Azalea Gar-Dens Nursing Center

AZALEA GARDENS NURSING CENTER H C Cain, a Sole Proprietorship d/b/a Azalea Gar- dens Nursing Center and Industrial Union De- partment AFL-CIO, on Behalf of OPEIU Case 15-CA-10377 January 25, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 1, 1988, Administrative Law Judge William N Cates issued the attached deci- sion The Respondent filed exceptions and a sup- porting brief, the Charging Party also filed excep- tions and a supporting brief, and the Respondent filed an answering brief to the Charging Party's ex- ceptions I 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, findmgs,2 and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, H C Cain, a sole proprietorship d/b/a Azalea Gardens Nurs- ing Center, Wiggins, Mississippi, its officers, agents, successors, and assigns, shall take the action set forth in the Order ' The Respondent also filed a motion to strike the Charging Party s supporting brief for failing to comply with the provisions of Sec 102 46(c) of the National Labor Relations Board Rules and Regulations The Charging Party filed a response to that motion to strike We con clude that although the Charging Party s brief does not conform in all particulars with Sec 102 46(c) it is not so deficient as to warrant sink leg Accordingly the motion is denied 2 In sec I the judge referred to the Respondent as a corporation The record shows that Respondent is a sole proprietorship In sec III B 1 par 8 the judge found that owner Cain s remark at an employee meeting in February 1987- that he knew five employees had attended a union meeting and two of them were no longer employed- constituted an 8(aXI) threat of discharge even though the remark was not alleged as such a threat in the complaint We agree with the judge that this remark constituted a threat of discharge in violation of the Act In adopting the judge s finding we note that this same remark was al ready alleged in the complaint to have violated Sec 8(a)(1) of the Act by creating the impression of surveillance of employee union activities that Charging Party s witness McKinney testified at the hearing that Cain had made this statement that the Respondents witness Hiley specifically tes tified that Cain had not and that the judge credited McKinney and did not credit Hiley We thus conclude that the issue was fully and fairly liti gated and that the judge was not in error in finding it constituted an un lawful threat of discharge as well as an unlawful impression of surveil lance of employee union activities Charlotte N White Esq, for the General Counsel Emile C Ott Esq, of Jackson, Mississippi, for the Com pany 683 Hubert Coker Coordinator, of Jackson, Mississippi, for the Union DECISION STATEMENT OF THE CASE WILLIAM N CATES Administrative Law Judge This case was tried before me in Wiggins, Mississippi, on April 18 and 19, 1988, pursuant to a complaint and notice of hearing (complaint) issued by the Regional Di rector for Region 15 of the National Labor Relations Board (Board) on September 3, 1987 i The complaint is based on a charge filed on July 29 by Industrial Union Department, AFL-CIO, on behalf of OPEIU (Union) The complaint alleges H C Cain, a sole proprietorship d/b/a Azalea Gardens Nursing Center (Company or the Nursing Home) has engaged in certain violations of Sec tion 8(a)(1) and (3) of the National Labor Relations Act (the Act) More specifically, it is alleged the Company violated Section 8(a)(3) and (1) of the Act by, on or about March 13, discharging and thereafter failing and refusing to reinstate its employee Glenda G Wells (G Wells) because of her membership in and activities on behalf of the Union and because she participated in pro tected concerted activities with other employees for their mutual aid and protection and/or to discourage union and other concerted activities of its employees Further it is alleged the Company violated Section 8(a)(1) of the Act during February and March by threatening an em ployee with unspecified reprisals because the employee was wearing a union button by creating the impression of surveillance of its employees union activities, by threatening its employees with discharge, by threatening it would not tolerate a union nor sign a union contract, and by threatening to close its facility if its employees se lected the Union to represent them The Company filed an answer to the complaint in which it admitted jurisdictional facts, the supervisory and agency status of certain individuals, and certain other factual allegations but denied the commission of any unfair labor practices All parties were afforded full opportunity to examine and cross-examine witnesses to argue orally, and to submit briefs Briefs which have been carefully consid ered were submitted by the Company and counsel for the General Counsel Based on the entire record, including my observation of the demeanor of the witnesses as they testified I make the following FINDINGS OF FACT I JURISDICTION The Company is a corporation licensed to do business in the State of Mississippi where it is engaged in the op eration of a nursing center at Wiggins, Mississippi 2 During the 12 months preceding issuance of the com ' All dates are 1987 unless otherwise indicated 2 Although the Company operates nursing facilities elsewhere in the State of Mississippi the Wiggins facility is the only one involved 292 NLRB No 73 684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plaint, a