Family Nursing Home & Rehabilitation Center, Inc.

FAMILY NURSING HOME 923 Family Nursing Home & Rehabilitation Center, Inc. and Karen J. Ingvoldstad and Local 150, Serv- ice Employees International Union , AFL-CIO- CLC. Cases 30-CA-9720, 30-CA-9724, and 30-RC-4693 June 30, 1989 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On October 13, 1988, Administrative Law Judge Peter E. Donnelly issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting and answering brief, and the Re- spondent filed an answering brief to the General Counsel's cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions 1 and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , Family Nursing Home & Rehabilitation Center, Inc., Mil- 1 In finding that the Respondent unlawfully discharged employee Mari- lyn Holland, Chairman Stephens and Member Devaney rely solely on the judge's findings regarding the Respondent's "disparate enforcement [against Holland] of the ban on solicitation" for conduct similar to that permitted to antiunion employee Dobson . In doing so, they find it unnec- essary to rely on the judge's further comment that Holland 's alleged transgression was "hardly a major infraction " 2 We agree with the judge 's recommendation that no reinstatement and backpay be provided for discnminatee Holland in the circumstances of this case. In so concluding, we rely solely on the evidence showing that Holland's conduct immediately following her discharge , and particularly her assault against the Respondent's director of nursing, was of a type that warrants denial of reinstatement and backpay . In ascertaining wheth- er those remedies are appropriate in the face of a claim of employee mis- conduct, the Board traditionally "looks at the nature of the misconduct and denies reinstatement in those flagrant cases 'in which the misconduct is violent or of such character as to render the employee unfit for further service."' C-Town, 281 NLRB 458 (1986), quoting J. W. Microelectronics Corp, 259 NLRB 327 (1981 ). Assessed under that standard, and notwith- standing that they were a response to an unlawful discharge , Holland's immediate postdischarge actions warrant the denial of backpay and rein- statement See generally Carthage Fabrics Corp., 101 NLRB 541, 553-555 (1952) (re employee Baldwin); Stein- Way Clothing Ca, 131 NLRB 132 fn 2 (1961) (re employee Garland ); cf. C-Town, supra. Member Cracraft agrees with her colleagues that Holland's conduct immediately following her discharge warrants denial of backpay and rein- statement. In so concluding, Member Cracraft relies particularly on the nature of the Respondent's business in caring for the elderly and infirm. We have modified the judge's notice to more fully conform with his recommended Order waukee, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge. IT IS FURTHER ORDERED that the election, held on August 21, 1987, be set aside and that Case 30- RC-4693 be severed from Cases 30-CA-9720 and 30-CA-9724 and remanded to the Regional Direc- tor for Region 30 for the purpose of conducting a new election. [Direction of Second Election omitted from pub- lication.] APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge our employees, thereby discriminating in regard to their hire and tenure of employment in order to discourage membership in Local 150, Service Employees International Union, AFL-CIO-CLC. WE WILL NOT promulgate, maintain or enforce any rule, regulation or other prohibition which for- bids the wearing of union insignia outside of imme- diate patient care areas or outside other specifically identified areas where the wearing of union insi- ginia would adversely affect patient care. WE WILL NOT grant wage and bonus incentives to employees in order to discourage support for the Union. WE WILL NOT interrogate employees about their union sentiments or activities. WE WILL NOT threaten to delay wage increases to employees if they select union representation. WE WILL NOT threaten to eliminate paid holi- days if the employees select union representation. WE WILL NOT threaten to eliminate overtime work for part-time employees if the employees select union representation. WE WILL NOT threaten to eliminate meal privi- leges of employees if they select union representa- tion. WE WILL NOT threaten to issue written warnings to employees for minor infractions if they select union representation. WE WILL NOT threaten employees with immedi- ate discharge for striking after selecting union rep- resentation. 295 NLRB No. 95 924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten to seek out and discharge employees for distributing union literature. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under the National Labor Relations Act. WE WILL offer Karen Ingvoldstad and Ann Wilber 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 any other rights or privileges pre- viously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL expunge from our files any reference to the discharges of Karen Ingvoldstad, Ann Wilber, and Marilyn Holland, and notify them in writing that this has been done and that evidence of these unlawful discharges will not be used as a basis for future personnel action against them. All our employees are free to become or remain or refrain from becoming or remaining members of the above-named or any other labor organization. FAMILY NURSING HOME & REHA- BILITATION CENTER, INC. Paul Bosanac, Esq., for the General Counsel. John M. Loomis, Esq., of Milwaukee, Wisconsin, for the Respondent. Judith E. Kuhn, Esq., of Milwaukee, Wisconsin, for the Charging Party. DECISION STATEMENT OF THE CASE PETER E. DONNELLY, Administrative Law Judge. The charge in 30-CA-9720 was filed by Karen Ingvoldstad, an individual, on August 26, 1987.1 The charge in 30- CA-9724 was filed by Local 150, Service Employees International Union, AFL-CIO-CLC (Union or Charg- ing Party), on August 28. An order consolidating cases, consolidated complaint and notice of hearing was issued on October 8, and an answer thereto was timely filed by Respondent. The petition in 30-RC-4693 was filed on June 30, and pursuant to a stipulated election agreement, an election was held on August 21. Objections thereto were filed by the Union on August 28. A revised tally of ballots was issued on September 23, disclosing that the Union had lost the election. By Order dated October 14, the above-captioned cases were consolidated for hearing. An amendment to the complaint was issued on Novem- ber 27, and an answer thereto was timely filed by Re- spondent. Pursuant to notice, a hearing was held before the administrative law judge in Milwaukee, Wisconsin, on December 8, 9, 10 and 11, 1987. Briefs have been r All dates are 1987 unless otherwise indicated timely filed by the General Counsel and Respondent, which have been duly considered. On January 15, 1988, Respondent filed a motion to correct transcript. No op- position thereto having been filed, that