Beverly Calif. Corp. II

National Labor Relations Board - Board Decisions

Aug 21, 1998

326 N.L.R.B. 153 (N.L.R.B. 1998)

BEVERLY CALIFORNIA CORP. 153
Beverly California Corporation f/k/a Beverly Enter-
prises, its Operating Divisions, Regions, Wholly-
Owned Subsidiaries and Individual Facilities
and each of them and Service Employees’ Inter-
national Union, Local 606, AFL–CIO and
United Food and Commercial Workers Interna-
tional Union Local 917, AFL–CIO and Peggy M.
Urban and District 199P, National Union of
Hospital and Health Care Employees, SEIU,
AFL–CIO and New England Health Care Em-
ployees Union, District 1199/S.E.I.U. AFL–CIO
and Gladys Hahn and Hospital and Health Care
Workers Local 250, SEIU, AFL–CIO–CLC and
United Food and Commercial Workers Interna-
tional Union, Local 1161, AFL–CIO and District
1199W/United Professional for Quality Health
Care and Service Employees International Un-
ion, Local 150, AFL–CIO and United Steelwork-
ers of America, AFL–CIO–CLC. Cases 6–CA–
20188–46 (formerly 16–CA–13556), 6–CA–
20188–48 (formerly 25–CA–19478), 6–CA–
20188–49 (formerly 11–CA–12946), 6–CA–22018,
6–CA–23243, 6–CA–23373, 6–CA–23374, 6–CA–
23616, 6–CA–22084–12 (formerly 4–CA–19732),
6–CA–22084–17 (formerly 4–CA–19966), 6–CA–
22084–18 (formerly 4–CA–19666–2), 6–CA–
22084–25 (formerly 4–CA–20286), 6–CA–22084–
26 (formerly 4–CA–20406), 6–CA–22084–28
(formerly 4–CA–20509), 6–CA–22084–30 (form-
erly 4–CA–20468), 6–CA–22084–31 (formerly 4–
CA–20568), 6–CA–22084–32 (formerly 4–CA–
20996), 6–CA–22048–1 (formerly 34–CA–4205),
6–CA–22084–2 (formerly 34–CA–4358), 6–CA–
22084–23 (formerly 34–CA–5443), 6–CA–22084–
3 (formerly 32–CA–10964), 6–CA–22084–4, (for-
merly 32–CA–10951), 6–CA–22084–7 (form-erly
32–CA–11071), 6–CA–22084–13 (formerly 20–
CA–24069), 6–CA–22084–14 (formerly 32–CA–
11919), 6–CA–22084–15 (formerly 32–CA–
11950), 6–CA–22084–19 (formerly 32–CA–
12024), 6–CA–22084–20 (formerly 32–CA–
11881), 6–CA–22084–21 (formerly 32–CA–
11890), 6–CA–22084–27 (formerly 32–CA–
12372), 6–CA–22084–5 (formerly 18–CA–11232),
6–CA–22084–6 (formerly 30–CA–10851), 6–CA–
22084–8 (formerly 30–CA–10863), 6–CA–22084–
9 (formerly 30–CA–10951), 6–CA–22084–22
(formerly 30–CA–11498), and 6–CA–22084–11
(formerly 9–CA–27620)

August 21, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND LIEBMAN
On June 29, 1994, Administrative Law Judge Peter E.
Donnelly issued the attached decision. The Respondent
and the General Counsel each filed exceptions, support-
ing briefs, and answering briefs.1
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,2 and conclusions,3

1 We deny as moot the General Counsel’s motion to expedite the de-
cision.
2 The parties have excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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.
With respect to Slayton Manor Nursing Home in Slayton, Minne-
sota, the judge found that the Respondent’s area human resources rep-
resentative, Barbara Katella, “testified that at the meetings she did
speak to the employees about work related problems. She invited them
to contact her about these problems and offered to do what she could to
resolve them.” Katella did not testify that she explicitly offered to
resolve the employees’ problems. We find, however, that such an offer
was implicit in her invitation to employees to contact her about their
problems. Further, an employee who attended the meetings testified
that Katella did explicitly promise to try and resolve employee prob-
lems. Therefore, the judge’s factual error does not affect his finding
that the Respondent violated Sec. 8(a)(1) by soliciting grievances.
With respect to the Richland Manor facility in Johnnstown, Pennsyl-
vania, we agree with the judge’s dismissal of the 8(a)(4) allegation
regarding withholding of the wage increase because we see no basis for
overturning the judge’s crediting of testimony showing that the increase
would have been withheld without regard to any withdrawal of unfair
labor practice charges. Contrary to the judge, however, we find that the
Respondent violated Sec. 8(a)(1) through Administrator Poltarack’s
statement at the May 1, 1991 meeting asking the registered nurses to
seek withdrawal of certain unfair labor practice charges in order to
receive the wage increase.
The judge incorrectly found that Kewaunee Health Care facility’s
employee Jean Ferron had testified that the threats contained in the
Respondent’s March 15, 1990 memo were a factor in her decision not
to handbill at the facility on March 18, 1990. Only employee Mary
Murphy so testified. This correction does not affect the judge’s find-
ing, which we adopt, that the Respondent’s March 15 memo unlawfully
threatened employees in violation of Sec. 8(a)(1).
We agree with the judge that the Respondent at Duke Convalescent
facility in Lancaster, Pennsylvania, violated Sec. 8(a)(1) by ordering a
supervisor, in the presence of an employee, to remove from the facility
a union coffee mug belonging to an employee.
There are no exceptions to the complaint allegations with respect to
the Mark Twain Hospital facility in San Andreas, California.
There are no exceptions to the judge’s supervisory determinations.
3 We adopt the judge’s finding that the Respondent’s unilateral im-
plementation of a master schedule at its Mount Lebanon facility that
effectively reduced the hours and earnings of some full-time unit em-
ployees violated Sec. 8(a)(5) and (1) of the Act. We rely on the reasons
stated by the judge. We also note that the waiver standard applied by
the judge in rejecting the Respondent’s claim that the Union had
yielded its bargaining rights over the matter by agreeing to the man-
agement-rights clause is mandated by Board precedent which has been
326 NLRB No. 29
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 154
except as modified below and to adopt the recommended
Order as modified and set forth in full below.
A. Pioneer Place facility, Irving, Texas
Contrary to our colleague, we agree with the judge that
the Respondent violated Section 8(a)(1) by soliciting
employees to form and join an employee council, and by
posting notices to implement the selection of employee
participants. It was clear from the announcement that the
Respondent intended the employee council to resolve
employee complaints concerning their working condi-
tions and that the council was designed to engage in a
pattern and practice of dealing with the Employer over
these matters. Consequently, the Respondent’s efforts to
establish an employee council to resolve these problems
was unlawful.4 Contrary, to our dissenting colleague, we
are not persuaded that no violation of the Act was com-
mitted simply because the Respondent did not complete
the formation of the announced employee council, nor do
we think that the Respondent’s actions can be dismissed
as an “isolated incident.” The Respondent undermined
the Union in the eyes of the employees by holding out
the prospect of a separate employer-fostered channel for
resolving workplace complaints and soliciting employee
participation in it. Although the Respondent abandoned
the plan before employees were actually selected, the
Respondent issued no repudiation of its actions meeting
the standards for repudiation set by Passavant Memorial
Hospital, 237 NLRB 138 (1978). We see no basis for
establishing a special exception to the Passavant rule for
employer establishment of employee committees dealing
with workplace problems.
B. Beverly Manor Convalescent Hospital facility, Mon-
terey, California
(1) On June 24, 1991, certified nursing assistant, Nelia
Aldape, was given a written warning for an incident in
which the daughter of a patient complained about her
mother’s treatment. Aldape believed that the writeup
was not justified and immediately thereafter began pro-
moting union representation. On July 7, 1991, the Re-
spondent’s area manager, Ronald McKaigg, told Admin-
istrator Susan Chavis that Aldape’s conduct was really a
dischargeable offense and that she should follow up on

accepted by the court of appeals whose jurisdiction includes the State in
which this unfair labor practice arose. Ciba-Geighy Pharmaceuticals
Div. v. NLRB, 722 F.2d 1120, 1127 (3d Cir. 1983). Accord: NLRB v.
Postal Service, 18 F.3d 1089, 1099–1100 (3d Cir. 1994). Furthermore,
the “employer bears the weighty burden of establishing that a ‘clear and
unmistakable’ waiver has occurred.” NLRB v. New York Telephone
Co., 930 F.2d 1009, 1011 (2d Cir. 1991). Because, as our dissenting
colleague concedes, the clause is ambiguous, it clearly does not meet
the applicable clear and unmistakable waiver standard. At this point it
is irrelevant whether the Respondent could show such a waiver by the
resort to extrinsic evidence to resolve the ambiguity. It failed to do so
at the hearing in which the matter was litigated, and it must stand or fall
on that record. Hence, we do not agree with our colleague that a re-
mand is appropriate.
4 E. I. du Pont & Co., 311 NLRB 893 (1993).
the matter. Subsequently, on about July 12, 1991, Assis-
tant Director of Nursing Julia Michaels was informed by
Director of Nursing Janis Asfoor that Aldape and charge
nurse, Josie Tillman, would have to be discharged be-
cause of the Union. That same day, Asfoor telephoned
Aldape and informed her that she was being suspended
because of her union activities. Three days’ later, the
Respondent discharged Aldape for what it called patient
abuse.
We agree with the judge that the Respondent unlaw-
fully discharged Aldape for her union activities.5 Three
days prior to the discharge, Director of Nursing Janis
Asfoor informed Aldape that she was being suspended
and that her suspension was related to her union activi-
ties. We also agree with the judge that the Respondent
violated Section 8(a)(1) by informing Aldape that she
was being suspended for her union activities. The judge,
however, inadvertently failed to pass on whether the Al-
dape suspension was also unlawful. Inasmuch as the
suspension was one of the steps taken as part of the Re-
spondent’s unlawful efforts to discharge Aldape, we find
that the suspension also violated Section 8(a)(3) and (1)
of the Act.
(2) The judge dismissed allegations that McKaigg in-
terrogated employees and created the impression of sur-
veillance. The General Counsel excepted to the judge’s
findings. We find merit in those exceptions.
The Union commenced its campaign in approximately
the last week of June 1991. On July 7, 1991, the Re-
spondent’s area manager, Ronald McKaigg, addressed a
meeting of some 25 employees from the day and after-
noon shifts. The Respondent’s administrator and other
staff representatives were also in attendance. McKaigg
told the employees that he was aware that the employees
were organizing, and asked them why. He stated that he
had made himself available to employees and would like
to have been notified. McKaigg also asked the employ-
ees why they were starting problems. Several employees
responded by airing their grievances.
The judge concluded that McKaigg’s statement that he
wondered why the employees sought union representa-
tion was not designed to identify union adherents. He
found that McKaigg’s questions were essentially rhetori-
cal rather than a coercive interrogation. The judge also
found that McKaigg’s statements did not create the im-
pression of surveillance.
Contrary to the judge, we find that McKaigg’s ques-
tioning of why employees were organizing and starting
5 We do not in any manner condone patient abuse. Where the Re-
spondent has raised this matter here and, as discussed elsewhere by the
judge, at other facilities in which it was alleged to have occurred, we
adopt the judge’s finding of unlawful conduct solely for the reason that
the Respondent failed to establish such allegations.
The record indicates that Michaels testified that Asfoor, not Chavis
as found by the judge, told her that Aldape and Tillman would have to
be discharged because of the Union.
BEVERLY CALIFORNIA CORP. 155
problems was calculated to elicit a response from em-
ployees concerning their union sympathies.6 Further, the
interrogation occurred under coercive circumstances: (1)
the questions were asked in a meeting called by the Re-
spondent; (2) the meeting and questioning was conducted
by a high ranking management official, in the presence
of the administrator and other officials; and (3) in label-
ing the organizing campaign as “starting problems,”
McKaigg was indicating the Respondent’s displeasure
with the Union. Accordingly, we find that the Respon-
dent violated Section 8(a)(1) by coercively interrogating
employees about why they were organizing.7
There is no evidence that, at the time of the meeting,
the organizing campaign was public knowledge, or that
the Respondent had been informed of the campaign by
the Union or its employees. Accordingly, we find that
McKaigg’s statement that he was aware of the union
organizing campaign conveyed to employees the impres-
sion that their activities, on behalf of the Union, were
under surveillance by the Respondent, in violation of
Section 8(a)(1).8
C. Wyoming Valley Health Care facility, Wilkes-
Barre, Pennsylvania
The judge dismisses the allegation that the Respondent
violated Secetion 8(a)(3) and (1) by discharging Christo-
pher (Chris) Tausch. We reverse and find the violation.
Tausch was paid by the Union to seek employment
with an employer for the purpose of organizing from the
inside. After being hired by the Respondent as a nurses
aide, Tausch started gathering information and soliciting
employees to support the Union. One evening, Tausch
went into the kitchen area of the dietary department. The
kitchen area was posted against entry by nondietary de-
partment employees. However, on a recurring basis,
nondietary employees went into the kitchen without
permission to pick up meal trays. Tausch asked dietary
employee Charles Weitz for the names and addresses of
two other dietary department employees. Weitz told him
that there was a list of telephone numbers in the office of
Dietary Department Manager Richard Rutkowski, who
was out of the office. Wietz then led Tausch to Rut-
kowski’s office where Tausch copied from a list taped to
the wall beside the desk.
Later in the evening, Weitz told Rutkowski that a
nurse had been in his office, taking down dietary depart-
ment employees’ telephone numbers. The following
morning, Tausch visited Weitz at his house and solicited
him to support the Union. Later, Weitz complained to

6 See NLRB v. McCullough, 5 F.3d 923 (5th Cir. 1993). Moreover,
in this case, the employees obviously believed that to be the case inas-
much as several of them expressed their complaints and reasons for
wanting the Union.
7 We find it unnecessary to pass on whether the Respondent’s human
resources representative, Jay Laws, unlawfully interrogated employees
since any finding of a violation would be cumulative.
8 Schrementi Bros, Inc., 179 NLRB 853 (1969).
Rutkowski about Tausch bothering him at home about
joining the Union and identified Tausch as the nurse who
had visited Rutkowski’s office the previous night. Rut-
kowski reported the incident to Administrator Donna
Connery.
Tausch in his discharge interview with Connery admit-
ted that he had talked with Weitz in the kitchen and that
he had copied the telephone numbers. The Respondent
discharged Tausch for the unauthorized entering of the
restricted dietary department area and removing confi-
dential information from the facility in violation of com-
pany policy prohibiting the divulging of employee, pa-
tient, or company confidential information. Connery
testified that Tausch would not have been discharged for
just being in the dietary department, but that it was the
taking down of the telephone numbers that led to his dis-
charge.
The judge noted that not only did Tausch go into the
dietary department without authorization, he went into
the office of the dietary department manager and took
down employee telephone numbers that the judge found
were considered to be confidential. He concluded that
because of Tausch’s misconduct he would have been
discharged even if he had not been engaged in union ac-
tivity.
It is uncontroverted the Respondent admittedly had
knowledge of Tausch’s organizing efforts. Contrary to
the judge, we find that the telephone numbers were not
confidential. Although the Respondent claims that the
telephone numbers are covered by the confidentiality
policy, there is no evidence to indicate that the Respon-
dent had previously treated employee telephone numbers
as confidential. Indeed, the employee handbook provi-
sions regarding confidential information does not men-
tion employee telephone numbers, and employees openly
took telephone numbers, without being disciplined, from
a rolodex located at the nurses station. Further, the tele-
phone numbers copied by Tausch were displayed in the
open on a wall where they could be viewed by anyone
entering the office. Therefore, we find that the Respon-
dent’s claim that Tausch was discharged for taking down
confidential telephone numbers was a pretext; and given
the report to the Respondent concerning his union solici-
tation just before his discharge, we conclude that the
General Counsel has established that Tausch’s union
activity was a motivating factor in the Respondent’s de-
cision to discharge him.
Contrary to the judge, we find that the Respondent has
failed to support its burden of showing that it would have
discharged Tausch absent his union activities.9 Inasmuch
as we have found that the Respondent’s confidentiality
defense was pretextual, the Respondent’s only remaining
justification for Tausch’s discharge is his unauthorized
9 Wright Line, 251 NLRB 1083 (1980), 462 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 156
entry into the dietary department. The Respondent ad-
mits that Tausch’s unauthorized entry into the dietary
department would not by itself have caused him to be
discharged. We, therefore, find that the Respondent
failed to establish by a preponderance of the evidence
that it would have discharged Tausch if he had not en-
gaged in union activities. Accordingly, we find that Re-
spondent’s discharge of Tausch violated Section 8(a)(3)
and (1).
D. Carpenter Care Center, Tunkhannock, Pennsylvania
(1) The judge dismisses the allegation that the Re-
spondent unlawfully disciplined employee Allison
Reaves. We disagree. In approximately July 1991, the
Union filed a complaint with OSHA concerning em-
ployee work-related injuries caused by lifting patients.
On November 20, 1991, OSHA investigators appeared at
the facility seeking to videotape patients performing pa-
tient transfers. The Respondent refused to allow them to
videotape. On November 21, the OSHA investigators
returned with a warrant, but were again refused access
for purposes of videotaping. The following day, the Un-
ion handed out fliers in front of the facility. The fliers
mentioned the Respondent’s refusal to comply with the
warrant requiring it to allow the videotaping and reiter-
ated the Union’s position that the Respondent maintained
unsafe working conditions. After some litigation, the
Respondent agreed to permit OSHA to inspect the facili-
ties, including videotaping patients, who had given their
written consent or signed a release.
In early January 1992, the Union’s local president sat
in on OSHA interviews with injured employees. On
January 13, 1992, three of the Respondent’s officials
asked patient Olive Wells if she would be willing to be
videotaped. Wells had trouble understanding the concept
and was concerned about a government agency coming
into the facility. Wells stated that she wanted to talk to
her daughter before making a final decision. The follow-
ing night, Wells appeared to be upset and nurses aide
Allison Reaves asked her how she was. Wells stated that
the previous night three women had spoken to her, and
that she was afraid that if she signed a release to be
videotaped, the state would either come in and take the
place over or close it down. Reaves explained the pur-
pose of the OSHA visit and advised her to discuss such
matters with her daughter. Reaves also told Wells that if
she was ever again asked to sign a release, it would be
fine to sign it.
The next day, January 15, 1992, both Wells and Wells’
daughter complained to the Respondent’s director of
nursing that Reaves had yelled at Wells the previous
night. On January 16, 1992, the Respondent suspended
Reaves for yelling at Wells. After a grievance was filed
over the suspension, the Respondent reduced the suspen-
sion to a written oral warning and reassigned Reaves to a
different wing of the facility. Reaves was reimbursed for
money lost during her suspension.
The judge found that Reaves neither yelled, threatened,
coerced, nor otherwise intimidated Wells. The judge
found, however, that Reaves was not engaged in union
activity when she encouraged Wells to cooperate with
the OSHA investigation. The judge found that although
the Union initiated the OSHA investigation, the decision
to pursue the matter and the investigation were not union
but OSHA activities; and Reaves’ decision to encourage
Wells to participate in the OSHA investigation was not
done in concert with other employees. Accordingly, the
judge dismissed this allegation of the complaint. We
find merit to the General Counsel’s exception to the dis-
missal of this allegation.
The Board has long held that “an employee may prop-
erly engage in communication with a third party in an
effort to obtain the third party’s assistance in circum-
stances where the communication was related to a le-
gitimate, on going labor dispute between the employees
and their employer.” Allied Aviation Service Co. of New
Jersey, 248 NLRB 229, 230 (1980), and cases cited
therein. Further, the Board does not take a restrictive
view in determining whether the statements are related to
a particular labor dispute.10 The test is “whether the
communication was a part of and related to the on going
labor dispute.”11
Applying these principles to Reaves’ statements to
Wells, we find that Reaves’ comments constituted pro-
tected concerted activity. Reaves’ encouragement of
Wells to allow herself to be videotaped was in further-
ance of the Union’s objective of having OSHA conduct
an investigation of the facility’s working conditions. The
Union not only filed the complaint to initiate the OSHA
investigation, it leafleted the facility to persuade the Re-
spondent to allow OSHA to videotape the patients, and it
sat in on OSHA’s interviews of the injured employees.
Reaves’ solicitation of Wells’ cooperation with OSHA’s
investigation was a continuation of the Union’s efforts
and, therefore, directly related to this matter. Accord-
ingly, we find that the Respondent violated Section
8(a)(3) and (1) by disciplining Reaves for engaging in
protected concerted activity.
(2) On January 17, Reaves filed a grievance protesting
her suspension. Subsequent to the second step grievance
meeting of January 21, the union organizer on January 23
wrote a letter to the Respondent stating:

I am requesting all evidence, statements and
documentation leading to the suspension of Allison
Reaves on January 17, 1992. This information is
necessary in order to properly prepare for continua-
tion to the next step of the grievance.

10 Roure Bertrand Dupont, Inc., 271 NLRB 443, 448 (1984).
11 Allied Aviation Service Co. of New Jersey, supra at 231. (Empha-
sis in the original.)
BEVERLY CALIFORNIA CORP. 157
The Respondent did not supply the Union with the re-
quested information. The Union did not further pursue the
grievance.
The judge found that the information requested by the
Union was no longer necessary or relevant to the griev-
ance process because there was no grievance pending.
Accordingly, the judge concluded that the Respondent
was no longer obligated to provide the requested infor-
mation and that its failure to do so did not violate Section
8(a)(5) and (1). We disagree.
The Union’s request for information concerning
Reaves’ suspension was clearly relevant to the process-
ing of her grievance. Accordingly, inasmuch as Reaves’
grievance was still pending when the Union requested
information concerning her suspension, we find that the
Respondent violated Section 8(a)(5) by failing to furnish
the Union with the requested information.12
(3) In processing the grievance regarding the suspen-
sion and subsequent discharge of nurses aide Patricia
Carr for patient abuse, the Union, on February 18, re-
quested that the Respondent provide it with all evidence,
statements, and documentation leading to her suspension
and termination. When the Respondent failed to respond
to this request, the Union filed a charge with the Board
on March 19. At a grievance meeting on April 15, the
Respondent provided the Union with the requested in-
formation concerning Carr. As of the date of the hearing,
the date for arbitration regarding Carr’s suspension and
discharge had not been set.
The judge concluded that inasmuch as arbitration was
still pending when the Respondent provided the informa-
tion, there was no showing that the Union had been
prejudiced by any delay in providing the information.
Accordingly, he found that the Respondent did not vio-
late Section 8(a)(5) and (1) by providing the information
2 months after the request was made. We disagree with
the judge’s dismissal of this complaint allegation.
It is well established that when a union makes a re-
quest for relevant information, the employer has a duty to
supply the information in a timely fashion or to ade-
quately explain why the information was not furnished.13
The Respondent, however, never gave an explanation for
failing to comply with the Union’s request for 2 months.
Further, the Respondent’s belated compliance, after the
unfair labor practice charge was filed, did not retroac-
tively cure the unlawful refusal to supply the informa-
tion.14 Accordingly, we find that the Respondent violated
8(a)(5) and (1) by refusing to supply the Union with the
requested relevant information.

12 Designcraft Jewel Industries, 254 NLRB 791, 796 (1981).
13 Interstate Food Processing, 283 NLRB 303, 306 (1987); Quality
Engineered Products, 267 NLRB 593, 598 (1983).
14 Interstate Food Processing, id.; Postal Service, 276 NLRB 1282,
1288 (1985).
E. Duke Convalescent facility, Lancaster, Pennsylvania
Contrary to the judge, we find that the Respondent vio-
lated Section 8(a)(1) at the Duke Convalescent facility in
Lancaster, Pennsylvania, by interrogating open union
supporters Valerie Faulkner and Harry Brooks about
their union sympathies. Steve Marek, a labor consultant
hired by the Respondent to help it respond to the union
campaign at the facility, called Faulkner into a closed
room to speak to her separately. Marek admits asking
Faulkner what she thought a union would do for her.
Similarly, Marek approached Brooks in the breakroom,
persisted in “educating him about management’s view-
point,” and concluded by asking him how he was going
to vote in the election. As the Fifth Circuit has stated,
the mere fact that an employee “was a widely-known
union adherent does not validate otherwise coercive in-
terrogation: ‘Although an employee has openly declared
his support for the union, the employer is not hereby free
to probe directly or indirectly into his reason for support-
ing the union.”’ NLRB v. Brookwood Furniture, 701
F.2d 452, 463 fn. 35 (5th Cir. 1983) (quoting TRW-
United Greenfield Division v. NLRB, 673 F.2d 410, 418
(5th Cir. 1981). We find that these interrogations went
beyond the bounds of permissible questioning and that
they were coercive in violation of Section 8(a)(1). See
Stoody Co., 320 NLRB 18 (1995).
THE REMEDY
The judge herein recommended that a broad national
cease-and-desist Order and notice be posted at all of the
Respondent’s facilities nationwide. In recommending
the broad corporatewide Order, the judge considered the
Respondent’s extensive history of unfair labor practices.
He noted that in Beverly I,15 the Board found that the
Respondent had committed some 135 violations at 32
facilities and ordered a broad corporatewide remedy. He
further noted that while Beverly I was being litigated,
unfair labor practice charges and complaints were being
filed and issued against the Respondent in the instant
case, and that subsequent unfair labor practice charges
were being filed and issued against the Respondent in the
instant case, and that subsequent unfair labor practice
charges and complaints were filed, which formed the
basis for consolidated complaint in Beverly California
Corp. (Beverly III), 326 NLRB No. 30, issued this day.
Consequently, the judge found that the Respondent has
demonstrated a proclivity to violate the Act. He found
further that while the violations at certain facilities herein
was not serious, violations at other facilities were sub-
stantial. Accordingly, the judge concluded that the viola-
tions disclose a continued corporate effort by the Re-
spondent to become or remain union free at the expense
of its employees’ Section 7 rights. In these circum-
15 Beverly California Corp., 310 NLRB 222 (1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 158
stances, the judge concluded that a broad corporatewide
cease-and-desist Order was appropriate.
In Beverly III, issued this day, the Board has granted a
corporatewide order based on the number and scope of
all the violations found in the three cases against this
Respondent beginning with Beverly I, supra, decided by
the Board in 1993. Therefore, the Board finds it unnec-
essary to grant a broad order in this case.16 Accordingly,
in this proceeding, separate remedial orders will be is-
sued tailored to the violations found at each of the indi-
vidual facilities.17
ORDER
The National Labor Relations Board orders that the
Respondent, Beverly California Corporation f/k/a Bev-
erly Enterprises, its Operating Divisions, Regions,
Wholly-Owned Subsidiaries and Individual Facilities and
each of them, its officers, agents, successors, and assigns,
shall
I. Pioneer Place facility
1. Cease and desist from
(a) Soliciting employees to form and join organizations
to represent them as to their terms and conditions of em-
ployment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Irving, Texas, operating as Pioneer Place
facility, copies of the attached notice marked “Appendix
I.”18 Copies of the notice, on forms provided by the Re-
gional Director for Region 6, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent 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
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former

16 See Chicago Tribune Co., 318 NLRB 920, 927 (1995) (finding it
unnecessary to pass on the judge’s finding that the respondent employer
unlawfully refused to give certain requested names and addresses to the
union, because the employer was under an obligation to furnish the
information imposed by the Board’s order in an earlier case).
17 Inasmuch as we are not ordering any extraordinary remedies, we
deny the Respondent’s motion to reopen the record as moot.
18 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
employees employed by the Respondent at any time
since March 16, 1988.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
II. Fountainview Place facility
1. Cease and desist from
(a) Threatening employees with reprisals for having
selected a union as their collective-bargaining representa-
tive.
(b) Disciplining or otherwise discriminating against
employees for serving as union observers during repre-
sentation elections under the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful disciplinary
actions taken against Lily Davis and Kastle Gannon, and
within 3 days thereafter notify them in writing that this
has been done and that evidence of their unlawful disci-
plines will not be used as a basis for future personnel
action against them.
(b) Within 14 days after service by the Region, post at
its facility in Indianapolis, Indiana, operating as Foun-
tainview Place facility, copies of the attached notice
marked “Appendix II.”19 Copies of the notice, on forms
provided by the Regional Director for Region 6, after
being signed by the Respondent’s representative, shall
be posted by the Respondent and maintained for 60 con-
secutive 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 cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since August 18, 1988.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
III. Liberty House Nursing Home
1. Cease and desist from
19 See fn. 18, supra.
BEVERLY CALIFORNIA CORP. 159
(a) Discharging employees because of their activities
on behalf of or support for a union, or their participation
in other concerted protected activity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Peggy Urban full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights and privileges previously enjoyed.
(b) Make whole, commencing from the date of her
unlawful discharge, employee Peggy Urban for any loss
of earnings and other benefits as a result of the discrimi-
nation against her, in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
employee Peggy Urban, and within 3 days thereafter
notify the employee in writing that this has been done
and that the discharge will not be used against her in any
way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security records,
timecards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Clifton Forge, Virginia, operating as Lib-
erty House Nursing Home, copies of the attached notice
marked “Appendix III.”20 Copies of the notice, on forms
provided by the Regional Director for Region 6, after
being signed by the Respondent’s representative, shall be
posted by the Respondent and maintained for 60 con-
secutive 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 cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since July 22, 1988.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

20 See fn. 18, supra.
IV. Mount Lebanon Manor Convalescent Care
Center facility
1. Cease and desist from
(a) Unilaterally changing terms and conditions of em-
ployment of employees, including implementing a mas-
ter schedule, without prior notice to or affording an op-
portunity to bargain with District 1199P, National Union
of Hospital and Healthcare Employees, SEIU, AFL–CIO
selected by employees in the appropriate unit as their
collective-bargaining representative.
(b) Failing and refusing to supply the Union represent-
ing its employees, on request, with information necessary
and relevant to its collective-bargaining functions.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, furnish to the Union information that is
relevant and necessary to its role as exclusive bargaining
representative of the unit employees.
(b) On request, bargain in good faith concerning
wages, hours, and other terms and conditions of em-
ployment with the Union selected by its employees as
their collective-bargaining representative, including bar-
gaining before making any changes in the master sched-
ule.
(c) Within 14 days after service by the Region, post at
its facility in Mount Lebanon, Pennsylvania, operating as
Mount Lebanon Manor Convalescent Care Center facil-
ity, copies of the attached notice marked “Appendix
IV.”21 Copies of the notice, on forms provided by the
Regional Director for Region 6, after being signed by the
Respondent’s representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since July 5, 1989.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
V. Danbury Pavilion Health Care facility
1. Cease and desist from
21 See fn. 18, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 160
(a) Unilaterally changing terms and conditions of em-
ployment of employees, including discontinuing short
pay policy, without prior notice to or affording an oppor-
tunity to bargain with New England Healthcare Employ-
ees Union, District 1199/S.E.I.U., AFL–CIO selected by
employees in the appropriate unit as their collective-
bargaining representative.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain in good faith concerning
wages, hours, and other terms and conditions of em-
ployment with the Union selected by its employees as
their collective-bargaining representative, including bar-
gaining before making any changes in short pay policy.
(b) Within 14 days after service by the Region, post at
its facility in Danbury, Connecticut, operating as Dan-
bury Pavilion Health Care facility, copies of the attached
notice marked “Appendix V.”22 Copies of the notice, on
forms provided by the Regional Director for Region 6,
after being signed by the Respondent’s representative,
shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 2, 1989.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
VI. West Haven Nursing facility
1. Cease and desist from
(a) Failing and refusing to supply New England
Healthcare Employees Union, District 1199/S.E.I.U.,
AFL–CIO representing its employees, on request, with
information necessary and relevant to its collective-
bargaining functions.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

22 See fn. 18, supra.
(a) On request, furnish to the Union information that is
relevant and necessary to its role as exclusive bargaining
representative of the unit employees.
(b) Within 14 days after service by the Region, post at
its facility in West Haven, Connecticut, operating as
West Haven Nursing facility, copies of the attached no-
tice marked “Appendix VI.”23 Copies of the notice, on
forms provided by the Regional Director for Region 6,
after being signed by the Respondent’s representative,
shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 8, 1989.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
VII. Beverly Manor Convalescent Hospital facility
1. Cease and desist from
(a) Interrogating employees about their union senti-
ments.
(b) Creating the impression that employees’ union ac-
tivities are under surveillance.
(c) Telling employees that their suspensions are related
to their union activity.
(d) Threatening employees with disciplinary action for
engaging in lawful union or protected concerted activity.
(e) Discharging or suspending employees because of
their activities on behalf of a union, or their participation
in other concerted protected activity.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Nelia Aldape full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position without prejudice to her seniority or any other
rights and privileges previously enjoyed.
(b) Make whole, commencing from the date of her
unlawful discharge and suspension, employee Nelia Al-
dape for any loss of earnings and other benefits suffered
as a result of the discrimination practiced against her, in
23 See fn. 18, supra.
BEVERLY CALIFORNIA CORP. 161
the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the suspension and dis-
charge of employee Nelia Aldape, and within 3 days
thereafter notify her in writing that this has been done
and that the suspension and discharge will not be used
against her in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
coping, all payroll records, social security records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amounts of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Monterey, California, operating as Beverly
Manor Convalescent Hospital facility, copies of the at-
tached notice marked “Appendix VII.”24 Copies of the
notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since July 7, 1991.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
VIII. Slayton Manor Nursing Home facility
1. Cease and desist from
(a) Soliciting and adjusting employee complaints and
grievances during union organizing campaigns.
(b) Posting or promulgating unlawfully broad no-
solicitation or no-distribution rules.
(c) Forbidding lawful solicitation or distribution on
behalf of unions during nonwork time and in nonpatient
care areas.
(d) Creating the impression that employees’ union ac-
tivities are under serveillance.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

24 See fn. 18, supra.
(a) Within 14 days after service by the Region, post at
its facility in Slayton, Minnesota, operating as Slayton
Manor Nursing Home facility, copies of the attached
notice marked “Appendix VIII.”25 Copies of the notice,
on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s representative,
shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since December 13, 1989.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IX. Kewaunee Health Care facility
1. Cease and desist from
(a) Threatening employees with disciplinary action for
engaging in lawful union or protected concerted activity,
including distribution of union literature.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Within 14 days after service by the Region, post at
its facility in Kewaunee, Wisconsin, operating as Ke-
waunee Health Care facility, copies of the attached notice
marked “Appendix IX.”26 Copies of the notice, on forms
provided by the Regional Director for Region 6, after
being signed by the Respondent’s representative, shall be
posted by the Respondent and maintained for 60 con-
secutive 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 cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since March 15, 1990.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
25 See fn. 18, supra.
26 See fn. 18, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 162
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
X. Beverly Health Care Center facility
1. Cease and desist from
(a) Threatening employees with discharge for engag-
ing in lawful union or protected concerted activity, in-
cluding strikes and picketing.
(b) Promising benefits, including the recission of dis-
ciplinary action for crossing union picket lines to come
to work.
(c) Discharging employees because of their activities
on behalf of a union, or their participation in other con-
certed protected activity.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Cathy Lewis full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights and privileges previously enjoyed.
(b) Make whole, commencing from the date of her
unlawful discharge, employee Cathy Lewis for any loss
of earnings and other benefits suffered as a result of the
discrimination against her in the manner set forth in the
remedy section of the decion.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the discharge of Cathy
Lewis and, within 3 days thereafter notify her in writing
that this has been done and that the discharge will not be
used against her in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security records,
timecards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Glasgow, West Virginia, operating as Bev-
erly Health Care Center facility, copies of the attached
notice marked “Appendix X.”27 Copies of the notice, on
forms provided by the Regional Director for Region 6,
after being signed by the Respondent’s representative,
shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in

27 See fn. 18, supra.
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 6, 1990.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
XI. Richland Manor facility
1. Cease and desist from
(a) Conditioning the payment of a wage increase on
the withdrawal of unfair labor practice charges.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Johnstown, Pennsylvania, operating as
Richland Manor facility, copies of the attached notice
marked “Appendix XI.”28 Copies of the notice, on forms
provided by the Regional Director for Region 6, after
being signed by Respondent’s representative, shall be
posted by the Respondent and maintained for 60 con-
secutive 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 cov-
ered by any other material. In the event that during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since May 1, 1991.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply.
XII. Wyoming Valley Health Care facility
1. Cease and desist from
(a) Discharging employees because of their union ac-
tivities on behalf of a union, or their participation in
other concerted protected activity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Christopher Tausch full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
28 See fn. 18, supra.
BEVERLY CALIFORNIA CORP. 163
lent position without prejudice to his seniority or any
other rights and privileges previously enjoyed.
(b) Make whole, commencing from the date of his un-
lawful discharge, employee Christopher Tausch for any
loss of earnings and other benefits suffered as a result of
the discrimination against him in the manner set forth in
the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the discharge of Christo-
pher Tausch, and within 3 days thereafter notify him in
writing that this has been done and that the discharge will
not be used against him in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security records,
timecards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Wilkes-Barre, Pennsylvania, operating as
Wyoming Valley Health Care facility, copies of the at-
tached notice marked “Appendix XII.”29 Copies of the
notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since March 28, 1991.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
XIII. Sanger Hospital facility
1. Cease and desist from
(a) Threatening employees with reprisals for having
selected a union as their collective-bargaining representa-
tive.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Sanger, California, operating as Sanger
Hospital facility, copies of the attached notice marked

29 See fn. 18, supra.
“Appendix XIII.”30 Copies of the notice, on forms pro-
vided by the Regional Director for Region 6, after being
signed by the Respondent’s representative, shall be
posted by the Respondent and maintained for 60 con-
secutive 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 cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since June 18, 1991.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
XIV. Beverly Manor facility
1. Cease and desist from
(a) Interrogating employees about their union senti-
ments.
(b) Soliciting employees to sign and/or circulate decer-
tification petitions.
(c) Assaulting union representatives or delegates.
(d) Telling employees that union representatives or
delegates will be killed.
(e) Discharging employees because of their activities
on behalf of a union, or their participation in other con-
certed protected activity.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Johnny Scott full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights and privileges previously enjoyed.
(b) Make whole, commencing from the date of his un-
lawful discharge, employee Johnny Scott for any loss of
earnings and other benefits suffered as a result of the
discrimination against him in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the discharge of Johnny
Scott and, within 3 days thereafter notify him in writing
that this has been done and that the discharge will not be
used against him in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
30 See fn. 18, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 164
copying, all payroll records, social security records,
timecards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in San Francisco, California, operating as
Beverly Manor facility, copies of the attached notice
marked “Appendix XIV.”31 Copies of the notice, on
forms provided by the Regional Director for Region 6,
after being signed by the Respondent’s representative,
shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 19, 1991.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
XV. Duke Convalescent facility
1. Cease and desist from
(a) Creating the impression that employees’ union ac-
tivities are under surveillance.
(b) Threatening employees with disciplinary action
and/or discharge for engaging in lawful union or pro-
tected concerted activity.
(c) Ordering them to remove from the facility all of
employee coffee mugs bearing union logos.
(d) Discharging, suspending, or imposing any discipli-
nary action on employees, including written warnings,
because of their activities on behalf of a union, or their
participation in other concerted protected activity.
(e) Forbidding lawful solicitation or distribution on
behalf of unions during nonwork time and nonpatient
care area.
(f) Interrogating employees about their union sympa-
thies.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Amy Johnson full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent

31 See fn. 18, supra.
position, without prejudice to their seniority or any other
rights and privileges previously enjoyed.
(b) Make whole, commencing from the date of their
unlawful discharge or suspension of employees Amy
Johnson and Valerie Faulkner for any loss of earnings
and other benefits suffered as a result of the discrimina-
tions practiced against them in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the discharges or suspen-
sions of Amy Johnson and Valerie Faulkner and, within
3 days thereafter notify them in writing that this has been
done and that the discharges will not be used against
them in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security records,
timecards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Lancaster, Pennsylvania, operating as Duke
Convalescent facility, copies of the attached notice
marked “Appendix XV.”32 Copies of the notice, on
forms provided by the Regional Director for Region 6,
after being signed by the Respondent’s representative,
shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 26, 1991.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
XVI. Carpenter Care Center facility
1. Cease and desist from
(a) Discharging, suspending, or imposing any discipli-
nary action on employees, including written warnings,
oral warnings, or transfers because of their activities on
behalf of a union, or their participation in other concerted
protected activity.
(b) Unilaterally changing terms and conditions of em-
ployment of employees, including implementing changes
in its policy of immediately reimbursing employees for
the purchase of prescription drugs, without prior notice
32 See fn. 18, supra.
BEVERLY CALIFORNIA CORP. 165
to or affording an opportunity to bargain with District
1199P, National Union of Hospital and Healthcare Em-
ployees, SEIU, AFL–CIO selected by employees in the
appropriate unit as their collective-bargaining representa-
tive.
(c) Failing and refusing to supply any union represent-
ing its employees, on request, with information necessary
and relevant to its collective-bargaining functions.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, remove
the unlawful disciplinary actions taken against Lily
Davis, Kastle Gannon, Alice Adams, Esther Bennett,
Charles Benninger, Amanda Bradish, Jennifer Bucking-
ham, Patt Carr, Suzanne Clearwater, Betty Cona, Helen
Evans, Carolyn Ferguson, Antoinette Gorko, Donna Hol-
lister, Karen Holsopple, Sharon Karp, Herman Kathi,
Lori King, Deborah Kintner, Dawn Kisner, Linda Krill,
David Lewis, Marie Meador, Dorothy Moskowitz, Debra
Redmond, Chris Sheridan, Lorraine Zelenka, and Mary
Zone, and, within 3 days thereafter notify the employees
in writing that this has been done and that the discharges
will not be used against them in any way.
(b) On request, furnish to the Union information that is
relevant and necessary to its role as exclusive bargaining
representative of the unit employees.
(c) On request, bargain in good faith concerning
wages, hours, and other terms and conditions of em-
ployment with the Union selected by its employees as
their collective-bargaining representative, including bar-
gaining before making any changes in its policy of im-
mediately reimbursing employees for the purchase of
prescription drugs.
(d) Upon request, rescind the unilateral discontinuance
of its policy of immediately reimbursing employees for
the purchase of prescription drugs.
(e) Within 14 days after service by the Region, post at
its facility in Funkhannock, Pennsylvania, operating as
Carpenter Care Center facility, copies of the attached
notice marked “Appendix XVI.”33 Copies of the notice,
on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s representative,
shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and

33 See fn. 18, supra.
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since July 18, 1991.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
XVII. Stroud Manor facility
1. Cease and desist from
(a) Soliciting and adjusting employee complaints and
grievances during union organizing campaigns.
(b) Promising to expedite the receipt of employee
benefits, including tuition reimbursement.
(c) Unilaterally changing terms and conditions of em-
ployment of employees, including withholding annual
wage increases, without prior notice to or affording an
opportunity to bargain with District 1199P, National Un-
ion of Hospital and Healthcare Employees, SEIU, AFL–
CIO selected by employees in the appropriate unit as
their collective-bargaining representative.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain in good faith concerning
wages, hours, and other terms and conditions of em-
ployment with the Union selected by its employees as
their collective-bargaining representative, including bar-
gaining before withholding annual wage increases.
(b) On request by the Union, reinstate annual wage in-
creases.
(c) Make whole, the employees for any monetary
losses they may have suffered by reason of the Respon-
dent’s unilateral withholding of annual wage increases
which the employees would have received in the manner
set forth in the remedy section of the decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security records,
timecards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in East Stroudsburgh, Pennsylvania, operating
as Stroud Manor facility, copies of the attached notice
marked “Appendix XVII.”34 Copies of the notice, on
forms provided by the Regional Director for Region 6,
after being signed by the Respondent’s representative,
shall be posted by the Respondent 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 Respon-
34 See fn. 18, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 166
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since July 30, 1991.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
XVIII. Valley Care and Guidance Center facility
1. Cease and desist from
(a) Interrogating employees about their union senti-
ments.
(b) Soliciting employees to sign and/or circulate decer-
tification petitions.
(c) Telling employees that union organization is futile.
(d) Demanding immediate repayment of loans in re-
taliation for joining a union.
(e) Telling employees that other employees had been
solicited and paid to vandalize the property, including
automobiles, of union supporters.
(f) Failing and refusing to supply Hospital and Health-
care Workers, Local 250, SEIU, AFL–CIO–CLC repre-
senting its employees, on request, with information nec-
essary and relevant to its collective-bargaining functions.
(g) Failing and refusing to bargain in good faith, and
withdrawing recognition from the Union selected by its
employees as their collective-bargaining representative.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain in good faith concerning
wages, hours, and other forms and conditions of em-
ployment with the Union selected by its employees as
their collective-bargaining representative.
(b) On request, furnish to the Union information that is
relevant and necessary to its role as exclusive bargaining
representative of the unit employees.
(c) Within 14 days after service by the Region, post at
its facility in Fresno, California, operating as Valley Care
and Guidance Center facility, copies of the attached no-
tice marked “Appendix XVIII.”35 Copies of the notice,
on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s representative,
shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps

35 See fn. 18, supra.
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since May 31, 1991.

CHAIRMAN GOULD, dissenting in part.
I do not agree with my colleagues that the Respondent
violated Section 8(a)(1) at the Pioneer Place facility at
Irving, Texas, when it solicited employees to form and
join an employee council. Unlike my colleagues, I
would remand for a hearing the allegation that the Re-
spondent violated Section 8(a)(5) when at the Mount
Lebanon Manor Convalescent Care Center, Mount Leba-
non, Pennsylvania, it unilaterally implemented a master
schedule. Finally, unlike my colleagues, I would order a
nationwide broad cease-and-desist order and a nation-
wide notice posting. The following is my discussion of
these issues.1
1. Contrary to my colleagues, I find that the Respon-
dent did not violate Section 8(a)(1), at the Pioneer Place
facility in Irving, Texas, by soliciting employees to form
and join an employee council and by posting notices to
implement the selection of employee participants.
I have long supported the formation of employee partici-
pation committees because they can lead to cooperation
and democracy in the workplace.2 In order to encourage
the formation of such committees, the Act allows em-
ployers and employees to explore cooperative efforts
without the fear that one error or isolated incident will
transform a genuine attempt to cooperate into the unlaw-
ful domination of a labor organization.3
Under these principles, I would find that the Respon-
dent did not violate the Act by announcing the plan for
an employee council and soliciting employees to join it.
Newly hired personnel administrator, Sherry Copeland,
proposed establishing an employee council, consisting of
representatives from the various departments, who would
discuss the problems among themselves and with Cope-
land in the hope of resolving them. Although the coun-
cil, as envisioned, might have engaged in the pattern and
practice of dealing with the Respondent concerning
working conditions in violation of Section 8(a)(2),4 the
1 In agreeing with my colleagues that the Respondent at the Duke
Convalescent facility unlawfully interrogated open union supporters
employees Valerie Faulkner and Harry Brooks concerning their union
sympathies, I would, as more fully set forth in Beverly Enterprises, 322
NLRB 334 fn. 1 (1996), reverse Rossmore House, 269 NLRB 1176
(1984).
2 See my concurrence in Keeler Brass Co., 317 NLRB 1110, 1117
(1995).
3 Stoody Co., 320 NLRB 18, 20 (1995) (my separate statement at fn.
10).
4 See E. I. du Pont & Co., 311 NLRB 893 (1993).
BEVERLY CALIFORNIA CORP. 167
Respondent abandoned its plan for the council almost
immediately. It did so because it ascertained that it was
possibly unlawful. Also, the Respondent was acting in
good faith by attempting to resolve, in a cooperative
manner, the bad feelings among employees. Further,
there is no evidence that the Respondent was attempting
to interfere with or undermine the employees’ collective-
bargaining representative.5 In these circumstances, I
would dismiss this allegation.
2. Contrary to my colleagues, I would remand for a
further hearing regarding the allegation that the Respon-
dent violated Section 8(a)(5) by unilaterally implement-
ing a master work schedule at the Mount Lebanon Manor
Convalescent Center, in Mount Lebanon, Pennsylvania.
The management-rights clause gives the respondent the
right to “schedule its operations and work force.” It is
ambiguous as to whether this clause gives the Respon-
dent the right to reduce the working hours of unit em-
ployees. Thus, I would remand to receive additional
evidence, such as the parties’ past practice and bargain-
ing history, to determine whether the Respondent was
privileged by the management-rights clause to make the
change.6
Unlike my colleagues, I would issue a broad nation-
wide cease-and-desist order and a nationwide posting at
all of the Respondent’s facilities.
The decision in Beverly III7 spells out in detail the rea-
sons for the nationwide broad cease-and-desist order and
the nationwide posting. That rationale is obviously
equally applicable to Beverly II. Yet, for reasons that are
incomprehensible to me, my colleagues have chosen to
limit the order in Beverly II. The only possible explana-
tion is that Beverly II comes before Beverly III. The fact
is, however, that these two cases are being decided at the
same time and that the conduct in Beverly III is simply a
continuation of the same pattern of conduct present in
Beverly I (310 NLRB 222 (1993)) and Beverly II. In
these circumstances, I see no reason why the Board
should not consider the conduct in Beverly III in deciding
the appropriate remedy in Beverly II. I would grant the
same nationwide broad cease-and-desist order in both
Beverly II and Beverly III.8

APPENDIX I
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

5 Stoody Co., supra (my separate statement at fn. 13.)
6 I have serious reservations about the clear and unmistakable waiver
standard under the circumstances of this case. A remand would permit
the Board to address the issue on the basis of a full and complete re-
cord.
7 326 NLRB No. 30 (issued this date).
8 Further, I agree with the judge that the combined effect of the vio-
lations in Beverly I and Beverly II, without considering the violations
found in Beverly III, is sufficient to warrant such an order.

