Parke Care Centers, Inc.

710 DECISIONS OF THE NATIONAL LABOR, RELATIONS BOARD Parke Care of Finneytown, Inc. d/b/a Daly Park Nursing Home, a Subsidiary of Parke Care Centers, Inc. and Gwen Herald. Case 9-CA- 23144 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 19 December 1986 Administrative Law Judge Bernard Ries issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs. The General Coun- sel filed a motion to strike portions of the Respond- ent's brief to the Board in support of its excep- tions,' and the Respondent filed an answering brief to the General Counsel's exceptions. 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, 2 and i The General Counsel filed a motion to strike those portions of the Respondent's supporting brief that refer to material not introduced into evidence at the hearing The General Counsel also objects to the receipt of Exh I of the Respondent's brief that was submitted under separate cover by letter dated 16 January 1987 on-the ground that the exhibit was not offered into evidence during the hearing We grant the General Counsel 's motion and disregard the portions of the Respondent's support- ing brief which pertain to material that is not in the record We further disregard Exh I of the Respondent's, supporting brief, inasmuch as it is a document which was not offered into evidence at the hearing and is therefore not in the record Machinists District 751 (Boeing Co), 270 NLRB 1059 (1984) - 2 The Respondent has excepted to some of the judge 's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In recommending dismissal of the 8(a)(1) allegation relating to the changes in Gwen Herald's working conditions , the judge inadvertently referred to Sec 8(a)(3) Only an 8(a)(1) violation was alleged and is dis- missed In addition, the judge inadvertently omitted the jurisdictional facts concerning the Respondent It is alleged in the complaint and the Re- spondent admits in its answer that Parke Care of Finneytown , Inc is an Ohio corporation with an office and principal place of business in Read- ing, Ohio The corporation has been engaged as a health care institution in the operation of a nursing and convalescent facility at Cincinnati, Ohio, and has derived gross revenues in excess of $250,000 in the course and conduct of its business during the past 12 months The Respondent also admits that in the course and conduct of its operations , products, goods, and materials valued in excess of $10,000 have been purchased and received at its Cincinnati, Ohio facility from points directly outside the State of Ohio Finally, the Respondent admits it is now, and has been at all times material to these proceedings , an employer engaged in com- merce within the meaning of Sec 2(2), (6), and (7) of the Act and a health care institution within the meaning of Sec 2(14) of the Act The judge's finding that the Respondent is an employer engaged in commerce within the meaning of the Act is, therefore, supported by the record conclusions and, to adopt the recommended Order as modified. ' The judge found that the Respondent did not violate Section 8(a)(1) of the Act when it reduced employee Gwen Herald's workweek for talking to other employees about the termination'of employee Gail Davis. We agree with the judge's recommen- dation to dismiss the 8(a)(1) allegation relating to the changes in Herald's working conditions. On 9 May 19863 employee Davis was informed of her termination. On 12 May some employees asked Herald about Davis' discharge. Herald said that the discharge was "unfair" and that it was a shame Davis could not hire a lawyer and fight it. When another employee remarked that Davis would lose a legal .fight to the Home's wealthy owner, Herald agreed and said she hoped 'Davis would at least be able to receive unemployment compensation. On 15 May Herald was informed that she was being transferred to the day shift and that her schedule was being reduced from 5 to 3 days per week. The judge found that Herald's transfer and the reduction of her workweek was due "to her con- duct, with respect to the termination of Davis on 9 May." The judge, however,' dismissed this com- plaint allegation, concluding that Herald's conver- sations regarding the Davis discharge did not con- stitute concerted activity under Meyers Industries, 281 NLRB 882 (1986). Contrary to our dissenting colleague, we agree with the. judge's conclusion. , In Mushroom Transportation Co. v. NLRB,4 cited by the judge,,the Third Circuit denied enforcement of the Board order reinstating employee Charles Keeler on the basis that there was no evidence to support a finding that Keeler had engaged in pro- tected concerted activities. The facts of the case show that the employer directed that employee Keeler's name be removed from the list of extra part-time drivers and that he receive no further work assignments because he was a "troublemak- er." The employer took this action against Keeler when it was reported to,the company that he was advising other employees of their, rights regarding "holiday pay, vacations and the company's practice of assigning trips to drivers of other companies rather than to its own regular drivers."5 In deny- ing enforcement of the Board's Order, the court stated: Activity which consists of mere talk must, in order to be protected, be talk looking toward group action. If its only purpose is to advise 9 All dates are 1986 4 330 F 2d 683 (3d Cir 1964) 5 330 F 2d 683, 684 (3d Cir 1964) 287 NLRB No. 73 DALY PARK NURSING HOME an individual as to what he could or should do without involving fellow workers or union representation to protect or improve his own status or working position, it is an individual, not a concerted activity, and, if it looks for- ward to no action at all, it is more than likely to be mere griping.6 In Meyers Industries (Meyers II), supra, 281 NLRB at 887, the Board "fully embrac[ed] the view of concertedness" expressed by the Third Cir- cuit in Mushroom Transportation, supra, noting with approval the court's comment that: It is not questioned that a conversation may constitute a concerted activity although it in- volves only a speaker and a listener, but to qualify as such, it must appear at the very least that it was engaged in with the object of initi- ating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees.' We find that the above standards for determining the existence of concerted activity have not been met in the instant case. As in Mushroom Transporta- tion, supra, there is no evidence that Herald or any of the employees with whom she discussed Davis' discharge contemplated doing anything about the discharge. Nor is there any evidence that the Re- spondent suspected such motivation when it re- duced her workweek. Although Herald expressed her opinion that it was a shame Davis could not hire a lawyer and fight the discharge, she readily agreed with another employee's opinion that Davis would lose such a fight to the Home's wealthy owners. Thus, there is not even the suggestion that the employees might attempt to give mutual aid or protection to Davis by encouraging her to institute legal action to challenge her termination. We see no difference between