Blossom Nursing Center

BLOSSOM NURSING CENTER 333 Gerald F. Schroer, Inc. d/b/a Blossom Nursing Center and United Food and Commercial Work- ers International Union, Local 880, AFL-CIO. Cases 8-CA-20180, 8-CA-20452, 8-CA- 20680, 8-CA-20884, 8-CA-21269, 8-CA- 23149, and 8-CA-21430 July 31, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On August 10, 1989, Administrative Law Judge Thomas R Wilks issued the attached decision, cor- rected by an Errata on September 1, 1989 The Re- spondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authonty in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Gerald F Schroer, Inc d/b/a Blossom Nursing Center, Alli- ance, Ohio, its officers, agents, successors, and as- signs, shall take the action set forth in the Order 1 No exceptions were filed to the judge's finding a violation of Sec 8(a)(1) in connection with the Company's no-solicitation rule and a viola- tion of Sec 8(a)(3) and (1) in connection with the Company's disciplining Pandora Howell for wearing union jewelry Nor were exceptions filed to any of the judge's dismissals of complaint allegations Charles Z Adamson, Esq , for the General Counsel Stanford Gross, Esq (Gross, Goodman & (Issociates), of Cleveland, Ohio, for the Respondent Michele L Yarde, Administrator, Blossom Nursing Center, of Alliance Ohio, for the Respondent Joseph C Kapzath, Organizer, of Cleveland, Ohio, for the Charging Party DECISION STATEMENT OF THE CASE THOMAS R WoAcs, Administrative Law Judge The trial in this matter was litigated before me on February 27, 1989, at Alliance, Ohio, pursuant to unfair labor prac- tices charges and amended charges filed by United Food and Commercial Workers International Union, Local 880, AFL-CIO-CLC (Union) against Gerald F Schroer, Inc d/b/a Blossom Nursing Center (Respondent) and a complaint and series of complaints that preceded a fourth order consolidating cases and third amended consolidat- ed complaint that issued by the Regional Director for - Region 8 on January 31, 1989 The sequence of events leadmg to that consolidated complaint is as follows Pursuant to a Stipulated Election Agreement between the Union and Respondent, an election was conducted in Case 8-RC-13624 on June 5, 1987, in a bargaining unit of all full-time and regular part-time aides, laundry em- ployees, housekeeping employees, and dietary employees employed at the Respondent's Alliance, Ohio facility Subsequent to the election, on June 19, 1987, the Union filed an unfair labor practice charge in Case 8-CA-20180 alleging that the Respondent violated Section 8(a)(1) and (3) of the Act by interfering with its employees' Section 7 rights and by discriminating against employee Virginia Toussant because of her activities on behalf of the Union The unfair labor practice charge was amended on July 16, 1987, to include alleged unilateral changes of vaca- tion and pay raise policies, discriminatory treatment of employee Pam Kraft, and violation of Section 8(a)(5) of the Act by a refusal to bargain with the Union Further unfair labor practices were filed by the Union on October 7, 1987, in Case 8-CA-20452 alleging viola- tions of Section 8(a)(3) and (5) of the Act Among the additional allegations of unlawful conduct were the fol- lowing (1) discrimination against employees Claudia Kirksey, Pamela Cline, Betty Stevens, Tina Baker, and Diane Wiley, (2) discharge of employee Darlene Hall be- cause of her support of the Union, (3) suspension of em- ployee Donna Lare because of her support of the Union, and (4) discipline of employee Pandora Howell because of her support of the Union This charge was amended to omit the charge regarding the above-named discrimi- nation against Claudia Kirksey, et al General allegations of violations of Section 8(a)(3) were set forth in Case 8- CA-20680 dating from December 1, 1987, to January 19, 1988, which was amended on March 3, 1988 Concurrently, the Respondent challenged the validity of the election held on June 5, 1987 It was Respondent's position that the conduct of the organizational campaign and the election itself necessitated setting aside the elec- tion of the Union as the collective-bargaining agent for bargaining unit employees A hearing was held and the hearing officer overruled the Respondent's objections to the election These findings were upheld by the Board which on March 10, 1988, certified the Union as the col- lective-bargaining agent for the bargaining unit employ- ees The Union's demand for bargaining on March 21, 1988, was refused by Respondent on April 6, 1988 Re- spondent challenged the Board's findings as being con- trary to law and fact from April 6, 1988, to this litiga- tion Respondent's refusal to bargain pending its test of the Board certification gave rise to an unfair labor prac- tice charge filed by the Union on April 12, 1988, alleging violation of Section 8(a)(5) of the Act in Case 8-CA- 20884 Further violations of Section 8(a)(1), (3), and (5) of the Act were alleged in the charges in Cases 8-CA-21269, 8-CA-21349, and 8-CA-21430 filed on September 23, October 20, and December 1, 1988, inclusive of alleged discriminatory discipline and discharge of employee Kraft After issuance of the third amended complaint, shortly prior to the trial, the parties stipulated to the 299 NLRB No 42 334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD withdrawal of Respondent's denials to numerous com- plaint allegations of Section 8(a)(1) as set forth in com- plaint paragraphs 11(A) through (M), 12(A) through (E), 12(I), 12(K), 12(M), 13(A) through (E), 12(B), 15, and 19(0) and thereby rendered them admitted under the Board's Rules The parties stipulated further to the issu- ance of an appropriate order and notice posting remedy- ing the violations alleged in those paragraphs and reserv- ing to the General Counsel the right to adduce evidence of the alleged violations, which in fact, at trial, the Gen- eral Counsel did to a limited extent for the purpose of establishing background and motivation In addition, the parties resolved the alleged termina- tion of employee Pamela Kraft which was set forth in complaint paragraph 23 which was subsequently with- drawn by counsel for the General Counsel The discipli- nary warnings alleged in complaint paragraphs 18(C) and (D) in respect to employee Virginia Toussant and Pamela Howell were also resolved by the parties, and withdrawn from the complaint allegations of violative conduct The parties also entered into a stipulation as to Respondent's alleged unilateral conduct which will be discussed below In consequence of the foregoing stipulations and reso- lutions, the following issues remained for litigation before me (1) whether Respondent violated Section 8(a)(5) of the Act by admittedly, unilaterally, and without notice to the Union, effecting certain changes in terms and con- ditions of employment, some of which are also alleged to have been coercively implemented and discriminatorily motivated and thus also violative of Section 8(a)(1) and (3) of the Act, (2) whether it engaged in certain conduct violative of Section 8(a)(1) of the Act, e g, certain coer- cive statements and the promulgation and maintenance of an overly broad no-solicitation rule, (3) whether, by the termination of employment of employee Darlene Hall and the disciplining of employee Donna Lare, Respond- ent violated Section 8(a)(1) and (3) of the Act, and (4) whether, by the disciplining of employee Pamela Howell pursuant to an allegedly unlawful "no access" rule, Re- spondent violated Section 8(a)(1) and (3) of the Act Posttnal bnefs were filed by the General Counsel and Respondent on May 15, 1989 Having reviewed the entire record in this consolidated matter, including the testimony, documentary evidence, and briefs, and based on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION At all times material, Respondent, an Ohio corpora- tion, with an office and place of business in Alliance, Ohio (Respondent's facility), has been engaged in the op- eration of a nursing home Annually, Respondent, in the course and conduct of these business operations, derived gross revenues in excess of $100,000 and received goods valued in excess of $50,000 directly from points located outside the State of Ohio It is admitted, and I find, that Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II LABOR ORGANIZATION It is admitted, and I find, that the Union is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act III FACTS A Background The parent corporation of Respondent, 1 e, Gerald F Schroer, a/k/a Altercare, purchased the Alliance, Ohio facility from Kathy and Mike Callihan in July 1986 Kathy Callihan continued for a period thereafter as ad- ministrator In January 1987, Michele Yarde was hired as the new administrator after a December interview and orientation by her superiors at Altercare She com- menced actual duties for Respondent at the Blossom Nursing Center in Alliance in February 1987 Yarde tes- tified that upon her hiring she was told by her superiors that she was to enforce the employment policies of Al- tercare, which Kathy Callihan had failed to do In early 1987, the Union commenced an organizing effort directed at Respondent's facility (Blossom) which employed about 60-65 employees in the admitted appro- priate bargaining unit consisting of full-time and regular part-time aides, laundry employees, housekeeping em- ployees, and dietary employees and excluding casual and temporary employees, licensed practical nurses and main- tenance employees, office clerical and statutory exclu- sions That effort resulted in a Board-conducted election on June 5, 1987, and Board certification on March 10, 1988 As noted above, Respondent withdrew its denial of multitudinous allegations of Respondent's coercive an- tiunion conduct which, thus, becomes admitted under the Board's Rules The General Counsel further adduced credible, largely uncontradicted evidence of Respondent conduct from which pervasive antiunion hostility must be inferred As noted above, the Respondent has chosen to contest the Board certification and has refused to recognize and bargain with the Union and has admittedly executed uni- lateral changes in bargamable terms and conditions of employment without having afforded the