Beverly Enterprises, Inc., Cottage Hill Health Care Facility

BEVERLY ENTERPRISES 83 !verly Enterprises, Inc., Cottage Hill Health Care Facility and United Steelworkers of America, AFL-CIO. Cases 10-CA-18605, 10-CA-18895, 10-CA-19232, and 10-RC-12681 18 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 30 March 1984 Administrative Law Judge Philip P. McLeod issued the attached decision. Both the Respondent and the General Counsel filed exceptions and supporting briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 1 and conclusions 2 and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Beverly Enterprises, Inc., Cottage Hill Health Care Facility, Pleasant Grove, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(g). "(g) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We agree with the judge that the Respondent violated Sec 8(a)(I) by soliciting employee grievances during an employee meeting in which em- ployees were questioned concerning the need for a union and were given promises that problems would be remedied. The General Counsel excepted to the judge's failure to find that the Respondent unlawfully prohibited employees from engaging in union ac- tivities during periods of the workday when they were properly not en- gaged in performing work tasks The record does not support the judge's statement that employee Self was told she could be fired for getting an employee to sign a union card on company time, only that she could be fired for getting an employee to sign a union card The judge found, and we agree, that the latter statement was an unlawful threat of discharge Accordingly, we find no merit in the General Counsel's exception 2 We disavow the judge's comments in fn 9 of his decision concerning the applicability of Wright Line, 251 NLRB 1083 (1980), to the subject case See Limestone Apparel Corp, 255 NLRB 722 (1981), enfd. 705 F 2d 799 (6th Cir 1982) IT IS FURTHER ORDERED that the challenges to the ballots of Christine Lowery and Evelyn Crum- ley be overruled and that they be opened and counted. In the event the Union obtains a majority, it shall be certified as the bargaining representative of employees in the appropriate unit. In the event the Union does not obtain a majority, then because of the unfair labor practices in which Respondent has been found to have engaged, the election shall be set aside and a new election conducted at such time and manner as the Regional Director deems appropriate. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT interrogate our employees about their union activities and sentiments; solicit com- plaints and grievances from employees, thereby im- pliedly promising improved terms and conditions of employment in order to discourage employees from further union activity; or create the impres- sion among our employees that their union activi- ties are under surveillance. WE WILL NOT discharge, suspend, or otherwise discipline employees because of their union activi- ties and sentiments in order to discourage employ- ees from engaging in activities on behalf of, or sup- porting, the Union. WE WILL NOT deny maternity leave to employ- ees because of their union activities or sentiments in order to discourage employees from engaging in activity on behalf of, or supporting, the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL withdraw and expunge from our files any reference to the suspension of Joyce Self, and notify her in writing that this has been done and that evidence of the unlawful suspension will not be used as a basis for future personnel actions against her. WE WILL offer Christine Lowery, Evelyn Crum- ley, and Lenette Menefee immediate and full rein- statement to their former positions or, if those posi- tions no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights or privileges. 272 NLRB No. 17 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole Joyce Self, Christine Lowery, Evelyn Crumley, and Lenette Menefee for any loss of earnings or benefits they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to the amount they normally would have earned were it not for the discrimination against them, with appropriate interest. WE WILL expunge from our files any reference to the discharge/termination of Christine Lowery, Evelyn Crumley, Betty Hansen, Sharon Matthews, Benjie Mason, and Lenette Menefee and notify them in writing that this has been done and that evidence of the unlawful discharge/termination will not be used as a basis for future personnel ac- tions against them. BEVERLY ENTERPRISES, INC., COT- TAGE HILL HEALTH CARE FACILITY DECISION STATEMENT OF THE CASE PHILIP P. McLEoo, Administrative Law Judge. This case was heard by me on June 30 and July 1, 1983, in Birmingham, Alabama. It originated from a petition for an election filed in Case 10-RC-12681 on September 30, 1982, by United Steelworkers of America, AFL-CIO (the Union), seeking to represent certain employees of Beverly Enterprises, Inc., Cottage Hill Health Care Fa- cility (the Employer or Respondent). While that petition was pending, a charge was filed in Case 10-CA-18605 by the Union on October 13, 1982, against Respondent. On November 11, 1982, an election was conducted among certain employees of the Employer in order to determine whether they wished to be represented for purposes of collective bargaining by the Union. Thereaf- ter, timely objections were filed by the Union to conduct of the Employer affecting the election On December 7, 1982, a complaint and notice of hearing was issued in Case 10-CA-18605 alleging, inter alia, that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act, by various acts and conduct. On February 1, 1983, a report on challenged ballots and order directing hearing and consolidating cases issued in Cases 10-RC-12681 and 10-CA-18605. The report noted that at the election on November 11, 1982, 16 votes were cast for the Union, 19 votes were cast against the Union, and there were 5 challenged bal- lots which were sufficient in number to affect the results of the election. That report resolved the challenges to the ballots of three individuals, finding that two of the individuals were eligible voters whose votes should be opened and counted and that the challenge to the ballot of one individual should be sustained. The report further noted that the voters who were the subject of the re- maining challenges were individuals alleged to have been unlawfully discharged in Case 10-CA-18605, and it therefore consolidated for hearing the question of their eligibility to vote. Unfair labor practice charges were also filed in Cat 10-CA-18895 on January 17, 1983, and in Case 10-CA 19232 on May 9, 1983. On June 17, 1983, an order con. solidating cases, amended consolidated complaint, and notice of hearing issued consolidating all of the above- captioned cases. This consolidated complaint alleges, inter aim, that Respondent violated Section 8(a)(1) and (3) of the Act by interrogating employees about their union activites; soliciting grievances from