motion is hereby granted. FINDINGS OF FACT 1. EMPLOYER'S BUSINESS The Employer is engaged in the operation of a nursing home at Milwaukee, Wisconsin. During the past calendar year, Employer, in the course and conduct of its business operations, derived gross revenues in excess of $100,000. During that same period of time, the Employer pur- chased and received goods and services valued in excess of $5000 directly from points located outside the State of Wisconsin. The complaint alleges, the answer admits, and I find that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, the answer admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES2 A. Facts 1. The 8(a)(1) allegations Marvin Zetley purchased Respondent in December 1986. He is the president and sole owner. Zetley's three sons are corporate officers. It appears that at the time of the purchase Zetley reduced wages from their existing levels up to $1 per hour. In addition, according to Ing- voldstad, a part-time registered nurse, working condi- tions had worsened, creating considerable discontent among the employees. In an effort to call this matter to the attention of management, Ingvoldstad drafted a letter dated April 7 to Zetley which set out the concerns of the employees over such matters as understaffing, inad- equate supplies, reduced salaries and fringe benefits, to- gether with suggestions for improving the conditions. This letter requested consideration for these concerns and a response. The letter was signed by some 19 em- 2 While the complaint alleges that Steven Zetley, by interrogating Hol- land on August 20, violated Sec. 8 (a)(1) of the Act, Holland's testimony concerns only a conversation with Howard Zetley . No interrogation by Steven Zetley was ever established, and this allegation of the complaint should be dismissed. 0 There is conflicting testimony regarding some allegations of the com- plaint. In resolving these conflicts, I have taken into consideration the ap- parent interests of the witnesses In addition, I have considered the inher- ent probabilities; the probabilities in light of other events; corroboration or lack of it; and consistencies or inconsistencies within the testimony of each witness and between the testimony of each and that of other wit- nesses with similar apparent interests In evaluating the testimony of wit- nesses, I rely specifically upon their demeanor and have made my find- ings accordingly While apart from considerations of demeanor, I have taken into account the above noted credibility considerations, my failure to detail each of these is not to be deemed a failure on my part to have fully considered it. Bishop & Malco, Inc., 159 NLRB 1159, 1161 (1966). FAMILY NURSING HOME ployees, with Ingvoldstad's name heading the second column of signatures . Ingvoldstad testified that she placed copies of the letter in the in-house mailboxes of the administration directed to Zetley ; Max Taglin, Re- spondent's administrator; and Kim Zumft, director of nurses. Taglin and Zumft are no longer employed by Re- spondent. Zetley, who testified that the letter was packed full of "blatant lies," held a meeting of employees in early May4 to discuss the letter. At this meeting, Zetley denied the complaints set out in the letter and exhorted the employees to work together to run a good nursing home. A petition for election was filed on June 30. Zetley testified that he was not happy about the prospect of being organized and bargaining with the Union. He en- gaged an attorney to speak to his staff people and himself advised them that he was opposed to being organized. On July 15, a memo was posted by the timeclock. The memo read: MEMORANDUM CHANCE TO START EARLY FOR CHRISTMAS MONEY To: Nursing Staff In order to maintain continuity of patient care through consistent staffing patterns-the following will be implemented as follows: 1. Staff working two extra full shifts, during a pay period (beyond regular scheduled shift). or 2. Staff working both days of their weekend off. 3. Staff working 2 full double shifts in pay period. For all of the above-you shall receive an extra 50 cents per hour. Staff who are not absent for any reason during a months [sic] period and who have no tardiness, call ins, or leaving early for any reason will receive a $25.00 bonus. The wage incentives were implemented and remained in effect through November 15. Zetley testified that the incentives were the result of inquiries being made by the State of Wisconsin about understaffing . He wanted to give the employees the opportunity to earn additional money rather than hiring temporary employees to fill in for absenteeism. According to Zetley, the filing of the petition and Union's organizing effort had nothing to do with offering of the wage incentives. As a matter of Board and court law, the granting of benefits while a representation proceeding is pending is not per se illegal; however, if an employer grants bene- fits during this critical period, it has the burden of show- ing that the benefits would have been bestowed even if the union were not on the scene. R. Dakin & Co., 284 * While Zetley testified that the meeting took place July 15 , a review of the credible relevant testimony, particularly from Ingvoldstad, con- vinces me that it was held in May. 925 NLRB 98 (1987); ARA Food Services, 285 NLRB 221 (1987); Red's Express, 268 NLRB 1154, 1155 (1984). Re- spondent has totally failed to make such a showing. While Respondent argues that its incentive program was prompted by the State's inquiries into staffing shortages, and that the program was the best way to solve the problem, these explanations are not supported by the record. Moreover, the timing is suspect , since Respond- ent had reduced wages only 7 months earlier, certainly not a move that would not seem to alleviate staffing con- cerns. In these circumstances, I conclude that the grant- ing of a 50-cent-per-hour wage incentive and the $25 bonus incentive violates Section 8(a)(1) of the Act. In early July, and again on August 21, the day of the election, Zetley himself distributed paychecks to the em- ployees. At the July check distribution, Zetley also dis- tributed buttons to employees. These were about 3 inches in diameter, reading "We Are Family," together with the name of the nursing home. According to Zetley, the union organizing effort had nothing to do with the distribution of the buttons. According to Zetley, he wanted to get the employees to work together and to create a camaraderie among the employees. Regardless of Zetley's contention, it is clear that in the context of an election campaign, these were pro-Employer solicita- tions. The Union was also distributing buttons to employees. The buttons bore the legends "Service Employees Inter- national Union AFL-CIO Local 150" and "Don't Quit- Organize-Union 150, SEIU." These buttons were worn by employees during worktime. Marilyn Holland, a nursing assistant, testified