Herald's discus- sion of Davis' discharge and Keeler's discussion of employees' rights in Mushroom Transportation. In both cases there is nothing more than a conversa- tion between employees relating their opinion on matters of interest to the employees. In neither case, as called for in Meyers II, is there any evi- dence that an individual employee sought to initi- ate or to induce or to prepare for group action, or that an individual employee brought truly'group complaints to the attention of management. To find, as does our dissenting colleague, that Herald's conversation was within the protection of Section 7 would be to find that any conversation between employees is protected concerted activity if it re- lates to the interests of employees. This view of 6 330 F 2d 683, 685 (3d Or 1964) 1 Id at 685 711 concerted activity was specifically rejected by the Third Circuit in Mushroom Transportation,8 and thus by the Board in Meyers 11.9 In conclusion, we agree with the judge that Her- ald's conversation of 12 May regarding the Davis discharge does not constitute concerted activity as it does not indicate that "group action of any kind [was] intended, contemplated, or even referred to."10 We shall therefore dismiss that portion of the complaint. The Respondent excepts to the judge's recom- mended Order and notice arguing, inter alia, that if a violation is found, the remedy should include posting of the revised no-solicitation/no-distribu- tion rule rather than the provision that employees be permitted to examine any rule regulating solici- tation and distribution. We find merit in the Re- spondent's exceptions. It is undisputed that the Respondent rescinded and no longer maintains an unlawful rule. It is also undisputed that the Respondent voluntarily, with- out compulsion by law, adopted a revised rule which does not violate the Act. The sole reason for a remedial order here is that the Respondent has not adequately repudiated the earlier unlawful rule. Because of the nature of the violation, the judge found, and we agree, that the usual cease- and-desist order is an inadequate remedy. Howev- er, we disagree with his conclusion that requiring posting of the revised rule would amount to an order to adopt a specific rule-an order clearly beyond the Board's authority. We end, instead, that such a posting requirement directs the Re- spondent to inform its employees of action it has already taken voluntarily with respect to an unlaw- ful rule. It is not only a requirement requested by the Respondent, but also one which uniquely fits the circumstances of this case, i.e., the failure to adequately repudiate an unlawful rule. We shall modify the judge's recommended Order and notice accordingly. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Parke Care of Finneytown, Inc., d/b/a Daly Park Nursing Home, a Subsidiary of Parke Care Centers, Inc., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). 8 Id at 685 9 Meyers, 281 NLRB at 887-886 10 Mushroom Transportation, supra at 685 7,12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "(a) Inform our employees by posting the at- of employees protected under Section 7 of the Act. tached notice marked `Appendix' that the former Accordingly, I find that the Employer violated rule pertaining to solicitation and distribution has Section 8(a)(1) of the Act.' been rescinded and that we have adopted the fol- lowing new rule: "In order to prevent unnecessary disruptions in our operations and to maintain proper pa- tient care, solicitation (i.e. •for membership or subscriptions) and distribution of literature (i.e.,, circulars and other printed material) of any kind will not be permitted at any time, in- cluding worktime and nonwork time, in imme- diate patient care areas. "Immediate patient care areas" include, residents' rooms, resident .treatment areas, and the corridors and hall- ways, adjacent to these rooms and treatment areas. However, solicitation and distribution by, employees are permitted during nonwork- ing time (i.e., breaks, meal periods) in areas which are not immediate patient care areas. Solicitations for the sale of products (i.e., Tup- perware, Avon products, etc.) are, not permit- ted at any time." 2. Substitute the attached notice for that of the administrative law judge. MEMBER JOHANSEN, dissenting in part. The Respondent, a nursing home, employed Charging Party Gwen Herald as a nurses 'aide. On 12 May Herald 'and other employees were discuss- ing the recent discharge of a coworker. Herald stated that sfie thought the termination was unfair and that it was too bad that the individual could not get a lawyer to fight it! On 15 May Director of Nursing Kinnaman informed Herald that she was being transferred to the day shift. Later Herald's workweek was reduced from 5 to 3 days. The judge found that Herald's change in working con- ditions was because of her statements on' behalf of the terminated employee. Nonetheless, the, judge and 'my colleagues find that, 'Herald's statements were not protected because no group action was intended, contemplated, or referred, to. That misses the point. Whatever Herald was intending, contem- plating, or referring to, she was engaged in actual concerted activity when she spoke with her fellow employees on 12 May.. Employees are protected in their concerted ac- tivities for mutual aid and protection under Section 7 of the Act. Here, the subject of the discussions, termination of a fellow employee, is certainly a condition of employment and quite clearly deals with matters of shared employee concern. Discus- sions by employees about terminations and the pos- sibility of obtaining legal representation in such matters, is action for the mutual aid and protection ' In agreeing with modifying the judge's recommended Order and notice, I am, not passing on the lawfulness of the, new rule, APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. ,To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. ' - WE WILL NOT maintain any rule which improp- erly limits the rights of our employees to solicit for union or other organizational membership or sup- port or to distribute union or other organizational literature at the Home. . 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 HAVE rescinded our former 'rule pertaining to solicitation and distribution at the Home and have adopted the following new rule: In order, to prevent unnecessary disruptions in our operations and to maintain proper patient care, solicitation (i.e., for membership or sub- scriptions) and distribution of literature (i.e., circulars and other printed material) of any kind will not be permitted at any time, includ- ing worktime and nonwork time, in immediate patient care areas. "Immediate patient care areas" include residents' rooms, resident treat- ment areas, and the corridors and hallways ad- jacent to these rooms and treatment areas. However, solicitation and distribution by em- ployees are permitted during nonworking time (i.e., breaks, meal periods) in areas ' which are not immediate patient care areas. Solicitations for the sale of products (i.e., Tupperware, DALY PARK NURSING HOME 713 Avon products, etc.) are not permitted at any time." PARKE CARE OF FINNEYTOWN, INC. D/B/A DALY PARK NURSING HOME, A SUBSIDIARY OF PARKE CARE CEN- TERS, INC. Carol L. Shore, Esq., for the General Counsel. Peter K. Newman, Esq. (Smith & Schnacke), of Dayton, Ohio, for the Respondent. DECISION BERNARD RIES, Administrative Law Judge. This case was heard in Cincinnati, Ohio, on 25 August 1986,1 based on a charge filed on 20 May and a complaint issued on 25 June. The complaint alleged two unrelated violations: that Respondent violated Section 8(a)(1) on 19 May by disciplining Charging Party Gwen Herald for engaging in statutorily protected activities, and violated the same provision by maintaining an overly broad no- solicitation rule on its premises. Briefs have been received from the General Counsel and Respondent. Having reviewed the briefs, the entire record, and my recollection of the witnesses, I make the following findings,2 conclusions, and recommendations. 