employees, creating the impression among employees that their union activities were under surveillance, prohibiting em- ployees from engaging in union activities during penods of the work day when they were properly not engaged in performing work tasks; more stringently enforcing its rule prohibiting employees from clocking other employ- ee timecards; issuing a 3-day suspension to employee Joyce Self; discharging employees Evelyn Crumley, Christine Lowery, Betty Hansen, Benjie Mason, and Sharon Matthews; denying the request of employee Len- ette Menefee for maternity leave; and thereafter dis- charging and failing to reinstate Menefee at the conclu- sion of her requested maternity leave. In its answer to the consolidated complaint, Respond- ent admitted certain allegations including the filing and serving of the charge, its status as an employer within the meaning of the Act, the status of the Union as a labor organization within the meaning of the Act, and the fact that Respondent issued a 3-day suspension to employee Joyce Self. Respondent further admitted that Robert House, director of personnel, southeastern oper- ations, is a supervisor and agent of Respondent within the meaning of the Act Respondent admitted that it dis- charged employees Crumley, Lowery, Hansen, Mason, and Matthews, but asserted that Hansen, Mason, and Matthews have since been reinstated to their former po- sitions with full backpay. Finally, Respondent admitted that it had denied a request for maternity leave made by employee Lenette Menefee on or about January 5, 1983. Respondent denied that it had taken any of the actions against any of the employees named in the complaint be- cause of unlawful motives, and Respondent denied having engaged in any conduct which would constitute an unfair labor practice within the meaning of the Act. At the trial herein, all parties were represented and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Following the close of the trial, counsel for the General Counsel and Respondent filed timely briefs with me which have been duly considered.' On the entire record in this case and from my observa- tion of the witnesses, I make the following ' In conjunction with its posttnal brief, counsel for the General Coun- sel filed a motion to receive certain exhibits which were identified and discussed in the record, but which she Inadvertently failed to offer at the trial herein The motion states that Respondent was contacted and has no objection to the receipt of these documents With this in mind, and having received no objection from Respondent, the documents are re- ceived into the record and shall be considered a part of the official tran- script of this proceeding BEVERLY ENTERPRISES 85 FINDINGS OF FACT I JURISDICTION Beverly Enterprises, Inc , a California corporation, op- erates nursing home facilities throughout the United States Cottage Hill Health Care Facility, which is the subject of these proceedings, is located at Pleasant Grove, Alabama During the past calendar year, which period is representative of all times material herein, Re- spondent derived gross revenues in excess of $100,000 and received at its Pleasant Grove, Alabama nursing home medicare and medicaid payments in excess of $10,000 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 II LABOR ORGANIZATION United Steelworkers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES In December 1981 Respondent acquired 14 nursing homes from Estes Health Care Organization The Cot- tage Hill facility was one of those 14 homes, and it, like the others, became part of Respondent's southern divi- sion In June 1982, Donald Henle was transferred from one of Respondent's facilities in Mobile, Alabama, to be administrator at the Cottage Hill facility Approximately September 1, 1982, 2 the Union began an organizing campaign at the Cottage Hill facility Very soon after it began, Respondent became aware of the union activity among employees In mid-September an employee approached charge nurse Shirley Marlow and told Marlow that some employees were approaching other employees about signing authorization cards on behalf of the Union Marlow immediately approached di- rector of nursing Louise Parker and told Parker what she had heard Parker responded that she and administra- tor Henle had known of the union activity for approxi- miately a week but had been instructed not to tell anyone at that time Later that same day, Marlow and Parker met with Henle, and Marlow related to Henle what she had been told by the employee According to Marlow, whom I credit, Henle, Parker, and Marlow then discussed which employees they thought might be the primary participants in organizing a union The names of three employees surfaced Joyce Self, Evelyn Crumley, and Christine Lowery On September 17, Robert House, director of personnel for Respondent's southern division, came to the Cottage Hill facility and held a meeting with employees This meeting lasted approximately 1-1/2 hours The meeting began by House informing employees that Respondent's existing earned-time leave program would be replaced with a set vacation, sick leave, and holiday program After explaining the new program, House told employ- ees that he knew union activity was taking place at the Cottage Hill facility House asked the employees why they wanted a union and what they though a union could do for them House asked the employees what their problems were, generating a discussion about cer- tain issues Charge nurse Marlow testified that, at the September 17 meeting, House asked the employees why they wanted a union, and "what did they think a union could give them that they did not already have ?" Self also tes- tified that at this meeting House asked employees why they wanted a union Menefee also testified that in mid- September House held a meeting with employees during which he talked about the Union House denied ever having asked employees why they wanted union repre- sentation I do not credit his denial, however, and instead I credit Marlow, Self, and Menefee Respondent argues that the only purpose of the September 17 meeting was to announce the divisionwide change in employee leave benefits and that the meeting occurred before Respond- ent had knowledge of employee union activities There is no question that at the September 17 meeting Respond- ent announced a change in employee benefits 3 I find, however, that by the time of the September 17 meeting House, Henle, and Respondent's other primary supervi- sors were aware of employee union activity Further, I credit the testimony of employees that at this meeting on September 17 House asked them why they were interest- ed in a union Parker testified that House asked if the employees had any problems Self testified that House asked if there were any problems that could be discussed Menefee tes- tified that House told employees they should feel free to openly discuss any problems they might have Henle himself testified that House asked employees if they had any problems