that during the second week in July she was given a "Local 150" button which she wore at work. She testified that she was standing by the nurses' station when Marvin Zetley approached her, looked at the button, and told her that she could not wear that button in his building and to take it off now. Holland complied. Since Hol- land's testimony on this matter is uncontested , I conclude that the incident did occur; further, that in the circum- stances, ordering Holland to remove the button violated Section 8(a)(1) of the Act. While there may be special circumstances where an employer, particularly in the health care industry , may prohibit the wearing of union insignia, it may not, in circumstances where the employ- er is distributing and promoting the wearing of proem- ployer buttons, at the same time prohibit the wearing of prounion buttons. Such disparate enforcement violates Section 8(a)(1) of the Act as well as constituting interfer- ence with the election. Even in the absence of evidence of disparate enforce- ment, Respondent may not prohibit the wearing of union insignia outside of immediate patient care areas. As to other areas, a rebuttable presumption of legality exists and Respondent must show that this prohibition is neces- sary to ensure patient care . No such showing has been made in the instant case. Accordingly , I conclude that Marvin Zetley violated the Act in ordering Holland to remove her union button. Beth-Israel Hospital v. NLRB, 437 U.S. 483, 506 (1978), and Asociacion Hospital del Maestro, 283 NLRB 419 (1987). 926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On or about August 17 or 18, according to Ann Wilber, a dietary aide, she was in the breakroom with several employees when Tammy Wentz, cook supervisor in the dietary department, asked her and several others how they were going to vote . Wilber replied that she did not know . Wentz commented that they had better make up their minds since the election was coming up. Wilber also testified that at about the same date she and Nadine Brodsky were in the breakroom with other employees. Wentz and Dean Chapman, another supervi- sor cook, were talking. From an adjoining table at a dis- tance of about 15 feet, Wilber heard Wentz say to Chap- man that they were looking for people who were passing out literature for the Union or involved with the Union so that they could fire them . In circumstances where a supervisor makes coercive statements , in a public place, and those statements are overheard by employees, those statements violate Section 8 (a)(1) of the Act, whether they were intended to be overheard since the necessary effect of the statement would be to discourage employees from engaging in lawful union activity at the risk of their jobs. In another incident on about Wednesday, August 19, Dietary Department Supervisor Ruth Karlinsky called Wilber into her office. Karlinsky asked her if she had any questions about the Union . Wilber responded that she did not because a union representative had come to her home several times and had answered her questions to her satisfaction. Karlinsky told her that she was a good worker and could get anywhere from a 25 -cent to a 50-cent raise at the end of her probationary period (Aug. 24), but that if the Union were elected , she prob- ably would not see it for 6 months to a year . Karlinsky also told her that if the Union got in, Respondent was going to take away two paid holidays. Further, that if they went on strike , since Respondent was a health orga- nization, they would be fired immediately. In addition, Karlinsky told her that as a part-time employee she would not be allowed to work overtime as she had in the past or to eat leftovers in the kitchen as they had been doing and would have to bring meals from home. Also, that they would have to be written up for any minor in- fraction, such as being a few minutes late. Karlinsky tes- tified, but her recollection failed her when asked if she had initiated the meeting or had told Wilber that she would get a 50-cent raise upon completion of her proba- tionary period unless the Union won the election. About all that Karlinsky can recall is that she told Wilber to vote and saying that she did not care how she voted. Having carefully reviewed her testimony , I conclude that Karlinsky's testimony about her meeting with Wilber is not reliable and I therefore credit Wilber's ac- count of that conversation and conclude that the repre- sentations made to Wilber interfered with her rights guaranteed under Section 7 of the Act. In essence, Re- spondent, through Karlinsky, threatened that Respondent would delay a wage increase; take away paid holidays and overtime; deny employees meal privileges; write up employees for minor infractions; all in the event the Union won the election, and further, that if a strike ensued, they would be discharged immediately. These constitute essentially threats to reduce benefits, impose more burdensome working conditions and to discharge employees for exercising their Section 7 right to select union representation . While Karlinsky's inquiry at the outset, asking if Wilber had any questions about the Union, might not normally be coercive, it is clear that in the context of this entire conversation its innocence was lost, and must be viewed as an unlawful interrogation. Such interrogation is clearly coercive and violates Sec- tion 8(a)(1) of the Act. 2. Karen Ingvoldstad's discharge Ingvoldstad was employed by Respondent as a part- time registered nurse from December 1985 until she was discharged on July 24. As noted above, Ingvoldstad was responsible for the April 7 letter to Marvin Zetley, which set out various complaints about working condi- tions and suggested ways to improve the situation. The letter was followed by a meeting between Zetley and the employees . About the end of April, Ingvoldstad was contacted by the Union and furnished the Union with names and addresses of employees. Prior to this, Ing- voldstad had contacted another union and had been sent material on employee rights which she had distributed to some employees. Ingvoldstad went on vacation beginning May 26 and returned on June 24 , by which time the union campaign had become more active. The Respondent became aware of her union sentiments when she wore a union button on July 11 and 12. Marvin Zetley testified that he saw her wearing a union button. On Saturday, July 11, Ingvoldstad worked the first shift which ended at 3:30 p.m. As the shift was ending, Ingvoldstad realized that she did not have enough time to finish treatments for three patients that were called for on their charts. The treatments were the application of lotions, changing the dressing on a toe, and taking a blood pressure. She asked Nicky, her supervisor, whose last name she could not recall, what she should do about it. Nicky advised her to note on the chart that the treat- ments had not been done and