. On the approach to the physical therapy room in the corridor, prior to the commencement of the morn- ing shift when Chatto was technically not "on duty," Chatto came to Chesky in an upset demeanor and posed a single question to her, i.e., what transpires next now that Respondent recognized the Union? Chesky merely briefly responded that the Union would have to formu- late its bargaining proposals at open meetings that all unit employees may attend. Chesky testified that she rec- ognized Chatto as a nonstriking aide and a "union person" who had signed a union card but chose not to strike. CRESTFIELD CONVALESCENT HOME With respect to Gedraitis, Chesky denied that any conversation occurred on 6 March and certainly none in- volving the topic of the Union. According to Chesky, during the discharge interview she denied the accusation that she had discussed the sub- ject of the Union in patients' rooms with two aides, and demanded to know their identity . Chesky testified on direct examination that she told Plante that she was un- aware of the identity of the informant whom Plante iden- tified as "Laurie." On cross-examination she admitted that she also protested to Plante that she had been fore- warned by a night-shift coworker not to talk to Laurine Gedraitis who was reputed to be an antiunion informer. Chesky further explained that she did not actually recog- nize Gedraitis because Chesky was new to the shift. She explained that Gedraitis was one of several she was warned about. Chesky testified that little was said about Gedraitis because Plante then asked, "What about Martha Chatto?" Chesky testified that she explained the incident to Plante as narrated above, and pointed out, to no avail, that Chatto had initiated the conversation and should be the subject of a warning. Chesky testified that she might have tried to talk to Gedraitis about union activities during breaktime, even if she had recognized her as a named informant . Thus the fact that Gedraitis had been identified to Chesky as an informant is immaterial because Chesky did not know her identity. Further, Chesky admittedly had no com- punction with respect to soliciting antiunion informants merely because of such designation. In cross-examination, Chesky admitted that in a post- discharge interview, on which a subsequent published newspaper article was based, she stated to the reporter that she was not asserting nor was it her position that she did not engage in conversations concerning union activi- ties with other employees in patient care areas , "but that no matter what the [Respondent's] rule," she possessed a constitutional right to discuss the union "even in front of patients." She admitted that she also stated in the inter- view to the reporter, They shouldn't be able to tell you when you can talk and when you can't talk. I don't know how you can't talk the union while you are working and trying to rebuild inside. In redirect examination there was no attempt to elicit a mitigating context for Chesky's utterances to the news reporter. Rather, Chesky testified that she presently rec- ognizes that lawful restrictions may be imposed on her speech "in front of patients," in the nature of a "valid so- licitation rule." However, she further volunteered the following statement: I'm not an attorney but I know that in a health field-where I have been taking patients for the last six years, there are things that you don 't talk to about the patients. That's medical records, anything that has to do with their condition, and anything that would harm them or upset them in any way. However, she further testified: 341 I feel as if the patients ask me a question or if they ask me a question and if I can answer that question, I will answer to the best that I can. The published and distributed employee rules of conduct handbook states on page 18, under "suggestions," number 6: Do not discuss problems or your problems with the patients or visitors. Be considerate as possible, but also say little as possible about these matters. No testimony was elicited that Chesky asserted to the news reporter that the Respondent or coworkers had falsely accused her of initiating union -referenced conver- sations with other employees in immediate patient care areas, nor that the incidents proffered as the bases for discharge did not arise from her admitted effort to re- build union support from inside. In view of Chesky's testimonial denials of accusations by her coworkers, I find her failure to make the same de- nials earlier to the news reporter to be inexplicable. The thrust of Chesky's postdischarge utterances constitute an admission that she did engage in union-referenced con- versations, of which she was accused, with coworkers in immediate patient areas as part of her efforts to rebuild union support among employees. Chesky had admitted to the reporter that she had been trying to rebuild support for the union after the strike. To augment union support, clearly it was helpful, if not necessary, to solicit non- strikers to the cause of union representation , particularly "union persons" who did not strike. Like Coletto, both Gedraitis and Chatto were nonstrikers, neither of whom Chesky then had reason to believe ought to be particu- larly avoided. Chesky admitted she believed she had a right to solicit union support, even in front of patients, and that she found it impossible not to solicit union sup- port when working . Accordingly, I must credit Chatto and Gedraitis about the substance and circumstances of the conversations. A week after Chatto's report , according to Chatto, she engaged in a conversation with Plante wherein Plante confronted her with Chesky's assertion that the conver- sation occurred near the physical therapy room and not in room 22. Chatto testified that she forcefully reaffirmed that it occurred in room 22. Although this incident is the only probative evidence that Plante engaged in any fac- tual investigation of Chesky's factual assertions, Plante had no recollection of it. 7. Verbal warning to Suzanne Starling Starling was assigned to the first shift . On 6 March in the performance of her duties on Wing I after exiting a patient's room, as she was approaching