Respondent, however, argues that House did so only as a followup to Respondent's announcement of the change in benefits Respondent argues that during this meeting there was no mention of the union I find to the contrary Elizabeth Whitman, a dietary employee, told House she was afraid of administrator Henle House assured Whitman that she had no reason to be afraid of Henle Employee Lenette Menefee questioned House about her expected maternity leave, expressing a concern about whether her job would be available when she came back to work House told Menefee that he did not see any problem with her maternity leave, that it was up to her, her doctor, and Henle when she went on leave, and House told Manefee that, when she got ready to come back to work, her job would be waiting for her Re- spondent argues that House explained to Menefee it was necessary to apply for maternity leave The record, how- ever, supports exactly the opposite conclusion Menefee testified that, at the close of the September 17 meeting, she asked House about her expected maternity leave Menefee testified she asked whether her job would be there when she returned According to Menefee, z All dates hereinafter refer to the period from September 1982 3 This change in employee benefits is not alleged as an unfair labor through April 1983, unless otherwise indicated practice 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whom I credit, House replied, "It would be up to [you] and [your] doctor and Mr. Henle when [you] went on [your] maternity leave . . . [but] when [you] got ready to come back [your] job would be there." House testified that his answer was to the effect that it would depend on the operating schedule and that it must be approved by the employee's department head, but he saw no reason why it would not be approved. House suggests he gave Menefee an ambiguous answer with specific contingen- cies. I do not credit House, but rather find that he was far more certain in his answer as Menefee testified. I credit Menefee I note that the testimony of employee Joyce Self corroborates that of Menefee at least in part. Self s testimony offers no corroboration of House's ver- sion of his ambiguous and contingent answer. Self testi- fied that, in response to Menefee's question, House told Menefee that it was between her, her doctor, and Henle. Self provides no corroboration of House's assertion that his answer was contingent on the operating schedule, or approval of a department head. Moreover, Menefee im- pressed me as the more forthright witness, and I find as she testified that House told her her position would be there when she returned to work and House also told Menefee he did not see any reason why there would be a problem House returned to the Cottage Hill facility on Septem- ber 27 after Respondent received a formal request for recognition by letter from the Union. On September 28, House again met with employees at the Cottage Hill fa- cility, at which time he informed them that Respondent had received a formal demand for recognition. House told employees that Respondent would not voluntarily recognize the Union and that, if the Union filed a peti- tion for an election, Respondent would be required to send to the Board a list of their names and addresses. House told employees that it was their right to talk or not to talk to representatives of the Union.4 House remained at the Cottage Hill facility through the next day to oversee the operation while administrator Henle and director of nursing Parker attended a meeting at Respondent's southeastern divisional headquarters. On that day, September 29, House called charge nurse Marlow into Henle's office. Marlow had reported em- ployee union activity to Parker and Henle, but had not previously spoken directly to House about this subject. House asked Marlow what she knew about the union ac- tivity among employees. Marlow responded that the only thing she knew was hearsay and that she did not know anything definitely House then asked Marlow who she thought might be behind organizing the Union. Marlow named Crumley, Lowery, and Self. House then asked Marlow what she thought about Self s attitude in her work. Marlow replied that she thought Self did a good job. House asked Marlow if she was aware that Self often did not carry out orders. Marlow said she was aware of this and that both Parker and Henle had spoken to Self about rule violations and about not carrying out 4 At one point in her testimony, Parker testified that during this meet- ing House asked employees what the Steelworkers could do for them I find that she mistakenly places this during the September 28 meeting, and that It in fact occurred at the September 17 meeting as described above orders. House then asked Marlow if she knew of any way that Respondent might get Self to resign. Marlow said she did not. House suggested moving Self to another hall. Marlow told House that would not work House then asked Marlow to assign Self a job duty that she would not perform. Marlow said she did not know of any such duties, but House told Marlow to try anyway. Marlow then went and assigned Self a job which she thought Self might not be willing to perform. Self, how- ever, performed the assigned duty. Marlow then re- turned to Henle's office and told House she did not think his idea would work. House told Marlow to bring Self into Henle's office, and Marlow did so. I credit Self and Marlow that, after Self was brought to Henle's office, House told Self that he knew Self was trying to get a union in, and House asked Self why she wanted a union. Self did not respond. House asked Self a second time why she wanted a union. Again Self did not respond. House then told Self that she had violated many of Re- spondent's work rules and there were at least three things for which she could be fired: smoking in patient's rooms, having Cokes on her cart, and getting Larry Parker to sign a union card on company time. House told Self that he knew Parker had called Self and asked that his authorization card be returned to him and that Self had not returned it. Self replied that she would try to get the card back for Parker. House then told Self that Marlow was Self s supervisor as were Parker, Henle, and himself. House told Self that Marlow could discipline her just as her other supervisors could, but that Marlow was her friend and thought Self did good work. House then told Self that he was not going to discharge her, but that Self wa going to be given a 3-day suspen- sion. House then instructed Marlow to issue and to set the time when she wanted Self to return to work.5 On October 5, Respondent held a meeting in Birming- ham, Alabama, for supervisors of the various facilities lo- cated nearby. This meeting was conducted by Respond- ent's counsel, and its purpose was to educate supervisors about the limits of appropriate conduct during a union organizing campaign and otherwise discuss Respondent's strategy during that campaign. Supervisors attending this meeting, which