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT solicit employees to form and join or-
ganizations to represent them as to their terms and condi-
tions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed you by Section 7 of the Act.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM.
APPENDIX II
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT threaten employees with reprisals for
having selected a union as their collective-bargaining
representative.
WE WILL NOT discipline or otherwise discriminate
against employees for serving as union observers during
representation elections under the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful disciplinary actions taken against Lily Davis and Kas-
tle Gannon, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the
unlawful disciplines will not be used against them in any
way.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
APPENDIX III
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 168

WE WILL NOT discharge employees because of their ac-
tivities on behalf of or support for a union, or their par-
ticipation in other concerted protected activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer employee Peggy Urban full reinstatement to
her job position or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her
seniority or any other rights and privileges previously
enjoyed.
WE WILL make whole, commencing from the date of
her unlawful discharge, employee Peggy Urban for any
loss of earnings and other benefits suffered resulting
from her discharge, less any net earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Peggy Urban, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the discharge will not be used against her
in any way.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
APPENDIX IV
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT unilaterally change terms and conditions
of employment of employees, including implementing a
master schedule, without prior notice to or affording an
opportunity to bargain with District 1199P, National Un-
ion of Hospital and Healthcare Employees, SEIU, AFL–
CIO selected by employees in the appropriate unit as
their collective-bargaining representative.
WE WILL NOT fail and refuse to supply the Union repre-
senting our employees, on request, with information nec-
essary and relevant to its collective-bargaining functions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, furnish to the Union information
that is relevant and necessary to its role as exclusive bar-
gaining representative of the unit employees.
WE WILL, on request, bargain in good faith concerning
wages, hours, and other terms and conditions of em-
ployment with the Union selected by our employees as
their collective-bargaining representative, including bar-
gaining before making any changes in the master sched-
ule.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, IITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM

APPENDIX V
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT unilaterally change terms and conditions
of employment of employees, including discontinuing
short pay policy, without prior notice to or affording an
opportunity to bargain with New England Healthcare
Employees Union, District 1199/S.E.I.U., AFL–CIO
selected by employees in the appropriate unit as their
collective-bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain in good faith concerning
wages, hours, and other terms and conditions of em-
ployment with the Union selected by our employees as
their collective-bargaining representative, including bar-
gaining before making any changes in short pay policy.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
APPENDIX VI
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT fail and refuse to supply New England
Healthcare Employees Union, District 1199/S.E.I.U.,
AFL–CIO representing our employees, on request, with
information necessary and relevant to its collective-
bargaining functions.
BEVERLY CALIFORNIA CORP. 169
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL NOT, on request, furnish to the Union infor-
mation that is relevant and necessary to its role as exclu-
sive bargaining representative of the unit employees.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
APPENDIX VII
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT interrogate employees about their union
sentiments.
WE WILL NOT create the impression that employees’
union activities are under surveillance.
WE WILL NOT tell employees that their suspensions are
related to their union activity.
WE WILL NOT threaten employees with disciplinary ac-
tion for engaging in lawful union or protected concerted
activity.
WE WILL NOT discharge or suspend employees because
of their activities on behalf of a union, or their participa-
tion in other protected concerted activity.
WE WILL, within 14 days from the date of the Board’s
Order, offer Nelia Aldape full reinstatement to her for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights and privileges previously enjoyed.
WE WILL make whole, commencing from the date of
her unlawful suspension and discharge, employee Nelia
Aldape for any loss of earnings and other benefits suf-
fered resulting from her discharge, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge or suspension of Nelia Aldape, and WE
WILL, within 3 days thereafter, notify her in writing that
this has been done and that the discharge or suspension
will not be used against her in any way.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
APPENDIX VIII
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT solicit and adjust employee complaints
and grievances during union organizing campaigns.
WE WILL NOT create the impression that employees’
union activities are under surveillance.
WE WILL NOT post or promulgate unlawfully broad no-
solicitation or no-distribution rules.
WE WILL NOT forbid lawful solicitation or distribution
on behalf of unions during nonwork time and in nonpa-
tient care areas.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM

APPENDIX IX
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT threaten employees with disciplinary ac-
tion for engaging in lawful union or protected concerted
activity, including distribution of union literature.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 170
APPENDIX X
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT threaten employees with discharge for
engaging in lawful union or protected concerted activity,
including strikes and picketing.
WE WILL NOT promise benefits, including recission of
disciplinary action for crossing union picket lines to
come to work.
WE WILL NOT discharge employees because of their ac-
tivities on behalf of a union, or their participation in
other concerted protected activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Cathy Lewis full reinstatement to her former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights and privileges previously enjoyed.
WE WILL make whole, commencing from the date of
her unlawful discharge, employee Cathy Lewis for any
loss of earnings and other benefits resulting from her
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Cathy Lewis, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the discharge will not be used against her
in any way.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
APPENDIX XI
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT condition the payment of a wage increase
on the withdrawal of unfair labor practice charges.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
APPENDIX XII
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT discharge employees for their activities
on behalf of or support for a union, or their participation
in other concerted protected activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Christopher Tausch full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights and privileges previously enjoyed.
WE WILL make whole, commencing from the date of
his unlawful discharge employee Christopher Tausch for
any loss of earnings and other benefits suffered resulting
from discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the dis-
charge of Christopher Tausch, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
APPENDIX XIII
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

BEVERLY CALIFORNIA CORP. 171
WE WILL NOT threaten employees with reprisals for
having selected a union as their collective-bargaining
representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
APPENDIX XIV
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT interrogate employees about their union
sentiments.
WE WILL NOT solicit employees to sign and/or circulate
decertification petitions.
WE WILL NOT assault union representatives or dele-
gates.
WE WILL NOT tell employees that union representatives
or delegates will be killed.
WE WILL NOT discharge employees because of their ac-
tivities on behalf of a union, or their participation in
other protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Johnny Scott full reinstatement to his for-
mer job or, if that job no longer exist, to a substantially
equivalent position, without prejudice to his seniority or
any other rights and privileges previously enjoyed.
WE WILL make whole, commencing from the date of
his unlawful discharge, Johnny Scott for any loss of earn-
ings and other benefits suffered resulting from discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the dis-
charge of Johnny Scott, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the discharge will not be used against him in any
way.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
APPENDIX XV
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT create the impression that employees’
union activities are under surveillance.
WE WILL NOT threaten employees with disciplinary ac-
tion and/or discharge for engaging in lawful union or
protected concerted activity.
WE WILL NOT order the removal from the facility of
employee coffee mugs bearing union logos.
WE WILL NOT discharge, suspend, or impose any disci-
plinary action on employees, including written warnings,
because of their activities on behalf of or support for a
union, or their participation in other concerted protected
activity.
WE WILL NOT forbid lawful solicitation or distribution
on behalf of unions during nonwork time and nonpatient
care areas.
WE WILL NOT interrogate employees about their union
sympathies.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer employee Amy Johnson full reinstatement to
her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her
seniority or any other rights and privileges previously
enjoyed.
WE WILL make whole, commencing from the date of
their unlawful discharges or suspensions as the case may
be, the employees Amy Johnson and Valerie Faulkner,
unlawfully suspended for any loss of earnings and other
benefits suffered resulting from their discharges or sus-
pensions, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges and suspensions of Amy Johnson and
Valerie Faulkner, and WE WILL, within 3 days thereafter,
notify them in writing that this has been done and that
their discharges and suspensions will not be used against
them in any way.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 172
APPENDIX XVI
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT impose any disciplinary action on em-
ployees, including written warnings, oral warnings, or
transfers because of their activities on behalf of a union,
or their participation in other concerted protected activ-
ity.
WE WILL NOT unilaterally change terms and conditions
of employment of employees, including implementing
changes in our policy of immediately reimbursing em-
ployees for the purchase of prescription drugs, without
prior notice to or affording an opportunity to bargain
with District 1199P, National Union of Hospital and
Healthcare Employees, SEIU, AFL–CIO selected by
employees in the appropriate unit as their collective-
bargaining representative.
WE WILL NOT fail and refuse to supply the Union repre-
senting our employees, on request, with information nec-
essary and relevant to its collective-bargaining functions,
including bargaining before making any changes in its
policy of immediately reimbursing employees for the
purchase of prescription drugs.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, rescind the unilateral discontinu-
ance of our policy of immediately reimbursing employ-
ees for the purchase of prescription drugs.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful disciplinary actions taken against Lily Davis and Kas-
tle Gannon, Alice Adams, Esther Bennett, Charles Ben-
ninger, Amanda Bradish, Jennifer Buckingham, Patt
Carr, Suzanne Clearwater, Betty Cona, Helen Evans,
Carolyn Ferguson, Antoinette Gorko, Donna Hollister,
Karen Holsopple, Sharon Karp, Herman Kathi, Lori
King, Deborah Kintner, Dawn Kisner, Linda Krill, David
Lewis, Marie Meador, Dorothy Moskowitz, Debra Red-
mond, Chris Sheridan, Lorraine Zelenka, and Mary
Zone, and, WE WILL, within 3 days thereafter, notify them
in writing that this has been done and that their unlawful
disciplines will not be used against them in any way.
WE WILL, on request, furnish to the Union information
that is relevant and necessary to its role as exclusive bar-
gaining representative of the unit employees.
WE WILL, on request, bargain in good faith concerning
wages, hours, and other terms and conditions of em-
ployment with the Union selected by our employees as
their collective-bargaining representative, including bar-
gaining before making any changes in our policy of im-
mediately reimbursing employees for the purchase of
prescription drugs.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
APPENDIX XVII
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

Labor Relations Board has found that we violated the Na-
tional Labor Relations Act and has ordered us to post and
abide by this notice.

WE WILL NOT solicit and adjust employee complaints
and grievances during union organizing campaigns.
WE WILL NOT promise to expedite the receipt of em-
ployee benefits, including tuition reimbursement.
WE WILL NOT unilaterally change terms and conditions
of employment of employees, including withholding
annual wage increases, without prior notice to or afford-
ing an opportunity to bargain with District 1199P, Na-
tional Union of Hospital and Healthcare Employees,
SEIU, AFL–CIO selected by employees in the appropri-
ate unit as their collective-bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, upon request, bargain in good faith concern-
ing wages, hours, and other terms and conditions of em-
ployment with any union selected by its employees as
their collective-bargaining representative, including bar-
gaining before withholding annual wage increases.
WE WILL, on request by the Union, reinstate annual
wage increases.
WE WILL make whole the employees in the appropriate
unit for any losses they may have suffered by reason of
the unilateral withholding of annual wage increases
which employees would have received.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM
BEVERLY CALIFORNIA CORP. 173
APPENDIX XVIII
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT interrogate employees about their union
sentiments.
WE WILL NOT solicit employees to sign and/or circulate
decertification petitions.
WE WILL NOT tell employees that union organization is
futile.
WE WILL NOT demand immediate repayment of loans in
retaliation for joining a union.
WE WILL NOT tell employees that other employees had
been solicited and paid to vandalize the property, includ-
ing automobiles, of union supporters.
WE WILL NOT fail and refuse to supply Hospital and
Healthcare Workers, Local 250, SEIU, AFL–CIO–CLC
representing our employees, on request, with information
necessary and relevant to its collective-bargaining func-
tions.
WE WILL NOT fail and refuse to bargain in good faith,
withdraw recognition from the Union selected by our
employees as their collective-bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, furnish to the Union information
that is relevant and necessary to its role as exclusive bar-
gaining representative of the unit employees.
WE WILL, on request, recognize and bargain in good
faith concerning wages, hours, and other terms and con-
ditions of employment with the Union selected by our
employees as their collective-bargaining representative.

BEVERLY CALIFORNIA CORPORATION F/K/A
BEVERLY ENTERPRISES, ITS OPERATING
DIVISIONS, REGIONS, WHOLLY-OWNED
SUBSIDIARIES AND INDIVIDUAL FACILITIES AND
EACH OF THEM

J. O. Dodson, Esq., Joanne Krause, Esq., Richard J. Simon,
Esq., Robert Droker, Esq., Jane P. North, Esq., Michael A.
Marcionese, Esq., Gary Connaughton, Esq., Barton A.
Myers, Esq., Kim R. Siegert, Esq., Thomas E. Quigley, Esq.,
Donald A. Becher, Esq., Ariel Sotolongo, Esq., Peter C.
Verrochi, Esq., Mark E. Arbesfeld, Esq., Rocky Coe, Esq.,
A. Marie Simpson, Esq., Henry E. Protas, Esq., and Marga-
ret M. Dietz, Esq., for the General Counsel.
Donald L. Dotson, Esq., Michael R. Flaherty, Esq., and Kath-
leen L. Achterhoff, Esq., of Fort Smith, Arkansas, David S.
Durham, Esq., of San Francisco, California, Margie Case,
Esq., of Raleigh, North Carolina, Simao J. Avila, Esq. and
Teresa L. Butler, Esq., of Fresno, California, Warren M.
Davidson, Esq., of Baltimore, Maryland, and Derek Wood-
house, Esq., of San Jose, California, for the Respondent.
Jonathan Hiatt, Esq., of Washington, D.C.,1 and Herbert Sil-
berman, Esq., of Washington, D.C., for Service Employees’
International Union.
Douglas Young, Esq., of Austin, Texas, for Local 606, Service
Employees’ International Union.
Randy Girer, Esq., of San Francisco, California, and Mike
Guidry, Field Representative, of Fresno, California, for Lo-
cal 250, Hospital and Health Care Workers Union.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. The
charges, which were filed by Peggy M. Urban and Gladys
Hahn, individuals, and by the various labor organizations set
out above, allege violations of the National Labor Relations Act
(the Act) against Beverly California Corporation f/k/a Beverly
Enterprises, Its Operating Divisions, Regions, Wholly-Owned
Subsidiaries and Individual Facilities and each of them (Bev-
erly, Respondent, or the Employer), at 21 nursing home facili-
ties in seven States. On August 20, 1991, a consolidated com-
plaint was issued and thereafter amended at various dates set
out in the record. That consolidated complaint and the amend-
ments thereto are referred to collectively as the complaint.
In addition to the issues raised by the unfair labor practice al-
legations at the various individual facilities, Respondent is also
contesting both the “single employer” allegation of the com-
plaint, and the General Counsel’s request that any relief include
a nationwide Order including each and everyone of the Re-
spondent’s facilities. A hearing on these matters was held on all
these matters before me on various dates from November 12,
1991, through March 26, 1993. Briefs have been timely filed by
the General Counsel, Respondent, and the Service Employees
International Union (SEIU) and affiliated Local Unions.
FINDINGS OF FACT2
I. EMPLOYER’S BUSINESS
A. Jurisdiction
The complaint alleges that Respondent, a California corpora-
tion, is engaged in the ownership and operation of health care
facilities throughout the United States, providing nursing home
services and professional care to the elderly, sick, and infirm,
and that during the 12-month period ending December 31,
1989, Respondent, through its nursing home operating divi-

1 By letter dated September 29, 1993, Jonathan Hiatt, general coun-
sel for the SEIU, withdrew as counsel for New England Health Care
Employees, District 1199/SEIU, AFL–CIO.
2 There is conflicting testimony regarding some allegations of the
complaint. In resolving these conflicts, I have taken into consideration
the apparent interests of the witnesses. In addition, I have considered
the inherent probabilities; the probabilities in light of other events;
corroboration or lack of it; and consistencies or inconsistences within
the testimony of each witness and between the testimony of each and
that of other witnesses with similar apparent interests. In evaluating the
testimony of witnesses, I rely specifically on their demeanor and have
made my findings accordingly. But apart from considerations of de-
meanor, I have taken into account the above-noted credibility consid-
erations, my failure to detail each of these is not to be deemed a failure
on my part to have fully considered it. Walker’s, 159 NLRB 1159, 1161
(1966).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 174
sions, regions, wholly-owned subsidiaries, and individual facili-
ties named in the complaint, and each of them, in the course
and conduct of their operations, derived gross revenues in ex-
cess of $500,000, and that Respondent purchased and received
at the various facilities named in the complaint goods and mate-
rials valued in excess of $5000 directly from points outside the
States in which the nursing home facilities are located. Based
on these facts, which are admitted in Respondent’s answer, I
conclude that each of the individual facilities named in the
complaint meet the Board’s standards for the assertion of juris-
diction.
B. Single Employer
1. Facts
The complaint alleges that Respondent and its nursing home
operating divisions, regions, wholly-owned subsidiaries, and
individual facilities constitute a single integrated business op-
eration and a single employer within the meaning of the Act.
Respondent denies single-employer status.
Respondent, Beverly California Corporation, is a California
corporation, formerly known as Beverly Enterprises. As a result
of a merger in 1987, it became part of Beverly Enterprises, Inc.,
a holding company with other holdings in the health care indus-
try. Presently, Respondent either owns, manages, or leases
approximately 846 nursing homes in 34 States and the District
of Columbia. This number varies over time with acquisitions
and sales.
Prior to 1989, Respondent’s organizational structure con-
sisted of five divisions covering the United States, i.e., western,
central, eastern, southern, and Texas, with corporate headquar-
ters in Pasadena, California. In 1989, Respondent reorganized
its national corporate structure into 11 regions, later reduced to
10. Corporate headquarters was relocated to Fort Smith, Arkan-
sas.
Overall responsibility for corporate operations resides in
Board Chairman and CEO David Banks. With respect to Re-
spondent’s operations, each of the 10 regions is managed by a
regional vice president for operations who reports to executive
vice president operations, Boyd Hendrickson, who in turn re-
ports to Banks. Within each region, there are a number of area
managers who are responsible for some 6 to 12 individual nurs-
ing home facilities in that geographical area. They report to
their respective regional vice presidents for operations. Individ-
ual nursing home facilities are the responsibility of an adminis-
trator who reports to the area manager in the chain of com-
mand. In addition to operations, at the same level as Hendrick-
son, there are senior or executive vice presidents for develop-
ment, quality assurance, administration, finances, and a corpo-
rate treasurer, all of whom report to Banks.
With respect to the single-employer issue, a review of the re-
cord discloses the existence of common ownership of the indi-
vidual facilities by Respondent. Indeed, Respondent, in its an-
swer, concedes common ownership and more, by admitting
those portions of the complaint alleging that Respondent and its
subsidiaries, including the individual facilities, are “affiliated
business enterprises with common officers, ownership, direc-
tors” and that they “have provided services for each other,”
while at the same time denying allegations of common “man-
agement and supervision”; having “formulated or administered
a common labor policy affecting employees of said opera-
tions”; “shared common premises and facilities”; “interchanged
personnel with each other”; or “held themselves out to the pub-
lic as a single-integrated business enterprise and a single em-
ployer within the meaning of the Act.”3
In addition to what is conceded by Respondent, the record
discloses a high degree of functional integration between all
levels of the corporate hierarchy. Corporate policy in every area
is formulated at the corporate level affecting operations at every
facility.
Specifically, regarding finance, Respondent’s corporate fi-
nance computer center at Virginia Beach, Virginia (Corporate
East), performs payroll, accounting, billing, and various other
financial services for all of the facilities. As for quality assur-
ance, a quality control program is in effect that is developed,
managed, and controlled at the corporate level and imple-
mented in all of the facilities to assure that corporate standards
of quality patient care are administered uniformly in all of the
facilities, and the facilities are monitored by corporate supervi-
sion to insure compliance. In addition, a corporate “hot line” is
maintained in Fort Smith to field and resolve complaints from
employees, patients, and family members. If a complaint in-
volves patient care, from whatever facility, corporate quality
assurance has the responsibility of investigating and, when
appropriate, taking any corrective action required to resolve the
matter.
Marketing is another example of corporate involvement in
the affairs of the individual facilities. Marketing strategies are
developed at the corporate level to improve the economic per-
formance of the individual facilities. These strategies are tar-
geted to and implemented at the facility level.
Another example of corporate direction and control is found
in the formulation and application of employee benefits. Em-
ployee benefits such as medical insurance, life insurance, and
401(k) plans, to mention a few, are determined at the corporate
level and made available to Respondent’s employees at all the
facilities. These areas of corporate activity are by no means
exhaustive but are sufficient to disclose a high degree of direct
involvement by Respondent in the affairs of the individual fa-
cilities.
The record also discloses a high degree of interrelated corpo-
rate activity in the area of employee and labor relations. At the
corporate level, there is Vice President Human Resources Carol
Johanson whose responsibility it is to administer and coordinate
the human resources needs of the regions, areas, and individual
nursing homes. To this end, meetings are arranged and con-
ducted by Johanson with regional directors for human resources
and other management personnel to keep them abreast of Fed-
eral laws and regulations affecting the human resources func-
tion. Johanson is also directly involved in formulating and im-
plementing corporate policy at the local level. To this end, cor-
porate human resources has formulated and distributed a human
resources manual for use at each of the facilities, as well as
initiating and developing a program reducing from about 50 to
8 the total number of employee handbooks used at Respon-
dent’s facilities in order to provide greater uniformity in em-
ployee relations.
In addition to Johanson’s function, overall direct responsibil-
ity for supervising and administering corporate human re-
sources policy within the various regions is vested primarily in
the 10 regional vice presidents for operations who report to

3 In Beverly Enterprises, 310 NLRB 222, decided January 29, 1993
(Beverly I), Respondent admitted single-employer status.
BEVERLY CALIFORNIA CORP. 175
Hendrickson.4 Within each region, responsibility for labor rela-
tions and the entire human resources function rests with the
regional directors for human resources (RDHR) who report to
the regional vice president operations. Each RDHR has several
human resources representatives who report to him. It is the
regional human resources representatives who have the direct
hands-on responsibility to supervise adherence to corporate
labor relations policies and procedures at the various nursing
home facilities. Dealings with the NLRB and other employee-
oriented agencies, such as OSHA, are normally conducted by
regional human resources, although higher authorities are nor-
mally contacted. When appropriate, advice from other corpo-
rate departments is sought, particularly from the office of the
senior vice president and general counsel and specifically the
labor counsel within that office. Whenever a union conducts an
organizational effort at any of the facilities, any corporate re-
sponse or campaign to resist is undertaken primarily by re-
gional human resources. The staff of regional human resources
also trains the staff at the individual facilities on how to con-
duct themselves during organizational campaigns in order to
promote the Company’s position and avoid any unlawful activ-
ity. In circumstances when the facilities are already organized,
regional human relations has the basic responsibility for con-
ducting contract negotiations, executing contracts, and handling
grievances that progress beyond local resolution to the third
step of the grievance procedures. Thereafter, the grievances,
including arbitrations, are handled by regional human relations.
2. Discussion and analysis
The standard for determining single-employer status has
been set by the Supreme Court of the United States in Radio &
Television Broadcast Technicians Local 1264,5 wherein the
Court concluded that in deciding whether or not two or more
employers constitute a single employer within the meaning of
the Act, it would look to four basic factors, to wit: (1) common
ownership or financial control; (2) common management; (3)
functional interrelation of operations; and (4) centralized con-
trol of labor relations.
Observing these criteria, there would appear to be little
doubt, based on this record, that the Respondent, together with
its regions and nursing home facilities, comprise a single em-
ployer within the meaning of the Act. Respondent argues that
these entities are not a single employer, however, because the
individual facilities are “individual profit centers” and that each
is self-sufficient and exercises control of its own day-to-day
operations in matters of hiring, discipline, discharge, schedul-
ing, shift assignment, and job responsibility.
In reviewing the Respondent’s position in light of the record,
it is true, as Respondent contends, that normally, hire, disci-
pline, and discharge of employees is accomplished at the indi-
vidual facility level. The individual facilities are also responsi-
ble for patient care, on a day-to-day basis, and matters incident
thereto. It is also true that it is the facility, rather than the area,
region, or corporate, that schedules staff to work the various
shifts and assigns responsibilities to the individual employees.
In the matter of expenditures, as Respondent points out, the
individual facility administrators may enter binding contracts in
amounts of less than $5000 on behalf of the Respondent. Ex-

4 Johanson and the vice presidents operations report to Hendrickson
and are at the same vice president level of the corporate hierarchy.
5 Radio & Television Broadcast Technicians Local 1264 v. Broad-
cast Service of Mobile, Inc., 380 U.S. 255, 256 (1965).
penditures in greater amounts, however, require progressively
higher corporate approval.
With respect to budgets, Respondent argues that the individ-
ual facility “establishes” its own budget, and has sole responsi-
bility for how the money is spent. The reality, however, is more
confining. Although the facilities all submit proposed budgets,
these are reviewed and subject to modification and approval at
area, region, and corporate level before being approved.
Respondent also contends that the individual facilities have
the “final word” regarding proposals for discussion in contract
negotiations at organized facilities. The record discloses, how-
ever, that the regional human resources representative is Re-
spondent’s principal spokesperson negotiating the contract.
Although they may consult with facility administrators, the
record is totally insufficient to establish that administrators are
free to disregard corporate concerns or to make or accept pro-
posals on their own. Corporate approval is necessary for the
execution of any collective- bargaining agreement. Collective-
bargaining agreements are executed by the regional directors
for human resources, not administrators, on behalf of Respon-
dent.
In the administration of the labor contract, the facility has lo-
cal authority to resolve grievances at the early steps of the
grievance procedures. Grievances taken to higher steps, how-
ever, including arbitration, are handled by regional human re-
sources.
Respondent argues that although the region provides training
forms and makes policies and procedures for individual facili-
ties, these are only guides, and their use by the facilities is op-
tional. The record does not support this contention. Although it
is true that corporate does not demand uniformity in all activity
at every facility, the exceptions are limited. Commonsense
exceptions are dictated by the fact that facilities’ needs are not
all identical and limited departures are acceptable, and even
necessary, in the day-to-day operations of the facilities.
The contention that individual facilities are autonomous or
even self-sufficient is simply not supported by this ample re-
cord. When operational directives come from corporate, the
corporate expectation is, that apart from exceptional circum-
stances, there will be conformity by the facilities, particularly in
the area of human resources. The record fully supports the con-
clusion that wherever possible, corporate sought uniform and
consistent application of corporate policy. For example, in the
matter of employee handbooks, corporate reduced the some 50
number of handbooks in use at the various facilities to 8. Com-
plete uniformity of employee relations with a single-employee
handbook, although desirable, was not feasible because local
conditions required some flexibility. To allow some flexibility
in the application of corporate policy, in circumstances where a
corporation is administering over 800 facilities, seems reason-
able.
To summarize, Respondent contends that corporate and re-
gional are not involved in a day-to-day operation of the nursing
homes, but the record does support this contention. Even the
routine day-to-day operations are carried out under the broad
direction and supervision of the corporate structure, with corpo-
rate responsibility from top to bottom. The chain of command
runs from Banks, to the executive vice president operations
(EVP-operations) at the corporate level, to regional vice presi-
dents operations (VPOs), to area managers, to administrators
with RDHRs reporting to regional VPOs. Of course, the indi-
vidual facility is, as the Respondent suggests, the “profit cen-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 176
ter,” but the facility’s operations are conducted with corporate
supervision and responsibility from top to bottom. Indeed, the
individual facility does represent the bottom line for the Re-
spondent. This is why the facilities’ performances are closely
supervised under a corporate hierarchy.6 In summary, I con-
clude that all of the criteria set out in Radio & Television
Broadcast Technicians Local 1264, supra, have been met and
the record fully supports the conclusion alleged in the com-
plaint that Respondent and its subordinate entities are a single-
integrated business enterprise, and a single employer within the
meaning of the Act.
II. LABOR ORGANIZATIONS
The complaint alleges, the Respondent admits, and I find that
the various Unions enumerated in the complaint are labor or-
ganizations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Pioneer Place Facility, Irving, Texas
Statement of the Case
The complaint, with respect to the above-captioned case, al-
leges violations of Section 8(a)(1) of the Act by Respondent in
unlawfully soliciting employees to form and join an employee
council to represent employees concerning their problems and
complaints; by posting a notice announcing election for an
employee council and soliciting employees to be candidates;
and by soliciting employees to resign from union membership.7
The complaint also alleges in paragraph 2 violations of Section
8(a)(1) by informing employees that Respondent was seeking
to remove the Union as their representative at the facility; in-
forming employees that they could not be given a wage in-
crease because of the presence of the Union as their representa-
tive; and informing employees that a wage increase was being
prevented by disputes with the Union, which would cease when
the Union was removed as their representative at the facility.
The General Counsel adduced no evidence to support the alle-
gations of paragraph 2 of the complaint and moved at the hear-
ing to leave the record open until the close of the entire hearing
or, in the alternative, for 30 days, in order to locate a witness,
presumably to support those allegations. That motion was de-
nied by me and, accordingly, no evidence having been adduced
regarding the allegations of paragraph 2 of the complaint, I
shall recommend the dismissal of those allegations.
1. Facts
The administrator at the Pioneer Place facility, at all times
relevant, was Charles Laurent. The DON8 was Melinda Clark

6 Respondent’s contention that Los Angeles Newspaper Guild Local
69 (Hearst Corp.), 185 NLRB 303, 304 (1970), and Teamsters Local
391 (Vulcan Materials), 208 NLRB 540 (1974), serve as precedent for
its position is not well taken. Those were 8(b)(4) cases in which the
issue to be resolved was whether or not certain divisions within a cor-
poration were “persons” within the meaning of Sec. 8(b)(4). They have
no precedential value in resolving the single employer issue presented
herein.
7 Par. 4 of the complaint was amended at the hearing to substitute the
words “On or about mid-March to mid-May” for the words “In or about
mid-May.”
8 The following position titles are common to many of the facilities,
and the following abbreviations will be used for them in the body of the
decision: certified nursing assistant or aide, CNA; director of nursing,
DON; assistant director of nursing, ADON; nurses aide, NA; registered
Steible and the personnel administrator, hired by Laurent in
January 1988, was Sherry Copeland. The service employees at
Pioneer Place, those involved in the instant case, have been
represented under contract at all times relevant to this case by
Service Employees International Union, Local 606, AFL–CIO
(the Union) pursuant to a certification by the Board dated May
2, 1986.9
After Copeland was hired, she observed squabbling and con-
flict among the employees over work-related duties. For exam-
ple, complaints that one shift was leaving work undone that
would have to be done by the following shift. It occurred to
Copeland that these conflicts and the bad feelings that they
generated could be reduced by establishing an employee coun-
cil consisting of representatives from the various departments,
i.e., nurses aides, laundry, dietary, and maintenance. The pur-
pose of the employee council would be to discuss the differ-
ences among themselves and with Copeland in the hope of
resolving them. She discussed this with Laurent who approved
the proposal as a method to get the shifts working together as a
team.
A meeting of the day-shift employees was set for March 15,
1988, at 2 p.m. The meeting began with Clark, who congratu-
lated the employees for their work and recent successful state
inspection. After this, Laurent made a $25 attendance award to
an employee and then announced, to the some 20 assembled
employees, the formation of the employee council with repre-
sentatives from the various departments serving thereon and
told them that Copeland would give them the details.
At this time, Copeland spoke concerning the employee coun-
cil. She advised those present that the employees themselves
would be selecting representatives from each department and
outlined the responsibilities of those representatives selected.
She told them that she would be posting a notice providing the
opportunity for employees to nominate their representatives.
On the following day, notices were posted soliciting employ-
ees to nominate employees from the various departments to
serve as representatives to the employee council and setting out
“Qualifications” and “Responsibilities” for those elected. Soon
thereafter, Laurent spoke by telephone to Vincent Shepard,
human resources (HR) representative for the Texas division,
who advised him that Pioneer was a union facility whose em-
ployees were represented under contract by the Union and that
such an organization as the employee council should not be
formed. Laurent heeded this counsel. After about 4 days, the
notices were removed.10 Employees, however, were never
advised that the effort to form the employee council was being
abandoned. It is not disputed that no grievance under the con-
tract was filed over the employee council.
Concerning the solicitation to resign from the Union, Margie
Cepeda, a CNA and union shop steward, testified that the col-
lective-bargaining agreement provided two times during each
calendar year for the parties to resign from the Union, one in
April and another in November. Cepeda testified that on some

nurse, RN; licensed practical nurse, LPN; and licensed vocational
nurse, LVN.
9 Decertification petitions were filed on August 15, 1988, and on
May 4, 1989, both of which are presently blocked by the unfair labor
practices alleged in the instant complaint.
10 Although some of the CNAs called by the General Counsel testi-
fied that the posting lasted somewhat longer than that, I am persuaded
that the corroborated testimony suggests a posting period of about 4
days.
BEVERLY CALIFORNIA CORP. 177
10 or 11 occasions just prior to those times, Laurent told her
she could get out at those times, asked her whether she was
going to get out of the Union, and she replied that that she did
not know. According to Cepeda, Laurent said that he could not
understand why the CNAs could not save money and that the
$11 per month they paid as union dues was a waste of money.
Cepeda also testified that prior to the spring resignation op-
tion period, in or about March 1988, Melinda Steible, DON,
also asked her if she was going to quit the Union and said that
the Union was a waste of time. Cepeda testified that she said
she did not know.
Laurent, on the other hand, testified that Cepeda had ap-
proached him several times complaining that she was in the
middle between Oral Fitzsimmons, union business representa-
tive, and the Company and wanted to know how to get out of it.
Laurent told her that it was impossible, because she was a shop
steward, and further responded that the contract provided two
time periods each year when she could withdraw from the Un-
ion, and that she did have this option. Laurent denied ever ask-
ing her to get out of the Union or asking her if she was going to
get out of the Union.
Steible testified in a similar fashion to the effect that Cepeda
complained to her about being in the middle between the Union
and the Company and told her that it was up to her to decide
what to do, neither recommending nor suggesting to her that
she resign from the Union.
2. Analysis and recommendations
It is a violation of Section 8(a)(2) of the Act for an employer
to interfere with the administration of a labor organization. It is
clear that had Respondent finalized its plan to form the em-
ployee council, the formation of that group, for its express pur-
pose of dealing with employee complaints in that workplace,
would have violated Section 8(a)(2) of the Act. In the instant
case, the plan was announced, representatives were solicited,
but on the advice of HR, it was dropped. Nonetheless it was
unlawful even to solicit employees to serve as representatives
for such an unlawful purpose.
Respondent argues that the employees were told by Laurent
that the employee council would not “circumvent or negate” the
contractual grievance procedure. Even assuming that this
statement was made, it is apparent from review of the record
that the employee committee was being formed for the purpose
of resolving employee complaints concerning their working
conditions. These are matters within the exclusive province of
the unit employees’ collective-bargaining representative, and
any effort by an employer to establish a committee of employ-
ees to resolve these problems violate Section 8(a)(1) of the Act.
Nor is the fact that the employee council was never formed
persuasive, the 8(a)(1) violation is made out by announcing the
plan and soliciting employee representatives for the employee
council. Accordingly, I find that by soliciting employees to
form and join this employee council, and by posing notices to
implement the selection of employee participants, Respondent
violated Section 8(a)(1) of the Act.
With respect to Cepeda’s allegations that Laurent and Steible
solicited her to resign from the Union, I have reviewed the
record and conclude that the accounts offered by Laurent and
Steible are more credible. Essentially, I conclude that it was
Cepeda who complained to both Laurent and Steible that she
felt that she was in the middle between the Union and the Re-
spondent.
In responding to Cepeda’s complaints, I conclude that
Laurent and Steible told her only about her option to leave the
Union under the biannual terms set out in the contract. The
record is not sufficient to support the General Counsel’s con-
tention that either Laurent’s or Steible’s remarks were coercive
within the meaning of Section 8(a)(1) of the Act.
B. Fountainview Place, Indianapolis, Indiana
Statement of the Case
The complaint alleges with respect to the Fountainview facil-
ity11 that Respondent violated Section 8(a)(1) of the Act by
ordering an employee out of the facility for having acted as a
union observer at a Board-conducted election earlier in the day
and by threatening employees with unspecified reprisals for
having selected United Food and Commercial Workers Interna-
tional Union, Local 917, AFL–CIO (the Union), as their repre-
sentative. The complaint also alleges that Respondent violated
Section 8(a)(3) and (4) of the Act by issuing written warnings
to its employees, Lillie Davis and Kastle Gannon.
1. Facts
In 1988, the Union undertook an organizational effort at
Fountainview that led to an election there on August 18, 1988.
The Union won and was subsequently certified on August 26,
1988. On the day prior to the election, Roger Brown, a Beverly
human resources representative, contacted union organizer,
Steve Kidwell, to ascertain which employees the Union in-
tended to designate as the union observers at the morning and
afternoon polls, so that Fountainview could make arrangements
to cover for them. Kidwell declined to divulge the identity of
those two individuals except to say that it would be one NA on
each of the two shifts during which the polling would take
place. DON Patricia Nicolau12 also testified that she was aware
on August 17 that two NAs would be serving as union observ-
ers, but she did not know their identities.
In fact, Kidwell had previously contacted Gannon and Davis
and they had agreed to be union observers. Both had been ac-
tive union supporters in the Union’s organizational effort, solic-
iting union authorization cards and attending union meetings.
Pursuant to Board policy, a preelection conference was
scheduled for 5:45 a.m. on August 18 to review Board eligibil-
ity and pertinent election arrangements. It was at the preelec-
tion conference, or shortly thereafter at or about 6:15 a.m, that
Davis arrived and was introduced to Brown as the union ob-
server for the morning poll. Davis’ normal work hours were 6
a.m. to 2 p.m.
Davis served as the union observer during the first poll and
returned to work at or about 7:30 a.m. and worked until 2 p.m.,
when her regular shift ended, at which time she left the prem-

11 The Fountainview facility is a skilled care nursing facility located
in Indianapolis, Indiana, with about 223 beds and a normal occupancy
of about 210 beds. The parties stipulated that Beverly operated Foun-
tainview as a leased facility from April 1982 until December 31, 1990,
under a lease agreement from Health Quest Realty VII. On December
31, 1990, Delmar Limited Partnership, with the consent of Health
Quest, assumed Beverly’s lease. The “Assignment and Assumption of
Lease with Consent of Lessor,” dated December 31, 1990, also pro-
vides that despite the assignment, both Beverly and Delmar are jointly
and severally obligated under the terms of Beverly’s lease with Health
Quest.
12 At the time of the election Nicolau’s maiden name was Sanders.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 178
ises, returning for the count of ballots at the close of the after-
noon polling session at 3:30 p.m.
The union observer for the afternoon poll was Gannon.13
Gannon had not attended the morning preelection conference,
and Brown was not advised that Gannon had been designated
as the Union’s observer until she went to the election site in the
library for instructions at or about 2:15 p.m. When the after-
noon poll ended at 3:30 p.m., the ballots were counted. After
the count, Gannon returned to work about 4 p.m. Nothing was
said to her at the time about her absence from work while serv-
ing as union observer.
Apparently, nothing was said to either Gannon or Davis on
the day of the election about their absences from their shifts due
to their participation in the election as union observers, but
sometime on the following Monday, Mary Caughill, ADON,
Nicolau, and Brent Waymire, administrator, met to discuss
whether or not the absences of Gannon and Davis for the time
spent as union observers violated company policy inasmuch as
neither had notified management within 2 hours from the be-
ginning of their shifts that they would be absent.14 They agreed
that these absences violated company policy and that discipli-
nary action should be taken.
On Tuesday, August 22, some 4 days after the election, both
Davis and Gannon were called into Caughill’s office and given
written disciplinary action forms captioned, “Informal Counsel-
ing Session,” which recite that they were being counseled for
unexcused absences due to their failure to notify the director of
nursing with their tardiness on August 18 during the polling
hours. These forms were signed by Caughill and initialed as
reviewed by Waymire. Davis refused to sign the form, protest-
ing that she was unaware that she needed permission or needed
to notify management in order to act as union observer. Gannon
also refused to sign the form, complaining that both Waymire
and Nicolau were aware that she was absent from her shift be-
cause she was acting as union observer.
Turning to the allegations of unlawful coercion, Davis testi-
fied that after the counting of the ballots on August 18, which
disclosed that the Union had won the election, she was asked
by Brown to leave the premises because she was not on the
clock. This would appear to be accurate, since Davis’ shift ran
from 6 a.m. to 2 p.m., but she had returned to participate in the
ballot count. In her testimony, Davis conceded that she could
not recall any mention of the Union at this time. Brown testi-
fied that after the count, she was leaving the room out of the
door that led to the hall into the nursing home, although there
was a door that led directly outside. Brown testified that he was
afraid of the disruptive effect on the patients if Davis went back
into the facility and, in accordance with company policy, be-
cause she was not on worktime, asked her to exit the premises
through the door that led directly outside.
Davis left, but returned to the premises shortly thereafter
where she encountered Joyce Williams, a labor relations assis-
tant to Brown, who told her that she would be sorry that they
had elected a union. Davis asked why, and Williams responded,

4) of the Act.

