Springfield Manor

SPRINGFIELD MANOR HS Healthcare, Inc. d/b/a Springfield Manor and United Food and Commercial Workers Interna- tional Union, Local 831, United Food and Com- mercial Workers International Union, AFL- CIO, CLC. Cases 33-CA-7811 and 33-CA- 7831 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 27, 1988, Administrative Law Judge George F. McInerney issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed a brief in support of the judge's decision. 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 conclusions and to adopt the recommended Order as modified.3 i 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 adopting the judge's credibility findings, we do not rely on his com- ments concerning the Respondent 's pursuit of a lawsuit against witnesses Atkinson and Tapscott 2 The Respondent has filed a motion to amend pleadings to conform to evidence to include the affirmative defense that discriminatee Virginia Willhite is a supervisor within the meaning of Sec 2(11) of the Act The General Counsel has opposed the motion The Respondent 's motion is denied. The Respondent failed to raise the issue of Willhite's alleged su- pervisory status in its answer to the complaint or at the hearing Further, we find that even if we were to grant the Respondent 's motion, the Re- spondent has not met its burden of establishing Willhite 's supervisory status. In finding that the Respondent violated Sec 8(a)(3) and ( 1) by dis- charging employees Clements, Willhite , Lyons, Tinney, Green, and Bline, the judge found that the reasons given by the Respondent for the dis- charges were purely pretextual . Thus, he did not view the case as falling within the purview of Wright Line, 251 NLRB 1083 (1980). Contrary to the judge, the Board requires an application of the Wright Line analysis in all cases alleging violations of Sec 8(a)(3) and (1) that turn on employer motivation. Bridgeway Oldsmobile, 281 NLRB 1246 (1986), and cases cited there. It is not necessary, however, to rerationalize the judge's finding that the discharges were unlawful , as a finding of pretext "necessarily means that the reasons advanced by the employer either did not exist or were not in fact relied upon , thereby leaving intact the inference of wrongful motive established by the General Counsel " Limestone Apparel Corp., 255 NLRB 722 (1981). a We shall modify the judge 's recommended Order to conform his re- instatement and make-whole language to that customarily used by the Board We also shall modify his Order to require the Respondent to remove all references to the unlawful discharges from the discnminatees' personnel records and supply the Board with pertinent backpay informa- tion. 17 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, HS Health- care, Inc. d/b/a Springfield Manor, Springfield, Il- linois, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 2(a) and reletter the subsequent paragraphs. "(a) Offer Virginia Willhite, Paula Clements, Mary Lyons, Margaret Tinney, James Green, and Pat Bline immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions without prejudice to their seniority or other rights or privileges previ- ously enjoyed and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them , in the manner set forth in the remedy section of the decision." 2. Insert the following as paragraphs 2(b) and (c) and reletter the subsequent paragraphs. "(b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. "(c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. 295 NLRB No. 2 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT promulgate or enforce any dis- criminatory no-solicitation rules. WE WILL NOT blacklist our employees by notify- ing other employers that they have been terminat- ed for activities on behalf of any labor organiza- tion. WE WILL NOT discharge or discipline any of our employees because they engaged in, or we suspect- ed them of engaging in, activities on behalf of any labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them under Section 7 of the Act. WE WILL offer to Virginia Willhite, Paula Cle- ments, Mary Lyons, Margaret Tinney, James Green, and Pat Bline immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges previously enjoyed , together with backpay for any losses suffered by them as a result of our discrimination against them. WE WILL notify each of them that we have re- moved from our files any reference to their dis- charge and that the discharge will not be used against them in any way. HS HEALTHCARE, INC. D/B/A SPRINGFIELD MANOR Deborah A. Fisher, Esq., for the General Counsel. Paul R. Cole, Esq. (Erwin, Marlinkus Cole & Ansel Ltd.), of Champaign, Illinois, for the Respondent. Jairus Gilden, Esq. (Karmel & Rosenfeld), of Chicago, Il- linois, for the Charging Party. DECISION GEORGE F. MCINERNY, Administrative Law Judge. Based on charges filed in Case 33-CA-7811 on October 14, 1986, by Local 1696, United Food and Commercial Workers Union, and Case 33-CA-7831 on October 31, 1986, by Local 881, United Food and Commercial Work- ers International Union, AFL-CIO, CLC (the Union or the Charging Party), the Regional Director for Region 33 of the National Labor Relations Board, the Board, issued an Order consolidating Cases 33-CA-7811 and 33-CA-7831, and a complaint, on November 28, 1986, alleging that HS Healthcare, Inc., d/b/a Springfield Manor (the Company or Respondent), had violated and was continuing to violate, the provisions of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (the Act). The complaint was subsequently amended , and the Re- spondent filed a timely answer, denying the commission of any unfair labor practices. Pursuant to a notice of hearing contained in the com- plaint, a hearing was held before me in Springfield, Illi- nois, on April 27 through 30, and June 1 and 2, 1987, at which all parties were represented by counsel, and had the opportunity to present testimony and documentary evidence, to examine and cross-examine witnesses, to make motions, and to argue orally . Following the con- clusion of the hearing, the General Counsel and the Re- spondent filed briefs, which have been carefully consid- ered. On the entire record, including my observations of the credibility of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION The complaint alleges, the answer admits, and I find that the Respondent is an Illinois corporation having an office and place of business in Springfield, Illinois, where it is engaged in the business of providing intermediate level longterm care for mostly elderly patients. During the 12 months just prior to the issuance of the complaint, the Respondent derived gross revenues of over $100,000. In that same period the Respondent purchased and re- ceived at its Springfield facility goods and materials valued in excess of $15,000 directly from points outside the State of Illinois. The Respondent is, and has been at all times material an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Although the Respondent in its answer denied knowl- edge of the legal status of the Charging Party as a labor organization, the parties stipulated at the hearing, and I find, that the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Company and its Organization The Company operates a longterm intermediate' nurs- ing care facility known as Springfield Manor. Springfield Manor is owned by a limited partnership known as Healthcare Fund Limited, and is 1 of 12 nursing homes managed by HS Healthcare, Inc., headquartered in Savoy, Illinois. The president of HS Healthcare is Ray Edward (Ed) Hettinger, who is also a general partner in Healthcare Fund Limited . Margaret Patton is the admin- istrator of Springfield Manor, and was such for a year and a half before the hearing in this matter, including all times material herein. Administratively, Springfield Manor is divided into a number of departments. The departments, together with the names of the persons who headed them in the summer and early fall of 1986 are: nursing: Beth Miller , director of nursing ; Pam Pathael, assistant director of nursing social work; Loretta Mal- doner, social worker admissions ; Sue Tapscott, admis- sions coordinator food service; Diane Jacobs, food serv- ice superintendent activities; Dianna Volpo, activities di- rector maintenance, housekeeping and laundry; Bill At- kinson, superintendent. ' "Intermediate" is a technical term denoting the level of care available at the nursing home under regulations of the State of Illinois. SPRINGFIELD MANOR 19 There was no question about supervisory status of the director of nursing; the assistant director of nursing and the superintendent of maintenance. There was an issue here over the supervisory or managerial status of Sue Tapscott, the admissions coordinator during all times ma- terial herein.2 There were no questions about, and no evidence concerning, the status of the social worker, the activities director, or the food service superintendent. The department heads apparently served as a kind of advisory committee to the administrator during 1986, meeting weekly or more often to discuss problems con- cerning the staff, and how department heads were "relat- ing" to those problems. Unlike other employees, depart- ment heads were salaried, wore civilian clothes as a rule,3 and received free meals in the nursing home dining rooms. They were not paid overtime, nor granted com- pensatory time when they were required to work over 40 hours in a week. In addition to these factors, which she shared with other department heads, Sue Tapscott, as admissions co- ordinator, evaluated prospective patients and, if she de- termined that their health, mobility, and other medical characteristics were consistent with the ability of Spring- field Manor to care for them, set the rates they would pay,4 and arranged for their admission. She, along with Margaret Patton, received a bonus for bringing new pa- tients into the nursing home. While Tapscott was described by Patton as having no supervisory authority over any employees, the evidence is undisputed, based on the testimony of Tapscott herself, Bill Atkinson, and Patton that Tapscott participated in management's investigation into the conduct of Mary Lyons, Paula Clements, Margaret Tinney, James Green, and Patrick Bline, and that she participated or assisted in the preparation of warnings and discharge notices for Lyons, Clements, Tinney, Green, and Bline . Tapscott also had authority to pledge the credit of the Company at a local store and could charge gasoline to the Compa- ny's account. At this point, based on these factors and leaving aside any consideration of Tapscott's close personal relation- ship with Patton and the ostensible authority which em- ployees perceived as one aspect of that relationship, I find that Tapscott in fact was aligned with management and worked to formulate and effectuate management policies by expressing and making operative the decisions of the Employer. NLRB v. Bell Aerospace, 416 U.S. 267 (1974); Sutter Community Hospitals of Sacramento, 227 NLRB 181, 193 (1976); General Dynamics Corp., 213 NLRB 851, 857, 858 (1974); Swift & Co., 115 NLRB 752, 753 (1956). 