representative period, the Company, in the course and conduct of its operations, received gross rev- enues in excess of $100,000 and purchased and received goods valued in excess of $50,000 directly from points located outside the State of Mississippi. The complaint alleges, the parties admit, and I find that the Company is a health care institution within the meaning of Section 2(14) of the Act and is an employer engaged in a busi- ness affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, the parties admit, and I find that the Union is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES In attempting to establish, or defend against, the claims set forth in the complaint, the parties called some 10 wit- nesses and presented numerous documents. The testimo- ny and responses thereto are set forth below essentially in the order established by the complaint with the excep- tion that I have attempted to address all 8(a)(1) allega- tions in chronological order before addressing the 8(a)(3) allegations. Inasmuch as credibility is an issue in the instant case, I deem it appropriate to make some preliminary comments thereon. In deciding which of the conflicting versions of events are more credible, I have given considerable weight to the demeanor of the witnesses while they were on the stand. I have considered each witnesses' testimo- ny in conjunction with established or admitted facts, in- herent probabilities, and reasonable inferences that may be drawn from the record as a whole. Regarding the tes- timony, I have borne in mind the tendency of witnesses in general to testify as to their impressions or interpreta- tions of what was said or done rather than attempting to give a verbatim account of what they heard, saw, or did. Further, I am not unmindful that even in the case of per- sons testifying about their own remarks or actions they may well tend to express what they said or intended to say in clearer or more explicit language than they actual- ly used in their discussions or conversations. As to any witness having testified in contradiction of the findings, their testimony has been discredited either as having been in conflict with the testimony of credible witnesses or because it was in and of itself unworthy of belief. All testimony has been reviewed and carefully weighed in light of the entire record. As specific credibility conflicts arise, I may from time to time state more specifically my reasons for crediting or discrediting any particular wit- ness on any particular portion of their testimony. A. Brief Background The Company operates a dual nursing care center at Wiggins, Mississippi, providing intermediate and skilled care to a maximum of 137 patients. The Company is reg- ulated by, or subject to, requirements established by the Mississippi Department of Health, the Veteran's Admin- istration, and various agencies of the U.S. Department of Health and Human Services. The Company is owned and operated by H. C. Cain (Owner Cain). The Union began an organizational campaign at the Company in approximately September 1986. It filed a representation petition in Case 15-RC-7295 on Decem- ber 22, 1986. The Regional Director for Region 15 of the Board issued a Decision and Direction of Election on February 3 in which he ordered an election in the fol- lowing appropriate unit: All full-time and regular part-time employees em- ployed by the Employer at its Wiggins, Mississippi facility, including nurse's aides, cooks, cooks help- ers, dietary aides, assistant director of activities, ac- tivity aides, and housekeeping employees but ex- cluding facility charge nurses, unit charge and medication nurses, registered (RN) and licensed practical (LPN) nurses, assistant food services su- pervisors, maintenance employees, office clerical employees, guards and supervisors as defined in the Act. An election among the 57 eligible voters was held on March 3. Thirty-three ballots were cast for and 22 against representation by the Union, with 2 challenged ballots. The challenged ballots were insufficient to affect the results of the election. The Board, by the Regional Director of Region 15, certified the results of the elec- tion on April 6. Thereafter, the Board denied the Com- pany's request for review of the Regional Director's ac- tions regarding certifying the Union as the collective- bargaining representative of its employees in the above- described unit . As of the trial, the Company and Union have been negotiating toward, but have not arrived at, a collective-bargaining agreement. B. The 8(a)(1) Allegations 1. The allegations against Owner Cain It is alleged at paragraph 7 of the complaint that during February Owner Cain, in a meeting with employ- ees at the Nursing Home, in violation of Section 8(a)(1) of the Act: (1) created the impression of surveillance of employee union activities by stating he would be given a list of employees who supported the Union, and by stat- ing the number of employees who had attended a meet- ing with the Union and stating that two of such employ- ees were no longer employed; (2) stated that at another of his nursing homes in Mississippi he had watched strik- ing employees stand in the hot sun and after the strike he had fired each striker; and (3) advised employees that he would not sign a union contract or tolerate a union. It is also alleged in paragraph 7 that Owner Cain, on or about March 1, threatened to close the Nursing Home if the employees