Union notice and bargaining opportunity Respondent has admitted having afforded the Union no notice nor bargaining op- portunity with respect to all the matters alleged as changes in terms and conditions of employment in com- plaint paragraph 12(K) (the admitted order of removal of jewelry from the person of an aide), 12(N) (the admitted cessation from May 1987 through September 1988 of all employee wage reviews and suspensions of discretionary wage increases), 17(B) (the alleged new promulgation and enforcement of an employee "no access" rule), 18(A) (the alleged June 1987 denial of a general 6-month auto- matic employee wage increase), 18(B) (the alleged June 1987 deviation from past practice of the prepayment of employee vacation pay), 19(A) (the August 1987 new form of work hour scheduling), 19(B) (the August 1987 change in work shifts), 19(C) (the August 1987 change in BLOSSOM NURSING CENTER 335 employees' regularly assigned days off), 19(D) (the August 1987 discontinuance of employee discretion as to unrestricted mutual work hour substitutions), 19(E) (the August 1987 change in discipline regarding failure to report to work), 19(F) (the July 1987 alleged new gar- nishment policy), and 22 (the August 1987 termination of employee Hall pursuant to the alleged new garnishment policy) Much of the facts surrounding those allegations are not contested, but Respondent, in certain instances, denies that it had acted contrary to past practice, i e, the garnishment policy, the "no access" rule or no loitering policy, the wage raise (which it contends was always dis- cretionary and not automatic), and the advanced pay- ment of accrued vacation pay B Withholding of Wage Raises and Life Insurance Benefits The General Counsel's brief is silent as to complaint allegation 18(a) of a June 5, 1987 suspension of a past practice 6-month automatic employee wage increase There is no evidence of an automatic 6-month general wage increase The uncertain and vague testimony of General Counsel witnesses as to cryptic promises made by Kathy Callihan and/or other unidentified charge nurses prior to Respondent's assumption of control is not sufficient to establish such a practice Documentary evi- dence did not support the allegation The General Coun- sel rather directs his attention to the conceded suspen- sion from May 1987 to September 1988 of any employee merit wage increases, and the testimony of adverse wit- ness Yarde as to the context for that suspension Yarde testified credibly and without contradiction that pursuant to her orientation by Altercare, she had accept- ed and implemented a policy of discretionary raises based on a 3-month review during the employee's first year of employment and every 6 months thereafter That review encompassed an evaluation of the employee's per- formance and a range of zero to a maximum amount that would be merited pursuant to the judgment of the re- viewer In May 1987, certain merit raises were awarded in a review I of eight employees in accordance with this policy Thereafter, Yarde was advised by Respondent's counsel regarding the possibility of an unfair labor prac- tice allegation concerning the issuance of discretionary raises during the Union's bargaining agent's recognition effort She decided to suspend raises and she thereafter informed employees of this decision and the motivation for it during individual conversations and by way of a posted notice dated September 16, 1988 Yarde testified that in June and July 1987 during meet- ings with employees, she told them that because of the "uncertainty of the union situation" that all raises were frozen She testified that she explained to several em- ployees that because the raises were discretionary and varied from employee to employee that it could be con- strued as an unfair labor practice Testimony of General Counsel's witnesses corroborated her The September 16, 1988 posted notification contained a denial of discrimina- tory intent, asserted the discretionary nature of Alter- care's wage raises, and advised that pursuant to the advice of legal counsel raises were suspended "until the situation is resolved" In her testimony, she explained the "situation" as the pending of Respondent's test of certifi- cation Complaint paragraphs 12(L) and 14(A) allege that in December 1987 Respondent informed two employees that the issuance of new life insurance benefits were being withheld from them because of the "union situa- tion" in one instance and because of the employees' pro- tected union activities in another instance, in violation of Section 8(a)(1) and (3) of the Act Unlike the wage in- crease suspension, there is no companion 8(a)(5) allega- tion with respect to the withholding of new life insur- ance benefits from bargaining unit employees, despite the fact that Respondent did at the same time grant such benefits to nonumt employees Such benefits were asser- tedly withheld from bargaining unit employees to avoid accusations of unfair labor practices Aide Pamela Kraft testified that in mid-December 1987, when she questioned Yarde as to why bargaining unit employees were not granted these new benefits as had the nurses, she was told that it was "because of the union situation" and that "it would appear like a bribe and charges could be filed" Aide Claudia Kirksey testified to an almost identical conversation with RN Supervisor Carol Stewart about the same time Yarde testified that when unit employees asked her about their exclusion from the new life insur- ance coverage that had been granted nonunit employees, she explained to them that "any kind of benefit" would be construed as an unfair labor practice Yarde testified that in December 1987, pursuant to Altercare's company- wide policy implementation at all of its 16 facilities, all full-time RN's and LPN's at Blossom were issued a free $20,000 life insurance policy She explained that the bar- gaining unit employees would have also received this benefit under that implementation but for the advice of legal counsel to withhold it in order to avoid unfair labor practice charges The General Counsel's brief is silent as to the life in- surance issue, but his argument concerning the wage in- crease suspension clearly encompasses the issue, at least insofar as Section 8(a)(1) and (3) is concerned, and rests upon citation of Gupta Permold Corp, 289 NLRB 1234 (1988), in which 8(a)(1), (3), and (5) violations were found to have been committed by the suspension of an in-place merit wage increase system The Respondent contends that because the suspension of discretionary wage increases was uniformly applied and expressly made to avoid unfair labor practices, an 8(a)(1) and (3) violation was not shown A similar argu- ment is made as to the withholding of new benefit of a paid life insurance policy In support thereof, Respond- ent cites Peabody Coal Co v NLRB, 725 F 2d 357 (6th Cir 1984) In that case, the court, in disagreement with the Board, found that an employer did not violate Sec- tion 8(a)(5) of the Act during a period when it was test- ing a Board certification of representation by excluding bargaining unit employees from receipt of new benefits and unscheduled pay raises granted to nonumt employ- ees The court observed, however, that unilateral changes in existing wage structures is violative of Sec- 336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion 8(a)(5) of the Act whether it be an increase or a denial of a raise that normally would have been granted under past practice In Peabody, the court noted that the administrative law judge found an absence of any past practice The court exculpated an employer from 8(a)(5) violations when, during a test of certification, it "sedu- lously avoids changing precertification work conditions " 725 F 2d at 365-366 The court, however, in agreement with the Board, found that the employer vio- lated Section 8(a)(1) and (3) of the Act It noted that be- cause of the absence of evidence that wage and benefit increases withheld were part of preexisting terms and conditions of employment, the Board could not rely on a per se violation but that direct and circumstantial evi- dence of union animus supported the finding of an 8(a)(1) and (3) violation by excluding unit employees from new benefits and nonscheduled raises The facts of this case are distinguishable from those which the court was presented in Peabody The Respond- ent herein had a policy and practice of reviewing and granting merit wage increases which employees expected to be continued The suspension of that policy for a period well beyond the election during a period of a re- fusal to bargain, even with the explanation proffered to employees, particularly in the context of other coercive conduct, falls within that form of conduct the Board found violative of Section 8(a)(1), (3), and (5) in Gupta Permold and cases cited therein See also Parma Indus- tries, 292 NLRB (1988), in which the suspension of a past practice of semiannual raises for the ostensible reason of avoiding "bribe" accusations during the union election campaign in the context of other coercive conduct was held violative of Section 8(a)(1) and (3) of the Act With respect to the withholding of life insurance bene- fits from the bargaining unit employees, that action was not alleged violative of Section 8(a)(5) of the Act, but clearly constitutes the kind of conduct that the court in Peabody found violative of Section 8(a)(1) and (3) of the Act, occurring as it did against a background of admitted widespread, unlawful coercive conduct by Respondent I conclude that Respondent's reliance on Peabody is misplaced and undermined by its other unlawful conduct and that Respondent violated the Act as alleged in the complaint with respect to the announcement and suspen- sion of its policy and practice of reviewing employee work performance and granting merit wage raises, and by announcing and withholding from them the life insur- ance coverage granted to nonumt employees C Vacation Pay Paragraphs 18(B), 27, and 28 of the complaint allege that on or about June 5, 1987, Respondent, contrary to past practice, refused to provide an employee advanced payment of accrued vacation pay prior to actual vaca- tion, in violation of Section 8(a)(1), (3), and (5) of the Act The General Counsel alludes to this allegation in the brief only in a collective reference to the alleged uni- lateral actions of Respondent as 8(a)(5) violations Re- spondent contends that any changes effectuated regard- ing advance vacation pay policy was effectuated for business reasons prior to union activity Uncontradicted, credible testimony establishes that under the prior ownership of the facility, employees could obtain in advance of their vacation departure, on individual special request, the paycheck that would oth- erwise have been due actual receipt on a subsequent date The reasons for such practice had been the conven- ience of the employee Yarde testified that during her orientation by Respondent at the corporate office, she was specifically instructed that vacation pay was to be paid when due in order to provide "continuity of getting a paycheck" and for "cash flow purposes" She ex- plained that it was her objective pursuant to her financial statement responsibilities to budget her payroll in accord- ance with all other expenses and that uncontrolled vaca- tion pay advances unknown to her interfered with her ability to maintain a consistent cash flow She testified that she was aware that a different policy had preexisted at the facility when in March 1987 "a couple of employ- ees" asked her about receipt of advance vacation pay in- asmuch as they in turn had been told by Kathy Callihan that the practice ran contrary to the Altercare corporate policy Yarde testified that she confirmed to these un- identified employees that Altercare policy precluded ad- vance receipt of vacation pay She testified, without challenge, that, as confirmed by her inspection of the payroll records up to March 1987, she discovered that some employees had received advance vacation pay and some had not despite the Altercare policy which Kathy Callihan was obliged to enforce She testified that after March 1, with but one exception in March, no employee thereafter received advance vacation pay It is undisputed that Yarde directed the posting of a notice to employees which stated to them, "please re- member [that vacation pay will not be issued in ad- vance of when due] " General Counsel witnesses testified that, in fact, on the date of assumption of control by Al- tercare, some changes in employment policy and practice did commence despite personal assurances to the con- trary by Schroer, even before any union activity The first contact to the Union was made by aide Pamela Kraft in mid-March 1987, but no overt activity occurred until April Although Kraft testified that the June notice constituted a change of past practices, she also testified that Kathy Callihan informed her that the Blossom ad- vance vacation pay policy was to be changed as of Janu- ary 1, 1987 Aide Mary Doney testified also that the June notice constituted a change of policy Yet, on cross- examination, she admitted that within months of Schroer's acquisition of the facility and his assurances against changes, by September 1986 "things started changing pretty drastically," and that vacation pay policy was one of the changes In light of the admissions of General Counsel wit- nesses and the uncertainty and inconsistency on this issue, I credit Yarde and I conclude that the vacation pay policy had changed prior to any union activity or bargaining obligations and that it did not violate the Act D Reduction of Hours Complaint paragraphs 12(J) and 26 allege that in late August 1987 Yarde advised an employee that her hours BLOSSOM NURSING CENTER 337 of employment were reduced because of her union ac- tivities and thus Respondent violated Section 8(a)(1) and (3) of the Act The General Counsel does not discuss this allegation Respondent argues that hours worked were determined by the number of patient-residents, i e, "census," and were unrelated to union activities The Re- spondent appears to conclude that paragraph 12(J) al- ludes to a general reduction in hours that was incidental to the change of scheduling allegations in paragraph 19 of the complaint However, paragraph 19 refers to the events of on or about August 12 which affected all em- ployees Paragraph 12(J) refers to a single incident in- volving a single employee Paragraph 19 is alleged to be violative of Section 8(a)(1) and (5) of the Act, but not Section 8(a)(3) Although the conduct described in para- graph 12(J) is alleged to be violative of Section 8(a)(3) of the Act, unlike allegations of discriminatory conduct set forth in complaint paragraphs 17(A) and (B), 18(B), (D), (E), and (F), 22, and 23, it is not alleged to have been motivated by the Union or other protected activity Be- cause of its misconception of the nature of paragraph 12(J), the Respondent does not discuss the incident to which, I conclude, It must refer, i e, the proffered expla- nation for the loss of employment opportunity by Yarde to aide Pamela Cline following her mid-August 1987 fourth annual surgical leave since her initial hiring in 1985 According to Cline, following her mid-August 1987 medical release, she sought reinstatement, only to be told by Yarde that no work was available but that she would be rescheduled when work became available She testi- fied that she did accept ad hoc assignments as a substi- tute for aides who failed to appear for duty and that when she did return to regular employment in late August 1987 she found that her work hours were re- duced by an unspecified amount and that her day off was changed She testified that although she had engaged in little union activities, in a private meeting with Yarde she asked whether the reason she did not "get my hours" was "because of the Union," to which Yarde assented without any explanation In cross-examination, Cline testified that she obtained her medical release on either August 17 or 24 but was uncertain of the date She conceded that it was only a "couple of days" between the time that she returned to work to find that she was not listed on the monthly posted schedule and the alleged coercive conversation with Yarde She revealed that there was more to the conversation with Yarde, i e, Yarde expressed surprise that Cline desired reinstatement after major surgery She also testified that Yarde then acknowledged the unlawful motivation for assigning Cline "no hours" and promised that Clme could pick up ad hoc assignments Cline then testified that she was reinstated on a full-time basis 2 or 3 days later Cline's testimony on its face is confusing, muddled, and inconsistent In cross-examination, she implies, unrea- sonably, that Yarde ought to have placed her on the monthly schedule that had been constructed well before her medical release, and that Yarde acknowledged un- lawful motivation for totally excluding her from sched- uled work at a time when Yarde was unaware of her im- pending availability In direct examination, she placed Yarde's confession of unlawful motivation as having oc- curred after her reinstatement and made in reference to a reduction of hours This testimony is facially unreliable I credit Yarde that she placed Cline in a full-time position in accordance with her seniority status as soon as one opened up, i e, 2 weeks after her medical release, and that the manner of Cline's reinstatement was unrelated to union activity I find that there is insufficient clear, convincing, and credible evidence to conclude that an employee was told that antiunion motivation caused a reduction of that em- ployee's work hours E August 12, 1987 Unilateral Changes Complaint paragraphs 19(A) through (E), 21, 25, and 27 allege that on or about August 12, 1987, Respondent made unilateral changes with respect to the amount of hours, worked, shift assignments, scheduled days off, em- ployee trading of assigned work hours, and discipline for failing to provide good reason for absence from work, all violative of Section 8(a)(1) and (5) of the Act The General Counsel addressed this allegation only by way of a generalized observation of Respondent's pur- ported bargaining obligation, having found it sufficient to note only that the Respondent admitted the unilateral nature of the alleged changes Respondent, however, raises a factual issue inasmuch as it asserts that these changes in employment conditions were predetermined by Respondent prior to onset of any bargaining obliga- tion or known union activity, were intended to alleviate specific problems, were directly related to the manner its business had been structured, and were motivated by a desire to obtain more control over its business It also contends that there were no changes in practice regard- ing the trading of work hours Yarde's testimony as to the business reasons for the ad- mitted changes was not effectively controverted, and I credit her testimony in this regard as reasonable and con- vincing The genesis for Yarde's effectuation of the ad- mitted changes in working conditions did in fact occur prior to union activities The patient census had declined prior to her hiring, and at hiring she had been instructed to "review staffing patterns" at the Blossom facility and to "adjust staffing hours accordingly" That was in De- cember 1986 It was not until July 1, 1987, that she start- ed working on it diligently, and not until August 12, 1987, that the changes were announced to the employ- ees Clearly, the general motivation for these unilateral changes in working conditions predated Respondent's bargaining obligations, but the actual decision as to what specific actions were to be taken were made after the Board-conducted election and during the time Respond- ent was challenging the results of that election With re- spect to the trading of hours, there was a change in policy and practices General Counsel witness Kirksey revealed employees did not in fact have complete free- dom to trade hours without some sort of supervisory ap- proval In the past, the charge nurse had that authority, whereas, after August 12, Yarde's direct approval was 338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD necessary This was a change in supervisory responsibil- ity and, as Respondent argues, not a real change vis a vn the employer and employee Respondent, however, ig- nores the uncontradicted evidence