2 Tapscott, a licensed practical nurse, had been assistant director of nursing until January 1986, when she was appointed to the admissions co- ordinator position. 0 The director and assistant director of nursing wore lab coats over ci- vilian clothes while on duty . All employees other than department heads wore some kind of uniform * Within limits prescribed by management , Tapscott herself assisted in a revision of those rates in the spring or summer of 1986 under the direc- tion of Ed Hettinger . While her participation may not have been the con- trolling factor in setting new rates, I find that she was an active partici- pant in the management group which did make those decisions. B. The Union Organization and the Company's Response On the early morning of June 18, 1986, some union representatives engaged in handbilling of employees at the entrance to the Company's premises. 5 Beyond this, the only union activities engaged in by employees seem to have involved some distribution of union authorization cards by a laundry employee named Mary Lyons on June 28; the passing of an authorization card from one laundry employee, Paula Clements, to another, Margaret Tinney, sometime around June 19; some prounion re- marks made by housekeepers James Green and Patrick Bline at company meetings called to discuss the Union, and a solitary union meeting in June attended by only two employees, Mary Lyons, with her son Rex Lyons, who worked in housekeeping and laundry at that time.6 Paula Clements did testify that she talked to other em- ployees about the Union and I can assume that the Union handbilling was a common subject of conversation among employees. On the morning the handbilling took place, Virginia Willhite, a licensed practical nurse (LPN) in charge of nursing on the second floor of Springfield Manor, called Administrator Margaret Patton to inform her of the ac- tivity. Patton came in to the facility and called a depart- ment head meeting. Management was uncertain about the reason for the Union's interest in the employees of the nursing home and this meeting was taken up with speculation about these reasons, and discussions on set- ting up meetings with the employees to counteract the Union's organizational attempts. Several exhibits placed in evidence by the General Counsel show that various managerial officials such as Bill Atkinson and Diane Jacobs, food service supervisor, 7 spoke at the employee meetings and talked generally about management's "open door," employee evaluations, merit raises, and other broad, noncoercive matters. There are no allegations in the complaint that statements made at any of these meet- ings violated the law.8 Later, on June 19, a high-level delegation from the Company's home office in Savoy, Illinois, including President Ed Hettinger, Personnel Director Lisa Daven- port, and an outside labor relations consultant named Russell Cloud came to Springfield Manor and briefed the department heads on what they could or could not say, and what they should and should not do in this situation. There is no evidence that any of these managers directed or suggested that the department heads do or say any- thing which has been alleged, or could be construed, to be unlawful. According to Patton, she continued to hold depart- ment head meetings twice a week after the Union ap- ° Those distributing the handbills were identified only as persons con- nected with the Charging Party herein. ° Rex later became a supervisor and testified as a witness for the Com- pany. T I note that an exhibit purporting to be an agenda for a meeting of food service employees was signed by Jacobs, and also by Sue Tapscott. ° There was some testimony that Bill Atkinson uttered statements that could be interpreted as threatening, but Atkinson himself, called as a wit- ness by the General Counsel, was not asked about these instances. 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD peared at Springfield Manor . She expressed surprise that this situation had come about , asked her department heads to check with employees in their department to determine what was "wrong" there, and to talk to the staff people in those departments. Patton stated that she did not require department heads to report union activi- ties, but she did expect that she would learn from the de- partment heads who was talking about the Union, or was active on its behalf. In addition to these supervisors' meetings, and employ- ee meetings called by management, the record here indi- cates only that a letter was sent to employees over Mar- garet Patton's signature on June 19 urging that they not sign union cards or join the Union. It would seem from the above undisputed facts that there was very little union activity generated by what- ever organizing efforts had been made by the Union or by employees on its behalf. Moreover, the Company's re- sponse, from Russ Cloud's admonitions to supervisors to, in effect, do good and avoid evil, to the innocuous con- tent of the June 19 letter and the agendas purportedly used at the several employee meetings held in mid-June certainly show the Company's concern with the Union, but do not indicate that the Company was embarking on a militant antiunion campaign. The testimony of Sue Tapscott and Bill Atkinson was generally in agreement with that of Patton as to the ini- tial meetings on June 19. However, Tapscott and Atkin- son described other meetings between Patton and other management employees which conveyed a quite different message. Tapscott testified that all of the department heads were present and that Patton named certain em- ployees whom she felt were strong union people , Virgin- ia Willhite, Don Richmond, James Green, Pat Bline, and people in the laundry, Paula Clements, and Mary Lyons. Patton said that she wanted those people out of there. Atkinson also testified about meetings at which only he and Tapscott were present with Patton, but he repeat- ed substantially similar statements 'by Patton, where she named Willhite, Richmond, Clements, Lyons, Green, and Bline, and indicated that she wanted them out of Spring- field Manor. Indeed, Atkinson mentioned one meeting where Patton called him in, apparently alone, and direct- ed him to fire Lyons, Clements, and a woman named Phyllis Brame. According to Atkinson, Patton told him that these employees were "part of the Union, worked for the union, or started the union and they wanted them out of the facility." Patton denied that any of these conversations had taken place or that she had ordered Atkinson to dis- charge any employees. On June 27 Paula Clements and Virginia Willhite were discharged. On June 28 Mary Lyons was discharged. On June 30 Margaret Tinney was discharged and Juanita Schroeder was given an oral warning . On July 12 James Green and Patrick Bline were discharged. C. The Discharges 1. Virginia Willhite Virginia Willhite is a licensed practical nurse (LPN) with some years of experience. She had been employed at another nursing home in Springfield called Dirksen House from April 1983 to May 1985, at which time she was discharged for involvement in union activities as a supervisor.9 She had some difficulty in obtaining new employment but was hired by Springfield Manor on No- vember 12, 1985 . On February 24, 1986, she was as- signed as head nurse, second floor, first shift. During the time Willhite worked on the second floor there were ap- proximately 86 patients in residence there . These were "intermediate" care patients . All were ambulatory, or at least not permanently confined to bed, but 80 percent of these were confused, incontinent and in Willhite's word "combative." They had to be lifted, changed, bathed, dressed, undressed , fed, and otherwise completely cared for. Willhite, as head nurse, was responsible under the di- rector of nursing and assistant director of nursing for all nursing care of these patients , for charting progress or lack of progress, treating illnesses, injuries , and medical conditions. She was responsible for assigning nurses' aides to rooms and patients on a daily basis.' o Willhite was formally rated twice during her employ- ment at Springfield Manor, once on March 11, 1986, by V. Atkins, director of nursing , in which she was graded as "above average" and was praised by the director; and on May 23 , 1986, by B. Wagner, R.N., director of nurs- ing, where she was rated "satisfactory" or "more than satisfactory" in all categories and was unqualifiedly praised by the director. After each of these ratings Will- hite was given a raise, bringing her from $6.40 per hour as of February 23 to $6.75 as of May 19 . Willhite was given a warning by B. Wagner, director of nursing, on May 8 for failing to make out a medication card or an order for medication by a physician. Willhite testified that she had never received any warnings , written or oral, other than the one on May 8, and was never repri- manded, counseled, or spoken by any supervisor about her dress, mannerisms, or other personal characteristics, or about conditions on the second floor of Springfield Manor. In late May or early June, Barb Wagner, the director of nursing, left and was succeeded by Beth Miller. Miller had worked with Willhite at Dirksen House, and was aware of the reasons for Willhite's discharge from the latter location. When the handbilling of Springfield Manor began on June 18,11 Willhite called Margaret Patton at her home ° There did not seem to be an issue about the fact that Willhite was a supervisor at Dirksen House and was not a supervisor at Springfield Manor. In this case, however, Respondent has raised the issue for the first time in its brief, alleging that Willhite was in fact a supervisor at Springfield Manor. This matter was neither raised as an issue in Respond- ent's answer, nor in the course of 6 days of hearing in the case The ques- tion of Willhite's alleged supervisory status was not litigated at the hear- ing. She was asked no questions, nor was there any testimony or docu- mentary evidence from other witnesses on the subject I find , therefore, that the issue has not been timely raised and it will not be considered Willhite was a rank-and-file employee. 