Alliance Medical Inn-New HavenDownload PDFNational Labor Relations Board - Board DecisionsAug 27, 1971192 N.L.R.B. 1081 (N.L.R.B. 1971) Copy Citation ALLIANCE MEDICAL INN 1081 Heritage House of Connecticut, Inc. d/b/a Alliance Medical Inn-New Haven and Local 1199, Drug and Hospital Union, Retail, Wholesale and Department Store Union, AFL-CIO. Case 1-CA-7320 August 27, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND KENNEDY On May 10, 1971, Trial- Examiner Benjamin K. Blackburn issued-his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor 'practices and recommending that it cease and desist -therefrom and take certain affirmative action; as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief; and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers, in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial- Examiner made at the hearing and finds that no prejudicial error, was --committed. The rulings are hereby, affirmed. The Board has considered `the Trial Examiner's Decision, the exceptions, the-briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith.' 1. The Trial Examiner found that Respondent discriminatorily promulgated and enforced a no- solicitation rule against union organizing in the nursing home in violation of Section `8(a)(1) of the Act. We agree. but. solely for the following reasons. As found by the Trial'Examiner, there is evidence that Respondent's predecessor, Extendicare, posted a general no-solicitation rule at Heritage'-House in the employees' dining room. However, it is undisputed that the piece _of, paper,on which the rule appeared had been removed a few months before Respondent assumed controLof the home. It is also uncontradict- ed that Respondent's predecessor permitted-solicita- tion of other kinds during working time such as the selling of stuffed animals and frozen lasagna. In fact, 1 The Respondent has excepted to certain credibility findings made by the Trial Examiner . It is the Board's established policy not to overrule a Trial Examiner's resolutions - with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 363 (CA. 3). We have carefully examined the record and, find no, basis for reversing his findings. some of this solicitation was done by Barbara Tarutis, the director of nursing services under both Extendicare and Respondent. Respondent took over Heritage House on Septem- ber 1.20n September 18, Steven Potash, a regional administrator of Respondent, became the acting administrator of the nursing home during the period which is material to this case. During the last week of September, the Union commenced a campaign to organize, and become the collective-bargaining repre- sentative of Respondent's employees: In this connec- tion, Edward Cooper, one of the alleged-discrimina- tees herein, spoke to William Morico, the union organizer, in front of the nursing home on September 30. At, this time Morico gave Cooper a number of blank union authorization cards. Cooper and his wife Faye, the other alleged discriminatee herein, each signed one of these cards on October I and returned them to the Union. The remainder of the blank cards were left in the laundry which was operated by, the Coopers. Mrs. Cooper testified',-that = when other employees had inquired about obtaining union authorization cards while she was delivering linen on the nursing- home floors, she had responded by telling them they could get them in the laundry. She also said that when nurses came to the laundry room for linen, she had, in response to their questions, engaged in several discussions concerning the Union. At 3:30 p.m. on October 6, Mr. ' Cooper and 16 other, employees of 'Respondent attended a union meeting' at the union hall. On October 7, Potash called, Mrs. Cooper to his office-and discharged her for soliciting for the Union on worktime. Subse- quently, following the discharge of "the Coopers, Respondent's employees were told by their-supervi- sors that they were not to talk about the Union on working time. Although a rule prohibiting union solicitation which is limited to employees' worktime is presumed' to be valid, the presumption of validity may be rebutted by a showing that the rule was adopted for a discriminatory purpose.3 In the instant case, we are satisfied that the General Counsel made out a prima facie case rebutting the presumption of validity by proving the following: (1) ' the ban was orally promulgated at a time of intense union activity and was-specifically directed in the first instance at one of only two employee organizers for the Union; (2) the rule on ' its face, and as enforced, prohibited only" union organizing activities; and (3) the Respondent' 2 All dates hereinafter are in 1970 . We hereby correct the inadvertent, error of the Trial Examiner concerning the date that Respondent took over Heritage ' House. It did so in September rather than in Aprilas stated in the Trial Examiner 's Decision. 3 See Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F.2d 177 (C.A. 5). 