that there was a new restnction placed upon the trading of hours, i e, with re- spect to the effectuation of that trade, i e, unlike past practice, the employees who relinquished the hours sought by another employee must actually work the as- signed hours of the petitioning employee Thus an abso- lute quid pro quo was created to prevent a past situation where an employee might cede certain hours to another employee and effectuate a situation where one employee worked more than a full workweek and one less Yarde's explanation for this real change did not relate directly to the census problem as it did to her decision to help tight- er control over who worked when, so as not to jeopard- ize the employee contingency reserve as had occurred previously Thus, the August 12 announcements all constituted changes in policy and practice regarding terms and con- ditions of employment Yarde testified that she did not notify the Union of these changes because Respondent was concurrently challenging the results of the Board election Respondent argues that the Union made no request to bargain regarding these changes and that it was justified under the rationale of Peabody, supra It would be super- fluous and futile to expect the Union to request bargain- ing over every unnoticed change of working terms and conditions effectuated dunng the course of the Respond- ent's general refusal to recognize and bargain with it With respect to the Peabody decision, Respondent's reli- ance on it is misplaced because, with respect to changes in preexisting terms and conditions of employment as oc- curred herein, the court's rationale supports the General Counsel's theory of violations Accordingly, I conclude that Respondent violated Section 8(a)(1) and (5) of the Act as alleged in paragraphs 19(A) through (F) of the complaint F No-Solicitation Rule Complaint paragraphs 16 and 25 allege that Respond- ent violated Section 8(a)(1) of the Act since January 1, 1987, by the maintenance of the following employee work rule No solicitation of any kind is permitted without the approval of the administrator The maintenance of the rule is admitted, but its unlawful- ness is denied in the answer Respondent does not ad- dress the issue in its brief Yarde merely testified that no employee has ever been disciplined for violation of the rule As noted by the General Counsel, the Board, how- ever, has decided that such a rule, as involved here, is overly broad and unlawful on its face, inasmuch as its mere existence "tends to restrain and interfere with em- ployee nghts under the Act even if the rule is not en- forced" Brunswick Corp, 282 NLRB 794 (1987), and cases cited therein In Beth Israel Hospital v NLRB, 437 U S 483, 1507 (1978), the Supreme Court held that health care institu- tions are subject to the Board's policy regarding solicits- 'non of union activities and stated We therefore hold that the Board's general ap- proach of requiring health-care facilities to permit employee solicitation and distribution dunng non- working time in nonworking areas, where the facili- ty has not justified the prohibitions as necessary to avoid disruptions of health-care operations or dis- turbance of patients, is consistent with the Act The Board in Intercommunity Hospital, 255 NLRB 468, 471 (1981), subsequently applied the general standard of immediate patient care areas to specific areas in a hospi- tal In so doing, it guided itself by NLRB v Baptist Hos- pital, Inc , 442 U S 773 (1979), and balanced the medical service with employee organizing rights in such context It held that prohibitions on solicitation in immediate patient care areas are presumptively valid and that solicitation may be legitimately prohibited in other areas if justified by the hospital as necessary to fur- ther patient care The Board will find that, absent the Respondent's proving a direct effect on patient care, an absolute prohi- bition on union related solicitation or distnbution of union literature at all times in all areas of a health care facility, including clear nonpatient or nonwork areas, is overly broad and furthermore is unlawful even where an incumbent union agrees to such restnction Harper-Grace Hospitals, 264 NLRB 663 (1982), enfd 737 F 2d 576 (6th Cu- 1984) In the instant case, the Respondent failed to adduce evidence of justification for its broad no-solicitation rule which necessarily encompassed union solicitation by defi- nition Accordingly, I find that Respondent, by the mere maintenance of an overly broad no-solicitation rule, vio- lated Section 8(a)(1) of the Act 1 Pandora Howell discipline—no-access rule— Jewelry rule Paragraphs 12(K), 21, and 25 allege that Respondent in late August 1987, unilaterally and without bargaining with the Union, ordered employees (i e, employee Pan- dora Howell) to remove union pins and jewelry from their uniforms to discourage union activities in violation of Section 8(a)(1) and (5) of the Act (but not Sec 8(a)(3)) Respondent withdrew its denial as to paragraph 12(K) and stipulated to an appropnate remedial Order, notwithstanding the conclusionary allegation Paragraphs 17(A) through (C), 21 (with respect to 17(B) only), 24 (with respect to 17(A) and (B) only), 25, 26, and 27 (with respect to 17(B) only) allege the follow- ing That on or about August 31, 1989, Respondent issued two disciplinary warnings to employee Pandora Howell pursuant to Respondent's alleged unlawful main- tenance and disparate enforcement of the no-union pm/jewelry rule described above and pursuant to a "no access" rule, unilaterally and without bargaining, pro- mulgated on the same date All this conduct is alleged BLOSSOM NURSING CENTER 339 violative of Section 8(a)(1) The issuance of the warnings and the "no access" rule promulgation and enforcement is alleged to be motivated by the employees' union or protected activities and violative of Section 8(a)(3) of the Act The conduct regarding the "no access" rule is also alleged as violative of Section 8(a)(5) of the Act Re- spondent did not amend its answer regarding paragraph 17, which admitted the issuance of the warnings to Howell but which denied that the warnings were issued pursuant to unlawfully promulgated and enforced no- union pm/jewelry rule or "no access" rule and denied the promulgation and enforcement of a "no access" rule The Respondent's admission of complaint paragraph 12(K) places its answer in an anomalous position with re- spect to complaint paragraph insofar as the union pin/jewelry rule is concerned Although by stipulation it agreed to cease and desist from the admitted conduct al- leged in paragraph 12(k), it stipulated to no remedy for the written disciplinary warnmg admittedly issued to Howell on August 31, 1987, because she wore an elon- gated pair of earrings constructed from union buttons, despite a past practice of permissiveness of similarly gaudy jewelry worn by Howell according to her uncon- tradicted testimony The Respondent and General Coun- sel ignore the jewelry allegation m paragraph 17, pre- sumably on the assumption, as expressed by Respond- ent's counsel at trial, that it was cured by the stipulated remedy and the admission to paragraph 12(K) It was not In view of the admission to paragraph 12(K), How- ell's uncontradicted testimony and the admission of nu- merous other acts of unlawful interference, I find that the issuance of the jewelry warning to Howell on August 31 was unlawfully motivated and violative of Section 8(a)(1) and (3) of the Act and requires its own remedial order The warning issued to her was issued os- tensibly and pretextually on the grounds of specific inap- propriate attire and not pursuant to any new formal or informal general rule regarding union jewelry The viola- tion is therefore more appropriately alleged as an 8(a)(1) and (3) violation A limited amount of testimony was adduced by both General Counsel and Respondent as to the balance of the paragraph 17 allegations Howell was demonstrated to be a known union activist, as an employee in the dietary de- partment and who, when she vociferously intervened in the disciplining of another employee in June 1987 by an- nouncing to her supervisor, Mary Bissett her status as a member of the union bargaining committee, was told to "shut up" by Bissett who then shut a door in Howell's face The jewelry reprimand of August 31 was preceded by an August 27 confrontation by Yarde and Howell where- in Yarde told her to remove the union button earrings On Saturday, August 29, Howell engaged in conduct which subjected her to the second of alleged unlawful reprimand also received on August 31 Howell testified that on that Saturday, her day off, she visited the Blos- som facility to retrieve keys from a coworker to enable her to unlock the kitchen the next day at 6 30 a m She testified that upon leaving, after spending a "few sec- onds" in the kitchen but while still in the hallway in the building, she encountered her sister, also an employee who had just finished a coffeebreak and was about to start work Upon her sister's expressed cunosity of why Howell was there, she explained the need to obtain the keys, when at that moment she was seen by Director of Nursing Thelma Yoho She testified that she spoke to her sister for "just those few seconds, i e, to answer her questions" On August 31, m addition to the already unlawfully determined jewelry reprimand, Yarde issued to Howell a written reprimand for loitering on the premises and "in- terrupting" workers on duty In direct examination, Howell claimed that almost all kitchen employees had keys but that she, an employee of almost 3 years' tenure, had only recently started working the morning shift and had not been issued keys yet In cross-examination, Howell admitted that employee work rules, long before posted in the kitchen, included a rule which prohibited loitering m the facility by off-duty employees and that she was aware of incidents throughout her tenure when other employees had been disciplined for violation of that rule She insisted that she was not in violation of the no-loitering rule because she had need of the kitchen keys While she conceded that her kitchen coworker scheduled for work that Sunday had a set of keys, she protested "but what if she had been ill