10 There is no indication in the record that these assignments were anything other than routine in nature. I 1 There is no evidence here that Willhite had anything to do with the Union's interest in organizing Springfield Manor She seems to have been as surprised as management was by the June 18 handbilling SPRINGFIELD MANOR 21 to advise her what was going on. Willhite told Patton she had lost her job at Dirksen House because of the Union, that she did not want to lose her job at Spring- field Manor. She was upset and told Patton that she had nothing to do with the Union. On June 27 Patton had a meeting with Sue Tapscott, Beth Miller, director of nursing, and Pam Patheal, assist- ant director of nursing. According to Patton those present at this meeting discussed a variety of problems with and shortcomings in Willhite's work. Tapscott, on the other hand , testified that Patton merely informed the others that she wanted Willhite off the premises over the long July 4 weekend. She did not want Willhite in there "passing out union stuff." Beth Miller and Pam Patheal then went upstairs to draw up the papers for Willhite's discharge. They prepared a document charging Willhite with willful acts detrimental to patient care through failure to do daily rounds or examination of patients ; leaving pa- tients in the wrong wheel chairs; allowing the develop- ment of numerous new cases of bed sores; leaving haz- ardous chemicals exposed; not ensuring that patient data sheets were properly filled out; failure to discipline staff members following complaints to department heads; not disciplining aides; complaining or discussing problems with others in the presence of aides, and what were de- scribed as "insubordinate acts or statements or failure to carry out orders; use of vulgar language at nurses' sta- tion desk; and wearing inappropriate dress such as T- shirts and tight clothing. Miller and Patheal gave the document to Patton, who called Willhite into her office and discharged her on the spot. While some of these charges appear almost inconse- quential, the first few items, neglect of patients , failure to do daily rounds or examinations, failure to keep proper charts; allowing the development of numerous new cases of bed sores, and leaving hazardous chemicals exposed, are serious matters that could certainly form the basis for disciplinary action . Willhite emphatically denied all of these charges. Patton was not personally familiar with most of the charges against Willhite . She did testify that she made rounds with Willhite , and had "counseled" her many times in her office before determining on the dis- charge. On other occasions in her testimony, Patton, who otherwise impressed me as an extremely knowl- edgeable and competent witness, tended to be vague and imprecise. On the question of complaints from the fami- lies of patients Patton at first spoke of a number of such complaints, then narrowed it to one family, then could not recall the details, or even whether Willhite was re- sponsible for a stroke suffered by the patient whose family allegedly complained . 12 It is clear from Patton's testimony either that she either relied almost entirely on reports of Willhite's work given her by Beth Miller and Pam Patheal, or that she herself ordered the discharge, as stated by Sue Tapscott, and then left to Miller and 12 One family member of another patient testified about lack of dunk- ing water and other problems on the second floor of Springfield Manor, but this testimony really did not place any responsibility on Willhite. The problems alleged to be Willhite's responsibility occurred at times when Willhite was not working, and were described as continuing until early in 1987, long after Willhite's discharge Pathael the job of finding reasons to justify this predeter- mined action. I do not ordinarily draw negative infer- ences from the fact that individual witnesses do not testi- fy in a particular matter . There are many reasons why a witness may not, or will not, testify . In this case, howev- er, I must note that the absence of Miller and Patheal, as the supervisors who knew Willhite's work best, leaves Respondent's case lacking the only effective corrobora- tion available to Patton's testimony and leaves her vague and hesitant recollections alone against the clear denial by Willhite of the charges against her.13 As a kind of postscript to the Willhite discharge, Taps- cott testified that after Willhite was fired, Patton told Tapscott, Patheal, and Miller to call other nursing homes in the area and tell people there that Willhite was a union organizer and that she had been terminated from Springfield Manor for that reason. Tapscott stated that, pursuant to these instructions, she called the Lewis Me- morial Nursing Home in Springfield, talked to the ad- ministrator, and told him what Patton had told her to say. She recalled that the administrator's first name was Robert, and that she had met him with Patton when they first came to Springfield in the fall of 1985. Robert Florence, administrator of Lewis Memorial Christian Village, testified that he recalled Tapscott's name and that he knew of Willhite's activities at Dirksen House. He did not recall receiving a call about Willhite from Springfield Manor. I note that he did not deny that he received such a call, and I also note, again, that Miller and Patheal did not testify in this proceeding. 2. Mary Lyons Mary Lyons was hired by Springfield Manor on June 7, 1983, in the laundry. She was terminated on June 28, 1986, by Bill Atkinson and Sue Tapscott for violating company rules. She was reinstated in late July, but was terminated again at a later date for reasons unconnected with our concerns here . So far as the record discloses, the warning and discharge notice given Mary Lyons on June 28 remain in her file at Springfield Manor. Bill Atkinson testified that he and Sue Tapscott were at their apartment on Saturday , June 28, when they re- ceived a call from Springfield Manor. They went to the nursing home and apparently talked to two employees named Maria Baggerly and Terry Scorsolini, who told Atkinson and Tapscott that Mary Lyons was passing out 13 An LPN named Dorothy Champion , who was working at Spring- fied Manor at the time Willhite was discharged and was still there at the time of the hearing, testified that the atmosphere on the second floor when Willhite was there was "chaotic," and described people there was arguing and not getting along. This may very well be, but these were not the reasons that Willhite was discharged. I cannot find this corroborative of Patton's testimony . Similarly, Jane Wright, the corporate director of professional services, testified that she conducted an inspection of the nursing services at Springfield Manor on June 26. She noted quite a number of deficiencies on the second floor during the time Willhite was actually on duty. However, Wright admitted that she did not see Patton that day. Further, she did not recall speaking to anyone at Springfield Manor on June 26 about her inspection She returned to corporate head- quarters at Savoy, and her report , issued under date of June 30, could not have reached Patton before the decision to discharge Willhite on June 27. Patton never indicated that she had talked to Wright, or used this report in making up her mind to discharge Willhite. 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union cards. After this Tapscott made a number of calls to Patton and Ed Hettinger . Tapscott testified that Het- tinger directed her to get out the Company's employee handbook, and told her what sections to use in writing up a warning for Mary Lyons. Tapscott stated that ev- erything on the warning prepared for Lyons was written at Hettinger's direction. After writing up their warning, Tapscott and Atkinson called Lyons into an office and discharged her. Lyons admitted passing out cards, but denied that she had co- erced or harassed people. Rather, according to both At- kinson and Tapscott, Lyons stated that she only gave cards to people who asked for them. Lyons did not testi- fy here, nor did Baggerly and Scorsolini , the employees who blew the whistle on Lyons. Most significantly, Ed Hettinger, who allegedly dictated the warning and or- dered the discharge did not testify . Hettinger was present in the hearing room during the entire hearing. The testimony of Atkinson and Tapscott thus stands un- denied on this issue. 3. Clements and Tinney Paula Lee Clements was hired on July 11, 1984, as a laundry aide and worked either on the day shift from 6:30 a.m. to 3 p.m. or the afternoon shift from 2:30 to 11 p.m. until she was discharged on June 27, 1986. Margaret Tinney began work as a laundry aide on October 17, 1985, and she was terminated on June 30, 1986. The laundry at Springfield Manor is self-contained in its own two room area, separate and apart from patient care areas. There is a door from the laundry to a main corridor which is kept closed and locked except when employees are passing in or out . The day shift handles primarily linens, towels, sheets, bedclothes, and other in- stitutional work, and the afternoon shift does patients' personal clothing. There are generally two but some- times three employees working on each shift . The evi- dence shows that it was customary for both employees, when there were only two on a shift , to take their lunch together. Clements testified that they always shut down the laundry machinery and locked the laundry rooms before leaving.14 Clements also testified that she stopped and took a leaflet from the union handbillers on June 18, and further stated that she obtained union authorization cards from Mary Lyons on June 24, that she had signed one card herself and gave another one to Tinney, and that she had talked about the Union with other employees in the days before her discharge. Margaret Patton testified that Bill Atkinson had come to her sometime early in June 1986 and told her he was having production problems in the laundry . Patton vaguely recalled Atkinson as saying that "different things were going on in the laundry." Without further amplifi- cation, Patton testified that she directed Atkinson to hold a meeting with the staff to "tell them what he expected of them, what he wanted them to do." 14 Margaret Patton stated that some machinery had been damaged in the past because it was left unattended, but she did not indicate that any present employees had been responsible for that . Tinney did not testify. A meeting was conducted by Atkinson on June 9 at- tended by all the employees under his supervision in the laundry, housekeeping, and maintenance departments. An agenda of 10 items was prepared by Atkinson and discussed with the employees. Item 6 on the list read "Laundry overtime, no lunch or breaks to be taken to- gether leaving laundry unattended." On June 27, Patton testified that her secretary noted from timecards that Clements and Tinney had taken their lunch together on June 26, leaving the laundry unattend- ed while they were gone. Patton then notified Atkinson of this. There is some discrepancy here since Atkinson testified that he first noticed the timecards and that he, in turn, notified Patton . In any event, Atkinson called Taps- cott in to write up warning sheets to discharge Clements and Tinney . The theory for these terminations was that the employees had been given a direct order at the June 9 meeting not to take breaks together . This violation of an order constituted a "critical offense" against the Com- pany's rules and warranted summary discharge . Clements was fired on June 27. She protested that she had not left the machinery running in the laundry, although she ad- mitted that she and Tinney had taken their lunchbreak together. Further, Clements maintained that she had been told by Tom Casper, a former supervisor, that laun- dry workers could take lunchbreaks together as long as everything was turned off. Clements stated that this policy had never changed and that she was never told by anyone that employees could not take their breaks to- gether. 