1. ALLEGED UNLAWFUL ACTION AGAINST GWEN HERALD Respondent Daly Park is, according to its brief, one of eight related nursing homes located in the Cincinnati area. The Charging Party, Gwendelyn Herald, worked as a nurses aide at one of Respondent's sister homes for about a year, and then, on 27 August 1984, began similar employment with Respondent. Respondent maintains three employee shifts, 7 a.m. to 3.30 p in, 3 to 11:30 p.m., and 11 p in. to 7:30 a.m. When Herald commenced employment, she was assigned to the third shift. In September 1985, Herald asked then-Assist- ant Director of Nursing Christine Kinnaman3 if she could change her schedule to leave early, around 6 or 6:30 a.m., in order to see her 6-year-old son safely off on the school bus in the morning. Kinnaman agreed, but it was understood that this approximately 5-hour per week reduction would change Herald' s status from full time to part time, and thus entail the loss of certain fringe bene- fits. There are five nursing stations in the Home On the third shift, a total of 10 employees are normally on duty-1 registered nurse, 3 licensed practical nurses, 2 nurses aides assigned to the "front" station, and 1 such aide assigned to each of 'the remaining four stations. In I All dates refer to 1986 unless otherwise indicated 2 Certain errors in the transcript have been noted and corrected 5 Kinnaman subsequently became director of nursing, and Shelley McDowell the assistant director The other important managerial figures here are Shirley Trieschman, the administrator of the Home for the past 4 years, and Karen Monohan, the "nursing supervisor" on the third shift since the end of January (I assume that Monohan is a registered nurse) May, three of the third-shift aides were Herald, Gail Davis, and Vanzetta Morgan.4 Herald was not scheduled to work the Friday night third shift on 9 May, but she had volunteered to do so earlier in the week and was told, on Thursday or Friday, that she could work that shift. She had, at the same time, also volunteered to work double shifts on Saturday and Sunday, 10 and 11 May, to begin at 3 in the afternoon and end at 7 30 the next morning of each day. On 9 May, Herald, driving with Davis, came to the Home early in the afternoon to collect their biweekly paychecks. At that time, Davis was handed a termination notice for having left a patient "saturated" in urine for several hours. Herald left with Davis. Later that day, about 9:30 p.m., Herald "called off' (the usage at the Home), telephoning to say that she was without trans- portation that evening. The next day, 10 May, Herald called off her volunteered-11:30 shift at 2:50 p.m., saying that her car was unexpectedly still not repaired and she still had no transportation, although she did find a way to the Home that evening in order to work her regular shift; and, on 11 May, she also called off the volunteered second shift, but again worked her regular third shift, telling the registered nurse early in the morning of 11 May that her legs pained her too much to enable her to work a double shift on that day 5 When Herald came to work on the evening of 12 May, she testified, some of the LPNs and the aides asked her about Davis, and she told them of the termination. In discussing the firing, Herald said she thought it was "unfair" for Davis to have been discharged for her of- fense, compared to other mistakes made by other nurses; aide Tara Kitchens brought up the time she herself had "left something on the patient." Herald stated, "It's a shame she [Davis] can't get a lawyer and fight this." Carol, an LPN, said that because the owner of the home was a wealthy man, it would do no good for Davis to hire an attorney because she would lose Herald agreed, and expressed the hope that at least Davis might receive unemployment compensation. This conversation oc- curred in the front nursing station. Other undescribed conversations about Davis "took place in the lobby, wherever someone asked me." When Herald went to work on Thursday, 15 May, she was told that she had been paged to the front office early that morning, after she had already left the Home. At the end of her shift, around 7 a.m Friday, she met with Director of Nursing Kinnaman, who told her that beginning Monday, 19 May, she was being transferred to the day shift for an undetermined period of time. When * The record does not identify all the remaining complement We do know of two LPNs named Carol and Marilyn, an aide named Tara Kitchens, and, of course, Nursing Supervisor Monohan Because the shifts operated 7 days a week, and the employees worked only 5 days, the complement shifted around, particularly because the employees ap- parently engaged in some substantial trading off of assignments 5 At the hearing, Herald offered various explanations for her three call-offs that may or may not be true, or, even if true, unacceptable to the Home The Respondent points out on brief several inconsistencies in Herald's testimony that indicate that she is not a reliable witness In the circumstances, however, Herald's explanations of these call-offs are irre- velant to the case, as will be seen, and her important testimony is at least confirmed by the testimony presented by Respondent 714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Herald asked why, Kinnaman said, according to Herald, "Because you've been downing the nursing Home " Herald did not deny this accusation, but asked what it had to do with the quality of her work. Kinnaman re- plied that "downing" the Home "may affect your work- ing ability," and that Herald was being put on day shift so that her work could be more closely monitored. When Herald asked what Kinnaman meant by "downing the home," the latter said that she, Trieschman, and McDonald knew that "the three days you volunteered to work, you called off because of an incident with Gail." Herald denied that charge, blaming her absences on a lack of transportation, which Kinnaman told her was no excuse. Herald, facing the problem of finding a babysitter, criticized Kinnaman for not giving her more notice. Then, looking at the schedule, Herald saw that she had been assigned only to a 3-day-per-week schedule instead of her customary 5 days. Herald testified on cross-exami- nation