selected the Union to represent them. That Owner Cain held meetings with employees on an occasion in February at which time two films were shown is not in dispute nor is it disputed that one of the films pertained to a hotel fire in Puerto Rico where there had been union activity. There is, however, disagreement as to the exact date of the meetings and as to who was present for the Nursing Home at the meetings. AZALEA GARDENS NURSING CENTER Former employee Jameszena McKinney (McKinney)3 testified she attended a meeting at the Nursing Home in February4 at which Owner Cain spoke She said the meeting began by Cain offering the employees soft drinks, which they accepted McKinney stated Cain held up for the group to see and then read from a blank union petition She asserts he told them he would have a list of the people that signed the union petition She testified he showed the group a film about a hotel fire in Puerto Rico and blamed the fire on the union McKin ney said Cain then told the employees he was not going to have a union She stated he also said five employees had attended the first union meeting and two of them were already gone from the Nursing Home McKinney said Cain told them that at another nursing home he owned, he had some employees and a nurse who stood out in the hot sun on strike and when they came back to work he fired all of them McKinney stated Nursing Home Administrator Mark Hatten (Administrator Hatten) was present at the meeting with Owner Cain, but that no other supervisors or management officials were present 5 G Wells testified she also attended a meeting in Feb ruary6 at which Owner Cain spoke She said he told the employees he did not blame most of them for this union thing because they were not even 30 years old but added The ones I really blame are these women that work here G Wells stated Owner Cain mentioned that at another nursing home he owned , the nurses went on strike and after they got tired of walking around in the hot sun and came back in to go to work he fired every one of them She testified he said I won t have a union here I won t tolerate it G Wells asserts Cain also told the employees they had a sched uled pay raise coming up in July but if this union comes in, they will tie it up in negotiations and hold up your raises G Wells said a movie which centered around a woman named Margaret in a hospital setting, was shown at the meeting 7 G Wells asserts Owner Cain held another meeting with employees in March just a day or so before the March 3 Board conducted election She said he showed a film at that meeting about a hotel fire that supposedly took place in Puerto Rico, which fire he blamed on un ionism She testified Owner Cain said after showing the film that no union is coming in here and telling me how to run my business I will close the place down first Nursing Consultant Supervisor Hiley testified she drove Owner Cain from his home in southern Mississippi 3 McKinney worked as a nursing assistant from August 26 1986 until December 5 On that date she was discharged for picketing at the Nurs mg Home There is no contention that her discharge violated the Act 4 On cross examination McKinney stated she believed the meeting took place in early February 5 She specifically denied that Nursing Consultant Supervisor Ranelle Hiley (Hiley) was present at the meeting 5 G Wells stated she attended a meeting in September 1986 at which management discussed the Union but she was not asked to elaborate on that meeting r G Wells did not recall Owner Cain making any mention of a list of employees or about the number of employees that started the Union at the Nursing Home 685 to Wiggins on the occasion when he visited the Nursing Home in February She said it was late in February be cause Cain had been recovering from December 1986 heart surgery and had not been permitted to travel prior to that time She stated she was present at all the group meetings he held on that visit to the Nursing Home She stated Administrator Hatten was present only at the be ginning of the meetings to set up a movie projector and to bring soft drinks to the employees 8 She specifically stated Hatten was not present during the showing of the movies or for the discussions that took place afterward Hiley testified two movies were shown at the meetings one about a hotel fire in Puerto Rico and the other about a strike at the Magic Chef Company She stated Owner Cain confined his remarks to comments about those two films She specifically denied he mentioned he would be given the names of employees who supported the Union or that he knew the number of employees who had at tended a union meeting and that two of them were no longer with the Nursing Home Hiley also denied that Owner Cain said he had watched striking nurses standing in the sun at another nursing home and thereafter fired them She further denied that he said he would not sign a union contract or tolerate the union She also denied that Cain said anything about not blaming the younger employees for the Union, or that their wage reviews would be tied up in negotiations or that he would close the Nursing Home if the Union came in McKinney appeared generally candid and impressed me as attempting to testify truthfully I credit her testi mony The essence of what she asserts Owner Cain told the employees in the meeting she attended was supported by the testimony of G Wells regarding what she states Cain told the employees at