Methodist Nursing Home Of Enid, Inc

34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Methodist Nursing Home of Enid, Inc and United Steelworkers of America, AFL-CIO-CLC. Case 16-CA-11303 17 September 1984 DECISON AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 21 May 1984 Administrative Law Judge Wil- liam N Cates issued the attached decision The Re- spondent filed exceptions and a supporting brief 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions 2 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, Methodist Nursing Home of Enid, Inc , Enid, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the Order 1 The Respondent has excepted to some of the judge s credibility find ings The Board s established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cy 1951) We have carefully examined the record and find no basis for reversing the findings 2 In adopting the judge s findings that the Respondent violated Sec 8(a)(I) of the Act, we place no reliance on the Respondent's apparent ad mission of such violations made in its posttrial brief to the judge The admission was retracted in a supplemental brief submitted by the Re spondent to the judge Rather we rely on the record and the judge s af firmative findings and conclusions to establish the violations DECISION STATEMENT OF THE CASE WILLIAM N CATES, Administrative Law Judge The hearing in this case held January 26 and 27, 1984, is based on an unfair labor practice charge filed by United Steelworkers of America, AFL-CIO-CLC (Union) on September 22, 1983, 1 and a complaint issued on Novem- ber 4 and an amendment to complaint issued on Novem- ber 9 on behalf of the General Counsel of the National Labor Relations Board (Board) by the Regional Director of the Board for Region 16, alleging that Methodist Nursing Home of Enid, Inc (Respondent or Nursing Home) has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor 1 All dates herein are 1983 unless otherwise indicated Relations Act (Act) Respondent on November 17 filed an answer both to the complaint and amendment to com- plaint denying the commission of the alleged unfair labor practices On the entire record 2 made in this proceeding includ- ing my observation of each witness who testified herein, and after due consideration of helpful briefs filed by counsel for the General Counsel and counsel for the Re- spondent, I make the following FINDINGS OF FACT I JURISDICTION Respondent is an Oklahoma corporation with an office and place of business in Enid, Oklahoma, where it is en- gaged as a health care institution in the operation of a nursing home providing inpatient medical and profession- al care services for the elderly During the 12 months preceding issuance of the complaint herein, a representa- tive period, Respondent in the course and conduct of its business operations derived gross revenues in excess of $100,000 During the same time period Respondent pur- chased and received goods and services valued in excess of $50,000 directly from suppliers located outside the State of Oklahoma The parties admit, and I find, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and a health care insti- tution within the meaning of Section 2(14) of the Act 3 II LABOR ORGANIZATION The parties admit, and I find, that United Steelworkers of America, AFL-CIO-CLC is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES This case is about the discharge of a nurses aide, Caro- lyn S Gard, on September 16 and whether her discharge was for cause—verbal abuse to a patient and prior work record—or as a result of her union activities Intertwined with the discharge of Gard is certain conduct of Re- spondent that it acknowledges violated Section 8(a)(1) of the Act I shall consider the evidence essentially in chronological order addressing alleged violations of the Act at the point where each portion of the evidence is discussed that counsel for the General Counsel contends constitutes the alleged violations of the Act 2 I grant Respondent s unopposed motion to substitute the original transcript of Erna Pearl Peck's deposition taken on January 23, 1984, for the transcript of the deposition made from the videotape of her deposi non 3 Respondent in its answer and at trial contended that it was exempt from coverage of the Act by virtue of its affiliation with the United Methodist Church However, in its posttrial brief Respondent admits "sufficient evidence was presented to prove that the Board has jurisdic tion irrespective of the nursing home s affiliation with the United Meth- odist Church I am fully persuaded the evidence establishes the Board would assert jurisdiction in the instant case See, e g, National Lutheran Home for the Aged, 203 NLRB 408 (1973), ARA Services, 203 NLRB 407 (1973) 272 NLRB No 10 METHODIST NURSING HOME OF ENID 35 Gard commenced work March 28 and worked con- tinuously thereafter until September 15, which was the last day of work, and she was terminated while at home on September 16 4 Gard was hired as a nurses aide by then Director of Nursing Bertha Toews 5 During her employment Gard was selected by the Nursing Home to receive training as a certified medical assistant 6 Certified medical assistants are permitted to administer medica- tions and to perform other treatments for patients at the Nursing Home Certified medical assistants are more skilled than nurses aides Gard received a 10-cent-per- hour merit pay increase during her employment and at the time of her discharge was making $3 75 per hour Gard became a member of the Union in 1978 while working for a previous employer In August a fellow employee of Gard's, Nelle Whi- taker, asked her if she knew where to find a union to represent the employees, that they needed one Whitaker was upset about working conditions relating to overtime and overtime pay Gard contacted a friend at her previ- ous employer about getting a union representative to assist the employees at the Nursing Home Although Gard's first attempts at getting someone to assist the Nursing Home employees were not successful, she