15 Bill Atkinson testified that Margaret Patton had told him that Ed Hettinger had instructed her that Atkinson was to discharge Mary Lyons, Paula Clements, and Phyllis Brame.16 According to Atkinson, Patton also told him that they were going to fire Virginia Willhite and Don Richmond,' 7 for the reason that they were part of the Union, or had started the Union, and they wanted them out of the facility. Pursuant to these instructions, on June 27, Atkinson noted timecards showing that Cle- ments and Tinney had taken a lunch hour together on June 26. He brought this information to Patton's atten- tion, and told her that they had an excuse for firing Cle- ments. Patton asked whether they could document this and Atkinson replied that he could document it through a June 9 in-service meeting . He told Patton he could add a paragraph or two to the agenda for that meeting to show that he had informed employees not to take breaks together. Patten said "Fine, do it." Atkinson then added a sentence to item six on the June 9 agenda. Sue Taps- cott testified that she actually watched on June 27 while Atkinson added the words on not taking breaks together to the June 9 agenda. Tapscott further testified that Patton told her that Cle- ments was fired because she was suspected of involve- 15 The sign-in sheet for the June 9 meeting shows that Clements was present at that meeting. 16 Phyllis Brame was not discharged in this late June period. She was still working in September 1986, when she was given several warnings. 17 Richmond was warned on June 10 , but continued to work until June 21, when he resigned to avoid being fired for additional offenses There is no indication that Richmond's situation came about as a result of Patton's remarks to Atkinson SPRINGFIELD MANOR 23 ment in the Union, and that Tinney was discharged be- cause they fired Clements and they had to fire Tinney to make it look as if they fired them both for legitimate dis- ciplinary reasons. According to Tapscott, Patton said they did not want to fire Tinney, but they had to in these circumstances. So far as can be determined from this record , no other employee was discharged for taking a break with an- other. There was a warning notice given another laundry employee named Juanita Schroeder , but it appeared that she had received permission to take a break with another employee at a time when the machines in the laundry were broken down. 4. James Green and Pat Bline James H. Green was employed at Springfield Manor on March 16, 1986, and was fired on June 12, of that year. Patrick A. Bline worked from April until June 12, 1986. They were both housekeeping aides, their primary duties were in cleaning of the premises with some addi- tional responsibility for assisting patients in and out of dining areas. In connection with their housekeeping duties, Green and Bline were supplied with carts which held supplies and utensils they used in their work. Among the supplies were cleaning solutions containing dangerous and even poisonous chemicals . As Margaret Patton testified, management was concerned lest these chemicals be left exposed where ill or confused patients could obtain and swallow them. Several months before July 1986, the Company had obtained new carts which had locked compartments where hazardous materials could be secured. There was a rule that these housekeeping carts should not be left unattended. According to testimony of Paula Clements, as well as Green and Bline they frequently were left unattended. Green did testify that he was told about this rule by Bill Atkinson when he was first hired. He stated that he always took all liquids and cleaning so- lutions off the top and secured them in the locked com- partment on the cart. Both Green and Bline had received recent favorable evaluations and pay raises as of mid-July. They were considered good employees according to their own testi- mony. Neither had been prominent in advocating the Union, although they had talked favorably about the Union to each other . According to Bline, at least one of these conversations could have been overheard by Bill Atkinson. On July 12, according to Rex Lyons, who was Atkin- son's assistant at that time, and at the time of this hear- ing, was himself the supervisor of the housekeeping de- partment, testified that Atkinson told him to check up on Green and Bline. Lyons did so and found, as he reported to Atkinson at the time, dirt and trash in rooms which they had been directed to clean. Lyons also found that they had taken an extra 15 minutes at lunch that day. At- kinson went into Patton's office and wrote up "some papers." Lyons brought Green and Bline to the office and Atkinson fired them. Lyons stated that Atkinson had never asked him to check on any other employees. Atkinson himself testified that he had been instructed by Margaret Patton to "get rid of anyone he felt was supporting the Union. He suspected Green and Bline be- cause of their attitude during meetings he had held with employees to discuss the Union. He noted their "looks and expressions" when something was brought up re- garding the Union, and he had heard rumors that they were for the Union. Atkinson did not testify that he sent Lyons to check on Green and Bline, but he did say that on July 12 it was "brought to his attention" that housekeeping carts were left unattended on the second floor and that Green and Bline were nowhere to be found. Atkinson went up to the second floor and found Green in the dining room, but could not locate Bline at all . He returned to the office and called Sue Tapscott. She then came to the nursing home and called Patton at her home, telling her that they had an excuse to fire Green and Bline . Patton said to go ahead and fire them . It was not clear from the testimony of Tapscott and Atkinson that Patton personal- ly and directly ordered the firing of Green and Bline on July 12 because they were suspected of harboring union sympathies. It is clear, however, that Atkinson testified that he initiated the discharges because he felt that Green and Bline were union supporters, and he believed that Patton approved of the discharges . Atkinson stated that there were no hazardous materials on the carts that day; that he could not say whether the carts were locked or not; that it was impossible for housekeepers to keep the carts in their sight at all times while they were cleaning rooms or bathrooms; that on many occasions employees took extended breaks or left carts unattended; and no one had been disciplined for these lapses. D. Credibility Findings 1. Background Margaret Patton and Sue Tapscott were longtime per- sonal friends. They had attended school together and worked together at a nursing home in Champaign, Illi- nois. When Patton was appointed administrator of the Springfield Manor Nursing Home in November 1985 she brought Tapscott with her as assistant director of nurs- ing. Tapscott was divorced and Patton was married, but when they came to Springfield , they rented an apartment together to use during the week while maintaining their own places in the Champaign area, to which they re- turned on weekends . They socialized together and at- tended a health club together. From all appearances they were close friends. This did not go unremarked by the employees of Springfield Manor. Virginia Willhite, an LPN, testified not only that Tapscott was one of those whom Willhite was required to call if she had problems or grievances, but Willhite observed also that you did not give Tapscott any trouble because "she was Margaret Patton's best friend and you just didn't do that because you would get in trouble." t 8 1s I did not consider this testimony in my determination of Tapscott's managerial status, above The testimony is credible , but I feel that basing a finding of managerial or supervisory status on such a personal relation- ship would require additional , more specific, corroboration 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In January 1986, Tapscott was transferred to a new position as admissions coordinator, where she remained until September of that year . As I have noted above, Tapscott remained a member of the management group, participating in supervisory meetings , participating in the formulation of policy, and the implementation of man- agement decisions. In her testimony Tapscott also de- scribed herself as the assistant administrator of Spring- field Manor. This claim was disputed by Jane Wright, di- rector of professional services for the parent Company, HS Healthcare. Wright testified that HS Healthcare had no positions of assistant administrator in any of its nurs- ing homes, and that establishment of such a position would require changes in the Company's policy manual, and approval of the central office in Savoy, Illinois, nei- ther of which was done. Wright was certain that Ed Hettinger had never approved the establishment of such a position and that Sue Tapscott had never been given the job or functions of an assistant administrator. I have no doubt that Wright correctly described the policy of HS Healthcare in regard to the position of assistant ad- ministrator, but there is a letter which was introduced in evidence here from the files of Springfield Manor, dated August 21, 1986, signed by Margaret Patton and ad- dressed to a Mr. Campbell, described as being with the Illinois State Department of Health . This letter purports to notify Campbell that Susan E. Tapscott took the posi- tion of assistant administrator, as well as admissions coor- dinator, of Springfield Manor as of January 3, 1986. Tapscott testified that there was another document in the files of Springfield Manor showing a table of organiza- tion with herself as assistant administrator placed below Patton and above the director of nursing in the chain of command. Patton and Wright denied that any such docu- ment existed, and it was not presented at this hearing. In their responses to questions on this letter, Patton and Tapscott agreed substantially , stating that the letter was prepared and signed to give Tapscott ostensible au- thority in order to fulfill state requirements to qualify as a nursing home administrator . As Tapscott stated, she needed 2 years as an assistant administrator in lieu of an associate degree from a college to be eligible to take the test to be an administrator . Patton admitted that she signed the letter to help Tapscott out, to give her experi- ence needed to qualify for an administrator 's position without a degree. Tapscott further testified that she was actually the second in command at Springfield Manor, filling in for Patton when the latter was absent. There was no independent corroboration of this claim by Taps- cott, but the testimony of Virginia Willhite, which I have quoted above, shows that Tapscott 's personal rela- tionship with Patton conveyed to employees an ostensi- ble authority which, whatever title Tapscott may or may not have had, could influence employees' status and their working conditions. the time, but there is no indication that Patton 's feelings resulted in any change in her cordial relations with Taps- cott. Atkinson and Tapscott were still together as of the time of this hearing. It goes without saying that the personal relationships between people are ordinarily of no concern to the Na- tional Labor Relations Board. In this case, however, the relations between the three people, and particularly the rupture in the relationships between Atkinson , Tapscott, and Patton, are critical to a resolution of the issues pre- sented here. 3. The chairs On May 10, shortly after Atkinson and Tapscott had moved in together to a new apartment on May 3, they, together with Margaret Patton and her husband, Frank, were in an Ace Hardware store on Wabash Avenue in Springfield to buy some supplies for a car wash fundrais- er for Springfield Manor. Tapscott spotted some kitchen chairs which were on sale and mentioned to Patton that she would like to have them for the apartment but that she could not afford them. Patton replied that Tapscott should talk to the store about holding them for her. Ac- cording to Tapscott , Patton also said she could put the chairs on layaway in the name of Springfield Manor. There was no documentary evidence or testimony about this transaction, but there is no dispute that the chairs were held by Ace Hardware for about a month. On June 10 Patton came to the apartment where Taps- cott and Atkinson were living.' 