included charge nurse Marlow, were given booklets illustrating the limits of appropriate con- duct in discussing the Union with employees. A quiz was 5 I do not credit House's testimony with regard to this incident From my observation of House, there was little doubt that his version was fab- ricated House testified that Marlow came to him on her own and asked permission to discharge Self House also testified that Self was suspended by Marlow House's testimony is inconsistent with a memo to the file dic- tated by House when he returned to Respondent's divisional headquar- ters It is clear from the memo that House was the one who decided to discipline Self and who effectively carried out that discipline I also find It incredible that Marlow would wait for a day when administrator Henle was not present at the Cottage Hill facility to approach House, whom she had met only once before, for permission to terminate Self Moreover, House's denial that he asked any supervisor what employees they thought were engaged in union activity is simply incredible Further, it is directly contradicted by the straightforward and very believable testimo- ny of both Marlow and Parker that, during the time from October 25 to the election on November 11 when House remained at the Cottage Hill facility full time, there were regular meetings of supervisors during which they repeatedly reassessed which employees might vote for or against the Union BEVERLY ENTERPRISES 87 administered to ascertain the effectiveness of the training At this meeting, supervisors were told that from then on they were to report every rule infraction by an employee to the facility administrator regardless of whether the in- fraction was major or minor in nature Prior to this meeting, supervisors had used discretion whether to tol- erate minor rule infractions and had used their own judg- ment in determining when a rule infraction was of such a major nature that it should be brought to the administra- tor's attention Respondent's employee handbook provides "No one may clock in or out for another employee To do so will be cause for immediate dismissal of both employees" Re- spondent's predecessor Estes had a similar rule Prior to October 7, however, both before and after Respondent took over the Cottage Hill facility, it was commonplace for employees to clock one another in and out It is clear from Marlow's testimony, which I credit, that supervi- sors were aware of this common practice and that no effort was made to enforce this rule provision Prior to the start of the shift on October 7, administra- tor Henle met with employees Betty Hansen and Evelyn Crumley The meeting lasted beyond the beginning of their shift Crumley had carried her timecard into the meeting with Henle, and she handed it to Henle for his initials Henle accompanied Hansen and Crumley to the timeclock when the meeting ended When Henle pulled the timecard belonging to Hansen, he discovered it had already been clocked in Henle asked Marlow, who was standing nearby, who had clocked in Hansen's timecard Marlow told Henle that Christine Lowery had clocked in Hansen's card Henle said nothing to the employees or Marlow at the time, but he decided to discharge both Lowery and Hansen Henle telephoned House to obtain his agreement that he could discharge Lowery and Hansen House was out of town, however, and Henle was not able to speak to House until October 11 In the meantime, on Friday, October 9, Marlow ob- served Evelyn Crumley clock out the timecards of fellow employees Betty Hansen, Benjie Mason, and Sharon Matthews After struggling over the weekend with whether to report this rule violation to Henle, Marlow did so on Monday, October 11, as she had been instructed to in the supervisors' training meeting on Oc- tober 5 Henle then decided to discharge all five of the employees involved Lowery, Hansen, Crumley, Mason, and Matthews Henle telephoned House to report that he planned to terminate all five employees House conferred with his regional supervisor, regional vice president, ex- ecutive vice president of operations, and legal counsel for labor relations, who agreed that it was all right for Henle to discharge the five employees In a conversation with Marlow and Harper, Henle told them of his plans to discharge these five employees Both Marlow and Harper asked Henle not to discharge these employees I credit Marlow that both she and Harper pointed out to Henle that it was commonplace for employees to clock one another in and out, and that they themselves had done so for employees on numerous occasions Henle re- plied that Marlow and Harper could confess all the sins they wanted but that this would not change his mind Henle stated that the decision had been made by people above him, and it was not going to be changed On Oc- tober 12, Lowery, Hansen, Crumley, Mason, and Mat- thews were all discharged Crumley and Lowery were discharged for clocking out and clocking in other em- ployees, respectively, while Hansen, Mason, and Mat- thews were discharged for allowing themselves to be clocked in or out by the other two employees Though Henle spoke to House, who in turn spoke to several of his own superiors before agreeing that the five employ- ees could/should be discharged, it was Henle's idea and recommendation that the five be terminated Before call- ing House, however, Henle did not interview any of the five employees or otherwise conduct any investigation to determine the culpability of these employees or the cir- cumstances under which the timecards had been clocked in or out After they were discharged, Lowery, Hansen, Crum- ley, Mason, and Matthews all filed written requests for review of their terminations pursuant to Respondent's in- house grievance procedure Eric Flock, vice president of operations for Alabama and Mississippi, and House then began the process of reviewing these grievances On No- vember 2, Respondent mailed letters to the five, asking them to contact Flock to set up an appointment to dis- cuss the facts surrounding their discharge Only Hansen responded immediately As Respondent states in its brief, "every effort was made to arrange immediate meetings with each individual dischargee so that a resolution of their discharges could be reached before the November 11 election" Respondent unabashedly admits that special handling was given to these grievances in order to have them resolved before the November 11 election On No- vember 8, Respondent sent mailgrams to the remaining four employees asking them to appear for a "fact finding investigation" at Respondent's regional office in Birming- ham at 10 30 a m on November 10, the day prior to the election After meeting with the employees, House and Flock decided to reverse the decision of Henle and rein- state Hansen, Mason, and Matthews House testified that the reason for their decision to reinstate these individuals was that There was some evidence lacking there that really told us if they really knew that they had been clocked out by that