did receive assistance from Union Representative Bill Basore, who provided her with union signature cards Gard obtained approximately 500 such cards from the Union From September 1 until September 16 Gard per- sonally distributed at work approximately 50 signature cards among her fellow employees 7 Gard also placed union signature cards in her unlocked truck which she parked in the parking lot at that nursing home Gard spoke with her fellow employees about the Union at work, during breaks and lunchtime, and also visited em- ployees' homes after work soliciting their support for the Union Gard had approximately 20 signed union cards given back to her by her fellow employees Gard held two meetings for the Union in her home The first meet- ing took place in the latter part of August and approxi- mately five employees attended the meeting Gard ex- plained to the employees at the meeting the procedure for obtaining union signature cards The second meeting was held sometime between September 1 and 15 Ap- proximately seven employees attended the September meeting at which they discussed items they wished to have included in a collective-bargaining agreement with Respondent On September 12 Union Representative Basore sent a telegram to the Nursing Home which read in pertinent part as follows This is to advise that the United Steelworkers of America has an organizing campaign underway at the Methodist Home of Enid, Inc, 301 Oakwood Road, Enid, Oklahoma I am sure you know the rights of your employees to choose a union of their 4 Gard obtained permission from Respondent and took medical leave from June 6 to June 16 to donate a kidney to her brother 5 Toews became administrative assistant at the Nursing Home in July 6 Gard did not complete the certified medical assistant training because of her medical leave and other factors 7 The nursing home has a work force of approximately 120 employees choice to represent them and to actively work on behalf of that union Our prime organizer is Carolyn Gard Any actions on your part that violates those rights of employees and/or federal law will be dili- gently pursued before the National Labor Relations Board and/or other appropriate government enti- ties [G C Exhs 2(a)-(b) ] The telegram was telephoned to the Nursing Home on September 12 and a written copy was received by the Nursing Home on September 13 On September 15 Gard was notified by a fellow employee approximately 15 min- utes after the work shift had started that Administrative Assistant Toews wanted to see her in Toews' office 8 Gard met with Toews alone in Toews' office When Gard entered the office, Toews was engaged in a tele- phone conversation Gard observed, for the first time, the telegram the Union had sent to the Nursing Home which named her as the "prime organizer" for the Union After Toews completed her telephone conversa- tion she pointed to the telegram and asked Gard what it was all about Toews told Gard she had never had any dealings with the Union and would like to know some- thing about it Gard credibly testified that Toews asked her what the problem was Gard told Toews working conditions were getting worse at the Nursing Home and the employees needed some changes in their insurance coverage Gard told Toews their current health insur- ance was too expensive for the amount of wages the em- ployees were paid Toews asked what kind of wages the employees were talking about Gard told her the em- ployees wanted a base wage of $4 10 per hour and they also wanted to be able to bid for the certified medical as- sistant positions rather than have management choose the candidates for that training Gard testified Toews "then seemed a little angry at me and stated, well, we don't want outsiders coming and telling us what to do" Toews then asked Gard who had signed cards Gard told Toews she could not tell her that Toews then asked how many employees had signed cards Gard told Toews she was unable to tell her that information either At that time the secretary for the director of nursing services, Paula Hannon, entered the room Toews asked Gard what percentage of card signers they had Hannon spoke up at that point and said they had to have at least 50 percent Gard told them that was not necessarily so Hannon excused herself and left Toews' office saying she would be back later Toews told Gard that she would speak with Nursing Home Administrator Betty Kellet so that the three of them could possibly get together for a meeting to "discuss these problems" Gard told Toews that would be greatly appreciated because working con- ditions were getting worse As Gard left Toews' office, Toews told her she would be getting back with her Later that same day Toews informed Gard that she had spoken to Kellet and they were going to arrange a meet- a I credit Gard s testimony that the meeting took place on September 15 I carefully observed Gard as she testified and I am persuaded she did so in a truthful manner not only as to the date of the meeting but as to what was said at the meeting Her narration of the events of the meeting was in essential parts admitted to by Administrative Assistant Toews 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mg so they could get together Gard expressed her ap- preciation to Toews and continued to work the rest of the shift Toews acknowledged she initiated a conversation in her office with Gard about the Union 9 Toews also ac- knowledged she asked Gard what it was the Union was looking for and what brought about the union activity Toews, however, stated she did not "necessarily [ask] who was involved" Toews did not testify in narrative form regarding what was said in her meeting with Gard As indicated elsewhere in this decision, I am persuaded Gard's version of the conversation is more accurate and complete Gard testified in a very believable, straightfor- ward, and logically progressive manner I simply find unpersuasive Toews' vague denial that she did not neces- sarily ask who was involved with the Union I am per- suaded Toews was extremely