the reason . Ingvoldstad told Nicky that before, when some treatments were un- finished, she had been told to leave them blank and report it to the following shift . Nicky indicated that she did not want it done that way because the next shift had too much work to do ; just to chart that it was not done and why it was not done . Ingvoldstad told the second shift anyway in the hope that they would have a chance to do it and they said that they would try. Ingvoldstad testified that she worked the following day, July 12, and did the treatments at that time, except for the blood pres- sure reading. Ingvoldstad was next scheduled to work on July 17, but she was called by David Fisher, director of nursing, on July 16 and told not to report. Thereafter, despite ef- forts by Ingvoldstad to determine her employment status, she was put off until July 24 when she was called by Fisher who asked her to come in at 3:30 p.m. to discuss her charting. They met in Fisher's office at about 3:30 p.m. Fisher called Ingvoldstad's attention to the fact that she had not done these treatments on July 11 and that by so doing, she had jeopardized her nursing license and the FAMILY NURSING HOME 927 license of the nursing home. Ingvoldstad explained that she had asked her supervisor how to handle the problem and that she was doing as she had been told. Fisher did not respond to this, reiterating that she had a legal direc- tion to do these things and that since she had not done them, she was fired. A "disciplinary action notice" made out by Fisher reads, in pertinent part, "Physician orders are to be followed . Employee terminated for not admin- istering treatments as prescribed." Fisher testified that his first knowledge of the matter came during the middle of the week of July 12, when someone he cannot recall brought to his attention the no- tations made by Ingvoldstad on the patients' charts. The record does not disclose who the "someone" was or why the three charts were being reviewed at that time . Fisher testified that charts are normally checked at the end of the month and returned to the floors if they are incom- plete, to be reviewed by individual nurses responsible. In any event, Fisher testified that upon learning of Ingvold- stad's failure to administer these treatments, he met with Marvin Zetley in his (Fisher's) office. According to Fisher, they discussed the Ingvoldstad incident in light of a recent state inspection of staffing and patient abuse problems at Respondent's nursing home, and it was de- cided that Ingvoldstad should be discharged. Zetley, however, could not recall the discussion. 3. Marilyn Holland's discharge Marilyn Holland, a nursing assistant, was employed by Respondent from May 12 until she was discharged on August 20. At the time of her discharge , Holland was still in the 120-day probationary period set out in Re- spondent's "Personnel Policies" handbook . Holland testi- fied that during the organizing effort she obtained union authorization cards and got about eight of them signed. Holland came to work on Thursday , August 20, at about 2:30 p.m., some half-hour before her starting time of 3 p.m. The election was set for the following day, Friday, August 21. Union Representatives Dan Katz and Veronica Taylor were on the sidewalk outside of the main entrance of the nursing home distributing union pamphlets. As Holland went into the facility, she ob- tained about 10 leaflets which she folded, stuck inside her uniform, and brought into the building with her. As she went into the building, an employee named Doris Dobson was standing in the main doorway of the Re- spondent's property passing out antiunion leaflets. Once in the building, Holland went to the employees' lounge since it was not yet time to punch in, and she gave pam- phlets to a couple of employees who were on their break. Just before 3 p.m., Holland punched in and went to the second floor, her assigned area, and put the leaf- lets into her locker. Holland testified that she then left the second floor to take a patient by elevator to the busi- ness office located on the first floor. According to Hol- land, Dobson was still in the doorway passing out leaf- lets to those employees entering. At this time Holland went outside of the building to the sidewalk where she obtained more pamphlets. Holland obtained a handful of pamphlets which she hid in the back of her uniform. She then returned to the business office and returned with the patient to the second floor where she removed the leaflets from her uniform and put them under the linen on her linen cart. Later, according to Holland , she was making a bed in one of the rooms when Howard Zetley came into the room and said to her, "Marilyn, you are very involved in the Union, aren't you"; to which Hol- land responded, "So what about it" ; and Zetley said "You better ask somebody about our track record and how we do things around here" and left the room. Howard Zetley denied ever speaking to Holland on August 20 and testified that he left the nursing home in the morning and did not return until about 6 p.m., when he was called in because of the disturbance incident to Holland's discharge. Having reviewed the testimony, I am satisfied that Howard Zetley was the more reliable witness, and I credit him in concluding that this conver- sation did not occur. Fisher testified that at about 3:15 p.m., he observed Holland on the first floor of the building . Fisher testified that he was concerned that Holland was not on her as- signed unit on the second floor since the shift change period between 3 and 3:30 p.m. was a busy time due to the transition of employees from one shift to the next and there was a danger to patients during that process. Fisher followed Holland to the second floor and saw her put the green pamphlets under the linens on her cart and enter a patient's room. He removed the pamphlets and read one of them. Fisher then was paged by Diane Riyahi, the Respondent's personnel director, who told him that she had observed Holland outside the building getting some pamphlets from some people who were dis- tributing them outside the building . Fisher then went, with the pamphlets, to Riyahi's office where they con- firmed that those were the pamphlets Holland had picked up outside the building. Fisher then threw the pamphlets away. Thereafter at about 4 p.m., Fisher was on the second floor when he observed Holland on the telephone.5 After confirming with Holland's third-shift supervisor that Holland was not on breaktime, Fisher called Riyahi, apparently with a view toward discharging Holland, in order to determine if,Holland was in her probationary period and to see what her file contained as to prior dis- ciplinary actions. Rihayi told Fisher that Holland was still a probationary employee and that she had previously been given a written warning for smoking in an unau- thorized patient bathroom area, which Fisher recalled since he was directly involved in the incident and had, himself, issued the warning . At that point Fisher made a determination to terminate Holland and consulted with Sue Castro, Holland's supervisor, who suggested that the termination take place in the activities room on the lower level to avoid disturbance to the patients. At about 4:45 p.m., Holland was called to the activities room where Fisher and Castro were waiting for her. Fisher asked Holland to sit, but she declined and all three stood . Fisher began to question Holland about leaving her unit that day and using the telephone on non- scheduled breaktime. Holland was uncooperative in dis- 3 Holland concedes that she was on the telephone speaking to a third- shift employee about that employee picking up union pamphlets to dis- tribute to the third-shift employees. 