the meeting she attended 9 8 Hatten corroborated Hiley s testimony on this point Hatten placed the date of the meeting as February 23 e The record is not clear exactly how many meetings Cain held with employees during his February visit at the Nursing Home or if McKin ney and G Wells were at the same meeting Nursing Consultant Super visor Hiley stated she attended all the group meetings Cain held during his February visit but she like the others did not specify the exact number of meetings Cain held or if McKinney and G Wells attended the same meeting Although G Wells displayed a deep resentment toward the Company such that it might impact on her willingness to relate facts accurately rather than in a light most favorable to her person al interests I nonetheless credit her testimony regarding the February and March meetings she attended at which Owner Cain spoke I do so because her testimony is as noted corroborated at least to the extent that McK nney attributed some of the same type remarks to Cain Also no attempt was made to dispute the fact that Cain held employee meetings in early March just a day or so before the Board conducted election I have placed no reliance on Nursing Consultant Supervisor Hiley s denials regarding Owner Cain s comments at the meetings because her recollec tions about what was actually said were so vague as to render her overall testimony totally unreliable I find suspect that Hiley could vividly recall what was not said by Cain at the meetings but could not recall anything that he might in fact have said I note Owner Cain was not called to tes tify in these proceedings Company counsel introduced a written note from Cain s physician stating he had to insulate Cain from many situa tions and activities that would tend to elevate his blood pressure or in crease stress factors on him However no other efforts were made or means explored to have Cain address the allegations against him Finally I note McKinney s recollections were not exact regarding when the meeting she attended took place however such does not under the cir cumstances detract from her overall credibility nor does the fact she contends Administrator Hatten was present at the meeting because he was present at the beginning of the meeting to set up a movie projector and provide soft drinks for the employees 686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I find the Company, through its owner, Cain, in Feb- ruary created the impression of surveillance of employee union activities when he told employees he would have a list of the employees that signed the union petition and that he knew five employees had. attended a union meet- ing and two of them were no longer employed. Al- though not specifically alleged in the complaint, Cain's above comments also constitute a threat of discharge, and I so find. Furthermore, I find Owner Cain threat- ened employees with discharge when he told them he had watched employees and nurses stand in the sun on strike and that when they attempted to return to work he fired them. I also find Owner Cain threatened em- ployees with unspecified reprisals when he told them he was not going to have or tolerate a union. I find Owner Cain clearly threatened to close the Nursing Home because of the protected activities of his employees when he told them in a meeting on March 1 that no union was going to come in and tell him how to run his business, that he would close first. 2. Allegations involving Assistant Director of Nursing Williams It is alleged at paragraph 6 of the complaint that on or about March 3, Assistant Director of Nursing Naomi Williams (Williams),10 in violation of Section 8(a)(1) of the Act, threatened an employee with unspecified repris- als because the employee was wearing a union button and that she created the impression of surveillance of employees' union activities by informing two employees she knew how they had voted in the Board-conducted election. Former nursing assistant Janice Wells (J. Wells),15 G. Wells, and Union Coordinator Hubert Coker (Coker) had lunch at Ward's Restaurant in Wiggins, Mississippi, on the day (March 3) the Board conducted an election at the Nursing Home. Among other patrons at the restau- rant that day was Assistant Director of Nursing Wil- liams.12 G. Wells testified Williams came to where she and J. Wells were eating and asked what they were doing. G. Wells said she showed Williams the union button she was wearing 13 and Williams told her "You will regret this day" and walked off. 14 Coordinator Coker, who had not been present at the table with the Wells up to that time, joined them. G. Wells testified she told Coker what Williams had said and stated Coker wanted to meet Williams. As the Wells were leaving the restaurant, G. Wells introduced Coker to Williams. Ac- cording to G. Wells, Williams told Coker she used to work for a place in Chicago that had a union and it pre- sented her with problems and made her job harder. G. Wells asserts she told Williams they were not trying to 10 Williams left her employment with the Nursing Home for health reasons in July. 11 J. Wells is not related to G. Wells. J. Wells was terminated in De- cember 1986 for picketing at the Nursing Home in November 1986. There is no contention that J. Wells' discharge violated the Act. 12 Williams was not scheduled to wort: on March 3. 13 The button read "Be Proud with OPEIU." 