that she did not recall Kinnaman saying anything to her on the morning of 16 May about the conversation with the employees on 12 May, nor about any other em- ployees being transferred from the third to the first shift. The uncontradicted evidence shows that third-shift aide Vanzetta Morgan had also been told on 15 May that she was being so transferred. Morgan very soon thereafter quit the job. Thus, Herald testified that her schedule was allegedly changed for "downing the Home" by calling off three shifts because of the Davis discharge; the complaint, however, asserts that the motivating factor was Herald's conversations with other employees about Davis on 12 May, which, curiously, Herald denied was a subject of conversation between her and Kinnaman on 16 May. It is Respondent's thesis and testimony that the deci- sion to transfer Herald, along with two other third-shift aides, to the first shift and to reduce Herald's weekly schedule from 5 to 3 days, was reached at a meeting held by the' three supervisors on 7 May, 5 days preceding the 12 May conversation between Herald and other employ- ees concerning the termination of Davis, which is alleged by the General Counsel to be the protected concerted activity that precipitated the changes. If that position were to be believed, it would constitute a complete de- fense to the complaint allegation. Although there was nothing particularly unconvincing in the demeanor of the three supervisory witnesses, however, this claim, after being put through the testimonial grinder, seems so un- likely that I am disinclined to believe that any such deci- sions were taken prior to 12 May. I will not describe all the flaws I find in the evidence regarding this matter; they are too many and too complex to explain. Here are some of them. Administrator Trieschman said that she called the 7 May meeting of supervisors because of the evident un- happiness of Monohan, who had become third-shift su- pervisor at the end of January and had told Trieschman of her various complaints about the aides prior to 7 May. Monohan, however, testified that she thought that Kin- naman had told her that they planned to have such com- munication meetings on a regular basis, and that this was the first. Monohan testified that at the meeting, she said that she felt that rounds were not being completed and that things were not getting done; lunch hours and breaks were perhaps overlong; the aides reading, crocheting, and visiting between stations; and there was a high inci- dence of skin tears among the elderly patients (which can be caused by rough handling or by the patients themselves). She "was asked" if she thought that aides Herald, Davis, and Morgan were chiefly responsible, and she "did concur that they were " Kinnaman, on the other hand, testified that she could not "recall" whether Monohan mentioned the three aides during this meeting. The derelictions that allegedly formed the basis for complaint at the 7 May meeting consisted of a question- ably amorphous body of grievances. As for "crocheting" at work, for example, Herald agreed that a number of the nurses had been so engaged, on their lunchbreaks and when work was done, after being taught-the art in 1985 by an agency registered nurse, and she further stated that Monohan had told them some months later to "crochet on your lunch break only." Kinnaman testified that the crocheting "had been going on for some time," but, judging from her inaction, it apparently was not consid- ered a major problem. The employee handbook provides for a graduated dis- ciplinary procedure beginning • with a verbal warning; proceeding to counseling, which, in the handbook, con- sists of an elaborate procedure including a "Counseling Report" to be filled 'out; followed by written warnings (three of which in a 2-month period "will result in termi- nation"); and culminating in termination. The handbook also provides that not all of these actions 'need be fol- lowed before a discharge can be effected, but the record indicates that counseling is usually the first disciplinary step. Thus, Kinnaman answered affirmatively the question whether "with respect to problems with work perform- ance, or attendance, employees usually get the counsel- ing report before further disciplinary action is taken." Trieschman testified that they have "often counseled em- ployees" about excessive call-offs. But, although she said that she had spoken with Supervisors Monohan, McDowell, and Kinnaman "several times" prior to 7 May "about work not being done on the third shift," she had not counseled Herald, Davis, and Morgan "because we weren't sure exactly [what] all the problems were and we had to investigate." • This seems most strange. Speaking to Monohan prior to 7 May was evidently not considered an "investigation," but speaking with her on that date as apparently a sufficient "investigation" to warrant a decision to transfer the three employees and to reduce Herald's schedule.6 6 The General Counsel put in evidence the records of an employee named Taryn Green, who began employment on 18 September 1979 It shows six disciplinary notices (l) the first (a "written warning") on 15 August 1980 for leaving a patient half-dressed so that Green could go to lunch, (2) the second, on 19 February 1981, for leaving her station with- out permission and being found in the laundry room with a janitor, (3) on 20 January 1982, a written warning for being at a station with one other aide and an odor of marijuana, (4) 1 November 1982, taking an excessive break before supper, not bringing patients out, and not wearing shoes Continued DALY PARK NURSING HOME 715 Herald, it should be noted, was the only one to receive a separate penalty of an indefinite weekly 2-day suspen- sion in addition to the transfer. The evidence shows that of the three aides, Herald had, by any measure, the better work record Morgan had once been suspended for 2 weeks for patient abuse; Davis had received a 3- day suspension for refusing to feed a patient, although she ultimately did so; but the only mark against Herald was a 20 June 1985 written warning for failing to attend one of the occasional "in-service" staff meetings held on a different shift than her own. Herald further testified, without contradiction, that she is regularly assigned to train new employees if the training coordinator is absent or there is more than one new employee at the same time.7 Despite this, and without any counseling or further in- vestigation, Respondent asserts that on 7 May its officials decided to transfer the group of three (which personnel action causes "a lot of disruption," Trieschman testified) and to reduce Herald's hours, all because it suddenly became clear to Trieschman what the nature of the prob- lems were after again speaking with Monohan on that day.8 Trieschman's testimony is that they decided on 7 May to decrease Herald's hours because of her frequent call- offs, "and if she showed that she could be there those three days a week, we would up her hours." But, as of 7 May, the record does not indicate that Herald's call-offs were considered excessive. After being employed for nearly 2 years, she had never been