192 NLRB No. 158 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was hostile to union organizing efforts, as reflected by, its conduct found violative of Section 8(a)(3) and (1) in firing Faye Cooper. Under these circumstances it was incumbent upon Respondent to show that the rule, although limited to union activity, was never- theless required in order to maintain production or discipline. This Respondent did not do. We find, therefore, that the Respondent's promulgation' and enforcement of the rule prohibiting only solicitation and discussion relating to the Union was motivated, not by a purpose to maintain production and discipline, but by a purpose to interfere with the employees' right of self-organization, and thus violated Section 8(a)(1) of,the Act. 2. The Trial Examiner also found, based on Mrs. Cooper's credited testimony, that she did not solicit' for the Union on worktime' on October 6. He therefore concluded that Respondent's asserted reason for discharging her, namely that she solicited union authorization cards during working hours, was pretextual and that Respondent discharged 'Mrs. Cooper on October 7 because of her union activities, thereby violating Section ` 8(a)(3) and (1) of the Act. We agree with the `Trial Examiner's finding that Mrs. Cooper did not in fact solicit for the Union on working time on October 6 or at any other time by merely responding to the queries of her fellow workers concerning the Union and how they might obtain union authorization cards. However, assum- ing arguendo that she did solicit for the Union on working time, we would still find that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Mrs. Cooper for violating its hereina- bove found 'invalid no-solicitation rule. 3. The Trial - Examiner concluded that Respon- dent's discharge of Edward Cooper was discrimina- torily motivated in violation of Section 8(a)(3) and (1) of the Act. We find merit in Respondent's exception to this finding. As`the Trial Examiner found, Cooper had been late for work on at least two occasions between Septem- ber 1 and October' 8. He also habitually refused to abide by Respondent's rule requiring its employees to clock' out for half an hour sometime during their shifts to indicate a lunch break even though they might-not, in fact, take time off for lunch. In this regard Cooper had received numerous warnings from both Respondent's predecessor and Respondent's own supervisors. In addition, after being asked in late September by Mrs. Tarutis, upon Potash's instructions, to 'count all the -soiled linen in the laundry, Cooper had refused to do what he had been told and cursed at Mrs. Tarutis. This incident was reported to Potash. Finally, Potash had been told by other employees that they were afraid to go into the laundry room when Cooper was there because- of Cooper's rudeness. ' - On .October 8, Cooper was scheduled to-report for work at 7 a.m. When he had not arrived or phoned by 7:10, Mrs. Tarutis called employee Stevenson to replace him. Cooper, who had overslept, arrived at the nursing home around 7:20 a.m. Before he went into the home, he saw Union Representative William Morico, who was outside the nursing home, and stopped to ask him about his wife's discharge the day before. When Stevenson arrived at the home a minute or two after Cooper, he saw Cooper talking to Morico. He told Mrs. Tarutis what he had, seen and she sent a nurse, to the front door to check on Cooper. The nurse reported that Cooper was talking to the Union representative. Cooper entered the building and. clocked in at 7:31 a,m. Mrs. Tarutis told- Potash what had happened. However, she did not recall whether she reported to Potash that the man to whom Cooper was talking was a union official. Thereafter, Potash ordered his executive; secretary to check Cooper's timecards and find out how often Cooper had broken the, rule about clocking out for half an hour in the middle of his shift. She reported to Potash that Cooper had broken the rule on 20 of the 21 days he had worked since Respondent took over the nursing home, on September 'l. About 11, a.m. Potash called Cooper to his, office and fired him. The Trial Examiner concluded that "Potash him- self conceded . . . that he would not' have fired Cooper if Cooper had,not stopped to talk to Morico when cooper was already late for work.", He-rested: this finding upon a portion of Potash's testimony wherein he used the expression "the straw that, broke, the camel's back" was, that "while.rhe [Cooper ] was, a half hour late, part of that half hour was spent in talking to somebody else in front of -the-,facility." When asked whether he knew to w 1 om Cooper 'was talking;, Potash responded "I believe the person was some union representative." The Trial Examiner then went on to conclude that Cooper, was discharged specifically because the -person he. spoke to was, a union organizer, as opposed to a person unconnected with the Union's 'organizational campaign, in light of Respondent's discriminatory discharge of Mrs. Coop- er ,the i night; before; 'the "clearly coercive°', interro- gation -of Mrs. Cooper by Potash .about her hus- band's union activities, during, Mrs. Cooper's, dis- charge, interview; 'and Respondent's illegal promul- gation and enforcement of a discriminatory -no- solicitation rule. Contrary to the Trial Examiner, we cannot find that Potash's testimony established that "but'for'' the , discussion, with Morico on the day of his discharge Cooper would not have been fired. In the context of ALLIANCE MEDICAL INN 1083 Potash's entire testimony, it is clear that this conversation was merely one of several reasons Potash put forth as the basis for his discharge of Cooper. Thus, when initially asked by the General Counsel, "Why did you fire Edward . Cooper?" Potash responded by stating that he did so because of repeated complaints concerning a lack of linen; Cooper's intimidation of fellow workers who went down to the laundry to get linen ; Cooper's tampering with the work schedule in the facility by interchang- iing his time with his wife's time; and Cooper's failure to follow rules and regulations concerning clocking out and in for hunch. It was only when asked did he have "[a]ny other reasons for discharging. Mr. Cooper," that Potash made his "straw that broke the camel's back" comment. In this context, we believe it is reasonable to conclude that although'the tardiness was the last - incident to :'occur before Cooper's discharge it was just one of several other reasons which taken together would have resulted in his discharge in any event. The Trial Examiner does not question that all these reasons are justified grounds for discharge. But if we understand his reference to pretextual grounds for discriminatory action, the Trial Examiner is in fact saying that but for Cooper's talking to a union organizer Respondent would not have discharged him for his undisputably inexcusable behavior. Certainly, we cannot say that Respondent, as the Trial Examiner implies, had condoned Cooper's misconduct by not firing him previously since Potash had only been on the job for about 2 weeks before Cooper's discharge, during which time he engaged in an extensive review of all aspects of the home, and Respondent had only been operating the nursing home a little over a month. Moreover, the record is devoid of any - evidence of comparable situations where conduct of the kind involved herein was not the subject of disciplinary action- by Respondent. Indeed, the record shows that areas of the home other than-the laundry received similar scrutiny from Potash, which resulted in the discharge of certain employees. None of- these discharges have been alleged to be discriminatory. Finally,, and most significantly,, while the Trial Examiner apparently regarded Potash's statement that he believed, that Cooper had been talking to a-union organizer as an admission of, Respondent's knowledge of Cooper's union activities at the time he discharged him, it is clear from Potash's testimony immediately following the aforesaid comment that Potash found out that Cooper had ' been talking_ specifically to a union organizer only after he had discharged him: As the Trial Examiner did not specifically credit Cooper's testimony that Potash had at the time of his dismissal told Cooper that he was discharging him for talking to the union representative on company time, and Cooper himself testified that he "did [not] talk to any other employees about the Union after [he] got the cards," we are unable to conclude that on October 8, when Cooper was discharged, Respondent had knowledge of Cooper's union activities or that he had been talking to, a union organizer on the day of his discharge. One piece of evidence that the Trial Examiner relied upon as proving that Cooper's discharge was discriminatorily motivated was the alleged illegal interrogation of Mrs. Cooper by Potash about her husband's union activities during Mrs. Cooper's discharge. The.Trial Examiner correctly found that he was precluded ' from finding the interrogation to be an independent violation -of Section 8(a)(1) as the complaint does not allege it as an independent violation nor was if fully litigated at the hearing. However, he used this evidence to find a Section 8(a)(3) violation concerning the discharge of, Edward Cooper. Since - it was not fully litigated for the purpose of finding an independent violation=of the Act, it was certainly not fully litigated for the purpose of bolstering a Section 8(a)(3) violation and therefore could not be "clearly coercive" as the Trial Examiner found. Finally, the fact that Mrs. Cooper was fired by Respondent for her union activities or that Respon- dent promulgated and enforced an illegal no- solicitation rule does not serve alone, as a substitute for proof that the action taken in regard to Mr. Cooper was discriminatorily motivated,,nor does it serve to shift the burden to Respondent to establish its innocence. To conclude that because Respondent violated the Act in Mrs. Cooper's case and as regards the no-solicitation rule, it did so also in Mr. Cooper's case is to say that its employees who have engaged in union activities are thereafter forever immune from the imposition of any disciplinary action by Respon- dent. This is a conclusion that we cannot accept. The Act's grant of rights to employees to engage in organizing activities, to - belong to a union, and to engage in collective bargaining was not intended to deprive management of its right to manage its business. We have carefully examined the evidence concern- ing Edward Cooper's discharge and find, on the record as a whole, that he was discharged for cause and not because of his union activities.4 4 For the reasons set forth by the Trial Examiner , Member Brown finds and (1) of the Act. that employee Edward Cooper was discharged in violation of Section 8(a)(3) 1084 DECISIONS OF NATIONAL; LABOR,-RELATIONS BOARD THE REMEDY - We have found in agreement with the Trial Examiner that Respondent engaged in conduct violative of Section 8(a)(3) and (1) of the Act and, accordingly, we adopt his remedial recommendations in that regard: However , we have found, contrary to the Trial-'Examiner, that ' Respondent did not engage in conduct violative ' of Section 8(a)(3) and (1) of the Act by its discharge of Edward ' Cooper. Accordingly, we shall order that the complaint be dismissed with respect to the allegation that Respondent discrimina- torily discharged' Edward Cooper. ORDER, Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations ' Board adopts as its Order the recommend- ed Order of. the Trial Examiner as modified below and hereby orders that Respondent, Heritage House of Connecticut, Inc. d/b/a ` Alliance Medical Inn- New Haven, New Haven, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Trial-Examiner's recommended Order, as so modified: 1. - Substitute the following paragraph for para graph 2(b) of the recommended Order. "(b) Pay Faye Cooper any earnings she lost as a result of her discharge on October 7, 1970, respec- tively, plus 6 percent interest.'' 