the "hopper room" to empty the patients' commodes, a nonresident visitor and lifelong acquaintance approached and greeted her and asked about the location of a certain patient's room. Thereafter, according to Starling, the visitor made certain polite inquiries about "how is everything?" and "what's new," to which Starling responded, "Well you know, the union is in now." Starling testified: 342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD And she said, "do you like it," and I dust turned to start to empty the commode because I knew I wasn't supposed to talk about it and I was in a hurry anyways, and I didn't want to take any more time to talk. , So, I made sure she knew exactly where the patient's room was, and then I heard Gary [Spieker] call me. Starling testified that Spieker summoned her to a private area and politely told her, "You know you are not sup- posed to talk about union or strike in front of patients. It might upset them, and a lot of patients were upset, by this." Starling testified that she responded that she agreed that the patients were indeed upset by it and that she would be very careful. However, she insisted in her testimony that no patients were nearby and she only ut- tered the words, "the union is in now." Spieker testified that he overheard Starling respond to the question put to her by the visitor, "You know we got the union in here. Things are really bad." He -testified that in the confrontation with Starling she protested that she spoke to the visitor, not to a patient. Subsequently, Spieker caused a "verbal warning," i.e., a first-stage doc- umented warning, to be issued to ' Starling through Plante. When Plante presented it to Starling, according to Starling, Plante asked what happened and Starling re- iterated her account, insisting that she merely stated to the visitor, "You know we got the union in here," and Plante responded that it was "enough." On further pro- test that she knew the visitor as a personal friend and no time was wasted, Plante stated, "Ok, don't let it happen again." Starling was presented with the warning but re- turned it unsigned after reading it Subsequently, she viewed a copy of her warning in her personnel file and testified that it had been changed from an accusation of "discussing union activities during working hours in a patient area" to "solicitation of visitors." Starling testi- fied that she was aware that it was improper for her to discuss the Union in the corridor because the demands of her duties simply provided no time for such discussion regardless of whether it was a visitor or a patient, and, secondly, she was aware of Chesky's discharge for such activities, although she insisted she had been aware of no prior solicitation rules. Plante testified that Spieker prepared the written "verbal" warning which she gave to Starling in a con- frontation wherein Starling did not denythe accusation that she was overheard telling visitors in the hallway, that "the union was in." She and Spieker both testified to and identified a single written "verbal" warning that was prepared and placed in the personnel files. That docu- ment is the same printed form entitled "Employee/- Termination" notice utilized in the warnings issued to Chesky. In the upper left corner is the entry "verbal." It states: "Solicitation of visitors in hallway of Wing I during working hours." If Starling is credited, it would appear that Respond- ent modified its initial reprimand to comport more with Starling's version of the facts. Yet, it is paradoxical that Plante and Spieker would dissemble where it would not appear to their apparent advantage, i.e., Starling's ver- sion portrays a more sympathetic and less arbitrary disci- pline. Credibility resolution on this point is not material. However, I credit Starling as to the substance of what she stated to the visitors and her account of what Spieker said to her in the corridor. It is in accord with Plante's testimony of the substance of what she confront- ed Starling with, and not inconsistent with Plante's ac- count of the actual confrontation, i.e., Starling was ver- bally warned by Plante for telling a visitor in the corri- dor that the "union was in," and not for the alleged com- ment "things are really bad," which was absent from the written accusation as well as from Plante's testimony. 8. Other postdischarge discipline On 17 March aide Barbara Deveron was given an identical "Employee Warning Termination" entitled printed disciplinary form as those described above. Under remarks was stated: Distributing avon products on work time against no-solicitation rule. Verbally explained this was un- acceptable In the upper left corner was enscribed the handwritten words "verbal explanation." The signator of the report and issuing supervisor was Assistant DNA Deveron. The General Counsel argues that "verbal explanation" is not equivalent to "verbal warning" which is the prescribed first written reprimand in the disciplinary scheme, and to which Chesky and Starling were subjected. Balanger tes- tified that the 17 March warning was the first written discipline she had ever issued since assuming duty as an assistant DNA in May 1985. She testified that she issued it because she had been informed that Deveron had been storing these products in a patient's room, and was also seen, by her carrying bags that bore the product legend. She testified, in effect, that there is no practical distinc- tion between the two phrases, and had no explanation why she used the word "verbal explanation. "'There.is no rebuttal evidence adduced by the General Counsel that the difference in phrasing on the reprimand has any practical effect with respect to the document's constitu- tion as the first written documentation of discipline in the progressive discipline leading to discharge. In March or,April 1986, DNA Plante ordered aide Lentocha to remove from the nurses' stations on Wings I and II, cake samples Lentocha was also ordered by a charge nurse to remove similar sample cakes from the staff dining room. She did not receive a formal warning. On a date sometime during Chatto's 1-1/2-year em- ployment, she engaged in conduct that warranted merely- an oral