counseled about them. Her call-off total between 19 October 1984 and 7 May 19869 was 21, averaging a little over 1 per month in nearly 19 months. In the 6 months prior to 7 May, she had six call-offs, sprinkled throughout that period. But in the 6-month period from 19 October 1984 to 26 April 1985, she had called off 10 times; in the 6 months from 12 February-16 August 1985, 8 times; and 7 times in the period 4 June-31 December 1985. Although Trieschman said that she kept track of call-offs, she never before had (written warning), (5) 14 December 1982-refused to help train or speak to a new aide-was transferred to the day shift for 30 days for direction from the administrator, and (6) on 1 January 1983, received written warning for rudeness to patient's family-registered nurse gave her "eval- uation and pointed out ways to improve " ' Herald also testified that she never left her work station without get- ting permission from her station nurse Respondent argues that she "could not give the details of one example" of this, but in fact she named three supervisors who gave her such permission, although she under- standably could not recall the dates s Although Monohan identified "[p]eople were doing a lot of reading" as a problem of some importance discussed on 7 May, the only instance of reading instead of working that she could recall was one occasion when Morgan "had some magazines in the back station at one point" and Monahan told her that the break was over Although she had also no- ticed a "tendency" for Herald and Davis to "socialize more than getting up and doing the rounds and the work"-seemingly a serious continuing offense-the most she "may have said" to them was "we need to get back to our station or you need to get back to work, something like that " Monohan was unable to say how many of Herald's or Davis' pa- tients had skin tears, she could only say that there was "a higher inci- dence" "in some of the areas" where they were working, but she conced- ed that the aides "cycle continuously " Kinnaman testified, however, that skin tears "were not just in that area, they were throughout the build- criticized Herald for her call-off record. Indeed, Herald's 90-day evaluation in 1984, filled out by the former direc- tor of nursing, rated Herald as "Above Standard" in at- tendance, although the evaluation states that she had three call-offs in that period.to Another major problem with Trieschman's testimony is the fact that Monohan has a significantly different recollection of the alleged 7 May discussion. Rather than a determination to reduce Herald's working days from 5 to 3, Monohan testified twice that the decision only had been that the "additional time" that Herald had been working would be cut. This discrepancy between the two witnesses testifying about such a seemingly simple matter raises a meaningful question as to the discussion at, or indeed, the very occurrence of, the 7 May meet- ing. Perhaps the really outstanding problems may be found in the testimony of Kinnaman. One difficulty is that she could recall no "precise mention" of "socializing" at the meeting, only of employees taking long breaks and being away from assigned areas, even though Monohan testi- fied that she had complained about Herald and Davis tending to "socialize" rather than doing their work and "visiting between stations." But the chief glitch in Kinna- man's testimony is her statement that the 7 May discus- sion of call-offs did not relate too one particular aide, "it related to all of them at the time." Then, however, she went on to say that the discussion "focused on an overall call-off record for most of them and then recent ones for the 3:00 to 11:00 shift call-offs of Gwen Herald." But since these latter call-offs occurred after 7 May, there could, of course, have been no reference to them on that date, short of unusual extrasensory powers on the part of the three Respondent witnesses. Other evidence lends a flavor of fiction to Respond- ent's story. For example, when Trieschman was asked how she recalled that the meeting occurred on 7 May, she replied that they "set up on our calendars when we have a meeting ahead of time." When asked if she had a calendar that refers to the meeting on May 7, Triesch- man replied, "Yes, I do" and then volunteered, "All three of us do." These seemingly important documents were, however, never proffered at the hearing. I find this extremely fishy. Trieschman's volunteered statement, "All three of us do," suggest to me that the calendars do make reference to a 7 May meeting But counsel's failure to offer such obviously pertinent evi- dence makes one believe that there is something about those calendar entries that themselves raise suspicion. Telling testimony, from the General Counsel's point of view, came from Kinnaman's description of her 16 May discussion with Herald concerning the schedule changes. Kinnaman testified that she had received a "complaint" from Aide Doris Baylor, about the discussion on 12 May of Davis' discharge, which Baylor had said took place "in the hall by the patients' rooms." She further testified: I told Gwen that we were transferring her to first shift to observer [sic] her job performance, that mg 9 See R Exh 11 It is unclear why that exhibit does not encompass her 10 She is also rated above standard in seven categories, acceptable in employment from the beginning one, and outstanding in the remaining category 716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I had some reports of problems and I wanted to ob- serve her job performance. And I also told her about the calloffs and I proceeded to look for the pink slip at that time and couldn't locate it. Then I discussed with her some reports that had come to me that she had been talking in the patient care area about Gail's termination and that was not an appro- priate place to talk about that and I didn't really ap- preciate that; that if she had 'a problem she could come to, the front office or she could discuss those problems outside of the building anytime she wanted with anybody Kinnaman denied that she told Herald that she was being transferred for downing the Company, a term that is not in her glossary. On cross-examination, Kinnaman agreed that Herald had asked if there had been any com- plaint about her work, and she admitted that nothing had been said by management to Herald about her call-offs between 12 and 15 May. While Kinnaman testified on cross that she had heard that Herald had been "loud" in discussing Davis' discharge, she had used no such char- acterization in her direct testimony. In her-testimony, she had only objected to Herald's "talking in the patient care area about Gail's termination and that was not an appro- priate place to talk about that " There is an unusual incongruity between Kinnaman's version and Herald's; most importantly, Kinnaman con- ceded that she had made reference to Herald's 12 May discussion about Davis' termination, while Herald denied it. On the other hand, Herald testified that Kinnaman said the transfer was caused by Herald's downing the Home by calling off because of Davis. It seems quite possible that both thoughts were