interested in and inquired about what brought on the union activity, how much support the Union had, and who was supporting the Union Toews' other actions support such a conclusion in that she wanted to arrange a meeting to try to resolve these matters that had brought about the union activity at the Nursing Home 10 The test for determining whether an employer's inter- rogation of an employee that is a known union adherent violates Section 8(a)(1) of the Act is whether, under all the circumstances of the case, the interrogation reason- ably tends to restrain, coerce, or interfere with the em- ployees' exercise of rights guaranteed them by the Act Rossmore House, 269 NLRB 1176 (1984), cf Spartan Plastics, 269 NLRB 546 (1984), and Florida Ambulance Service, 255 NLRB 286 fn 1 (1981) In applying the test set forth above, I find Respondent violated Section 8(a)(1) of the Act in the conversation that Toews had with Gard on September 15 Not only did Toews inter- rogate Gard about her union activities but she also inter- rogated Gard about the union activities of her fellow em- ployees Respondent had no valid reason to know why Gard was for the Union or what percentage of the em- ployees had signed union cards The coercive tendency of Respondent's actions is further demonstrated by the fact the conversation took place in the office of one of the Nursing Home's top management officials No assur- ances against reprisals were given to Gard in Toews' conversation with her, nor was any valid purpose for the conversation communicated to Gard Likewise, Toews had no valid purpose in soliciting grievances from Gard in the manner she did, inasmuch as the record is barren of any evidence that there was any past policy on the part of Toews or the Nursing Home of periodically so- liciting employees' Job-related complaints Grievance so- licitation, as in the instant case, in the midst of a union campaign inherently constitutes an implied promise to 9 Toews placed the date of the meeting as September 14 However, I am persuaded the meeting took place on September 15 as testified to by Gard " Respondent in its posttrial brief acknowledged "During that con versation [set forth above] Mrs Toews asked Mrs Gard questions con cerning union activity which admittedly violate the National Labor Rela tions Act Section 8(a)(1) as outlined in paragraphs 7(a)-(d) of the Corn plaint and Notice of Hearing Mrs Toews candidly admitted making these comments remedy the employees' grievances and as such violates Section 8(a)(1) of the Act See Houston County Electric Cooperative, 247 NLRB 579 at 584 (1980) Respondent's actions in the instant case amount to more than an im- plied promise to remedy grievances inasmuch as Toews arranged a meeting between Administrator Kellet, Gard, and herself for the purpose of discussing these problems that had arisen at the Nursing Home Accordingly, I find as alleged at paragraphs 7(a)-(d) of the complaint that Respondent, about September 15 acting through its supervisor and agent Toews in viola- tion of Section 8(a)(1) of the Act, interrogated an em- ployee concerning the employee's union activities and desires, interrogated the employee as to which employ- ees had signed union cards, interrogated the employee as to the extent of the Union's organization at its facility, and solicited grievances from the employee with an im- plied promise to correct those grievances The next day after Toews had the conversation with Gard, set forth above, she spoke with 6-year employee Rose Rose Toews telephoned Rose on September 16 at Rose's work station and asked her for Gard's home tele- phone number Rose, after she had spoken with Toews, realized she had given Toews Gard's old telephone number Therefore, when Toews called a second time that day, Rose gave her Gard's correct home telephone number Toews asked Rose in the second conversation if she knew she was into her for $115 Rose asked what for and Toews told her she should talk with her about it later Following Toews' second call and after Rose had caught up on her work, she went to Toews' office to speak with her Toews was in her office alone at the time Toews told Rose the Nursing Home "had to let Carolyn Gard go" Rose asked why and Toews told her Gard had been mean to the patients Rose told Toews she had never known Gard to be mean to any of the pa- tients Rose stated the conversation then somehow turned to the Union and Toews asked her if she knew where the union cards were Rose replied she did not Rose testified Toews then stated "[T]he best thing I could do was to get the cards and throw them away or get rid of them or there would be a lot of trouble" Toews then picked up the Union's telegram that named Gard as the "prime organizer" for the Union and showed it to Rose Toews stated they had just received the telegram Rose testified she got nervous at this point because they were talking about the Union and decided it was time for her to return to work which she did I credit Rose's testimony as outlined above Toews ac- knowledged she had a conversation with Rose about union authorization cards on the date indicated by Rose Although not in chronological sequence I shall next set forth facts regarding a second conversation between Toews and Rose which involved the Union According to Rose, whose testimony I credit, Toews called her at her home on September 23 and asked about a fellow employee After inquiring about fellow employ- " Respondent in its posttrial brief acknowledged Toews had the con versations with Rose that constituted the violations described in pars 7(f) and (h) of the complaint METHODIST NURSING HOME OF ENID 37 ee Wanda Johnson (Rose's sister-in-law), Toews stated she had received charges from the National Labor Rela- tions Board involving Gard and another employee Toews asked Rose if she knew who had signed authori- zation cards Rose told her she did not know Toews asked if she knew they had to have 50 percent to which Rose responded they only needed 20 percent Toews seemed at first not to be able to recall this