13 Gannon had served as a union observer in a prior election at this
facility conducted in 1986.
14 The “Attendance Control Program” in effect at the time sets out
several “Examples” of “Types of Unexcused-Unauthorized Absences,”
one of which reads, “Failure to notify Department Head/Supervisor,
Weekend Manager, House Supervisor or Nursing Scheduler of absence
within two (2) hours prior to employee’s normal scheduled shift.”
“Give them about a year and you’ll find out why you will be
sorry.”15
2. Analysis and conclusions
First, let us examine the allegation that Respondent violated
Section 8(a)(3) and (4) of the Act by its disciplinary counseling
of Davis and Gannon. The record discloses that both were ac-
tive union supporters and that Gannon had acted as a union
observer in a prior NLRB election in 1986. They were selected,
as union observers normally are, because they were able and
willing to represent the Unions’ interests at the election site
during the voting times.
Respondent contends that the disciplinary action was neces-
sary to enforce written company policy against unexcused ab-
sences. Although, however, they may not have been aware of
the individual identities of the two union observers, manage-
ment was on notice, at least the day prior to the election, that
there would be two union observers, one NA for each of the
two polls. Respondent knew how long these observers would
be absent from their shifts. With this information, Respondent
could have covered for the observers as it saw fit, and the re-
cord discloses no probative evidence that their absence created
staffing problems or adversely affected patient care.
Nor was this a situation when employees, without notice,
voluntarily absent themselves from assigned work. Respondent
knew that these employees were on the premises, where they
were, and what they were doing.
Moreover, no effort was made to implement any disciplinary
action, nor was any disciplinary taken, until the hierarchy gath-
ered 3 days later to review the matter and concluded that disci-
pline was appropriate.
With respect to Respondent’s contention that Davis and
Gannon were properly disciplined pursuant to Respondent’s
“Attendance Control Program,” I note that the facts disclose
that Davis and Gannon were tardy, not absent, during the poll-
ing times and that as noted above Respondent was aware of
where they were and what they were doing. The “Examples”
with respect to lateness, provide discipline for “Repeated occur-
rences of tardiness for work, clocking in after normal starting
time or shift.” Respondent’s contention that written disciplinary
action taken against Davis and Gannon was an appropriate
response to a single lateness, in circumstances when that late-
ness was occasioned by their acting as union observers for an
election, is simply not credible.16
In these circumstances, I conclude that the disciplinary ac-
tion in issue was taken because Davis and Gannon were union
supporters engaged in clearly protected activity as union ob-
servers, and that it was this activity that motivated Respondent
to issue the disciplinary counseling. This constitutes
discrimination against employees within the meaning of
Section 8(a)(3) and (
15 Respondent submitted an affidavit reflecting that a subpoena had
been sent to Williams by the Respondent on January 24, 1992. Wil-
liams did not appear, however, and did not testify.
16 With respect to the contention that Respondent’s written discipline
of Davis and Gannon also violates Sec. 8(a)(4) of the Act, it appears
that the Board has held that discrimination under Sec. 8(a)(4) for hav-
ing “filed charges or given testimony under this Act” includes disci-
pline for other aspects of the representation process, including partici-
pation in the election process as a union observer. Hyatt Regency Mem-
phis, 296 NLRB 259 fn. 4 (1989).
BEVERLY CALIFORNIA CORP. 179
With respect to the 8(a)(1) allegations of interference, I am
satisfied, based on this record, that Brown did not violate the
Act simply by requesting Davis to exit the premises directly
from the side door. Her shift was over and Respondent had
legitimate interest in providing that off-duty employees not
return to the premises when they are not on duty. The record
discloses that the Union was not mentioned during this incident
and does not otherwise support the conclusion that Brown or-
dered Davis to leave the premises because she had acted as a
union observer, as alleged in the complaint.
The threat of reprisal conveyed by Williams to Davis is un-
rebutted, however. Accordingly, I credit Davis’ testimony in
this regard, and I conclude that by threatening Davis with un-
specified threats of reprisal on account of the Union having
been selected to represent the Respondent’s employees, Re-
spondent violated Section 8(a)(1) of the Act.17
C. Liberty House Nursing Home, Clifton Forge, Virginia
Statement of the Case
The complaint issued on charges filed by Peggy M. Urban,
an individual (Urban or the Charging Party), alleging that Re-
spondent, at the Liberty House facility, discharged Urban for
having engaged in union activity in violation of Section 8(a)(3)
of the Act. The hearing thereon was conducted before the ad-
ministrative law judge on February 19, 1992.
Findings of Fact
1. The alleged unfair labor practices
a. Facts
Liberty House is one of Respondent’s nursing home facilities
located at Clifton Forge, Virginia. At the time of the alleged
unfair labor practices, James Daugherty was regional manager,
supervising some 10–15 nursing homes, including Liberty
House.18 Mae Tucker was the administrator at Liberty House,
and Henry Agee was the in-service director.
By way of relevant background, it appears that the United
Paperworkers International Union (the Union) began an organ-
izational effort at Liberty House with the filing of a petition for
election in 1984. The Union won and was subsequently certi-
fied on February 4, 1985, for a unit of full-time and regular
part-time nursing assistants, cooks, maintenance employees,
ward clerks, and housekeeping employees at the facility. Sub-
sequently, apparently without ever having reached agreement
on a collective-bargaining agreement, the Respondent filed a
decertification petition on December 8, 1986, and withdrew
recognition from the Union by notice dated January 2, 1987. A
charge was filed by the Union protesting that withdrawal of
recognition, but that charge was dismissed on October 28,

17 Regarding this allegation, Respondent contends that the General
Counsel’s delay in issuing the complaint was the direct cause of Re-
spondent’s inability to locate former employee Joyce Williams to refute
Davis’ testimony and that therefore this allegation should be dismissed.
There is no probative evidence, however, to support this contention in
the record and Respondent’s motion to dismiss is denied.
18 Par. 1 of the complaint was amended at the hearing to reflect the
following corrections in names and titles:
Neil Bateman—regional manager
James Daugherty—regional manager
Henry Agee—in-service director
1987. That dismissal was sustained on appeal December 17,
1987.
After the certification in 1985, the Union made an effort to
negotiate a contract with Respondent. Urban was one of five
unit employees on the negotiating committee. Urban testified
that she was active in the negotiating sessions held between
August 1985 and January 1987 when the Respondent withdrew
recognition of the Union as the collective-bargaining represen-
tative of the unit employees.19
The incident alleged to have culminated in the unlawful dis-
charge of Urban, a CNA, occurred about 11:30 p.m. on the
night of July 18, 1988.20 Joy Jackson, a newly hired RN,21 was
finishing her shift. She testified that she heard loud and angry
voices coming from one of the patients’ room. As she ap-
proached the doorway, she heard voices cursing and complain-
ing about work left to be done. She testified that she arrived in
time to see one of the CNAs hit Hattie Houston, a patient in
that room, on the shoulder. Jackson had been employed only a
couple of weeks and could not identify either of the two aides
in the room. They were later identified, however, as Peggy
Urban and Lois Nicely. Jackson identified Urban as the one
who hit Houston. According to Jackson, she was disturbed by
the incident and, on July 19, reported to Henry Agee, in-service
director, what she had seen and heard.
Agee confirmed that Jackson came to his office on July 19 to
report the incident. Thereupon, Agee reported the matter to his
superior, Administrator Mae Tucker. Tucker advised him to
have Jackson submit her version in writing. Agee then visited
Houston and examined the shoulder area where she had alleg-
edly been hit. Agee testified that he saw no evidence of physi-
cal abuse and that Houston was unable to confirm to him that
she had been slapped. Agee testified that Houston suffered
from senile dementia and was unable to comprehend, recall, or
communicate much of the time and was also generally disori-
ented. Agee also asked Jackson to write up her account of the
incident so that it could be investigated. A memo dated July 20,
1988, signed by Jackson, reads:

19 The Respondent’s position toward the organization of its employ-
ees is set out in its employee handbook in which it states:
STATEMENT ON UNIONS
Your management firmly believes that any union organiza-
tion is unnecessary and undesirable in our health care industry.
Our business is caring for people and providing the best care
possible for our residents. We know our business better than
anyone else, and management will do everything possible to
show you that such representation is not necessary. Your man-
agement believes that the best possible working relationship
exists where there is no interference by a third party. We do not
want unions in our facilities, but the company respects your
right to make that choice.
Management at your facility is committed to deal on a per-
sonal, direct basis with you in providing a friendly place for
you to work.
You are strongly encouraged to discuss openly and frankly,
any problem or concern that may arise during the course of
your employment. By working together as a team and keeping
lines of communication open, the company believes it can do
more for you than any labor union can . . . your company can
do it more quickly, more effectively, more permanently, and
without you incurring the additional expenses of initiation fees,
monthly dues, possible fines, and special assessments.
20 All dates refer to 1988 unless otherwise indicated.
21 Jackson was hired about 2 weeks earlier.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 180
On 7–18–88, I had worked 3–11 & was getting ready
to clock out when I heard loud voices around the corner.
“There were 4 aides on 3–11 & only 2 of us here on 11–7
& we have to come in here & clean up your stinking shit.
There’s no sense in it,” etc.
“Now Hattie, don’t you start that damn pinching al-
ready, I mean it.”
I walked around the corner just in time to see Peggy
Urban strike Hattie Houston. I backed away from the door
to see what would happen next. Evidently, the 2 aides be-
came aware of my presence because 1 said, “Who was
that?” & the other replied, “That was the new nurse.”
The conversation then turned to, “Hattie, you know
you need to get cleaned up now, come on & let us wash
you up so you won’t be so sore.”—The other aide was
Lois Nicely.

After learning of the incident from Agee on July 19, Tucker
made a telephone call to Regional Manager James Daugherty
and described the incident to him and recommended that Urban
be discharged. Daugherty advised her to get statements from
the witnesses. According to Daugherty, because Urban had
been employed for over 5 years, it was necessary, as a matter of
company policy, to contact Regional Vice President for Opera-
tions McLawhon prior to disciplinary action. This was done.
McLawhon recommended suspension pending an investigation.
Daugherty told Tucker to get back to him after she had obtained
statements from the witnesses. She did so, and after a discus-
sion with McLawhon, who also recommended dismissal, action
was taken to terminate Urban.
Urban, who had worked a full day on July 19, was advised
by Tucker, by telephone on July 20 that she was being charged
with patient abuse and not to report to work until the matter
was resolved. Urban denied any abuse.
Urban testified, with respect to the incident itself, that on
July 19 she was employed on the 11 p.m. to 7 a.m. shift, work-
ing with Nicely. They went into the room occupied by Houston
and another patient. On observing that Houston was wet and
dirty, they went about changing her. Urban and Nicely testified
that Houston complained that she was not wet and began hol-
lering because she did not want to be disturbed. While they
were so engaged, a registered nurse appeared at the door and
Nicely asked, “Who is that?” and Urban responded that she
thought it was a new nurse. Neither knew who she was. They
finished cleaning Houston and went on to finish their rounds.
On July 20, after Jackson had given Agee her statement, they
both went to see Tucker. Jackson gave an oral account of the
incident. Tucker also testified that on July 20, she also tried to
discuss the incident with Houston but Houston’s mental condi-
tion precluded any meaningful inquiry. Tucker also called
Nicely who told her that there had been no slapping or cursing,
but agreed to provide Tucker with a statement about the inci-
dent. A signed note dated and submitted to Tucker on July 21
from Nicely reads:

I was in the room at the time Peggy [Urban] was talk-
ing to Hattie Houston. Her voice was raised, but I cannot
say the exact words is [sic] was saying.

Nicely also testified that she did not see or hear any patient
abuse.
On July 21, Tucker again called Urban, this time to advise
her that the investigation was continuing and that she was not to
come back to Liberty House until she was contacted by Tucker
on the following day, July 22.
On July 22 Tucker called Urban and asked her to come to
her office. When Urban arrived at Liberty House she went to
Tucker’s office. Agee was also present. Urban again protested
her innocence, saying that she had not hit Houston, and that
Nicely would support her. Urban also became irritated with the
accusation and demanded to confront Jackson. She was ac-
commodated, and when Jackson arrived, she told Urban that
she had seen her hit Houston on the shoulder and that she had
no reason to say so if it were not true. Urban again denied any
abuse of Houston. Jackson departed, and Tucker gave Urban a
written notice of dismissal alluding to the written statements of
Jackson and Nicely and noting, “As per personnel policy auto-
matic termination. Discussed and approved by Regional Super-
visor Mr. Daugherty.” In the portion reserved for employee
comment, Urban wrote “I didn’t strike Hattie or curse her. I’ve
never abused any one of my patients in 8 years I’ve been here.
Hattie and I are very close.”
Urban also asked to see the statements alluded to in the dis-
missal notice, but Tucker declined, telling her that she would
need a subpoena to see them.
The record discloses that right up until the time of this inci-
dent, Urban had been a highly regarded employee. Her work
performance evaluations throughout the 8 years of her em-
ployment attest to this. For example, in a performance evalua-
tion dated April 14, 1988, Urban’s overall evaluation was
“Very Good.” In the comment portion appears, “Peggy has
insight into patients’ needs and works very hard at providing a
warm loving atmosphere for her patients to live in. At holiday
time goes out of her way to make happy memories.”
By way of background, it appears that Houston was in pain
much of the time and often disoriented. Urban had been atten-
tive to her needs on a daily basis for about 4 years and testified
that over the years she and Houston had developed a special
bond. They would discuss personal family matters, and Urban
would bring little gifts for her, and arrange parties for her on
special occasions, such as her birthdays. Houston referred to
Urban as “Mom.” The caring and affectionate nature of their
relationship was corroborated by Cleopatra Williams, Hous-
ton’s first cousin, who paid visits to Houston three or four times
a week and who testified that Houston loved and depended on
Urban and that Urban showed special care and kindness to
Houston. Nicely confirmed the long-term affectionate relation-
ship between Houston and Urban.
b. Analysis and conclusions
A review of the record discloses that Jackson, a short-time
employee, testified that she observed an incident involving
persons unknown to her, and that she saw one of those persons
“strike” Houston. Instead of confronting the abuser or notifying
responsible authority at the facility at that time, however, Jack-
son withdrew, pondered the event, and reported it the following
day to Agee.
The investigation was cursory. Urban vigorously denied the
charge. Nicely submitted a statement, but this statement did not
support the patient abuse allegation and at the hearing, Nicely
testified that she never saw any patient abuse. Houston, albeit
she was generally disoriented, did not support the allegation
when she was asked about it, and she showed no signs of any
physical abuse. Williams, a cousin and frequent visitor, con-
firmed that Urban had always been especially loving and kind
BEVERLY CALIFORNIA CORP. 181
in her relationship with Houston. The record, particularly the
testimony of Urban, Nicely, and Williams, makes it clear that
Urban was loving and kind to Houston beyond any normal
patient relationship. In short, based on the unsupported, uncor-
roborated observations of one employee, Urban was dis-
charged.
Respondent also argues that the General Counsel has not met
its burden of showing that Urban’s discharge was motivated by
antiunion considerations, particularly as Urban’s last union
activity occurred some 18 months prior to her discharge while
she was acting as a union negotiator. Obviously, after Respon-
dent lawfully withdrew recognition from the Union in January
1987, Urban was no longer able to function as the union nego-
tiator. Nonetheless, her prounion views and posture were
known to the Respondent, and the possibility of renewed organ-
izational efforts always exists. Given the Respondent’s ex-
pressed antiunion attitude, it is my opinion that the Respondent
simply embraced the opportunity to rid itself of an active union
adherent.
In summary, the evidence discloses that Urban was a long-
time competent employee, with an especially kind and loving
relationship with Houston. She was also an active union sup-
porter and Respondent was aware of her union sympathies and
adherence because she was engaged in a high-profile position
of contract negotiator. Based on a cursory investigation, which
did not support the allegation, Urban was discharged. In my
opinion, Urban was discharged as an act of retaliation on the
part of Respondent against Urban motivated by Respondent’s
desire to rid itself of an active union supporter.
D. Mount Lebanon Manor Convalescent Care Center Facility,
Mount Lebanon, Pennsylvania
Statement of the Case
On charges filed by District 1199P, National Union of Hos-
pital and Health Care Employees, SEIU, AFL–CIO (the Union
or the Charging Party), the complaint alleges that Respondent
violated Section 8(a)(1) of the Act by threatening employees
with the filing of legal proceedings because of their grievance
filing activity on behalf of the Union. Further, the complaint
alleges that Respondent violated Section 8(a)(5) of the Act: by
refusing to furnish certain information to the Union relevant
and necessary for the Union to perform its function as the ex-
clusive collective-bargaining representative of unit employees;
by announcing and implementing a scheduling change that
resulted in a reduction in the hours of unit employees without
notice to or bargaining with the Union; and by failing to com-
ply with contract provisions providing for grievance processing
and union membership information.
1. Facts
a. Implementation of master schedule and failure to provide
requested information
On September 16, 1988, the Union was elected to represent a
unit of service and maintenance employees at the Mount Leba-
non facility. On October 21, 1988, the Union was elected to
represent a unit of LPNs at the facility. Subsequently, collec-
tive-bargaining agreements for both units were negotiated ef-
fective January 18, 1989, until December 1, 1989.22 Subsequent

22 All dates refer to 1989 unless otherwise indicated.
contracts were negotiated for the period December 1, 1989,
through November 30, 1992.
A meeting was conducted at the facility on April 25, 1989, to
discuss labor management concerns. In attendance were Timo-
thy Cimbalnik, administrator, and Elaine Walley, DON, repre-
senting management. Robert Moore, union organizer, and three
shift delegates—Tracy Thomas (7 a.m. to 3 p.m. shift), Liz
Miller (3 to 11 p.m. shift), and Mary Morgan (11 p.m. to 7 a.m.
shift)—represented the Union. Insofar as the record discloses, it
was at this meeting for the first time that Cimbalnik and Walley
advised the Union of their intention to implement a “master
schedule” to solve its staffing problems on weekends. The LPN
contract guarantees LPNs every other weekend off, and it ap-
pears that the facility had been experiencing problems both in
obtaining part-time staff to work weekends and with those
scheduled for weekends calling off. It appears that implementa-
tion of the master schedule would result in a reduction of hours
for many full-time LPNs while providing additional hours for
part-time employees. The union representatives made it clear
that they did not agree to the master schedule change. Moore
requested copies of absenteeism records and projected vacation
schedules so as to better evaluate the master schedule issue.
Cimbalnik provided none of the requested information at this
meeting.
On the following day, April 26, Moore wrote to Cimbalnik
expressing dissatisfaction with the proposed master schedule,
requesting that it not be implemented, and requesting certain
information for discussion purposes. The letter read:

In our Labor/Management meeting of 4–25–89, we
discussed your proposed changes in staff scheduling. As
we discussed your proposal, some of our questions were
answered and some were not. You and your representative
informed the bargain-unit representatives and myself that
your proposal would result in a substantial loss of hours
and income for an untold number of the bargaining unit
employees. While we realize staff shortages does present a
problem at Mount Lebanon Manor, we are unclear as to
how a reduction in hours worked by certain staff members
will correct the problem.

The bargaining unit employees have indicated they are
very discouraged and troubled by your scheduling pro-
posal. This fact, coupled with those mentioned above,
forces us to exercise the option offered by your representa-
tive ie to develop an alternative schedule. We believe this
option is within our contractual and/or legal rights as well.
We are currently forming a committee to study the
staff problems and to recommend a more satisfying solu-
tion. As stated in the current labor agreement, we invite
you to appoint your representatives to the committee. Your
full cooperation, as well as ours, will be necessary for this
committee to succeed.
We belive the problem must be addressed in a timely
manner. As they say, “Time is money.” Therefore, we
formally request the following information.
1. Current staffing schedules/patterns
2. Shifts and/or times when increased staff to patient
ratios are necessary
3. Absenteeism records
4. Projected staff shortages caused by vacations, holi-
days, etc.
5. Projected in-service requirements
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 182
We believe harmony in the workplace benefits labor,
management and patients alike. Your scheduling proposal,
as it stands, would have such an adverse effect on who
knows how many employees, that it would be detrimental
to employee moral and workplace harmony. Therefore, we
request you do not implement your proposal and at least
serious consider the findings and recommendations of the
committee.
We suggest we meet soon, form the committee and get
them started on their task. Please contact me at your earli-
est possible convenience.

By letter dated June 1, Thomas sent to Cimbalnik a letter
designating individual committee members who would be serv-
ing on the six committees provided for in a letter of understand-
ing to the existing contract. The pertinent paragraph relating to
scheduling reads:

The SCHEDULED-NURSING ASSISTANTS COMMITTEE
complies with the LETTER OF UNDERSTANDING of the UNION
CONTRACT, ITEM 1. Please include them in developing
scheduling alternatives that meet the staffing requirements
to maximize the number of weekends-off for Nursing As-
sistants.

Cimbalnik did not respond to this letter, and no meetings were
held with the Union’s committee.
On July 5, John Engelhardt, who had replaced Moore as the
union organizer servicing the contracts, along with Miller,
Thomas, and other employees, met with Cimbalnik and Walley
in Cimbalnik’s office. The Union expressed its concern that the
master schedule would reduce the pay of several full-time em-
ployees by reducing the number of days they worked. At this
meeting, Walley complained about the staffing problems on
weekends. Engelhardt requested information that he told Cim-
balnik was necessary for him to evaluate the Respondent’s
master schedule. In addition to the information previously re-
quested by Moore, Engelhardt asked for staffing and call-off
information for the preceding year, and State Department of
Health reviews identifying deficiencies at the facility. Cimbal-
nik declined to provide any information and responded that
some of the information was available from other sources,
some was privileged to management, and that information con-
cerning State Department of Health reviews were not necessary
in order to discuss the scheduling changes.
On July 6, sometime during the 3 to 11 p.m. shift, a new
master schedule was posted. It is undisputed that this new
schedule reduced from 10 days to 9 or 8 the number of days per
2-week pay period worked by several unit employees, both in
the LPN unit and the service and maintenance unit.
On the next day, July 7, the Union filed a grievance signed
by 53 employees protesting the implementation of the master
schedule, and, by letter dated July 10, the Union advised Cim-
balnik that it would engage in informational picketing on July
20.
On July 17 a meeting was held on the master schedule griev-
ance. At this meeting, Engelhardt handed a letter to Cimbalnik
stating:

I am writing to formally request information vital to
bargaining and grievance action on the issues of absentee-
ism, weekend scheduling, sick leave policy, and the recent
layoff. This information is necessary if the Union is to
carry out it’s [sic] duty to fairly represent the membership
on these matters.
Please forward the following items as soon as possible:
1. A full set of pre and post layoff schedules for the
full bargaining unit.
2. Data reflecting the number of call-offs during the
last year. Please provide the date in such a way as to en-
able breakdowns by day of the week, department, and
shift. Please also include data, broken down in the same
way, that indicates how many of the days lost to call-offs
were paid days.
3. A full and complete breakdown of all time lost,
paid or otherwise, through injuries on the job. Please also
include the reason or cause of such lost time. The data
should cover the last two years.
4. Copies of the last three cost reports the home sub-
mitted to the State.
5. Copies of all material concerning the last three in-
spections by the State Health Department, including plans
of correction.
6. The home’s current budget and the last two previous
budgets.
7. A copy of the daily calculation of minimum staff
levels for the last 6 months.
I thank you for your cooperation. If you have any
questions concerning this letter, do not hesitate to contact
me through our State College office.

Engelhardt testified that the information sought was necessary
in order to evaluate the issue of understaffing that gave rise to
the implementation of the master schedule over which the
grievance was filed.
The information was not provided except for item 1 of the
July 17 letter. The record discloses that in September 1989,
however, the grievance was settled when the Respondent re-
scinded the master schedule and paid backpay to those employ-
ees who lost wages by the reduction in hours.23
b. Failure to comply with contract about grievances and mem-
bership information
With respect to the matter of Cimbalnik’s failure to comply
with contract provisions regarding the processing of grievances,
it appears that the applicable contracts provide, with respect to
written grievances not settled at step 1, that they be submitted
to the administrator at step 2 and that “The parties will meet to
discuss the grievances unless mutually agreed otherwise. The
meetings will be held expeditiously and the Administrator will
report in writing to the employee(s) and the Union within ten
(10) work days after receipt of the grievance.” Miller testified
that Cimbalnik, rather than meet with the Union, would only
respond to the Union in writing. Miller also testified, however,
that on those occasions, when she requested Cimbalnik to meet
on grievances, he did so, notably with Miller, Engelhardt, and
others on July 17 on the master schedule grievance. Thomas
testified that sometimes Cimbalnik met with her on grievances
and sometimes he did not, but that he never refused to meet on
a grievance. Cimbalnik testified that he responded to every
grievance and that whenever a meeting at step 2 was requested,
he never refused to meet.

23 This settlement of the grievance between Respondent and the Un-
ion does not, however, contrary to the assertions of Respondent, moot
the unfair labor practices allegations of the complaint.
BEVERLY CALIFORNIA CORP. 183
Regarding the failure to provide membership information, it
appears that by letter dated July 6, Engelhardt wrote to Cimbal-
nik, calling his attention to section 5 of the contracts requiring
the Respondent to provide the Union with the names, home
addresses, classifications, and dates of hire of all new employ-
ees on a monthly basis, as well as a monthly report by names
and dates of terminated employees and monthly updates of
employee address changes. In the letter, Engelhardt also re-
quested those reports for the months of February through July
1989 and asked that they be submitted monthly in the future. In
response, Cimbalnik furnished only one report. Subsequent
reports were not furnished on a regular basis until the spring of
1990.
c. The 8(a)(1) threats of legal proceedings
On July 24 Walley called Miller to her office. Walley began
the conversation by saying that although she liked and re-
spected Miller, as did the patients and fellow employees, she
was concerned about certain letters that had been circulated.
This was an apparent reference to complaint letters that had
been sent to the State of Pennsylvania Department of Health
requesting investigations of patient care; specifically, the num-
ber of in-house decubitus, shortages of lift pads for transferring
patients, understaffing, and excessively early wake up of pa-
tients. Pamphlets distributed to patients’ family members dur-
ing the picketing on July 20 also complained that patient care
was being compromised by understaffing and accused Beverly
Enterprises of caring more about profits than patients, and urg-
ing family members to call on various public officials and
agencies to investigate.
Walley went on to tell Miller that if anything in those letters
or pamphlets jeopardized her license she would pursue it le-
gally. According to Miller, “[S]he was warning me that if her
good name was used, she would sue for libel.”
On July 27 Thomas went to Cimbalnik’s office to present
him with a grievance. The grievance read: “Violation of con-
tract including Article 6 and Article 7. Willful miscalculation
and deduction of Union dues. Management is intentionally
overdeducting full-timers due and underdeducting part-time
dues.” After reviewing the grievance, Cimbalnik expressed his
concern about the allegations being “willful” and “intentional.”
Thomas, whose testimony I credit in this regard, testified that
Cimbalnik told her that she had better be able to prove those
assertions or he would be able to sue Thomas for libel. In view
of Cimbalnik’s objections, Thomas took back the grievance and
added the words “in our opinion” to the offending sections and
resubmitted the grievance.
On August 10 Miller, along with another employee, Donna
Rogers, went to the Cimbalnik’s office to present him with a
grievance. A number of grievances were being filed at that
time, and Cimbalnik complained, in essence, that they were
being filed to harass management. Miller denied that this was
the case. Cimbalnik went on to say that he was building a case
of harassment against the Union.
2. Discussion and analysis
a. Implementation of the master schedule and failure to provide
requested information
The record discloses that Respondent, over the Union’s pro-
test, implemented a master schedule that had the effect of re-
ducing the hours of unit employees. Although Respondent ar-
gues that it was agreeable to accepting input from the Union on
the master schedule, the record is totally insufficient to support
the conclusion that Respondent has discharged its statutory
duty under Section 8(a)(5) to bargain with the Union.
The Respondent’s basic contention is that the contract’s
management-rights provisions constitute a waiver of any bar-
gaining obligation it might otherwise have had to the Union.
Specifically, Respondent argues that it had the right, as pro-
vided in article 8, section 1 of the contract, to “direct, control
and schedule its operations and work force . . . .”
As a matter of Board and court law, any waiver of the Un-
ion’s right to bargain over changes in wages, hours, and terms
and conditions of employment must be clear and unequivocal.
South Florida Hotel Assn., 245 NLRB 561, 567 (1979), enfd. in
pertinent part 751 F.2d 1577 (11th Cir. 1985). The record dis-
closes no such waiver.
This record makes it clear that the scheduling change had the
direct, necessary, and immediate result of reducing the work
hours of unit employees and thus became a mandatory subject
of bargaining. The Employer was not free to unilaterally im-
plement such changes without first negotiating the matter with
the Union.
Although it could be argued that the Union has waived its
right to bargain over any scheduling of the work force that did
not affect wages, I am not satisfied that the provisions of article
8 are sufficient to constitute a clear and equivocal waiver when
the changes in scheduling have the direct impact on the unit of
reducing their wages.
With respect to the refusal to furnish information, Respon-
dent argues that as it had no duty to bargain over the master
schedule, it had no obligation to bargain over the Union’s re-
quest for information related to the master schedule. As I have
concluded that a bargaining obligation did exist, this argument
must fail. Respondent also contends, however, arguendo, that it
did satisfy its duty to provide information to the Union. I do not
agree.
Letters were sent to the Union on April 26 requesting certain
information. There was never any written response providing
the information requested. The same is true concerning the
Union’s request for information by letter dated July 17. Re-
spondent contends that some of the requested information was
privileged, some of it not available in the form requested, some
of it already furnished, and some was available to the Union
from other sources. In my opinion, the information being
sought was relevant and necessary to the Union in the perform-
ance of its duty as collective-bargaining representative of unit
employees both in evaluating the master schedule proposal and
in processing the subsequent grievance. Indeed, much of what
was sought must have been reviewed by Respondent in deter-
mining their staffing needs so as to formulate the master sched-
ule.
In short, Respondent had a duty to provide whatever infor-
mation the Union requested that was relevant and necessary for
the Union to discharge its bargaining obligation to unit employ-
ees. The information sought by the Union was such information
and, to the extent that Respondent failed to provide such infor-
mation, it violated its bargaining obligations under Section
8(a)(5) of the Act.24

24 The record indicates that certain staffing schedules may have been
provided to calculate backpay when the parties resolved this matter in
September 1989 and that other information sought by the Union was
disclosed in documents subpoenaed by the Union and the General
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 184
b. Failure to comply with contractual grievance and union
membership provisions
The record discloses that after grievances were filed at step
2, Cimbalnik would often respond in writing to the grievance.
As set out above, the contract appears to contemplate a meeting
to discuss the grievance unless mutually agreed otherwise. The
record also discloses, however, that while Cimbalnik did not
call for step 2 meetings, he did not refuse to participate in such
meetings whenever requested to do so by union officials. But
the contract is silent on who, if anyone, has the obligation to
call for a meeting. To conclude that Cimbalnik violated the Act,
in circumstances whether neither party was obligated under the
contract to call for a meeting and where Cimbalnik participated
in those meetings requested by the Union, is not warranted.
Regarding the membership information, it is undisputed that
the contract required the Employer to provide the membership
information set out in article 7, paragraph 5 of both the LPN
and service and maintenance employee unit contracts. The re-
cord fully supports the conclusion that a request for the infor-
mation was made to Cimbalnik, that except for a 1-month pe-
riod it was not provided, and that the contractually mandated
information was not provided until the spring of 1990. In these
circumstances, I conclude that Respondent violated Section
8(a)(5) of the Act by failing to furnish the information.
c. Threats of legal proceedings
The complaint alleges that on July 17 and August 10 Cim-
balnik threatened Thomas and Miller, respectively, and that on
July 24 Walley threatened Miller with legal proceedings be-
cause of their grievance filing activities.
With respect to the Walley incident on July 24, it appears
that Walley, out of concern for her reputation, advised Miller
that if the letters threatened her license, she would take legal
action. In my opinion, given the nature of the letters involved,
particularly those distributed to patients’ families during the
picketing, Miller was expressing a legitimate concern for her
professional reputation and status. Such a statement does not
constitute a threat to Miller for filing any legitimate grievances.
Concerning the July 27 conversation, Cimbalnik was handed
a grievance by Thomas, which, in essence, accused Cimbalnik
of willfully miscalculating and deducting union dues and inten-
tionally overdeducting for full timers and underdeducting for
part-timers. Cimbalnik responded by objecting to these charac-
terizations and remarked that if the accusations were not
proved, he could sue for libel, and the grievances themselves
would be proof. Thomas then decided to change the grievances
and refile them, adding the words “in our opinion.” In my opin-
ion, Cimbalnik’s reaction was simply an expression of concern
that his integrity was being impugned and observing to Thomas
that the grievance itself would show that. There was no evi-
dence that Cimbalnik made any effort to discourage Thomas
from filing these or any other grievances and thus no violation
of Section 8(a)(1).
Turning to the August 10 incident, as set out above in greater
detail, Cimbalnik, on being presented with two grievances,
expressed his view that management was being harassed with
the filing of grievances and that he was building a case of har-
assment against the Union. In my opinion, this allusion by
Cimbalnik to building a case of harassment is insufficient as a

Counsel. Even if this were true, this would affect only the remedy and
would not justify a dismissal of the allegations.
matter of evidence, and does not rise to the level of establishing
the allegation set out in the complaint that Cimbalnik threat-
ened legal action because of the filing of grievances.
E. Danbury Pavilion Health Care Facility,
Danbury, Connecticut
Statement of the Case
The complaint, based on charges filed by New England
Health Employees Union, District 1199/S.E.I.U., AFL–CIO
(the Union or the Charging Party), alleges that Respondent, at
its Danbury Pavilion Health Care facility, violated Section
8(a)(5) of the Act by unilaterally, without notice to or consulta-
tion with the Union, ceasing to pay “short pay” to licensed
practical nurses from February 2 to March 2, 1989. A hearing
on this allegation was conducted before the administrative law
judge on March 4, 1992, in Hartford, Connecticut.
1. The alleged unfair labor practices
a. Facts
The parties stipulated that at all times relevant, prior to No-
vember 1, 1990, Respondent leased and operated the Danbury
Pavilion Health Care facility at Danbury, Connecticut. It was
further stipulated that on October 28, 1988, the Union was cer-
tified by the Board to represent a unit of the full-time and regu-
lar part-time licensed practical nurses and registered nurses at
Danbury and that negotiations begun in November 1988 led to
a contract effective March 21, 1989, which was followed by
another contract effective November 1, 1989,25 until October
21, 1992.
Respondent’s facility consisted of five wings on two floors.
These were designated as wings A and B on the first floor and
wings C, D, and E on the second floor. Wing E consisted of
four rooms of wing C and four rooms of wing D. Wing B was
the medicare wing and because of federally mandated medicare
regulations, it was necessary to staff the B wing with two
nurses on each shift. With respect to scheduling, it appears on
the 7 a.m. to 3 p.m. shift, here in issue, that normally, except
for the B wing, one nurse was assigned to each of wings A, C,
D, and E.
It is undisputed that there was in effect, at all times relevant,
a written company policy. With respect to the 7 a.m. to 3 p.m.
shift, it reads:

SHORT STAFFED
THERE WILL BE SIX NURSES COVERING FOUR UNITS
DURING THE WEEKDAYS. IF, DUE TO ABSENTEEISM, THERE
ARE ONLY FIVE, THE NURSES WHO WORK THE UNIT FOR THE
ABSENTEE NURSE WILL RECEIVE TIME AND ONE HALF FOR
THAT SHIFT. THIS APPLIES TO THE 7 TO 3 SHIFT.

The record discloses that it had been Respondent’s policy,
long prior to the advent of the Union, to compensate nurses,
both RNs and LPNs, with “short pay” whenever absenteeism
reduced their numbers from six to five on the “day” or 7 a.m. to
3 p.m. shift. For example, Gail Palumbo, a LPN on the day
shift, testified that whenever it was necessary because one of
the two nurses required on the B wing was absent and a nurse
was reassigned to the B wing from another wing, those nurses
left to do the additional work, would receive time and one-half
for the hours they were so engaged. There were many ways in
25 All dates refer to 1989 unless otherwise indicated.
BEVERLY CALIFORNIA CORP. 185
which absenteeism could reduce the number of nurses from six
to five, but it appears that whenever this happened, those nurses
doing the additional work were paid at time and one-half for
those hours.
On or about February 2 Respondent reduced the hours of the
E wing nurse on the day shift. Instead of a full shift, a nurse
was employed from either 8 until noon or 1 p.m., with the re-
mainder of the day-shift hours on E wing being covered by
other day-shift nurses on other wings. It is undisputed that this
reduction in hours lasted until about early March and that dur-
ing this period of time short pay was not paid.
On February 15 it appears that one of the day-shift LPNs
called Barbara Stoltman, union representative, and complained
to her that she had not been paid the short pay to which she was
entitled. Stoltman contacted John Dettl, Respondent’s labor
relations negotiator, on or about February 28 and told him that
Respondent was not entitled to make such unilateral changes in
the wages of employees without discussing it with the Union
and that she intended to file an unfair labor practice charge over
it. Dettl said that he was unaware of any “short pay” policy at
Danbury and suggested that they discuss it during negotiations
for a first contract that were then in process.
Later in February, two other LPNs complained about not be-
ing paid short pay and timecards in evidence show that they
were denied short pay for various periods during the timeframe
of February 2 to March 9.
Mary Ferraro, the Administrator at Danbury testified that she
had assumed the administrator position on January 19 and that
she was unaware of any short pay policy until the matter was
raised by the Union. She testified, however, that it was her
position that the short pay policy did not apply for periods of
less than an entire shift. Ferraro also testified that she did not
know why these individuals were not paid short pay; that she
was not involved in that decision; and that the decision had
been made by a payroll clerk, unbeknownst to Ferraro. That
individual did not appear to testify, however, nor did anyone
else employed by the facility testify about the short pay policy
or its application.
Wayne Chapman, who was then vice president for human re-
sources for the eastern division of Beverly succeeded Dettl in
early March and was primarily responsible for negotiating the
March 21 contract. Chapman testified that he was unaware of
the short pay policy at Danbury until March 1989. Further, that
he regarded the matter as a simple reallocation of hours that
Respondent was entitled to put into effect without consulting
the Union and that did not trigger the payment of short pay.
The matter was resolved in early March when short pay was
resumed and a provision was inserted into the contract provid-
ing “Weekday bargaining unit employees shall receive time and
one-half for working short.”
b. Discussion and analysis
Respondent argues that it was not obliged to bargain with the
Union because it had not changed the circumstances under
which short pay was paid. Respondent argues that the policy
applied only when a day-shift nurse worked shorthanded for an
entire shift because of absenteeism, which Respondent defines
as the physical absence of a nurse from the facility. Neither of
the Respondent’s two witnesses were even aware of the policy,
however, until this incident was called to their attention, and
neither offered evidence to substantiate this position. Moreover,
the entire record supports the conclusion that short pay was
paid for less than an entire shift and that it was paid in circum-
stances other than absenteeism caused by the failure of sched-
uled nurses to report to work.
Respondent also argues that it was not required to bargain
the issue because it was a simple scheduling change and that it
was a prerogative of management to make such changes with-
out bargaining with the Union. Even though a scheduling
change reducing hours on the E wing on the day shift may have
triggered the short pay policy, however, this does not relieve
the Respondent of its obligation under Section 8(a)(5) of the
Act to discuss the matter with the Union when, as here, the
record discloses payment of short pay whenever nurses covered
the E wing in the absence of a nurse on that wing.
In short, Respondent, prior to the advent of the Union, had in
place a written policy concerning “short pay” on the 7 a.m. to 3
p.m. shift, as set out above. This policy had been followed in
the past and had been interpreted so that nurses on the 7 a.m. to
3 p.m. shift were paid at time and one-half for the hours they
worked shorthanded, even if it were less than an entire shift,
and specifically it was paid whenever the absence of a nurse on
E wing required coverage by other nurses.
It is equally clear that there was a departure from this policy
in February and March 1989. The timecards in evidence make
it clear that the overtime requested for the licensed practical
nurses was rejected.
It is not disputed that the Union was not notified or consulted
concerning this matter. As the record discloses that short pay
was paid in these circumstances in the past, clearly, the unilat-
eral discontinuance of this wage policy, without notice or con-
sultation with the Union, constitutes a refusal to bargain within
the meaning of Section 8(a)(5) of the Act.
F. West Haven Nursing Facility, West Haven, Connecticut
Statement of the Case
The complaint alleges that Respondent violated Section
8(a)(1) and (5) of the Act by failing and refusing to furnish, on
request by New England Health Care Employees Union, Dis-
trict 1199/S.E.I.U., AFL–CIO (the Union or the Charging
Party), certain information necessary and relevant to the Un-
ion’s performance of its function as the collective-bargaining
representative of unit employees represented by the Union un-
der contract.26
1. Facts
At the time Respondent purchased the West Haven Nursing
facility in 1987 the Union represented under contract a unit of
full-time and regular part-time LPNs and nonsupervisory RNs
at the facility. That contract was effective November 2, 1986,
through November 1, 1989, which covers the time period rele-
vant herein. Among those excluded from the unit were part-
time employees who work less than 8 hours per week, tempo-
rary employees, and supervisors as defined in the Act.
Respondent purchased the West Haven facility January 1,
1987, and agreed, in writing, to assume the terms and condi-
tions of the collective-bargaining agreement then in effect. That
contract contained a union-security provision requiring unit
employees to become union members within 30 days of their
employment, and a checkoff provision providing for remitting
dues to the Union.

26 At the hearing Respondent amended its answer to admit the super-
visory allegations of the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 186
It appears, however, that despite these provisions, as of
January 1989,27 there was only 1 LPN of a total of about 26
LPNs and RNs at the facility for whom dues were being
checked off. The Union contends that about 5 or 6 LPNs and
about 15 RNs were not supervisors and belonged in the contract
unit. It further appears that the problem had been caused by
Respondent hiring nurses from employment agencies as “inde-
pendent contractors” and classifying them as nonunit employ-
ees, not subject to the union-security or dues-checkoff provi-
sions therein.
On March 14, 1989, Barbara Stoltman, union organizer, by
letter to West Haven Administrator Pam Miller protested the
hiring of RNs and LPNs without affording them contact cover-
age and asked for a meeting.
On May 15, by a letter agreement from Wayne Chapman,
supervisor human resources, to Stoltman, it was agreed to in-
clude the “independent contractor” nurses in the contract unit.
The letter agreement states in this regard, “The Company
agrees that they will become covered by the Union agreement
provided they qualify based upon hours worked and their job
classifications is part of the bargaining unit.”
The matter was not resolved, however, because Respondent
continued at various meetings in May to deny contract coverage
to the “independent contractors” primarily RNs, on the grounds
either that they did not work a sufficient number of hours to
qualify as “full-time” or “regular part-time” unit employees, or
they were supervisors excluded by job classification. It was
Respondent’s position that all of the RNs were supervisors so
that none were unit employees covered by the contract.
On or about June 1, Mary Ann Allen, the union organizer
who succeeded Stoltman, and Roxanne Maynard, a union dele-
gate at facility,28 attended a meeting with Miller. Maynard gave
Miller a list of all the RNs and LPNs the Union regarded as unit
employees. Maynard also requested a list of all of the regularly
scheduled LPNs and RNs, their addresses, and rates of pay
currently employed at West Haven. That information was not
forthcoming, and on June 8, Allen wrote as follows:

Our Union delegate, Roxanne Maynard, personally
met with you on June 1, 1989 requesting a list of names,
addresses and rates of pay for all current, regularly sched-
uled R.N.’s and L.P.N.’s who work at West Haven Nurs-
ing Facility.
To date you have failed to make this information
available to the Union. Yourself and Sue Briggs, as well as
other management personal [sic], have been informing
R.N.’s and L.P.N’s that they do not have to join the Union.
This is a direct violation of our Contract Article 1 Recog-
nition, and also basis for unfair labor charges.
All R.N.’s and L.P.N.’s who are scheduled at least
eight hours weekly are part of the bargaining unit.
We thought this issue was re solved in May thru our
agreement with Mr. Wayne Chapman. It is apparent by
your failures that the issue is not settled. Your failure to
submit to the Union Records of newly hired bargaining
unit members, your failure to inform new employees that

27 All dates refer to 1989 unless otherwise indicated.
28 Delegates were employee representatives elected by the unit em-
ployees and functioned essentially as shop stewards. There were about
four delegates at West Haven. Maynard was a delegate not in the RN-
LPN unit, but in a unit of service and maintenance employees, also
represented by the Union under contract.
they must join the Union and inform them of the benefits
they are entitled to under the contract, and your failure to
deduct and submit Union dues for these members, is a di-
rect violation of our Bargaining Unit Agreement and a vio-
lation of Labor Laws.

At a meeting on June 12, the issue was raised by Allen again.
Respondent was represented by Jay Begley, human resources
representative assisting Chapman, and Mark McCarroll, area
manager, and Miller. Respondent again took the position that
all the RNs were supervisors not covered by the contract.
Allen observed that the previously requested information had
not been provided so that the Union’s position was based on the
only source of information available to it, namely, employee
work schedules, which showed that these employees belonged
in the contract unit. She requested that the Respondent, if they
had information that showed otherwise, should provide it. It
was agreed to meet again with Chapman.
A meeting was held on June 16 with Chapman. Respondent
maintained its basic position that all the RNs were supervisors
and not unit employees, but he agreed to investigate and discuss
the matter again.
Subsequent efforts to resolve the matter with Chapman were
unsuccessful and on June 28, the Union filed an unfair labor
practice charge with the National Labor Relations Board, later
amended on August 10.29
Miller discussed the matter with Respondent’s labor attor-
ney, who instructed her not to provide the information that had
been requested but, instead, to provide a partial list of RNs and
LPNs and to maintain the position that even as to those on the
list submitted, Respondent was taking the position that they
were not unit employees; and by letter to Allen dated August
25, Miller provided to Allen a list of 11 names, addresses, and
rates of pay. The pertinent portion of the covering letter reads
as follows:

Enclosed please find name, address and rate of pay in-
formation with regard to the list of RN’s and LPN’s as per
your request.
We are providing you with this information, however,
it is our opinion that these individuals are employed in a
supervisory capacity at the West Haven Nursing facility.