warning from Plante, but which the General Counsel suggests merited formal discipline if Respondent had applied its rules nondiscriminatorily. Plante at first admitted that she had been advised by the weekend su- pervisor that Chatto had left her work station and ab- sented herself "for some time" without notifying her su- pervisor. She testified that she confronted Chatto, who refused to explain her behavior In consequence, Plante gave her an undocumented oral warning. In further cross-examination, Plante was confronted with the employee manual reference in item six of dis- charge reasons, i.e., failure to notify a supervisor of ab- CRESTFIELD CONVALESCENT HOME 343 sence on a scheduled workday. She then changed her testimony, stating that Chatto did notify the supervisor that she was departing. At one point she also modified her testimony to indicate that Chatto at least proffered an unexplained "personal problem" as the reason for her departure Plante made no reference to item six that pro- hibits such departure without the permission of the su- pervisor. Because of Plante's shifting testimony, and its nonrebuttal, it is not clear whether Chatto's conduct was meritorious of immediate discharge. However, Plante's testimony reveals that, with respect to Chatto's conduct, some discretion was utilized in that there were no ad- verse effects caused by it. Thus, not even a written warning was issued. 9. Negotiation of discipline grievances and information disclosure refusal Kevin Doyle, union vice president and chief contract negotiator, testified, without contradiction, to communi- cations he had with Respondent's attorney and contract negotiator Alan Scheer regarding Chesky's discharge. On 10 March Doyle telephoned Scheer and engaged in a conversation wherein he attempted to reverse the Chesky discharge. Doyle also asked to meet and negoti- ate the discharge, and he asked for a disclosure of state- ments and evidence on which the discharge decision was based. Scheer promised to look into the matter. On the morning of 11 March, a second conversation occurred between the two representatives. Scheer stated Respond- ent's position which he reiterated in a letter addressed to Doyle on that same date. That position was that Chesky had been discharged because she "consistently violated the employer's long-established no solicitation rule," and that Doyle's representation of the facts, as told to him by Chesky, concedes that Chesky was "on working time in a work area when the conversation took place" which "in itself' justified the discharge. With respect to the bargaining and information request, Scheer stated Re- spondent's position, which he formalized in his letter as follows: We respectfully decline your demand that our client meet and discuss the termination further and that it provide you with statements of other em- ployees, all by dint of its recognition of the union as exclusive bargaining representative of the employ- ees. As you know , our client is obligated to meet and confer with the union with respect to wages, hours and other terms and conditions of employ- ment and to negotiate an agreement thereunder. One of the mandatory subjects of bargaining during the negotiating process is the establishment of stand- ards for employee discipline and a grievance proce- dure. At the present time, the employer enjoys the right to discipline and discharge employees who violate its rules so long as it does not do so in con- travention of the law. Collective-bargaining negotiations were agreed to commence during the week of 24 March. On 11 March, Doyle sent two letters to Spieker, one of which con- tained a notification of grievance over the Chesky dis- charge, a request to meet and negotiate the grievance, and a request for "all information including witnesses, written statements , copies of any and all policies which are alleged to have been violated and all other relevant information." The second letter requested certain infor- mation for purpose of contract negotiations, including, inter alia, "a list of all employees [sic] addresses who have been hired since the voting eligibility list was pre- pared." On 11 March Doyle filed an unfair labor practice charge with the Regional Director in Case 39-CA-2468 in which he alleged the discriminatory disciplining of Starling and the discriminatory disciplining and dis- charge of Chesky as violations of Section 8(a)(1) and (3) of the Act. On 20 March the Union filed the first charge in this case that alleged that the Employer violated Sec- tion 8(a)(3) of the Act by prohibiting employees from lawful concerted' activities, and violated Section 8(a)(5) of the Act by refusing to meet and discuss grievances. By letter dated 24 March, the Union again requested dis- charge and discipline grievance discussions to be en- gaged in at the forthcoming 26 March contract negotia- tion session, and also asked for a disclosure of Respond- ent's discipline "justification " On 20 and 24 March, Attorney Scheer, by letters, for- warded to the Union certain data it had requested, i e., employee manual, statements of employment policies, a list of unit employees categorized by dates of hire, wage rates, department, etc., as requested on 11 March. The 20 March letter refused to provide employee addresses that it characterized as an irrelevant "updated Excelsior list." On 25 March Scheer responded by letter to Doyle re- garding the Union's 24 March request, by declining to negotiate the disciplinary actions that he characterized as nonmandatory bargaining subjects. Castleman testified that Scheer consulted with him in formulating the grievance negotiation and disclosure de- cisions, and that he, Castleman, decided not to release the names of witnesses or their statements. Castleman testified that he had assumed that Plante had already dis- closed to Chesky the names of the employee informants, and that Scheer advised him that the grievances were nonmandatory bargaining subjects. In early April, Castle- man entered his appearance during the ULP investiga- tion as an attorney of record. He discussed the issues with counsel for the General Counsel, at that time the in- vestigating agent, who directed his