or not able to make it9" She claimed that no one else would have been available with keys on Sunday morning Yarde testified that Yoho had reported the incident but that Yoho also reported that the other aide at the moment of conversation in the hallway was interrupted for 5 minutes from returning to her duty station and her patient care responsibilities Yarde cited a past example of discipline meted out to an off-duty aide who returned to the duty area to converse with coworkers, and she ex- plained the business purpose of the rule Yarde testified that during a Monday confrontation she asked Howell about the purpose of her presence in the facility on a nonworkday and that Howell did make reference to the need for kitchen keys Yarde testified that she then ques- tioned Dietary Supervisor Bissett, who reported that there was no need for Howell to have keys for access as other employees present would have had keys to unlock the kitchen Yarde testified that the nurse on duty had keys to the office where kitchen keys were always avail- able and that, in any event, it is well known that hat Yoho resides "around the corner" from the facility and possesses the keys to every door in the building Yarde's testimony was in no way rebutted or challenged It is evident that Respondent did not promulgate any new rules regarding employee access in the August inci- dent The no-loitering rule had existed and been enforced prior to union activity as to off-duty employees Howell would have been in clear violation of the preexisting rule had she returned to the premises on an off-duty day for no justifiable reason Being there for 5 seconds or 5 min- utes to talk to an employee, who at that very moment was supposed to be returning to her duty station, would have constituted apparent loitering absent some accepta- ble explanation In her direct testimony, Howell implied that it was part of her duties to unlock the kitchen Howell's cross-examination and Yarde's unrebutted testi- 340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mony reveal that not to be the case Howell did not ex- plain why she did not borrow a set of keys prior to her day off In light of Yarde's unrefuted testimony, How- ell's explanation to her was reasonably perceived to be specious The General Counsel cites Tri-County Medical Center, 222 NLRB 1089 (1976), for the criteria of the validity of a no-access rule, i e, limitation of interior or work area access, clear universal dissemination, and nonaccess to off-duty employees seeking access for any reason The General Counsel argues that Respondent's no-access rule is invalid because he had adduced evidence that it was disparately enforced This contention rests upon the testi- mony on employee Pamela Kraft She testified that on August 29, 1987, she observed aide Pat Slaggy, Respond- ent's representation election observer, in the facility on her day off selling coffee cups for the benefit of her daughter's school She observed this incident at the fa- cility's north section nurses station and observed that after successfully soliciting sales there, Slaggy proceeded into the nonwork area breakroom Kraft was asked whether she observed present at the station "any super- visor or management official" She identified Jan Saun- ell., the assistant director of nurses She was asked whether she recalled whether Sauneir purchased any cups She testified hesitantly and uncertainly as follows A I believe she did I did Q You did') A I did and I believe Jan did too There were no specific details given as to precisely where and how long Sauneir was present nor specifically who else was present There was no evidence adduced to demonstrate that Slaggy's activity was not reprimand- ed More importantly, Sauneir was not alleged in the third amended complaint as a supervisor, manager, or agent of Respondent, no evidence was adduced as to her job duties or status in this proceeding, and I can find no stipulation as to her status in the record Accordingly, the General Counsel has failed to submit sufficient proba- tive evidence to demonstrate that the no-loitering rule was disparately enforced or knowingly suspended for nonunion supporters Therefore, despite Respondent's knowledge of and clear antipathy to Howell's union ac- tivities, I cannot confidently find that a prima facie showing had been made that Yarde was at least in part unlawfully motivated in disparately enforcing an openly promulgated and openly enforced, preexisting business motivated rule I therefore conclude that the complaint allegations regarding the alleged no-access rule are not proven 2 Darlene Hall discharge—garnishment policy Complaint paragraphs 19(F), 21, and 27 allege that in July 1987 Respondent unilaterally instituted a new em- ployee wage garnishment policy which entailed disci- pline and discharge, in violation of Section 8(a)(1) and (5) of the Act, but not Section 8(a)(3) Paragraphs 18(E), 24, and 26 allege that on August 8, 1987, Respondent ter- minated the employment of aide Darlene Hall because of her union activities in violation of Section 8(a)(1) and (3) of the Act Paragraphs 22 and 27 also allege that Hall was discharged pursuant to the enforcement of the new garnishment policy, in violation of Section 8(a)(1) and (5) of the Act Darlene Hall had been employed at the Blossom facili- ty by Respondent and its predecessors for 8-1/2 years until she was terminated pursuant to written notification by Yarde issued August 7, 1987, citing violation of "the policy instituted on 7-10-87" whereby "any employee with multiple garnishments from more than one creditor shall be subject to discharge" The notification asserted that on August 7 Yarde had received a seventh garnish- ment on Hall's wages A notice had been issued July 10, 1987, by Yarde in which she recited that "numerous garnishments or other wage attachments for some" of the employees had been received and had caused an extreme administrative burden It was therefore noticed [A]s of 7-10-87, any employee who receives multi- ple garnishments from more than one creditor shall be subject to disciplinary action including dis- charge On July 14, 1987, Yarde issued a notice to Hall in which she recited Hall's recorded garnishments, i e, one in November 1986 with Columbia Gas as creditor, and one in February, March, and April 1987, and two in May 1987, all for a second creditor Hall testified that prior to July 10, 1987, there had been no explicit rules concerning garnishment The posted personnel policies refer to none Yarde testified to counsel for General Counsel that to her awareness, prior to July 10, 1987, no employee had received discipline be- cause of having incurred multiple garnishments In answer to Respondent's counsel, she testified that before July 10 she believed that two employees, Shirley Garri- son and Hall, had been given unspecified verbal warn- ings in October 1986 Hall admitted that in October 1986, both she and Garrison had been instructed by Kathy Callihan to take care of their debts She testified that, accordingly, she made arrangements with the col- lection agency which obviated the garnishment action There was no evidence that Hall or any employee had been warned of possible discipline because of garnish- ments Yarde testified that she published the July 10 notifica- tion on receipt of a garnishment on employee Jenifer Tinker on some unrevealed date in June 1987 and her discovery on a review of records by the corporate pay- roll department that several employees at Blossom had been subjected to many but unspecified number of gar- nishments, and an admonishment she received from an unspecified Altercare supervisor that such "behavior" was not what was "cared for," and not tolerated and should be "straightened out and cleared up" She testi- fied "no," when asked by counsel for Respondent wheth- er she considered the July 10 posting to be a new policy She explained that she considered it to have been "exist- ing policy that financial responsibility are [the employ- ees] own, not ours She postulated her assumption of an Altercare policy on the foregoing generalized testimony • BLOSSOM NURSING CENTER 341 Yarde testified that her purpose in notifying employees on July 14 of their outstanding garnishments, as was done by notification to Hall, was to induce the employee to "clear up any garnishments that they had or any out- standing debts so that they had a fair chance to get them cleared up before any disciplinary action would be taken" Four other employees were notified that their records revealed the pending of a single garnishment of their wages and one other was notified of a record of several garnishments for a single creditor Hall testified that on receipt of the July 14 notification, she telephoned the two creditors involved and was referred to an attor- ney who, when contacted, assured her that arrangements could be made to pay the debt without paycheck deduc- tions and that the creditors did not care how it was paid Hall testified that she advised Yarde the next day but that Yarde merely told her that such an arrangement was not possible but that paycheck deduction was mandatory Yarde did not contradict her Hall conceded that other than providing the telephone number of the attorney, she provided Yarde with nothing but her word that the Re- spondent need not deduct the debt from her wages Thus Hall offered to take the same curative action that she had previously effectuated to Callihan's satisfaction in 1986 This, Yarde rejected On August 4, 1987, Hall received an NLRB subpoena to testify in the Board proceeding set for August 10 She and two other similarly subpoenaed employees disclosed their subpoenas to Yarde at 8 30 a m, Friday, August 7, who referred them to Yoho for the necessary scheduling arrangements On Saturday, August 8, 1987, Hall re- ceived the letter of termination dated August 7 The only evidence of any new garnishment on Hall's wages was a garnishment by the single creditor, Columbia Gas, which had also previously been recorded as having had ob- tained a garnishment in November 1986 A copy of a no- tification of garnishment dated August 6, 1987, was ad- duced into evidence by Respondent It disclosed as the creditor, Columbia Gas, and listed the date of the credi- tor's