9 While Patton was there, Tapscott decided to go with Atkinson to pick up the chairs. Patton suggested that they use her car, which was roomier than theirs. Tapscott and Atkinson then went to the Ace Hardware store. Atkinson told Tapscott that he would pay for the chairs . He added that he would take the chair with the price tag and wait in the line at the cash register, and that she should, in the meantime, carry the other three chairs out to Patton's car. Tapscott did as she was told , even though it was a rainy evening. Instead of paying for the chairs, however, Atkinson charged them to the account of Springfield Manor, under authority he had to charge at that store. Tapscott made out a check that same night20 for the cost of the chairs, $187.34, and gave it to Atkinson. He, in turn, testified that he knew she did not have the money at that time, so he put the check away without telling her and never cashed it. He explained that he did not tell her this because he felt she would be upset. As far as payment was concerned, Atkinson testified that it was his intention, when he received the bill from Ace Hardware at Springfield Manor, to pay it himself rather than making out a purchase order and forwarding it for payment by the Company. 2. Tapscott and Atkinson In the spring of 1986 Tapscott and Atkinson entered into a personal relationship. In May they moved into a new apartment together and became engaged to be mar- ried. Tapscott testified that Patton objected to her be- coming so involved with Atkinson, who was married at 19 As I have noted, Patton's disapproval of Tapscott's relationship with Atkinson was apparently not serious enough to cause a break between the two women. 20 It is not clear whether Tapscott gave Atkinson the check in the car on the way back to the apartment , or after they had returned . There was no indication in the testimony that Patton knew or approved of the way the chairs were paid for. SPRINGFIELD MANOR 25 Unfortunately, for Atkinson and, as it turned out, for Tapscott as well, he was forced to resign on July 15. He thus was never able to intercept the bill from Ace Hard- ware, setting up a chain of events which led to the dis- charge of Tapscott on September 8 and to bitterness and recrimination between Tapscott and Patton. 4. Atkinson's resignation Atkinson resigned his job as director of environmental services on July 15, 1986. According to Atkinson, he was called into Patton's office that day to meet with Ken Floriant, the parent company's property manager from the headquarters office. Floriant asked for Atkinson's resignation, telling him that he had discharged employees improperly and that it was in the best interests of the Company that he resign . Atkinson later had a conversa- tion with Ed Hettinger, also in Patton's office, in which Atkinson asked Hettinger why he was being terminated. Hettinger said that it was up to Patton and Floriant, but that Atkinson had allegedly discharged people and had not followed procedures. Atkinson replied that Hettinger himself had told him to get rid of those people . Hettinger said he knew that but it was a mistake. Atkinson then re- signed. Patton testified that Atkinson ran an inefficient, chaot- ic department. According to her version of this issue, At- kinson did not secure the proper number of references for new hires; moved people around eccentrically and without reason; put evaluations in files without her re- quired approval; kept records badly if at all; handled purchases in such a way that no one knew what was being purchased, why, and for how much ; that he had improperly charged items such as an alarm clock, a cord- less drill, and louvered blinds; in short, ran a totally dis- organized operation . On July 3, Patton said, she called Ken Floriant to help Atkinson set up a schedule to handle his paper work. Later, she stated, Atkinson walked out on her when she tried to talk to him, and thereafter refused to follow orders she gave him and others. On July 15 she called Floriant again and, when he had talked to Atkinson , the latter resigned.21 In this instance, as in others noted above, I found Pat- ton's testimony to be vague, imprecise, and conclusion- ary. There is no documentation for her charges against Atkinson, no notes to him, no memoranda to the file, no records of telephone calls to headquarters, no records of the conferences on July 3 or July 15, or the discharge papers Patton says she had prepared .22 The two people who actually engineered Atkinson's resignation, Floriant and Hettinger, did not testify at all, and no reason was offered for their failure to do so. As I have observed, Hettinger was present in the hearing room during the entire hearing. As an unpleasant sequel to Atkinson 's resignation, both Tapscott and Atkinson testified that Patton attempted to 21 Patton stated that she had a discharge notice for Atkinson all pre- pared on that day, but that document was never offered or received in this hearing 22 The only documentary records of Atkinson's employment were three written evaluations all prepared by Patton and dated 12/3/85, 1/6/86, and 2/5/86. These were laudatory, and showed Patton's total sat- isfaction with an outstanding employee influence Atkinson's testimony to an agent of the Board investigating a case arising out of the union campaign at Springfield Manor23 Atkinson also named Hettinger as having tried to influence his testimony by hinting at a re- instatement, or assignment to another job with the parent company. According to Tapscott, who continued to work at Springfield Manor, despite the awkwardness of her con- tinuing relationship with Atkinson after his resignation, she talked with Patton a number of times about charges against the Company involving Mary Lyons, Green, and Bline. Patton told Tapscott that the Company wanted Bill Atkinson to testify on their behalf. She said it would look "very good" if he so testified and added that they had not filled his job yet and that he might get that job back, or get a corporate position by showing the Compa- ny that he was for the Company. Tapscott also testified that she and Atkinson went to dinner at Patton's house with Patton and her husband Frank Patton. At this meeting, Tapscott quoted Patton as telling Atkinson that he was made a scapegoat because of the Union and that if he would testify for the Compa- ny, after he had been asked to resign, it would look good for him. She said she would put in a good word for him with Hettinger, and he might get his old job back, or get a corporate job. Atkinson corroborated this testimony, and added that he also talked to Hettinger in Tapscott 's office some time after he had given an affidavit to the Board . Atkinson said to Hettinger that he hoped Hettinger appreciated what he had done for him . Hettinger said he would talk to Patton and Floriant. Later, Atkinson had a conversa- tion at Springfield Manor with Floriant. They talked about Atkinson's old job or a job at corporate headquar- ters, but Atkinson never heard anything further from the Company. On August 12, 1986, Atkinson gave an affidavit to a Board agent in Springfield in which he swore that he had discharged Clements and Tinney because they were insubordinate and did not follow orders . He also swore that he had discharged Mary Lyons because she was so- liciting for the Union on company time. Patton denied that she had ever solicited Atkinson to testify on behalf of the Company. She stated that Taps- cott and Atkinson came to a retirement party for her husband Frank on August 1. Atkinson told her that a "man from Peoria" wanted him to testify and had of- fered him money. Patton told him if he had any ques- tions about this to talk to Floriant or Hettinger, but that he would never work with her again after what had hap- pened. 5. Tapscott's discharge In the days immediately following Atkinson 's forced resignation Tapscott was understandably upset . Curious- ly, however, there was no testimony either from Patton or Tapscott herself that they discussed the resignation or the reasons for it. Helen Weakley, who had been medical records secretary at Springfield Manor in July 1986 and 23 Case 33-CA-7663, dated July 7, 1986. 