expressed, although not in those words. It is worth pointing out that, although Kinnaman obvi- ously learned of Herald's remarks somehow, I find it dif- ficult to believe that Doris Baylor "complained" about Herald's discussion of Davis' termination. Baylor, a former nurses aide, testified that she never spoke to anyone in management about conversations concerning Davis or the conduct of another employee. Furthermore, Respondent brought out that Baylor called off on 8, 9, and 12 May, and resigned on 13 May. Not having been present at the Home on 12 May, Baylor could not, of course, have witnessed Herald's remarks about Davis-on that night. Moreover, I found Baylor to be a credible witness, one who would not likely 'complain about the behavior of another aide. The "pink slip" to which Kinnaman referred in the quotation set out above is a rather mysterious item. There is in Herald's file (and in evidence) an unsigned "Employee Disciplinary Report," dated 15 May, which says that Herald "agreed to work 5/9, 5/10, & 5/11 (3- 11:30 shift) for another employee Gwen called off all 3 shifts. Starting 5/18 she will only be scheduled for 3 shifts per week." Kinnaman testified that Assistant Di- rector of Nursing McDowell had prepared the discipli- nary report, and they intended to present it to Herald on the 15th, but, as noted, Herald had already departed when they tried to reach her early that morning. When Kinnaman met with Herald on the 16th, the former was unable to find the warning in order to present it to Herald. Kinnaman did not explain why, if she was unable to find the pink slip, she did not write one herself, it ap- pears to be a simple task More importantly, the slip makes it seem, as was stated at the hearing, that "the de- cision to schedule [Herald] for only three shifts per week was based solely on . . . her calloffs", Kinnaman agreed that "[t]hat's the way it appears in there, yes " But a re- duction in shifts based on her call-off record of 9, 10, and 11 May necessarily contradicts the claim that this deci- sion was reached on 7 May. Respondent contends that the chronology of events favors its position. Administrator Trieschman testified that although the decision to transfer the three aides was made on 7 May, some delay in implementation was nec- essary in order to hire replacements. We heard nothing more about this interesting subject except the following: Q. What's the steps of the procedure you use when you hire new nurse's aides? A. Well, you have to put an ad in the paper and then you have to take applications and get a refer- ence if you can and then schedule them to work Okay, did you do-did you place an ad in the paper for the- A Yes. Q.-any nurse's aides for third shift- A. Uh-huh, either that or we pulled from the file. Q. And do you know, approximately, when the replacements were hired? A. Probably around the middle of the month, about the 15th or so. Q. Of which month? A. Of May. No evidence was given in regard to advertisements placed, the names of the replacements, or their dates of commencement of employment.' Trieschman's uncertain- ty about which method of hire was used can obviously mean a substantial difference in elapsed time. If Respond- ent simply resorted to pulling applications from its file, there would seem to be no reason why a new comple- ment of aides might not be available as early as 16 or 17 May if the hiring effort began on 13 May, after Herald's discussions of Davis' departure. Other questions arose but were never answered. If Re- spondent was contemplating, as of 7 May, the hiring of replacements on the third shift for Herald, Davis, and Morgan, what was to happen to the three first-shift em- ployees whose place they were to take? There is no indi- cation that the staff was short by three nurses aides on the first shift at the time, and it seems unlikely. Because as Kinnaman testified, Respondent's rules authorized it to transfer employees from one shift to another, why was that option-considerably simpler than hiring new em- ployees-not considered here (before Davis and Morgan left)? The answer is, regrettably, not spelled out in the record. A forceful consideration advanced by the General Counsel on brief that militates against the claim of a 7 May meeting as described by Respondent is the fact that DALY PARK NURSING HOME Herald, shortly before the weekend, was permitted to volunteer for extra shifts on 9, 10, and 11 May. Is it credible that Respondent would have allowed that, asks the General Counsel, if it "had already decided on May 7 to reduce her hours because of Herald's alleged failure to adequately work her own schedule"? It will be re- called that all three alleged participants in the 7 May meeting spoke of the decision to penalize Herald by re- ducing her schedule, with Monohan, e.g., testifying that Herald "was doing a lot of extra work, working addi- tional time and that that would be cut, that would not be allowed to happen." There is no explanation why this firm "7 May" decision was so quickly relaxed. At first blush in this case, there is a reluctance to assume that the remarks casually uttered by Herald on 12 May instigated the rather drastic result of transferring three employees from the third to the first shift. A second look, however, yields various scenarios that render more plausible the action taken Since Kinnaman testified that the meeting discussed the "overall call-off record for most of [the aides] and then recent ones for the 3-11 shift call-offs of Gwen Herald ," the meeting must have occurred after 11 May. By that time, Davis had been terminated, thus leaving the possibility of trans- ferring only two aides, Morgan and Herald It seems most unlikely to me that Respondent would have nor- mally chosen to remove Herald from the third shift; Herald does not come across as a troublemaker or an in- competent worker But if Respondent had sincerely as- sumed that some kind of disruptive Herald-Davis- Morgan clique had existed, the most obvious step would have been to break up its remaining components, after Davis was fired, by leaving one on the third shift and transferring the other to a different shift. i i Respondent chose instead to take the trouble to transfer the two, and its decision was not derailed even after Morgan quit, probably on 16 May, and despite Kinnaman's awareness that the shifting of Herald imposed on her the onerous task of finding a babysitter on extremely short notice. Given the seriously deficient and contradictory testi- mony of Respondent's witnesses, the concessions made by Kinnaman, the failure to adhere to the usual counsel- ing procedure, and the absence of any real , articulable basis for taking punitive action against Herald , I am con- vinced that the change in her working conditions was not attributable to any pre-7 May misbehavior, but rather to her conduct with respect to the termination of Davis on 9 May. I cannot conclude, however, that Respondent violated the Act by the action taken against her in these circumstances. My text for this conclusion is Meyers Industries, 281 NLRB 882 (1986), following remand of Meyers Indus- tries, 268 NLRB 493 (1984), by the United States Court of Appeals