judgment as October 16, 1986 Hall testified that she did not receive her copy of the notification until after her discharge and was unaware of it before that time Apparently Yarde construed a second garnishment from the same creditor since November 1986 to constitute a multiple garnishment sufficient for discharge Further- more, Yarde did not explicitly testify that Hall failed to clear up the earlier garnishments pursuant to the intent of the July 14 notification, and it is not clear whether the November 1986 Columbia Gas garmshment was made pursuant to the October 1986 judgment Thus it is ques- tionable whether, in fact, Hall had been subjected to multiple garnishments from more than one creditor since July 10 It is also questionable as to whether Hall had been given a fair opportunity to clear up those debts ac- cording to Yarde's expressed intent of the July notifica- tions The discharge letter merely stated Today I received the seventh garnishment to your wages from more than one creditor Therefore, as per policy, as of today, 8-7-87, you are terminated from employment at Blossom Nursing Center Hall testified that she was one of the original five em- ployees who initiated union organizing efforts, and that she attended all organizing meetings and distributed union authorization cards to other employees Her proumon activity was the subject of Respondent's objec- tions to the election wherein she was alleged by Re- spondent as agent of the Union to have coerced other employees while engaged in union card solicitations The record contains sufficient admissions of Respondent an- tiunion hostility and uncontradicted evidence of such to raise an inference that it was strongly adverse to Hall's union activities The Respondent argues that the July 10 garnishment policy was nothing but a continuation of longstanding policy Although there is some evidence that Altercare discouraged unlimited toleration of employee garnish- ments, and Yarde may have perceived of such an Alter- care policy, there is no evidence to establish that Alter- care and, much less, Respondent's predecessor had any explicit rules that dealt specifically with respect to em- ployee garnishment or degree of discipline that might be incurred The July 10 notification was clearly what it purported to be, the announcement of a new policy As such, it was a change in longstanding policy, i e, infor- mal lenience and toleration of garnishment without pre- scribed discipline As a new policy and practice, it con- stituted a unilateral change in terms and conditions of employment that violated Section 8(a)(1) and (5) of the Act, as described above, with respect to other unilateral acts Inasmuch as Hall was discharged pursuant to an un- lawfully promulgated rule, it is appropriate that her rein- statement be ordered as a status quo ante remedial order With respect to the 8(a)(1) and (3) allegations, the question must be answered as to whether the General Counsel has met his burden of proving Respondent's un- lawful motivation as obliged by Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) The Board stated in the Wright Line case (251 NLRB at 1089) we shall henceforth employ the following cau- sation test in all cases alleging violation of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employ- er's decision Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the ab- sence of the protected conduct The Supreme Court answered affirmatively the ques- tion of "whether the burden placed on the employer in Wright Line is consistent with § 8(a)(1) and 8(a)(3), as well as with § 10(c) of the [Act], which provides that the Board must find an unfair labor practice by a 'preponder- ance of the testimony" (citation of Sec 10(c) omitted) NLRB v Transportation Management Corp, 462 U S 393, 395 (1983) • 342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In the Wright Line case, the General Counsel had ad- duced evidence of employer knowledge and hostility di- rected to an employee of admirable work record because of that employee's active role in a union organizing cam- paign, suspect timing of the adverse action, departure from past disciplinary practice, and the lack of significant impact of the reason advanced for the cause of adverse action toward the employee In the Transportation Man- agement case, a similar factual pattern involved a depar- ture from past practice A variety of factors can thus give rise to an inference of unlawful motivation sufficient to establish a prima facie case In cases involving alleged discriminatory group or individual layoffs, the Board has frequently cited the factors of suspect timing, coupled with hostility toward employee representation in support of finding a prima facie case See, for example, Balch Pontiac Buick, 260 NLRB 458, 463 (1982), Dutch Boy, Inc , 262 NLRB 4 (1982), Acme Die Casting Corp, 262 NLRB 777 (1982), Rain-Ware, Inc , 263 NLRB 50 (1982) Hall's discharge occurred against a background of per- vasive union animus, including threats of retaliation Hall was perceived to be a leading union advocate At or about the time of her enmeshment in the representation proceedings, she was also perceived by Yarde to have been an employee with a vulnerable record of garnish- ments Moreover, Hall appears to have been the only employee with a record of multiple garnishments from more than one creditor and thus the only employee im- mediately jeopardized by the prescribed new rule The timing and circumstances of Yarde's sudden need to for- mulate a new disciplinary garnishment rule uniquely ap- plicable to Hall against a policy of toleration by Re- spondent's predecessors and Altercare's own nonspeci- fied, generalized policy, and the questionable execution of the new policy, provides sufficient evidence to compel an inference of at least partial unlawful motivation I find that the General Counsel has sustained his burden of proof, and Respondent has failed to adduce sufficient clear, convincing evidence that Hall would have been subjected to discharge in any event I therefore conclude that Respondent violated Section 8(a)(1) and (3), as al- leged, with respect to the discipline and discharge of Hall 3 Suspension of Donna Lare Complaint paragraphs 18(F), 24, and 26 allege that on or about September 28, 1987, Respondent suspended em- ployee Donna Lare for 3 working days in retaliation for her union or other protected activities in violation of Section 8(a)(1) and (3) of the Act On September 28, 1987, Lare was suspended for 3 days by Yarde pursuant to a reported complaint of a pa- tient through Yoho regarding alleged rough treatment by Lare, an aide of 10 years' experience In a confrontation, Yarde told Lare that the complaint which Lare denied would be investigated but that Lare had a bad attitude, i e, gruffness toward patients Yarde investigated by interviewing Lare's supervisor and the resident patient involved and concluded that although Lare was ob- served by the night nurse as having shown tendencies of roughness and a misdirected sense of humor in patient care the complainer also manifested a tendency toward mental confusion Yarde testified that she therefore de- cided on no further discipline but that the 3-day suspen- sion would stand Both Yarde and Lare essentially testi- fied that Yarde explained to Lare that the suspension would stand as a corrective to her perceived gruff atti- tude toward patients Yarde denied any union related motivation Evidence was submitted of historical and subsequent discipline set out for improper patient care by aides The only evidence of Lare's proumon sympathy as perceived by Respondent was her testimony of an April 17, 1987 private conversation with Yarde, wherein Yarde explained to her that she was attempting to convey "her side of the story" regarding the union organizing effort Without giving a complete context to the conversation, Lare testified that she responded by saying that while she could not characterize herself as being either proun- ion or antiunion, she did feel that unionization would ef- fectuate a "better future" for employees Yarde merely responded that she was "sorry to hear it" Compared with other admitted coercive conduct, this was a rather mild reaction Six weeks later, Lare was present at a preelection meeting with respect to the arrangements for the Board-conducted election Her activity in this regard and its observation by Respondent was not fully ex- plained I conclude that despite the evidence in the record of union antipathy Lare's own union activity or sympathy was not shown to be of a sufficiently high profile, nor immediacy to warrant an inference that the subsequent suspension was unlawfully motivated regardless of whether it was justified I conclude the complaint allega- tion regarding Lare has not been proven On the entire record, including the amendments to the complaint, the amended answer, and the stipulations of the parties, I make the following CONCLUSIONS OF LAW _ 1 As found above in the findings of fact, Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and the Union is a labor organization within the meaning of Section 2(5) of the Act 2 Pursuant to a Board-conducted election on June 5, 1987, a majority of the employees in the collective-bar- gaining unit set forth below selected the Union as their exclusive collective-bargaining representative On March 10, 1988, the Umon was certified by the Board as the ex- clusive collective-bargaining representative of the unit At all times since June 5, 1987, the Union, by virtue of Section 9(a) of the Act, has been, and is, the exclusive representative of the unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment 3 The following employees of Respondent, the unit, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act BLOSSOM NURSING CENTER 343 All full-time and regular part-time aides, laundry employees, housekeeping employees, and dietary employees employed at the Respondent's 11750 Klinger Avenue, Alliance, Ohio facility, but exclud- ing all casual and temporary employees, licensed practical nurses, maintenance employees, all office clerical employees, professional employees, guards and supervisors as defined in the Act 4 Since on or about April 6, 1988, Respondent has failed and refused