attention to certain Board precedent. Castleman did so and concluded that Scheer was in error inasmuch as Castleman now conced- ed that the grievances were mandatory bargaining sub- jects. As to disclosure of documents, Castleman conclud- ed that Respondent was entitled by right to withhold evidence from the Board's investigatory processes, and that this right took priority over the union right to infor- mation necessary to collective bargaining. Castleman perceived that disclosure to the Union would effectuate disclosure to the Board's processes. By letter to counsel for the General Counsel dated 8 April, Castleman set forth the position, and also stated that Respondent was "adverse to bargain when District 1199 files false charges 344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with the NLRB at the same time it demands employer bargain over the issue" [sic]. Counsel for the General Counsel stated on the record that despite the language of the complaint, it is the Gen- eral Counsel's position that Respondent is not obliged to disclose to the Union the actual statements of its wit- nesses, and that on an undisclosed date he so advised Castleman during the investigation stage discussions. The General Counsel reaffirms this position in the brief citing Anheuser-Busch, Inc, 237 NLRB 982 (1978), and the General Counsel's own published advisory opinion, Ohio Metal Products, 113 LRRM 1087 (1983) The issue re- mains, however, as to the refusal to disclose the identity of witnesses. On 11 April Scheer addressed and forwarded to Doyle a letter wherein he stated that Respondent "was not nec- essarily averse to discussing the discharge" during con- tract negotiations, "it strongly objected to doing so as long as the negotiations were tied to the production of statements of other employees who were witnesses to Mrs. Chesky's rule violations." He also set forth explana- tions for the need for confidentiality "prior to hearing" to prevent intimidation, of Respondent's witnesses, and further stated the theory that disclosure of "statements" of witnesses prior to their testimony would effectuate a premature disclosure and thus denial of "due process and the right to effective counsel." Scheer proffered a will- ingness to "freely" discuss the discharge grievance during contract negotiations "so long as the Union's will- ingness to enter into such discussions are not conditioned upon the production of the witnesses' statements." The letter did not refer to a refusal to disclose identity of wit- nesses. In fact, there was no disclosure of witnesses' identity nor other relevant documentary information. On 17 April Respondent forwarded to.the, Union a current list of employees with their respective addresses, along with other information requested, e.g , job descriptions as provided, by Scheer in his 11 April letter. Doyle testified that he had received all unit information he had request- ed from the Respondent. . From the testimony of even the General Counsel's witnesses, the Respondent did engage in substantial dis- cussions of the grievance issues during at least three, if not more, contract negotiation meetings whereat Castle- man proffered a "full explanation" of Respondent's posi- tion and orally disclosed to the Union Respondent's per- ception of the facts on which it based its conclusions of misconduct, and explained its conception of what rules of conduct were breached, albeit without a tender of a written list of witnesses, their written statements, or other documents. On 21 April the Union withdrew its 11 March unfair labor practice charge and on 23 April it filed the amend- ed charge that incorporated the substance of its allega- tions regarding 8(a)(1) and (3) violations as well as the 8(a)(5) allegations in more specific language. tions are subject to the Board's policy regarding solicita- tion of union activities: We therefore hold that the Board's general ap- proach of requiring health-care facilities to permit employee solicitation and distribution during non- working time in nonworking areas, where the facili- ty has not justified the prohibitions as necessary to avoid disruption of health-care operations or dis- turbance of patients, is consistent with the Act. The Board in Intercommunity Hospital, 255 NLRB 468, 471 (1981), subsequently applied the general standard of immediate patient care areas to specific areas in a hospi- tal In so doing it guided itself by NLRB v. Baptist Hospi- tal, 422 U.S. 773 (1979), and balanced the medical serv- ice with employee organizing rights in such context. It held that prohibitions on solicitation in immediate patient care areas are presumptively valid and that solicita- tion may be legitimately prohibited in other areas if justified by the hospital as necessary to further pa- tient care. In that case such multipurpose locations as an open lobby and nurses' stations in open corridors were found to be areas of justifiable solicitation prohibition because of patient exposure. However, the Board took care to find that the prohibition was not knowingly discrimina- torily applied with respect to catalogue sales solicitation, which were conducted beyond the supervisors' knowl- edge. The Board will find that, absent the Respondent's proving a direct effect on patient care, an absolute prohi- bition on union-related solicitation or distribution of union literature at all times in all areas of a health care facility, including clear nonpatient or nonwork areas, is overly broad and furthermore is unlawful even when an incumbent union agrees to such restriction 5 The Board and court also have found that a rule that will "not tolerate" activity "disruptive of the atmosphere of patient care" to be "ambiguous and thus fatally over- broad and invalid," particularly in a context of shifting rules and disciplinary actions for their violation. Pres- byterian/St. Luke's Medical Center, 258 NLRB 93, 99 (1981), enfd. 723 F.2d 1468 (10th Cir. 1983). The Board's remedial order in that case proscribed solicitation rules "other than a clear unambiguous rule limiting or prohib- iting solicitation in immediate patient care areas or other specifically identified areas where employee solicitation has