second conversation but upon further questioning by Re- spondent's counsel she acknowledged it was possible she had the second conversation with Rose in which authori- zation cards were mentioned Again, however, Toews did not give any specific testimony regarding this later conversation I find the conversation occurred on Sep- tember 23 as testified to by Rose It is clear that Respondent through Toews violated Section 8(a)(1) of the Act when on September 16 Toews interrogated Rose regarding union authorization cards It was also a violation of 8(a)(1) of the Act for Toews to tell Rose to get rid of the authorization cards or there would be a lot of trouble This incident, like the other instances of interrogation, tends to be coercive in light of all the circumstances of the instant case in that the inter- rogation was done by a high-level supervisor for no valid purpose and with no assurances given against re- prisals In fact, as to this latter consideration, quite the contrary existed in that Toews told Rose that if the au- thorization cards were not gotten rid of there would be "a lot of trouble" I find Toews unlawfully interrogated Rose on Septem- ber 23 when she asked her if she knew who had signed authorization cards I conclude the interrogation was co- ercive interference and as such violated Section 8(a)(1) of the Act Thus, counsel for the General Counsel has clearly established each violation alleged in paragraphs 7(e) through (h) of the complaint, and I so find 12 It is undisputed that Gard called the Nursing Home and informed Director of Nursing Services Lund on September 16 that she would not be able to report for work on that day because she was ill Lund saw no prob- lem with Gard's request to be off from work that day Later that same day (September 16) Gard received an unexpected telephone call from Toews Gard credibly testified Toews said Carolyn, I am going to have to terminate you Mrs Kellet [Nursing Home Administrator] has asked me to do this I would have done it three days ago, I am Just getting around to it—for being mentally cruel to a patient—for asking her to take her to her father's funeral and to set her grandchildrens [sic] on her lap Gard told Toews that was a stupid reason 13 Gard asked if she could have a recommendation for employ- 12 I reject counsel for Respondent s contention that Toews' conversa bons of September 16 and 23 with Rose did not amount to interrogation of Rose regarding her union activities and desires ' 3 I do not credit Toews testimony that Gard admitted the incident in question as described by Toews in her testimony ment and Toews told her she could As Gard ' started to hang up the telephone Toews told her "the real reason [she was] fired was because of [her] mouth" Gard told Toews she was sorry about that It is undisputed that Gard called Toews on September 17 and asked if she could come to the Nursing Home and obtain a written recommendation for employment Toews told Gard she could not have a written recom- mendation but she would give a verbal one to anyone who asked her Gard testified she had spoken with Nursing Home pa- tient, Erna Peck, regarding Peck's father's death and Peck's grandchildren A dispute exists regarding what was said between Gard and Peck and when whatever was said took place Gard testified she first met Peck, who suffers from multiple sclerosis and is paralyzed from the neck down, on an occasion when there was a disturbance in Peck's room and Peck was crying Gard testified she consoled Peck and in doing so learned of Peck's life and family— her grandchildren, her husband's death, her sister who had a heart condition, and about her father being in a rest home Gard testified Peck was "the sweetest lady" she knew After meeting Peck and learning of her back- ground, Gard later introduced her husband and daughter to Peck and visited with her On September 2 Peck's sister came to the Nursing Home and told Gard" that Peck's father had passed away and for the personnel at the Nursing Home to be aware of that fact and to check on Peck and make sure she was all right According to Gard, Peck's sister indi- cated the family had asked Peck if she wished to attend her father's funeral and Peck had indicated she did not wish to do so Gard directed Peck's sister to the nurses on duty for the Nursing Home so a record could be placed in Peck's chart that she had been told by the family of her father's death After Peck's sister left, Gard visited Peck in Peck's room Gard testified that because she and Peck had become such close friends and because of the fact she knew Peck did not wish to be a burden on her family, she asked Peck if she could escort her to her father's fu- neral According to Gard, Peck was interested and wanted to know what she could wear Gard told Peck they had some pretty gowns in the closet she could wear Peck was concerned that the gowns opened in the back and was further concerned about what could be done with the navel catheter she had Gard explained how they could strap the catheter to her leg Peck thought that would be a good idea Peck wanted to know what they could use for transportation, and Gard told her she had an automobile that the front seat re- clined fully on, and they could use it Peck stated her son-in-law had a van and it would be a good vehicle to go in Peck wanted to know how Gard would lift her Gard told her she would get her (Gard's) husband to help them to and from the funeral 14 Gard was working private duty for a patient at the Nursing Home, and not for the Nursing Home, when Peck s sister spoke with her about Peck s father s death 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gard testified she asked her husband that night if he would help them and he agreed to do so Gard testified she was not assigned to work on the day of Peck's father's funeral so she went to the Nursing Home early to take Peck to the funeral After arriving at the Nursing Home, Gard asked Peck if she was ready to go to the funeral and Peck told her no, that it was her father's day and