other two—by the other people And I made a mistake when I was talking to Mr Henle to start with I found out that Mr Henle had not talked to those employees before he terminated them House testified that Hansen, Mason, and Matthews were reinstated "sometime in October" and that it was defi- nitely sometime prior to the election House further testi- fied, "The reason I'm not sure [of the date] is one or two of them couldn't come to work for a few days after we asked them to" House then reconfirmed once again that the three were reinstated prior to the election In later testimony, House clarified that only Hansen returned to work prior to the election, Matthews and Mason re- turned to work after the election While the employee greivances were pending, House returned to the Cottage Hill facility on approximately 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 25 and remained there until the election on No- vember 11. During this period, House held a number of meetings with employees in his campaign effort before the election. Additionally, House held numerous private meetings with the supervisory staff during this period. I credit Marlow that, in the meetings with supervisors, House regularly called upon them to go over the list of employees and discuss how the supervisors thought each employee would vote in the upcoming election. During the discussions, both Self and Menefee were identified as employees who were for the Union. In one of the meetings House held with employees during this period, Menefee again asked House about her maternity leave, as she had in the meeting on September 17. House again told Menefee that her leave was up to her, her doctor, and Henle, but that House saw no prob- lem about her job being available when she was ready to return to work. Also during one of these meetings, Men- efee revealed to House that she had been to a number of union organizing meetings. The election was conducted among employees as scheduled on November 11. As indicated, 16 votes were cast for, and 19 against, union representation. The five challenged ballots were determinative of the outcome of the election. As House testified, Hansen had been rein- stated prior to the election, and she apparently was not challenged. Mason, Matthews, Lowery, and Crumley, however, were challenged by the Board agent because their names did not appear on the voter eligibility list. Thereafter, the Union and Respondent entered into a stipulation that Mason and Matthews, who by then had been reinstated, were eligible voters and that their ballots should be opened and counted. While no revised tally of ballots was offered counsel for the General Counsel during this trial, I note the report on objections specified that the eligibility of Lowery and Crumley should be placed before me for determination only "should they remain determinative" of the outcome of the election. Accordingly, I must presume that the ballots of Mason and Matthews have been opened and counted, and that the votes did not determine the outcome of the election. Menefee testified that, sometime in late 1982, she and other employees in the housekeeping department were called by Henle into his office for a meeting. Menefee was not certain of the exact date when this meeting oc- curred, but she was certain that the meeting occurred sometime after Thanksgiving and before Christmas. Men- efee testified without contradiction that during this meet- ing, in which Henle was reviewing the supply list with employees, Henle asked Menefee how much longer she was planning to work. Menefee informed Henlee that, as she had told him before, she was planning to work the first 2 weeks of January and then go on maternity leave. Henle nodded his head, and then continued discussing other matters. I credit Menefee that this conversation with Henle occurred as she described it. On January 3, 1983, Menefee again talked to Henle about her planned leave. For the first time, Henle informed Menefee that she had to give a 30-day notice before she could go on leave. Henle told Menefee to bring him a letter request- ing leave. On January 5, Menefee gave Henle the letter he requested. On January 15, director of nursing Parker returned the written leave request to Menefee with Henle's denial noted thereon.6 After Menefee's baby was born, she was released by her doctor to return to work in April 1983. On April 14, Menefee met with Henle at the Cottage Hill facility to inform Henle of her ability and her desire to return to work. Henle told Menefee that there were no openings at that time. Henle added that Respondent might have an opening in the near future in the laundry deparment and, if so, Menefee would be contacted and offered the posi- tion. In July 1983 Menefee was contacted and informed that a position was soon to become available because another employee was pregnant and would be leaving. Menefee accepted this position and returned to work on July 15 in the housekeeping department. Analysis and Conclusions By the time of House's September 17 meeting with employees, Respondent was fully aware of union orga- nizing activity among employees. When charge nurse Marlow told director of nursing Parker and administra- tor Henle in mid-September that employees were discuss- ing a union, Parker responded that she and Henle had known about this for at least a week and had been told to keep quiet about it. At the September 17 meeting, di- rector of personnel House may well have discussed with employees, as Respondent argues, certain systemwide changes in benefits which Respondent was implementing totally unrelated to any union activity. At that same meeting, however, House took the opportunity to tell employees that Respondent was aware of the union ac- tivity among employees. House also went on to discuss the subject of the Union with employees, and, in doing so, House asked employees both why they wanted a union and what problems they were having. House's questions began a discussion among employees on several issues, including one employee's fear of administrator Henle and employee Menefee's anticipated maternity leave. Far from being simply rhetorical questions, as Re- spondent argues, House's interrogation of employees and his solicitation of "problems" employees were having represents a classical effort on an employer's part to elicit employee motives for wanting a union in order to try to dissuade employees from going any further with what the employer views as an unwanted and ill-con- ceived result, i.e., unionization. This is particularly true where, as here, a union organizing campaign has just begun and Respondent sends into the work place a top management official from regional headquarters who en- gages in such activity. Far from being rhetorical ques- 6 On Menefee's written request for leave, Henle placed a note denying Menefee's leave request and stating that Henle would be happy to discuss any openings with Menefee when she was able to return to work Re- spondent argues that Menefee's January 