2. Delete paragraph 2(c) of the recommended Order, 3. Add the following as the last paragraph of the recommended Order: "IT - IS HEREBY FURTHER ORDERED that the complaint-, herein be, and it hereby is, dismissed insofar as it 'alleges that Respondent violated the Act by discharging Edward, Cooper." 4. ' Substitute the attached notice for the Trial Examiner's notice. 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 having found, after a trial, that we violated Federallaw by discharging an employee in order to discourage membership in a labor organization and by promul- gating and enforcing a rule, that employees are only permitted to solicit for a union at Heritage House on their breaks or other nonworktime: The -National Labor Relations Act gives, all employees ,these rights: To, engage in self-organization To form,;join, or help unions To bargain collectively through a representa- tive .of.theirown choosing To,act together for, collective bargaining or other,aid or protection ; To refrain from , any or- all , of these things. WE, WILL , NOT ,discharge you in , order to discourage , membership in, Local 1199,,Drug and Hospital Union; Retail , Wholesale and,Depart- ment Store Union,. AFL-CIQ,, or any other labor -organization. WE WILL NOT promulgate , and, enforce any more discriminatory-no-solicitation rules., WE WILL, NOT interfere with you, or attemptg to restrain or coerce you, in the exercise of the above rights. WE WILL pay Faye Cooper for any earnings she lost as a result of her discharge on October 7, 1970, plus k percent interest., All our employees are,free, if they choose , to; join Local 1199, Drug, - and Hospital , Union, Retail, Wholesale and Department Store . Union,,AFL-CIO, or any other labor organization. HERITAGE HOUSE OF CONNECTICUT, INC. D/B/A, ALLIANCE, ' MEDICAL INN-NEW HAVEN (Employer)r Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must , remain posted for 60 consecutive days' from the, date of posting, and must not be altered, defaced,, or covered , by -any =other ^ material. Any questions concerning this notice or compli- ance with its provisions may be directed to,the Board's Office, Bulfinch Building, Seventh Floor,. 15 New Chardon Street, Boston, Massachusetts -02114, Telephone 617-223-3330. TRIAL EXAMINER'S, DECISION STATEMENT OF^THE CASE BENJAMIN K., BLACKBURN, Trial Examiner: Local 1199, Drug and Hospital Union, Retail,,, Wholesale and Depart-' ment Store Union, AFL-CIO, referred to herein as the Charging, Party or the Union, filed an unfair labor, practice charge against Heritage House of Connecticut, Inc. d/b/a ALLIANCE MEDICAL INN 1685 Alliance Medical Inn-New Haven, referred to herein as Respondent, on October -13, 1970,1 and amended it on October 23. On January 22, 1971, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region I (Boston, Massachusetts), issued a complaint alleging violation of Section 8(a)(1) and (3), of the Act ^ The complaint was subsequently amended on February 9, 1971, and at the hearing. Respondent's answers, duly filed, admitted certain allegations of the complaint and denied others, including the allegation that it had committed any unfair labor practices. Pursuant to due notice, hearing was held before me in New Haven,, Connecticut, on March 9, 1971. The issue litigated was, Respondent's motive for discharging Faye Cooper on October 7 and her husband, Edward Cooper, on - October 58. All, parties appeared and were given full opportunity to participate, to adduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Upontthe entire record, including briefs filed by the General Counsel and Respondent, and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT 1. THE 'BUSINESS OF RESPONDENT Alliance Medical Inns, referred to herein as Alliance, has its headquarters in Stratford, Connecticut, and is engaged in the business- of-,operating-proprietary nursing homes. Respondent, , a Connecticut corporation, is. one of those homes., It is -located in , New Haven and is known as Heritage. House. During the calendar year just prior to issuance of the complaint in this case, Alliance and Respondent each had gross revenue in excess of $100,000 and each received drugs and supplies valued in excess of $10,000 which originated outside the State of Connecticut. On the basis of these admitted facts, I find Respondent is engaged .in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A. Facts 1. Background Heritage House was formerly operated by Extendicare Corporation. It was taken over by Alliance on April I. Robert Taylor, was administrator of the, home under Extendicare. He remained in that position for a, few days under Alliance. When he left, Barbara Tarutis, director of nursing services, took over the duties of administrator on an interim basis until Steven Potash, a regional administra- tor for Alliance,, arrived