she did not want to take away from his day by having people feel sorry for her Gard told Peck she understood Gard testified she offered her help to Peck because she cared a great deal for her Approximately a week later (about September 9) Gard, along with then fellow employee nurses aide James Taber, went to Erna Peck's room to prepare her for bed Gard stated that when the two of them went into Peck's room they noticed some toy cars called "Hot Wheels" on the floor Taber mentioned to Peck that she was kind of young to be leaving her toys around on the floor Peck "got kind of tickled" about it and stated that her grandson had been celebrating his birthday in her room and had left the toys Gard told Peck she thought it was wonderful that Peck got to see her grandchildren, that she (Gard) did not get to see her grandchildren often because they lived so far away Peck told Gard she was lucky because she could hold her grandchildren and that she (Peck) could not Peck then stated that just once before anything happened she would like very much to hold her grandchildren Gard offered to help Peck hold her grandchildren Peck was worried about her catheter or that the grandchildren might fall Gard assured Peck she would be there to help her, that all she had to do was ask and she would assist her Peck told Gard that one of her grandchildren would sit on the bed but would not get too close to her while the other would sit at her feet and she was afraid it might scare them if she tried to hold them Gard told Peck it would be all right Peck, according to Gard, did not seem in any way upset and went to sleep 15 Erna Peck testified" she has been a patient at the Nursing Home for approximately 6 years and is para- lyzed from the neck down due to multiple sclerosis Peck stated she is totally dependent on the employees of the Nursing Home for her physical care Peck stated she met Gard inasmuch as Gard was one of the employees as- signed to her care at the Nursing Home Peck testified her father passed away in September and she had a con- versation with Gard about whether she should attend her father's funeral or not Peck testified Gard asked her if she was going to attend her father's funeral, and she told her she was not According to Peck, Gard asked why, and Peck told her she could not Peck testified Gard stated to her, "There is no reason why you can't go" Peck stated Gard offered to take her to her father's fu- neral and told her, "I think you should go out of re- spect" Peck stated this was an aide who took care of " Taber, in essential parts, corroborated Gard s testimony as outlined above 16 Peck's testimony was taken by deposition (videotaped) on January 23, 1984 The videotape was played in open court at the trial herein her and she thought surely the aide would know that she could not go to her father's funeral Peck stated she had four grandchildren living in the Enid, Oklahoma area Peck testified that in the same conversation she had with Gard about her father's funer- al, Gard told her that she should pick her grandchildren up and love them, that they needed to be taught to love According to Peck, Gard asked her if she picked her grandchildren up and put them in her lap Peck testified Gard said The next time I see them [the grandchildren] here I'm going to bring them—I'm going to come in and make you put them—put your arms around them and love them Peck testified Gard had told her on many occasions that she needed to get out of the Nursing Home and go shop- ping or for a ride, just to get out of the place Peck testi- fied she told Gard she could not because she "gave that up long ago " Peck testified Gard's remarks about at- tendance at her father's funeral and her grandchildren upset her Peck stated she mentioned the comments about her father's funeral to her sister the next day Peck further testified she talked to her son and daughter-in- law (Diane Peck) about the comments concerning her grandchildren Peck testified her family was upset about the situation and that Administrative Assistant Toews spoke to her about the matter Peck stated she reluctantly told Toews the name of the aide involved Peck testified, "Ms Toews came down and asked me if it were true, and I was sorry that they had complained, I was sorry to cause all the trouble, and I told her I didn't want to report anyone, because I had had so much trouble in the last few months" Peck stated on cross-examination she could recall dates pretty well but she did not have a calendar in her room and she could not keep notes Peck stated Gard spent a lot of time in her room taking care of her and she had met Gard's husband and family A credibility resolution regarding the testimony of these two witnesses is necessary in order to make a dis- position of the instant case Counsel for the General Counsel contends that be- tween these two witnesses Gard testified at length and in detail about the conversations between the two of them, and that her testimony flowed in logical progression and should be credited Counsel for the General Counsel states he believes Peck testified to the best of her recol- lection, however, he asserts her testimony lacked detail and certainty and that, in all likelihood, Peck was con- fused as to the dates and nature of the conversations which occurred several months prior to her testimony Counsel for the General Counsel contends Peck's memory is subject to scrutiny based on the testimony of employees Crawford and Taber Finally, counsel for the General Counsel contends that, although Diane Peck's testimony tended to corroborate Erna Peck's testimony, Diane Peck was not a party to the conversations and her testimony was based on her interpretation of what Erna Peck had told her METHODIST NURSING HOME OF ENID 39 Respondent urges that Erna Peck's version of her con- versation with Gard be credited. Respondent contends Peck had no motivation to misstate the truth whereas Gard, in attempting to regain her job and advance the Union's cause, did have the possibility of such motiva- tion. Respondent