928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cussing or responding . At this point Fisher explained that leaving the unit left patients unattended and that because of that and her past performance, she was being termi- nated. Holland protested, with anger and profanity, that Fisher could not do this to her. Holland then backed up, grabbed a bowling trophy and came at Fisher with it in her hand, still protesting her discharge. Fisher picked up a chair to hold her off. Holland grabbed a leg of the chair to pull it away. At this point Fisher asked Castro to call the police. Castro went to the phone, but Hol- land, seeing this, grabbed the phone receiver and pulled it out of the phone, wires and all, exclaiming that no one was going to make any "fucking calls to the police on this phone." Fisher then told Castro to use a phone in another office to call the police. Castro left the room and made the call. Still protesting that she could not be ter- minated, Holland put down the trophy and left the room. After leaving, Holland returned to the floor where she tore the linen from some made-up beds and threw them on the floor. Shortly thereafter, in an area near the main entrance, Holland confronted Fisher again, angrily protesting her firing and demanding her check immediately. Fisher asked her to leave the premises and made two more calls to the police before Holland left the premises at about 6 p.m. 4. Marilyn Holland's reinstatement At the hearing, Fisher took the position that Respond- ent would not rehire Holland because of the following misconduct which he felt disqualified her from reem- ployment. On May 6, Holland had filled out an employment ap- plication with the Respondent . The form required a list- ing of the applicant's four most recent employers. How- ever, Holland did not list her employment with Colonial Manor Nursing Home from April 1985 to March 1987. When asked at the hearing why she had not listed Colo- nial Manor, Holland replied, "Because I had got in some trouble there, and I figured they would give me a bad reference." Nancy Greymont, human resources director for Colonial Manor, testified that after an investigation, Holland had been discharged from Colonial Manor for patient abuse consisting of flicking a cigarette lighter in the face of a patient. Thereafter, the incident was report- ed to the State of Wisconsin Department of Health and Social Services who conducted its own investigation and approved as appropriate the action of Colonial Manor. Holland was originally granted unemployment compen- sation benefits but after a hearing on appeal by Colonial Manor, the decision was reversed and Holland 's request for benefits was denied on the grounds that she had been discharged for misconduct. Greymont also testified that at the hearing Holland had threatened a witness saying, "You better get your ass out of Milwaukee," and "He can't protect from wherever you're going to try and hide. I'm going to get you." Another incident occurred on July 28, when Holland was arrested by Milwaukee police officer Teresa Ulickey. Holland was handcuffed and put in the rear of a police car. Ulickey testified that while en route to a police station, Holland began to use profane and abusive language toward her. Holland then began to kick at the partition separating her from Ulickey. Ulickey stopped the police car and called for a backup squad. Holland continued to kick at the doors and windows of the police car and sprung the car door. The backup squad arrived, shackled Holland's feet and took her to the station in a police wagon. Fisher testified that in light of the above incidents and given Holland's conduct at the time of her discharge, he felt that any reemployment of Holland constituted a risk to patients and a potential liability to the Respondent if it knowingly hired a person with such a history. 5. Ann Wilber's discharge Wilber, while still in high school, was hired as a part- time dietary aide by Respondent on April 24. She worked weekdays from 4 p.m. to 8 p.m. and on Satur- days and Sundays from 6:30 a.m. until 3 p.m. The work included a tray line where food, condiments, silverware, beverages, etc., were placed on trays and delivered to patients. Nourishments were also served between meals to patients at 10 a.m., 2 p.m., and 8 p.m. Other work in- volved the washing and scouring of trays and utensils. During the week of the election, Wilber was spoken to by various supervisors at the facility, including Karlinsky who inquired about her vote and Marvin Zetley who suggested that she vote for the Company. The election was held on August 21. Shortly after Wilber voted, she was talking to another dietary aide , Gigi French, who asked her how she had voted. Wilber reluctantly confid- ed to her that she had voted yes because she felt the Union would do something for her. According to Wilber, as the conversation was ending she saw a man she identified as Howard Zetley standing about 15 feet away with an angry look on his face and then leaving. Wilber testified that she felt that he had heard the con- versation which she described as being in a normal con- versational tone. Howard Zetley denied knowing Wilber or overhearing any conversation between employees. While I credit Wilber that the conversation with French took place, I cannot conclude based on the record testi- mony, and in light of Howard Zetley's denial, that he overheard this conversation. On Saturday, August 22, the day after the election, Wilber came to work at 6:30 a.m. Wilber testified that she had been ill earlier in the week but came to work hoping she would feel better. Wilber had been signed up by Cook Supervisor Tammy Wentz to serve food on the tray line. However, since Wilber was still sick and the smell of food made her nauseous , she asked Wentz if she could switch jobs with some other person on the tray line. Other jobs included setting out beverages , condi- ments or silverware on the trays . Wilber testified that in those other jobs, the heat from the steamtables and the smell of the food would not make her ill. It appears that it was common for