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Therese Martin, Patton 's secretary at that time, both tes- tified that Tapscott was agitated and, on July 16, was seen searching through a bundle of purchase orders and invoices on Martin's desk.24 Tapscott said to both of these people that she would see HS Healthcare "go straight down the tubes ." There was no explanation of what Tapscott meant by this, nor was there any testimo- ny that she continued to be upset, or made further com- ments like that. Whatever resentment Tapscott may have harbored toward Springfield Manor apparently dissipated, or at least was not apparent in the relations between Tapscott and Margaret Patton. Tapscott continued to work for and to socialize with Patton . I have already described the preparation and execution in August of the document purporting to appoint Tapscott as assistant administrator of Springfield Manor. On September 4, Jane Wright, the corporate director of professional services, apparently came across the in- voice for the kitchen chairs which had been purchased on June 10 by Atkinson on the Springfield Manor ac- count. Wright notified Patton, and she asked Tapscott how she paid for them. Tapscott replied that she had written a check to Bill Atkinson for the purchase price of the chairs. Patton then informed Tapscott that the chairs in fact had been charged to Springfield Manor and directed her to go home, find the canceled check, and bring it back. Tapscott went home and looked through her canceled checks and could not find the one she had made out to Atkinson on the night of June 10. After an- other conversation with Patton, Tapscott called Atkinson and finally found out that he had charged the chairs to Springfield Manor and had not cashed her check. He said that he had planned to pay for the chairs when the bill came in, but in the meantime, of course, he had been forced to resign. At that time, Tapscott and Atkinson were in the proc- ess of moving. They looked through their belongings over the weekend of September 6 and 7 but could not locate the check. On September 8, Tapscott called Patton and told her she could not find the check. Patton told her to come in and they would talk about it. Taps- cott then went in and had a talk with Patton which de- veloped into what Tapscott described as a "heated argu- ment" primarily over Tapscott's insistence that Patton had given she and Atkinson permission to charge the chairs, then pay the bill when it came in, and Hettinger would never know about it. The argument ended when Patton gave Tapscott some documents to sign which she refused to do, and with Tapscott offering to have the price of the chairs deducted from her last paycheck if they would bring no criminal charges against she and 24 Tapscott testified that Martin had asked her to go over these papers, but she was not able to say what the reason was or what she was looking for. A suspicion naturally arises that she may have been looking for the invoice from Ace Hardware for the chairs . However, there was no indi- cation that Tapscott or Atkinson made any additional efforts to find the invoice, or to approach Ace Hardware to intercept any invoice which had not yet been received at Springfield Manor . Moreover, there was no effort made by anyone to find out what Tapscott may have been looking for among the invoices I do not , in these circumstances, view this as a significant incident. Atkinson, which offer was refused. Tapscott then col- lected her personal items and left the facility. Patton denied that she had ever told Tapscott that Springfield Manor would pay for the chairs. She also tes- tified that she heard that the chairs had not been paid for from Wright, but from another employee named Ron Smith who had told Frank Patton who in turn told his wife, Margaret. It was only then that she, Margaret Patton, notified Wright about the chairs. Smith was never called to testify and Wright did not discuss this issue in her testimony. The check which Tapscott said was given by her to Bill Atkinson was produced during an employment com- pensation hearing, and a copy was entered into evidence at this hearing. I had the opportunity to examine the original and noted that it was creased as if it had been folded but otherwise did not look as if it had been car- ried around in anyone's picket for any period of time. The check bears a printed number which is consistent with the series of other checks written by Tapscott in June 1986. 6. Conclusions a. The credibility issue The issue of credibility in this case came down to a critical evaluation and analysis of the testimony of Mar- garet Patton on one side, and Tapscott and Atkinson on the other. The relationships between these three people has been set out at some length because their personal re- lationships necessarily affected their actions toward each other and could well be said to have affected their testi- mony in this case as well. Beginning with Tapscott's taking the job with Spring- field Manor and moving from Champaign to Springfield, her relationship with Margaret Patton influenced her po- sition at the nursing home and her actions on the job. She moved to Springfield and shared quarters with Patton while they made arrangements to move perma- nently. She was first made assistant director of nursing, and then admissions coordinator, a position which in a more structured table of organization might be described as an administrative assistant , or confidential assistant, to the administrator. I do not believe that there is anything particularly unusual about this situation, where two man- agement employees are personal friends and share busi- ness as well as personal confidences. The first strains on this relationship apparently oc- curred when Tapscott moved in with Atkinson. Accord- ing to Tapscott, Patton disapproved of her friendship with Atkinson on the grounds that he was still married at the time, but Patton's objections were not so serious as to prevent she and her husband, Frank, from seeing Tapscott and Atkinson socially. Nor, but for perhaps a momentary flash of resentment on Tapscott's part, did Atkinson's forced resignation terminate the friendship be- tween Tapscott and Patton. There was only one social contact between the two couples after Atkinson left Springfield Manor, but Tapscott continued to work, and as late as August 23 Patton signed the document naming SPRINGFIELD MANOR 27 Tapscott as assistant administrator.25 The final split be- tween Patton and Tapscott happened in the September 4 to 8 incident involving the kitchen chairs, Tapscott's re- sponsibility, and Atkinson's action in charging the cost of the chairs to Springfield Manor. All this background needs to be taken into consider- ation in evaluating the credibility of Tapscott and Atkin- son, upon which so much of the ultimate resolution of the issues here rests. I must consider the inherent prob- abilities of the actions of the parties and the impact upon the parties of the forced resignation of Atkinson, the dis- charge of Tapscott, and the pressure of the Company's lawsuit against them over the chairs; whatever documen- tary evidence there is on any of these matters; and my impression of the demeanor of the witnesses who testi- fied in these issues. b. The chairs At the outset, it seems to me fairly clear that Patton somehow approved the use of the Company 's name on May 11, when Tapscott selected the chairs and put them in what the parties called "lay-away" status. The chairs then were set aside at no cost to the Company, or to Tapscott and Atkinson. Beyond this, there is no real evi- dence that Patton authorized further use of the company name or credit in the subsequent purchase. In her testi- mony describing her final interviews with Patton, Taps- cott seemed to say that she accused Patton of authoriz- ing payment by the Company, but in her direct testimo- ny about the events of June 10, when she and Atkinson went to pick up the chairs, she said only that Patton had furnished them the use of her car for the errand. Atkin- son mentioned nothing about Patton's authorizing pay- ment, and his testimony seems clearly to show that he charged the chairs to Springfield Manor's account on his own initiative, and I can infer consistently with his prac- tice on other occasions. It seems to me, moreover , that if Patton had in fact au- thorized the purchase on the Springfield Manor account, she would have taken steps to intercept the invoice from Ace Hardware, and make sure that it was paid before it was discovered by corporate headquarters, causing prob- lems for Patton herself, as well as for Tapscott and At- kinson. Thus I find, based primarily upon the logic and inherent probabilities of the situation , that Patton was not aware until September that the chairs were charged to the nursing home. Logic and probability, together with what scant docu- mentation there is, also impels me to conclude that Taps- cott was unaware at least up to the time of Atkinson's resignation that the chairs had not been paid for. The check #242 was in a sequence of other checks written in June 1986. Tapscott was candid, it seemed to me, in con- fessing that she never adjusted the balance in her ac- count to her bank statement , and thus never noticed that check #242 had not been cashed. I think Tapscott's ac- tions in going through invoices on the day after Atkin- son's resignation could be indicative of her desire to find the Ace Hardware invoice for the chairs, but the fact that she did not pursue the matter further, even though 25 See sec. III,D,1, above. her relations with Patton continued to be cordial and mutually helpful, would indicate that her motives in- volved something else. Atkinson's testimony on his reasons for paying for the chairs on the Springfield Manor account , and his reluc- tance to let Tapscott know what he had done is also log- ical in view of her previously expressed concern about her ability to pay for the chairs, and Atkinson's consider- ation for his new fiance's financial condition. The fact that the check could not be found on September 4, when Patton demanded that it be produced, may also logically be explained by the fact that Tapscott and Atkinson had moved recently and things were in a state of confusion at their new home. Almost anyone who has moved has ex- perienced the same sort of problems in locating even es- sential items. The last stage of this incident , the small claims action by the Company against Tapscott and Atkinson for the cost of the chairs, shows a residue of bitterness and acri- mony between the Company and its two former employ- ees. The Company's tendentiousness in pressing this small claim, $187 .34, against both Atkinson and Tapscott, in a situation where each had offered to pay, shows a vindictive attitude, designed to punish these people. At- kinson, in fact, had offered to pay what was due just before a scheduled trial, conditioning his offer only on the removal of Tapscott as a party defendant, on the grounds that she did not purchase the chairs. This was refused by the Company and, so far as revealed by the testimony here, the cost of the chairs has not yet been paid to the Company. This attitude on the part of the management of Spring- field Manor, discharging or forcing the resignation of these employees and pressing a lawsuit against them to the point where Tapscott alleged she was forced to file for bankruptcy, could well produce in Tapscott and At- kinson feelings of retaliation and revenge . I cannot find in the record any overt manifestations of that, except for a couple of statements allegedly made by Tapscott in July, but as I have noted , she continued to work cordial- ly with Patton for almost 2 months thereafter, blunting any effect these statements , even if made, on Tapscott's further relations with the Company. Insofar as credibility is involved in this incident, I find the testimony of Tapscott and Atkinson consistent, logi- cal, and inherently probable . Patton, too, testified logi- cally and in a manner consistent with other testimony in this area. All of these people had reasons to influence their testimony, but in the absence of any manifestations of bias or prejudice, I must proceed to evaluate the spe- cific situation, using the criteria outlined above. c. Atkinson's resignation The only