asserts that Erna Peck has accurate mental facilities and is not prone to inventing stories. Re- spondent also contends Peck's testimony as to the date and content of her conversation with Gard was corrobo- rated by her daughter-in-law, Diane Peck. I credit Gard's testimony regarding what was said in her conversations with Peck. I also concluded that the conversations occurred on the dates indicated by Gard. Gard's testimony had a ring of truth about it. Everything Gard asserts was said in the conversations was believ- able, logical, and reasonable. Considering the good rela- tionship that unquestionably existed between these two grandmothers, I do not believe that Gard would have asked Peck, a totally paralyzed individual, if she picked up her grandchildren. In making this credibility resolu- tion, I do not mean in any manner to imply that Erna Peck would willfully misstate the truth. I am rather con- vinced that she simply was mistaken regarding what was said to her by Gard. I am also convinced that Peck was mistaken as to the occasions when Gard spoke with her about her father's funeral and her grandchildren. Peck acknowledged she had no calendar in her room and is unable to make notes of any conversations she might have with anyone. My conclusion that Peck was mistak- en about her conversations with Gard is in part based on the testimony of former nurse's aide Taber. Taber testi- fied that, although he knew of no instances where Peck had fabricated an entire story, he was aware of a couple of instances where for brief moments she had not under- stood what was occurring or could not remember some- thing. The lack of reliability of Peck's memory is further demonstrated by the testimony of former certified medi- cation aide Beverly Crawford Crawford testified that on three occasions, within the last 4-month period that she worked at the Nursing Home, she gave Peck her medica- tion only to have Peck contend she had not been given any such medication. Therefore, after carefully consider- ing factors touching on credibility, I credit Gard's ver- sion of her conversations with Peck. In so doing I am persuaded Gard did not and had no intention of inflicting any mental cruelty upon Peck. Gard's actions were sin- cere efforts of volunteering to assist Peck and as such were offers to help her even at the expense of having to perform extra services for her and, as such, did not in any way constitute cruelty toward Peck. Although Erna Peck was mistaken with respect to what was said in her conversations with Gard and also mistaken as to when the conversation took place, and al- though some confusion exists as to when or on how many occasions she spoke to her daughter-In-law about the situation, she nonetheless at some point in early Sep- tember told her daughter-in-law (Diane Peck) about her conversations with Gard. Diane Peck testified she did not immediately report the situation to the Nursing Home because she wanted to "stew" on the matter for a while. It is, however, undisputed that Diane Peck spoke with Administrative Assistant Toews about the situation on September 15 Diane Peck went by the Nursing Home on that date to pay her mother-in -law's bills and while there she asked that Administrator Kellet tele- phone her. That same day Toews spoke via telephone with Diane Peck for Kellet Peck told Toews of many things that involved her mother-in-law at the Nursing Home and also told Toews about comments by an aide to her mother-in-law regarding her mother-in-law's at- tendance at ther father's funeral and whether she loved her grandchildren and that these comments had upset her mother-In-law Diane Peck stated she did not know the employee's name that had made the comments to her mother-In-law about the funeral and grandchildren, nor did she know the names of any of the others that had made comments to her mother-in-law. Diane Peck testi- fied she told Administrative Assistant Toews. When I talked to her, I wasn't generally focusing on this particular incident I talked to her about many things that had happened in the last few weeks before that . . . I said to her that there had lately been several per- sons come into Erna's room that were not sensitive to her condition or her needs, had talked down to her, and said things that upset her emotionally and that we were concerned that the people that were caring for her [were] not trained properly and were not approaching her in a tactful manner. Toews told Diane Peck that she too was concerned that there might be a lack of training and it was probably true the employees were not being very tactful with her mother-in-law. Toews told Diane Peck she thought she knew who she was talking about concerning the funeral and grandchildren, but she wanted to talk to Erna Peck about it. Toews then asked Diane Peck if she would be willing to put the incident in writing should the need arise because "this particular person was involved in some union activities."" It is undisputed that Toews spoke witht Erna Peck that afternoon (September 15). Toews told Erna Peck that she was there regarding the incident about her fa- ther's funeral and her grandchildren. According to Toews, Erna Peck became quite emotional and told her it was true. Toews asked Erna Peck to identify who had made the comments to her. Toews first mentioned an- other employee's name, but Erna Peck shook her head no Toews mentioned Carolyn Gard's name, and Peck shook her head yes. Toews stated Erna Peck did not want anything done to Gard because she did not know what Gard might do. Toews I estified she had checked at the time on Sep- tember 15 to see where Gard was working and since she was not working on the wing where Erna Peck was, she IS I credit Diane Peck's testimony that Toews told her she thought she knew who the employee was that was involved Toews first denied the comment but then testified it was possible she might have made such a comment I also credit Diane Peck's testimony that Toews mentioned re- ducing the complaint to writing and the Union in the