5 written request for leave was Henle's first notification of Menefee's intention to apply for maternity leave Henle testified that, prior to receiving Menefee's written request on January 5, he had never previously discussed with Menefee her inten- tion to take maternity leave I reject Henle's assertion, and I credit Mene- fee that she had at least one conversation with Henle pnor to January 3 in which Henle was notified and acknowledged that Menefee was plan- mng to take maternity leave beginning in early January BEVERLY ENTERPRISES 89 lions, such interrogation and solicitation of employee grievances may reasonably be said to have a tendency to interfere with the free exercise of employee rights under the Act, particularly as in this case where the questions posed to employees bring about the desired result of em- ployees baring their sentiments to management During his second visit to the Cottage Hill facility, House engaged charge nurse Marlow in a discussion about who Marlow thought were the primary union sympathizers After Marlow identified employee Joyce Self, House asked Marlow if she knew of a way Re- spondent could get Self to resign When Marlow indicat- ed she did not, House suggested several possibilities, in- cluding assigning Self job duties which she would refuse At House's direction, Marlow in fact assigned such duties to Self, but Self performed them in spite of their undesirable nature When Marlow reported back to House that Self had performed the task, House told Marlow to bring Self to Henle's office It was only then that House chastised Self for various past infractions of work rules House told Self that she could be fired for these past infractions, including smoking in patients' rooms, having cokes on her cart, and soliciting a union card from a fellow employee on company time House also told Self that he knew she was trying to get a union in, and House asked Self at least twice why she wanted a union I reject altogether House's claim that Marlow sought him out asking that discipline be imposed against Self Rather, I credit Marlow that it was House who ini- tiated this entire incident by calling Marlow into Henle's office and initiating the conversation about employee union sympathizers, including Self Other than House's claim, which I find totally unworthy of belief, there is no evidence whatever that Self had engaged in any particu- lar activity on September 29 which precipitated or war- ranted either House's chastisement or the ensuing 3-day suspension No doubt Self was guilty of various past transgressions of employee work rules Those transgres- sions had been dealt with at the time, however, and no discipline had been imposed against Self beyond the verbal reprimands she received when the incidents oc- curred 7 I note too that suspending Self for these past transgressions resulted in disparate treatment between Self and other employees No other employee, for exam- ple, had ever been disciplined beyond a verbal warning for drinking cokes in Respondent's hallways Moreover, House did not follow the normal disciplinary procedure which calls for a written warning to be issued to an em- ployee after verbal warnings and before a 3-day suspen- sion From the testimony in this case, particularly the credi- ble testimony of Marlow, there is no doubt whatever in 7 Self had been told in the past she could not have Cokes on her cart in the hall, but she had not received anything other than a verbal warn mg and had not been told that she could or would receive more severe discipline One verbal warning had been reduced to writing, but there is no evidence that a copy of it was given to Self as a formal written warn mg pursuant to Respondent's disciplinary procedure, and It was not signed or otherwise acknowledged by Self Nor does the record show that Self was ever specifically warned prior to September 29 that her conduct could or would result in a suspension or discharge Rather, past transgressions were apparently dealt with individually and considered to be minor, though frustrating, by her immediate supervisors my mind that what House did on September 29 was to reach back into Sells past and dredge up past transgres- sions committed by her in order for House to impose the 3-day suspension against Self, to show Self her tenuous position with Respondent, and thereby discourage fur- ther union activity Consequently, I find that Sells sus- pension violated Section 8(a)(1) and (3) of the Act Fur- ther, I find that by repeatedly interrogating Self about why she wanted a union, House violated Section 8(a)(1) of the Act Finally, I find that House created the impres- sion of surveillance when he told Self that he knew em- ployee Larry Parker had tried to get his union authoriza- tion card back from her and was not able to By inter- posing himself between Self and Parker, Self could only believe that her employer had been spying on her union activities Consequently, I find that by doing so House violated Section 8(a)(1) of the Act Regarding the discharges of Crumley, Lowery, Hansen, Matthews, and Mason it must first be observed that the policy against employees clocking in or clocking out one another's timecards had been in existence at the Cottage Hill facility for years, but it had been regularly and consistently violated by all employees with the knowledge of their immediate supervisors without any disciplinary action being taken This is not to say that employees had regularly been cheating Respondent with regard to time worked Rather, the testimony of Marlow and Harper shows clearly that a practice had been toler- ated for years in which employees, out of courtesy and convenience for other employees, punched one another in or out on the timeclock There is no evidence what- ever that Crumley, Lowery, Hansen, Matthews, or Mason was involved in any attempt to cheat Respondent regarding time worked, and Respondent does not con- tend this to be the case Respondent attempted to demonstrate at the trial that there was a consistent policy followed at all of its facili- ties which justified the discharges here Administrators from various of Respondent's facilities in Florida, Geor- gia, and South Carolina testified that, when employees at their facilities were caught violating the timecard policy, they were terminated The testimony of these administra- tors, however, and exhibits introduced through them, reveal a major difference between what occurred at those facilities and what occurred at the Cottage Hill fa- cility resulting in Crumley, Lowery, Hansen, Matthews, and Mason being discharged First, as the testimony of those other administrators shows, employees involved in timecard violations at those other facilities were cheating Respondent out of time worked In some cases, one em- ployee would clock another employee in or out an hour or more before they either arrived at work or after they had already left for the day As indicated above, such is not the case here, and Respondent does not contend it to be Second, I