14 J. Wells corroborated G. Wells' above testimony in essential parts. J. Wells stated she had discussed the Union with Williams in February and Williams had told her at that time she could not believe they were so stupid as to be mixed up in union brainwashing tricks. make her job harder, that they were just trying to secure better working conditions at the Nursing Home. G. Wells testified Williams then talked about how bad the Federal Government was. G. Wells asked Williams how the Federal Government could be so bad in that it allowed them to have a union at the Nursing Home if the employees chose to have one. According to G. Wells, Williams responded with a comment about the lack of treatment her elderly father had received from the Federal Government and then said to Coordinator Coker, "These two voted for the Union, and I have nothing more to say to them." G. Wells stated Williams left the restaurant after that. Assistant Director of Nursing Williams acknowledged meeting the Wells at Ward's Restaurant on the day of the Board-conducted election. She recalled "glancing at the [Union] buttons" when she talked with the Wells but could not recall what was said. She testified, "I might have made some kind of remark" about the buttons. Wil- liams, however, denied telling the Wells they would regret that day. Williams said she was introduced to Union Coordinator Coker and that he told her about the advantages of the Union. She said she told him she did not like unions because of the situation that existed at a place where she had previously worked. She told him the union at that location caused her "a lot of headaches and heart[aches]." Williams acknowledged her recollec- tions about that day were flawed and that she could not recall all or exactly what was said at the restaurant. Wil- liams denied telling Coker (or the Wells) that she knew how the two of them had voted. I credit J. Wells' and G. Wells' accounts of their meet- ing with Williams at Ward's Restaurant. First, the Wells' testimony is, in part, mutually supportive. Second, Wil- liams acknowledged most of what the Wells attributed to her, and she admits she cannot recall all that was said at the meeting. I am persuaded Williams' failure to recall more details about the meeting was genuine. That failure to have a good recollection of what was said raises con- cern about her denials particularly in light of the mutual- ly supportive testimony of the Wells. Accordingly, I find Williams said what the Wells attributed to her. It is clear Williams' comments violated Section 8(a)(1) of the Act. In context, Williams' statement that the two employees in question would "regret this day" clearly conveyed to them that they could expect unspecified re- prisal actions to be taken against them in the future for their having supported the Union. Notwithstanding that the Wells were active and visible supporters of the Union, Williams created an impression that the employ- ees' union activities were under unlawful surveillance when she told them she knew how they had voted and that she wanting nothing else to do with them. This is especially so because these comments were made at the same time she threatened the same two employees with unspecified reprisals for supporting the Union. AZALEA GARDENS NURSING CENTER C The Discharge of G Wells 1 The facts It is alleged at paragraphs 8 and 9 of the complaint that the Company in violation of Section 8(a)(3) and (1) of the Act, discharged G Wells on or about March 13, and thereafter failed and refused to reinstate her because of her activities on behalf of the Union and/or because she participated in protected concerted activities with other employees for mutual aid and protection Nursing Assistant G Wells most recent employment at the Nursing Home began approximately in March 1986 and ended when she was terminated on March 13 15 Her immediate supervisor at the time of her dis charge was Assistant Director of Nursing Williams G Wells testified she signed a petition for the Union at a local church in September 1986 and thereafter took the petition to the Nursing Home where, in the break room she secured the signatures of four or five fellow workers on the petition Wells stated she persuaded three or four fellow workers to sign authorization cards for the Union G Wells attended eight or nine union meet ings (one approximately every month) and handed out union related leaflets at the Nursing Home She served on the Union s organizing committee In October 1986, Wells told then relief charge nurse Lucy Hickman (Hick man)', that she was a supporter of and on the organiz ing committee for the Union and that she was actively working to organize the Nursing Home Wells served as an observer for the Union at the Board conducted elec tion on March 3 There were two voting sessions during the election G Wells testified that between the two sessions she made house calls at the homes of certain em ployees to ensure the employees had transportation to the Nursing Home to vote 17 After the Union was certi fled as the collective bargaining representative for the employees at the Nursing Home and after G Wells had been terminated she became a member of and has since that time served on the Union s negotiating commit tee 18 The central facts surrounding G Wells termination on March 13 are not in dispute 19 At approximately 9 45 am on March 13 Administra tor Hatten, while making his normal rounds at the Nurs ing Home observed G Wells wearing an unbuttoned outer garment with