It appears that the matter was resolved as a part of negotia-
tions for a new contract in October 1989.
2. Discussion and analysis
It is axiomatic that an employer has the obligation under
Section 8(a)(5) of the Act to furnish, on request by the collec-
tive-bargaining representative of its bargaining unit employees,
that information necessary and relevant to the Union’s collec-
tive-bargaining function.
In this case, an issue arose between the parties about whether
or not certain RNs and LPNs were included in the contract unit
in circumstances when they were hired through employment
agencies.
In May, Respondent agreed to the general proposition that
those employees hired by Respondent as “independent contrac-
tors” were covered by the contract, but continued to maintain
that even so, they should be excluded from the unit either be-
cause they worked less than the number of hours required for
inclusion within the contract unit, or because they had supervi-
29 A union grievance on this issue was filed on July 10.
BEVERLY CALIFORNIA CORP. 187
sory status. In order to better evaluate this contention, the Un-
ion, by Maynard on June 1 and later reiterated by letter from
Miller on June 8, sought a listing of names, addresses, and rates
of pay for the current regularly scheduled RNs and LPNs at the
facility.
This information was not furnished in any form until after
the unfair labor practice charge was filed, and even then, it was
incomplete.
In my opinion, the information requested was relevant to the
Union’s function as the collective-bargaining representative of
the contract unit employees. The basic issue was whether or not
Respondent was employing contract unit employees without
affording them union coverage as a part of the contract unit.
The Union was seeking basic information for the purpose of
intelligently pursuing the issue.
Unlike Respondent, I do not deem it significant that the
original request was made by Maynard, who was a delegate
from a different contract unit. There can be no doubt based on
this record, particularly Allen’s followup letter to Miller on
June 8, that Respondent was aware that this information was
being sought by the Union pursuant to its effort to resolve the
independent contractor in issue involving the RN-LPN unit.
Respondent argues that the request for information was am-
biguous and equivocal. This was not the case. Even assuming
that Respondent may have entertained some doubt about what
information was originally requested by Maynard at the June 1
meeting, any doubt was clarified by subsequent meetings be-
tween the parties, and particularly by Allen’s June 8 letter to
Miller wherein Allen was specific about the information being
sought.
Respondent also argues that the request for information was
somehow lawful because it was subordinate to the primary
discussions about the supervisory status of RNs. This is an
artificial distinction. The information sought was basic to the
entire issue. Respondent, after agreeing that independent con-
tractors were covered by the contract, neutralized that conces-
sion by continuing to seek their exclusion from the unit, either
as part-timers or supervisors, and the information requested was
certainly germane to the basic issue of their status as unit em-
ployees.
Finally, Respondent contends that failure by the Union to
follow up its request legitimized Respondent’s failure to pro-
vide the information. I disagree. The request, once made, was
never withdrawn or abandoned and was, in fact, subsequently
renewed. When it was not provided an unfair labor practice
charge was filed based on that refusal.
In summary, the information requested is clearly necessary
and relevant to the Union’s function as collective-bargaining
representative of the unit employees and Respondent’s refusal
to furnish that information constitutes a violation of Section
8(a)(5) of the Act.
G. Mark Twain Hospital Facility, San Andreas, California
Statement of the Case
The complaint, on a charge filed by Gladys Hahn, an indi-
vidual, was issued on August 20, 1991, alleges that Respondent
unlawfully caused Hahn’s discharge by instructing Med Pool,
an employment agency providing medical personnel, not to
refer Hahn for employment. The complaint further alleges that
Respondent interfered with Hahn’s employee rights under Sec-
tion 8(a)(1) of the Act by instructing her to “cease involving
other employees in her complaints about Respondent’s system
of providing supplies for its employees and the negatives ef-
fects that supply system was having on employees’ working
conditions.”
1. Facts
a. Joint employer
Respondent operates a skilled care nursing facility at San
Andreas, California, called the Mark Twain Hospital facility.
The facility operates on three shifts; 7 a.m. to 3 p.m. (days), 3
p.m. to 11 p.m. (p.m.), and 11 p.m. to 7 a.m. (midnight). Hahn,
a LVN was referred to Mark Twain by Med Pool, a medical
personnel agency in the business of providing temporary medi-
cal service employees to various medical and nursing facilities,
including Mark Twain. It appears that Med Pool was reim-
bursed by Respondent for the services of those individuals re-
ferred. It was Med Pool who set the wage schedules and paid
the referred employees. Med Pool also made appropriate pay-
roll deductions from the wages of the employees being referred.
It appears that the practice had been for the facility to advise
Med Pool on a monthly basis, whatever shifts needed to be
filled. Med Pool would contact Hahn, who would choose some
20 shifts, almost exclusively the night shift. While employed at
the facility, it was the facility rather than Med Pool who deter-
mined the working conditions of those referred, including
shifts, work schedules, and hours. Med Pool referrals, including
Hahn, operated under the policies and procedures established
by the facility and, while employed, they were subject to super-
vision by facility management.
b. Hahn’s supervisory status
During the period from November until February 1989,
Hahn worked, as noted above, approximately 20 days per
month on referral from Med Pool to the Mark Twain facility.
With few exceptions, she worked exclusively on the night shift,
and always as charge nurse. Hahn testified that as charge nurse
on the night shift, she was the highest authority and the only
licensed nurse at the facility during that shift. She was respon-
sible for the care of all of the approximately 98 patients at the
facility for the duration of that shift. In the event some extraor-
dinary problem arose, it would be necessary for Hahn to tele-
phone the DON or the administrator at their homes. The night
shift also employs some three or four CNAs.30 Hahn testified
that it was her responsibility to supervise the work performed
by the CNAs and that they reported to her. Further, that she had
the authority to discipline the CNAs although she did not exer-
cise that authority during the 4 months she worked at the facil-
ity. With respect to the matter of her authority, it appears that
Hahn directed the nursing assistants in the performance of their
patient care duties. Hahn also testified that she had the author-
ity, which she exercised, to reassign CNAs from one wing to
another or from one job to another, as well as to work through
or rearrange breaks and lunch periods of CNAs so as to ensure
that patient coverage was maintained at those times and that the
necessary work was being performed.
With respect to the matter of overtime, it appears that Hahn
had the authority on her own initiative, without prior approval,
to authorize overtime work and initialed timecards indicating

30 The Union represents, under contract, effective November 1,
1989, through September 1, 1991, a unit of service and maintenance
employees, specifically including CNAs, but specifically excluding
LVNs and RNs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 188
approval of overtime. Sometimes this would occur on occa-
sions, perhaps twice a week, when Hahn arrived at the facility
shortly before the start of the night shift to discover an absent
CNA.31 At such times, Hahn would, when necessary, take it on
herself to solicit a CNA on the departing shift to stay over to
work a double shift. It also appears from the facility’s pay re-
cords that Hahn, as well as other charge nurses, authorized
overtime for lesser periods of time than an entire shift, as the
job required. Hahn was paid an hourly rate of $16.50 an hour,
plus travel expenses, while nursing assistants were paid about
$5 an hour.
Jane Powell, a LVN charge nurse, who had been DON at the
facility until October 1989, basically corroborated Hahn’s tes-
timony concerning the authority of the charge nurse LVN.
Powell testified that Respondent employs at least one licensed
nurse, either an RN or LVN, on each shift and that an RN is
required day shift. The charge nurses may be either RNs or
LVNs. Powell testified that charge nurses have the authority to
allow CNAs to leave work early and when necessary direct
them to work through their lunch hours. In addition, Powell
testified, and company records in evidence show, that charge
nurses participate in annual and probationary (90 days) written
evaluations of CNAs, and also exercise the authority to issue
written disciplinary warnings to CNAs on their shifts.
The record also discloses that the contract in effect during
Hahn’s employment also authorized charge nurses, presumably
including Hahn, to hear and settle employees’ grievances with-
out consulting higher authority. Although the record does not
disclose that Hahn actually settled any grievances in this way
during the short time she was employed, the contract gives her
that authority.32
c. The 8(a)(1) and (3) allegations
Facts—Hahn’s Concerted Activity and the 8(a)(1) Allegation
The record discloses that in September 1990, Respondent
changed its medical supply procedures to a centralized supply
operation. The LPNs were given keys only to satellite supply
cabinets but had no keys to the central supply cabinet that
stored a larger inventory, as they had in the past. In late Janu-
ary, Hahn experienced a problem in obtaining keys to the cen-
tral supply cabinet. She was trying to locate a doctor-prescribed
feeding tube. Therefore, on Powell’s advice, Hahn used a sub-
stitute tube that was available. A couple of days later, she
needed a particular formula that was located in the central sup-
ply cabinet and had to call Administrator Joe Stynes at home to
come in with the keys to obtain the formula. Later in the day,
Hahn complained to some nurses coming on to the day shift
about the supply problem and they advised her that they, too,
were having a problem on the day shift because only Stynes
and Office Manager Debbie Thomas had the keys to central
supply.

31 The shifts overlapped by 15 minutes to provide orientation for the
charge nurse on arriving shifts.
32 At the time the collective-bargaining agreement was introduced
into evidence, the General Counsel raised a question about whether or
not the agreement was in effect during the time period relevant to the
complaint. He conducted voir dire thereon, apparently satisfied himself,
and expressed on the the record that he had no objection to admission
of the contract (R. Exh. 2). Accordingly, and in view of the supporting
record testimony on this issue, the General Counsel’s contention made
in its brief, that the contract lacks relevance because it was not actually
signed until July 1990, is rejected.
On the night of January 31, Hahn had another problem locat-
ing a feeding tube in the size prescribed. There were none in the
satellite supply cabinet. This time, however, she decided not to
call Stynes but rather to sterilize and reuse a tube of the correct
size that had been discarded in a waste paper basket by a nurse
on the prior shift after a failed effort to feed a patient on that
shift. Hahn reassured the three CNAs working with her that this
would not adversely affect the patient.
Later into the night shift, Hahn wrote a note to Stynes read-
ing:

Dear Mr. Stynes,
I need a key to Central Supply. I do not have the time
to spend searching med carts and cabinets for supplies. I
have 98 patients that I’m responsible for their care and
they are important to me to give them my time instead
unlocking cabinets, digging in cupboards and than [sic]
not finding needed supplies. This has happened on several
occasions. I will be responsible for any missing items if
this seems to be the problem.

Sincerely,

Gladys M. Hahn LVN
Night shift

witnessed by Diana R. Clark cna
Duston Shadden cna
Patricia Lei cna

Hahn testified that she requested the three CNAs to sign the
note as witnesses because, “I felt, for my protection, though,
that it would protect myself as far as being responsible for these
patients that it needed witnesses.” Hahn then placed the note
under Stynes’ door.
The following morning, about 7 a.m., Stynes called Hahn to
his office and asked for an explanation of the note. Hahn ex-
plained to him the problem she was having with access to sup-
plies on the night shift and that the other nurses were having the
same problem with the central supply system.33 Stynes said that
the satellite system had worked at other facilities and that it was
implemented at the Mark Twain facility because of theft prob-
lems under the satellite system.
Hahn worked until February 8 but was not sent thereafter.
Actually, all the Med Pool shifts, including Hahn’s, for the
remainder of February were cancelled. Powell testified that it
was their intention to reduce expenses by using the facility’s
own employees. Most of the remaining shifts in February, for
which the facility had used registry nurses, were filled either by
facility employees or another referral agency. Powell’s unrebut-
ted testimony is that she offered Hahn a job as a full-time em-
ployee at this time but that Hahn declined, saying that she could
make more money being referred by Med Pool.
2. Analysis and conclusions
a. Joint employer
In determining whether the Respondent together with Med
Pool comprise a a joint employer under the Act, the Board has
concluded that no single factor is controlling and that the “es-
sential terms and conditions” of the relationship must be re-
viewed in determining joint employer status. As the Board
33 None of these individuals appeared as a witness at the hearing.
Hahn was the only witness called by the General Counsel.
BEVERLY CALIFORNIA CORP. 189
concluded recently in Pitney Bowes, Inc., 312 NLRB 386, 387
(1993):

The Board will find that two separate entities are a joint em-
ployer when they share or codetermine those matters govern-
ing the essential terms and conditions of employment. Raw-
son Contractors, 302 NLRB 782 fn. 6 (1991). To establish
joint employment status, there must be a showing that the
employer meaningfully affects matters such as hiring, firing,
discipline, supervision or direction; routine or minimal super-
vision of employees is insufficient to support a joint employer
claim. Laerco Transportation & Warehouse, 269 NLRB 324,
325–326 (1984).34

Respondent contends that it had no meaningful role in deci-
sions regarding hiring, firing, discipline, or supervising the day-
to-day direction of Hahn’s work. I disagree. Although Med
Pool registrants were first prescreened, then referred and paid
by Med Pool, it was Respondent who requested their employ-
ment and reimbursed Med Pool for their wages. Those referred,
including Hahn, were accountable to the Respondent for adher-
ing to whatever regulations, working conditions, work rules,
practices, policies, and supervision were in effect at the facility.
See Continental Winding Co., 305 NLRB 122 (1991). In my
opinion, the extent of Respondent’s involvement in the essen-
tial terms and conditions of the employment relationship satis-
fies me that Respondent together with Med Pool constitute a
“joint employer” under the Act, and that Hahn was employed
by this joint employer.35
b. Hahn’s supervisory status
The protection of the Act against discrimination by employ-
ers is limited to those individuals who are nonsupervisory em-
ployees. In order to determine who are supervisors, and thus
excluded, the Act sets out in Section 2(11) a definition setting
forth the criteria to be used in deciding that issue. It reads:

(11) The term “supervisor” means any individual hav-
ing authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the forego-
ing the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent
judgment.

It appears that the Board, in developing the concept of what
constitutes a supervisor in the health care industry, has con-
cluded that a nurse’s duties in directing aides in the exercise of
professional judgment related to the delivery of treatment to
patients is not authority exercised in the interest of the em-
ployer so as to confer supervisory status under Section 2(11) of
the Act. Ohio Masonic Home, 295 NLRB 390 (1989); Presby-
terian Medical Center, 218 NLRB 1266 (1975). Although this
approach has been approved in some U.S. Circuit Courts of

34 In a footnote, Member Raudabaugh agrees with the result, but
would consider “all” terms and conditions of employment as well as
essential ones.
35 Respondent contends that General Counsel’s failure to join Med
Pool as an indispensable party in this case justifies its dismissal. This
contention was raised by Respondent in a motion to dismiss at hearing.
The motion was denied at the time and and is reaffirmed herein.
Appeal,36 it has been repeatedly rejected by the Sixth Circuit,
which forum has concluded, essentially, that the business of the
employer is patient health care and that nurses necessarily “act
in the interest of the employer” when they direct subordinates
in the delivery of patient health care.37
In the instant case, Hahn alone supervised the entire work
force of nurses at the facility on the night shift. There was no
higher authority on the premises. She granted time off. She
authorized overtime. She rearranged rest breaks and meal
breaks to cover the patients. She possessed the authority to
resolve grievances under the contract. Like other charge nurses,
she had the responsibility to prepare probationary and annual
work performance evaluations, and she had the authority to
issue written disciplinary warnings to CNAs.
In Northcrest Nursing Home, 313 NLRB 491 (1994), a re-
cent representation case involving the same Employer as the
instant case, the Board undertook a comprehensive analysis of
the charge nurse/supervisor issue. Like the instant case, the
LPNs were employed as charge nurses at one of the Respon-
dent’s nursing home facilities located in Ohio. The Board on
the facts of that case concluded that LPN charge nurses were
not supervisors. The Board reviewed and rejected those factors
that suggested that any of the indicia of supervisory authority
had been met. Those factors reviewed included the assignment
and direction of nurses aides by the charge nurses, discipline by
charge nurses, personnel evaluations by charge nurses, ratio of
charge nurses to employees, and the fact that at times charge
nurses are the highest ranking personnel at the facility. Other
indicia of supervisory authority rejected by the Board include
the fact that most charge nurses are paid twice as much as aides
and are provided with twice as much life insurance.
Whatever conflict or conformity may have existed between
the holdings of the Board and the holdings of the courts in the
various Circuit Courts of Appeal, the matter appears to have
been put to rest by the U.S. Supreme Court on May 23, 1994, in
NLRB v. Health Care & Retirement Corp., No. 92–1964. In that
case, in a five to four decision, the Court specifically rejected
the Board’s position taken in Northcrest Nursing Home, supra,
that nurses directing aides in the delivery of health care services
to patients were not exercising authority in the interest of the
employer, and hence are not supervisors within the meaning of
Section 2(11) of the Act. In rejecting the Board’s holding, the
Court, at page 6, alludes to its holding in NLRB v. Yeshiva Uni-
versity., 444 U.S. 672 (1980), a case in which the Court had
reversed a holding by the Board that faculty members were not
managerial because they “exercised [authority] in the faculty’s
own interest rather than in the interest of the University.” The
Court states:

The Board’s reasoning fares no better here than it did in Ye-
shiva. As in Yeshiva, the Board has created a false dichot-
omy—in this case a dichotomy between acts taken in connec-
tion with patient care and acts taken in the interest of the em-
ployer. That dichotomy makes no sense. Patient care is the
business of a nursing home, and it follows that attending to
36 For example, NLRB v. Res-Care, Inc., 705 F.2d 1461 (7th Cir.
1983); Misericordia Hospital Medical Center v. NLRB, 623 F.2d 808
(2d Cir. 1980); NLRB v. Walker County Medical Center, 722 F.2d 1535
(11th Cir. 1984); Waverly-Cedar Falls Health Care Center v. NLRB,
933 F.2d 626 (8th Cir. 1991).
37 Beverly California Corp. v. NLRB, 970 F.2d at 1553; NLRB v.
Beacon Light Christian Nursing Home, 825 F.2d at 1079.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 190
the needs of nursing home patients, who are the employer’s
customers, is in the interest of the employer. See Beverly Cali-
fornia, supra, at 1553. We thus see no basis for the Board’s
blanket assertion that supervisory authority exercised in con-
nection with patient care is somehow not in the interest of the
employer.

Accordingly, given the exercise of the supervisory criteria
disclosed by this record, I conclude that Hahn was a supervisor
within the meaning of the Act and the Respondent did not vio-
late Section 8(a)(3) of the Act in discharging her. Likewise,
given Hahn’s supervisory status, those allegations that Respon-
dent interfered with any Section 7 employee rights within the
meaning of Section 8(a)(1) must also fail.
H. Beverly Manor Convalescent Hospital Facility,
Monterey, California
Statement of the Case
The complaint alleges, based on charges filed by Hospital
and Health Care Workers, Local 250, SEIU, AFL–CIO, CLC
(the Union or the Charging Party), that Respondent at its Bev-
erly Manor Convalescent Hospital facility located in Monterey,
California, violated Section 8(a)(3) of the Act by discharging
employees Shelly Jorgensen,38 Nelia Aldape, Carmelita Pan-
ganiban, and suspending Josie Tillman. Further, that Respon-
dent violated Section 8(a)(1) of the Act by certain misconduct,
including interrogation, threats, surveillance, solicitation of
grievances, and various other statements alleged to be unlaw-
fully coercive. Respondent’s answer was amended at the hear-
ing to reflect the affirmative defense that Tillman, Panganiban,
and Jorgensen are supervisors and thus excluded from the cov-
erage of the Act. The hearing was held before the administra-
tive law judge on April 1, 2, 3, 6, and 21, all in 1991, in Car-
mel, California.
1. The alleged unfair labor practices
a. Facts
(1) Supervisory status of Shelly Jorgensen, Josie Tillman, and
Carmelita Panganiban
Beverly Manor Convalescent Hospital, located in Monterey,
California, is a 99-bed skilled care nursing facility providing
24-hour-a-day health care to mostly elderly patients. The work-
day is divided into three shifts, 7 a.m. to 3:30 p.m., 3 to 11:30
p.m., and 11 p.m. to 7:30 a.m. The half-hour overlap accom-
modates a transition between shifts. The overall supervision of
the facility is the responsibility of an administrator. Below ad-
ministrator, the hierarchy consists of the DON an ADON.
On each shift, there are two nursing stations. Each of the two
nursing stations are staffed by either one or two charge nurses
who are either RNs, like Jorgensen, or LVNs, like Panganiban
and Tillman, and anywhere from two to six CNAs, depending
on the shift. On the day shift, there are two charge nurses on a
station, one is responsible for the desk, noting doctors’ orders
for patients, making medical appointments for the patient on
doctors’ orders, and keeping patient charts while the other is
charged with the responsibility of administering medications.
These responsibilities are interchanged between the two nurses.

38 Jorgensen has married, taken the marriage name of Guest, but will
be referred to herein as Jorgensen.
Charge nurses function either as the desk nurse or as the medi-
cations nurse as assigned by the DON.
All the RNs or LVNs employed at the facility work as charge
nurses, with the exception of a single RN who is the director of
staff development.
As noted above, Tillman and Panganiban are LVNs while
Jorgensen is an RN. All were hired by Respondent as charge
nurses and functioned in that capacity.39 Tillman normally
worked from 3 to 11:30 p.m. Panganiban and Jorgensen were
part-time employees with Panganiban working about 3 days a
week from 11:30 p.m. to 7 a.m. and Jorgensen working week-
ends from 3 to 11:30 p.m. although she sometimes worked
additional shifts. It is undisputed that all were hired as charge
nurses.
With respect to patient care, the charge nurse has the author-
ity to assign CNAs to individual patients and also the authority
to coordinate with charge nurses at the other nursing station to
transfer CNAs to provide sufficient overall coverage at both
nursing stations to cover nursing shortages. Charge nurses also
have the authority to call in replacements for CNAs who call in
absent prior to their shifts, and to use their own judgement in
selecting those replacements. Tillman testified that she had a
list of CNAs who usually worked overtime and called them as
replacements when the need arose.
The CNAs are entitled to a 30-minute lunchtime and two 15-
minute break periods per shift. The record discloses that it is
the responsibility of the charge nurses to assign lunchtimes and
to arrange the breaktimes among the various CNAs to insure
that patient coverage is maintained at those times.
With respect to the matter of discipline, Susan Chavis, ad-
ministrator, testified that the charge nurses have the authority to
issue written disciplinary warnings for misconduct occurring on
their shifts. Although Tillman, Panganiban, and Jorgensen testi-
fied that they neither had nor exercised such authority, Tillman
testified that she had written up a CNA for sleeping, however,
there was no management followup to her written writeup.
Regarding the other charge nurses, numerous written “Em-
ployee Disciplinary Reports” were made by them and were
introduced into evidence.
The record also discloses the work performance evaluations
were made by charge nurses appraising the work of the CNAs.
These “Nursing Assistant Evaluations” were used, together
with other factors, to determine if CNAs would be retained
after a probationary period and to evaluate performances for
annual wage increases.
It is undisputed that LVNs were paid $13 to $15 per hour
with RNs receiving somewhat more. Jorgensen was paid an
hourly rate of $21 per hour. CNAs were paid substantially less,
between $6 to $8 per hour. In the matter of vacations, LVNs
received 2-week vacation after a year of service while CNAs
received only 1 week.
39 Panganiban and Jorgensen were hired through South Bay Nursing
Pool, a referral service owned and operated by Respondent to staff
Beverly facilities in the area. It does not refer to other employers. Re-
spondent’s area manager sets the pay and fringe benefits for employees
referred by South Bay. Employees referred by South Bay receive a
higher wage rate but lack fringe benefits such as health care insurance.
Jorgensen and Panganiban opted for the higher hourly rate as referrals
from South Bay.
BEVERLY CALIFORNIA CORP. 191
(2) Discharge of Shelly Jorgensen and 8(a)(1) allegations
At all times relevant to these allegations, the administrator of
the Monterey facility was Ron Huber and the DON was Lynn
Hopkins. In November 1989, Jorgensen was hired at the Mon-
terey facility as a registered nurse for part-time employment.
Jorgensen was hired for Saturday and Sunday employment on
the 3 to 11:30 p.m. shift, but sometimes worked on other days
up to 30 hours per week.
Jorgensen testified that early in her employment, late De-
cember or early January, she was approached by Ophelia Mal-
lari, described as the receptionist at the facility, who told
Jorgensen that there was discontent among the Filipinos on the
staff because of what they regarded as discriminatory treatment,
and Jorgensen agreed but told Mallari that it would be better
not to discuss it at work. She agreed to call Mallari at home,
which she did that night. Mallari told Jorgensen about the prob-
lems, particularly the discrimination against Filipinos, and
wanted to hold a meeting at her house to discuss it. Jorgensen
felt that it would not be appropriate, as a licensed nurse, to
participate in such a meeting but agreed that she would not
disclose the information to anyone else.
About the same timeframe, Jorgensen met with Lita Rojas, a
LVN at the facility, at Rojas’ home. The subject of organizing
the licensed nurses, presumably RNs and LVNs, was explored.
In early January at the nurses station at the facility in a con-
versation with two CNAs, Janet Frank and Gregg Mapp, she
was told by Mapp that they were both supporting the Union and
that Local 250 had been contacted by Mapp. Further, that he
had spoken to a union representative and that they were going
to make an effort to organize the facility.
Sometime during the following week, on a weekday, Hop-
kins called Jorgensen at home about dinner time. Hopkins
asked Jorgensen if she could come down to the facility for a
meeting. Jorgensen explained that she was not able to come at
that time because of her children and family obligations.
Jorgensen asked if the matter concerned her professionally and
Hopkins said it did not. Asked if it was serious, Hopkins replied
that it depends on what you considered serious.
On the following Saturday before the start of the normal shift
at 3 p.m., Jorgensen’s husband took a call from Hopkins to the
effect that Jorgensen had been taken off the schedule and was
not to report to work. When Jorgensen received the message,
she called Huber to find out why she was not working. Huber
told her that Mallari had told him that she had discussed the
Union with Jorgensen and that Jorgensen had discussed the
Union with two other employees. He asked her if other em-
ployees were involved with the Union, and Jorgensen told him
that they were. Huber asked who they were, but Jorgensen re-
fused, saying that she did not have to tell him that. Huber
blamed her for the union activity at the facility, telling her that
she should have told him about it so that he could have stopped
it. He explained that it was Respondent’s position that licensed
nurses could not be in the Union. He went on to explain that in
order to work at the facility, she would have to participate in an
antiunion campaign and attend meetings held by Respondent to
learn about the Respondent’s philosophy about unions and that
licensed nurses did not belong in the Union. Jorgensen said that
she did not think that she had to attend those types of meetings.
Huber also told her that she could not work until she spoke to
Hopkins.
After speaking to Huber, she called Hopkins and asked why
she was removed from the schedule. Hopkins told her that she
had been involved with the Union and that before she could
come back, she would have to learn Respondent’s philosophy
about unions and have a counselling session with Huber. She
asked if she were fired and Hopkins told her she was not.
Jorgensen was never returned to the schedule, however.
Jorgensen also called Deborah Jackson, central supply su-
pervisor and staffing coordinator, who made up the work
schedules. Jackson told her that she had been told by Hopkins
to remove Jorgensen’s name from the schedule but did not
know why. Jorgensen testified that in a later conversation,
however, Jackson confirmed that she was taken off the sched-
ule because her union involvement violated Beverly policy.
Jackson testified to only one conversation with Jorgensen when
she told Jorgensen that she did not know why Hopkins had her
removed from the schedule. Jackson never denied telling
Jorgensen that she was removed from the schedule for union
considerations, however, and, having reviewed the entire re-
cord, I am satisfied that with respect to any conflict in their
testimony, Jorgensen was the more credible witness and that
she was told by Jackson that she was removed from the sched-
ule because of her union involvement.
Within a month of being removed from the schedule, Jorgen-
sen was offered full-time employment by Respondent, but de-
clined it because of other responsibilities.
Some months later, Jorgensen received a letter signed by
“Jim Wood, Human Resources Generalist,” dated March 23,
1990, inquiring about Jorgensen’s availability for employment.
Jorgensen called Wood and asked if this was some kind of a
joke, because she had been terminated because of her union
involvement. Wood said that he had heard she was terminated
for refusing to attend the meeting. Jorgensen asked about get-
ting a reference from Beverly. Wood declined, saying that she
was a supervisor and that as a supervisor engaged in union
activity, she was going to be sued by Beverly. Further, that the
facility had become a “mess” because of her. Wood also told
her to take the matter up with South Bay.
Jorgensen then called South Bay but reached a new em-
ployee who was totally unaware of the matter.
(3) Discharge of Nelia Aldape and 8(a)(1) allegations
Nelia Aldape was a CNA on the afternoon shift, working
from 3 to 11:30 p.m., the same shift on which Tillman was a
charge nurse. On June 24, 1991,40 Aldape was given a “Written
Warning” for an incident in which the daughter of a patient
complained about her mother’s treatment. Aldape felt that she
was not at fault and that the writeup was not justified. Thereaf-
ter, she began to consult with other employees to discuss their
dissatisfaction with their employment, especially the matter of
being issued disciplinary warnings without justification, and
explored with them their interest in obtaining union representa-
tion. Within a few days of being issued the written warning, she
and Tillman began to circulate a petition indicating that those
signing it desired union representation.
Shortly thereafter, Aldape contacted a representative of the
Union, and told him about the petition and signatures. She told
him that they wanted to be represented by the Union. He was
not encouraging, but a meeting of employees was scheduled for
July 12 at the offices of a travel agency operated by Aldape and
Panganiban. It was during this same time period that Julia
Michaels, ADON, testified that in a conversation with Chavis

40 All dates refer to 1991 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 192
about the organizational activity, Chavis told Michaels that they
would have to discharge Aldape and Tillman because of the
Union.
Previously, on or about July 5, Chavis had learned that a pe-
tition was being circulated at the facility and called Ronald
McKaigg, Respondent’s area manager, to bring the matter to
his attention and on Sunday, July 7, when McKaigg came to
visit the Monterey facility. A meeting was called for the after-
noon of July 7. Some 25 employees from the day and afternoon
shifts attended, as well as staff representatives, including
Chavis. McKaigg addressed those present, indicating that he
had been made aware that the employees at Monterey were
organizing, and he asked them why. He observed that he had
made himself available to the employees and that he would like
to have been notified. He asked them why they were starting
problems. Some employees voiced their displeasure at what
they regarded as the arbitrary issuance of written disciplinary
actions. Aldape specifically complained about her own warning
on June 24, to which McKaigg responded that it appeared to
him to be justified. McKaigg also told them that he did not like
unions and recited an incident occurring sometime ago wherein
he crossed a picket line and was later beaten up and had his car
vandalized. McKaigg testified that he did address the employ-
ees on July 7 and told them that he had heard about the petition
being circulated and could not understand it because Beverly
had a chain of command to follow with grievances, namely, to
the facility administrator and to the area manager. He said it
made no sense to organize and pay $40 a month union dues that
could buy a lot of groceries. He also reminded them of an 800
number that they could call with their problems. McKaigg testi-
fied that several employees aired their grievances, however, he
did not solicit them. He could not recall asking them why they
wanted a union or asking them to notify him if they had a prob-
lem.
Following McKaigg’s speech, Chavis testified that
McKaigg, in conversation with her concerning the circum-
stances of Aldape’s written warning of June 24, brought to her
attention that the patient abuse disclosed thereon was a dis-
chargeable offense and that Aldape should not have been given
only a written warning, but rather should have been suspending
pending an investigation to determine if discharge was war-
ranted. He directed her to follow up the matter. Chavis under-
took this action by soliciting a written statement from the pa-
tient’s daughter, concerning the incident. The statement, dated
July 8, reads:

To Whom it may concern,
Nelia Aldape has been rude and mean to my mother.
While left standing alone she broke her arm. Nelia stated,
“Too bad, she shouldn’t have been standing by herself.”
When my mother has asked her to hang up her clothes, she
has instead thrown them on the closet floor. She also has
stated that it wasn’t her job to help my mother, she was
only helping someone else out.
She has stated, “She doesn’t have to work at this job—
she has her own business, one being a travel agency.”

Chavis also told Janis Asfoor, director of nursing, that they
were reopening the investigation of the incident and that Asfoor
was to call Aldape and tell her that she was being suspended for
3 days pending an investigation. On July 12 Asfoor telephoned
Aldape at her home. Tillman, who was at Aldape’s house for a
union meeting set for later in the day, listened to the conversa-
tion on an extension phone. Tillman testified that Asfoor, while
advising Aldape about her suspension, admitted to Aldape that
the cause of the suspension was the fact that Respondent had
learned that she was engaged in an organizational effort.
Later in the day, on July 12, employees gathered in an office
at Aldape’s travel agency. It was then the union representative
gave Aldape authorization cards with the understanding that
they needed to get 30 or 40 cards signed by Monday, July 15.
Aldape and Tillman succeeded in obtaining signed authorized
cards from about 15 employees, which were submitted to the
Union.
Three days later, on July 15, Aldape returned to the facility
for her regular afternoon shift beginning at 3 p.m. On her arri-
val, she was directed to Chavis’ office. Tillman, the charge
nurse on the shift, was also there as was Bernice Anello, an-
other supervisor. At this meeting, Aldape was advised by
Chavis that she was being terminated because of the patient
abuse incident. Aldape was given a written “Recommendation
for Employee Termination” form showing a recommendation
for termination effective July 15. The form is without any re-
cital of specifics, only a box checked off stating termination for
“gross misconduct.”
The record discloses no evidence of prior warnings or disci-
plinary actions with respect to Aldape. Chavis testified that she
was unaware of any prior patient abuse complaints concerning
Aldape.
Later on July 24, Jay Laws, human resources representative,
came to the facility for a visit. During his visit, he held several
meetings with different groups of employees from the various
shifts. Laws testified that he had no specific recollections about
the meetings, except that he was able to testify that he did not
ask any employees why they wanted a union, nor even mention
the Union in his talks. Employee Alicia Nagtalon testified,
however, that Laws met with a group of some approximately
seven employees on July 25 or 26 about 10 p.m. and during that
conversation asked them why they were forming a Union. Rita
Carlos, another employee, responded that they needed protec-
tion from arbitrary writeups. Nagtalon testified that in respond-
ing to their concerns, Laws told them, in essence, that unions
were too much trouble in the health care business.
(4) Tillman’s suspension
After Aldape was given the written reprimand, noted above,
on June 25, both Aldape and Tillman circulated an organizing
petition among employees and sometime in late June, Asfoor
discussed with Michaels the role that Aldape and Tillman were
playing in the organizing drive. When Ron McKaigg came to
the facility and spoke to the employees on June 30, Tillman
was quite vocal in expressing her dissatisfaction with the work
environment, particularly about the unfair issuance of written
disciplinary warnings.
On July 9 Michaels called Tillman into her office. She told
Tillman she was going to have to issue a verbal warning, in
written form, for failing to timely arrange for a radiation treat-
ment for a patient pursuant to a doctor’s order. Tillman pro-
tested that it was not her responsibility to make those arrange-
ments because she was not the charge nurse on that shift; and
that, in fact, Michaels herself had been working as the charge
nurse on that day and so she had the responsibility.
On July 18, when Tillman reported to work at 3 p.m., she
was called into a meeting with Chavis, Asfoor, and Michaels.
At the meeting, she was advised by Chavis that she was being
BEVERLY CALIFORNIA CORP. 193
given a 3-day suspension, pending an investigation of the mat-
ter. After having investigated the matter, Chavis determined
that as charge nurse on that day, it actually was Michaels who
had the responsibility for arranging for patients’ radiation
treatments. Tillman was reinstated, with backpay, by Chavis on
July 22, the same day that Chavis gave Michaels a 3-day sus-
pension for blaming Tillman for failing to make arrangements
that were actually her own responsibility. Michaels did not
return to the facility after her suspension, apparently resigning
her position.41
(5) Panganiban’s discharge
Panganiban was hired by the DON at the facility as a regular
part-time LVN in January 1991. She was given and selected the
option of being employed as a pool nurse through South Bay at
a higher rate of pay without benefits. Thereafter, she had no
contact whatever with South Bay except that they issued her
paychecks.
When Aldape began her efforts to organize Respondent,
Panganiban signed the organizing petition that was being circu-
lated among the employees. She also attended a representation
case hearing on August 8, 1991, where she sat with Aldape.
Chavis also attended the hearing. Chavis was aware of Pan-
ganiban’s presence and they knew each other from contacts at
the facility.
Panganiban was scheduled to work on the following day,
August 9, but, because of an emergency in the family, she was
not able to work on August 9. She called the facility on the
evening of August 8 and advised them that she was unable to
come to work on August 9. Panganiban was next scheduled to
work on the p.m. shift on August 16. On August 16, however,
about 9:45 a.m., she received a telephone call from Asfoor,
telling her that she had been removed from the schedule and
replaced. Although Asfoor has a somewhat different recollec-
tion of the conversation, the substance was the same, to wit,
that Panganiban was being taken off the schedule. Panganiban
asked why she was being removed from the schedule and As-
foor told her that she would call her back. Asfoor did not call
Panganiban again, however.
About 5:30 p.m. on the same day, August 16, Panganiban
went to the facility. A “going away” party was being held for
Asfoor who was leaving the employ of the facility. At the party,
Panganiban approached Asfoor again in an effort to find out
why she had been removed from the schedule. Asfoor told her
that she could not explain it and that the only person who could
was Susan Chavis. However, Panganiban never sought an ex-
planation from Chavis. Panganiban was not returned to the
schedule. The record discloses no explanation for her removal,
and Respondent’s defense is only that as a supervisor, she was
not protected under the Act.
On or about September 21, Panganiban was contacted by
South Bay, asking if she would like her job back at the facility,
but Panganiban declined, saying that she would not feel com-
fortable there after her experience in being removed without
explanation from the schedule.

41 Although Michaels was called as a witness for the General Coun-
sel, she was not examined by the General Counsel concerning Till-
man’s discharge.
b. Analysis and conclusions
(1) Supervisory status of Shelly Jorgensen, Nelia Aldape, and
Josie Tillman
The Act, in Section 2(11), defines the term “supervisor” to
mean “any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or to
effectively recommend such action if, in connection with the
foregoing, the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.” Supervisors are not entitled to the rights afforded to
employees under the National Labor Relations Act and nor-
mally their discharges do not violate the Act.
With respect to the matter of the supervisory status of charge
nurses, the Board recently set out, in some detail, the relevant
considerations in determining supervisory status. In Northcrest
Nursing Home, supra, the Board, in a representation case in-
volving charge nurses employed by this Respondent at a nurs-
ing home facility in Ohio, reviewed the duties of charge nurses
and concluded that they were nonsupervisory employees.
As noted earlier herein, however, in connection with the su-
pervisory status of Hahn at the San Andreas facility, the Su-
preme Court has rejected, as a false dichotomy, the Board’s
concept that nurses performed their services in the interest of
patients rather than their employers, and held that nurses exer-
cising what would otherwise be indicia of supervisory authority
under the Act were supervisors. Health Care & Retirement
Corp., supra. In my opinion, and based on the authority and
supervision they exercise in the instant case, I conclude that
Jorgensen, Panganiban, and Tillman performed supervisory
duties under the Court’s holding in Health Care, supra, and
were supervisors within the meaning of Section 2(11) of the
Act.
Accordingly, I find that Respondent did not violate Section
8(a)(3) of the Act in discharging Jorgensen, Panganiban, or
Tillman. Moreover, because they were supervisors, neither did
Respondent violate Section 8(a)(1) of the Act in making what
are alleged as interrogation, threats, impressions of surveil-
lance, and coercive statements to them.
(2) The discharge of Aldape and 8(a)(1) allegations
In order to prevail, the General Counsel must establish that
Aldape’s discharge was motivated by her union activity. In this
case, there can be no doubt that Aldape was the instigator of the
Union’s organizational effort. After having been, in her own
mind, unfairly reprimanded, she sought out union representa-
tion and employee support for the Union by circulating a peti-
tion, hosting an employee meeting, and soliciting union au-
thorization cards. The question remains whether or not Aldape
was discharged because of this union activity, and I am satis-
fied that there is clear and convincing evidence that this was the
case.
Originally, Aldape was given only a warning for the patient
abuse incident. Presumably, Chavis felt that this was the appro-
priate remedy for the infraction. Immediately thereafter, in
response to this perceived mistreatment, Aldape sought out and
promoted union representation. Chavis learned about it shortly
thereafter. Chavis testified that she was advised on or about
July 9 by McKaigg that Aldape’s conduct was really a dis-
chargeable offense and was told by McKaigg to follow up on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 194
the matter. She did this by reopening the matter and subse-
quently concluding that Aldape should be discharged for “gross
misconduct” and discharging her on July 15. The sequence of
events is suspect. Could it be that Chavis, an experienced ad-
ministrator, was unaware that patient abuse was a dischargeable
offense and had to be so advised by McKaigg? It is more likely
that the reassessment of the Donovan incident was in response
to McKaigg’s reaction to Aldape’s union activity and his in-
struction to review the matter.
Another weakness in the Respondent’s position is the ques-
tion of the propriety of a discharge penalty for the alleged of-
fense. No patient abuse allegation was ever established. Except
for Aldape, none of those participating in the incident testified.
The evidence adduced with respect to the incident itself was
basically of the hearsay variety, insufficient to show, despite
the complaint from the patient’s daughter, that the incident did
in fact occur.
Even accepting that the original warning was justified, there
is no adequate explanation for reopening the matter. It does not
appear that the patient’s daughter was seeking more severe
discipline for Aldape. In fact, it was necessary to solicit her to
furnish a statement about the incident.42 In short, the probative
relevant evidence in this record does not establish that the pa-
tient was abused by Aldape.
But apart from the question of whether or not the original
disciplinary memorandum was justified, there is direct evidence
of unlawful motivation. When DON Asfoor called Aldape on
July 12 to advise her of her suspension, she also told her that it
was related to her union activity. Although Asfoor denies mak-
ing such a statement, I am satisfied, based on the corroborating
testimony of Tillman, that the statement was made. That state-
ment is evidence of employer motivation to show that Aldape
was discriminatorily discharged. It is also coercive in violation
of Section 8(a)(1) of the Act. In addition, unlawful motivation
for Aldape’s discharge is also apparent from the remarks made
by Chavis to Michaels to the effect that because of the Union
Aldape and Tillman would have to be discharged.
Turning to the 8(a)(1) allegations regarding McKaigg, I am
satisfied that his presentation was lawful. Although he won-
dered aloud why employees sought union representation when
the Respondent offered viable alternatives, his remarks were
not coercive. The question was not designed to identify union
adherents and was essentially rhetorical rather than coercive
interrogation. Nor does the evidence support the allegations of
surveillance or solicitation of grievances. Merely stating that he
was aware of an organizational effort is not sufficient to infer
that McKaigg created the impression that employee union ac-
tivity was under surveillance, and although McKaigg did point
out existing procedures available to employees with work re-
lated problems, there was no solicitation of their grievances
from which to infer any interference with employee rights
guaranteed under Section 8(a)(1) of the Act.
Regarding Laws, having reviewed the relevant testimony, I
am not satisfied that he unlawfully interrogated employees.
Even crediting the General Counsel’s witnesses, the question
was rhetorical and essentially innocuous. Everyone was aware
of a union organizational effort by late July and Laws’ remarks
could not be regarded as a serious effort to identify union sup-
porters and the question was not otherwise coercive.

42 The statement is also hearsay and without probative value to es-
tablish that the incident, in fact, occurred.
I. Slayton Manor Nursing Home, Slayton, Minnesota
Statement of the Case
The complaint alleges that Respondent, at its Slayton Manor
facility, violated Section 8(a)(1) of the Act by posting an un-
lawful no-solicitation rule, soliciting and adjusting employee
grievances, creating the impression among employees that their
union activities were under surveillance, and by threatening RN
employees with discipline, including discharge, for speaking
about the Union or failing to support the Respondent’s position
against the Union’s organizational efforts.43 A hearing was held
before me on May 14 and 15, 1992, in Marshall, Minnesota.
1. Facts
a. Threats of discipline to registered nurse employees
The record discloses that on February 1 and 2, 1990, Barbara
Katella, area human resources representative for Respondent,
spoke from notes to the four RNs at the Slayton facility, telling
them that they were supervisors excluded from the voting unit,
and were expected to support the Respondent’s position or at
least to remain neutral and that making statements that did not
support the Company’s position would subject them to disci-
pline, including discharge. Katella went on to advise them of
what activity, as supervisors, were lawful under the National
Labor Relations Act and which were not. Among the RNs ad-
dressed by Katella were two RN charge nurses, Joyce Risacher
and Deborah Anderson.
It is necessary first to review the record to determine the
status of the RN charge nurses as either supervisors or employ-
ees. The staff at the Slayton facility consisted of an administra-
tor, four RNs, about seven LPNs, and a number of NAs who
performed the bulk of the hands-on patient care. The four regis-
tered nurses were Hoyme, Karen Molitor,44 who worked 32
hours per week as the staff development in-service coordinator
and 8 hours per week filling in for Risacher, and Anderson. The
record discloses that in addition to the RNs, the charge nurses
may also be LPNs. The charge nurses on the afternoon shift (3
to 11 p.m.) and the night shift (11 p.m. to 7 a.m.) are normally
LPNs while the charge nurse on the day shift is normally an
RN.
It appears that the charges nurses on all three shifts, whether
RNs or LPNs, have the authority to assign and reassign NAs, as
required to insure patient coverage. They have the authority,
when circumstances warrant due to absenteeism, to call in em-
ployees as replacements. Charge nurses are also responsible for
directing and correcting, when necessary, the work being per-
formed by NAs and to prepare written evaluations of their
work. When it is necessary to rearrange lunch or breaktimes to
provide adequate staffing, charge nurses have the authority to
make the necessary adjustments. Charge nurses also have the
authority to discipline NAs when warranted. During work hours
when the administrator and DON are not present in the facility,
43 At the hearing Respondent amended its answer to admit the super-
visory status of James Nelson, administrator; Barbara Katella, human
resources representatives; Phyllis Saunders, area manager; and Martha
Eke, administrator, and to correct a typographical error in its answer to
reflect that pars. 2(a) through (d) were being denied. The parties also
stipulated that Ruth Hoyme (DON) was also a supervisor within the
meaning of Sec. 2(11) of the Act.
44 The General Counsel stipulated that Molitor is a supervisor, leav-
ing only the status of Risacher and Anderson in issue.
BEVERLY CALIFORNIA CORP. 195
they are the highest management authority on the premises. At
times when RN charge nurses were not on the premises, they
were often designated as “RN on call” and as such were re-
sponsible to be available to the LPN charge nurses, particularly
on the afternoon and night shifts, for extraordinary occurrences.
b. The no-solicitation rule
The Union’s organizational effort began with employee
meetings about November 1989. On or about December 13,
1989, the following longhand no-solicitation rule was posted at
Respondent’s Slayton facility:

Attention 12/13/89 There will be no solicitation or dis-
tribution of material allowed on the property. Thanks,
James A. Nelson, Administrator. Disciplinary action will
be taken.

At the hearing, Respondent also introduced evidence to show
that each employees at the time of hiring orientation was given
an employee handbook wherein appeared the following rules
regarding solicitation and distribution:

NO SOLICITATION
Solicitation by an employee of other employees is pro-
hibited while either person is on working time. Working
time is all time when an employee’s duties require that he
or she be engaged in work tasks, but does not include meal
periods, scheduled breaks, time before or after a shift in
addition, solicitation is prohibited at all times in immediate
resident care areas.

NO DISTRIBUTION
No person, employee, or otherwise, is permitted to, for
any purpose, distribute written or other material during
work time, with working employees in any work area or
immediate resident care areas.