find it significant indeed that in every single case testified to by one of the administrators of those other facilities, whenever a timecard violation was reported to the administrator, an investigation was con- ducted before the employees were terminated In the case at hand, however, Henle conducted no investigation of any sort before the five employees were terminated 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has consistently held that an employer's fail- ure to conduct an investigation of an employee's alleged misconduct is evidence of discriminatory intent, especial- ly when viewed in light of the employer's union hostili- ty Firestone Textile Go, 203 NLRB 89, 95 (1973) Here, as in that case, the discharging official merely talked to counsel and higher management, none of whom had any information on the facts of the case Henle was fully aware of Crumley's and Lowery's prounion sentiments Both Marlow and Harper had identified them as leading proponents of the Union As soon as Henle learned that they were guilty of transgressing one of Respondent's employee work rules, Henle took no action to investigate the matter, but immediately telephoned higher company officials seeking permission to discharge them and the other employees involved Henle appeared all too anx- ious to bring down the gauntlet on these employees, brushing aside altogether requests by both Marlow and Parker that they not be discharged I also find it signifi- cant that Marlow reported the timecard rule violations to Henle only because of instructions she had received in the seminar held by Respondent to instruct supervisors how to conduct themselves during a union campaign Marlow testified credibly that, before the seminar, she would not have reported any employee for violating the timecard policy as she considered that to be a minor vio- lation of employee work rules It was only after the sem- inar that she reported these rule infractions because she had specifically been instructed during that seminar that while the union campaign was going on she was required to report all employees for any infraction of company policy, whether major or minor I find that in discharg- ing Crumley, Lowery, Hansen, Matthews, and Mason, Henle was motivated solely by a desire to rid himself of two of the most active union supporters, i e, Crumley and Lowery Consequently, I find that in discharging Crumley, Lowery, Hansen, Matthews, and Mason, Re- spondent violated Section 8(a)(1) and (3) of the Act 8 Like Self, Crumley, and Lowery, Respondent was aware that Menefee held proumon sentiments Menefee was identified as someone who would vote in favor of the Union by both Marlow and Parker during the polling of supervisors which took place in late October shortly prior to the election Menefee herself had revealed to House in one of the employee meetings prior to the elec- tion that she had attended union meetings On at least two occasions prior to the election Menefee had dis- cussed her expected maternity leave with House, and she was told on both occasions that House did not expect any problem with her anticipated leave Further, on at least one occasion between Thanksgiving and Christmas 1982, Henle asked Menefee when she would be going on her maternity leave Menefee told Henle that, as she had told him before, she would be leaving in mid-January Neither Henle nor House had said anything to Menefee about requiring a written leave request to be submitted 8 With regard to Hansen, Matthews, and Mason it should be noted that where union advocates are terminated in violation Sec 8(a)(3), the concurrent discharge of other individuals to cloak those terminations with an aura of legitimacy by including nonunion supporters along with them" is equally violative of the Act Howard Johnson Co 209 NLRB 1122, 1123(1974) 30 days in advance of beginning her maternity leave It was not until January 3, 1983, only a few days before she was scheduled to go on leave, that Henle told Menefee that she would have to give a 30-day written notice and that she would have to bring Henle a written request Menefee was treated differently from other women who had requested and been granted maternity leave in the past The record here reflects that at least two other em- ployees had been granted maternity leave without giving a 30-day notice and with no restrictions placed on their returning to work Respondent asserts that the reason Menefee could not be treated like the other employees was because she was a housekeeping employee Accord- ing to Respondent, the other two employees referred to above were granted leave because they were employed in the dietary department and in the nursing department, and both of those departments had call-in employees who were available to fill in during the time that the em- ployees were on maternity leave Henle testified that call-in employees are available for nurses aides because there is a state law containing such a staffing require- ment Respondent's argument is so flawed as to be nearly absurd If in fact Respondent had a policy of terminating housekeeping employees rather than granting them ma- ternity leave, clearly either House or Henle or both could have and would have told Menefee this long before she was scheduled to actually begin her leave Neither House nor Henle makes any claim that they ever expressed such a policy to Menefee, despite the fact that House admits having at least one conversation with Men- efee regarding maternity leave early in the union cam- paign Second, Henle admits that Respondent has on-call housekeeping employees Just as a nurses aide would be replaced by an on-call employee, Menefee was replaced by an on-call employee The only difference is that the nurses aide who took maternity leave was allowed to take maternity leave and return to work Menefee was denied maternity leave and terminated Respondent offers no logical explanation for the difference, and I find that there is none I find that Respondent denied employ- ee Lenette Menefee leave in a disparate manner from which it had granted other employees maternity leave in the past The only discernible difference between Mene- fee and other employees who had been granted materni- ty leave in the past is the advent of the union campaign and Menefee's prounion sentiments I conclude that Re- spondent denied Menefee maternity leave, thereby result- ing in her termination, because of Menefee's activities on behalf of, or support for the Union, and I find that Re- spondent thereby violated Section 8(a)(1) and (3) of the Act 9 CONCLUSIONS OF LAW 1 Respondent, Beverly Enterprises, Inc , d/b/a Cot- tage Hill Health Care Facility is an employer engaged in 9 I find it necessary to apply Wright Line, 251 NLRB 1083 (1980), to the Instant case for I find that Respondent had but a single motive for taking the actions it did against Self, Crumley, Hansen, Lowery, Mason, Matthews, and Menefee—to discourage activity on behalf of, and support for, the Union among them and their fellow