on the scene around September 18. Potash acted as administrator of Heritage House during the period thereafter which is relevant to this case. Mrs. Tarutis continued under Alliance as director of nursing services. Edward and Faye Cooper operated the laundry at Heritage House under Extendicare. They continued in those positions under Alliance. Mrs. Cooper first went to work at Heritage House as a nurses aide in June 1969 and transferred to the laundry, at her own request, in June 1970. Cooper worked at Heritage, House from August to December 1969, left, then was rehired in May 1970. Edward Cooper ran the laundry on the first shift; Mrs. Cooper, on the second. No one worked in the laundry on the third shift. The Union began a campaign to organize Respondent's employees around the last week in September. Cooper talked to William Morico, the organizer, in front of the home on September 30 and accepted a number of blank authorization cards from him. Cooper and his wife each signed one of these cards on October, l and returned them to the Union. The balance of the blank cards Cooper had received from Morico were left in the laundry, The Union petitioned for a Board election (Case 1-RC-11299). It was held on January 5, 1971. The results, were 27 votes for representation by the Union, 25 against, and 5 challenged ballots. Two of the challenged ballots were cast by the Coopers. Respondent filed timely objections. The Regional Director has not yet issued his report on Respondent's objections and the challenges which are, of course , determinative in the event Respon- dent's objections are overruled. 2. Foreground A few days after Potash arrived on the scene, he held a meeting-with nurses and nurses aides in which he was told by them that Cooper was frequently rude to them when they went to the laundry to pick up clean linen, so much so that they were afraid to go into the laundry when Cooper was there. Potash also ordered an inventory of the home's linen supply to see whether there was enough on hand to comply with a state requirement of three complete sets for each occupied bed. Mrs. Tarutis selected 11 a.m. on a given day in late September as the time for the inventory. She sent word to Cooper that morning to count all the soiled linen in the laundry starting at 11 a.m. At 11 a.m. she went to the laundry and reminded Cooper to start his count because the personnel on the upper floors of the home were starting their counts at the same time. Cooper did not reply. Around 1 pm. Cooper went to Mrs. Tarutis' office and said,;to her,"[H]ey you, how the hell you think I'm gonna get this done at this time when I don't have enough time to do it." Mrs. Tarutis reported to Potash that Cooper had refused to do the linen , count. Potash told Mrs. Tarutis to tell Cooper to do what he was told or report to Potash. Instead, Mrs. Tarutis elected to reschedule the linen count for the next day. Cooper counted dirty linen that day without incident. Both before and after September 1, employees at Heritage House were required to clock out for half an hour 3 Dates are 1970 unless otherwise indicated. 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sometime during their shifts to indicate a lunch break even though they might not, in fact, take time off for lunch. Cooper habitually violated this rule. He was warned about it by Taylor during the period in which Taylor was adananisirator. He was warned about it by Mrs. Tarutis in the period when she' acted as administrator. On more than one occasion after Potash's arrival and before' October 8, Mary Ellen Massicotte, executive secretary to each of the administrators in turn; called Potash's attention to Coop- er's continuing failure to abide by the rule. Potash had Miss Massicotte tell Cooper to clock out and in as he was supposed to. 3. The discharges of the Coopers' Faye Cooper- went to work as usual at 3 p.m. on Tuesday, October 6. In the early evening she went from the laundry to the third floor of the home to deliver some personal linen which she had laundered to the patients who' owned it, a not unusual event. On her way back to the laundry she stopped to chat at the nurses' station. Several eniployees'were present. One of the women asked her if-she knew how' the Union was doing. She said she did not. Another woman asked her for an authorization card. Mrs. Cooper said, "I don't have any on me. I don't carry 'em.... [I if you want one, there is one in the laundry," The other woman replied, "Okay," and' Mrs. Cooper walked away, Selma Baker, the nurse in charge of the third floor, heard the conversation. On October 7 Potash summoned Mrs. Cooper to his office and discharged her for soliciting for the Union on worktime. She asked him to tell her who had reported this to him. He refused. She denied that she had solicited for the' Union. He asked if her husband had any part in passing out cards for the Union. She said she"did not know, He asked how Cooper, who had been having trouble with his back, was feeling. She said that he was feeling pretty good. Potash said he wanted Cooper to have a physical examination and he would pay for it. Potash asked how Mrs. Cooper thought her husband would feel about' Mrs. Cooper's being - fired, Mrs. Cooper said, "Well,' l don't think he'll feel too good about it." Mrs. Cooper asked if Potash wanted her to finish the shift because, otherwise, the staff would be short of linens. Potash told her not to worry about it, he would take care of it. Mrs. Cooper