employees to make such job switches on the tray line, and Wilber testified that she had switched tray line jobs herself previously. However, Wentz denied her request, telling her that if she could FAMILY NURSING HOME 929 not serve food she was to punch out and go home. This is what Wilber did.6 Karlinsky testified that on the morning of August 24 she spoke to Wentz who reported the Saturday incident to her. According to Karlinsky, Wentz told her that she had asked Wilber to serve on the tray line. Wilber said she could not serve on the tray line and Wentz told her that if she could not do her job to go home, whereupon Wilber punched out and left . Karlinsky testified that she made the decision to discharge Wilber based on this in- formation, together with the fact that Wilber was in her probationary period as an employee . She also testified that it did not matter to her that Wilber was not refusing to do the other jobs on the tray line. Karlinsky also states that while Wilber did tell Wentz that she was ill, she did not ask Wentz to find out whether Wilber was really ill or not. Karlinsky later spoke to Steven Zetley, son of owner Marvin Zetley, who oversees the dietary, laundry and housekeeping departments and he agreed with the decision to discharge Wilber because he felt the same way Karlinsky did, that an employee "unable to complete their job when they are assigned a job is to be terminated." Having decided to terminate her, Karlinsky wrote out a warning notice dated August 22. The body of it reads: Employee came in on Sat said she was sick-at the start of trayline-Supervisor stated if she was to [sic] sick to do her job she should just leave-(Em- ployee Punched Out) (Employee routinely must leave trayline 1 out of 2 days when scheduled in the morning)-(weekend). Gary [Saunders] states this has happened at least 4 out of 5 weekends that you have worked with him. As Ann knows we are on a rigorous schedule and trayline is the most important job to be done- employees cannot be allowed to slow or stop tray- line process once it is started-this causes cold food-late meals etc. A line further down recites, "Because of the seriousness of the above violation, employee's employment at the fa- cility is terminated as of 8/22/87." After Wilber arrived for work that afternoon at about 3:30 p.m., Steven Zetley asked her to come into Kar- linsky's office. While both were present, Karlinsky gave her the written notice of discharge. Wilber read it, ex- plained what had happened and began to complain that she disagreed with the statement in the termination notice attributed to Gary, another cook supervisor. Kar- linsky told her that if she had anything to take up with Gary, she had better do it with him.7 According to 6 Wentz did not testify. Since only Wilber's testimony concerning the events of August 22 are on the record , I accept as credible her unrebut- ted testimony. 7 While the written discharge notice states that Wilber "routinely" leaves the tray line on weekends, Saunders did not testify, and the record does not otherwise establish those assertions. According to Wilber's testi- mony which is credited in the absence of any contradictory testimony, Wilber frequently worked overtime, as her timecards indicate, and the only time she can recall leaving work early was one day in July 1987 Wilber, Karlinsky told her that she was a good worker and was sorry to see her go and that the decision had not come from her but from "higher up." Karlinsky ad- mitted that Wilber was a good worker but denied having made any reference to "higher up." However , a review of the testimony of Wilber and Karlinsky persuades me that Wilber was the more reliable of the two witnesses and, to the extent that accounts of their conversation differ, I credit Wilber's version. Karlinsky then asked Wilber to sign the termination notice, which she did, and then Wilber left. It is undisputed that Wilber had no prior written warnings in her record and that other em- ployees discharged during their probationary periods had received more than one written warning prior to their discharges. IV. ANALYSIS AND RECOMMENDATIONS A. Ingvoldstad's Discharge Respondent's position is that Ingvoldstad was dis- charged for failing to complete patient treatments. The General Counsel contends that this explanation is a pre- text and that Ingvoldstad was actually discharged be- cause of her participation in the Union's organizing effort. On the facts disclosed by the record in the instant case, I am convinced the General Counsel should pre- vail. First, it is clear that Ingvoldstad , even prior to the Union's main organizational effort, drafted, signed, along with others, and delivered to management, in early April, a letter voicing the employees ' dissatisfaction with their working conditions . She later assisted in the organi- zational effort by providing the names and addresses of employees to the Union. Ingvoldstad also publicly dis- played her prounion posture by wearing a union button and Marvin Zetley concedes that he saw her wearing the button. On the facts, it is clear that Ingvoldstad was an active union supporter and that the Respondent was aware of it. Next, we must decide whether this union activity was the reason for the discharge or whether it was actually for her failure to complete patient treatments. Ingvold- stad did not have time on her shift to complete three pa- tient treatments. It does not appear, nor was any testimo- ny adduced to the effect that Ingvoldstad was remiss or otherwise at fault in not completing these treatments; she simply did not have time. 8 Having run out of time, Ing- voldstad went to her supervisor, Nicky, for advice on how to handle the problem . She was advised to note the mistreatments on the patients' charts, noting the reason, which she did. This was a departure from past practice where the chart was simply left blank and the next shift made up the missed treatments . Although Ingvoldstad called this to Nicky's attention , she was nonetheless in- structed to do it as directed . It appears that Ingvoldstad did the treatments on the following day except for taking the blood pressure. when she fainted in the kitchen due to the heat and was sent home by Respondent for the day. 9 Her supervisor, Nicky, did'not testify, and I credit Ingvoldstad's un- rebutted account as to the events of July 11. 