an unreasonable effect on patient care, during em- ployee's nonworking time " However, the mere absence of a valid no-solici- tation/distribution rule does not confer on employees the absolute right to discuss union matters during worktime Conclusions A. The 8(a)(1)-(3) Allegations In Beth Israel Hospital v. NLRB, 437 U.S. 483, 507 (1988), the Supreme Court held that health care institu- s Harper-Grace Hospitals, 264 NLRB 663 (1982), enfd 737 F 2d 576 (6th Cir 1984) See Administrative Law Judge Holley's discussion of the implication of the Supreme Court's decision in NLRB Y Magnavox Co, 415 U S 322 (1974), and his discussion of the aforecited state of Board policy that was adopted by the Board, and the conclusions of which were approved by the Sixth Circuit CRESTFIELD CONVALESCENT HOME 345 to the detriment of their work performance, and an em- ployer may legitimately penalize an employee for dis- cussing union matters during worktime on condition that such discipline is not disparately or discriminatorily ap- plied Brigadier Industries Corp., 271 NLRB 656 (1984). If discriminatorily applied solely against union activities without business justification, a no-solicitation rule be- comes violative of the Act. Premier Maintenance, 282 NLRB 10 (1986). I find that the Respondent did not, conspicuously and continuously maintain a solicitation/distribution rule, nor did it universally enforce it prior to February 1986. I conclude that the Union did agree to the promulgation of an absolute prohibition of union discussions by em- ployees, but I find that such agreement did not constitute a waiver of employees' rights under the Act as it consti- tuted an unlawfully broad, discriminatory, and ambigu- ous rule promulgated by Plante on 5 February in the ab- sence of evidence of a patient care need for its universal application to all areas. The rule was in fact one of the "new rules" which Plante announced and not merely a reiteration of past rules or past policy The rule, as an- nounced on 5 February and as subsequently enforced, encompassed a restriction "in patient areas or on' work time" exclusive only of formal break periods, of union solicitations, and also of any union-referenced conversa- tions whatsoever, even casual conversations wherein the word "union" was mentioned, regardless of location, re- gardless of impact on patients, regardless of whether dis- cretion dictated some response to patient inquiries, re- gardless of whether it occurred when employees are idle and merely waiting "on call" for a patient's summons, and regardless of extenuating circumstances. As the fac- tual findings disclosed, solicitations and casual conversa- tions during periods of idleness, other than formal breaks, during the performance of work tasks in nonpa- tient areas; in dual purpose locations, and often in patient care areas had been knowingly tolerated. Past rule viola- tions and other misconduct were previously considered in light of circumstances, e.g., no written discipline was accorded on cessation of the objectionable conduct, dis- cretion was accorded to an employee as to the point of disengagement from a discussion of an objectionable topic initiated by a patient, no discipline was accorded where undisclosed "personal problems" motivated an employee, and some consideration was given to the al- leged offender's point of view. Although after 5 February some effort was made to enforce the resurrected "codified" solicitation/- distribution rule, clearly there was no attempt to discour- age casual nonunion conversations during worktime With respect to the 5 February discipline issued to Chesky, the underlying incident cannot sensibly be char- acterized as a solicitation for union support. The offend- ing conduct consisted of a brief, innocuous response to a sympathetic inquiry from a patient with whom Chesky had had a long-term friendly, professional relationship. According to Spieker, Chesky was entitled to some dis- cretion with respect to the termination point of the sub- ject. Clearly a discourtesy or an abrupt nonresponse can be offensive and unsettling. The employee manual in "suggestion" number six calls for the use of discretion re- garding "problem" topics when it states "Be considerate as possible, but also say little as possible about these mat- ters " "Little as possible" implies discretion. Plante made no effort to investigate or consider whether Chesky utilized discretion and had said as little as possible under the circumstances Rather, acting in- consistently with the supposed policy as explained by Spieker, she summarily issued formal discipline, just as she ditl for Starling, on learning that some minimal refer- ence was made to "union." Chesky had no clear idea how to guide herself under Plante's 5 February rule when she was confronted with the patient's friendly curi- osity. Starling was subjected to the same ambiguity when questioned by a visitor. Respondent's position is that Chesky's 5 February con- duct was a breach of its solicitation rule. However, the Respondent does not contend that Chesky's conduct on 5 February was itself actually disruptive, harmful, unset- tling, or even, absent the general rule, improper. Thus she and Starling were automatically disciplined on 5 February for the perceived breach of an overly broad and ambiguous antiunion referenced conversation rule as promulgated by Plante. Inasmuch as that rule was overly broad, ambiguous, and disparately enforced, I find that the issuance of such discipline was violative of the Act. With respect to the 6 March discipline involving the Gedraitis conversation, Chesky's publicizing a union meeting could be, reasonably construed as solicitation that might have been justifiably prohibited by a valid nondisparately enforced, clear, unambiguous, and valid solicitation rule and a showing of necessity for applica- tion in a nonimmediate patient care area. None of those' exculpatory factors are present. Furthermore, there is no showing that the nourishment room on the third shift is an immediate patient area as defined by Spieker, nor is there a showing of necessity for the valid prohibition of solicitation in that area when such is not disruptive of the