went home' and' told her husband what 'had happened. Cooper wag scheduled to report for work at 7 a.m. on October 8. When he had not arrived or phoned by'7:10, Mrs. Tarutis sent for one Stevenson, a porter who worked at the home and lived nearby, to come to work and take over operation of the laundry. Cooper, who had overslept, arrived at the home around 7:20 a.m. At the entrance he ran into Morico, the union organizer. He stopped tb talk to Morico! He told Morico about his wife's being discharged the night before. When'Stevenson arrived at the home a minute ' or two after Cooper, he saw Cooper talking to 2 This finding is based on Cooper's timecard for October 8, which is, in evidence. That his scheduled reporting time that day was 7 a.m. is undisputed. The other time findings in this paragraph are my approxima- tions' based on the record as a whole . Cooper estimated he talked to Morico 5 to 7 minutes. Respondent 's witnesses testified he talked anywhere from 10 to 20 minutes. No witness impressed me as having any clear recollection of Morico in front of'the building. He told Mrs. Tarutis what he had seen. Mrs. Tarutis sent Stevenson to the laundry to get the machines-started and a ,nurse to the front door to check on what Cooper was doing. The nurse reported that Cooper was talking-to- the union representative. Cooper came into the-building and clocked in at 7:31 a.m.2 He went to work in the'iaundry. Mrs. Tarutis told Potash what had happened. Potash ordered Miss Massicotte to check Cooper's timecards and find-out how often Cooper had broken the rule about clocking out for half an hour in the middle of his shift. She did so. She reported"to Potash, accurately, that Cooper had broken'the rule'on-20 of the 21 days he had worked since Alliance took over °Henitage House on September 1. 1 Around 11 a.m., Potash summoned Cooper to his office and fired him for talking to Morico on company time 'that morning. Following the discharges of the Coopers, orderlies' and nurses aides were instructed by the licensed nurses with whom they worked that they were to talk about the Union in order to solicit-members' only on their breaks and not on worktime. B. Analysis,and Conclusions 1. The discharge of Faye Cooper My . findings, above as to what happened on the evening of October 6 are based on the credited--testimony of Faye Cooper. She-was the only, person present -on that occasion who testified. Mrs. Tarutis testified that, approximately-10 days before-October 6 and again a few days)later, Mrs. Cummings, the evening supervisor, told her that . Mrs. Cooper was soliciting for the Union on worktime and that she had instructed Mrs. Cummings to warn Mrs. Cooper. Mrs. Tarutis also ' testified that, when she telephone the home on the evening of October 6, Mrs. Cummings told her Mrs. Cooper had "approached her with a union card ... on [Mrs. Cooper's] work time." Mrs. Tarutis then reported to Potash, presumably on the morning of October 7, that Mrs. Cooper was soliciting for the Union on company time. - Mrs. Tarutis' testimony about what Mrs. Cooper did is, of course, hearsay and will not sustain a finding that Mrs. Cooper did, in fact, solicit for the, Union on worktime, either on the evening of October 6 or at any other time. I find, based on Mrs. Cooper's account of what happened that evening, that she did not solicit for the Union on worktime on October 6. Respondent's asserted reason for discharging Mrs. Cooper was that she solicited union authorization cards during' working hours. Mrs. Cooper testified credibly that she did not solicit for' the Union during company time. Respondent offered no competent evidence to the contrary. I find, therefore, that Respondent discharged Faye Cooper on October 7"because of her just how much time Cooper stood in front of the building before reporting for work. I conclude,'as indicated, that the truth lies somewhere in the middle. In my view, it is immaterial whether Cooper paused as little as minutes oi'as many as 20 because the diapositive fact is that he stopped to talk, not how long he took. ALLIANCE MEDICAL INN union activities, thereby violating Section 8(a)(3) and (1) of the Act. United Aircraft Corporation, (Pratt & Whitney Division), 179 NLRB No. 160. 2. The discharge of Edward Cooper The case of Edward Cooper is more difficult. In the first place, his is clearly a "but for" situation; i.e., but for his stopping to talk to Morico on the morning of October 8, he would not have been discharged. Cooper-had been late for work on at least two prior occasions between September I and October 8 and not been fired for it. He had stubbornly refused to abide 7by the rule about clocking out and in at lunchtime, despite numerous warnings and not been fired for it. He had cursed at Mrs. Tarutis during the linen count incident and refused. to do what he was told and not been fired for it. Potash had been told by other employees that they were afraid to go into the laundry room when Cooper was there , and Cooper had not been fired for it. Finally, and most importantly, Potash himself conceded, when he testified thus, that he would not have fired Cooper if Cooper had not stopped to talk to Morico when Cooper was already late for work: Q. Excuse me . Any other reasons for discharging Mr. Cooper? A. Well, the straw that broke the camel's back, so to speak, was on the day that he was terminated. I walked into the home at approximately 8:00 o'clock or so in the morning. And the-first thing that-hit