930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD These circumstances persuade me that the reason as- signed by the Respondent for Ingvoldstad's discharges are pretext, and I further conclude that she was dis- charged for her union activity. It is undisputed that she was an active union supporter and that this was known to Respondent. The record does not disclose that she was remiss or negligent in not doing the treatments, and thereafter she simply did as she was instructed to do by her supervisor. The simple failure to administer the treat- ments is not per se justification for the discharge , certain- ly not in the absence of any evidence that Ingvoldstad was remiss or negligent in not doing the treatments. Respondent's reliance on Wright Line9 is misplaced. Where, as in this case , the General Counsel has made a prima facie showing sufficient to support the reference that protected conduct is a motivating factor for the dis- charge, the burden shifts to the Respondent to demon- strate that Ingvoldstad would have been discharged even in the absence of the protected conduct . The justification offered by Respondent is totally insufficient to support that burden. In these circumstances, there actually was no valid jus- tification for the discharge. Accordingly, I conclude that Ingvoldstad was actually discharged for engaging in ac- tivity that was both protected and concerted and that the Respondent has violated Section 8(a)(3) of the Act. B. Holland's Discharge The General Counsel contends that Holland was dis- charged because she attempted to distribute union pam- phlets on August 20, the day preceding the election. Re- spondent contends that Holland was discharged for leav- ing her assigned work area and her unauthorized use of a public telephone, together with the fact that she was a probationary employee with a prior disciplinary action notice in her personnel file. It is undisputed that Holland was active on behalf of the Union's organizational effort and that Respondent was aware of her sentiments . Indeed, Holland was sin- gled out by Marvin Zetley in ordering her to remove a union button. The record discloses that after Holland arrived at the facility, she distributed some pamphlets; went to her floor to work; left the floor for a short time ; got more pamphlets and returned once again to her floor. She was followed by Fisher who uncovered and read the pam- phlets which had been hidden under the linens on Hol- land's linen cart. The precipitous discharge of Holland so soon after Fisher's discovery makes suspect the reasons advanced by Respondent for her discharge, particularly in view of the relatively minor infraction for which she was allegedly discharged. Certainly, Respondent had a right to expect employees to remain in their work areas, particularly at shift-change time, but an absence of a few minutes is hardly a major infraction, even in combination with the use of the telephone on other than breaktime. These do not constitute major transgressions . Nonethe- less, Fisher's first instinct was to discharge Holland and he reacted by calling the personnel officer, confirming a prior disciplinary action; confirming that Holland was still in her probationary period, and summarily discharg- ing her. It is more reasonable to infer that Fisher, after having discovered the antiunion pamphlets on Holland's linen cart, must have surmised that they were intended for dis- tribution. There would be no other logical explanation for the presence of union pamphlets secreted on her linen cart. One would have been sufficient for Holland. Con- fronted with this on the day before the election, Fisher decided to solve the problem by discharging Holland. The fact that she was in her probationary period and had been issued a prior disciplinary warning was fortuitous from Fisher's point of view since it suggested an appar- ent justification for the discharge. However, I do not find these factors controlling since even considering them, the offenses for which she was discharged were too insignificant to explain the discharge in light of other circumstances set out above, and the Respondent's strong antiunion bias as evidenced by the other acts of coercion, interference and discrimination found herein. Thus we are left with circumstances wherein we have, as noted above, a pro-Respondent employee, Dobson, distributing pro-Respondent pamphlets during worktime on company property. Having known of this activity, Respondent could not at the same time prohibit union employees from making similar distributions of prounion literature. Holland was discharged because she had pam- phlets in her possession which Respondent could reason- ably have assumed were going to be distributed. Such disparate enforcement of the ban on solicitation is unlaw- ful. It follows that a discharge for either possession of or distribution of prounion literature , while at the same time allowing the distribution of antiunion literature, is unlaw- ful. Pilliod of Mississippi, 275 NLRB 799 (1985); St. Vin- cent's Hospital, 265 NLRB 38 (1982). Accordingly, I con- clude that by discharging Holland , Respondent violated Section 8(a)(3) of the Act. I also conclude that any reliance on Holland's miscon- duct to support a Wright Line1O rationale is misplaced, specifically where her misconduct was minimal. I am sat- isfied, based on the record herein , that the General Counsel has made a prima facie showing sufficient to support the inference that Holland's protected conduct was a "motivating factor" in Respondent's decision to discharge Holland and that Respondent has not met its burden of demonstrating that Holland would have been discharged even in the absence of that protected con- duct. C. Wilber's Discharge The General Counsel takes the position that Wilber was discharged because of her union sentiments. Re- spondent contends that Wilber was discharged because she was unable to perform the serving line assignment she was given. The record in this case dealing with Wil- ber's discharge convinces me the General Counsel should prevail. As noted earlier in that section of this decision dealing with the 8(a)(1) allegations, Wilber's union sentiments 9 Wright line, 251 NLRB 1083 ( 1980). 10 Wright Line, supra. FAMILY NURSING HOME 931 were given special attention during election week. She was interrogated by Wentz and later by Karlinsky. She responded to Karlinsky that she had been visited by a union representative at her home who had answered questions to her satisfaction . In this same conversation Wilber was unlawfully threatened with more burden- some working conditions and discharge if the Union won the election and a strike ensued . This evidence suggests that Wilber's union sentiments were at least suspect, and Wentz' remarks to Chapman that Respondent was look- ing for the union adherents in order to discharge them leaves little doubt of Respondent's antiunion animus. Turning to the incident itself, the credible evidence shows that Wilber was ill. However, she did not ask to leave, but simply if she could do another job on the tray line. This accommodation had been made before, both for Wilber and other employees. However, on this occa- sion, Wentz, rather than switching her to another job, told her that if she could not do the specific serving job assigned to her, she was to punch out. No consideration was given to her illness. No effort was made by anyone to inquire about or to verify her illness. Indeed, accord- ing to