NO ACCESS RULE
Employees are not permitted access to the interior of
the facility or outside work areas during their off duty
hours, unless they are in the building to visit a resident.
Such visits must be confined to the resident’s room or
such area designated for resident visitors.

NON-EMPLOYEES NO SOLICITATION, NO DISTRIBUTION AND NO
TRESPASSING RULE
Solicitation, distribution of literature or trespassing by
non-employees is prohibited on facility premises. Please
immediately report any violations to your supervisor.

In addition, it also appears that for several years and to the pre-
sent, there has been posted, at another location at the facility,
the same “rules” as those set out in the handbook, with the ex-
ception of the “No-Access rule.”
c. Creating impressions of surveillance
At the Slayton facility, there is a nurses lounge, also referred
to as the breakroom, where employees of the facility take
breaks and eat their lunches. The lunchroom also has coffee and
snack machines. It also appears that the breakroom was utilized
by the management of the facility, including the administrator.
Phyllis Saunders, area manager, who filled in as administrator
after Nelson was terminated on January 9, 1990,45 testified that
she used the breakroom regularly for her own lunches and

45 Eke replaced Saunders as administrator in late January 1990.
breaks, and sometimes for coffee. She also spoke and visited
with employees in the lunchroom. Saunders testified that as
administrator at another nursing home, she visited the break-
room there in the same manner.
Eke testified that after she began her employment as admin-
istrator, she also used the breakroom about three times a day for
her own breaks and lunches and that the only purpose of her
visits was to get coffee or to eat.
Katella testified that after she arrived at the Slayton facility,
shortly after the election petition was filed on January 10, 1990,
she also used the breakroom for breaks and lunches and that
while she was there she sometimes drank coffee and conversed
with the employees. She testified that her only reason for being
there was for those purposes. She testified that her use of the
breakroom was consistent with the way she used the break-
rooms in other Beverly facilities she visited during the course
of her employment.
It does not appear these individuals engaged in any organiz-
ing activity or any other activity that was out of the ordinary
during their visits to the breakroom.
d. Solicitation and adjustment of employee grievances
After the election petition was filed on January 10, 1990,
Katella was assigned to the Slayton facility to represent the
interests of the Respondent during the Union’s organizational
campaign. She worked there 3 or 4 days a week until the elec-
tion was held on March 1, 1990, which the Union lost. She was
responsible for coordinating the Respondent’s antiunion cam-
paign and reported to James Wehrle, area human relations
manager.
After she arrived, she conducted meetings of employees at
the facility. She spoke at these meetings as did other various
representatives of management. Katella testified that at the
meetings she did speak to the employees about work related
problems. She invited them to contact her about these problems
and offered to do what she could to resolve them. She did not
promise to change any existing policies or to provide any addi-
tional benefits.
The record discloses that several employees called Katella’s
attention to various work related problems. For example, one
employee raised the matter of bonus points. Generally, this was
a program designed to reward employees for good attendance
by awarding points for discounts on the purchase of merchan-
dise from a catalogue. Katella testified that the program had not
been properly implemented by Nelson and took steps to revital-
ize the program. Again, some employees were unaware of their
benefits under the HMO health care plan and Katella went
about seeing that benefits brochures were distributed. One em-
ployee complained to Katella about an overdue nursing certifi-
cate from the State of Minnesota and her failure to receive her
HMO health care card. The certificate arrived later and Katella
contacted the HMO to look into her health care coverage, as
well as that of other employees.
Some employees asked about vacations. It appears that RNs
and LPNs were entitled to 2 weeks of vacation after 1 year of
service but some of them were being awarded only 1 week.
Katella testified that she verified the policy and had the inequi-
ties corrected.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 196
2. Analysis and conclusions
a. Threats of discipline to registered nurse employees
The Board recently concluded, on facts not substantially dis-
tinguishable from those of the instant case, involving the same
Employer, that charge nurses at one of Respondent’s nursing
homes in Ohio were employees, rather than supervisors within
the meaning of the Act. Northcrest Nursing Home, supra.
The Supreme Court, however, in Health Care & Retirement
Corp., supra, reached a different conclusion, rejecting the
Board’s theory and concluding that those nurses were supervi-
sory employees. The facts in the instant case disclose that the
RNs exercised authority normally regarded as supervisory un-
der Section 2(11) of the Act. Because the Court held that this
supervision is exercised in the interest of the employer rather
than the patients, I conclude, following the above-cited holding
of the Supreme Court, that those RNs were supervisors and not
protected by the Act. As supervisors, Respondent did not vio-
late Section 8(a)(1) of the Act in addressing them as alleged in
the complaint.
b. The no-solicitation rule
As a matter of Board and Court precedent,46 it is clear that
the no-solicitation rule posted at the facility on December 13,
1989, was unlawfully broad because, by its terms, it prohibits
solicitation and distribution on nonworktime in nonwork areas.
Respondent appears to concede that the no-solicitation rule
posted on December 13 was unlawful as written, but argues that
the employees had been made aware of their rights to solicit
and distribute by the lawful rules set out in the employee hand-
book and by the posting of lawful solicitation rules at the facil-
ity.
But this argument begs the question. Even assuming the le-
gality of the handbook solicitation and distribution rules, there
would then exist two rules, one lawful and one unlawful. The
unlawful rule is not legitimized by the lawful rule. Accordingly,
I conclude that the no-solicitation rule posted on December 13,
1989, interferes with employee organizing rights set out in
Section 7 of the Act in violation of Section 8(a)(1) of the Act.
c. Creating impressions of surveillance
Having reviewed the relevant testimony, I am satisfied that
none of those alleged to have frequented the breakroom for the
purpose of giving employees the impression that their union
activities were under surveillance, were in fact so engaged. The
evidence shows only that their visits to the breakroom were
taken for the same reason that other employees went there, to
eat their lunches, get coffee, or some other lawful reason. Like
other employees, they engaged in conversation while they were
there. Nothing in the record suggests that they did anything out
of the ordinary while so engaged to support the surveillance
allegation, and, unlike the General Counsel, I cannot conclude,
on the facts of this case, that their mere presence in the break-
room is sufficient to infer that employees were being given the
impression that their union activities were under surveillance.
Briefly, the record is insufficient to warrant the conclusion
that Saunders, Eke, or Katella created an impression among
employees that their union activities were under surveillance.
Accordingly, this 8(a)(1) allegation of coercion should be dis-
missed.

46 Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
d. Solicitation and adjustment of employee grievances
Katella, a human resources representative, was sent by Re-
spondent to orchestrate its election campaign against the Union.
I am satisfied that had it not been for the union organizational
effort, the employees would not have been invited to bring their
problems to Katella, and while it does not appears that Katella
was offering or promising the employees any benefits that they
did not already enjoy, Katella’s efforts on behalf of the em-
ployees in soliciting and adjusting their complaints and facili-
tating the receipt of their benefits does, in my opinion, interfere
with the Section 7 rights of employees guaranteed in the Act.
J. Kewaunee Health Care Facility, Kewaunee, Wisconsin
Statement of the Case
The complaint alleges that Respondent, at the Kewaunee
Health Care Center in Kewaunee, Wisconsin, by the adminis-
trator of that facility, Steven Bavers, violated Section 8(a)(1) of
the Act by threatening employees with disciplinary action if
they engaged in lawful handbilling activity.47 The case was
heard before me on May 20, 1992, in Stevens Point, Wisconsin.
1. Facts
The essential facts are not in dispute. It appears that John
Grove, organizer for Local 99W/United Professionals for Qual-
ity Health Care (the Union), distributed to several local radio
stations a press release describing the status of contract negotia-
tions then underway at the facility and announcing the Union’s
intention to distribute informational pamphlets at the Kewaunee
facility on Sunday, March 18, 1990. One of the newscasters
contacted Bavers for comment. Bavers, apparently previously
unaware of the Union’s intentions, contacted Wehrle, who was
conducting the contract negotiations for Respondent, seeking
advice. Bavers testified that he was advised by Wehrle after
Wehrle had spoken to an agent at the NLRB’s office in Mil-
waukee, Wisconsin,48 to issue a memo to the employees at the
Kewaunee facility advising them that any leafleting without 10
days notice would be unlawful under the Rules of the National
Labor Relations Board and that employees who engaged in
unlawful activity could be disciplined, including discharge. On
Thursday, March 15, Bavers drafted and distributed the follow-
ing memo to the employees at the employees, reading:

TO: ALL STAFF
FROM: STEVEN E. BAVERS, ADMINISTRATOR
DATE: MARCH 15, 1990
SUBJECT: NOTICE BY UNION OF INFORMAL LEAFLETTING FOR
MARCH 18TH

1. The Company has been negotiating in bad faith with
the Union. The last information we have is that the Union
is reconsidering their position, and will send us suggested
dates for future meetings.
2. It comes as a complete surprise that this action is
planned in light of the above situation. It is shocking be-
cause under the National Labor Relations Board rules we
are to be given a ten (10) day notice before such activity.
47 Respondent’s answer was amended at the hearing to admit certain
supervisory allegations and to correct the title of James Wehrle to “Re-
gional Director, Human Resources.”
48 Neither Wehrle nor the Board agent testified, so obviously any
purported conversation and its content are hearsay and will be disre-
garded by me as to these proceedings.
BEVERLY CALIFORNIA CORP. 197
3. Since this action is in violation of those rules, it is
an illegal action, and we are filing an unfair labor practice
with the National Labor Relations Board.
4. I strongly discourage all staff from participation in
any illegal action. I would have to consider disciplinary
action if staff members were part of an illegal action.
5. If your have a question about this information,
please call:

National Labor Relations
In Milwaukee (414) 297–3867
Ask For Mr. Schultz

The March 15 memo was posted on the company bulletin
board and several copies were placed on the table in the nurses’
lounge or breakroom, where it was seen by employees taking
their work breaks in the lounge.
On Friday, March 16, Wehrle called Bavers again, this time
to advise him that after further conversation with the agent at
the National Labor Relations Board’s Milwaukee office,49 it
appeared that while picketing would not be lawful, distributing
leaflets would be lawful, and that it would be necessary to issue
a followup memo to that effect at once and advised Bavers of
what should appear in the memo. Because Bavers was on the
road, he called DON Kathy Zuege and dictated a memo to her.
That memo dated and posted on Friday, March 16, under
Zuege’s name, was distributed to employees in the same man-
ner as the earlier memo. The March 16 memo reads:

TO: ALL STAFF
FROM: KATHY ZUEGE, DIRECTOR OF NURSES
DATE: MARCH 16, 1990
SUBJECT: NOTICE BY UNION OF INFORMAL LEAFLETTING FOR
MARCH 18TH

“Informational leafletting” has now been determined
to be an acceptable activity by the National Labor Rela-
tions Board office in Milwaukee, if it is limited strictly to
that. Many of you were apparently under the impression
that this was the same as “informational picketing,” (based
on your comments) which would be illegal in these cir-
cumstances.
Leafletting, or the distribution of handbills, is permis-
sible if it does not include picketing (including picket
signs), “patrolling” or other blockage of access, disruption
of facility operation, etc.
We respect employees rights of free speech, but also
urge all employees to follow the laws. Failure to do so
may result in discipline or discharge!

It is undisputed that there was leafleting at the premises on
Sunday, March 18, near the facility and at other locations. It
appears, however, from the testimony, that the March 16 memo
restrained certain employees from handbilling.
Thus employees Jean Ferron and Mary Murphy both testified
that a factor in their decision not to handbill at the facility on
March 18 were the threats contained in Respondent’s March 15
memo. Murphy testified that even after reading Respondent’s
March 16 memo, she did not handbill because she was still
unclear about what Respondent’s interpretation and reaction
would be to the scheduled handbilling.

49 As noted earlier, any purported conversation between Wehrle and
the Board agent are hearsay.
2. Analysis and conclusions
In the instant case, Bavers learned that the Union intended to
distribute leaflets. He called Regional Director of Human Re-
sources Wehrle and apparently received bad advice. At We-
hrle’s direction, Bavers drafted and issued a memo that threat-
ened employees who engaged in distributing informational
leaflets with disciplinary action, including discharge. In fact,
except under conditions not applicable herein, leafleting is a
lawful activity. Clearly, therefore, Respondent was threatening
employees with discipline for engaging in a lawful activity on
behalf of the Union in support of the contract negotiations then
underway.
Respondent, however, argues that by posting a second notice
on March 16, it effectively repudiated the March 15 memo and
was therefore absolved of any 8(a)(1) violation based on the
March 15 memo and cites Passavant Memorial Area Hospital,
237 NLRB 138 (1978); Wireways, Inc., 309 NLRB 245 (1992);
Farm Fresh, 305 NLRB 887 fn. 1 (1991). I do not agree. The
record discloses that the March 16 memo was not effective as a
repudiation. It did not, by its terms, identify and repudiate the
prior memo, nor did Respondent acknowledge the unlawful
prohibitions on handbilling contained therein. It was a general
exposition of Respondent’s views concerning the legality of
picketing and handbilling, including a recital of what it viewed
as lawful and unlawful handbilling and ending with an admoni-
tion to employees that failure to follow the law, presumably as
set out by Respondent in the body of the memo, would result in
discipline or discharge. Accordingly, I conclude that there was
no repudiation, and that the March 15 memo constituted a
threat to interfere with the employee rights set out in Section 7
of the Act.50
K. Golden Age Nursing Home, Tomahawk, Wisconsin
Statement of the Case
The complaint alleges that the Respondent, through Admin-
istrator Peter Merchant,51 violated Section 8(a)(1) of the Act at
its Golden Age Nursing Home facility in Tomahawk, Wiscon-
sin, by informing employees that it could deal with them better
on a one-to-one basis if the facility were not organized. A hear-
ing was held before the administrative law judge on May 20,
1992, at Stevens Point, Wisconsin.
1. Facts
A unit of nurses aides and various other employees had long
been represented under contract by Service Employees Interna-
tional Union, Local 150, AFL–CIO (the Union). In the fall of
1989, a contract for that unit was negotiated by Jim Wehrle,
regional director human resources, assisted by Merchant.
On March 2, 1990, a grievance had been filed by Majorie
Wanta, CNA and chief shop steward at the Tomahawk facility,
alleging that Respondent violated various provisions of the
contract by excluding from contract coverage, those part-time
employees working less than 17-1/2 hours per week.
50 In my opinion, a threat of discharge for engaging in lawful hand-
billing activity directed by the regional director of human resources is
significant, not “de minimis,” as Respondent contends, particularly
when, as here, the record supports the conclusion that memos caused
employees not to handbill.
51 At the hearing, Respondent amended its answer to admit Mer-
chant’s supervisory status.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 198
On March 22, 1990, Wanta and Tammy Serizine, assistant
shop steward, met with Merchant in his office to discuss vari-
ous labor related issues. Later in the meeting, the matter of the
grievance was raised. Wanta testified that Merchant com-
mented that Wehrle’s interpretation of the contract denying
coverage to part-time employees working less than 17-1/2
hours per week was correct;52 that these employees did not
have to be in the Union. Also, that he said he could work better
with employees one-on-one, without a union. Wanta concedes
that Merchant never asked them to get rid of the Union or
promised them anything if they did.
According to Merchant, late in the meeting, after discussing
other issues, the grievance was discussed. Wanta complained to
him that Wehrle’s antiunion attitude was the problem in resolv-
ing the conflict. Merchant replied that Wehrle’s attitude was
not the issue. He said that the contract was the issue and that he,
like most managers, preferred not having a union to deal with,
but that the facility had a union contract and he could deal
fairly with the employees.
2. Analysis and conclusions
In my opinion, Merchant’s remarks, in these circumstances,
do not violate Section 8(a)(1) of the Act. In this case, the Un-
ion’s chief shop steward was engaged in a discussion of labor
problems with the administrator. The matter of a grievance that
Wanta had filed was raised. During an exchange of views on
that grievance, Merchant made the observation that the part-
time employees covered by the grievance did not need union
representation and that he preferred dealing one-on-one with
employees. In the context of the facts disclosed by this record, I
cannot conclude that Merchant violated the Act in expressing
this sentiment, and I find that the remark did not interfere with
the employee rights set out in Section 7 of the Act.
L. Tomah Care Center Facility, Tomah, Wisconsin
Statement of the Case
The consolidated complaint issued August 20, 1991, alleges
that Respondent, at the Tomah facility, through the director of
nursing (DON) of that facility, Wendy Libert, unlawfully
threatened employees with disciplinary action if they discussed
“short staffing” concerns among themselves within the Re-
spondent’s facility.53 A hearing was held before the administra-
tive law judge on May 20, 1992, in Stevens Point, Wisconsin.
1. Facts
On or about May 23, 1990, the Tomah facility was paid a
visit by Carol Kriemelmeyer, representing the board on aging
and long term care for the State of Wisconsin. Libert testified
that she was told by Kriemelmeyer that the purpose of the visit
was to investigate a complaint that had been received to the
effect that nurses aides were telling residents, in explaining
attending to their needs, that the facility was short staffed. Ac-
cording to Libert and Teresa Fleming, the social worker at the
Tomah facility, Kriemelmeyer explained, in conversation with
them, that comments about short staffing made to residents,
even if they were true and accurate reasons for tardy responses
to the residents’ needs, could be construed as psychological
patient abuse because of the concern it could cause to the resi-

52 Respondent subsequently won the grievance.
53 The Respondent’s answer was amended at the hearing to admit the
supervisory status of Wendy Libert as DON at the Tomah facility.
dent. Also, that as such, it could be treated as patient abuse in
nursing records maintained by the State of Wisconsin.
According to Libert, she called a meeting of the nursing staff
to advise them of Kriemelmeyer’s admonitions. The meeting,
which is the only matter in issue, was held on May 23, 1990,
and attended by about 25 NAs, LPNs, and CNAs. Libert testi-
fied that at this meeting she told those assembled that they were
not to mention the matter of short staffing in their discussions
with the residents or in front of the residents and that to do so
could be construed as patient abuse, with such a notation being
made on their records maintained by the State.
According to Wendy Winfield, however, a nursing assis-
tant,54 Libert also told them that that they were not to discuss
short staffing among themselves anywhere in the facility and
that concerning new employees, it might cause them to feel that
they were being overworked and that their morale could be
affected. They might feel as if they were being mistreated and
quit. Libert denies telling the assembled employees that they
could not discuss the matter of short staffing with other em-
ployees. Regarding discussions with new employees, she testi-
fied only that she remarked that they should be careful about
making negative comments to new employees, displaying nega-
tive attitudes to new employees about their working conditions
because she had received complaints from new employees that
they were being discouraged by such negative attitudes. Flem-
ing’s testimony generally corroborated Libert. She testified that
she could not recall employees being told not to discuss short
staffing among themselves, only not to discuss it within earshot
of residents and concerning new employees, that Libert only
told them that some new employees had complained about
being overworked and that new employees should be treated
with respect.
2. Analysis and conclusions
Based on the entire record, it appears that the purpose of the
meeting with employees on May 23 was to advise them that out
of concern for the residents they were not to discuss with, or in
the presence of residents, the problem of short staffing and that
to do so could be construed as patient abuse resulting in disci-
plinary action affecting their work records. Whatever the merit
of that position, transmitting it to the staff was not unlawful,
and indeed no allegation of illegality is made regarding remarks
made to or in the presence of residents.
Regarding the allegation of telling employees that they could
not discuss the problem of short staffing among themselves, I
am not satisfied that the record supports this allegation. The
corroborated testimony of Libert and Fleming, which I credit,
discloses that short staffing, as a subject for discussion, was
prohibiting only in conversations with residents or when resi-
dents could overhear such discussions. Libert denies and Flem-
ing cannot recall any prohibition of such discussion among the
employees themselves. In these circumstances, I conclude that
the General Counsel has not shown, as alleged in the complaint,
that Libert threatened employees with discipline if they dis-
cussed short staffing concerns among themselves, and, accord-
ingly, I shall recommend the dismissal of that allegation.
54 Winfield was the only witness called by the General Counsel.
BEVERLY CALIFORNIA CORP. 199
M. Beverly Health Care Center, Glasgow, West Virginia
Statement of the Case
The complaint alleges, with respect to the Glasgow, West
Virginia facility that Respondent unlawfully informed employ-
ees that they would be discharged for refusing to cross a picket
line and for joining a strike. Also, that Respondent promised an
employee that written disciplinary warnings would be rescinded
if she ceased striking and returned to work, all in violation of
Section 8(a)(1) of the Act. Further, that Respondent unlawfully
discharged Cathy Lewis in violation of Section 8(a)(3) of the
Act. A hearing was held before me on June 3, 1992, in Charles-
ton, West Virginia.
1. Facts
a. Cathy Lewis: discharge and 8(a)(1) allegation
By way of background, the United Steelworkers of America,
AFL–CIO, CLC (the Union), had been certified for a unit of
service and maintenance employees, including NAs, on August
31, 1987. Subsequently, a 2-year contract was negotiated expir-
ing May 31, 1990.55 On that day, the unit employees rejected a
contract proposal and struck the facility at midnight May 31,
1990.56
Cathy Lewis was employed by Respondent on December 1,
1989, and worked as a NA on the day shift (7 a.m. to 3 p.m.).
She was a union member, but apart from that, the record does
not disclose any special activity by Lewis on behalf of the Un-
ion. The undisputed testimony of Ann Blye, DON, was that she
was not even aware that Lewis a union member.
On May 31, 1990, Lewis was assigned to a patient group that
included a patient named Goldie Crouch. It appears that Crouch
was among a group of patients whose needs required them to be
fed by a NA and it was Lewis’ responsibility to feed her. On
May 31 Crouch’s breakfast was returned untouched to the
kitchen. This made it necessary for one of the LPNs, Terri
Schulte, to feed breakfast to Crouch. While this was going on,
about 10 a.m., Lewis came into Crouch’s room, saw Schulte
feeding her, and then left.
Near the end of her shift, about 3 p.m., Lewis was called by
Ann Blye, DON, to come to her office and, in conformity with
company policy, to bring a witness with her. Lewis selected
Deneen Hardy as a witness and went to Blye’s office. In addi-
tion to Blye, LPNs Mary Steele and Schulte were present. At
this meeting, Lewis was given two disciplinary memoranda.
The first provided for a 5-day suspension citing “Patient Ne-
glect,” describing it as “Major Violation # 1.” This memoran-
dum recites Lewis’ failure to feed Crouch as set out on the
assignment sheet. That assignment sheet has reflected that
Lewis was assigned to feed Crouch breakfast, but Lewis argued
that when she saw the assignment sheet at 7:15 a.m., Crouch
was not on the sheet to be fed. Hardy supported Lewis’ state-
ment that Crouch was not on the original assignment sheet.
A second disciplinary memorandum was given to Lewis at
this same meeting for falsifying Crouch’s “Activities of Daily

55 All dates refer to 1990 unless otherwise indicated.
56 The contract contained a union-security provision requiring all
unit employees to become union members after 90 days of employ-
ment; dues to be checked off for those who voluntarily provide dues-
checkoff authorizations.
Living Flow chart” (ADL).57 It appears that nurses aides are
required to maintain for each of their assigned patients and
ADL reciting the percentage of each meal consumed. Lewis
had listed on the ADL 100 percent for Crouch at breakfast.
Blye testified that she had been informed that while Lewis did
come into Crouch’s room while Schulte was feeding her, that
the food was only half gone at that time, and that Lewis could
not have known what percentage Crouch had consumed. Never-
theless, she falsely listed 100 percent on the ADL. The second
memo further states that “Discharge’ was the action taken, but
also recites as an “Addendum,” signed by Blye and Lewis, that
“[t]his matter will be investigated further and employee notified
of the outcome on 6/1/90.” Blye testified that while looking
into this matter, she became aware of four prior disciplinary
memoranda issued to Lewis reciting failure to clean patients
after bowel movements, failure to apply proper restraints to a
patient, failure to feed a patient, and then charting the patient at
100 percent consumption, and taking lunch later than the as-
signed time.58
Lewis testified that after she left Blye’s office, she went to
the union hall where she participated in the vote rejecting the
contract.
Despite the representations in the May 31 memo, no one
called Lewis on June 1. Lewis testified that after repeated at-
tempts, she spoke to Blye by telephone on June 6, and asked
about the decision. According to Lewis, Blye told her that she
could not discuss the matter on the phone because of the strike,
but that if she were willing to cross the picket line and come to
work, she would destroy the warnings previously issued. Lewis
replied that she could not do that, but said she would get back
to Blye. However, she never did. Blye testified that she cannot
recall speaking to Lewis after May 31, denied ever telling
Lewis at any time that the discipline would be dropped if she
crossed the picket line.
Thereafter, Blye sent Lewis a letter dated June 6 and re-
ceived by Lewis June 13, reading:

As dictated by Beverly Enterprises Employee hand
book for violations of a major natura [sic] and so stated in
your corrective action you are hereby discharged.

b. The 8(a)(1) allegations (Georgia Smith and Saundra Wolfe)
Smith was a part-time dietary aide who normally worked
from 4 to 8 p.m. Her immediate supervisor was Mary Dailey,
dietary manager. On April 13 Smith injured her back on the job
and was unable to work until June. At that time Smith called
Dailey to tell her that she would be able to return to work. Dai-
ley told her she could come back full-time if she wanted to
because they were hiring full-time employees due to the strike.
According to Smith, Dailey told her that she wouldn’t cross the
picket and Dailey said, “she guessed that I knew what that
meant.” Smith responded, “It means I don’t have a job.” Dailey
said, “Yes” and “I’m sorry.”
Dailey recalls a conversation with Smith concerning her in-
jury but denies telling her that she had no job at the facility.
Having reviewed the relevant testimony, I am satisfied that
57 The second memo was prepared and based on events occurring af-
ter the first memo.
58 Lewis did not file grievances for any of these four disciplinary ac-
tions, nor did she file any grievance over the disciplinary action im-
posed on May 31.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 200
Smith was the more credible witness, particularly because
Daily conceded difficulty in remembering the conversation.
Wolfe was also a dietary aide supervised by Dailey. Wolfe
testified that on May 15, she broke her arm in a nonwork re-
lated accident. As instructed, she called Dailey weekly to ad-
vise on her progress. On June 5 Wolfe was issued a written
release form by her doctor to return to work on June 18, which
she mailed to Dailey. On or about June 12 she called Dailey
who verified the receipt of the release form. Dailey asked if she
was coming back to work and Wolfe said that she was not com-
ing back until the strike was over. According to Wolfe, Dailey
also said that they would probably have to call it “voluntarily
dismissed” and that what the facility needed was “to get people
up there who cares.” Dailey testified that she did have a con-
versation with Wolfe about her injury and her return to work,
but that the conversation took place before the strike. Dailey
also denied telling Wolfe that she would be treated as a volun-
tarily dismissed or that the facility needed people who care.
Despite her denials, however, I conclude, based on a review of
the record, that the conversation took place after the strike be-
gan and that Daily did make the remarks attributed to her by
Wolfe.
2. Analysis and conclusions
a. Cathy Lewis—discharge and 8(a)(1) allegation
The record discloses that Lewis was an unsatisfactory em-
ployee and that the two disciplinary memoranda issued to her
on May 31 were warranted by her misconduct. The disciplinary
action being taken against her at that time was lawful and not
motivated by her activity in support of the Union.59 It is also
true, as the General Counsel concedes, that, had it not been for
the strike, it is likely that she would have been lawfully dis-
charged for employee misconduct. Although the Respondent
contends that Lewis was discharged on May 31, however, the
record does not support the contention that she was discharged
at that time. As of the time the strike began, she had only been
suspended. As the second disciplinary memo of May 31 states,
the matter was still subject to further investigation with Lewis
to be notified on June 1 of the “outcome.” She was not notified
on June 1 that she had been discharged and still had not been
notified of her discharge at the time she spoke to Blye during
the first days of the picketing. She was not discharged until she
received the Respondent’s June 6 letter on June 13. It seems
clear that if she had already been discharged, that letter would
have been unnecessary.
Although Blye cannot remember speaking to Lewis after
May 31, having reviewed all of the relevant testimony, I am
satisfied that she did speak to Lewis and that Lewis’ account of
that conversation is substantially correct and that Blye did offer
to “drop” the disciplinary warnings if Lewis would cross the
picket and come to work.
First, in agreement with the General Counsel, I conclude that
Blye’s remarks to Lewis violated Section 8(a)(1) of the Act.
Essentially, Blye was promising a benefit to Lewis (dropping
the disciplinary actions) if Lewis would agree to refrain from
exercising her Section 7 right to assist the Union and support
the strike and, instead, to cross the picket line and come to
work. Lewis declined and was discharged on June 13, when she
received a certified letter discharging her.

59 Lewis was no more active or vocal in her support of the Union or
the strike than any other employee.
In these circumstances, I conclude that had it not been for
Lewis’ decision to participate in the strike and not to cross the
picket line, she would have remained in Respondent’s employ.
It was because she determined to exercise that right, that she
was subsequently discharged in violation of Section 8(a)(3) of
the Act, and this is true despite the fact that she probably would
have discharged except for the strike.
b. The 8(a)(1) allegations (Smith and Wolfe)
It is clear that Wolfe and Smith were economic strikers at the
time of the alleged violations. As such, they were entitled to
retain employee status unless and until they were permanently
replaced. It is unlawful to discharge striking employees while
they retain their status as economic strikers. Obviously, any
threat to discharge economic strikers for refusing to cross a
picket line constitutes unlawful interference with the Section 7
rights of employees guaranteed in the Act.
First, as to Smith, having concluding that Dailey did make
the statements attributed to her, I further conclude that the re-
marks were coercive. Smith was entitled to exercise her Section
7 right to participate in a lawful strike against the Respondent.
This was the exercise of a lawful employee right under Section
7 of the Act, and Dailey’s remarks were unlawfully coercive
because any reasonable construction of Dailey’s statements
lead to the conclusion that Dailey was telling Smith that by
participating in strike activity, she was causing her own dis-
missal.
Concerning Wolfe, having reviewed the relevant credible
testimony, I am persuaded that Dailey, in her conversation with
Wolfe, described her status as “voluntary dismissed.” The natu-
ral interpretation of such a statement is that Wolfe, by her re-
fusal to cross the picket line, was being discharged by her own
action. To convey such threat of discrimination to an economic
striker for failing to cross a picket line constitutes unlawful
interference with those employee rights, including the right to
lawfully strike, protected by Section 7 of the Act.
N. Richland Manor Facility, Johnstown, Pennsylvania
Statement of the Case
The complaint, as amended at the hearing,60 alleges that the
Respondent at its Richland Manor facility in Johnstown, Penn-
sylvania, violated Section 8(a)(1) and (4) of the Act by refusing
to pay registered nurse employees a scheduled wage increase,
denied registered nurse employees the use of established inter-
nal complaint procedures to file a grievance, and conditioned
payment of the registered nurse wage increase on a withdrawal
of unfair labor practices filed by District 1199, National Union
of Hospital and Health Care Employees, S.E.I.U., AFL–CIO
(the Union).
60 As discussed herein in greater detail, on July 29, 1992, the Board’s
certification of a unit consisting of registered nurses at the facility was
reversed by the U.S. Circuit Court of Appeals for the Eighth Circuit.
The court concluded that the registered nurses were supervisors rather
than employees under the Act. Accordingly, those 8(a)(3) and (5) alle-
gations of the consolidated complaint dependent on the certification for
their vitality were deleted from the complaint, leaving only the 8(a)(4)
allegations for resolution herein.
BEVERLY CALIFORNIA CORP. 201
1. Facts
a. Background
A representation petition for a unit of registered nurses at the
Respondent’s Richland Manor facility was filed on October 2,
1990. A hearing was held on October 18, 1990, to determine,
inter alia, the status of the registered nurses as either employees
or supervisors. One of the registered nurses at the facility,
Dolores Keiper, testified at that hearing. Thereafter, the Direc-
tor for Region 6 concluded that the registered nurses were em-
ployees within the meaning of the Act and directed an election
to be held in a unit of registered nurses. The election was held
on December 14, 1990. The unit was certified on December 24,
1990. The unit consisted of all full-time and regular part-time
registered nurses at the Johnstown facility. Respondent opposed
the certification on the grounds that the registered nurses were
supervisors within the meaning of the Act and, therefore, de-
clined to bargain with the Union for that unit for the purpose of
testing the certification. Unfair labor practice charges alleging
refusal to bargain for the unit were filed with Region 6 on Feb-
ruary 5, 1991, by the Union. A complaint issued, later upheld
by the Board, which ordered the Respondent to bargain with the
Union for the RN unit.61 An appeal from the Board’s decision
was taken by Respondent to the Sixth U.S. Circuit Court of
Appeals. By decision dated July 29, 1992, the Sixth Circuit
concluded that the registered nurses were supervisors, not em-
ployees, and that the unit therefore was not appropriate and,
inter alia, denied enforcement of the Board’s Order. Beverly
Enterprises v. NLRB, 970 F.2d 1548 (6th Cir. 1992).
b. Wage increase
It appears that a wage increase of 75 cents per hour was
budgeted by Administrator John Poltrack for the registered
nurses scheduled to go into effect in January 1991. It is not
disputed that the increase was not granted at that time. Poltrack
and Wayne Chapman, regional director for human resources,
Region 1, testified that as soon as the registered nurses’ election
on December 14, 1990, was over, they discussed the matter of a
wage increase for RN unit employees and decided at that time
that it was something that should be bargained with the Union
in upcoming negotiations, rather than being implemented by
Respondent in January. According to Chapman, however, a
decision was made thereafter, in late January or early February,
that rather than bargain with the Union for the registered
nurses’ unit the Respondent would refuse to bargain, thus invit-
ing unfair labor practice charges for refusing to bargain, so as
to test the unit certification in the Sixth U.S. Circuit Court of
Appeals. All the previously scheduled negotiating sessions
were cancelled.
Chapman further testified, with respect to the wage increase,
that after having decided to test the certification, he felt that if
he granted a wage increase, it could have been perceived by the
Union as an unlawful unilateral wage increase subjecting Re-
spondent to unfair labor practice charges. On the other hand, if
he went to the Union to seek their approval, this would have
been tantamount to conceding the propriety of the RN unit at a
time when that issue was being litigated.
As time went on, the frustration among the RNs at having
been denied a wage increase mounted, and problems of re-

61 Beverly Enterprises, 303 NLRB No. 20 (May 28, 1991) (not re-
ported in Board volumes).
cruitment and retention grew, causing Respondent to recon-
sider. In June 1990, at a meeting between John August, presi-
dent of the Union, and various representatives of Respondent,
the Union agreed that previously budgeted raises could be
given to the registered nurses and that it would not file unfair
labor practices over the matter. It is undisputed that in July
1991, raises of 75 cents per hour were granted in July to the
registered nurses, retroactive to January 1, 1991.
c. Refusal to process Keiper’s complaint
As noted above, Keiper testified on behalf of the Union at
the representation case hearing on October 18, 1990. Thereaf-
ter, on December 20, 1990, a 2-day suspension was imposed on
Keiper, and she returned to work on December 24, 1990. An
unfair labor practice charge based on the suspension was filed
on Keiper’s behalf by the Union on December 31, 1990.
Although the Union had been certified, no contract had yet
been negotiated, so when Eileen Connelly, union vice presi-
dent, was contacted by Margaret Pynkala, union delegate for a
service and maintenance unit represented by the Union, Con-
nelly advised her to file a complaint under the “Problem-
Solving Procedures” set out in the associates’ handbook. That
procedure reads as follows:
Problem-Solving Procedures
Our company maintains an open door policy. We be-
lieve that problems between an associate and the company
can be worked out through an honest, frank discussion in
an atmosphere of trust, respect and cooperation. You may
at some time be concerned about your work schedule, per-
sonnel policies, or treatment or discipline that seems unfair
or unjust to you. To encourage a frank discussion of your
problem, the company has set up the following problem-
solving procedures. You have the right to use the problem
resolution procedure with the expectation of privacy and
without fear of retaliation.
1. Talk to your supervisor about the problem. Give
him or her a chance to resolve it.
2. If you are not satisfied with the results of this dis-
cussion, you may take your problem to the administrator.
3. If the administrator does not resolve the problem,
contact the Area Manager.
4. If you are still dissatisfied, you should contact the
Human Resources Department in your regional office.
Your problem will be studied carefully and a timely re-
sponse will be made.
If you still feel you have not received fair treatment,
and cannot resolve the problem through these channels,
you may refer to the poster in your facility and call the
Beverly Enterprises Hot Line.

On January 3, 1991, a group of employees signed and deliv-
ered to Poltrack a petition requesting a review of Keiper’s sus-
pension to reduce it to a verbal warning.
On January 11 a meeting was held between Poltrack, Pyn-
kala, and several other employees to deal with work related
problems. The petition for Keiper was discussed. According to
Pynkala, Poltrack told them that as long as the NLRB had the
case, he was not going to answer the grievance because the
matter was being handled by the NLRB.
Poltrack testified that he did not say that he would not proc-
ess grievances under the procedures of the employee handbook,
but only that this was not a matter for the Union to deal with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 202
because they had no union contract covering the RNs at that
time.
Later, a “PETITION” was drafted, listing some 37 issues of
concerns to employees at the facility. It was signed by some 58
employees, including Keiper. The first item was for a “Meeting
on Dolores Keiper’s grievance.” At a meeting held on February
11, attended by about 20 employees, Poltrack was given the
“PETITION.” Connelly requested a meeting on the Keiper
issue. According to Connelly, Poltrack declined, saying there
was no procedure for such a meeting. Connelly referred to the
handbook procedure, set out above, but Poltrack continued to
maintain that there would be no meeting on this matter.
Connelly also sent a letter dated February 12 to Chapman,
complaining about employee concerns at the facility and en-
closing a copy of the “PETITION” submitted to Poltrack.
Poltrack, in his testimony, admits that he received the peti-
tion dated January 3 but did not respond to it because the
“Problem-Solving Procedures” described in the handbook ap-
plied only to individual employees seeking to avail themselves
personally of those procedures and that Keiper herself had not
contacted the appropriate management staff to resolve the prob-
lem.
Poltrack testified as to this February 11 meeting that he took
the position that the only procedure available to Keiper, as there
was no union contract grievance procedure available to her,
was under the terms of the “Problem-Solving Procedures” of
the employee handbook that required her, individually, to avail
herself of those procedures, which she had not done.62 Simi-
larly, Chapman testified that he did not nothing about the Feb-
ruary 12 correspondence sent to him, because, like Poltrack, he
felt that those procedures were available only to the employees
themselves, not to the Union or others seeking to invoke the
procedures on her behalf.
d. Conditioning wage increase on withdrawal of unfair labor
practice charges
Keiper and another registered nurse, Lorraine Luert, testified
that on May 1, 1991, a meeting of the RNs was conducted by
Poltrack at the facility. The primary topic was the RNs’ dissat-
isfaction at having been denied the pay increase in January.
According to Keiper, the RNs were told by Poltrack that he had
just gotten off the telephone with Chapman and could tell them
that if they were to drop the charges filed with the NLRB, they
would be given the raises due the prior January. Delores Kim-
ble, another registered nurse at the meeting, testified that
Poltrack told them that he had been on the telephone with
Chapman and that if they got a letter from the Union dropping
the charges, they would get their raise.
Poltrack testified with respect to this meeting that he did not
tell the registered nurses that the raise would be granted if the
unfair labor practice charges were withdrawn. According to
Poltrack, he had spoken to Chapman about the problem and
Chapman had expressed concern that if the raises were given, it
would subject the Respondent to unfair labor practice charges
for having taken unilateral action on a matter that should have
been negotiated with the Union. Chapman confirmed conversa-
tions voicing these concerns to Poltrack, but that he did not ask
Poltrack to solicit the withdrawal of any unfair labor practice
charges in exchange for granting the wage increase.

62 Keiper concedes that she did not raise the matter with manage-
ment officials, nor did she attend the meetings of January 11 and Feb-
ruary 11.
A contemporaneous internal corporate memo dated April 29,
1991, however, from Chapman (G.C. Exh. 67) discloses, as
Respondent concedes in its brief, that Chapman asked Poltrack
to meet with the RNs. “I asked the Administrator to meet with
the RNs (scheduled this week) and tell them to have the Union
write to the Board requesting withdrawal of the unfair labor
practice. If the Union agreed, we would proceed with a raise for
the RNs.” I conclude that this memo comports with the recol-
lection of the General Counsel’s witnesses and that Poltrack,
despite his denials, did in fact, suggest to the RNs at a meeting
on May 1, 1991, that they withdraw the pending unfair labor
practice charge, and after having done so, a raise would be
granted.
2. Analysis and discussion
a. Coverage of supervisors under Section 8(a)(4)
Section 8(a)(4) of the Act reads:

It shall be an unfair labor practice for an employer to
discharge or otherwise discriminate against an employee
because he has filed charges or given testimony under this
Act.

There is a division of authority between the Board and some
U.S. Circuit Courts of Appeal on the issue of whether or not
supervisors are protected under Section 8(a)(4) of the Act. In
Hi-Craft Clothing Co., 251 NLRB 1310 (1980), the Board con-
cluded that a supervisor discharged because of his threat to file
charges against his employer with the Board was entitled to
relief on the theory that the right of access to the procedures of
the Board should be protected and extended even to supervisory
employees. The U.S. Court of Appeals in Hi-Craft Clothing Co.
v. NLRB, 660 F.2d 910 (3d Cir. 1981), denied enforcement
concluding that once supervisory status has been conceded, the
case must be dismissed because the Board has no jurisdiction to
decide the case on its merit. In General Services, 229 NLRB
940 (1977), enf. denied 575 F.2d 298 (5th Cir. 1978), the court
reached the same conclusion.
The Board has long held that it will exercise jurisdiction over
supervisors when the employer’s discrimination has a coercive
effect on statutory employers in the exercise of their rights
under the Act. See Florida Power & Light Co. v. Electrical
Workers, 417 U.S. 790, 803–805 (1974).
I am constrained to follow existing Board precedent, and I
conclude the RNs, although defined by the Third Circuit as
supervisors, as set out above, are nonetheless entitled to cover-
age under Section 8(a)(4) of the Act and the 8(a)(4) allegations
must be decided on their merits.
b. The wage increase
The probative evidence satisfies me that Respondent had
budgeted a wage increase of 75 cents per hour for January of
1991 and that the wage increase was not granted at that time.
The position of the General Counsel is that Respondent dis-
criminated against the RNs by withholding the wage increase
because, as set out in the complaint, “charges were filed and
testimony given to the Board.” I do not agree. In my opinion,
this allegation has not been established.
Respondent chose not to grant the wage increase in January,
at first because it wanted any wage increases to be negotiated
with the Union and later, after having decided to test the certifi-
cation, because it did not want to risk refusal to bargain charges
by granting wage increases unilaterally. Further, Respondent
BEVERLY CALIFORNIA CORP. 203
felt that by conferring with the Union and then granting the
wage increase with its approval, that would be tantamount to
granting recognition to the Union at a time when it was contest-
ing the propriety of the bargaining unit. Based on a review of
relevant testimony, I conclude that these were the reasons that
Respondent did not grant the wage increase.
Moreover, the record is totally insufficient to support the
contention that the wage increase was withheld because of the
unfair labor practices filed by the Union. This argument re-
quires assumptions I am not willing to make. The record itself
discloses no causal relationship between the filing of the unfair
labor practices and withholding the wage increase.
In short, I conclude that the evidence does not support the
conclusion that a wage increase was withheld on January 1
either because the unfair labor practices were filed by the Un-
ion or because Keiper or other employees had given testimony
at a representation case hearing in October 1990.
c. Refusal to process Keiper’s complaint
The General Counsel alleges that Respondent discriminated
against Keiper by denying her the use of the internal complaint
procedures of the handbook to file a grievance because Keiper
gave representation case testimony on October 18, 1990, or
because the Union filed unfair labor practice charges on De-
cember 31 and February 6.
Respondent concedes that it did not process Keiper’s suspen-
sion under the procedures set out in the employee handbook
and did not accede to requests to do so made on her behalf. In
so doing, Respondent’s takes the position that the “Problem-
Solving Procedures” of the employee handbook must, by its
terms, be utilized by the individual employee and not by others
on her behalf. It is not disputed that Keiper herself made no
attempts to resolve the problem herself under the employee
handbook procedures.
The General Counsel points to testimony to the effect that
Poltrack, on January 11, stated that because the NLRB was
handling the matter as an unfair labor practice charge, he was
not going to respond to the petition. Although I credit the Gen-
eral Counsel’s witnesses in this regard, I conclude that this
remark was essentially superfluous because the handbook, by
its terms, requires Keiper herself to utilize the procedures con-
tained therein, and admittedly she made no effort to do that.
Accordingly, I find that despite the statement by Poltrack,
the record is insufficient to support the conclusion that Respon-
dent discriminated in denying Keiper the use of established
internal complaint procedures because she either filed an unfair
labor practice charge or had given testimony to the Board.
d. Conditioning wage increase to RNs on the withdrawal of
unfair labor practices by the Union
As noted above, Poltrack did on May 1, at Chapman’s re-
quest, hold a meeting of RNs when they were told to have the
Union write to the Board requesting withdrawal of the unfair
labor practices in order to get the wage increase. The apparent
motive for this concession was the practical problems and dis-
satisfaction that continuing to withhold any wage increase was
creating at the facility in the RN group. Thereafter, as noted
above, the parties met in June and a wage increase for the RNs
of 75 cents per hour was put into effect July 6 retroactive to
January 1. In these circumstances, although Poltrack’s remarks
to the RNs on May 1 would have been strong evidence of
unlawful motivation in the event the wage increase were de-
nied, the record discloses that the increase, after discussion with
the Union, was not withheld, but granted with retroactivity to
January 1, all without any withdrawal of the unfair labor prac-
tice charge.
In these circumstance, I cannot conclude that Respondent
discriminated against the RNs by conditioning a wage increase
on the withdrawal of unfair labor practice charges on May 1.
O. Wyoming Valley Health Care Facility,
Wilkes-Barre, Pennsylvania
Statement of the Case
The complaint alleges, with respect to the Wyoming Valley
Health Care vacility in Wilkes-Barre, Pennsylvania, that Re-
spondent violated Section 8(a)(1) by threatening an employee,
Christopher Tausch, that he was being terminated for having
copied a list of phone numbers of Respondent’s employees and
Section 8(a)(3) in that the same employee, Christopher Tausch,
was discharged for having engaged in union activity.
1. Facts
Tausch is a 1990 graduate of Rutgers University with a scho-
lastic concentration in labor studies. He was hired by the Union
on January 14, 1991, as a “colonizer.” Tausch described a
“colonizer” as a paid union employee assigned to seek em-
ployment with an employer for the purpose of organizing from
the inside. As a “colonizer,” he was paid a salary of $150 a
week by the Union plus whatever he earned from his employ-
ment with the “target” employer. It was as a “colonizer” that
Tausch sought employment and was hired as a NA at the
Wyoming Valley facility on January 24, 1991.63 He worked as
a NA on the 3 to 11 p.m shift on the east wing. Tausch did not
disclose his union identity to the Respondent and lied about his
level of education on his employment application. Tausch testi-
fied that it was his intention, once employed, to obtain the
names, addresses, and telephone numbers of employees for the
purpose of soliciting them in an organizing effort on behalf of
the Union. He used telephone books, name tags, and whatever
other sources may have been available to obtain this informa-
tion. Tausch was admittedly engaged in a clandestine activity
for the limited purpose of organizing that facility and concedes
that his employment with the Respondent would therefore have
been temporary.
On the evening of March 27, during a work break about 7
p.m., Tausch went into the kitchen area of the dietary depart-
ment. His purpose was to promote organizational interest
among the dietary department employees. He sought out and
located a dietary employee named Charles Weitz just inside the
door to the kitchen area and engaged Weitz in a discussion
about union representation. Tausch also asked Weitz for the
names and addresses of two other dietary department employ-
ees and Weitz told him that those telephone numbers were on a
list located in the office of the dietary department manager,
Richard Rutkowski, who was not on the premises at the time,
having been called home to attend to his pregnant wife. Tausch
went to the room with Weitz where Tausch, sitting at Rut-
kowski’s desk, copied from a list taped to the wall beside the
desk, the names and telephone numbers of the people he
wanted to solicit from a listing of the 20 or so dietary depart-
ment employees. Thereafter, he returned to his nursing assistant
duties on the east wing.