work routine. Despite Gedraitis' inner sensitivities, Chesky's brief announcement to Gedraitis was not shown to be disruptive, nor was it any more so than other toler- ated social conversation carried on in the performance of work duties; or the past tolerated commercial and benev- olent solicitations. In the final analysis, however, Respondent did not maintain a clear, conspicuous , and unambiguous solicita- tion rule at the time of discipline. The posted rule was at least augmented and confused, if not completely super- ceded by Plante's announced "new rules." In the past, Respondent tolerated nondisruptive solicitations concur- rent with the performance of work tasks being done by one or more of the aides I find that the Respondent did post the written, concededly facially valid rule about 5 February. That same rule however, had been posted intermittently in past years. The mere reporting was meaningless without a clear announcement of its univer- sal application and an explicit repudiation of past tolera- tion of its noncompliance. In the context of Plante's 5 February announcement, the net effect was that the em- ployees were informed that only union solicitations and conversations were prohibited during the performance of work duties. Although some effort was subsequently 346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD made to discourage other solicitations, there is uncontro- verted evidence of a continuation of toleration by LPNs and RNs of working time commercial or altruistic solici- tations and merchandise displays. Therefore, I find that Chesky was not subjected to a clear, conspicuous, unam- biguous, nondisparate, and no solicitation during work task policy at the time she received the March discipline for the Gedraitis incident. Accordingly, I find that the is- suance of a reprimand for her conduct was, violative of the Act. Regarding the 6 March and 10 February reprimands for the Chatto and Coletto incidents, the evidence, in- cluding Chesky's own testimony, convinces me that dis- ciplinary warnings were warranted. It was against Re- spondent's policy to engage in a discussion of a contro- versial topic, or employee problems in the presence of a patient that might tend to adversely affect the patient's tranquility. Both the Union and Respondent had agreed to the broad no-union-related discussion rule. Although that rule was unlawfully broad and ambiguous, it coin- cided with Respondent's longstanding valid policy re- garding conversational restraints when direct patient ex- posure is involved. On 10 February Chesky willingly re- sponded to Coletto's questions and accusations concern- ing strike violence. She vigorously defended the Union's position, all during the ministration of patient care. This conduct she later pronounced to be her constitutional right. Chesky's conduct on 6 March consisted of publi- cizing and inviting interest in a forthcoming union meet- ing while directly engaged in the care of aware patients. Although I find an absence of a valid solicitation re- straint on those occasions, I also find that her conduct was contrary to Respondent's preexisting policy concern- ing conversational restraints on aides engaged in direct patient care. There is an absence of evidence that Re- spondent disparately enforced that rule by tolerating similar discussions of controversial or provocative sub- jects by aides as they engaged in direct patient care. Therefore I find that Respondent was justified in issuing an appropriate disciplinary warning which, according to its disciplinary system, ought to have been the step-one verbal warning and documentation in the personnel file, and a second step first written warning. It is undisputed that Chesky was discharged pursuant to the automatic application of Respondent's progressive discipline system. In view of my finding that two of the reprimands were unlawful and violative of Section 8(a)(1) and (3) of the Act, a remedy of their expurgation is warranted. It is clear that Chesky would not have been discharged merely for the accumulation of two warnings. Therefore her discharge in direct consequence of two unlawful disciplinary warnings is itself violative of Section 8(a)(1) and (3) of the Act. There is insufficient evidence on which to conclude that Respondent was motivated by specific hostility to Chesky or Starling because of their union activities or by general antiunion animosity, despite the alacrity and sus- picious manner in which Plante and Spieker issued the reprimands.6 6 I find it to be of little probative value whether Owner Castleman was overheard making a deprecating comment about the former strikers to a B. The 8(a)(5) Allegations A failure to furnish the employees' designated bargain- ing agent with requested information that is relevant to the negotiations of, or administration of, a collective-bar- gaining agreement, or of use in carrying out its statutory duties and responsibilities may constitute a breach of an employer's good-faith bargaining obligations under the Act. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432, 435- 436 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152 (1956). Information concerning terms and conditions of employment within the bargaining unit is presumptively relevant and no specific showing of relevance is re- quired, Ohio Power Co., 216 NLRB 987, 991 (1975). In Associated General Contractors of California, 242 NLRB 891 (1979), enfd. 633 F.2d 766 (9th Cir. 1980), cert. denied 452 U.S. 915 (1981), the Board stated that a union is entitled under a "broad discovery type" standard to in- formation whereby it can judge whether to press its claims "in the contractual grievance procedure, or before the Board or courts, or through remedial provisions in contracts under negotiations." Accordingly, Respond- ent's alleged "right" to refuse to cooperate with a Board conducted investigation of an unfair labor practice charge concerning the same incident cannot take priority over the Union's discovery rights assuming the discover- ability of the material. The General Counsel concedes that statements of wit- nesses to the alleged employee misconduct relied on by the employer are not discoverable. The