for the District of Columbia Circuit in Prill v. 11 According to Trieschman, Respondent had particular concerns about Morgan , who was in psychotherapy, reports of possible patient abuse made her "suspicious" of Morgan Monohan also testified that Morgan was uncomfortable about working at a station by herself, but had no "problems when she was in another area," which was more populous, because as Monohan testified, there were "so many more people" on the day shift, a move to the first shift for her alone would would have seemed a sensible move 717 NLRB, 755 F 2d 941. In Meyers II, the Board made clear its belief that Section 7 of the Act12 "requires some link- age to group action in order for conduct to be deemed `concerted"' (281 NLRB at 884). In discussing the notion of concertedness, the Board "fully embrac[ed]" the doc- trine as expressed in Mushroom Transportation Co. v. NLRB, 330 F 2d 683, 685 (3d Cir. 1964): It is not questioned that a conversation may con- stitute a concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees. A close study makes it clear that Herald's activities vis-a-vis Davis are not covered by the statement of prin- ciple. Herald herself testified that, on arrival for her shift, the subject of Davis' termination was raised by other employees While Herald told them that the dis- charge was "unfair" and said that it was a shame that Davis could not mount a legal fight, she agreed with the employee who replied that the wealthy owner of the Home would prevail in any such encounter. Thereafter, undescribed conversations about Davis "took place in the lobby, whenever someone asked me." I see no way to characterize this sort of exchange as either inducing group action or even having "some" rela- tion to "group action" in the interest of the employees. The facts in Mushroom Transportation, indeed, presented a stronger case for reaching such a conclusion than the instant facts. There, the employee in question had been "talking to other employees and advising them as to their rights," such as holiday pay and vacations. 330 F.2d at 684. The court found, however, no evidence that these discussions involved any effort "to initiate or promote any concerted action to do anything about the various matters as to which Keeler advised the men or to do anything about any complaints [or] grievances which they may have discussed with him It follows that, if we were to hold that Keeler's conversations constituted con- certed activity, it could only be on the basis that any conversation between employees comes within the ambit of activities protected by the Act provided it relates to the interest of employees. We are unable to adopt this view." Id. at 684-685.13 Because, in the instant case, the facts indicate that "no group action of any kind [was] in- tended, contemplated, or even referred to," 330 F.2d at 685, I must conclude that Herald was not engaged in concerted activity during these discussions with other employees on 12 May. 12 Sec 7 reads Employees shall have the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection is It is true, as the General Counsel points out, that in the past, the Board has sometimes taken a broader view of "concerted activities," ex- tending protection to mere discussion of working conditions as a neces- sary preliminary to actual collective action E g , Datapoint Corp, 246 NLRB 234 (1979), but see Plastic Composites Corp, 210 NLRB 728 (1974), Egar Employment, Inc, 255 NLRB 113 (1981) Datapoint, howev- er, is not consistent with Mushroom Transportation 718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel advances a secondary argument: that, according to Herald's testimony, Kinnaman accused Herald of having called off the extra shifts for which she had volunteered on 9-11 May because of Davis' termina- tion; that Respondent therefore (mistakenly) viewed Her- ald's action as "some kind of protest" on behalf of a fellow employee; and that discrimination imposed "in the mistaken belief that an employee has engaged in activi- ties protected by the Act [is] still violative of Section 8(a)(1) . " If, as the General Counsel contends, Respondent con- strued the three call-offs as related to the termination of Davis (although Herald says there was no such relation- ship, which I find difficult to believe) and punished Herald accordingly, it is hard to say that Respondent mistakenly believed that Herald engaged in activities "protected" by the Act. A continuing refusal to perform all of an employee's duties-a partial or intermittent strike-is unprotected even when done in connection with genuine protected activities. See John S. Swift Co., 124 NLRB 394 (1959), as explained in Polytech, Inc, 195 NLRB 695, 696 (1972). Moreover, Meyers II indicates that a walkout by an individual in order to protest work- ing conditions may not be concerted for purposes of the Act. 281 NLRB at 887 (approving Ontario Knife Co. v. NLRB, 637 F.2d 840 (2d Cir. 1980), and summarizing: "In this case, the Second Circuit found the action of an individual employee in walking off the job in protest of a work assignment was not concerted in the absence of evidence that other employees participated in or ap- proved the walkout or evidence that the employee looked toward group action in walking off the job." Here, even if the Respondent harbored a "mistaken" belief that Herald stayed out because Davis was fired, there is no showing that Respondent also believed that any other employees-even former employee Davis- "approved" the call-offs). Finally, I note that the complaint attributes the alleged discrimination only to the fact that Herald and other em- ployees "concertedly discussed terms and conditions of employment and a mutual concern, i.e., the discharge of a fellow employee." I cannot be sure that the new and rather complicated argument presented here was "fully litigated" (NLRB v. Bighorn Beverage, 614 F.2d 1238, 1241 (9th Cir. 1980)), so as to permit such a conclusion, even if I were disposed to reach it. Accordingly, I recommend dismissal of the 8(a)(3) and (1) allegation relating to the changes in Herald's working conditions. II. THE SOLICITATION RULE The complaint alleged that at all material times, Re- spondent maintained and enforced a certain rule identify- ing in some detail the times and places available to em- ployees for solicitation of membership and distribution of literature. Respondent concedes that the rule was overly broad and, in the settlement of an earlier case (Case 9- CA-22976) involving another Parke Care Home (Deer Park Nursing), it agreed to revise the rule to conform to accepted standards . A 17 July letter from counsel for Re- spondent to the Region regarding Case 9-CA-22976 states his intention to send revised sections of the Parke Care' Personnel Manual containing the new rule to "all homes" in the near future and says that "in-service" meetings will be conducted with employees "at all homes" to explain the new rule There is no evidence that this provision to make and publicize the changes at "all" the homes, in addition to the one subject to the charge, was part of the settlement agreement; simply a goodwill gesture on the part of the Respondent; or