63 All dates refer to 1991 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204
Tausch testified that although he was gathering information
throughout his employment, he did not discuss the Union with
anyone until March 26, 27, and 28 when he visited, along with
a female union organizer named Vandallia Leventry, some 20
employees to solicit their support.
Later in the evening Rutkowski returned. Rutkowski testified
that Weitz told him that a nurse had been in his office and had
taken down telephone numbers from a listing of the dietary
department employees. Rutkowski thought it might have been
nurse trying to contact him with a problem and so he went to
the charge nurse, but she was unaware of any visit.
On the morning of March 28, shortly after 10 a.m., Tausch
and Leventry visited Weitz at his house where they solicited
him to support the Union and to interest other employees in
their organizational efforts. Weitz gave them short shrift, telling
them that he was not interested and that he had to get to work.
Weitz arrived at the facility about 11:45 a.m. and sought out
Rutkowski to complain to him about Tausch’s visit. He identi-
fied Tausch as the nurse who had visited Rutkowski’s office the
previous night. Weitz complained that Tausch was bothering
him by visiting him at home about joining and promoting a
union and went over again with Rutkowski the events of the
previous night.
Rutkowski then sought out his supervisor, Nancy Wilson,
dietary consultant, telling her what he had been told by Weitz.
Thereafter, Wilson gave the information to Deborah Josephite,
the acting assistant administrator, who, at about noon, called
Donna Connery, the administrator. She told Connery that she
had been told by Rutkowski that on the previous night Tausch
had entered the dietary department area, speaking to Weitz
about his interest in obtaining union representation and also had
gone into the dietary department manager’s office where he
took down the names of employees and removed them from the
facility. She also told Connery about Weitz’s agitation over the
visit by Tausch and Leventry to his house. Connery asked Jose-
phite to write out what she had been told about the incident.
Connery returned to the facility about 12:30 p.m.
When she arrived, she spoke to Josephite and received from
Josephite a statement, signed by Josephite, reciting what Weitz
had told her about the incident. Connery spoke to Rutkowski
who reviewed with her the events of the prior evening and also
told her that Weitz was upset over Tausch’s visit that morning.
After this, Connery made a decision to terminate Tausch for
unauthorized entering the restricted dietary department area and
removing confidential employee information from the facility.
She instructed Josephite to write out an “Employee Memoran-
dum” terminating Tausch. In relevant part, the memorandum
reads: “Unauthorized possession or removal of employee phone
numbers. Divulging employee-company confidential informa-
tion.” Thereafter followed a description of the incident:

Chris entered the kitchen area and subsequently the
dietary service manager’s office—unauthorized. He wrote
employee confidential information on a paper and re-
moved information from the facility. Chris divulged em-
ployee information to an outside source—unauthorized.

Because the incident also involved union activity, Connery
felt it necessary to call Wayne Chapman, regional director for
human resources, to advise him of her decision, She did this
sometime prior to Tausch’s termination later in the day. Chap-
man concurred in the decision to terminate Tausch.
Later in the afternoon after Tausch had reported to work, he
was called into Connery’s office. Also present were Marion
Swancki, DON, and Josephite. Connery gave him the discharge
memo previously prepared by Josephite. Tausch explained that
he had gone to the dietary area to speak with Weitz but did not
explain his purpose in doing so. Tausch also admitted that he
was in the dietary department office and that he took down
telephone numbers but said that those were telephone numbers
of friends. Tausch refused to sign for the receipt of the dis-
charge memorandum. The discharge interview terminated and
Tausch left the premises.
Connery testified that the kitchen area was restricted to die-
tary department employees and was off limits to others and that
Tausch’s visit violated company policy in that regard. The evi-
dence discloses the kitchen area was posted against entry by
nondietary department employees.64 Further, there is a provi-
sion in the dietary department manual limiting access by non-
dietary department employees without express authorization of
the administrator or dietary service manager.65 Tausch con-
cedes that he was aware of the posting. It appears that non-
dietary department employees observed these restrictions and
went into the kitchen area only occasionally to pick up meal
trays from a rack just inside the dietary department door and
sometimes, infrequently, when authorized by dietary depart-
ment employees to get missing items of food, drink, or utensils
for food trays being brought to residents.
Connery testified that the reason for restricting the dietary
area to employees of the dietary department was to reduce the
possibility of cross-contamination by nursing personnel coming
into the kitchen area after contact with sick residents. The mat-
ter of cross-contamination was also the subject of regulation by
both state and Federal governments.
Connery testified that it was not entering the dietary area
alone that caused her to discharge Tausch, and that he would
not have been discharged for that infraction alone. More seri-
ous, as set out in the discharge memorandum was the “unau-
thorized possession or removal of employee phone numbers.
Divulging employee-company confidential information.” Con-
nery testified that the home telephone numbers of employees
are confidential information, and that taking down these tele-
phone numbers, removing them from the premises, and disclos-
ing them to outside sources66 was a violation of company pol-
icy that justified summary dismissal, particularly as Tausch was
a probationary employee, not entitled to the progressive disci-
pline procedures employees normally received.
In support of the contention that Tausch’s actions in copying
and removing employee telephone numbers violated company

64 It read, “Dietary Personnel Only.”
65 The provision reads:
Policy
No one is allowed in the Dietary Department without the
express authorization of the Administrator of the Dietary Ser-
vice Manager, except for Dietary employees and the Admin-
istrator.
Procedures
1. “Dietary Employees Only” signs should be posted on all
entrances to the Dietary Department.
2. All unauthorized persons are to be discouraged from en-
tering the Dietary Services Departments.
3. The Dietary Service Manager or designee will be re-
sponsible for enforcing the requirement.
66 Tausch was himself an “outside source,” as a paid union organ-
izer.
BEVERLY CALIFORNIA CORP. 205
policy, Connery alluded to a provision in the employee hand-
book captioned “Non-Disclosure of Information,” which reads:
Non-Disclosure of Information
We need your cooperation to keep our company busi-
ness within the company. Please read and support the fol-
lowing statement: Beverly associates shall not— either di-
rectly—divulge, disclose, or communicate to any person,
firm or corporation (other than is required by law), infor-
mation affecting or relating to residents or their records,
other associates, or the business of the company, such as
the company’s manner of operation, plans, manuals, etc.

In the “Employee Conduct and Rules” document at this facility,
there is listed as major violations the following: “10. Divulging
employee, resident, or company confidential information.” It
does not appear that employee telephone numbers were specifi-
cally defined as confidential information.
2. Discussion and analysis
a. Tausch’s discharge
It is necessary first to resolve the issue whether or not
Tausch, admittedly a paid union organizer, is also an employee
of the Respondent entitled to the protection of the Act. The
record discloses that Tausch, a college graduate, lied about his
education and was hired as a nursing assistant. He was paid
$150 per week by the Union while so engaged, and allowed to
keep his salary from the facility. Tausch testified that a career
in a health care industry was not his ambition, and that his em-
ployment would have been limited in duration to the union
organizational effort. He testified that he would return to work
if he were reinstated and make another effort to organize the
Respondent’s employees. Despite the split between certain U.S.
Circuit Courts of Appeal and the Board, it appears that the
Board maintains the position that an individual does not lose
his status as an employee because he is, at the same time, on the
payroll of the Union attempting to organize his employer.67
Thus the Board having spoken, I am constrained to follow that
precedent and, accordingly, I conclude that Tausch was an em-
ployee within the meaning and protection of the Act.
Respondent disagrees, acknowledges the above-cited Board
precedent, but contends that an exception to this rule exists
when there is “objective evidence” that union organizer em-
ployees will engage in activities “inimical” to the employer’s
“operations.” The Board appears to recognize such an excep-
tion. Sunland Construction Co., supra at 1230. In the instant
case, however, the record does not disclose the existence of
such objective evidence so as to warrant the inference that
Tausch forfeited employee status prior to his employment by
Respondent.
There remains for consideration whether or not Tausch was
discharged for having engaged in union activity. Respondent
contends that by copying, removing, and divulging employee
telephone numbers, Tausch violated company rules and policies
and that his discharge was justified. The General Counsel con-
cedes that Tausch did these things, but argues that the rationale
presented by Respondent was nonetheless a pretext and that
Tausch’s discharge was discriminatory.

67 Sunland Construction Co., 309 NLRB 1224 (1992). Town &
Country Electric, 309 NLRB 1250 (1992). These cases include a full
analysis of the issue that will not be reexamined herein.
A review of the record discloses that Tausch, on being hired,
set about the work for which he had been sent by the Union,
i.e., compiling information on the employees to enhance com-
munications with them with a view towards organizing. In an
effort to obtain telephone numbers for dietary department em-
ployees, he went into the kitchen area and then into the office
of the dietary department manager where he copied employee
telephone numbers from a list on the wall beside the manager’s
desk. In my opinion, Tausch’s activity, while clearly union
activity on behalf of his union-employer, was not protected and
his discharge did not violate Section 8(a)(3) of the Act.
First, the dietary department was a restricted area. Provisions
in the dietary department manual make it off limits except to
dietary department employees, and it was posted against access
by other than dietary department personnel. Tausch concedes
that he was aware that it was so posted. The rationale for the
rule is valid, to avoid contamination of the kitchen area from
others such as nurses aides, whose duties bring them into close
physical contact with sick patients.68
Not only did Tausch go into the dietary department area
without authorization, he went into the office of the dietary
department manager and took down employee telephone num-
bers for use in the organizational effort. The record discloses
that such information is treated by Respondent as confidential.
Despite the fact that there are no specific policy statements or
rules specifically defining employee telephone numbers as
confidential, there do exist written statements of policy, set out
above, which, in my opinion, make it clear that telephone num-
bers fall into a classification of confidential.
In applying the Wright Line69 test of causation, I conclude
that this record discloses that Tausch was actively seeking to
organize employees at the facility. The General Counsel has
made a showing sufficient to support an inference that Tausch’s
union activity was a motivating factor in Respondent’s decision
to discharge him. I further conclude, however, that because of
Tausch’s misconduct, set out above, he would have been dis-
charged even had he not been so engaged. Accordingly, I shall
recommend that this allegation be dismissed.
b. The 8(a)(1) allegation—informing Tausch in his discharge
memo that he was being discharged for engaging in protected
concerted activity
I have concluded, essentially, that discharging Tausch for the
reasons set out in the discharge memo was not unlawful. So
advising him in the discharge memo does not violate Section
8(a)(1) of the Act.
P. Sanger Hospital Facility in Sanger, California
Statement of the Case
The complaint alleges, with respect to the the Sanger Hospi-
tal facility in Sanger, California, that Respondent violated Sec-
tion 8(a)(1) of the Act by coercing and threatening an em-
ployee, Rudy Garza.70
68 Although the record also discloses occasional limited entry by
others, this in no way legitimizes Tausch’s visit.
69 251 NLRB 1083 (1980), 462 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).
70 The complaint also alleges 8(a)(1) unlawful interrogation by Re-
spondent’s attorney on May 23, 1991. The General Counsel, in its brief,
however, after evaluating the record, concluded that no violation had
occurred and, in its brief, withdrew that allegation. Accordingly, that
allegation is hereby dismissed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 206
1. Facts
Housekeeping department employee Rudy Garza testified
that on June 18, 1991, about 2:30 p.m., Tony Velasquez,
housekeeping supervisor, called him and housekeeping depart-
ment employee Isaac Navarro into the laundry room where he
spoke to them concerning the presence at the facility of Union
Representative Mike Guidry.71 He said that Guidry would be
seeing them one by one about signing a union paper. He said
that they were free to either sign it or not at their option, but
that he did not want them to get hurt.
About one-half hour later, according to Garza, he spoke to
Velasquez again on the B wing. Velasquez told him that he did
not want him to get “hurt” and advised him not to sign the un-
ion papers. Velasquez testified that he has no specific recollec-
tion of speaking to Garza concerning union papers but that he
did speak to some employees, telling them that he did not want
them “hurting for money,” and that they would have to pay
union dues out of their pockets. Velasquez testified that he was
aware of their need for money as he sometimes arranged over-
time to enable employees to meet their financial needs.
2. Discussion and analysis
a. Threats and coercion by Velasquez
As noted above, Garza testified that he was told by
Velasquez that he did not want him to get hurt and that he
should not sign any union papers. Velasquez testified he has no
specific recollection of talking to Garza but that he did say to
some employees that he did not want them “hurting for money”
because they would have to pay union dues out of their pocket.
Having reviewed all of the relevant testimony, I am satisfied
that Garza’s recollection of his conversation with Velasquez is
the more credible, and suggests that some unspecified harm
would come to Garza that could be avoided if Garza did not
sign the union papers.
Employees have the right under Section 7 of the Act to form,
join, assist, or otherwise engage in union activity, free from
interference by the Employer. Unlike Respondent, I do not
regard Velasquez’s comments as noncoercive. Although it may
have been somewhat vague, the implication of threat was clear,
and even if the admonition was offered out of concern, it was
nonetheless coercive and unlawful. Velasquez’ remarks were
essentially a threat of reprisal for engaging in protected activity
and, as such, violate Section 8(a)(1) of the Act.
Q. Beverly Manor, San Francisco, California
Statement of the Case
The complaint, as amended at the hearing, alleges, with re-
spect to the Beverly Manor facility in San Francisco, that Re-
spondent, violated Section 8(a)(1) of the Act by interrogating
an employee concerning his union sympathies, instructed em-
ployees to draft, sign, and circulate a petition to decertify the
Union, physically assaulting a union representative and telling
an employee that a union business agent would be killed unless
he ceased acting for the Union. Further, that Respondent dis-
criminatorily discharged employee Johnny Scott in violation of
Section 8(a)(3) of the Act.

71 Guidry is a field representative for Hospital Health Care Workers’
Union, Local 250.
1. Facts
Respondents operates the Beverly Manor Convalescent Hos-
pital in San Francisco. The administrator of the facility during
the relevant time period was Enid Begay. The DON, hired by
Begay, was Rubin Logan, a RN. The parties stipulated that the
Union has represented under contract, since at least the early
1970’s, a unit of nursing employees, excluding supervisory
LPNs and RNs. The relevant contract was effective September
1, 1989, through September 1, 1991. Daciano Lamparas and
Maria Griffith were the union business agents with responsibil-
ity for administering the contract at Beverly Manor.
On May 7, 1991,72 Scott was hired as a CNA. He had previ-
ously worked as a CNA for Beverly at another facility in Cali-
fornia for about 3 years in the late 1980s and had maintained
his CNA license. Shortly after his hire, he became a restorative
aide and worked in that capacity until his termination on June
20, 1991.
Within a few days after his hire, during a 3-day orientation
period, he was interviewed by Logan who asked him what his
feeling were about the Union, Local 250. Scott responded in a
somewhat negative fashion, saying that it was necessary to be
in the Union in order to work there and referred to a prior nega-
tive experience with the Union. Logan raised the possibility of
decertifying the Union. Scott asked what one person could do,
Logan asked him if he would be willing to support an employee
petition to decertify the Union. Scott’s response was equivocal
to Logan’s inquiry, but in the days following, Logan repeatedly
approached him for the purpose of having him and other em-
ployees circulate an employee petition to get rid of the Union.
A couple of weeks later on Sunday, May 19, Logan called
together Scott and three other male employees. According to
Scott, they were all among the last employees hired. Logan told
them that he wanted to get rid of Local 250 and suggested that
they sign a petition to decertify the Union. He gave them a
piece of paper with some writing on it, which Scott testified he
did not read, and told them that he wanted them to sign it and
also to write out themselves why they wanted the Union out.
Logan said that he did not want to be seen at the facility on
Sunday and did not want the petition returned to him in his
mailbox, but rather wanted it to be slipped under his door.
He then left the four alone in a conference room, ostensibly
to do what he had requested. They discussed the matter among
themselves, with Scott speaking out in favor of representation
by the Union. Apparently, the matter was not given any serious
consideration, and they balled up the paper and batted it
around. Scott finally tossed it into a wastepaper basket.
Thereafter, Scott told a shop steward about the incident and,
on June 18, a charge was filed with the NLRB alleging, inter
alia, soliciting employees to sign and circulate a decertification
petition. A copy of this charge was served on Respondent the
same day by certified mail.
Scott testified that after the Sunday, May 19, incident, Logan
was “on his case” all the time, including a written disciplinary
report dated June 17, signed by Logan, reciting shortcomings
by Scott in his performance of patient care duties.
On June 20, Scott worked the morning shift (7 a.m. to 3:30
p.m.) that was badly shortstaffed. Instead of a normal comple-
ment of 8 employees, Scott was assigned to 13 patients, with
responsibilities that included the dressing, feeding, and bathing.
About 1:30 p.m., he was called to Logan’s office. Logan com-
72 All dates refer to 1991 unless otherwise indicated.
BEVERLY CALIFORNIA CORP. 207
menced to berate him for leaving a certain patient wet for too
long. Scott attempted to explain that they were short-staffed
and that he would attend to it as soon as he finished the patient
he was with. Irma Helton, director of staff development, who
was also present, supported Scott during this discussion. Logan
told Scott that he did not want him on the floor and Scott re-
sponded, “Do what you please,” and returned to his patients.
Shortly thereafter, he was again called to Logan’s office and
offered a choice between signing a resignation or discharge.
Scott told him to do what he wanted and again left the office.
Helton came after him, telling him that he would be well ad-
vised to sign the resignation so as to avoid an unfavorable in-
ference when he sought future employment. Scott took the
advice, returned to Logan’s office, and signed a resignation
form, reciting his “voluntary retirement,” although he testified
that his termination was not voluntary.73
On June 7, sometime before 5 p.m., Union Representative
Daciano Lamparas went to the facility on union business. First,
he met with Arturo Roque, a shop steward at the facility, in the
breakroom. They met until about 5 p.m. when Lamparas left the
breakroom to go to a meeting with Begay. After Lamparas left,
Logan came into the breakroom, approached Roque and said to
him in an angry tone of voice, “Tell your friend to stop fucking
around me or he’s going to get killed.” After leaving his meet-
ing with Begay, about 6 p.m., Lamparas went by the reception
area and said, “good-bye” to Logan and two other employees
who were with him. Logan followed him out the door of the
facility then began to curse him, saying, “This is a Black
neighborhood. I can even kill you.” Logan then struck Lam-
paras on the right side of the face with his briefcase. Logan,
still enraged, told Lamparas to leave him alone or he would kill
him.74 After reporting the attack to Begay, Lamparas was
driven by Roque to the hospital.
On June 25, Maria Griffith, a union field representative,
went to the facility about noon. Pursuant to agreement with the
facility, she reported her presence to the receptionist so that
Begay would know that she was at the facility. Griffith then
proceeded to the lunchroom where she spoke to employees and
distributed union bulletins. While she was speaking to em-
ployee Tony Donaldson, Logan came in and began to scream
obscenities, telling Donaldson that he did not “give a fuck” who
Donaldson was talking to, he was “gone.” Logan railed against
these “fucking union people,” calling them “motherfuckers.”75
Logan continued to rage obscenities as he left the lunchroom.
In order to calm the situation, Griffith left to locate Logan and
found him in the reception area where he was still enraged,
cursing, and, according to Griffith, “foaming at the mouth.” He
spat in her face and attempted to grab her. She ran and Logan
followed her into the business office area. Others came to her
aid and were attempting to restrain Logan. Once in the business
office, Griffith made her way to a telephone behind bars at a
service window. Logan was still attempting to grab at her be-
tween the bars. She was eventually able to call the police and
Logan continued to rage like a mad man. As she attempted to
call Charles Ridgewell, director of the union convalescent divi-

73 Begay testified that she did not participate in the decision to ter-
minate Scott.
74 Logan’s assault of Lamparas was not alleged in the complaint.
75 In May, while visiting the facility, Begay had introduced Griffith
to Logan who refused to shake hands, saying he would never shake
hands with union people.
sion, Logan said, “I don’t give a fuck who you call. Tell Charlie
[Ridgewell] he’s going to be killed too.”
The police arrived and the incident was reported, but Logan
had left before the police arrived, saying that he was quitting.
Subsequently, as a result of this incident, even though he had
resigned, Logan was discharged by Rod Panyik, Respondent’s
RDHR for Region 9. A letter of apology was sent to the Union.
2. Discussion and analysis76
When Logan interviewed Scott during Scott’s orientation, it
is clear, based on the credible evidence in the record, that
Logan questioned him about his views on union representation
by Local 250 and, apparently motivated by what he perceived
as antiunion responses, made an effort to recruit Scott to write
up, sign, and circulate a decertification petition among the em-
ployees. This evidence is not rebutted. I conclude first that the
interrogation of Scott in a context of simultaneously soliciting
him to circulate a decertification was unlawful in violation of
Section 8(a)(1) of the Act.
Also unlawful was Logan’s solicitation to have Scott write
up, sign, and circulate a decertification petition. Employees
themselves are entitled to petition the Board to decertify an
incumbent union. Such an employer decertification effort, how-
ever, may not be initiated or assisted by the employer. Logan’s
involvement in such a way in the decertification process consti-
tutes interference with the right of employees to free choice in
the selection and retention of union representation, and violates
Section 8(a)(1) of the Act.
In these circumstances, Respondent’s contention that the
questioning by Logan was noncoercive under the “totality of
circumstances” test set forth in Rossmore House77 is without
merit.
After May 19, when it became clear that Scott was unwilling
to cooperate in the circulation of any decertification petition,
Logan became critical of his work and, on June 20, under the
circumstances described above, discharged Scott.78
The specific issue to be resolved is whether or not Logan’s
discharge of Scott was discriminatory. I conclude that it was.
The record is ample for me to reach the conclusion, as I do, not
only that Logan displayed union animus but that he was actu-
ally obsessed with ridding the Respondent of Local 250 and,
moreover, that this obsession had violent overtones as sug-
gested by the incidents of assault on Union Representatives
Lamparas and Griffith, set out below, occurring on June 7 and
25.
There is no doubt in my mind that Scott’s reluctance to sup-
port Logan in his unlawful effort to get rid of the Union moti-
vated Logan to discharge him. Employees have the right to
select and retain union representation and may not be dis-
charged for refusing to participate in an unlawful effort to oust
the labor organization they have selected to represent them.
76 Although Scott’s testimony was disjointed and sometimes confus-
ing, it was, in its essentials, credible. Logan did not appear as a witness
at the hearing.
77 269 NLRB 1176, 1177 (1984), affg. Hotel Employees & Restau-
rant Employees Union v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
78 The fact that Scott signed a resignation form does not persuade me
that Scott actually resigned. He was given a choice between discharge,
for which papers had already been prepared, and resignation and chose
to sign a resignation only to avoid the possibility of poor references
when seeking other employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 208
Respondent argues that Scott was an unsatisfactory proba-
tionary employee, previously counseled for violating rules in-
volving improper documentation and smoking in the facility.79
The termination memo recites Scott’s failure to care for wet
and dirty patients. Although these are justifications offered on
Logan’s behalf,80 they are not supported either by Logan him-
self, as he did not testify, nor by any other probative evidence.
Nor do I conclude, as urged by Respondent, that Scott was
insubordinate on June 20. His normal reaction to being har-
assed and discharged discriminatorily cannot be classified as
insubordinate.
In applying the rationale of Wright Line, supra, to the instant
case, it is clear that the General Counsel has met its burden of
making a prima facie showing to support the inference that
Scott’s refusal to participate in Logan’s unlawful effort to initi-
ate a decertification petition was a motivating factor in Respon-
dent’s decision to discharge him. I further conclude that Re-
spondent has not met its burden of demonstrating that it would
have discharged Scott even had he not refused to participate in
the decertification effort. Accordingly, I conclude that Scott
was discharged in violation of Section 8(a)(3) of the Act.
With respect to the events of June 7, it appears that Logan
not only physically assaulted a union representative, Lamparas,
but shortly before that went to the breakroom, where he told
employee Shop Steward Roque to tell Lamparas that he was
going to get killed if he did not stop “fucking around with him,”
in circumstances and a context when he was obviously referring
to Lamparas’ function as a union representative.
In my opinion, a threat to kill a union business agent made
by a DON supervisor and conveyed to a shop steward em-
ployee is coercive. It has an intimidating effect and interferes
with the rights of employees under Section 7 of the Act to form,
join, or assist labor organizations free from interference by the
Employer.
With respect to Logan’s physical assault of Union Business
Representative Griffith on June 25, I am satisfied that Logan’s
behavior was totally unwarranted. For whatever reason, it ap-
pears that the concept of unions representing employees gener-
ated hostile and violent reactions in Logan. He attempted to do
physical harm. He spit and showered her with obscenities in the
presence of employees. Despite the fact that apologies were
made by the Respondent to the Union, his misconduct on June
25 was inhibiting and coercive to employees. Under Section 7
of the Act, employees have the right to union representation
free from interference by the employer. When employees see a
union business representative engaged in the business of repre-
senting them physically abused by a DON, this, without more,
constitutes interference with the Section 7 rights afforded to
employees under the Act.
Respondent, while not attempting to defend or justify
Logan’s attack on Griffith or threats to kill Lamparas, nonethe-
less takes the position that the Employer bears no responsibility
for these actions because Logan was not acting within the scope
of his employment as an agent of the Respondent. This argu-

79 Scott freely admits smoking in the bathroom, one of the reasons
assigned by Respondent as a factor in his determination. This conten-
tion is essentially insignificant, however, and offered as an after-
thought, never being previously advanced by Logan as a factor in
Scott’s termination.
80 Scott testified that he was not disciplined prior to his discharge
and disciplinary memos dated June 12 and 17 were rejected as exhibits
as not being authentic.
ment is not well taken. Logan was hired by Respondent to su-
pervise the the entire nursing staff. This was an organized facil-
ity operating with a union contract. The terms and conditions of
the nursing staff’s employment were regulated by that contract
and Logan was necessarily involved in its administration.
Working with a union contract angered Logan, however, and he
lashed out against it. He unlawfully solicited Scott to circulate a
decertification petition and fired Scott when he would not co-
operate. Although the conduct was outrageous, the objectives
were not without the scope of his authority as DON. Nor were
they contrary to the ultimate interest of the Respondent when,
as here, the record discloses that Respondent’s corporate policy
was to oppose union organization wherever possible. For ex-
ample, the Respondent’s human resources manual sets out a
“non-union environment” as a goal and exhorts the regions to
“support the preservation of a non-union environment” and the
individual facilities to “preserve a union free environment.”81
R. Duke Convalescent Facility, Lancaster, Pennsylvania
Statement of the Case
The complaint alleges with respect to the Duke Convalescent
Facility in Lancaster, Pennsylvania, that Respondent engaged in
various misconduct, including threats and interrogation in vio-
lation of Section 8(a)(1) of the Act.82 Also that Respondent
violated Section 8(a)(3) of the Act by issuing a written warning,
suspending, and discharging employee Amy Johnson, and re-
fusing to permit employee Valerie Faulkner83 to return to work
until she obtained a copy of her job description signed by her
physician representing that she was able to perform the duties
set out thereon. A hearing on these allegations was held on
October 7 and November 12 and 13, all in 1992.
Background
It appears that an effort to organize Respondent’s service and
maintenance employees was begun about January 1991. A peti-
tion for a unit of service and maintenance employees was filed
by Pennsylvania Social Services Union, Service Employees
81 G.C. Exh. 403, labor relations section, p. 1.
82 Par. 1(b) of the complaint was amended at the hearing to admit to
the status of Steve Marek as consultant and agent of Respondent within
the meaning of Sec. 2(13) of the Act and to correct the spelling of his
name. Sec. 2(a) of the complaint was amended to substitute “April” for
“early February.” Par. 2(d) of the complaint was amended to read:
In or about February 1991, a more precise date being pres-
ently unknown to the General Counsel, (i) acting through Kath-
leen Sobeck, criticized an employee for bringing up the subject
of the Union at a staff meeting and (ii) acting through Jonathan
Eigen, told the employee to quit because the employee was a un-
ion supporter.
Par. 2(e) of the complaint was amended to read “During late Febru-
ary and March 1991, acting through Steve Marek, interfered with em-
ployees’ union activities by stationing himself in the employee break-
room during employees’ breaks for the purpose of observing and inhib-
iting employees’ union activities.” Par. 2(k) was added to par. 2 of the
complaint reading:
On or about February 1, 1991, a more precise date being
presently unknown to the General Counsel, acting through Kath-
leen Pereira, told employees that they were not permitted to
wear union buttons or to have union mugs in the kitchen.
Par. 3(b) of the complaint was amended to read “acting through
Jonathan Eigen and Richard Leonard.” Par. 3(c) of the complaint was
amended to read “acting through Jonathan Eigen and Richard Leo-
nard.”
83 Faulkner is now married and her married name is Washington.
BEVERLY CALIFORNIA CORP. 209
International Union, Local 668, AFL–CIO, CLC (the Union or
the Charging Party), on February 8, 1991. An election was held
on March 28, 1991, and the Union was certified on April 10,
1991, as the collective-bargaining representative for that unit.
Subsequently, the parties negotiated and executed a collective-
bargaining agreement effective December 20, 1991, through
December 31, 1994.
1. The 8(a)(1) allegations—facts, discussion, and analysis
a. Refusal to allow mugs or union buttons
Sometime in early February 1991,84 prior to the election on
March 28, Charles Williams, cook supervisor in the dietary
department, and Joanne Williams, his wife, a dietary aide, were
in the office of Kathleen Pereira, food service manager at the
facility, where they were discussing scheduling matters. Chris
Holmes, a NA, came into the office with two coffee mugs bear-
ing the union logo, one each for Charles and Joanne Williams,
“compliments of the Union.” According to Charles and Joanne
Williams, Pereira told Charles Williams to get the mugs out of
her office. He went to put the mugs on the cook’s sink and
Pereira said, “No, out of the kitchen or I’ll break them,” where-
upon Charles Williams took the cups and put them in his car. It
is undisputed that other mugs with various commercial logos
were kept and used by dietary department employees. The tes-
timony of Joanne Williams essentially corroborates the testi-
mony of her husband, except that she recalls Holmes bringing
only one mug into the office.
According to Joanne Williams, Pereira also told employees
at a meeting prior to the election that they were not permitted to
wear union buttons in the kitchen, although it is undisputed that
for some time prior to the election, several employees, includ-
ing Charles Williams, wore union buttons on a continuing basis
in the kitchen, apparently without restriction.
Pereira, in recalling the coffee mug conversation, testified
that she told Charles Williams only to take the mug off her desk
and that, thereafter, she continued to see union mugs in the
kitchen area. Pereira denied any discussion about union buttons
and testified that two-thirds of the dietary department employ-
ees wore them before the election, including Charles Williams,
and that there was no restriction on wearing union buttons.
Having reviewed the relevant testimony, I am persuaded,
based on the corroborated testimony of Charles and Joanne
Williams, that Pereira did tell Williams to remove the union
coffee mugs from the facility. Such restrictions constitute
unlawful interference with the organizational rights of employ-
ees.85

84 All dates refer to 1991 unless otherwise indicated.
85 With respect to the matter of supervisory status, the evidence
shows that Charles Williams normally worked from noon until 8 a.m.
and Pereira from 8 a.m. to 4 p.m. and that after Pereira left for the day,
Charles Williams assumed overall responsibility for the operations of
the kitchen and the dietary department employees working there. He
was also responsible for the closing of kitchen operations for the day at
8 p.m. Williams was also responsible for evaluating the work perform-
ance of employees who worked during those hours when he, rather than
Pereira, was responsible for the work activities of the department. Al-
though the written evaluations were signed by Pereira, she testified that
she relied totally on the evaluations received from Charles Williams. I
am satisfied based on this record, despite the fact that Williams does
not have the authority to hire or fire, and that he voted in the union
election, that he is a supervisor within the meaning of the Act. The
unlawful remarks concerning the mug was nonetheless coercive, how-
I further conclude, however, noting the denial of Pereira and
the lack of corroboration by Charles Williams or other dietary
department employees, that Pereira did not make the remarks
attributed to her prohibiting the wearing of union buttons.
b. January 26—impression of surveillance—prohibition
of union activity
Valerie Faulkner, a NA, testified that on or about January 26,
1991, at the nurses station on the first floor of the facility, she
was approached by Administrator Jonathan Eigen who engaged
her in conversation concerning the union organizational cam-
paign. According to Faulkner, he told her that she had missed a
mandatory meeting the previous day in which the employees
were told that speaking about union activity was prohibited in
front of residents or on the nursing floor and had to be “re-
stricted to the break area.” He also told her that he would not
tell her how to vote, even though he knew where she stood, that
she was prounion. Eigen denied having made such statements
to Faulkner, however, having reviewed the record, I am per-
suaded that Faulkner’s account is credible. Eigen also testified
that he had already been told by department heads in early
January that Faulkner was one of the union organizers, long
before the January 26 conversation. But even assuming that
Eigen had prior knowledge of Faulkner’s union activity, the
effect of Eigen’s remarks, in these circumstances, was to sug-
gest to Faulkner that her union activity was somehow being
monitored, otherwise how would he have become aware that
she was a union supporter? Such remarks constitutes 8(a)(1)
interference with the rights of employees to select union repre-
sentation of their own choosing without employer interference.
Further, advising Faulkner that employee organizing had to be
limited to the breakroom was unlawfully restrictive because it
limited organizational activity to a greater extent than permissi-
ble under existing Board and court law.
c. Criticizing Denita Taylor for bringing up the Union at staff
meeting and telling her to quit
Denita Taylor, a NA, testified concerning a staff in-service
meeting86 in mid-February 1991. At this meeting, Kathleen
Sobeck, director of staff development, advised them that a
change would be made in the way that soiled laundry was col-
lected. This change created additional work for the NAs. Ap-
parently, Taylor took issue with the change and became vocal
and outspoken in expressing her disagreement. Sobeck appar-
ently regarded Taylor’s conduct as disruptive and reported it to
Eigen who called both Sobeck and Taylor to a meeting in his
office on that same day. According to Taylor, she was criticized
by Sobeck for having an “attitude” because of her conduct at
the in-service meeting and “bringing the Union up.” According
to Taylor, Eigen told her that maybe this job was too stressful
for her and that she should find some other line of work.
Sobeck and Eigen both testified concerning a meeting after-
ward in his office. Both testified that the meeting was to repri-
mand Taylor for disrupting the in-service meeting and had
nothing to do with the Union nor was the Union mentioned at
this meeting.87 Eigen testified that he did tell Taylor that she

ever, because it was made in the presence of Joanne Williams, who was
an employee.
86 The purpose of the in-service meeting was to discuss work-related
issues with employees.
87 Sobeck and Taylor agree that the Union was not mentioned at the
in-service meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 210
should consider whether or not the job were right for her if it
were causing her pain. Having reviewed the relevant testimony,
I feel that it is insufficient, particularly in view of the corrobo-
rating testimony of Eigen and Sobeck, to conclude that Sobeck
criticized Taylor for bringing up the subject of the Union at the
in-service meeting. Although Eigen did suggest that Taylor
might want to consider other employment because of the stress
in her work, I cannot conclude that this observation was related
to the Union or its organizational effort and cannot be viewed
as interference with organizational activity within the meaning
of Section 8(a)(1) of the Act.
d. Observing and inhibiting union activity by Marek
Steve Marek was a labor consultant employed by the Re-
spondent to assist management at the facility to present man-
agement views to the employees as part of Respondent’s elec-
tion campaign. He arrived about mid-February 1991.
It is undisputed that he spent substantial periods of time in
the employee breakroom or at a close by area near the time-
clock; by his own estimate, about 25 percent of his worktime.
Marek testified that while he was there he spoke to as many
employees as possible on all three shifts to “educate” them
concerning the position of management. He also answered
questions from employees and visited the breakroom to ascer-
tain that promanagement materials were properly displayed.
Although the General Counsel contends that Marek was “sta-
tioned” in the breakroom for the “purpose of observing and
inhibiting” union activity of employees, the record does not
support the conclusion that his activity was unlawful. Marek
was free to present management’s position to the employees in
any noncoercive fashion available to him.
e. Interrogations by Marek
Harry Brooks, a NA, testified that during the election cam-
paign, Marek approached him in the breakroom, introduced
himself, and told him that he was going to educate him about
management’s viewpoint. Brooks, who was wearing a union
button at the time, told him that he had enough education, but
Marek persisted and asked him how he would vote in the elec-
tion. Brooks responded by telling Marek he could see the union
button he was wearing and that was how he was voting. Marek
recalls a conversation with Brooks. Brooks asked about the
results if the Union won the election. They discussed the nego-
tiating process. Brooks offered the opinion that it would be best
for the facility if the Union were to win. Marek denies that he
asked Brooks how he intended to vote, but, having reviewed
the relevant testimony, I conclude that he did. Nonetheless, in
these circumstances, when an active union advocate wearing a
union button is asked that question, the effect is basically rhe-
torical and, in these circumstances, does not violate Section
8(a)(1) of the Act. Rossmore House, 269 NLRB 1176 (1984).
Faulkner testified that she spoke to Marek at various times at
the facility in February 1991 about the Union and that there was
one time that he called her aside into a closed room to speak to
her separately. According to Faulkner, he asked her if she felt
that the Union would make any changes if it got in and she
replied, “maybe.” He conceded to her that the facility was a
mess, that Eigen had made a lot of mistakes, but asked if they
would give him another chance. Marek testified that he was
aware that Faulkner was a union organizer, wore a union but-
ton, and distributed union literature and that he spoke to her
often about the Union. They discussed what union negotiations
might bring. He admits asking her what she thought a union
would do for her and that she replied it would be good. In these
circumstances and on the facts of this record, I cannot con-
clude, even crediting Faulkner’s testimony, that Marek’s re-
marks can be construed as unlawful interrogation of Faulkner
about her union sympathies. Faulkner was an open, active,
vocal union leader simply discussing with Marek the facility’s
need for a union and the ramifications of union representation.
f. Creating impression of surveillance by Shuman
On the day after the election, March 29, about 3 p.m., Tom
Shuman, director of plant operations, approached Faulkner on
the front porch of the facility and congratulated her on the Un-
ion’s victory, telling her that nursing did what it needed to do,
adding that he knew that his people, presumably the mainte-
nance people, had voted against the Union because of the way
the ballots came out of the box during the counting of the bal-
lots. Faulkner thought this was a strange conclusion to draw but
replied only, “oh” and left. Even crediting Faulkner’s version,
as I do, particularly as Shuman did not testify, I cannot con-
clude that his remarks created an impression among the em-
ployees that their union activities were under surveillance. In
essence, he was simply telling Faulkner about his somewhat
implausible theory for concluding that his employees had voted
for the Union. I cannot conclude that this was threatening or
otherwise coercive within the meaning of Section 8(a)(1) of the
Act.
2. Allegations of discrimination—Faulkner
a. Facts
Valerie Faulkner was an active union adherent from the be-
ginning of the Union’s organizational effort in early January
1991. She solicited and obtained union authorizations cards on
behalf of the Union. She was a member of the union organizing
committee and distributed union leaflets on a weekly basis that
bore her signature as a member of the union organizing com-
mittee. It was stipulated at the hearing that all of the supervi-
sors’ named in the complaint had seen the pamphlets that bore
the names of those employees on the union organizing commit-
tee. She solicited employees to sign union authorization cards
and, after the Respondent declined the Union’s request for rec-
ognition on February 1, she openly and vocally supported the
Union and wore a union button to manifest that support.
Clearly, Faulkner was an active union supporter and all of Re-
spondent’s management was aware of it.
On or about February 11, 1991, Faulkner, who worked as a
nurses aide on the day shift (7 a.m. to 3 p.m.), was told by
Nancy Frye, DON, and Richard Leonard, ADON, that because
of her leadership qualities, she was being transferred from the
first floor of the facility to the second floor so as to improve the
operation there. At this time, Faulkner told Frye that she was 6
weeks pregnant but Frye told her that the transfer was still nec-
essary. Faulkner began working on the second floor, but she
became nauseous and went home for the day. After a scheduled
day off, she returned on February 13, but her timecard was not
in the rack. She asked Leonard why it had been removed. Leo-
nard replied that Eigen wanted her to get a statement from her
doctor that she was able to perform all of the job duties even
through she was pregnant. She went to her the doctor on the
same day, but the doctor, unable to examine her that day, sim-
ply gave her a note saying she could work until her first prena-
tal visit. She returned and gave the note to Leonard about 2:45
p.m.
BEVERLY CALIFORNIA CORP. 211
When Faulkner came in the following day to start work, once
again her timecard was not in the rack. Again she sought out
Leonard who told her that the note was not sufficient and that
she would not be allowed to return to work until her doctor had
specifically cleared her to perform the duties set out in her job
description. She obtained an appointment with the doctor and
then spoke to Eigen in his office. Eigen explained that he was
concerned for the health of her baby. He gave her a job descrip-
tion for the doctor to sign.
Two days later Faulkner saw the doctor and got a letter from
him dated February 20 stating that Faulkner was capable of
fulfilling her job description. She brought it to Leonard and the
following day resumed work.
Eigen concedes that there is no formal company policy re-
quiring pregnant employees to have their job descriptions ap-
proved by a doctor in order to work. Eigen testified, however,
that when he is aware of a problem during a pregnancy, he
requires that this be done because he does not want to be re-
sponsible for an injury or miscarriage. Eigen further testified
that when he was told by Frye and Leonard that Faulkner had
gone home with nausea on February 11, he became concerned
and requested that she have a doctor sign her job description.88
Eigen testified that other pregnant employees were required
to get job descriptions signed by doctors. The record discloses
that Judith Gantz, however, another NA, obtained only a doc-
tor’s statement to show she was pregnant and she worked
throughout her pregnancy without, so far as the record dis-
closes, any job description signed by her doctor. Another NA,
Evelyn Pastrana, testified that in early May 1991, she was ex-
periencing difficulty early in her pregnancy and requested light
duty from Leonard. This request was denied and Pastrana was
allowed by Leonard to go on medical leave. She did, however,
continue to work for a short period after disclosing her physical
problems to Leonard. After going on medical leave, Pastrana
never returned to work at the facility.89
b. Discussion and analysis
Faulkner was not allowed to work until she obtained a doc-
tor’s certificate that she was able to perform all the duties in her
job description. Faulkner testified, and it is not disputed, that
she lost about 4 days in obtaining the required certification
from the doctor. The General Counsel contends that this re-
quirement was discriminatory and was applied to Faulkner for
having engaged in activity on behalf of the Union. I agree.
First, the Respondent does not contend that there is any writ-
ten or even standard policy for determining who must obtain
job description certification from a doctor, nor does the record
show that there was any uniform policy applied for illness re-
lated to pregnancy. Indeed, in two other instances, specifically
Gantz and Pastrana, the problem was treated differently. So the
question remains, why this requirement, which deprived Faulk-
ner of several days of employment, imposed?
In reviewing the record, it is clear that Faulkner was among
the most active and vocal of the union supporters and that her
union sentiments were well known to management, including

88 Frye did not testify, and Leonard, while he did testify, did not tes-
tify concerning this allegation.
89 A letter from Leonard to Pastrana dated May 8 appears to require
a doctor’s approval of her job description before she could return. Pas-
trana denies ever receiving it, however, and there is no proof of deliv-
ery, although a notation to that effect appears on the letter. In these
circumstances, I cannot conclude that Pastrana received the letter.
Eigen and Leonard. In evaluating the conduct of Eigen and
Leonard in refusing to allow Faulkner to work, a look at the
circumstances makes it suspect. All that Eigen knew when he
imposed the requirement was a report that Faulkner had left
work early on a single day with nausea. It is difficult to believe
that based on this one piece of information, that Eigen would
conclude that Faulkner, who appeared to be a strong, healthy
person, would immediately be precluded from returning to
work without a doctor’s certificate reciting her ability to per-
form all the assignments in her job description. The record does
not support Respondent’s contention that Eigen was acting out
of concern for the well- being of Faulkner or her baby. We
must look elsewhere for motivation. In my opinion, that moti-
vation had its genesis in Faulkner’s activity on behalf of the
Union. This record supports the conclusion that Faulkner was
denied work not out of Eigen’s concern for her health or her
baby’s health, but because she was was actively supporting the
Union during the organizing campaign.
3. Johnson’s suspension and discharge
a. Facts
Amy Johnson was a CNA on the day shift. Like Faulkner,
she was among the first to support the Union’s organizational
effort at the facility. She was a member of the union organizing
committee and distributed pro-Union leaflets at the facility on
more than five occasions and was observed by Eigen while so
engaged. Her name appeared on the union pamphlets as a
member of the union organizing committee and, as noted ear-
lier, the parties stipulated that these pamphlets were seen by
management supervisors. Johnson also solicited employees to
sign union authorization cards and obtained signed authoriza-
tion cards from about 15 employees, which she gave to the
Union, and she also wore a union button.
On April 11 in the early afternoon, at the facility, Johnson
was about to leave the floor to get ice for the residents when
she was called to attend a checkup in-service training session
about lifting techniques and transferring patients being con-
ducted by Valerie Ashford, a physical therapy aide. She
stopped getting the ice and went to the training session. Ash-
ford read a description of the training to them and all signed a
report of the meeting attesting to their attendance. As Johnson
had begun getting the ice, she asked Ashford if she could finish
that job and then return to the session. According to Johnson,
Ashford agreed and Johnson finished getting the ice and re-
turned to the session. Ashford did not testify, but Pastrana,
another NA in attendance, testified that Johnson did ask per-
mission and was allowed to leave to get ice for the patients.90
Thereafter, she returned to the session where she participated in
the transfer of a patient as a part of the training session. John-
son testified that Ashford did not appear upset when she re-
turned and did not say anything critical to her.
A few days later, Leonard mentioned to Johnson that she
might be disciplined for leaving the session without permission,
and Johnson replied that she had asked for and received per-
mission to leave from Ashford.
Nonetheless, on April 16, after she had punched out, she was
told to see Leonard who was then in Eigen’s office. As he left
Eigen’s office, Leonard approached Johnson and told her she
90 Ashford did not testify, and her accounts of the incident appearing
in R. Exh. 1, marked for identification, but not admitted, are not in
evidence, and are hearsay in any event.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 212
was going to get the writeup. As they were walking from there
to Leonard’s office, according to both Leonard and Sobeck, she
said, referring to Ashford who was nearby, that she would
“whip her ass.” Johnson denies this but rather that she said, “I
have a trick for her ass.” Once in Leonard’s office, she was
given a copy of a disciplinary “Final Warning” memorandum
for “Group I #3 Leaving department or assigned working area
during shift without immediate supervisor’s approval.”91 This
written warning was prepared at Eigen’s direction and signed
by Leonard as supervisor and Eigen as administrator. Johnson
refused to sign for the receipt of the warning.
After leaving Leonard’s office, Johnson called the Union and
spoke to Union Representative Dean Topakian, who advised
her to return and get a copy of the disciplinary memo. She re-
turned to the facility with Topakian. Topakian was denied en-
trance into Eigen’s office, however, so Johnson went in by
herself. Once in Eigen’s office, she requested a copy of the
memo for the union representative and their attorney. Eigen
replied that the final decision would not be made by the Union,
and that he wished that the Union would buy a nursing home,
and take all the employees with it. He also told her that al-
though she was a good worker, if she got one more “write up,”
she was out. She said she knew that. She was given a copy of
the warning memo and left.
Eigen testified that a “final warning” was issued because
Johnson had previously been issued a warning for using foul or
abusive language to a coworker. Eigen also testified that this
memo was cleared with Martinez, because during this organiz-
ing period it was company policy to clear all disciplinary
memos with the human resources department. After consulting
with Martinez, it was also decided not to issue any written
warning based on Johnson’s comments to Leonard about Ash-
ford, as it appears that Ashford did not hear them.
The incident immediately preceding Johnson’s discharge oc-
curred on May 28. Johnson testified that she was assigned to
the personal care of anywhere from 11 to 13 patients and that 2
of those patients were Ellen Leed and Mable French, who had
rooms across from one another. On this morning French had
two visitors, Ruth Ann Johnson, who was Leed’s granddaugh-
ter, and Ardeth Haddon, her daughter. After finishing the morn-
ing care for French, Amy Johnson went for some shampoo and
thereafter across the hall to Leed’s room where she was assist-
ing Leed to the shower room to take a shower. Leed was in a
shower chair. At this point, Ruth Johnson interrupted her to say
that French had expressed a need to go to the bathroom and
asked Amy Johnson to take her. Johnson replied that she had
just taken her to the bathroom but left Leed and went over to
French’s room anyway. On entering the room and slamming
the door behind her, she asked French if she really needed to
go. French responded affirmatively and Johnson began to get
her out of her wheelchair onto the commode. In the meantime,
Leed had begun screaming, demanding that she wanted to be
given her shower.
At about this point, Eigen came into French’s room. He
asked the two visitors if Johnson had slammed the door or was
talking loudly, and they said that she had. Eigen commenced to
reprimand her for the loud tone of voice she was using. Johnson
objected to being reprimanded in front of French and her visi-
tors and stated that she had only told Leed, however loudly, that

91 It does not appear that Ashford was a supervisor, but rather a
physical therapy aide.
she was only one person and would be back to give her a
shower shortly. Johnson asked Eigen to leave so that she could
take French to the bathroom, and he did so, slamming the door
as he left.
Later in the morning, just before lunch, Leonard gave John-
son a written disciplinary memorandum dated May 28, 1991,
providing a 3-day suspension pending an investigation for pa-
tient abuse. The body of the memo, signed by Eigen, reads:

I overheard Amy Johnson yelling at 2 residents and
then slam the door to the room of one of the residents
whom she was removing from the commode. Two mem-
bers of the resident’s family were present. I informed Ms.
Johnson her conduct was inappropriate and disciplinary
action would result.