September 15 con- versation, and I specifically discredit any testimony of Toews to the con- trary 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decided not to mention anything to Gard about it at that time because she wanted to think about what her next step should be Toews testified she spoke on the afternoon of Septem- ber 16 with Director of Nursing Services Lund about the situation and learned that Gard had called in sick for the day Toews stated she and Lund jointly decided to ter- minate Gard Toews testified she spoke with Administra- tor Kellet before she called Gard at home on September 16 to tell her she was terminated The actual termination conversation is set forth in detail elsewhere in this deci- sion On September 23, Toews called Diane Peck at home and told her it seemed necessary that they have her com- plaint in writing and asked her if she would mind doing so Diane Peck told Toews she would do so and, in fact, did Diane Peck hand carried a written letter of com- plaint to the Nursing Home on September 23 (R Exh 11) A day or two later Diane Peck received a written reply from the Nursing Home informing her that Gard had been discharged on September 16 The letter indicat- ed Gard had been discharged because of the incident with Erna Peck as well as her prior work performance (R Exh 12) The burden is on counsel for the General Counsel in alleged discrimination cases arising under the Act to es- tablish a prima facie showing sufficient to support an in- ference that protected conduct was a "motivating factor" in the action taken by an employer Having once estab- lished a prima facie case, the employer has the burden of demonstrating that the same action it took would have been taken even in the absence of the protected conduct Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981) Consideration of the alleged discriminatory discharge of Gard begins with Respondent's knowledge of Gard's union activities It is established Respondent knew of Gard's union activities when Toews was telephonically notified on September 12 of the telegram that stated Gard was the Union's "prime organizer" Gard was the only employee mentioned in the telegram The Nursing Home received and Toews saw a written copy of the telegram on September 13 Respondent's animus toward the Union is demonstrated by the coercive conduct di- rected at Gard on September 15 by Toews Further evi- dence of animus toward the Union is manifested by Toews' unlawful interrogation of yet another employee on September 16 and 23 and her suggestion to that em- ployee that she should dispose of any union cards in her possession The timing of Gard's discharge which oc- curred one day after Toews unlawfully interrogated her is clearly suspect The Board recently noted in Lemon Drop Inn, 269 NLRB 1007 (1984), that two factors were highly significant in determining the motive of coercive conduct and timing—an employee's discharge occurring soon after the employer learns of the employee's union activities Both factors are present in the instant case On the basis of the above, I find as urged by counsel for the General Counsel and as admitted by Respondent that counsel for the General Counsel established a prima facie showing sufficient to support an inference that Gard's protected conduct was a motivating factor in the decision to discharge her Pursuant to the Wright Line, supra, analysis it is incumbent on Respondent to persua- sively demonstrate that it would have discharged Gard even in the absence of her protected conduct I find Re- spondent has failed to so demonstrate Respondent contends Gard was discharged for two reasons, namely, her insubordinate conduct in early August and the alleged incident of verbal abuse involv- ing Erna Peck Respondent asserts it was carrying out its strong policy against verbal abuse of patients when it dis- charged Gard Respondent established that it has a policy against verbal abuse of patients Its policy is set forth in its "Per- sonnel Policies and Procedures" pamphlet Likewise, Re- spondent established on this record it had enforced its disciplinary policy regarding abuse to patients before and after the discharge of Gard However, the first reason given by Respondent for the discharge of Gard has no basis in fact As set forth earlier in this decision, Gard did not engage in any verbal/mental abuse of Nursing Home patient Erna Peck Respondent could have learned that no such verbal abuse took place but chose not to do so Respondent made no effort to ascertain Gard's ver- sion of what had taken place between she and Erna Peck even though it confronted other employees such as Rivers and Dodd when they allegedly violated employee policies and procedures The evidence as a whole indi- cates Respondent seized upon the Erna Peck situation as a way to rid itself of the "prime organizer" for the Union Respondent's second reason for discharging Gard was merely a post hoc attempt to further justify its ac- tions This conclusion is bolstered by the fact that Toews did not mention the prior incident of insubordination to Gard when she discharged her 18 The failure to state one of two reasons relied on for discharging an employee raises suspicion that the unmen- tioned reason was in fact relied on Kingsport Press, 269 NLRB 1150 (1984) The real motivation for Respond- ent's discharge of Gard is highlighted by the fact Toews told Gard on September 16 she would have discharged her 3 days earlier but she was just getting around to it Three days prior to September 16 would have been at a time when Toews would have had no knowledge of the Erna Peck situation but such timing would have coincid- ed with Toews' knowledge of Gard's union activities A further indication of Toews' unlawful motivation can be found in the fact that prior to any employee being identi- fied as the individual involved with Erna Peck, Toews suggested to Diane Peck that she thought she knew who the individual was and that the employee had been in- volved with the Union In that same conversation Toews wanted Diane