witnesses to Atkinson's forced resignation were Atkinson himself and Ken Floriant. Margaret Patton was also involved to the extent that she described continuing problems with Atkinson , leading to her deci- sion to fire him. However, Atkinson testified that Flor- iant gave him an ultimatum, to resign or be fired because he had erred in discharging employees. Floriant did not deny this. He did not testify. Nor did Hettinger deny a 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conversation reported by Atkinson to the effect that the latter was just carrying out orders . Hettinger's reply, ac- cording to Atkinson, was that this was correct, but it was just too bad. With respect to Patton's testimony, it is not supported by the three evaluations she herself gave Atkinson in late 1985 and early 1986; and further not corroborated by any negative evaluations, written warnings, or repri- mands, or by a document which Patton said she had pre- pared for Atkinson 's discharge . Nothing was produced. Finally, according to Patton , Rex Lyons was involved in Atkinson's alleged final insubordinate actions. Lyons testified for the Company, but was asked no questions about these incidents, and thus did not corroborate Pat- ton's testimony. Either Patton's version of this incident , or Atkinson, could satisfy the requirements of logic and inherent prob- ability. Each version could have happened. Atkinson's story is reinforced by his evaluations , but Patton's ver- sion suffers from a total lack of corroboration . I find that Atkinson's version is correct. d. Tapscott's discharge There has been enough discussion of the kitchen chairs in this decision up to now, so nothing further is required on that issue. There is nothing further which is disputed in the last interviews between Patton and Tapscott, and this incident presents no credibility problems. e. Willhite 's discharge In Willhite's situation I am faced with a conflict be- tween the testimony of Margaret Patton and Sue Taps- cott on the reasons for Willhite's dismissal . Tapscott was clear in her allegation that Patton summoned the director of nursing, Beth Miller, the assistant director of nursing, Pam Patheal, and Tapscott to a meeting where she in- formed them that she wanted Willhite off the premises immediately. Patton was not clear in her description of Willhite's shortcomings , but the import of her testimony was unmistakable, that Willhite was not a competent su- pervisor, or even, as Patton stated, a good nurse. Again, the Company has produced no corroboration for Patton's testimony either through testimony26 or documentary evidence. 27 Beyond the testimony of Will- hite himself, which appeared credible, the documentary evidence brought in by the General Counsel shows that the Company considered Willhite a better than average employee in the course of two evaluations , the second a little over a month before her discharge. The language in the June 27 warning strains belief when compared with the May 23 evaluation. As in Atkinson's case, Patton talked about warnings and "counselling" but at one point claimed that she herself had counseled Willhite about problems with her work, and at another point stated that 26 Neither Miller nor Pathael testified and, while they were no longer employed by Springfield Manor , there was no showing that either was unavailable to testify here As I noted, I did not find the testimony of Dorothy Champion really germane to the discharge. 27 While I have Wright's June 30 report noting some deficiencies in nursing care in Willhite's area, there is no evidence that this report fur- nished any basis for Patton's decision. Miller had handled the task . Patton, usually so sure of herself and unequivocal in her testimony showed herself confused and vague in this situation. For these reasons, I must credit Tapscott's testimony that the real reason for Willhite's discharge was her prior union activity at Dirk- sen House, and Patton's fear that she would renew these activities at Springfield Manor, particularly over a long holiday weekend when Patton herself would be away. f. Lyons' discharge There is no question of credibility in the discharge of Mary Lyons. Tapscott and Atkinson, both of whom, as I have found, were agents of the Company, heard a report that Mary Lyons was passing out union cards at the nursing home. They rushed down there and after engag- ing in several telephone conversations with Patton and Hettinger wrote up a discharge notice and fired Lyons. In so doing, Tapscott and Atkinson practically para- phrased the entire "critical" offense section of Respond- ent's employee handbook. But, as Tapscott and Atkinson testified at this hearing, Lyons said she only gave cards to those who asked for them . The Company itself recog- nized that there was a problem with this discharge, and Lyons was reinstated sometime later . She was again dis- charged, but no further charges were filed on her ac- count. g. Clements' and Tinney's discharges As I have already noted, Patton testified , somewhat vaguely, about a meeting with Atkinson to discuss pro- ductivity problems in the laundry . She mentioned that she had told Atkinson to have a meeting with laundry employees, and to tell them what was expected of them. According to Patton, Atkinson talked to her about the meeting with the employees and told her what he had told the people at the meeting. Sometime later Patton was told by her secretary that timecards showed that Clements and Tinney had taken a lunchbreak together. Patton called these two employees in to her office, where they admitted that they had taken their lunch- break together and had left the machinery running in the laundry room . Patton also asked Clements and Tinney if they had been told they were not to take lunchbreaks to- gether and they said that they had been so instructed. Patton then discharged Clements and Tinney for dis- obeying the direct order allegedly given them at the June 9 meeting to discontinue taking lunchbreaks togeth- er for the laundry. Atkinson told quite a different story . He did not talk about a productivity meeting with Patton, but rather mentioned Patton's expressed desire to get rid of Cle- ments because of suspected union activities. Then, on June 27, he noted in routinely going over timecards that Clements and Tinney had taken their lunchbreak togeth- er on June 26. He called Tapscott and asked her to write up warnings and discharge notices for Clements and Tinney. According to both Atkinson and Tapscott, he had held a meeting with all of his department employees on June 9. He prepared a written agenda for that meet- ing, including as item 6 a warning that there would be no overtime in the laundry. Both Atkinson and Tapscott SPRINGFIELD MANOR stated that when he saw the Clements and Tinney time- cards on June 27 he felt that he could fire them. He then took his agenda for the June 9 meeting and , in Tapscott's presence, added to item 6 the words "No lunch or breaks to be taken together leaving laundry unattend- ed."28 Atkinson informed Patton that he had an excuse to fire Clements . Patton asked if they could document it and he replied that he could add a paragraph or two to the agenda for the June 9 meeting . She said, "fine, do it." Atkinson then added the sentence quoted above, adding in his testimony that he had never told the em- ployees this at the meeting. On June 27 Atkinson said that he met with Patton and Clements in Patton's office. Patton read the discharge notice to Clements and she denied that she was the only one who took breaks with others. Clements, in her testi- mony, affirmed this, also saying that she told Patton and Atkinson that she and Tinney shut off the laundry ma- chines before they left. She also denied that she had ever heard a direct order to stop taking breaks together. Tinney was called in on June 30 and discharged. She did not testify but both Atkinson and Tapscott testified that Patton had told them that the Company had to fire Tinney in order to justify the firing of Clements. The documentary evidence on this issue , timecards for various employees, show that joint lunchbreaks were not common, but there were several examples of employees taking breaks together both before and after Clements and Tinney were discharged. In this instance Patton's testimony again stands alone against those of Atkinson and Tapscott, with additional brief testimony by Clements on her discharge interview. Patton's secretary, who allegedly discovered the critical timecards, did not testify to corroborate Patton's version of that part of the incident. I find that the incident oc- curred as described by Atkinson, Tapscott, and Cle- ments. h. Green 's and Bline 's discharges There is no dispute that Green and Bline had left their housekeeping carts unattended on July 12, and that they had overstayed their lunch hours on that day. It is also undenied that Rex Lyons was instructed to check on them; that he did check on them and found that they had left their carts and extended their lunchbreaks ; and that leaving housekeeping carts unattended with dangerous or poisonous chemicals exposed presents a serious danger to patients. However, as Lyons testified, he had never before been sent to check on any other employees. At- kinson stated that he wanted an excuse to fire them. The real reason for their discharge was that Atkinson suspect- ed that they had been involved in union activity, or at least were sympathetic to the Union. Atkinson also added that he could not say whether the two employees' carts were locked that day; that there were no hazardous materials on the carts; and that it was impossible for 28 Since the original of this document has disappeared , I cannot really tell if these words were inserted at a different time than when the origi- nal was prepared. Rex Lyons, who testified for the Company, was not asked about that meeting. 