employees BEVERLY ENTERPRISES 91 commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 United Steelworkers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 In a meeting with employees on September 17, 1982, Respondent interrogated employees about their union sentiments and solicited grievances from employ- ees in order to discourage employees from engaging in further activity on behalf of, or support for, the Union 4 On September 29, 1982, Respondent interrogated employee Joyce Self about her activities on behalf of, and support for, the Union, threatened Self with dis- charge, created the impression that Self s union activities were under surveillance, and ultimately issued Self a 3- day suspension because of Self s activities on behalf of, and support for, the Union, and Respondent thereby vio- lated Section 8(a)(1) and (3) of the Act 5 On October 12, 1982, Respondent discharged Evelyn Crumley, Betty Hansen, Christine Lowery, Benjie Mason, and Sharon Matthews in order to rid itself of Crumley and Lowery, two known active supporters of the Union, and Respondent thereby violated Section 8(a)(1) and (3) of the Act 6 On or about January 15, 1983, Respondent denied the request of employee Lenette Menefee for maternity leave, thereby resulting in her termination, because of Menefee's activities on behalf of, or support for, the Union, and Respondent violated Section 8(a)(1) and (3) of the Act 7 The unfair labor practices which Respondent has been found to have engaged in, as described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lend to labor disputes burdening and obstructing com- merce and the free flow of commerce within the mean- ing of Section 2(6) and (7) of the Act 8 The conduct of Respondent which has been found to constitute unfair labor practices within the meaning of the Act which occurred during the critical period be- tween the filing of the repesentation petition and the date of the election has interfered with the employees' exer- cising a free and unfettered choice in the selection of their collective bargaining representative in Case 10-RC- 12681 THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" 10 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 ORDER The Respondent, Beverly Enterprises, Inc , d/b/a Cot- tage Hill Health Care Facility, Pleasant Grove, Alabama, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating its employees about their union ac- tivities and sentiments (b) Soliciting complaints and grievances from employ- ees, thereby impliedly promising improved terms and conditions of employment, in order to discourage em- ployees from further union activity (c) Creating the impression among its employees that their union activities are under surveillance (d) Suspending, or otherwise disciplining, employees because of their union activities and sentiments in order to discourage employees from engaging in activities on behalf of, or supporting, the Union (e) Discharging employees because of their union ac- tivities and sentiments in order to discourage employees from engaging in activity on behalf of, or supporting, the Union (f) Denying maternity leave to employees because of their union activities or sentiments in order to discourage employees from engaging in activity on behalf of, or sup- porting, the Union (g) In any other like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the purposes and policies of the Act (a) Withdraw and expunge from its files any reference to the suspension of Joyce Self and notify her in writing that this has been done and that evidence of the unlawful suspension will not be used as a basis for future person- nel actions against her (b) Offer Christine Lowery, Evelyn Crumley, and Lenette Menefee immediate and full reinstatemnt to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority and other rights and privileges II (c) Make whole Joyce Self, Christine Lowery, Evelyn Crumley, and Lenette Menefee for any loss of earnings or benefits they may have suffered by reason of the dis- crimination against them by payment to them of a sum of money equal to the amount they normally would have earned were it not for the discrimination against them, less net interim earnings, with backpay to be computed in the manner prescribed in F W Woolworth Co, 90 " Betty Hansen, Sharon Matthews and Senn& Mason are not Included in this reinstatement Order and the "make whole' remedy which follows only because Respondent represented at the trial herein without contra diction that they were reinstated with full backpay pursuant to its inter- nal grievance procedure If it should appear during the compliance stage of this proceeding that these individuals were not in fact reinstated fully to their former positions and/or were not in fact made whole for any loss of earnings or benefits they may have suffered by reason of the chscrimi nation against them, counsel for the General Counsel may move for an amended order to include these individuals in the apropriate remedy I note too that although they may have been reinstated and made whole, evidence of their unlawful discharge remains on file with the Respond ent Accordingly, these individuals, like the other discriminatees, are spe- cifically included in the paragraph of this Order requiring Respondent to expunge such material from its records 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corp, 231 NLRB 651 (1977), see generally Isis Plumbing Co, 138 NLRB 716 (1962) (d) Expunge from its files any reference to the discharge/termination of Christine Lowery, Evelyn Crumley, Betty Hansen, Sharon Matthews, Benjie Mason, and Lenette Menefee and notify them in writing that this has been done and that evidence of the unlawful discharge/termination will not be used as a basis for future personnel actions against them (e) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records, and reports and all other records necessary to analyze the amount of backpay due under the terms of this Order (f) Post at Cottage Hill facility copies of the attached notice marked "Appendix " 1 2 Copies of the notice, on forms provided by the Regional Director for Region 10, 12 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 after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply In view of my finding that Christine Lowery and Evelyn Crumley were discharged in violation of Section 8(a)(1) and (3) of the Act, they are to be considered eli- gible to vote in the election held on November 11, 1983 Accordingly, it is ordered that the challenges to the bal- lots of Lowery and Crumley be overruled and that they be opened and counted In the event the Union obtains a majority, it shall be certified as the bargaining represent- ative of employees in the appropriate unit In the event the Union does not obtain a majority, then because of the unfair labor practices which Respondent has been found to have engaged in, the election shall be set aside and a new election conducted at such time and manner as the Regional Director deems appropriate