Peck to be willing to reduce her com- plaint to writing Although Diane Peck had made com- plaints before to the Nursing Home, this was the first time she had ever been asked to reduce a complaint to writing 18 I do not consider Toews comment to Gard (that the real reason she was fired was her mouth) to be advising Gard that she was being dts charged for previous insubordination I likewise do not consider that the comment referred to Gard's union activities The comment was ambigu ous and I find it does not support either contention METHODIST NURSING HOME OF ENID 41 In light of the record as a whole and for the reasons outlined above, I find Respondent violated Section 8(a)(1) and (3) of the Act as alleged in the complaint when on September 16 it terminated and thereafter failed and refused to reinstate its employee Carolyn S. Gard. CONCLUSIONS OF LAW 1 Methodist Nursing Home of Enid, Inc. is an em- ployer engaged in commerce and operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act, and is a health care institution within the meaning of Section 2(14) of the Act 2. United Steelworkers of America, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging its employee Carolyn S. Gard on September 16, 1983, because of her membership in and activities on behalf of the Union, Respondent violated Section 8(a)(3) and (1) of the Act. 4. By engaging in the following conduct, Respondent committed unfair labor practices in violation of Section 8(a)(1) of the Act. a. By interrogating its employees concerning their and their fellow employees' union activities, memberships, and desires b. By orally solicitating grievances from its employees with an implied promise to remedy those grievances. c. By suggesting to its employees that they dispose of any union cards in their possession. 5. The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY I have found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. With respect to the necessary affirmative action, it is recommended that Respondent offer Carolyn S. Gard unconditional reinstatement to her former position of em- ployment or, if that position no longer exists, to a sub- stantially equivalent position, without prejudice to her seniority or any other rights or privileges previously en- joyed. It is also recommended that Respondent make Carolyn S. Gard whole for any loss of pay which she may have suffered as a result of her unlawful discharge. Backpay for Gard and interest thereon shall be comput- ed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). It is further recommended that Respondent expunge from its records any reference to its discharge of Gard and that Respondent notify Gard in writing that this has been done and that evidence of her unlawful dis- charge will not be used as a basis for future personnel action against her. See Sterling Sugars, 261 NLRB 472 (1982) Finally, it is recommended that Respondent be ordered to post the notice "Appendix A" for a period of 60 consecutive days in order that employees may be ap- prised of their rights under the Act and Respondent's ob- ligation to remedy its unfair labor practices. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Methodist Nursing Home of Enid, Inc , Enid, Oklahoma, its officers, agents, successors, and assigns, shall I. Cease and desist from (a) Interrogating its employees concerning their and their fellow employees' union activities, memberships, and desires. (b) Soliciting grievances from its employees with an implied promise to remedy those grievances. (c) Suggesting to its employees that they dispose of any union cards in their possession. (d) Discouraging union activities or membership in the Union, or any other labor organization, by discharging employees or otherwise discriminating against them in any manner with respect to their tenure of employment or any term or condition of their employment. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act. (a) Offer Carolyn S. Gard immediate and full reinstate- ment to her former position of employment, or if her former position of employment no longer exists to a sub- stantially equivalent position of employment without prejudice to her seniority or other rights and privileges and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her in the manner set forth in the section of this decision en- titled "The Remedy." (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against her in any way. (c) 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. (d) Post at its Enid, Oklahoma facility copies of the at- tached notice marked "Appendix." 2° Copies of the " 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 25 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, on forms provided by the Regional Director for Region 16, after being signed by Respondent's authorized representative, shall be posted by Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply APPENDIX A 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 concerning their or their fellow employees' union activities, member- ships, or desires WE WILL NOT solicit grievances from our employees with an implied promise to remedy those grievances WE WILL NOT suggest to our employees that they dis- pose of any union authorization cards in their possession WE WILL NOT discharge employees because of their membership in or activities on behalf of the United Steel- workers of America, AFL-CIO-CLC or any other labor organization WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them by Section 7 of the Act WE WILL offer Carolyn S Gard immediate and full re- instatement to her former job or, if that job no longer exists, to a substantially equivalent position without prej- udice to her seniority or any other rights and privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge less any net interim earnings plus interest WE WILL notify Carolyn S Gard that we have re- moved from our files any reference to her September 1983 discharge and that the discharge will not be used against her in any way METHODIST NURSING HOME OF ENID, INC