Karlinsky, it would not have mattered whether she was ill or not. She would have been discharged simply because she could not do the job assigned to her, illness or not. A review of Wilber's work record discloses no prior warnings or disciplinary action and no one had previous- ly spoken to her concerning her absences or leaving the job. It appears that other employees, including proba- tionary employees, had been issued written warnings prior to their discharges. In addition, Wilber was con- cededly a good worker who had been complimented by her superiors and who had been promised raises in the future and had, during the course of her employment, worked overtime and worked on some of her scheduled days off. t t Despite this commendable work record, Wilber was precipitously discharged on the last day of her probationary period for being unable to perform a specific serving line task when normally an accommoda- tion would have been made by assigning her to another serving line task. In these circumstances , it is clear to me that Respondent seized upon this incident as a pretext to discharge her and that the real motive for Wilber's dis- charge was retaliation for her prounion sentiment. V. OBJECTIONS TO ELECTION The objections herein are subsumed within the allega- tions of the complaint. Accordingly, to the extent that I have found merit to the unfair labor practice allegations, I also conclude that objections based on such misconduct are sufficient to warrant setting aside the August 21, 1987 election. It is therefore recommended that the Board set aside the August 21, 1987 election and remand Case 30-RC-4693 to the Regional Director for Region 30 for the purpose of conducting a new election at such I I Respondent's contention that Wilber had developed a "pattern" of illness on weekends, which was a factor in her discharge, is simply not supported by the record. Timecards, which would have supported this contention, were never offered by Respondent. time as he deems the circumstances permit the free choice of a bargaining representative. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with Respondent's oper- ations described in section I above, have a close and inti- mate relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirm- ative action designed to effectuate the policies of the Act. I have found that Respondent discharged Karen Ingvoldstad, Ann Wilber, and Marilyn Holland for rea- sons which offended the provisions of Section 8(a)(3) and (1) of the Act. I shall recommend that the Employer make Ingvoldstad and Wilber whole for any loss of pay they may have suffered as a result of the discrimination practiced against them. However, with respect to Hol- land, I conclude that reinstatement and backpay are not appropriate. Unlike the General Counsel, I conclude that her misconduct was sufficiently egregious to render her unfit for future employment with Respondent. Roure Bertrand Dupont, 271 NLRB 443 (1984). Respondent is responsible for the care of the elderly and infirm. Hol- land's hostile personality, as demonstrated by the miscon- duct, is not compatible with that undertaking. All back- pay and reimbursement provided herein, with interest, shall be computed in the manner described in New Hori- zons for the Retarded12 and F. W. Woolworth Co., 90 NLRB 289 (1950). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of their rights guaranteed in Sec- tion 7 of the Act, Respondent has engaged in and is en- gaging in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. By discharging Karen Ingvoldstad, Ann Wilber, and Marilyn Holland, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 12 In accordance with the Board's decision in New Horizons for the Re- tarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S C § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Family Nursing Home and Rehabili- tation Center, Inc., Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promulgating, maintaining or enforcing any rule, regulation or other prohibition which forbids the wear- ing of union insignia outside of immediate patient care areas or outside other specifically identified areas where the wearing of union insignia would adversely affect pa- tient care. (b) Granting wage and bonus incentives to its employ- ees in order to discourage support for the Union. (c) Interrogating employees about their union senti- ments or activities. (d) Threatening to delay wage increases to employees if they select union representation. (e) Threatening to eliminate paid holidays if the em- ployees select union representation. (f) Threatening to eliminate overtime work for part- time employees if the employees select union representa- tion. (g) Threatening to eliminate meal privileges if the em- ployees select union representation. (h) Threatening to issue written warnings to employ- ees for minor infractions if the employees select union representation. (i) Threatening employees with immediate discharge if they engaged in a strike after selecting union representa- tion. (j) Threatening to seek out and discharge employees for distributing union literature. (k) Discharging employees, thereby discriminating in regard to their hire and tenure of employment in order to discourage membership in Local 150 , Service Em- ployees International Union, AFL-CIO-CLC, or any other labor organization. (1) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Karen Ingvoldstad and Ann Wilber imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent em- ployment and make them whole for any loss of pay they may have suffered as a result of the discrimination prac- ticed against them in the manner set forth in the remedy section of the decision. (b) Expunge from its files any reference to the dis- charges of Karen Ingvoldstad , Ann Wilber and Marilyn Holland, and notify them in writing that this has been done and that evidence of these unlawful discharges will not be used as a basis for future personnel action against them. (c) Preserve and, upon request, make available to the Board or its agents for examination and copying all pay- roll records, social security records and reports , and all other records necessary to analyze the amount of back- pay due herein. (d) Post at its Milwaukee, Wisconsin facility copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 30, after being signed by Respondent 's authorized representative, shall be posted by it immediately on re- ceipt and maintained for 60 consecutive days in conspic- uous places including places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the election held on August 21, 1987, in Case 30-RC-4693 is hereby set aside and the case remanded to the Regional Director for Region 30 to conduct a new election when he deems that the circumstances permit the free choice of a bar- gaining representative. 19 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 14 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."