the sleeves rolled up He told her as 15 G Wells was first employed by the Nursing Home in April 1985 and thereafter worked for approximately 9 months until she left the Nurs ing Home to have surgery She returned in March 1986 as a new employ ee 1e Hickman is currently the director of nurses for the Nursing Home i Administrator Hatten testified he believed G Wells to be one of the leading advocates of the Union at the Nursing Home ie The facts surrounding the 8(a)(l) acts that supervisors and agents of the Nursing Home engaged in that specifically involved G Wells will not be repeated in this portion of the decision 19 There are some minor differences in the accounts given by Adminis trator Hatten and G Wells with respect to the events of that morning such as Wells claim that Hatten asked her twice and that she refused twice to remove an outer garment she was weanng whereas Hatten con tends he asked and she refused three times Although Hatten impressed me as an unreservedly honest witness, I find it unnecessary to resolve all the nonessential minor discrepancies that exist between his and Wells ac counts of what took place on that morning 687 he passed her in the hallway that she needed to take her jacket off, that they did not wear such items inside the building Without stopping to speak further with G Wells Hatten proceeded on his rounds He did stop to speak with housekeeping employee Joyce Jackson G Wells interrupted Hatten s conversation with Jackson and told him she had enough sense to know when she was cold and whether she needed a jacket and she was not going to remove her jacket Hatten told G Wells he would check and, if necessary, adjust the building temperature but it was against the Nursing Home policy for her to be wearing the jacket she had on Wells told Hatten what she was wearing was a lab coat, not a jacket Hatten then told Wells it was against nursing home policy for nursing assistants to wear jackets sweat ers lab coats, or any other outer garments inside the building that if it was too cold, he would check and adjust the building temperature but she would have to take her jacket off while she was inside the building Wells told Hatten she was not going to take the garment off The matter went back and forth between the two and the situation became stalemated Hatten then told Wells to follow him to his office, but on the way told her to return to work, that he would get back with her later that morning 20 Later that morning at approximately 10 30 Hatten sent for G Wells and in Assistant Director of Nursing Williams presence terminated her Hatten told Wells she was terminated for insubordination in that she had not done what he asked which was to remove her jacket Wells attempted to tell Hatten it was too cold in the fa cility, however, Hatten told her there was no need for any further discussions Wells left Hatten s office visited her mother who is a patient at the Nursing Home and then left the facility One of many minimum standards required by the Mis sissippi Department of Health for institutions such as the Nursing Home is that it maintain adequate heating in all rooms used by patients so that a minimum temperature of 75 to 80 degrees Fahrenheit is maintained at all times According to the undisputed testimony of Nursing Con sultant Supervisor Hiley the Nursing Home has attempt ed to ensure compliance with the above requirement not only by thermostat settings but by a rule that prohibits nursing assistants, housekeeping and dietary employees from wearing any outer garments such as jackets, sweat ers or lab coats This practice has been followed at the Nursing Home for at least 10 years Hiley explained that the policy behind the rule is that if those working and moving about such as nursing assistants are cold with out an outer garment it is a sign to the Nursing Home that the patients many of whom are not active or moving about, will also be cold and that additional checks are needed with respect to maintaining the de sired temperature in the home It is just another way to ensure that the required temperature is maintained in the Nursing Home for the patients' comfort The outer gar 20 Hatten stated he became angry because G Wells would not do as she was told but that he did not want to show his emotions on the work floor in front of the patients and other workers that were present when G Wells confronted him 688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment policy like certain other company dress require ments is not written out but is explained to each new employee during orientation and reemphasized during the employees annual evaluations No employee prior to G Wells had ever been dis charged or disciplined for violating the outer garment rule Two witnesses in addition to G Wells who were pre sented by the General Counsel (J Wells and Breland) testified they had observed nursing assistants wearing outer garments without being disciplined However no testimony was presented that Administrator Hatten or any other supervisor specifically observed any such con duct and failed to correct it Breland testified that before the advent of the Union she, on an occasion in the winter of 1986, wore an outer garment and was observed doing so by then Director of Nurses Mooney (later Alex ander), who told her to take it off that she could not wear an outer garment in the Nursing Home Breland said she removed the outer garment she was wearing Director of Nurses