me was that Mr. Cooper had _not come on the job. He was-had clocked in, I believe, about one half hour late. And with the critical linen problem that I had, this just-this just was too much at that point for me to 'really 'take. As a result, I also learned that while he was a half hour late, part of that half hour was spent in talking to somebody else in front of the facility. And that just to me was a little bit too much. Q. Whom was he talking to, do you know? A. I believe the person was some union representa- tive. [Emphasis supplied.] The question of whether Cooper's discharge was an unfair labor practice, then, comes down to whether Cooper was discharged, because the person he had the temerity to speak to instead of coming in to go to work immediately was aunion organizer or whether he would have been fired under- the circumstances no matter whom he had stopped to speak to. Stated another way, if Cooper would have been discharged if he had stopped to talk to some person unconnected with the Union's organizing campaign about some subject unrelated to Section.7 rights, there is no violation of the Act. The -Act has been violated only if the controlling factor in the situation can be found to be the fact that the person to whom Cooper talked was Morico and not someone else. - There are three aspects of this record which bear on this question . First is the, fact, as found above, that Respondent discriminated against Mrs. Cooper when it discharged her the night before. Second is, die fact that Potash interrogat- ed Mrs . Cooper about her husband's union activities when, during the discharge interview, Potash asked Mrs. Cooper if her husband had any part in passing out cards for the Union. The General Counsel refers to this in his brief as 1081 "the unlawful interrogation of his wife concerning the Union activities of Mr. Cooper." However, the complaint does not allege it as an independent violation of Section 8(a)(1), such an issue was not fully litigated at the hearing, and I am, therefore, precluded from finding it to be an unfair labor practice even though it is, I think, clearly coercive within the meaning of that section of the Act. Third is the one independent violation of Section 8(a)(1) which is alleged in the complaint. As finally amended, the complaint alleges and Respondent's answer` denies a violation of Section 8(aXl) in that Respondent "did at its New Haven home . . . [sjince on or about October 7, 1970 maintain or enforce in a discriminatory manner a rule against solicitation as to employees soliciting for a Union during work time."The evidence bearing on this subsidiary issue establishes that, while a general no-solicitation rule may have been posted at Heritage House when it was operated by Extendicare Corporation, the paper disap- peared long before Alliance came on the,scene and, in any event, the rule was much honored in the breach under Extendicare. Mrs. Cooper herself sold stuffed animals to staff members and patients at Eastertime in 1970, while Mrs. Tarutis peddled frozen lasagna, which she stored ° in the home's refrigerators, at one time, apparently in early 1970. There is, however, no evidence of any such activity in the home in the period between September 1, when Alliance took over, and October 7-8, when the Coopers were-discharged. When Potash told Mrs. Cooper that he was discharging her for soliciting for the Union on company time; he promulgated a rule on Respondent's behalf which limited such solicitation to nonworking time. Lou De Young's Market Basket, Inc., 159 NLRB 854. Such"a rule is, of course, presumptively valid. Topeka Discount, Inc., 181 NLRB No. 8; Hosiery Corporation of America, 175 NLRB No. 31; Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 52x. The question is whether the General Counsel has managed to rebut that presumption. I find that he has. While this case cannot be said to be on all fours with Hosiery Corporation and Pepsi-Cola, supra, since, strictly speaking, the General Counsel has not proved other kinds of solicitation by Respondent after it took over Heritage House, I think it is significant that there _is also no indication in the record, from either side, that Alliance has changed any of Extendicare's policies or practices. There, fore, based on the undisputed fact that Respondent's ban on solicitation was not promulgated until after the advent of union organization and that the rule on its face prohibited only union organizing activities and based on Respondent's failure to demonstrate that the rule, although limited to union activity, was legitimately required in order to maintain discipline, I find that Respondent's motive for promulgating it was a discriminatory one. Based on the undisputed fact that nurses have told other employees they are only to talk about the Union on their breaks, I find that Respondent has enforced its no-solicitation rule since the discharge of Mrs. Cooper. By promulgating' and enforcing a no-solicitation rule for the purpose of interfering with its employees' Section 7 rights, Respondent has violated Section 8(a)(1) of the Act. Although the question is a close one, I am persuaded by 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these three aspects of the record (viz, that Respondent committed unfair labor practices when it discharged Mrs. Cooper and when it promulgated and enforced a discrimi- natory no-solicitation rule and that Potash indicated his concern about Cooper's union activities when he