to recognize, meet, and bargain with the Union by advising it by letter that it would not meet with it for the purposes of collective bargaining, m rejec- tion of the aboye-cited Board certification, and has there- by violated Section 8(a)(1) and (5) of the Act 5 Respondent violated Section 8(a)(1) of the Act at its Alliance, Ohio facility by the following conduct of its president, Gerald F Schroer, who (a) On or about June 1, 1987, met individually with various of Respondent's employees and solicited griev- ances and impliedly promised to remedy their grievances in order to discourage their union activity and sympathy and interrogated them as to their union activities and sympathies (b) On or about June 1, 1987, met individually with various Respondent's employees and mdicated to them the futility of unionization by advising them that he would "drag out negotiations" with the Union and not agree to anything (c) On or about June 1, 1987, promised an employee an unspecified monetary benefit if the employee voted against the Union in a representation election (d) On or about June 2, 1987, promised an employee that she and all employees would receive monetary bene- fits if the employee voted against the Union in a repre- sentation election (e) On or about June 1, 1987, promised an employee that she and all employees would receive a monetary benefit if the employees voted against the Union in a rep- resentation election (f) On or about June 1, 1987, unlawfully interrogated an employee as to the employee's union activity and sympathy and the union activity and sympathy of fellow employees (g) On or about June 2, 1987, unlawfully interrogated an employee as to the employee's union activities and sympathies (h) On or about June 2, 1987, threatened an employee with reprisals because of her union activity by indicating he might have to change employees' work hours if the Union was selected as the employees' collective-bargain- ing representative (i) On or about June 2, 1987, threatened an employee with termination for union activities by advising the em- ployee that the employees who initiated the Union's or- ganizing campaign would have to "move on" if the Union was not selected as the employees' collective-bar- gaining representative (j) On or about June 2, 1987, promised an employee a potential benefit by informing her that if the Union was not selected as the employees' collective-bargaining rep- resentative, he could meet with that employee on a one- to-one basis while if the Union was selected as the bar- gaining representative, his "hands were tied" (k) On or about June 1, 1987, threatened an employee with reduction in hours if the Union won a representa- tion election 6 Respondent violated Section 8(a)(1) of the Act at its Alliance, Ohio facility by the following conduct of its administrator, Michelle Yarde, who (a) On or about April 15, 1987, met mdividually with employees and solicited grievances in order to discour- age their union activities and sympathies (b) On or about April 15, 1987, promised an employee a benefit in order to discourage said employee's union activities and sympathies (c) On or about April 15, 1987, unlawfully interrogat- ed employees as to their umon activities and sympathies (d) On or about June 26, 1987, advised employees that "due to the uncertainty of the Union situation, all raises had been frozen" (e) On or about July 24, 1987, advised an employee that employees would receive no raises because of their union activity (f) On or about August 4, 1987, advised employees at a meeting of employees that Respondent had frozen all raises due to the uncertainty of the union situation (g) On or about August 12, 1987, at an employee meet- ing, impliedly threatened employees with unspecified re- prisals because of their union activities by advising them that if they did not like their new schedules or hours they could go to work in a grocery store (h) On or about November 2, 1988, threatened to fire umon supporters if they did not cease their discussion of union activities 7 Respondent violated Section 8(a)(1) of the Act at its Alliance, Ohio facility by the conduct of its director of nursing, Thelma Yoho, who (a) On or about June 4, 1987, unlawfully interrogated an employee as to employee union activities and sympa- thies (b) On or about June 4, 1987, gave an employee the impression that Respondent had been engaged in surveil- lance of her union activity by stating that she could not believe it when she saw the employee's name on a list of umon supporters (c) On or about September 14, 1988, unlawfully inter- rogated an employee as to union activities and sympa- thies (d) On or about September 14, 1988, unlawfully en- couraged an employee to sign an antiunion petition that was circulating among employees, thereby attempting to undermine the Union as certified collective-bargaining representative and thereby also violating Section 8(a)(5) of the Act (e) On or about October 1, 1988, unlawfully engaged in surveillance of employees in the informational picket line while taking notes on a note pad while observing the pickets 8 Respondent violated Section 8(a)(1) of the Act at its Alliance, Ohio facility by its dietary manager, Mary Bis- sett, who, on or about April 8, 1987, warned employees that she had heard rumors of "Union talk" and wanted 344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD such talk stopped and by threatening them with dis- charge for engaging in union activity 9 Respondent violated Section 8(a)(1) of the Act at its Alliance, Ohio facility on or about October 1, 1988, by its assistant administrator, Rob Aneshansel, who unlaw- fully engaged in surveillance of employees participating in informational picketing by photographing and video- taping the picketers 10 Respondent violated Section 8(a)(1) and (3) of the Act in December 1987 by the announcement of and the withholding of life insurance benefits from bargaining unit employees that would have been given to them as it was given to nonutut employees had it not been for the pending claim for representation by the Union 11 Respondent violated Section 8(a)(1) and (5) of the Act at its Alliance, Ohio facility on or about September 19, 1988, by it supervisor, Carol Stewart, who unlawfully encouraged an employee to work a shift other than her normal shift so that she could sign an antiunion petition that was circulating among employees, and thereby sought to undermine the Union as the collective-bargain- ing representative 12 Since on or about January 1, 1987, Respondent has violated Section 8(a)(1) of the Act by the promulgation and maintenance at its Alliance, Ohio facility of an overly broad no-solicitation rule which forbade solicita- tion of any kind without the approval of the administra- tor 13 From June 1987 through September 1988, Re- spondent violated Section 8(a)(1), (3), and (5) of the Act by unilaterally and without notice or bargaining with the Union as certified bargaining representative of the em- ployees, ceasing employee semiannual merit wage re- views and suspending merit wage increases that would have been given pursuant to past practice had it not been for the pending claim for union representation 14 On or about July 12, 1987, Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally and without giving notice or bargaining opportunity to the Union, announcing and effectuating the following changes in terms and conditions of employment of the unit employees at the Alliance, Ohio facility (a) A new form of scheduling which reapportioned the amount of hours worked (b) New work shift assignments (c) Discontinuation of the employees' regular day off (d) The trading of hours only on a strict reciprocal hour-for-hour basis (e) The issuance of written disciplinary warnings for absenteeism not shown to have been shown for good reason 15 In late August 1987, Respondent violated Section 8(a)(1) and (3) of the Act by ordering bargaining unit employee Pamela Howell to remove from her person jewelry bearing union legends and on August 31, 1987, issuing a written disciplinary warning to her for that conduct 16 On July 10, 1987, Respondent violated Section 8(a)(1) and (5) of the Act at its Alliance, Ohio facility, by unilaterally without giving notice or bargaining opportu- nity to the Union, by announcing and thereafter enforc- ing a new disciplmary employee wage garnishment policy for bargaining unit employees, and by specifically premising the August 7, 1987 discharge of bargaining unit employee Darlene Hall upon a breach of that policy 17 Respondent violated Section 8(a)(1) and (3) of the Act on August 7, 1987, by discharging bargaining unit employee Darlene Hall because of her union member- ship, support, and activities THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that Respondent unlawfully discharged employee Darlene Hall, I shall recommend that the Re- spondent be ordered to offer her immediate and full rein- statement to her former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to her seniority and other rights and privi- leges, and to make her whole for any loss of earnings suffered as a result of its unlawful conduct by payment of a sum equal to that which they would have earned absent the discrimination, with the backpay and interest computed in accordance with the formula set forth in F W Woolworth Go, 90 NLRB 289 (1950), and with in- terest thereon to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) I shall also recommend that any reference to her termi- nation be expunged from her employment records Having found that Respondent unlawfully disciplined employee Pamela Howell, I shall recommend that any refeience to her discipline be expunged from her em- ployment record Inasmuch as I have found that Respondent breached its bargaining obligations under the Act by refusmg to recognize and bargain with the Union and by instituting umlateral changes affecting wages, hours, and terms and conditions of employment, I recommend that Respond- ent be ordered to recognize and bargain with the Union and to take certain affirmative action in this regard, in- cluding the immediate reinstatement and implementation of the merit evaluation and wage increase system after giving notice and opportunity