Alexander and Administrator Hatten testified they had on occasions over the years ob served nursing assistants who were returning from lunch or outside trips with the patients enter the facility with out remembering to remove their outer garments All, however removed their outer garments on being re minded to do so 2 Discussion and conclusions The facts must be analyzed under the Board s decision in Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981 ) cert denied 455 U S 989 (1982) ap proved in NLRB v Transportation Management Corp 462 US 393 (1983) To establish a prima facie case under Wright Line supra, the General Counsel must present evidence sufficient to support the inference that protected conduct was a motivating factor in the Nursing Home s decision to discharge G Wells on March 13 I am persuaded she has done so She has shown that G Wells was one of the most vocal and visible supporters of the Union at the Nursing Home Wells attended union meetings handbilled for the Union at the Nursing Home and sought to have her fellow workers sign petitions and/or signature cards for the Union In October 1986 she told her supervisor (Hick man) that she was a member of the Unions organizing committee and was actively working to organize the em ployees of the Nursing Home She served as an observer for the Union at the Board conducted election and had unlawful conduct specifically directed at her in that As sistant Director of Nursing Williams told her she would live to regret supporting the Union 21 Within days of the time Williams made the above comment to G Wells and also within days of her having served as an observer for the Union at the Board conducted election she was discharged She was discharged for an offense that no other employee had been discharged for namely refus 21 Administrator Hatten readily admitted he believed G Wells was one of the leading advocates of the Union at the Nursing Home ing to remove an outer garment 22 Therefore in summa ry fashion, the General Counsel established that G Wells was very active for the Union, had unlawful acts directed at her, that the Company knew of her strong support for the Union, and shortly after informing her she would regret her support of the Union discharged for conduct no other employee had ever before been dis charged for Thus, I am persuaded the General Counsel established her prima facie case Once the General Counsel makes a prima facie show ing, such as she has done herein, that protected conduct was a motivating factor in the employers actions against its employee the burden shifts to the employer to dem onstrate it would have taken the same action it did even in the absence of the protected conduct on the part of the employee involved The employers proffered basis must be established by a preponderance of the evidence I find the Company has met its burden of demonstrat ing that it would have discharged G Wells even in the absence of any protected conduct on her part First, there is no question but that the Nursing Home had a valid rule against employees, such as G Wells, wearing outer garments in the facility Although the rule was not written there is no showing on this record that any em ployee was unaware of the no outer garment restrictions In fact, one of the witnesses called by the General Coun sel, Breland, testified that prior to the advent of the Union she had been observed on one occasion wearing an outer garment and had been told to remove it, which she did Thus the rule is not a new or retaliatory one but rather is for a justifiable reason G Wells readily admitted she violated the rule when she refused Admin istrator Hatten s three requests that she remove her outer garment on the day in question I find merit in the Com pany s contention that such conduct on G Wells part amounted to unprotected willful and blatant insubordi nation The Company s contention that Wells conduct constituted willful and blatant insubordination is demon strated by the fact that G Wells told Assistant Director of Nursing Williams on the morning of but before her discharge that she was no longer cold and did not need her outer garment, but because she had been told to remove it and had been made angry about it she was not going to remove it at all 23 There is no showing on this record that any employee was ever asked but refused to remove an outer garment and was not disciplined In that regard the Nursing Home established that it had in 22I am not unmindful that other employees had been discharged for insubordination 23I discredit G Wells testimony that she did not make such a corn merit to Williams In addition to observing her as she testified I am per suaded it was not out of character for G Wells to make such a corn ment For example G Wells readily acknowledged that on an occasion when she was told by Director of Nurses Hickman to place a pad under a particular patient she forgot to do so and when questioned about it to d Hickman that if she had the time to check up on her she had time to do the job herself and asked Hickman why she had not done it herself Likewise Wells continued to ambulate a patient by having the patient push her in a wheelchair even after she had been asked not to do so be cause it was dangerous for the patient Such conduct by G Wells per suades me it is very probable she told Williams that she would not remove her outer garment because she had been made angry by being asked to do so AZALEA GARDENS