perhaps an effort by Respondent to subtly persuade the Region to. delete from the present complaint the allegation involving the maintenance of the rule at the Daly Park Home. If the record showed that it was the former, then I would recommend dismis- sal of the present allegation. However, although counsel for Respondent made such a contention at the hearing ("the letter that . .. I sent . . in another case, in which we agreed that as part of the settlement of that Case, we would change the . . . rule at all eight nursing homes"), the General Counsel appeared to be contesting this rep- resentation, and I therefore cannot find it as a fact. Respondent contends, however, that it has, at Daly- Park, satisfied the Board doctrine that "an employer may avoid liability for unlawful conduct by repudiating the conduct." The testimony shows that at "in-service", meetings of the employees on all three shifts on 24 and 25 July, the new rule was read to them (Trieschman was in charge of some of the meetings, which she said ran about 30 minutes; Kinnaman handled the other meetings, which lasted perhaps 15 minutes each and, Kinnaman said, consisted of reading documents to the employees). Other matters of considerable interest were also read to the employees, such as a raise for new employees, a new "personal days" benefit, and a new state statute making patient abuse subject to criminal penalty. Employees were told that they could ask questions. All employees who did not attend the meetings were supposed to go the receptionist's desk and read the new no-solicitation policy and the other documents; on 25 August, Triesch- man testified that "[b]y this coming Friday . . every employee will have read the policy," as well as all the other subjects that were "inserviced" at the July meet- ings. The new rule has not been posted, but it is kept in the three copies of the personnel policy maintained in the ad- ministrator's office, the office of the nursing director, and at the receptionist's desk. Since about 10 August, new employees have been given a revised summary of rules and regulations to sign. The summary reads, inter alia, "Employees shall not solicit for any purpose, or distrib- ute leaflets, pamphlets, cards, advertising materials, tick- ets, notices, or any other material in any immediate care areas." This is ambiguous-the first clause may be read as standing on its own. Trieschman testified, nonetheless, that the sheet also "will be" distributed to the senior em- ployees. i 4 14 The new rule adopted by Respondent reads as follows SOLICITATION AND DISTRIBUTION In order to prevent unnecessary disruptions in our operations and to maintain proper patient care, solicitation (i e, for membership or Continued DALY PARK NURSING HOME 719 .In Passavant Memorial Area Hospital, 237 NLRB 138 (1978), the Board listed the criteria for acceptabe repudi- ation of a coercive or erroneous statement that will obvi- ate the need for a remedial order. the repudiation or cor- rection must be timely, unambiguous, specific in nature, and free from other proscribed conduct; there must be adequate publication to the employees involved; and there must be assurances that in the future the employer will not interfere with Section 7 rights. In the present case, the repudiation is not free from ambiguity, in view of the summary contained in the new rules and regula- tions. Nor can it be said with assurance that there has been "adequate publication," which the Board in Auto Workers Local 376 (Emhart Industries), 278 NLRB 285 (1986), recently construed to mean a showing that all the employees who were exposed to the original utterance also were made aware of the repudiation. None of the various publications of the new rule have mentioned any assurances of future compliance with Section 7. As a practical matter, however, posting the usual notice will not accomplish what the General Counsel de- sires, which is a public adoption of the rule set out in the preceding footnote. The Board is not empowered to make an employer adopt a no-solicitation rule-he may choose not to have one. Nor may the Board dictate the 'precise language that must be used in any such rule; the most it can say is that certain language is lawful or un- lawful. Accordingly, the Board is not authorized to re- quire Respondent to employ the language it has thus far chosen to use, and therefore cannot incorporate it in the notice as a binding obligation on Respondent. I think it fitting, however, to post a general notice simply to alert all employees to the fact that the preexist- ing rule was improper and that they have certain entitle- ments under law, including the right to inspect any exist- ing rules. As for the visitatorial order requested by the General Counsel, the Board has thus far refused to enter such an order in every case that I am aware, citing "the circum- stances" of each case as the reason There are no circum- stances here that did not exist in the other cases, as far as I can tell CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. subscriptions) and distribution of literature (i e, circulars and other printed material) of any kind will not be permitted at any time, in- cluding work time and non -work time, in immediate patient care areas "Immediate patient care areas" include residents' rooms, resi- dent treatment areas, and the corridors and hallways adjacent to these rooms and treatment areas However , solicitation and distribu- tion by employees are permitted during non -working time (i e, breaks, meal periods) in areas which are not immediate patient care areas Solicitations for the sale of products (i e, Tupperware, Avon products, etc) are not permitted at any time If you have any questions regarding whether it would be appropri- ate to solicit or distribute during a particular time or in a particular place, please ask your home administrator 2 By, in and around May 1986, maintaining an overly broad rule respecting solicitation and distribution, Re- spondent violated Section 8(a)(1) of the Act. 3. The Respondent has not violated the Act in any other respect alleged in the complaint. THE REMEDY The customary cease-and-desist order should be en- tered and, as discussed, the traditional notices should be posted. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed15 ORDER The Respondent, Parke Care of Finneytown, Inc., d/b/a Daly Park Nursing Home, a Subsidiary of Parke Care Centers, Inc., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining any rule which improperly limits the statutory rights of its employees, in certain places and at certain times, to solicit for union or other organizational membership or support or distribute union or other orga- nizational literature at the Home. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Permit employees, on request, to examine any rule maintained by the Home which regulates solicitation or distribution. (b) Post at its Daly Park facility in Cincinnati, Ohio copies of the attached notice marked "Appendix."16 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 15 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 16 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 "