to bargain with the Union as to the amount of each increase, and grant retroactive increases to each employee found eligible, computed to the extent appropriate as prescribed in Ogle Protection Service, 183 NLRB 682 (1970) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' '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 BLOSSOM NURSING CENTER 345 ORDER The Respondent, Gerald F Schroer, Inc d/b/a Blos- som Nursing Center, Alliance, Ohio, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Coercively interrogating employees as to union membership, sympathy, and activity (b) Soliciting employee grievances and impliedly promising to remedy those grievances in order to dis- courage union activity (c) Advising employees that it will "drag out" negotia- tions with the Union and not agree to anything in negoti- ations . (d) Promising employees monetary and other benefits if they voted against the Union in a representation elec- tion (e) Threatening employees with reprisals, including termination, loss of hours or benefits, or other reprisals for engaging in union activities (1) Promising employees benefits in order to discour- age their union activity and sympathy (g) Engaging in surveillance of employees' union activ- ity or giving employees the impression it is engaging in surveillance of their union activity (h) Ordering employees to remove union pins and jew- elry from their uniforms for the purpose of discouraging their union activity (i) Encouraging employees to sign antiunion petitions in order to discourage their union activity (j) Unlawfully announcing to bargaining unit employ- ees the withholding of and unlawfully withholding from them life insurance benefits that would have been given to them had it not been for the pending claim for union representation (k) Promulgating and maintaining at its Alliance, Ohio facility an overly broad no-solicitation rule (1) Unlawfully suspending the periodic merit wage evaluations and wage increase system because of a pend- ing claim for union representation (m) Terminating or disciplining employees or other- wise discrimmating against them because of their mem- bership in, sympathies for, support of, or activities on behalf of United Food and Commercial Workers Interna- tional Union, Local 880, AFL-CIO-CLC, or any other labor organization (n) Refusing to recognize and, on request, bargain with United Food and Commercial Workers International Union, Local 880, AFL-CIO-CLC, as the exclusive bar- gaining representative of its employees in the following unit All full-time and regular part-time aides, laundry employees, housekeeping employees, and dietary employees employed at the Respondent's 11750 Klmger Avenue, Alliance, Ohio facility, but exclud- ing all casual and temporary employees, licensed practical nurses, maintenance employees, all office clerical employees, employees, guards and supervi- sors as defined in the Act (o) Unilaterally and without giving notice or bargain- ing opportunity to the above-named designated bargain- ing representative, changing wages, hours, terms, or other conditions of employment (p) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act 2 Take the following affirmative action to effectuate the policies of the Act (a) Offer Darlene Hall immediate and full reinstate- ment to her former position or, if that position no longer exists, to a substantially equivalent position, without prej- udice to her seniority and other rights and privileges, and make her whole for any loss of earnings suffered as a result of its unlawful conduct in the manner set forth in the remedy section of this decision and expunge any ref- erence of her discharge from her work record (b) Remove from the work record of Pamela Howell, any reference to the unlawful discriminatory disciplinary warning issued to her on August 31, 1989, regarding the wearing of jewelry bearing union insignia (c) Recognize and, on request, bargain with the above- named labor organization as the exclusive collective-bar- gaining representative of its employees in the bargaining unit set forth above with respect to wages, hours, and other terms and conditions of employment and, if an un- derstanding is reached, embody the understanding in a signed agreement (d) Immediately reinstate and implement the periodic employee merit and wage increase system after giving notice and opportunity to bargain with the Umon as to the amount of each increase, and grant retroactive in- creases to each employee found eligible with interest in the manner set forth in the remedy section of this deci- sion (e) Make available to unit employees the life insurance benefits unlawfully withheld from them in December 1987 (f) Rescind the unlawful unilateral changes in wages, hours, terms, and conditions of employment effectuated in July 1987, with respect to scheduling of hours worked, shift assignments, employee day off, employee trading of hours, absenteeism disciplinary warnings, and employee wage garnishment discipline (g) Remove from its rules and posting the unlawful overly broad rule which forbids all nonpreapproved so- licitations without limitation as to time or place (h) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (i) Post at its Alliance, Ohio facility copies of the at- tached notice marked "Appendix " 2 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized rep- resentative, shall be posted by the Respondent immech- 2 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" 346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices 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 material Post at its Alliance, Ohio facility copies of the attached notice taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (j) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT interrogate our employees as to union membership, sympathy, and activity We will not solicit employee grievances and imphedly promise to remedy the grievances in order to discourage union activity WE WILL NOT advise our employees that we will drag out negotiations with the Union and not agree to any- thing in negotiations WE WILL NOT promise employees monetary and other benefits if they voted against the Union in a representa- tion election WE WILL NOT threaten employees with reprisals, in- cluding termination, loss of hours or benefits or other re- prisals for engaging in union activities WE WILL NOT promise employees benefits in order to discourage their union activity and sympathy WE WILL NOT engage in surveillance of employees' union activity or give our employees the impression that we are engaging in surveillance of their union activity WE WILL NOT order our employees to remove union pins and Jewelry from their uniforms for the purpose of discouraging their union activity WE WILL NOT encourage employees to sign antiunion petitions in order to discourage their union activity WE WILL NOT unlawfully announce to bargaining unit employees the withholding of nor unlawfully withhold from them life insurance benefits that would have been given to them had it not been for the pending claim for union representation WE WILL NOT promulgate and maintain at our Alli- ance, Ohio facility an overly broad no-solicitation rule WE WILL NOT unlawfully suspend the periodic merit wage evaluations and wage increase system because of a pending claim for union representation WE WILL NOT terminate or discipline employees or otherwise discriminate against them because of their union membership in, sympathies for, support of, or ac- tivities on behalf of United Food and Commercial Work- ers International Union, Local 880, AFL-CIO-CLC, or any other labor organization WE WILL NOT refuse to recognize and, on request, bar- gain with United Food and Commercial Workers Inter- national Union, Local 880, AFL-CIO-CLC, as the ex- clusive bargaining representative of its employees in the following unit All full-time and regular part-time aides, laundry employees, housekeeping employees, and dietary employees employed at the Respondent's 11750 Klinger Avenue, Alliance, Ohio facility, but exclud- ing all casual and temporary employees, licensed practical nurses, maintenance employees, all office clerical employees, professional employees, guards and supervisors as defined in the Act WE WILL NOT unilaterally and without giving notice or bargaining opportunity to the above-named designated bargaining representative, change wages, hours, terms, or other conditions of employment WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Darlene Hall immediate and full rein- statement to her former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to her seniority and other rights and privi- leges, and make her whole for any loss of earnings suf- fered as a result of our unlawful conduct, and expunge any reference of her discharge from her work record WE WILL remove from the work record of Pamela Howell, any reference to the unlawful discriminatory dis- ciplinary warning issued to her on August 31, 1989, re- garding the wearing of jewelry bearing union insignia WE WILL recognize and, on request, bargain with the above-named labor organization as the exclusive collec- tive-bargaining representative of its employees in the bar- gaining unit set forth above with respect to wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement WE WILL immediately reinstate and implement the periodic employee merit and wage increase system after giving notice and opportunity to bargain with the Union as to the amount of each increase, and grant retroactive increases to each employee found eligible with interest WE WILL make available to unit employees the life in- surance benefits unlawfully withheld from them in De- cember 1978 WE WILL rescind the unlawful unilateral changes in wages, hours, terms, and conditions of employment ef- fectuated in July 1987, with respect to scheduling of BLOSSOM NURSING CENTER 347 hours worked, shift assignments, employee day off, em- proved solicitations without limitation as to time or ployee trading of hours, absenteeism disciplinary warn- place mgs, and employee wage garnishment discipline WE WILL remove from our rules, and posting, the un- GERALD F SCHROER, INC D/B/A BLOS- lawful overly broad rule which forbids all nonpreap- som NURSING CENTER