29 housekeepers to do their work and to keep their carts in sight at all times. Patton was not involved directly and did not testify on this issue, but she did generally deny that she had or- dered or sanctioned any discharges for actual or suspect- ed union activity . I found Atkinson's testimony credible on this issue, and. I note again the absence of any con- trary testimony. i. Concluding findings on credibility With respect to the factors of logic and probability on my evaluation of the credibility of Margaret Patton, Sue Tapscott, and Bill Atkinson, I think that all three wit- nesses related versions of the facts to this case which were logical and inherently probable . In no instance was their testimony improbable, illogical, unlikely, or funda- mentally incredible. I could make findings based upon the testimony of these three alone which would support the positions either of the General Counsel and the Union on the one side, or the Respondent on the other. Even when I consider the comparative treatment of the six discharged employees , I do not find matters heav- ily weighed on one side or the other. In Willhite's case, for example, I think there were errors and shortcomings in her handling of the day shift on the second floor at Springfield Manor. In Mary Lyons' case, she may have left her work station and may have attempted to force union cards upon unwilling coworkers. In the cases of Clements and Tinney, if they had been ordered not to leave the laundry with machines running, and they did so, maybe they should have been fired, notwithstanding the fact that others had done so and were not. And if Green and Bline had left their housekeeping carts unat- tended with dangerous chemicals exposed while they idled away 15 minutes beyond their lunch hour, they should, likewise, have been fired. I think there are in all these cases questions of interpretation and circumstance, were it not for the testimony of Tapscott and Atkinson which throws a common mantle of antiunion motivation around all of these incidents. Looking at the questions of testamentary or documentary corroboration, it appears to me that the weight of the evidence here, and it is not really heavy, comes down on the side of Tapscott and Atkinson. On the issue of the chairs, Tapscott's bank statement, showing a gap in check numbers at the time the chairs were purchased, and the check itself tend to reinforce Tapscott's version of her actions at that time. In respect to the Willhite discharge, the uniformly positive evaluations would tend to corroborate Taps- cott's testimony that the discharge was pretextual. I fur- ther note in Willhite's case, as well as those of the other discharged employees, the use by Respondent of a shot- gun approach to these disciplinary actions, taking whole sections out of the employee manual and alleging viola- tions by the employees of a number of sections. This contrasts noticeably with discharges and warnings given to other employees , in exhibits introduced by the Gener- al Counsel, where specific actions are sharpely pinpoint- ed as reasons for discharge or other discipline. This is particularly true in the case of Mary Lyons, where the warning notice and discharge reflect the testi- 30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mony of Tapscott and Atkinson that they hunted through the handbook to find reasons for Lyons' dis- charge. In the Tinney and Clements situation Atkinson 's testi- mony was corroborated by that of Paula Clements re- garding the discharge interview , and in the case of Green and Bline, Atkinson was corroborated by Rex Lyons. Patton's testimony, as I have found, was not corrobo- rated by testimony or by documents. Even where Patton alleged she had documentation , as in the case of Atkin- son's forced resignation, she did not produce it. Nor did she produce any documentation on Willhite 's shortcom- ings, or on any other of the six discharges . The most critical factor in weighing Patton 's testimony, apart from questions of demeanor, is the total lack of corroboration by Ed Hettinger, Ken Floriant, Beth Miller, and Pam Pathael, for Patton's accounts of the actions involving Willhite, Atkinson, Tapscott, and Lyons. Turning finally to demeanor, I closely observed all the witnesses when they were testifying . I found Patton in most instances to be a real executive , firm and sure of herself. However, in critical spots such as the decision to discharge Willhite, the discovery of the timecards of Cle- ments and Tinney, the instructions to Atkinson to meet with the laundry employees , the decision to terminate Lyons, and on her participation in the layaway of the kitchen chairs, I found her to be vague , imprecise and evasive, forgetting or misremembering facts which she should have had immediately at hand . Tapscott, on the other hand, did impress me as straightforward and candid. Atkinson was more guarded . He was quite vague about the reasons for his termination , but no one, either on direct or cross-examination, pressed him, so I accept his version of the incident. Otherwise, I found Atkinson to be a solid and credible witness. Accordingly, I accept the version of events described by Atkinson and Tapscott based on their demeanor as I observed them testifying at this hearing ; on the logic and consistency of their stories ; and on the fact that where others testified about the same events , or documents were introduced concerning the people involved that tes- timony, with the exception, of course, of Patton's, and these documents tended to corroborate their testimony. j. Concluding findings on the unfair labor practices (1) The no-solicitation rule There is no question here that the Company promul- gated a new no-solicitation rule on August 1, 1986, which provides that employees are prohibited from dis- tributing literature on the nursing home property. The evidence showed that this rule was primarily honored in the breach, and that employees regularly solicited for Avon products, art work, home decorating items, and the like. Since there was no indication that the applica- tion of this rule was or is confined to working areas and working time, I find it to be overly broad in violation of Section 8(a)(1) of the Act. Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962); Presbyterian/St. Luke's Medical Center, 258 NLRB 93 (1981). (2) The discharges Since I have determined that the testimony given by Sue Tapscott and Bill Atkinson is true, and reflects accu- rately the motives of the management of Springfield Manor, as well as the actions of Margaret Patton and Ed Hettinger, as well as the actions of Atkinson and Taps- cot, I am impelled to the conclusion that all the dis- charges here were motivated exclusively by antiunion considerations. The alleged reasons advanced by Re- spondent for the discharges were entirely pretextual, in some instances reflective of some shortcomings by the employees, and in others wholly fabricated by Patton, Atkinson or, Tapscott. I therefore find that Respondent violated Section 8(a)(1) and (3) of the Act by the dis- charges of Paula Clements and Virginia Willhite on June 27, Mary Lyons on June 28, Margaret Tinney on June 30, and James Green and Pat Bline on July 12.29 See, e.g., Dawson Carbide Industries, 273 NLRB 382 (1984); Magnolia Manor Nursing Home, 260 NLRB 377 (1982). (3) The blacklisting Sue Tapscott testified that on Margaret Patton's orders she called the Lewis Memorial Nursing Home and told the administrator that they had terminated Virginia Will- hite at Springfield Manor because of union activity. This I find to be a further violation of Section 8(a)(1) of the Act. NLRB v. Mount Desert Island Hospital, 695 F.2d 634 (1st Cir. 1982). (4) Alleged subordination of Atkinson The credible testimony outlined above shows that Patton discussed with Atkinson after he had resigned from Springfield Manor the fact that he might be giving testimony to a Board agent in a prior case (33-CA-7663) involving Mary Lyons, and she intimated to Atkinson that if his testimony was favorable to the Company, he might get his old job back or he might be considered for a position at corporate headquarters. This matter is not entirely free from question. Even though I believe the testimony of Atkinson and Tapscott, that testimony is rather vague. Since there is no allega- tion here that this conduct of Patton involved a violation of the Act. Because of that I cannot say that the matter is either at issue here, or has been fully litigated, and I expressly make no finding on it. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirm- ative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully termi- nated Virginia Willhite, Paula Clements, Mary Lyons, Margaret Tinney, James Green, and Pat Bline, I shall recommend that Respondent offer them immediate and full reinstatement to the positions they occupied at the 29 I do not consider that this case comes within the rules laid down by the Board in Wright Line, 251 NLRB 1083 (1980). SPRINGFIELD MANOR time of the discrimination against them , or to substantial- ly equivalent positions, without prejudice to their seniori- ty or to any other rights and privileges they may have enjoyed in their employment for Respondent, and to make them whole for any loss of earnings suffered by them as the result of the discrimination against them by the payment to them of sums equal to those they would have earned, absent the discrimination against them, with backpay computed in accordance with the formula in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest in the manner prescribed in New Horizons for the Retard- ed, 283 NLRB 1173 (1987). Since I do not believe that the unfair labor practices found here are so numerous or egregious as to indicate a disregard for the law, or for ordinary norms of human conduct, I shall not grant the General Counsel's request for a remedial visitatorial provision. CONCLUSIONS OF LAW 1. Respondent HS Healthcare, Inc., d/b/a Springfield Manor, Springfield, Illinois, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The United Food and Commercial Workers Union, Local 881, United Food and Commercial Workers Inter- national Union, AFL-CIO, CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining an overly broad no-solicitation rule, the Respondent has violated Section 8(a)(1) of the Act. 4. By discharging its employees, Virginia Willhite, Paula Clements, Mary Lyons, Margaret Tinney, James Green, and Pat Bline, the Respondent has violated Sec- tion 8(a)(1) and (3) of the Act. 5. By attempting to blacklist its employee Virginia Willhite, the Respondent has violated Section 8(a)(1) of the Act. 6. The unfair labor practices set forth above affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed80 '° 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 31 ORDER The Respondent, HS Healthcare, Inc., d/b/a Spring- field Manor, Springfield, Illinois, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Maintaining and enforcing a discriminatory no-so- licitation rule. (b) Blacklisting any of its employees by notifying other employers that employees have been terminated for ac- tivities on behalf of a labor organization. (c) Terminating any of its employees because of their activities or suspected activities on behalf of a labor or- ganization. (d) 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) Immediately offer to Virginia Willhite, Paula Cle- ments, Mary Lyons, Margaret Tinney, James Green, and Pat Bline full reinstatement to their former or substantial- ly equivalent positions, together with all rights and bene- fits appurtenant thereto, together with backpay comput- ed in accordance with the manner set forth in the remedy section of this decision. (b) Post at its Springfield, Illinois location copies of the attached notice marked "Appendix."a 1 Copies of the notice, on forms provided by the Regional Director for Region 33, after being signed by an authorized represent- ative, 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 Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (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. Board and all objections to them shall be deemed waived for all pur- poses. 91 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."