After 3 days, on Friday, May 31, Johnson called to inquire
about her status. She was told by Eigen that the matter was
before higher authority and no decision had been made.
On June 5, Eigen called to advise her that she was being ter-
minated for patient abuse. She asked for a copy of the discipli-
nary memo. Eigen agreed. She came to the facility and obtained
a copy of a disciplinary memo dated June 5 reciting her dis-
charge for patient abuse, and referring to the May 28 discipli-
nary memo for “details.”
Eigen testified, concerning the incident, that he was walking
down the hall when he heard screaming across the hall from
French’s room to Leed’s room to “shut up” and Johnson saying
that she would get to Leed when she got a chance and that
Johnson then slammed the door to French’s room. Thereafter,
he went into French’s room, where Johnson was assisting
French, and solicited both of the visitors to come to his office
after their visit with French to tell him what they had seen.
They did so, and Eigen solicited from them a statement and
also obtained a statement from Leed. Neither of the two visitors
nor Leed testified at the hearing. Eigen also testified that as a
matter of policy, he consulted with Raymond Martinez, re-
gional human resources representative. Eigen faxed Martinez
the information he had gathered, and subsequently they agreed
that discharge was appropriate, whereupon the disciplinary
discharge memo was made up and given to Johnson on June
5.92
b. Discussion and analysis
Clearly, Johnson was among the most active union support-
ers during the Union’s organizational effort. As noted above,
she was a member of the organizing committee and wore a
union button during the campaign. She also solicited union
authorization cards, distributed union pamphlets, and was ob-
served by Eigen so engaged. The General Counsel has estab-
lished that Johnson was engaged in union activity and the Re-
spondent was aware that she was so engaged. It remains for the
General Counsel to show that disciplinary action taken against
Johnson was motivated by her union activity rather than for
valid and lawful considerations. This has been done.
In evaluating the testimony concerning the April 11 incident,
it is significant to note that Ashford did not testify and that
Ashford was not a supervisor but a rather nonsupervisory
physical therapy aide. The only witnesses to the incident who
testified were Johnson and Pastrana whose testimony is mutu-
ally corroborative. Having reviewed the record, it is my conclu-
92 Martinez did not testify.
BEVERLY CALIFORNIA CORP. 213
sion that these accounts are credible and that the facts disclose
that Johnson interrupted getting ice for patients on being called
to an in-service training session. She went to the training ses-
sion, listened to a reading of the subject matter, and signed the
attendance sheet. Thereafter, on obtaining permission, she left
to finish getting ice and later returned to complete the training
session. It does not appear that Ashford expressed any disap-
proval to Johnson for anything she had done. In these circum-
stances, the record is totally insufficient to support the Respon-
dent’s contention that Johnson was given a disciplinary warn-
ing memo for “leaving department or assigned working area
during shift without immediate supervisor’s approval.” Given
the Respondent’s union animus, demonstrated by a strong anti-
union campaign, and the total absence of any credible justifica-
tion, I conclude that that reason assigned by Respondent for
issuing its disciplinary warning of April 16 was a pretext and
that Johnson was actually given retaliatory discipline for having
supported the Union during its successful bid to organize the
Respondent’s service and maintenance employees.93
With respect to the 8(a)(1) allegation involving Johnson, as
noted above, at the time Johnson obtained a copy of the disci-
plinary memo on April 16, she was told by Eigen that if she
received another disciplinary memo, she would be out. Given
the fact that I have concluded that the disciplinary memo dated
April 16 was unlawfully discriminatory, Eigen’s threatening
reference to her discharge for receiving another was also un-
lawful under Section 8(a)(1) of the Act. I cannot conclude that
Section 8(a)(1) was violated, however, when Eigen expressed
the hope that the Union would buy a nursing home and take the
employees with it. Nor does it appear to me to restrict any of
the rights set out in Section 7 of the Act for Eigen to have
expressed the view that it would not matter if the disciplinary
action was given to an attorney. This was only an observation
by Eigen without coercive implications.
Turning now to the incident of May 28, which led to John-
son’s discharge, the record discloses that only two witnesses
testified at the hearing, Johnson and Eigen, and Eigen did not
witness all that transpired. None of the other witnesses, Leed,
French, Ruth Johnson, or Ardeth Haddon testified, and state-
ments taken from them are hearsay, without evidentiary value.
Martinez, although involved in the decision to discharge John-
son, was not called to testify either. Having reviewed the proba-
tive testimony, I am satisfied that Johnson found herself in the
unenviable position of having to simultaneously attend to the
needs of two elderly and disabled patients, one of whom she
was taking for a shower and the other who needed to go to the
bathroom. She made a reasonable judgment that the patient
needing to go to the bathroom, French, would be given priority
whereupon she would then return to give Leed a shower. When
she left Leed to care for French, Leed loudly complained that
she wanted her shower. Johnson loudly responded that she
would come back shortly. Johnson went into French’s room,
perhaps somewhat exasperated because she had taken French to
the bathroom just minutes earlier, slamming the door behind
her. After inquiring if she really needed to go, Johnson assisted
French to the bathroom. Eigen came on the scene and inquired
of the visitors about the problem and solicited them both to
come to his office to give a statement after their visit. He also
obtained a statement from Leed, although neither of these indi-

93 As noted earlier, the Union was certified on April 10.
viduals, nor French, had complained about the incident to Eigen
themselves.
In my opinion, this was a brief and inconsequential event,
even assuming, as I do, that Johnson did yell to Leed and did
slam the door to French’s room. In my opinion, Eigen, on his
own initiative, deliberately overreacted to what little he had
observed and seized on the incident as a vehicle by which to
discharge Johnson. He solicited statements to support this ob-
jective and labeled the incident “patient abuse” for the purpose
of discharging Johnson. In other words, without condoning
what Johnson did, I conclude, noting particularly the discrimi-
natory intent manifested by the unlawful disciplinary memo-
randum of April 16, that Eigen’s proffered justification for
Johnson’s discharge was a pretext and that the motive was ac-
tually retaliatory against Eigen for having been a union adher-
ent.
In applying the Wright Line94 criteria to this matter, I con-
clude that the General Counsel has made a prima facie showing
that union activity was a motivating factor in the Respondent’s
decision to discharge Johnson. Further, I am satisfied that the
evidence offered by the Respondent to support its decision to
discharge Johnson is totally insufficient to support its burden of
showing that it would have discharged Johnson, even in the
absence of her protected concerted activity.95
Accordingly, I conclude that Respondent violated Section
8(a)(3) of the Act by issuing a written disciplinary warning and
suspending Johnson on April 12 and by discharging Johnson on
June 5. Further, threatening discharge for receiving another
disciplinary memo, in circumstances when the prior discipli-
nary memo was unlawful, violates Section 8(a)(1) of the Act.
S. Carpenter Care Center, Tunkhannock, Pennsylvania (1)
Statement of the Case
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by making “comments to an employee de-
meaning the employee’s participation in a Union initiated
OSHA investigation that was being conducted at Respondent’s
Tunkhannock’s facility.”
Respondent is also alleged to have violated Section 8(a)(3)
of the Act by issuing disciplinary warnings to employees in
retaliation for their picketing or having filed a contract griev-
ance. The complaint also alleges 8(a)(3) violations in suspend-
ing, warning, and reassigning employee Allison Reaves “be-
cause Allison Reaves encouraged a patient to participate in a
Union-initiated investigation by OSHA of Respondent’s Tunk-
hannock facility.”
Also, Respondent is alleged to have violated Section 8(a)(5)
of the Act by changing the procedures “by which employees
who receive work-related injuries are reimbursed for medica-
tion,” and by refusing to furnish information to District 1199P
National Union of Hospital and Health Care Employees, SEIU,
AFL–CIO (the Union), which information was necessary and
94 251 NLRB 1083 (1980).
95 Although Respondent contends that Johnson had previously
forced-fed French a dietary supplement, as additional justification for
Johnson’s discharge, the probative evidence to support this contention
is totally insufficient. Nor are the disciplinary discharge memoranda of
other employees persuasive because, even conceding that other em-
ployees were discharged for various offenses, including patient abuse,
these memoranda are insufficient in any evidentiary way to support the
Respondent’s position that Johnson’s discharge was justified on the
facts of the instant case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 214
relevant to the Union in the “performance of its duties as the
exclusive collective-bargaining representative of the Unit.”96
1. Facts
a. Timecard violations—disciplinary warnings
In late April 1991,97 Donna Connery came to the Carpenter
Care Center facility as administrator, a post in which she had
served previously from 1988 to 1990. According to Connery,
after she arrived, she began to review company payroll docu-
ments and discovered that they were not consistent and deter-
mined that there was a problem with employees being paid for
time they did not work, notably at the beginning and end of
their shifts.
It appears that it had the practice to allow a 7-minute grace
period for punching in and out at the beginning and end of the
shifts. For example, assuming that an employee worked the
afternoon shift from 3 to 11 p.m., the employee would be al-
lowed to punch in from 3 to 3:07 p.m. without pay being
docked and to leave anywhere from 10:53 to 11 p.m. without
being docked. It also appears that if an employee punched in
earlier than 2:53 p.m., the employee would be paid 15 minutes
of overtime. Likewise, if an employee punched out later than
3:07 p.m., that employee would get 15 minutes of overtime
pay. According to Connery, employees were required to obtain
the written authorization of a supervisor every time overtime
was paid and that this was not being done. Although conceding
the existence of a 7-minute grace period for pay concerning
punching in late and out early, Connery testified that Respon-
dent’s policy required that written authorization of a supervisor
be obtained for overtime, even for periods of overtime as short
as 1 minute. Connery contended that otherwise, employees
were being paid for time they did not work, or that was not
authorized, in violation of company policy.98 The bookkeeper
simply paid for all the time shown on the timecards and was
unaware whether it had been authorized or not.
It appears that the employees, prior to Connery’s arrival,
were being paid not only for time worked within the 7-minute
grace period, but also for time worked in excess of the 7 min-
utes before and after work hours in quarter hour intervals with-
out supervisory approval. The parties stipulated that no written
disciplinary warnings had been issued in these instances from
January 1, 1991, through the payroll period ending January 27,
1991, except in one isolated incident, and that the level of in-
fractions occurred with about the same frequency and extent as
those during a review period noted below from June 28 to July
10 for which the disciplinary warnings were issued.
Connery issued a memo to the staff dated July 1 reading, in
relevant part:

Any additional time other than your regularly sched-
uled shift must be initialed and approved by the facility
supervisor. This must be done before you leave the facility

96 No opposition thereto having been filed, Respondent’s motions to
correct the transcript are hereby granted.
97 All dates refer to 1991 unless otherwise indicated.
98 The employee handbook states as “Minor Violations,” the follow-
ing infractions:
8. Clocking in early or clocking out late without the ap-
proval of your Supervisor.
9. Failure to clock/sign in or out for scheduled shift or meal
periods; repeated incidents of clocking/signing in or out seven
minutes before or after scheduled work shift.
on that day. If time cards are handed in without proper ap-
proval payment will not be made.

This memo was distributed to staff employees with their pay-
checks on July 3.
On or about July 10, Connery spoke to Jean Franko, DON,
and instructed her to review the time period from June 28 to the
payroll period ending date July 10 and to issue disciplinary
warnings for violations of company timecard policies during
that period. Franko did so, and disciplinary warnings were is-
sued to some 26 LPNs and nurses aides for various infractions,
mostly leaving or arriving late, for however short a duration, or
working overtime, without authorization from a supervisor. The
written disciplinary warnings were all attached to paychecks
issued on the payday of July 18, 1991.
To put the matter in perspective, it appears that previously,
by letter dated July 2, John August, president of the Union, had
written to Connery to advise her that the Union would be en-
gaging in informational picketing at the facility from 1:30 until
4:30 p.m. on Thursday, July 18.99 Connery was not at the facil-
ity when the letter arrived on July 3 but was called at home by
Franko who informed her of the contents of the letter. The
picketing did, in fact, take place as scheduled, limited to the
hours set out in August’s letter, with picket signs alluding to
such alleged deficiencies such as staffing shortages and patient
care.
A contract grievance was subsequently filed by the Union,
alleging discrimination against those employees who had been
issued disciplinary notices, but the matter was resolved when
Connery, on instructions from Michael Plott, human resources
director for region 1, reduced the actions to oral counseling and
2 weeks’ later, physically removed all the written disciplinary
warnings from the employees’ personnel files.
With respect to the allegations of discrimination against
Charles Benninger, it appears that Benninger, a CNA, was em-
ployed on the 11 p.m. to 7 a.m. shift. On the night of June 22,
he was working with NA Jennifer Benett. Benett went home
sick and was not replaced, however, causing the shift to work
shorthanded and making it necessary for Benninger to work
overtime through his 1/2-hour supper break. Benninger did not
punch in or out for a supper break as he normally would have
done nor did he get this overtime authorized by a supervisor.100
Benninger was not paid for this 1/2-hour overtime and he filed
a grievance on July 10, protesting Respondent’s refusal to pay
him the overtime although he concedes that any overtime in
excess of 7 minutes should have been authorized by a supervi-
sor because that was the proper procedure.
Thereafter, on July 18, Benninger was issued a disciplinary
warning that he received with his paycheck on that day reciting,
“Failure to take lunch break. Did not receive approval from 11–
7 Supervisor.”101
Benninger participated in the picketing that took place on
July 18 between 1:30 and 4 p.m. and thereafter worked his
regular shift from 11 p.m. to 7 a.m.
99 The Union represented under separate contracts, units of LPNs
and service and maintenance employees. Both contracts were to expire
on November 30, 1992.
100 Respondent’s action in refusing to pay Benninger was later re-
scinded on July 16.
101 This was a second disciplinary warning issued to Benninger on
July 18, he was also among the group of 26 issued warnings at this time
for timecard violations.
BEVERLY CALIFORNIA CORP. 215
b. Unilateral changes—reimbursement for prescription drugs
Respondent provides reimbursement to employees for pre-
scription drug expenses in connection with work-related inju-
ries arising under Workmen’s Compensation statutes. Prior to
February 1992, it had been the practice for employees to go to
the pharmacy used by the facility where they could either pay
for those prescriptions and be reimbursed at the facility out of
petty cash on presentation of their receipt or when they went to
the pharmacy, the pharmacy would call to confirm their em-
ployee status whereupon the pharmacy would bill the facility.
According to Connery, the problem with this system was that
the pharmacy did not always call to confirm the employee
status and that prescriptions for injuries not arising under
Workmen’s Compensation were also being paid. Connery dis-
cussed the matter with Plott and raised the problem with its
workmen’s compensation insurance carrier, Travelers Insur-
ance Company, in February 1992. The problem was corrected
at that time by initiating a system whereby the employee paid
for the prescription and, thereafter, either submitted receipts
directly to the insurance company for reimbursement or
brought the receipt to the facility where the facility submitted
them on behalf of the employee for reimbursement to the em-
ployee. The new system caused delays in reimbursement, rang-
ing from 2 weeks to 2 to 3 months.
Connery admits that this change in the manner of reim-
bursement was made without notice or consultation with the
Union because it was her understanding that because the reim-
bursement required under workmen’s compensation for work-
related injuries was still being made, it was not necessary to
discuss the manner or reimbursement with the Union.
c. Demeaning comments—8(a)(1)
In the first week of January 1992, OSHA investigators con-
ducted an investigation at the facility concerning work-related
injuries. Employees were interviewed by investigators in a
conference room at the facility. Audrey Russell, CNA and
president of the local chapter of District 1199P, was designated
by the Union to be present for interviews conducted before her
shift began. She worked from 3 to 11 p.m., so she spent consid-
erable more time at the facility than normal during the some 4
days that OSHA was conducting the investigation.
According to Russell, during this period of time, Connery
once spoke to her, asking if her “fanny” was getting tired from
sitting. At another time, as she was leaving the premises, Con-
nery noted she was “leaving so soon,” and Russell responded
that she had a life other than the facility. On another occasion,
Connery said that she might have a room or closet at the facility
for her because she was spending so much time, to which Rus-
sell testified that she may have responded with a laugh. Other
than the comments about finding a room, Connery denied mak-
ing the comments attributed to her by Russell.
d. Allison Reaves’ suspension and transfer
On or about November 20, pursuant to a complaint filed with
OSHA by the Union concerning work-related injuries from
lifting residents, investigators from OSHA appeared at the fa-
cility. At that time, they were denied admission by Connery.
The investigators reappeared on November 21 with a Federal
District Court warrant and, on the advice of her superior and
corporate legal counsel, Connery again refused to allow the
investigators on the premises. The investigation was to have
included the videotaping of residents being lifted and trans-
ferred by employees. After some litigation, Respondent was
ordered to permit the inspection, including videotaping, on
obtaining a written consent or release from those residents
videotaped.
A list of suitable residents was compiled by management.
Those residents on the list were visited by teams of three man-
agement employees to inquire about their willingness to par-
ticipate in the videotaping of the OSHA investigation. A team
comprised of Jean Franko, DON, Mary Zawicki, social services
director, and Lori King, LPN charge nurse on the gold wing,
visited Olive Wells, one of the preselected residents, on January
13, 1992.102 According to Franko, it was difficult to explain the
concept of the OSHA complaint and videotaped investigation
to Wells and Wells appeared to be concerned about a Govern-
ment agency coming into the facility. Wells was uncertain
about participating in the plan and mentioned speaking to her
daughter about it. As the team left, Wells commented that she
did not think it would be necessary, and that she felt her daugh-
ter would agree.103
On January 13, Allison Reaves worked the 3 to 11 p.m. shift.
She was told during a break by Tammy Reider, a NA, that
Wells was upset because she was not sure she had made the
right decision in not signing the release.
The next night, January 14, Reaves returned to the gold wing
and spoke to Wells about 7:30 or 8 p.m. as she was putting her
to bed. Wells appeared to be upset and Reaves asked her how
she was. Wells told her that three women had come to talk to
her the previous night and that she was afraid that if she signed
a release to be videotaped, the State would either come in and
take the place over or close it down. According to Reaves,
Wells was a nervous woman who “worried about things a lot.”
Reaves explained why OSHA had come and that they could
show the employees ways of lifting without getting hurt and
possibly get them more help. Reaves also advised her to call
her daughter if anyone came in like that again, and also that if
she was ever asked again to sign a release form, that it would
be fine to sign it. Reaves testified that she did not raise her
voice to Wells nor speak to her in a critical way. Nor did Wells
indicate that she was upset with Reaves.
On the following day, January 15, according to Connery,
King came to her office and told her that she had a received a
complaint from Wells to the effect that she had been “yelled at”
the night before and wanted to register a complaint with the
administrator. Thereupon, Connery, Franko, and King visited
Wells. According to Connery and Franko, Wells told them that
a nurse had yelled at her the prior night, telling her that it was
her fault that they would not be getting any more staff at the
facility because she refused to have movie taken. Wells ex-
pressed concern that she would not be taken care of and refused
to identify the nurse because she was afraid because the nurse
was still working there.
Later in the day Wells’ daughter and son-in-law came to the
facility and, before visiting Wells, stopped to speak to Franko
in her office. They said that their mother was having problems
with a nurse named Allison; that Allison was rude and yelled at
her. Franko spoke to them about the Wells’ “videotaping”
complaint, and asked them to try to get the identity of the nurse
when they spoke to her mother.

102 All dates refer to 1992 unless otherwise indicated.
103 None of the others present, Wells, King, or Zawicki, testified at
the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 216
Sometime later, they returned and identified Reaves as the
nurse, but also stated that they did not want Reaves to get into
trouble over the matter and expressed no intent to file any com-
plaint.
Reaves was scheduled off on January 15 but on January 16
she was called by ADON Gloria Eastwood to come early.
When she arrived she was directed to Franko’s office. Connery,
Marge Liples, a nursing supervisor, and Eastwood were there,
as well as Valerie Milliron, a union delegate. Connery advised
Reaves that she was being suspended for yelling at Wells. The
disciplinary memoranda given to Reaves states:

Resident O. Wells states A. Reaves yelled at her and
told her she should have signed paper from OSHA to be
videotaped and we would have gotten more help.

Reaves denies this in the “Associate Comment” portion of the
memoranda stating:

I did not yell or harass resident. I just talked to resident
to try and calm down. Resident afraid of State coming in.

A grievance was filed immediately and a second-step meet-
ing on the grievance was held on January 21. On January 23,
Reaves was called by the facility and told to come in dressed to
go to work.
She reported to Connery’s office when she was advised by
Connery that the suspension was being dropped and that she
would be reimbursed for the days of the suspension, also that
she would receive a written oral warning and be required to
attend in-service instruction on resident rights. Further, she
would not be allowed to return to the gold wing where she
normally worked. According to Franko and Connery, the deci-
sion to reassign Reaves was due to a concern for Wells’ welfare
as Wells was “still fearful and afraid.”
On February 18, the Union filed a complaint under Section
11(c) of OSHA alleging that Reaves, among others, was disci-
plined for engaging in protected health and safety activity.
e. Refusal to furnish information to the Union—Allison Reaves
and Patricia Carr
By letter dated January 23, Betsy Mazione, union organizer,
wrote to Connery stating:

I am requesting all evidence, statements and documen-
tation leading to the suspension of Allison Reaves on
January 17, 1992. This information is necessary in order to
properly prepare for continuation to the next step of the
grievance process.

By letter dated January 27, Connery sidestepped a direct re-
sponse by stating:

In response to your letter dated January 23, 1992; after
investigation, the suspension of Allison Reaves has been
stepped down to an oral warning. Ms. Reaves will be paid
for all scheduled time lost and has been reassigned to an-
other wing.
It is my understanding that after meeting with Allison
and her representative, Faye Brennan, that this matter has
been resolved.104

Mazione testified that after receiving this letter, she called
Reaves and was told by Reaves that Reaves did not feel that she

104 Faye Brennan is a union delegate and NA at the facility.
should continue to have an oral reprimand in her file or to be
moved from the gold wing.
Mazione testified that by the time she got Connery’s letter
and spoke to the “people involved,” the time limit for moving
Reaves’ grievance to the third step had expired, and the griev-
ance was not pursued.105 It does not appear that any request for
extension of the time limit was made by the Union. According
to Connery, such request would have been granted if it had
been made.
Another request for the same information was made by letter
dated February 18. Another grievance had been filed on behalf
of another NA at the facility named Patricia Carr. She was sus-
pended and subsequently discharged for patient abuse. The
letter requesting information regarding both Carr and Reaves
reads, in relevant part:

I am requesting all evidence, statements and documen-
tation leading to the suspension and subsequent termina-
tion of Patricia Carr.
This information is necessary in order to properly pre-
pare for continuation to the next step of the grievance pro-
cess.
As per my letter dated to you January 23, 1992, I am
still requesting the information I requested on the suspen-
sion of Allison Reaves.

At a third-step grievance meeting on April 15, Respondent
provided to the Union the information it had requested concern-
ing Carr in the February 18 letter. Carr’s discharge is scheduled
for arbitration, but no date has yet been established.
2. Discussion and analysis
a. Timecard violations—disciplinary warnings
The General Counsel contends that the issuance of oral dis-
ciplinary warnings106 to 26 employees, including Charles Ben-
ninger who received both an oral warning and a written warn-
ing, on January 18 was motivated by union picketing conducted
on that date, of which Connery had previously been advised on
July 3. Respondent argues that the issuance of the disciplinary
warnings were designed to correct a long-standing problem of
employees being paid for the time they did not work or was not
authorized. In my opinion, the General Counsel must prevail.
First, it is undisputed that these timecard discrepancies ex-
isted long before Connery arrived at the facility and the parties
stipulated that no disciplinary action, with one exception, had
been taken for timecard infractions from January 1, 1991, until
July 18, 1991, when the warnings were issued.
When Connery arrived, in an effort to correct the problem,
she issued a staff memo dated July 1, advising employees that
they would not be paid for any overtime. Overtime had to be
initialed and approved by the facility supervisor or payment
would not be approved. This memo did not warn or even sug-
gest disciplinary action was contemplated. It simply stated that
they would not be paid for any time not approved by a supervi-
sor. It said nothing about any supplement to the existing com-
pany policy that appears in the employee handbook supplement
set out above. Why then was the decision made to issue disci-
plinary warnings on the same day that the Union picketed? In
105 The contract provides 10 workdays for notice by the Union of its
intention to submit a grievance to the third step after the administrator’s
response at the second step.
106 Although described as “oral warnings,” they are issued in writing.
BEVERLY CALIFORNIA CORP. 217
my opinion, the decision was retaliatory, made in response to
the Union’s announcement of the picketing.
Although Respondent argues that it was making a “bona
fide” effort to correct timecard deficiencies, that does not ex-
plain the timing of the discipline, particularly in view of the
fact that they were issued summarily, without any of the prior
counseling provided for in the normal corrective action proce-
dures set out in the employee handbook supplement.
In short, Connery, after receiving the Union’s notice of in-
tention to picket on July 3, responded by issuing disciplinary
warnings on the day of the picketing.
Respondent’s reliance on Wright Line107 is misplaced. In my
opinion, the General Counsel, based on these facts and the
other prior unfair labor practices found herein at the facility,
has made a prima facie showing sufficient to support the infer-
ence that the picketing, a protected activity, was a motivating
factor in Respondent’s decision to issue the warnings. Respon-
dent has failed to sustain its burden of showing that the disci-
plinary action would have been taken even in the absence of
that protected activity.
Regarding Benninger, as noted above, in addition to being
one of the 26 issued disciplinary warnings for timecard discrep-
ancies, was also issued a second warning, as set out above.
It is not disputed that Benninger worked overtime through
his lunch hour because the shift was shorthanded and that he
did not punch in and out. It also appears that it was not until a
grievance was filed that Benninger was paid for the overtime.
Despite the fact that Benninger did not follow appropriate
procedures in having the overtime approved, I am persuaded
that consistent with the rationale set out above, that Respon-
dent’s motivation for the second disciplinary warning issued to
Benninger was retaliatory. It was a response both to Ben-
ninger’s filing the grievance on the matter and to the Union’s
decision to picket the facility.
Accordingly, I conclude that all of the disciplinary memos
issued by Respondent on July 18 were discriminatory, within
the meaning of Section 8(a)(3) of the Act.
b. Unilateral changes—reimbursement for prescription drugs
When Respondent changed its policy to require employees to
pay for their drugs and then wait weeks or even months for
reimbursement, this was clearly a change in the terms and con-
ditions of their employment. Under well established Board and
Court law, changes in the terms or conditions of employment of
represented employees cannot lawfully be undertaken without
notice and bargaining with the collective-bargaining representa-
tive over such changes. The record discloses; indeed the Re-
spondent concedes, that no such notice or bargaining with the
Union was undertaken. Accordingly, Respondent’s action in
unilaterally changing the method of reimbursement for pre-
scription drugs under its workman’s compensation procedures
constitutes an unlawful refusal to bargain under Section 8(a)(5)
of the Act.108

107 251 NLRB 1083 (1980).
108 Respondent also argues that the Union waived its right to bargain
over changes under the “Health and Welfare” provisions of the con-
tracts in effect. This argument is misleading, however, because work-
men’s compensation benefits are not among those plans covered by the
contracts.
c. Demeaning comments—8(a)(1)
Connery denied asking Russell if her “fanny” hurt from sit-
ting on it during in on the interviews or commenting on her
“leaving so soon.” She admits telling Russell that they might
need to find a room for her at the facility because she spent so
much time there. It is unnecessary to make any credibility reso-
lutions in this matter, because, even assuming that the remarks
were made, they do not in my opinion violate the Act. The
General Counsel takes the position that these remarks were
“demeaning” of Russell’s participation in the OSHA investiga-
tion so as to affect her employee status. This is simply too
much of a stretch. To begin with, the word “demeaning” means
to degrade or debase. The comments alleged do not rise to that
definition. In short, I conclude that these statements, even if
made, were neither demeaning or coercive so as to constitute
interference with any of the employee rights guaranteed in Sec-
tion 7 of the Act.
d. Allison Reaves’ suspension and transfer
The General Counsel contends that the disciplinary action
taken by Respondent against Reaves was motivated by Reaves’
encouraging a patient to participate in an OSHA investigation
at the facility in violation of Section 8(a)(3) of the Act. Re-
spondent contends that Reaves’ comments to Wells were not
protected concerted activity or union activity within the mean-
ing of Section 8(a)(1) and (3) of the Act.
With respect to credibility issues, there is some conflict be-
tween the testimony of Reaves and the testimony of others with
respect to what Reaves may have said to Wells during their
conversation on the evening of January 14. In this regard, I
credit Reaves, particularly since Wells did not testify. Nor did
Lori King, the charge nurse to whom Wells allegedly made her
complaint and who reported the complaint to Connery.
Thus I conclude that Reaves explained to Wells, as she testi-
fied, the purpose of the OSHA visit and advised her to discuss
such matters with her daughter and further advised her that if
she was asked to sign a release, it would be “fine” to sign it.
The probative evidence in the record supports that conclusion
that Reaves encouraged Wells to cooperate with the OSHA
investigation. The record does not support the conclusion that
Reaves yelled, threatened, coerced, or otherwise intimidated
Wells’ during their conversation.
Based on these facts, there remains for consideration whether
or not encouraging participation in an OSHA investigation is
either union activity or protected concerted activity under the
Act. Clearly, the activity for which Reaves was disciplined was
not union activity. The General Counsel argues that since the
OSHA investigation was initiated by the union complaint,
Reaves’ activity in supporting the investigation was protected. I
do not agree. Although initiating an OSHA investigation with a
complaint may be union activity, the decision to pursue the
matter and the investigation were not Union but OSHA activi-
ties. Nor were Reaves’ remarks protected concerted activity
under Section 8(a)(1). The issue did not invoke the mutual aid
or protection of employees. Reaves was merely responding, as
an individual, to Wells’ fears. Her decision to encourage Wells
to participate in the OSHA investigation was hers alone, not
done in concert with other employees in any fashion. Thus,
even if Reaves were deemed to have been engaged in protected
activity, it could not be described as concerted activity.
In summary, this record does not support the conclusion that
the disciplinary action taken against Reaves was attributable to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 218
any activity by Reaves protected under the Act, either as pro-
tected concerted activity or union activities under Section
8(a)(1) and (3) of the Act.
e. Refusal to furnish information to the Union
Any union is entitled to be provided, on request, with that in-
formation necessary and relevant to the union in carrying out
the union’s function as the collective-bargaining representative
of unit employees. Clearly, during the grievance and arbitration
process, the Union is entitled to whatever information is neces-
sary and relevant to the processing of the grievance.
In applying this principal to the request for information con-
cerning Reaves’ discipline, the record discloses that through no
fault of Respondent, the Union had not timely filed any notice
of intent to pursue the grievance to the third step. In these cir-
cumstances, there was no pending grievance and no longer any
viable union function to be served by providing information.
This information was no longer either necessary or relevant to
the Union in the grievance process. The Respondent was no
longer obligated to provide that information and its failure to do
so did not violate Section 8(a)(5) of the Act.
With respect to Carr, the information requested was pro-
vided, albeit some 2 months after the request was made. There
has been no showing, however, that the Union has been preju-
diced in its effort to prepare for the pending arbitration, particu-
larly in view of the fact that at least as of the date of the hear-
ing, no date for arbitration had yet been established. Accord-
ingly, I conclude that with respect to Carr, the information has
been provided and there has been no showing that the Union
has been prejudiced by any delay in providing it.
T. Carpenter Care Center, Tunkhannock, Pennsylvania (2)
Statement of the Case
In addition to the allegations of the complaint treated above
in section A, the complaint also alleges, with respect to the
Carpenter Care facility, that Respondent violated Section
8(a)(3) of the Act by refusing to permit Charles Benninger to
return to work on the 11 p.m. to 7 a.m. (night) shift. Further,
that Respondent violated Section 8(a)(5) of the Act by refusing
to furnish, on request by the Union, a copy of a letter sent to the
Pennsylvania State Department of Health concerning the al-
leged abuse of a resident named Lee Adams by CNA Dorothy
Bush on May 31, 1992.
1. Facts
a. Refusal to furnish information
On May 31, 1992,109 a LPN named Helen Evans reported to
her supervisor, RN Suzanne Gilpin, an incident that she per-
ceived as patient abuse that she had seen by a CNA named
Dorothy Bush in slapping a patient’s face and twisting her arm.
Pennsylvania State law and Respondent’s procedures require
that incidents of alleged patient abuse be reported to the State
of Pennsylvania. These reporting procedures broke down, how-
ever, when Gilpin failed to report the incident to ADON Gloria
Eastwood or any other higher authorities. It was not until July 3
that the matter came to the attention of higher authority when
Evans asked Eastwood how the matter had been resolved.
Eastwood, previously unaware of the matter, called Administra-
tor Donna Connery on July 4, and Connery immediately noti-

109 All dates refer to 1992 unless otherwise indicated.
fied the State and began an investigation of the incident. Con-
nery then filed with the State, as required by the State, a written
report on a form provided by the State, along with a supporting
affidavit.110 Connery also filed with the State statements taken
from those individuals who witnessed the incident. In her re-
port, Connery also provided to the State an explanation of the
delay in reporting the incident and the Respondent’s discipli-
nary memoranda describing the incident and the disciplinary
action taken by the facility against Gilpin, Evans, and Bush.
Bush was suspended on July 10, and the Union immediately
filed a grievance. Bush was terminated on July 16 for patient
abuse.
Also on July 10, at a meeting on various grievances at the fa-
cility, Betsy Mazione, a union representative, submitted to
Connery in writing a request for information on various pend-
ing grievances including, with respect to Bush, “Copies of any
written statements pertaining to Dorothy’s [Bush] suspension”
and “Any documentation that shows the date on which the alle-
gation of patient abuse was verbally or in written form given to
any supervisor or management personnel by Helen Evans on
the alleged incident on May 31, 1992.”
By letter dated July 21, 1992, which was hand-delivered to
Mazione at another meeting on grievances at the facility on that
date, Connery provided statements from Eastwood, Evans,
Gilpin, Bush, assignment sheets showing Bush’s patient as-
signments on May 31, a statement given by the patient’s
roommate, and the written disciplinary memoranda issued to
Bush and Evans, all of which had previously been submitted to
the State. Connery testified that this constituted the entire in-
vestigation.
The completed state report, including the explanation for the
delay and the disciplinary action taken, including the action
taken against Gilpin, were not provided to the Union. Connery
testified that apart from the State report, all of the information
obtained by her, as set out above, was submitted to the Union
on July 20.
Even though Mazione received from Connery the informa-
tion set out above, Mazione, at the end of the grievance meeting
on July 20, again submitted a handwritten request for informa-
tion concerning various grievances and specifically, with re-
spect to the Bush incident, requested, “A copy of the letter(s)
sent to the Department of Health on the alleged abuse of Lee
Adams on May 31st 1992.”
By typed letter dated August 4, Mazione wrote to Connery
requesting as to the Bush incident, the same information re-
quested by the July 20 handwritten request.
By letter dated August 6, Connery responded to Mazione’s
request for information. Specifically regarding the request for
the letters sent to the State Department of Health, Connery
stated that the requested information was not being provided,
further explaining, “The reason for this omission is that I feel
these documents are internal instruments and not subject to
disclosure.”
Connery testified that she had provided to Mazione the entire
fruits of the investigation, but that she felt that the facility’s
correspondence with the State was not subject to disclosure
because it included information about disciplinary action taken
against Gilpin, a registered nurse, who was not a bargaining
unit employee, and information about planned corrective action
110 The full reporting requirements of the State are set out in the
“Long Term Care Provider Bulletin No. 22.”
BEVERLY CALIFORNIA CORP. 219
to be taken at the facility. Connery testified that except for
those items, with respect to the investigation of the incident,
she had provided all the information that she had gathered con-
cerning the incident.
b. Benninger—refusal to return Benninger to night shift
Charles Benninger, a CNA, was hired in December 1990 and
joined the Union in March 1991. Benninger became a delegate
for the Union in May 1991. He is also a member of the execu-
tive board of the Union and a member of the union negotiating
committee for the Carpenter Care facility. Benninger normally
worked on the night shift (11 p.m. to 7 a.m.) at the facility on
the green wing. On the night shift, the green wing is normally
staffed by two NAs and one LPN.
On June 12, 1992,111 Benninger injured his back lifting a pa-
tient. Benninger was unable to work, and because it was a
work-related injury, he was entitled to payment of a certain
percentage of his wages under Commonwealth of Pennsylvania
Workman’s Compensation Act. He first visited a physician’s
assistant employed by Respondent, and thereafter, on June 29,
visited a doctor of his own choosing named Anthony Flak who,
by form dated June 29, estimated that Benninger’s injury would
prevent him from working from 30 to 90 days.
On August 7, pursuant to Respondent’s request, Benninger
returned to the facility Beverly forms consisting of a “Return to
Work Order” and a “Light Duty Return to Work Certificate.”
These forms had been completed by Dr. Flak and dated August
5 and indicate that Benninger would be able to return to work
in a light-duty status with various various work restrictions, to
wit, no lifting, pulling, or pushing over 35 pounds and no lift-
ing, rolling, pulling, turning, or pushing patients. Benninger and
Franko reviewed the forms and modified the “Nurses Aide
Light Duty Job Description” form to accommodate these re-
strictions by eliminating those duties they determined that Ben-
ninger would be unable to perform because of Flak’s restric-
tions, as noted above. Benninger signed and dated the job de-
scription as having been fully read and understood by him.
Franko also explained to Benninger that he would not be able to
return to the night shift because the patients were for the most
part in bed, and therefore much of the work on that shift con-
sisted of repositioning and turning patients at intervals as they
slept, assisting in the use of bed pans, changing bed clothes,
and diapers and getting them up in the morning, that given his
limitations, he would have too little work to do. Franko told
him that it was only on the morning shift, from 7 a.m. to 3 p.m.,
that these restrictions could be accommodated. Benninger com-
plained that he was not a “morning person” and, moreover, was
entitled, as a matter of right under article 19 of the existing
collective-bargaining agreement, to return to the same shift he
had left. Article 19 is CAPTIONED “UNPAID LEAVES OF ABSENCE.”
Article 19.6 reads:

The Employer shall endeavor to temporarily replace an
employee on leave of absence. An employee returning
from a leave of absence of nine (9) months or less duration
will be placed in the same classification and same number
of hours as they held prior to the leave, and the same shift
that the employee was working at the commencement of
the leave of absence.

111 All dates refer to 1992 unless otherwise indicated.
Benninger was to have returned to work on August 10 on the
morning shift, but on Saturday, August 8, he spoke to John
August, union president, who advised him that he had a con-
tractual right to be returned to the night shift. Thus it was that
he did not return to work on August 10, but rather appeared at
the facility on that date at about mid-morning with Mazione
and Union Delegates CNAs Audrey Russell and Bonnie
Decker. They met with Connery and Franko in Connery’s of-
fice to discuss the matter. Connery explained that there was
more supervision and more jobs that Benninger could perform
on the day shift when the patients were awake that did not re-
quire the moving of patients in their beds or getting them up in
the morning. Mazione argued that Benninger was entitled to
return to the night shift as a matter of right under section 19 of
the contract. With respect to article 19.6, Connery took the
position that it applied only to nonwork related illnesses and
went on to explain various distinctions making section 19 inap-
plicable to employees returning from workman’s compensation
disabilities. The meeting ended without agreement.
On August 12, a grievance was filed by the Union stating:

The Employer violated the contract including Article
19.6 and 28.1 by not scheduling Charles [Benninger] for
work on his assigned shift when Dr. released him for light
duty & by scheduling him on the heavy care unit day shift
to be a counted as a regular and placing other aides at risk.

The “Remedy” section recites “Schedule Charles on 11 to 7
shift light duty as an extra aide.” The grievance was denied by
memo dated August 18 from Franko reciting: “Article 19.6—
Charles was not on Leave of Absence. Article IV Management
Rights—a, d, k and q. Remedy: Denied.” This position was
further articulated by Connery in response to the second step of
the grievance procedure by letter to Mazione dated September
15, reading, in relevant part:

Mr. Benninger has failed to return to work from an oc-
cupational related accident. Mr. Benninger was released
by his physician with restrictions. Accordingly, the facility
offered Mr. Benninger a “light duty” position to accom-
modate his restrictions. Mr. Benninger failed to return to
work as scheduled, 7:00–3:00 shift on August 11, 1992.
Mr. Benninger was not on a medical leave of absence.
Traditionally, medical leave of absences apply to non-
occupational related illness-accident. Article 19.6, of the
present labor agreement refers to a medical leave of ab-
sence due to non-occupational related illness/accident.
Therefore, article 19.6, has not in the past applied to ab-
sences due to occupational related reasons.
Based on the above, the grievance is denied.
I would urge you to contact Mr. Benninger and inform
him to return to work as previously instructed.