General Counsel has recognized that the Board has exempted these on the grounds that such discovery will not aid the arbitration and grievance process and that "premature discovery of the statements raise the risk that 'employers or in some cases unions will coerce or intimidate employees and others who have given statements ... ."' The General Counsel Advice Memorandum (Ohio Metal Products, Case 30-CA-7635, May 25, 1983, 113 LRRM 1087), citing Anheuser-Busch, Inc., 237 NLRB 982 (1978) That decision also stressed the confidential nature of such statements apart from harassment considerations. The General Counsel cites the earlier case, Transport of New Jersey, 233 NLRB 694 (1977), as authority for the princi- ple that the identities of witnesses to an incident for which an employee was disciplined are nonetheless dis- coverable. The Board itself subsequently recognized that principle in Anheuser-Busch, Inc., above, 237 NLRB at 984 fn. 5. In the earlier case the Board found the possi- bility of harassment of witnesses to be speculative and outweighed by the union's need of it. That case, howev- er, involved a bus driver who had been disciplined for an accident and the witnesses involved were not employees, but rather the passengers, whose identities were un- known to the union and thus inaccessible to the union for interview. coowner as the strikers returned to work I make no finding on this inci- dent which at most is evidence that Respondent had an unfavorable opin- ion of the judgment of employees who joined the strike In the same al- leged comment, Castleman also recognized the strikers' rights and status as employees CRESTFIELD CONVALESCENT HOME 347 In Columbus Products Co., 259 NLRB 220 (1981), the Board found reliance on Transport of New Jersey, above, to be misplaced where the substance of employees' ac- counts were conveyed to the union by the employer and when the union had access to employees . It found that the union had no need of witness identities. In this case the detailed substance of the alleged misconduct was orally conveyed to the Union during the course of sever- al bargaining sessions, as was the substance of the Re- spondent's position regarding its solicitation rules that were posted and forwarded to the Union . Regarding the names of patients involved, Chesky was confronted with these. Concerning the first incident she was aware that only aide Geidel was present with her. Regarding the 10 February incident, Chesky testified that she was aware of the patient involved and the name of the aide , Coletto. Concerning the events of 6 March, Plante told Chesky that the employee informant was Chatto and told her the identity of the location, i.e., the patient's room. With re- spect to the Gedraitis incident, although on direct exami- nation Chesky testified that Plante merely referred to an aide called "Laurie," she admitted in cross-examination to a specific reference to Lorraine Gedraitis during the confrontation. Thus, the Union was provided with the names of the employee informants and the patients in- volved by virtue of Plante's confrontations with Chesky. Furthermore, because of the factually confined nature of the incidents, it is clear that there could have been no further employee witnesses, and even if there were others the Union had access to them . From these facts I conclude that the Union had no need for a formal identi- fication and documentation of witnesees or other data in order to pursue a grievance concerning the Chesky disci- pline and discharge . I find that Respondent's refusal to perform a needless act is not indicative of bad-faith bar- gaining. Because Respondent orally disclosed fully its ra- tionale for the discipline to the Union and acquiesced in the Union's request to bargain concerning it, short of dis- closure of the written statements , I find that Respondent did not fail to bargain in good faith concerning the disci- plining of Chesky and/or Starling. With respect to the 11 March request for a current list of employees' addresses requested by the Union with other information, there was a delay that resulted in the receipt of that information on 17 April, about 20-35 days later, after prompt receipt of all the other information re- quested, including lists of employees by dates of hire, wage rates, department, etc., and employee manuals and statements of employee policies, including the no-solicita- tion rule. Attorney Scheer characterized the request for addresses of newly hired employees as an "updated Ex- celsior list," and "not relevant to bargaining." Subsequent to Owner Castleman's participation in the direct legal representation of Respondent in early April, several in- correct notions of Respondent's legal obligations were corrected. On 17 April the "updated Excelsior list" was submitted to the Union with other information pursuant to an oral request made by the Union at the 14 April bargaining session. Clearly the current list of employees by address is rel- evant and necessary in order for the Union to fulfill its statutory role as bargaining agent. The General Counsel takes the position that the tardy compliance with a re- quest for that information constitutes bad faith as defined by the Act. The General Counsel cites several cases to the effect that ultimate compliance does not cure a bad- faith refusal to supply requested relevant bargaining in- formation. Those cases, however, clearly delineate a bad- faith refusal, and a lengthy, injurious duration before ulti- mate compliance, i.e., 6 months to a year. Coalite Inc., 278 NLRB 293 (1986); and cases cited in Dayton Power & Light Co., 267 NLRB 202 (1983). I find that the facts of this case are distinguishable and fail to support an inference of bad faith. The facts rather reveal that in the midst of complying with other infor- mation, one of Respondent's counsel made an incorrect judgment on the relevance of this bit of information, which he subsequently corrected, with other incorrect perceptions of bargaining obligations . He did so when the request was reiterated , and most probably explained, at the bargaining table on 14 April . This kind of tempo- rary misjudgment does not warrant a finding of