NURSING CENTER fact discharged employees for insubordination Thus, in summary I am persuaded the Company has demonstrat ed it discharged G Wells for violating one of its rules and there is no showing Wells was treated any different ly than any other employee 24 Accordingly I shall recommend the complaint allega tions that the Nursing Home discharged G Wells in violation of Section 8(a)(3) and (1) of the Act be dis missed CONCLUSIONS OF LAW 1 H C Cain a sole proprietorship d/b/a Azalea Gar dens Nursing Center is, and at all times material has been, a health care institution within the meaning of Sec tion 2(14) of the Act and is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Industrial Union Department, AFL-CIO, on behalf of OPEIU is a labor organization within the meaning of Section 2(5) of the Act 3 By engaging in the following conduct between on or about February and March 1987 the Company com milled unfair labor practices in violation of Section 8(a)(1) of the Act (a) Threatening its employees with unspecified repass als because of their union activities (b) Creating the impression of surveillance of its em ployees union activities (c) Threatening its employees with discharge because of their union activities (d) Threatening its employees that it would close its facility if the employees selected the Union to represent them 4 The Company did not violate Section 8(a)(3) and (1) of the Act when on March 13 1987 it terminated the employment of Glenda G Wells and thereafter failed and refused to reinstate her 5 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Company has engaged in cer tarn unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirma tive actions designed to effectuate the policies of the Act 24 The General Counsel s argument that the discriminatory nature of G Wells discharge is highlighted by the fact that Hatten did not allow her to explain her side of the situation at her discharge interview is with out merit There was no need for Hatten to allow her to explain her ac Mons because he was the one she had reacted to He was the one who had asked her to remove her outer garment and she had refused his re quest She had already told him she thought it was cold and she was not going to do to He had already explained to her that he would check the temperature settings in the facility but she would have to remove her outer garment in accordance with the Nursing Home s policies One fur ther argument by the General Counsel that the discriminatory nature of Well s discharge was established by the fact the rule in question was not uniformly established is also without ment The Nursing Home made and makes its policy known to all newly hired employees during orientation Employees are reminded on the spot if they inadvertently fail to follow the rule and are reminded of the rule during their annual evaluations Thus it is clear the General Counsels lack of uniformly established policy argument is without merit 689 It is recommended the Company be ordered to post the attached notice to its employees for 60 days in order that employees may be apprised of their rights under the Act and the Company s obligation to remedy its unfair labor practices On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed25 ORDER H C Cain, a sole proprietorship d/b/a Azalea Gar dens Nursing Center Wiggins, Mississippi its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Threatening its employees with unspecified repris als because of their union activities (b) Creating the impression of surveillance of its em ployees union activities (c) Threatening its employees with discharge because of their union activities (d) Threatening its employees that it would close its facility if the employees selected the Union to represent them -(e) In any like or related manner interfering with, re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its nursing home in Wiggins, Mississippi copies of the attached notice marked Appendix 26 Copies of the notice on forms provided by the Regional Director for Region 15 after being signed by the Nurs mg Home s authorized representative shall be posted by the Nursing Home immediately upon receipt and main tained for 60 consecutive days in conspicuous places in cluding all places where notice to employees are custom arily posted Reasonable steps shall be taken by the Nurs ing Home to ensure that the notices are not altered, de faced or covered by any other material (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Nursing Home has taken to comply IT IS RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found above 25 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 26 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 Judgme it of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 or dered 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 representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT threaten you with unspecified reprisals because of your activities on behalf of Industrial Union Department, AFL-CIO on behalf of OPEIU or any other labor organization WE WILL NOT create the impression that your union activities are under surveillance WE WILL NOT threaten you with discharge because of your union activities WE WILL NOT threaten you that we will close our fa cility if you select the Union to represent you WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act H C CAIN A SOLE PROPRIETORSHIP D/B/A AZALEA GARDENS NURSING CENTER