interro- gated Mrs. Cooper even though, technically, Respondent did not commit an unfair labor practice in that episode) that Potash would not have discharged Cooper if, on the morning of October 8, Cooper had stopped in front of the home to talk to anyone other than a union organizer. I find, therefore, that Respondent discharged Edward Cooper for engaging in union activities, thereby violating Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAw 1. Heritage House of Connecticut, Inc. d/b/a Alliance Medical Inn-New Haven is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1199, Drug and Hospital Union, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within, the meaning of Section 2(5) of the Act. 3. By discharging Faye Cooper, on October 7 and Edward Cooper on October 8, 1970, for engaging in union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. By promulgating a no-solicitation rule on October 7, 1970, and enforcing it thereafter for the purpose of interfering with employees' Section 7 rights, Respondent has violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In order to effectuate the policies of the Act, it is necessary that Respondent be ordered to cease and desist from the unfair labor practices found and remedy them: I will recommend 'that Respondent be ordered to rescind the discriminatory no-solicitation rule it promulgated on October 7, 1970. The complaint indicates that Faye Cooper was reinstated to her former or a substantially equivalent position on December 3. Therefore, an order that she be reinstated is unnecessary. There is, however, no indication that she has also been made whole for any wages lost as a result of Respondent's discrimination. In order to remedy the discriminatory discharges of Faye and Edward Cooper, therefore, I will recommend that Respondent be required to offer reinstatement only to Edward Cooper but to make both of them whole with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis 3 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor ' Relations Board, the findings, conclusions, and recommended Order herein shall, as providedIn Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and order, and all objections thereto shall be deemed waived for all purposes. Plumbing & Heating Co., 138 NLRB 716-Finally, I will recommend that Respondent post appropriate notices. Upon the foregoing findings of fact,,conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I' hereby issue the following recommended:3 ORDER Heritage House of Connecticut, Inc. d/b/a Alliance Medical Inn-New Haven,, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: '(a) Discharging its employees in order to discourage membership in Local 1199, Drug and Hospital' "Union, Retail, Wholesale and Department- Store Union,' AFL-CIO, or any otherlabor organization. (b) Promulgating and enforcing no-solicitation rules for the purpose of interfering with employees' Section 7 rights. (c) In any like or related manner interfering with, restraining, or" coercing employees in the exercise of rights, guaranteed in Section 7 of the Act. 2. Take `the following affirmative i action necessary to effectuate the policies of the Act: (a) Rescind the rule it promulgated on October 7, 1970, that employees are only permitted to solicit for the Union at Heritage House on their breaks or other nbnworktime. (b) Offer Edward Cooper immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position and pay him and ^ Faye Cooper any earnings they lost,as a result of their- discharges on October 8 and 7, 1970, respectively, plus 6 ^ percent interest. (c) We will notify immediately the above-named individ- ual if presently serving in the Armed Forces of the United States, of the right to full reinstatement; upon application after discharge from the Armed Forces, in accordance with the' Selective Service Act and the, Universal Military Training and Service Act. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all -other' records necessary to analyze the amount of backpay due,under the terms of this Order. (e) Post at its nursing home known as Heritage House in New Haven, Connecticut, copies of the attached w, notice, marked "Appendix "4 Copies of said notice, on forms provided by the: Regional Director for Region,, 1, after being duly signed by Respondent's representative, shall be posted by ,it immediately upon receipt therpof,1 and -,be maintained by it for 60, consecutive days thereafter, in conspicuous places , including all places where notices to employees are.-customarily, posted. Reasonable steps, shall be taken by Respondent to insure that said notices are not altered, defaced, or, covered by any other material. (f) Notify, the Regional Director for Region -1, in writing, 4 In the event that ,the Board's Order is euforcedby s Judgment of a United States Court of Appeals, the words in the' notice reading POOSTEDs BY ORDER OF THE NATIONAL LABOR RELATIONS BOt D''' shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF-THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." ALLIANCE MEDICAL INN 1089 within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.5 a In the event that this recommended Order is adopted by the Board the date of this Order, what steps the Respondent has taken to comply after exceptions have been filed, =this provision shall be modified to read: herewith." "Notify the Regional , Director for Region 1, m writing, within 20 days from It Copy with citationCopy as parenthetical citation