unlawful conduct worth remedying by formal findings and reme- dial order, particularly when the duration of nondisclo- sure was so brief and noninjurious. Concerning the allegation that the Respondent breached its bargaining obligations by the unilateral pro- mulgation of a new solicitation rule on 5 February 1986, I find that it is unsupported by the evidence. My factual findings disclose that the Union was notified in advance, discussed the rule, and agreed in advance to its promul- gation by virtue of the conduct of its authorized agent. Accordingly, I find that Respondent did not violate Sec- tion 8(a)(5) of the Act as variously alleged in the com- plaint. CONCLUSIONS OF LAW 1. The Respondent, Manchester Health Center, Inc. d/b/a Crestfield Convalescent Home/Fenwood Manor, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and a health care institution within the meaning of Section 2(4) of the Act. 2. New England Health Care Employees Union, Dis- trict 1199, NUHHCE, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) by promulgat- ing, maintaining, and enforcing solely against union or other protected concerted activity of employees an overly broad/vague and ambiguous no union solicita- tion/discussion rule on and after 5 February 1986. 4. Respondent violated Section 8(a)(3) and (1) of the Act by enforcement of the above-described rule by disci- plining employees as follows: Carol Chesky-verbal warning, 5 February 1986, discharge, 6 March 1986 Suzanne Starling-verbal warning, 6 March 1986 5. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Except as specifically found above, Respondent has not otherwise violated the Act. 348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in unfair labor practices, I recommend that it be directed to cease and desist therefrom, and take certain affirmative actions necessary to effectuate the policies of the Act. Having found that Respondent discharged Carol Chesky in vio- lation of Section 8(a)(3) and (1) of the Act, I shall rec- ommend that Respondent be ordered to offer her rein- statement to her former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to her seniority or other rights and privi- leges previously enjoyed, and to make her whole for any loss of earnings she may have suffered as a result of her unlawful discharge by paying her a sum equal to what she would have earned, plus interest. Backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner described in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Having found that Respondent unlawfully reprimand- ed or warned Carol Chesky and Suzanne Starling, I shall recommend that Respondent be ordered to rescind those actions and remove them from its records. It should also be ordered that the status of Chesky's lawful warnings of 10 February 1986 be designated as her first verbal warn- ing, and her lawful warning of 6 March be designated as her first written warning according to the Respondent's progressive discipline system. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed7 ORDER The Respondent, Manchester Health Center, Inc. d/b/a Crestfield Convalescent Home/Fenwood Manor, Manchester, Connecticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promulgating, maintaining, or discriminatorily en- forcing any rule, regulation, or other prohibition against employees who solicit on behalf of New England Health Care Employees Union, District 1199, NUHHCE, AFL- CIO or any other labor organization or who engage in union referenced conversations on its premises by means other than a clear, unambiguous rule limiting or prohibit- ing solicitation and conversations in immediate patient care areas or other specifically identified areas when em- ployee solicitation or conversation has an unreasonable effect on patient care, during employees' nonworking time. (b) Discriminatorily warning or reprimanding employ- ees about, or discharging them in consequence of, viola- tions of no-solicitation/conversation rules not in con- formance with item 1(a) above. '(c) In any like or related manner' interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Carol Chesky full reinstatement to her former position or, if it no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole for any losses incurred by reason of her un- lawful discharge in the mannner set forth in the remedy section of this decision. (b) Rescind and remove from its records any reference to the discharge of Carol Chesky and the unlawful repri- mands and warnings issued to Carol Chesky on 5 Febru- ary and 6 March 1986, and to Suzanne Starling on 6 March 1986; and designate in its records Carol Chesky's lawful warning of 10 February 1986 as her first verbal warning and her lawful warning on 6 March 1986 as her first written warning. (c) Rescind any and all rules restricting employee union solicitation and/or conversation that are not clear- ly and unambiguously worded and that limit employees' union solicitation and conversation to times other than working time and to areas other than immediate patient care areas and specifically identified areas when employ- ee solicitation and conversation have an unreasonable effect on patient care. (d) 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. (e) Post at its Manchester, Connecticut facility copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the officer in charge for Subregion 39, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the officer in charge in writing within 20 days from the date of this Order what steps have been taken to comply. For the purpose of determining or se- curing compliance with this Order, the Board, or any of its authorized representatives, may obtain discovery from the Respondent, its officers, agents, successors, or as- signs, or any other person having knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States court of appeals enforcing this Order and may be had on ° 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 8 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 " CRESTFIELD CONVALESCENT HOME 349 any matter reasonably related to compliance with this Order, as enforced by the court. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not spe- cifically found.