It appears that Benninger was not the only light duty em-
ployee reassigned to a different shift on a return from a work-
man’s compensation disability. Connery testified, and the re-
cord supports the testimony, that Bonnie Decker, Kathy Stark,
and Betty Smith were all employees who were moved from
shifts they had previously worked to other shifts in order to
accommodate the restrictions of their light duty status on re-
turning from a workman’s compensation disabilities. No griev-
ances were filed in any of those instances.
After the grievance was denied on September 15, Benninger
was advised by August that he should go back to work. To this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 220
end, by letter dated September 22, Connery requested Flak to
submit an updated “Light Duty Return to Work Certificate,”
“Order for Medical Treatment,” and a “Nurses Aide Light Duty
Job Description.” When the documents were returned by Flak
on or about September 28, the job description limited pulling
and pushing to 25 pounds and further providing no rolling,
lifting, pulling, or pushing of patients. A notation at the bottom
of the certificate reads:

Mr. Benninger should not change or bathe the patients.
He should not attend any patient who is overactive, unruly
or needs sedation or any other type of restraint.

On receiving this information from Flak, Connery and Franko
drew up a longhand list of duties that they felt Benninger would
be able to perform consistent with the limitations set out by Dr.
Flak.
On October 8, this modified light duty list was reviewed with
Mazione and Benninger. Benninger agreed that he was able to
perform those duties. Connery gave Benninger a typed list of
those duties captioned “Modified Light Duty Job Description”
for him to clear with Dr. Flak.
On October 12, Benninger returned to the facility with the
list of duties approved by Dr. Flak and spoke to Franko. They
discussed creating various shifts to accommodate his limited
duties. Benninger rejected 9 to 5 as “too early,” similarly from
10 to 6, but agreed to a broken shift from 12 a.m. to 8 p.m.
shift.
2. Discussion and analysis
a. Refusal to furnish information
Existing Board and court law make it clear that an employer
is obliged to provide to the union, on request, that information
that is necessary in order for the Union to perform its statutory
duty as the collective-bargaining representative of the employ-
ees. With respect to the matter of grievances, an employer is
obliged to furnish to the Union that information necessary and
relevant to the processing of a grievance. NLRB v. Acme Indus-
trial Co., 385 U.S. 432 (1967).
In the instant case, the information sought was “A copy of
the letter(s) sent to the Department of Health on the alleged
abuse of Lee Adams on May 31, 1992.” The question, there-
fore, is whether or not letters sent to the Pennsylvania State
Department of Health were necessary and relevant to the Un-
ion’s function in processing the grievance.
Respondent takes the position that it has substantially com-
plied with the Union’s request for information by providing it
with the results of the investigation in the form of statements
taken from the various witnesses. The question is whether or
not the correspondence between the facility and the State,112

112 The full reporting requirements of the State are set out in the
“Long Term Care Provider Bulletin #22. Nurse Aide Abuse, Neglect,
Misappropriation of Property.” This bulletin requires the facility, inter
alia, to “2. Conduct an investigation of the alleged incident. Please
complete the attached report” and thereafter to submit the report to the
Department of Health Field Office “within five days of the completion
of the investigation.” The report list various specific questions followed
by spaces for responses by the facility, including the following: “Find-
ings,” “Conclusions,” “Facility Plan of Actions,” “Describe the prob-
lem, including names, places, dates, times, etc.” and “Methodology—
Review of records, observation and interview of resident(s), staff mem-
bers, accused nurse aide, witnesses, family members, visitors, etc.
Attach supportive documentation to this report (e.g., all witness state-
which included Gilpin’s disciplinary memorandum, was neces-
sary or relevant to the Union in the processing of a grievance
on behalf of Bush. I believe that the information should have
been provided.
First, there has been no showing of any prohibition in state
or Federal law that would have precluded the disclosure of the
information sought. Second, while Respondent contends that it
did, in substance, provide the Union with the entire results of
the investigation, it did not provide the report that it provided to
the State. Although Respondent contends that the undisclosed
material was “confidential,” I do not agree. In my opinion,
Respondent was obligated to disclose the information to the
Union. The entire report, including Gilpin’s disciplinary action,
was certainly germane and relevant to the incident and full
disclosure would include that material. Accordingly, I conclude
that Respondent’s failure to furnish the report violates Section
8(a)(5) of the Act.
b. Refusal to return Benninger to night shift
In order for the General Counsel to prevail, it must establish
that Benninger was engaged in union or protected activity and
that Respondent discriminated against him for having engaged
in that activity. With respect to the question of discrimination,
the record discloses that Benninger was absent from work due
to a work-related workmen’s compensation back injury in-
curred while lifting a patient. It is undisputed that when he first
returned to work on August 7, he was not allowed by his doctor
to perform the full range of duties normally required on the
night shift and that he would be allowed to return only in a light
duty status with restrictions as set out by Dr. Flak. Briefly,
these restrictions exempted Benninger from any lifting, pulling,
or pushing over 35 pounds and prohibited any lifting, rolling,
pulling, or turning or pushing of patients. A “Nurses Aide Light
Duty Job Description” was modified to accommodate Ben-
ninger’s physical limitations. This made his reemployment on
the night shift difficult, as it appears that on that shift, the pa-
tients are sleeping and more patient moving and turning work is
done on that shift than on the other two shifts when more of the
light duty work described in Benninger’s modified light duty
job description are available. This is especially true in the
morning when patients are aroused for morning care and break-
fast, beginning about 5 a.m.
Benninger, however, was unwilling to accept assignment to
any shift except the one he had worked prior to his injury. He
explained that he was not a “morning person” and that article
19.6 of the contract required Respondent to return him to the
shift that he was working at the time of the injury. I do not
agree. Any reasonable interpretation of article 19.6 makes it
clear to me that it was not designed to require Respondent to
return employees to the same shift even when returning to work
in a light duty status and unable to perform major elements of
the work done on that shift. It would defy common sense to
allow employees to return to work with restrictions in a light
duty status and require the employer to return them to shifts
when, for the most part, they would have been unable, because
of the restrictions, to perform the work necessary to be done on
that shift. In the instant case, such an interpretation would have

ments, statement of accused aide, appropriate medical records, incident
reports, etc.) It is extremely important that the facility interview all
witnesses and obtain signed witness statements whenever possible. If
statements are not obtained, please give reason(s). Please provide the
Department with the names of all witnesses as well as their statements.”
BEVERLY CALIFORNIA CORP. 221
required Respondent to employ Benninger on the night shift
when he could not perform most of the work being done, leav-
ing him with less that he was able to do, whereas assignment to
another shift would allow him to perform more of the duties his
light duty status would allow him to do. Moreover, this ap-
proach had been applied in the past to other employees, as set
out above, without grievances being filed.113
In applying a Wright Line114 analysis to the facts of this case,
I conclude that the General Counsel has not shown that Ben-
ninger’s union activity, although extensive, was a motivating
factor in the Respondent’s decision to refuse to allow him to
return to his previous shift, and even assuming that such a
showing had been made, the Respondent has sustained its bur-
den of demonstrating that Benninger would have been treated
in the same fashion, regardless of his union activity.115
Thus, I conclude that Respondent did not discriminate
against Benninger in refusing to allow him to return to work on
the night shift in violation of Section 8(a)(3) of the Act and,
accordingly, I shall recommend dismissal of this allegation.
U. Stroud Manor, East Stroudsburg, Pennsylvania
Statement of the Case
The complaint alleges that Respondent, at its Stroud Manor
facility in East Stroudsburg, Pennsylvania, violated Section
8(a)(1) of the Act by soliciting employee complaints, threaten-
ing employees, and promising benefits and improved terms and
conditions of employment to Respondent’s employees if they
rejected District 1199P, National Union of Hospital and Health
Care Employees, SEIU, AFL–CIO (the Union), as their collec-
tive-bargaining representative; promising to redress an em-
ployee’s grievance concerning tuition reimbursement; threaten-
ing employees with less favorable working conditions if they
selected the Union as their bargaining representative; threaten-
ing employees that Respondent would no longer grant favors if
the employees selected the Union as their bargaining represen-
tative; and threatened employees with less favorable working
conditions if they selected union representation by telling the
employees that an entire day must be requested if the employee
has a medical appointment during the workday.
The complaint further alleges that by withholding an anni-
versary wage increase from employees, Respondent violated
Section 8(a)(1) and (5) of the Act.
Facts, Analysis and Discussion
1. The 8(a)(1) allegations
In the spring of 1991, the Union began a campaign to organ-
ize the approximately 11 licensed practical nurses (LPNs) at
Respondent’s nursing home facility in East Stroudsburg, Penn-
sylvania. A few weeks prior to the election on August 2, 1991,
Jay Begley and Greg Thomas, human resources representatives
of the Respondent, were assigned to the facility to assist man-
agement at the facility during the preelection antiunion cam-
paign. After the election, they departed. The Union won the
election and was certified as the collective-bargaining
representative of the LPN unit on September 4, 1991.

113 Obviously, other considerations might apply if the returning em-
ployees were certified as able to resume unrestricted employment.
114 251 NLRB 1083 (1980).
115 Although it is true that Benninger, among others, received disci-
plinary warnings on July 18, 1991, I cannot conclude that these actions
of Respondent, over a year earlier, require a different result.
Thomas testified that in presenting management’s position to
the employees, it was his practice to consult individually with
the LPNs. He testified that he would introduce himself to the
employee and explain that his purpose was to explain manage-
ment’s position, encourage them to vote, and encourage them to
see him if they had any questions about the campaign or any-
thing else. Thomas testified that this approach was consistent
with his approach at all the facilities in the ongoing process of
determining job satisfaction.
In about mid-July, Thomas spoke individually to Jeanette
Drake, a LPN. According to Drake, he asked if she had any
questions. She raised the matter of an excessive time lag in the
Respondent’s tuition reimbursement program, complaining that
while it was the policy to reimburse within 8 to 12 weeks, it
was taking 16 to 20 weeks. Drake further testified that Thomas
said that he would see what he could do about it.
Thomas concedes that Drake asked him about her problem
with reimbursement for her tuition costs and explained to her
that the delay might be caused by Respondent’s poor financial
condition. Thomas testified that he may have told Drake he
would look into it for her, but has no recollection of doing so
except to the extent that he may have mentioned it to Mary Lou
Shannon, the administrator at the facility.
Drake testified that on the following day, she was ap-
proached by Shannon who engaged her in conversation about
the delay in Drake’s tuition reimbursement.116 According to
Drake, Shannon said she had heard about the prolonged delay
and agreed to look into it for her. Shannon confirms the sub-
stance of the conversation and testified that she did look into it
for Drake and learned that her tuition reimbursement check had
been processed and that Drake would get it within a couple of
weeks and she told this to Drake. Shannon testified that on two
prior occasions, Drake had raised the tuition reimbursement
problem with her, first in 1988. She had also on those occasions
looked into it for Drake, and Drake confirms that Shannon had
acted on the problem for her in the past.
On July 30, a meeting of the LPN employees was conducted
by Begley. The meeting opened with a showing of a pro-
Employer film clip. After that, there was distributed to those
LPNs present a LPN wage benefits charge ostensibly compar-
ing the wages and benefits at Stroud Manor with the wages and
benefits of five Beverly facilities represented by Local 1199.
Begley went through an explanation of the comparisons, fol-
lowed by questions from some of the LPNs about the benefits.
Drake, still concerned about reimbursement for tuition costs,
asked about the delay in receiving tuition reimbursement
checks. She also asked for an explanation of how vacation time
was accrued. Begley attempted to explain how vacation time
was accrued. According to Drake, whose testimony is substan-
tially corroborated by another LPN, Evelyn Jiminez, Begley
told her, regarding the matter of the tuition reimbursement, that
the Company had been having some financial difficulties but
that conditions were becoming more stable, and the delay in
reimbursement would improve.
With respect to the 8(a)(1) allegation that Thomas unlaw-
fully solicited grievances in a one-on-one conversation with
Drake, it appears that while soliciting a grievance, standing
116 Although Shannon testified that the employee came to her, I
credit Drake’s more detailed account of the circumstances, despite the
fact that Drake was subsequently discharged by Respondent. Drake
would have little to gain from the finding of a violation in the instant
case and, in my opinion, Drake was not retaliating out of hostility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 222
alone, is not unlawful, it raises a rebuttable inference that prom-
ises to correct the grievance are being made that violated Sec-
tion 8(a)(1). Uarco, Inc., 216 NLRB 1 (1974). In the instant
case, not only was the inference raised by Thomas that the
grievance would be corrected, Drake was given assurances that
Thomas would himself make an effort to rectify the problem.
This response negates Respondent’s position that the unlawful
inference has been rebutted. Nor do I conclude in the circum-
stances of this case, during an election campaign, that the re-
cord is sufficient to support the conclusion that the inference of
illegality has been rebutted by Respondent’s past practice in
conducting individual interviews as a part of its employee rela-
tions program.
With respect to the 8(a)(1) allegation involving Shannon’s
conversation with Drake, I conclude that Shannon did seek out
Drake and told her that she would look into the delay in her
tuition reimbursement and, in fact, did so. She learned that
Drake would be reimbursed within a week or so, and so advised
Drake. In these circumstances when Drake was approached by
Shannon during the election campaign with a promise to expe-
dite this payment, such remarks violate Section 8(a)(1) of the
Act.
Similarly, when Begley, on July 30, represented to the LPNs
that the delay they were experiencing in tuition reimbursement
would improve, he was promising a benefit to these employees
that interfered with the employee rights set out in Section
8(a)(1) of the Act.
Shannon testified that during the preelection period, she
drafted and distributed campaign material for Respondent. This
included a letter dated July 23, captioned “THINK ABOUTS” and
mailed to the LPNs, which reads:

Fact! Under current union contracts that are in force
there are to be no individual agreements. Contracts state
that only by mutual agreement of the union and the com-
pany can the employer/employee make an arrangement
that would conflict with the agreement.
What is an individual agreement? Ask the LPN who
needed to reduce her hours of work for personal reasons.
Did the employer arrange a schedule to meet her needs?
The answer is “YES.” And, when she found she could re-
sume a normal schedule, was she given back the day she’d
given up? The answer is “YES.” Was the employer re-
quired to do this? The answer is “NO.”
An LPN is attending school and can’t always make it
to work at her scheduled start time. Has the employer al-
lowed this to interfer [sic] with her employment? Has the
employer accommodated this lateness? The answer to the
first question is “NO” and the answer to the second ques-
tion is “YES.” Is the employer required to do this? The an-
swer is “NO.”
Policy addresses how requests for days off are to be
made. Have requests by LPN’s for a day or days off al-
ways been made per policy? The answer is “NO.” Have
such individual LPN requests been accommodated by the
employer? The answer is “YES.” Is this an individual
agreement? The answer is “YES.” Is the employer re-
quired to grant untimely requests? The answer is “NO.”
If an LPN has had misfortune of health problems and
needed leaves and absences above and beyond that nor-
mally permitted by policy, has the employer accommo-
dated the LPN? The answer is “YES.” Is this an individual
agreement? The answer, again, is “YES.” Is the employer
required to do this? The answer is “NO.”
These are but a few of the individual agreements that
have been made on behalf of LPN’s and exceeded that
which the employer is required to do.
Vote NO on August 2, 1991.

It is undisputed that the individual accommodations made in the
letter refer to individual employees. For example, the fourth
paragraph therein refers to an accommodation made for a LPN
named Evelyn Jiminez who, because of serious health prob-
lems, required more time off than normal. It appears that
Jiminez has taken several leaves of absence and requires time
off for doctors’ appointment and medical needs that exceed the
provision for allowable absenteeism as provided for by com-
pany policy.
In another incident related to Jiminez’ physical condition,
Val McGonnigle, DON, testified that on or about August 1,
1991, Jiminez came to her with a note for a doctor’s appoint-
ment on the following day. At that time, according to McGon-
nigle, she told Jiminez that it would be better for her to make
doctors’ appointments on her days off. According to Jiminez,
she was told by McGonnigle that it would be necessary for her
to take a day off to have a doctor’s appointment. When Jiminez
explained that the doctor’s office was not open except during
the hours she was working, McGonnigle agreed that the ap-
pointment should be kept. McGonnigle and Jiminez testified
that Respondent continued to accommodate Jiminez in taking
time off in excess of the norm, as it had been done in the past.
The General Counsel contends that Shannon’s July 23 letter
constitutes an unlawful threat of less favorable working condi-
tions if the employees selected representation by the Union. In
my opinion, the letter is not such a threat. As a matter of law,
once a union is certified as the collective-bargaining representa-
tive of the unit of employees, an employer is no longer free to
deal with those employees on an individual basis. Indeed, to do
so would violate Section 8(a)(5) of the Act. The July 23 letter
essentially recites that proposition, and cites examples of how
certain needs were met and employees accommodated on an
individual basis and exhorts employees to vote against the Un-
ion. While the letter may promote the Respondent’s campaign
objectives, it is not an unlawful threat within the meaning of
Section 8(a)(1) of the Act.
The General Counsel contends that Shannon’s July 23 letter
constitutes a threat of less favorable working conditions if the
employees selected representation by the Union. In my opinion,
the letter is not such a threat. As a matter of law, once a union
is certified as the collective-bargaining representative of the
unit of employees, the employer is no longer free to deal with
those employees on an individual basis except as they may
mutually agree under the contract. Indeed, to do so would vio-
late Section 8(a)(5) of the Act. All the July 23 letter does, in
essence, is to make that observation and to cite examples of
how certain needs were met in the past and how employees had
been accommodated on an individual basis and exhort employ-
ees to vote against the Union. The implication to be drawn from
the letter is that once the Union represents them, the employer
will no longer be able to deal with employees individually,
except with the agreement of the Union. This is an accurate
observation, and while it may promote the Respondent’s cam-
paign objectives, it is not an unlawful threat within the meaning
of Section 8(a)(1) of the Act.
BEVERLY CALIFORNIA CORP. 223
The General Counsel also alleges McGonnigle unlawfully
threatened Jiminez with less favorable working conditions by
telling her she must take an entire workday off for a medical
appointment. I have reviewed all of the relevant testimony in
the record and I conclude, crediting McGonnigle, that no such
threat was made. This was simply an effort by McGonnigle to
see if Jiminez could arrange her doctor appointments so as not
to break up her shift. When it appeared that such arrangements
were not feasible, the matter was dropped. Despite the fact that
an election campaign was in progress, nothing in the record
relates this conversation with the Union. In these circum-
stances, there was no interference with the Section 7 rights of
employees.
Jiminez also testified that on about July 26, curious about
whether or not LPNs had to do NA’s work at the Respondent’s
facilities where the LPNs were represented under a contract,
she asked to see union contracts. In reviewing one of the con-
tracts, Shannon said that overtime would no longer be random,
but would be determined by seniority. According to Jiminez,
while looking at the contract, Shannon also stated that under the
contract, personal favors could not continue to be done.
On August 2, according to Jiminez, Shannon approached her
before the election and congratulated her for the way the nurs-
ing staff had maintained patient care during the election cam-
paign. Jiminez told Shannon that no matter how the vote came
out, she hoped it would not affect their relationship and Shan-
non, in an apparent reference to the July 23 letter, implied that
if the Union were voted in, it would not affect anything, just
that personal favors could not continue to be done.
The General Counsel contends that Shannon, in her conver-
sations with Jiminez on July 26 and August 2, violated Section
8(a)(1) of the Act by telling employees they could no longer
expect favors to be done for them if they selected union repre-
sentation. I do not agree. As noted above, I have concluded that
Shannon’s letter of July 23 did not violate the Act as it was
merely an accurate observation of the valid legal proposition
that once a union has been selected as the collective-bargaining
representative of employees, the employer may no longer deal
with them as individuals on matters concerning their terms and
conditions of employment. The observations made by Shannon
in conversation with Jiminez while reviewing a union contract
on July 26 and in discussing the ramifications of the unioniza-
tion of the facility on August 2, were nothing more than expres-
sions of the same concept and did not constitute interference
with the employee rights afforded under Section 7 of the Act.
2. The 8(a)(5) allegation—withholding wage increase
After the Union was certified to represent the LPN unit on
September 4, the parties began contract negotiations once or
twice a month through April 1992, when a contract was signed.
During these contract negotiations, Daniel Plott, Regional Di-
rector of Human Resources, negotiating the contract for Re-
spondent, was asked about a wage increase for 1992. This
prompted Plott to ask Shannon about the history of wage in-
creases at the facility. According to Shannon, the raises given
to LPNs were totally within her discretion regarding the
amounts and timing, and granted or not granted based on the
financial health of the facility on an individual facility basis.
Whereupon Plott, determining that there was no pattern of
wage increases at the facility for the LPN employees, wrote to
John August, president of the Union, a letter dated February 12,
1992, stating:

As a follow-up to discussions on 1992 wage increases
for Licensed Practical Nurses at Stroud Manor, please be
advised 1992 wage increases will be withheld pending the
outcome of the collective bargaining process. The decision
to withhold wage increases of LPN’s at Stroud Manor is
predicated on the fact that the facility has had no standard
practice of granting wage increases.
Should you have any questions, please feel free to con-
tact me.

On March 25, 1992, at the request of Mazione, Shannon sent
a list of annual raises for those LPNs employed, from the dates
of their hire through March 25, 1992. It appears that all re-
ceived annual wage increases on their anniversary dates al-
though the amounts of the raises varied, with the exception of
1990 when two wage increases were granted, apparently be-
cause a contractual wage increase had been given to NAs in
that year.
In my opinion, the withholding of all wage increases for the
year 1992 without notice to the Union violated Section 8(a)(5)
of the Act. The facts disclose that prior to the certification,
except for 1990, wage increases in varying amounts were given
to the LPNs on their anniversary dates. The amounts varied, but
the process of selection was not random and all received raises,
at least annually. After the certification, Respondent was
obliged to bargain with the Union on all matters concerning the
working conditions of the employees, including wages. With-
holding all raises to unit employees, in contravention of its
practice in previous years, is tantamount to a change in the
working conditions of unit employees, by withholding an an-
nual wage increase, without notice to or consultation with the
Union, and violates Section 8(a)(5) of the Act.
V. Valley Care and Guidance Center, Fresno, California
Statement of the Case
The complaint alleges with respect to the Valley Care facil-
ity, that Respondent unlawfully interfered with the 8(a)(1)
rights of employees to form, join or assist the Union, as set
forth therein.117 It is further alleged that following a strike118 on
December 7, 1991, Respondent discriminatorily refused to
reinstate employees Samuel Orozco and Martha Orozco in
violation of Section 8(a)(3) of the Act. Further, it is alleged that
Respondent violated Section 8(a)(5) of the Act by withdrawing
recognition from the Union and by refusing to furnish certain
classifications of information to the Union.119 A hearing was
held before me on August 12–14, 17–18, September 30, and
October 1, all in 1992.

117 Par. 2 of the complaint was amended at the hearing to allege Bill
Pinheiro as a supervisor and add two additional 8(a)(1) allegations as
(i) and (j). Par. 2 was also amended at hearing to delete the 8(a)(1)
allegations in pars. 2(c) and (e).
118 Although the strike is alleged in the complaint as an unfair labor
practice strike, the General Counsel withdrew that contention at the
hearing.
119 That portion of par. 8 of the complaint alleging a refusal to fur-
nish “Cost Information” was withdrawn at the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 224
Facts, Discussions, and Analysis
1. Withdrawal of recognition by Respondent and refusal to
furnish information
For many years, the Union has represented under contract an
overall unit of about 60 service and maintenance employees at
Respondent’s Valley Care facility, including NAs, CNAs,
housekeeping, laundry, and kitchen employees, but excluding
LVNs and RNs. The most recent contract was effective Sep-
tember 1, 1989, through September 1, 1991.120
In early 1991, Helen Williams, an activities assistant, cov-
ered by the bargaining unit, became dissatisfied with the repre-
sentation being provided by the Union. Specifically, she testi-
fied that she got no satisfaction concerning complaints to her
shop steward about reductions in overtime. She was also un-
happy about dues increases and her perception of the Union’s
position on wage increases. Thereupon, she went to Carolyn
Hankinson, the administrator, to inquire about getting rid of the
Union. This inquiry prompted Hankinson to call Rod Panyik,
director, human resources, to obtain that information. In March
1991, Panyik responded by letter to Hankinson containing two
basic options, first, withdrawal of recognition after a decertifi-
cation election, and second, withdrawal of recognition based on
“objective considerations” that a majority of employees no
longer desire representation by the Union. Sometime in April,
while in Hankinson’s office, Williams asked if she had ob-
tained any information. Hankinson said she had and explained
the two options outlined in Panyik’s letter. Hankinson ex-
plained that Williams would need 50 percent of the unit em-
ployees to sign a decertification petition in order to withdraw
recognition, or 30 percent to obtain an election. Hankinson also
copied and gave to Williams that page of the letter from Panyik
containing, inter alia, suggested decertification petition lan-
guage, to wit:

We, the undersigned associates of [name of facility] no
longer wish to be represented for the purposes of collec-
tive bargaining by [name of union].

They met again during the first week of May, in Hankinson’s
office. Hankinson testified that Williams told her that she had
decided to circulate a petition, but was concerned about the
reaction of the unit employees. She asked Hankinson for her
support. Hankinson testified that she agreed, assuming that
Williams meant moral support, but told Williams that she could
not use any company property, such as a typewriter, to promote
the effort. Williams testified that she had lost that page of
Panyik’s letter containing the decertification petition language
and asked Hankinson for another copy, which she provided.
They also discussed the possibility of having each employee
sign individual decertification petitions and Williams did, in
fact, adopt this manner of solicitation. The petitions were then
circulated by Williams between approximately May 17 and 31,
yielding 33 signed petitions, all bearing the identical language
that appeared in Panyik’s letter to Hankinson.121 It is undis-
puted that during the time the petition was being circulated,
Williams received about four to seven rides to and from work
from Hankinson and others because her own car was disabled.

120 All dates refer to 1991 unless otherwise indicated.
121 Williams, during her testimony, admitted that she had lied in a
sworn affidavit to a Board agent stating that she and a girlfriend came
up with language used in the decertification petition.
On May 31, Williams was getting a ride home from Hankin-
son. Sometime after 4:30 p.m., as they were driving, Williams
asked Hankinson to pull off the road into a residential area.
Hankinson testified that, without inquiry, she did so. Williams
then left the car and went to the house of Margaret Valdez, a
CNA at the facility. Williams solicited Valdez to sign the peti-
tion “to get rid of the Union.” When Valdez declined, Williams
asked her to come to the car to speak to Hankinson. At the car,
Hankinson explained that the paper was a petition to get rid of
the Union and, again, Valdez refused to sign. Hankinson went
on to say that the Union was not doing anything for her at all
and that they wanted the Union out of the facility. Hankinson
also said that the Union only wanted her dues money and asked
why she would not sign the petition and that it would be confi-
dential. Hankinson told Valdez that all they needed was one
more vote to get the Union out of the facility, but Valdez con-
tinued to balk. Hankinson and Williams concluded by asking
Valdez to let them know if she ever changed her mind. Ac-
counts of this conversation were factually inconsistent in their
particulars. Hankinson and Williams, while conceding that a
conversation between Hankinson and Valdez took place, both
testified that it was limited to an exchange of pleasantries; that
Hankinson made no effort to solicit Valdez to sign a decertifi-
cation petition. Having reviewed the relevant testimony, how-
ever, I am persuaded that Valdez’ account, including solicita-
tion by Hankinson, is credible.122
On the following day, June 1, Williams delivered the decerti-
fication petitions to Hankinson in her office.
After consulting her superiors, Hankinson, by letter dated
June 3 to Michael Guidry, Commerce Business Representative,
withdrew recognition from the Union. The letter reads:

We are in possession of objective evidence that your
union no longer represents a majority of our employees in
the bargaining unit here at Valley Care & Guidance Cen-
ter. Accordingly, we hereby withdraw recognition from
your union effective September 1, 1991, the current con-
tract’s expiration date. Of course, we recognize your right
to administer the existing collective bargaining agreement
until its expiration date.

By letter dated May 21 to Hankinson from Union President
Sal Rosselli, the Union had requested certain information in
order to prepare for negotiations. The specific requests are set
out in the complaint.123
By letter dated June 6 from Panyik to Guidry, the Respon-
dent declined to furnish that information. The letter reads:

We are in receipt of Sal Rosselli’s letter dated May 21,
1991, requesting information in preparation for upcoming
negotiations at the facility. As you were notified by the
administrator in this facility, the facility is withdrawing
recognition from your Union in light of the amply-
supported, good faith doubt of your Union’s continued
majority status. Since we will not be negotiating a new
Collective Bargaining Agreement with your Union at this
facility, your information request is moot.

122 Williams’ credibility was reduced by the lie that she swore to in
an earlier affidavit, as noted earlier, and clearly, Hankinson had an
obvious personal interest in providing an account absolving her from
any participation in the solicitation of the decertification petitions.
123 As noted above, the allegation concerning “Cost Information”
was withdrawn at the hearing.
BEVERLY CALIFORNIA CORP. 225
It is well established, as a matter of Board and Court law,
that an employer may not assist, promote, or encourage the
circulation of a decertification petition. When the employer
engages in such conduct, the petition is thereby tainted and
insufficient to support any withdrawal of recognition.
In the instant case, although Williams may have initially in-
quired about how to rid the facility of the Union, it was Han-
kinson who thereafter took it upon herself to obtain the infor-
mation for Williams, including the exact language of the peti-
tion, discuss the options and agree to “stand by” Williams dur-
ing the process. Hankinson also provided Williams with copies
of a page from the letter Panyik had sent to her, which, in addi-
tion to the language of the petition, outlines the “basic proce-
dures for terminating the Union’s representative status.”
Hankinson also drove Williams to the home of at least one
employee, Valdez, and assisted in attempting to solicit Valdez
to sign a decertification petition.124 In all these circumstances, it
is clear that Respondent’s assistance in the decertification was
crucial. Without Hankinson’s assistance and support, it is my
opinion that the decertification petition would not have been
circulated. The process was not lawful and the petition was
invalid and inadequate to support Respondent’s asserted good-
faith doubt of the Union’s majority status based on objective
considerations. Accordingly, withdrawal of recognition from
the Union was unlawful.
Also, because Respondent’s withdrawal of recognition was
unlawful, it follows that the Union continued to enjoy majority
status as collective-bargaining representative of the unit em-
ployees under contract, and its refusal to provide the informa-
tion requested by the Union was unlawful in violation of Sec-
tion 8(a)(5) of the Act.
2. The 8(a)(1) allegations
As set out above, I have concluded that on May 31, Hankin-
son and Williams went to the home of Valdez where both, ap-
parently without success, solicited her to sign a petition to de-
certify the Union. Such solicitation by Respondent, through
Hankinson, is clearly interference with the rights of employees
under Section 7 of the Act in violation of Section 8(a)(1) of the
Act.
On June 3, the same day that Hankinson sent the letter to the
Union withdrawing recognition, three employees, Linda Ce-
lano, Janice Angell, and Williams, were discussing rumors they
had been hearing to the effect that their wages were going to be
reduced by the $2 per week being deducted from union dues
and that they would get less overtime. Williams led them to
Hankinson’s office and, in a discussion in the lobby outside her
office, Hankinson explained that it was the intention of the
Respondent to adhere to the present contract with the Union
until it expired on September 1, 1991, and that rumors about
reductions in overtime wages and discharges were unfounded.
According to Hankinson, she also explained how overtime
worked, outlined the disciplinary procedures, and told them that
Respondent could not lawfully deduct any money from their
wages. It appears that Hankinson took contemporaneous notes
of this meeting that support her testimony and appear in evi-
dence (G.C. Exh. 12).

124 Respondent contends that even crediting Valdez, more than 50
percent of the unit employees had signed decertification petitions be-
fore Valdez was solicited. The record does not support this contention,
however, in view of the fact that three were undated and seven were
dated May 31, the same day that Valdez was solicited.
According to Celano, they were told by Hankinson that over-
time would not be a problem without the Union and, inferen-
tially, that without the Union, she would be able to get em-
ployee raises.
Having carefully reviewed the relevant testimony, I am not
satisfied that the evidence supports the 8(a)(1) allegations about
this incident, particularly in view of the corroborating testi-
mony of Hankinson and Williams as well as Hankinson’s notes.
Angell did not testify. It appears that Hankinson was simply
responding to calm the fears of the employees about the uncer-
tain situation that existed and was not promising wage increases
or overtime if the Union no longer represented them, and Han-
kinson made it clear that Respondent, despite its withdrawal of
recognition, still intended to observe the terms of the contract
until its expiration.
On June 19, Guidry went to the facility on a periodic visit.
After advising the charge nurse of his presence, he went to the
breakroom where he spoke to employees as they came in and
out. Guidry recalls lengthy conversations with some two to four
employees in a visit lasting from about 8:45 to 12:15 p.m. Gui-
dry testified that during this time he observed Hankinson sitting
at a table in the corridor outside of the breakroom door, some 6
to 10 feet from the door. According to Guidry, she was not at
the table when he arrived and that it was at least a half hour
until he saw her. Thereafter, he saw her three or four times at
the table during his stay in the breakroom, at times when the
door was open. Guidry testified that he stayed as long as he did
only to make Hankinson “sit around for a while.” Hankinson
testified that she had returned to the facility that evening to
work on a report and to distribute paychecks to afternoon and
night-shift employees. She testified that she saw Guidry twice,
once when he stepped out of the breakroom and again as he
was leaving. Hankinson testified that she sat at a table across
from the breakroom door with Georgia Ginder, a CNA, for
about 5 minutes, chatting and passing out paychecks. Thereaf-
ter, according to Hankinson, she returned to her office and next
saw Guidry as he was leaving, when they exchanged pleasant-
ries. Hankinson remained working at the facility until about 2
a.m. Ginder testified that she came to the facility about 10:30
p.m. and that she sat charting patients’ records at a table located
across from the break room door. About 11:15 p.m., Hankinson
came by the table and gave her a paycheck. Hankinson stayed
at the table for a while talking and left while Ginder was still at
the table. Ginder corroborates Hankinson’s testimony about the
incident, and that Hankinson came to the facility during the
night shift two or three times a month to distribute paychecks to
night-shift employees.
The General Counsel alleges that Hankinson engaged in
unlawful surveillance of the union activity of employees, ap-
parently by positioning herself at the table outside the break-
room door to observe which employees spoke to Guidry. I can-
not conclude, however, based on this record, that Hankinson
was so engaged. The mutually corroborative testimony of Han-
kinson and Ginder disclose that Hankinson was only at the
table for a short while, either distributing checks or chatting
with Ginder. Even Guidry, the General Counsel’s only witness
to this incident, testified that he can only assume that she re-
mained at the table in a position to engage in the alleged sur-
veillance, based on only seeing her three four or times when the
breakroom door opened. This evidence is insufficient to estab-
lish the 8(a)(1) allegation of unlawful surveillance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 226
On or about June 19, Jim Thompson, a CNA and union shop
steward, requested that Hankinson initial, for posting, a union
pamphlet captioned “Your Right—Representation,” setting out
the Union’s view of the rights of a union employee called to
meet with a supervisor or administrator. It is undisputed that
Hankinson, after consulting her attorney, refused to post the
notice, telling Thompson that she had been advised not to post
it because it had an inflammatory message. Article 4.4 of the
contract reads:
Section 4.4.—Bulletin Boards
The Employer agrees to allow the posting of Union
material on designated and existing bulletin board space.
Such Union material shall be limited to meetings and other
official notices. All material to be posted shall first be ini-
tialed by the facility’s Administrator, or his/her designee,
and the Employer shall have the right to remove any mate-
rial which has not been approved in advance or which has
been posted in excess of two calendar weeks.

Because the parties have negotiated that provision, the initial
question is whether or not the notice that Hankinson refused to
post dealt with “meetings” or other “official notices.” Clearly,
the pamphlet did not deal with union meetings which, in my
opinion, were not an “official notices.” In essence, it was the
Union’s interpretation of what legal rights an employee enjoyed
when called to meet with a supervisor of administrator, together
with an exhortation to exercise those rights. Because the parties
have contractually limited union bulletin board material, the
refusal to post a notice that does not comply with the contract
does not violate Section 8(a)(1) of the Act.
Samuel Orozco testified that on or about December 5, having
detected a change in Hankinson’s attitude toward him, he went
to her office to discuss the matter. Orozco testified that he told
Hankinson that he knew that she knew that he had joined the
Union but that this should not affect their relationship. At this
point, Hankinson shut her door and told Orozco that she was
not aware that he had joined the Union and asked him several
times why he had done that. When Orozco mentioned signing a
union card, Hankinson responded that it didn’t matter how
many cards he or anybody else signed, they were “worthless”
and did not mean anything any more. Orozco testified that at
this point, Hankinson asked Orozco to repay a $200 loan she
had made to him,125 but Orozco told her that he was unable to
do so.
Hankinson testified that Orozco came to her office to pick up
his paycheck and that Robert Worley, an employee of the State
Department of Environmental Health Services Licensing and
Certification who was reviewing State mandated strike contin-
gency provisions, was also in the office.126 According to Han-
kinson, she only asked Orozco to return a loan previously made
to him on June 12 and that Orozco said that, because of his
bills, he could not repay and then left and that there was no
discussion about the Union at all. Worley testified only that
while he was in the office, someone came in and that Hankin-
son gave the person something, and remarked to him that she
could kiss that money goodby. In my view, having reviewed
the relevant testimony, I am persuaded that Orozco’s version of

125 Orozco testified that Hankinson had previously lent him $200,
saying he did not have to worry about repayment if he did not join the
Union and that she did not want him to tell anyone about the money.
126 The Union had called a strike for December 7.
this incident should be credited. Although Worley may have
been in the office he was occupied in reviewing the strike con-
tingency plans. Concededly, he was unable to identify Orozco
as the employee in the office, nor does the record even disclose
that he heard the entire conversation so as to enable him to
testify that Hankinson did not make the statements attributed to
her. In these circumstances, I conclude that Respondent vio-
lated Section 8(a)(1) of the Act by interrogating Orozco con-
cerning his union activities; by implying that the concept of
union organization of employees was a futility; and by telling
him that he must make immediate repayment of a prior loan, in
retaliation for having joined the Union.
3. The 8(a)(3) allegation—discrimination—discharges of Mar-
tha Orozco and Samuel Orozco
Martha Orozco was employed by Respondent as a dietary
aide and cook from January 1979 until she was discharged in
December 1991. She was a shop steward for the Union and
participated in negotiation of union contracts. She worked on
the day shift from 6 a.m. to 2:30 p.m. It is undisputed that be-
ginning December 7, 1991, Martha Orozco participated in a 1-
day strike and picketing on behalf of the Union. The announced
purpose of the strike was to protest Respondent’s withdrawal of
recognition and the perceived harassment of its members.127
The strike lasted for only 1 day, December 7, beginning at 6
a.m. until about 3:30 p.m. On the same day, December 7, the
Union notified the Respondent by letter that all employees who
went on strike were offering unconditionally to return to work,
effective immediately. Guidry testified that the decision to
strike for only 1 day was because the Union “wanted to be dis-
ruptive to the facility and at the same time not injure our mem-
bers by bringing them out on a long strike.”
During the day on December 7, there were in attendance at
the facility administrators from several other nearby Beverly
facilities to assist in maintaining the operations at the facility.
Among those administrators were Jewell Williams, Sarah Wo-
brock, and April Chrisman, all of whom testified that on De-
cember 7, as they were walking inside the gates of the facility,
they heard Sam Orozco call to them from outside the fence
various sexually explicit remarks, such as “baby” and having
“something to show you”; that he would give it to them “any
way you want it” and “come sit in my lap, I have the in and out
urge.” This testimony was corroborated by the testimony of
Joseph Munoz, another administrator, who testified that Sam
Orozco said he would “light your fire” and that he was “the in
and out man.” According to Pinheiro, Orozco said to Chrisman,
“look at me bitch, turn around” and “you know you want to.”
Orozco denied making any sexual suggestive remarks to fe-
males on December 7. The weight of the credible evidence,
however, particularly from the administrator, convinces me that
he did.
Helen Williams testified that on December 7, while she was
taking a break about 9:30 a.m., Martha Orozco called out to
her, saying, “that bitch, that orphan bitch is mine” and that she
was returning to work tomorrow, and “her ass is mine.” Al-
though Martha Orozco generally denied making any threaten-
ing remarks to working employees, a review of the probative
relevant testimony satisfies me that Williams’ testimony is this
regard is the more credible.
127 As noted above, no contention is being made that the strike was
an unfair labor practice strike.
BEVERLY CALIFORNIA CORP. 227
On December 8, about 5:50 a.m., Martha Orozco and Marty
De Los Reyes, another cook, reported for work at the facility
and went into the kitchen area. Hankinson came to them and
told them that their jobs had been filled for their shifts on De-
cember 8 and that they should report to work on the following
day.128 They left the facility. Hankinson also testified that on
December 8, she called both Martha Orozco and De Los Reyes
to advise them that she had “misspoken” herself and that be-
cause of commitments to their replacements, they were not to
report on December 9, but rather were to report on Tuesday,
December 10, and Thursday, December 12, respectively, at 6
a.m.
Jewell Williams was an administrator from another Beverly
facility, Kings Vista, filling in at Valley Care to provide 24
hour a day coverage by administrators. Because Williams was
working the night shift, Hankinson wrote her the following
memo:

Jewell
Martha and Marty were accidentally told this morning
to return to next scheduled day—Monday by me. I called
them each back and clarified that they were to report:
Marty 12/12 @ 6 am Thur
Martha 12/12 @ 6 am Tue
They were both upset and insistent that I told them
Monday so they would be here Monday (12-9) @ 6 am.
They also asked for this in writing. I refused. I did say
they would be told this face to face in AM, if they wished.
Please do this for me so I can sleep? If you don’t want
to, call me @ 4:30 am and I will come in and do it.

On the morning of December 9, shortly before 6 a.m.,
Orozco, De Los Reyes, and Maryl Arreola, a CNA, showed up
at the facility where they were stopped by a security guard at
the wooden barricades and told that their names were not on a
list of those employees scheduled to work that day and they
were denied entrance. Jewell Williams came out and read to
them a statement to the effect that they were to return on their
next regularly scheduled workdays, December 10 for Orozco
and December 12 for De Los Reyes. The entire statement read:

We’ve made a commitment to other people to cover
the shift therefore, we can’t put you to work now because
that slot is occupied. Are you available to work your shift
on Monday (or Tuesday if day shift associate).

They asked to see Hankinson and were told that she was not
there.
All three then left and went to Arreola’s nearby home. Other
employees came to Arreola’s house, including Jim Thomson, a
CNA, Betty Parker, a CNA, Samuel Orozco and Rosa Garcia,
another employee. They decided to return to the facility again
and to report for work at 7:30 a.m. Martha Orozco, Arreola, and
De Los Reyes also were to try again to speak to Hankinson
about why they had not been put back to work that day.
When they arrived at the facility, they again asked to see
Hankinson but were told that she was not there. The names of
Barker and Thomson were on the list and they were allowed to
go to work. At this time, Samuel Orozco also learned that he
was not on the list to work that day. Martha Orozco and Samuel

128 After having received the notice of the Union’s intent to strike,
Hankinson went about securing some 40 or 50 volunteer replacements
from other nearby Beverly facilities to staff the various departments at
Valley Care.
Orozco became insistent about seeing Hankinson, who had
since arrived at the facility, and asked the guard to call her.
When she did not appear, Martha Orozco screamed for Hankin-
son “Carolyn, get your fucking fat ass over here and talk to us”
or they would drag her out, and that she had people coming in
who would kill Hankinson and her family. Martha Orozco
yelled to Pinheiro that she knew where his wife worked and
when she got off work, she would be “dead” and his car
burned. Pinheiro testified that he called his wife to warn her to
get out of the house and go to her grandmother’s house. Martha
Orozco accused Milton Ford, assistant maintenance manager,
of selling pot and threatened to call the police. She also said
that they would burn Ford’s car and house and hurt his wife.
Similarly, Samuel Orozco who also wanted to speak to Han-
kinson, began to yell for that “fat bitch” to come out and talk to
him. He became angry, got into his pickup truck and drove to
the middle entrance where he knocked down the wooden barri-
cade, backed up, drove away, and parked across the highway.
He returned to the main gate, continuing his harangue. Jewell
Williams testified that Samuel Orozco called for Hankinson to
get her “fat ass” out of the facility and threatened to kill Han-
kinson and her family.
A group of employees had now gathered outside of the facil-
ity in the parking lot. These included Pinheiro, Leon Hill,
housekeeping superintendent, Jewell Williams, and Mike Per-
alta, a new employee. Hill testified that Samuel Orozco came
across toward the facility yelling that he wanted to see Hankin-
son right now or he was going in after her. He said that he knew
where she lived and was going to “take care” of her family.
Orozco said he was going to hurt Pinheiro’s wife, calling her by
her name, “Virgie.” To Peralta he said that, although a new
employee, he was “next.” Pinheiro also testified that Samuel
Orozco alluded to hurting his wife, and threatened to burn
Ford’s house down, and kill his girlfriend. He called Jewell
Williams a “fat nigger,” and told Hill that he knew where he
lived and what he drove. Milton Ford and Patricia Diaz, a
housekeeping employee, also observed the scene and generally
corroborated the testimony of Jewell Williams, Hill, and Pin-
heiro.
Concerning the events of December 9, Martha Orozco testi-
fied that when they returned for the second time to the facility
about 7:15 a.m., they asked to speak to Hankinson. About this
time, Pinheiro, Ford, and Hill came out of the facility and Ford
said something like “the bitch is back.” Orozco testified that
she said, “yeah, and we want to talk to Hankinson.” Samuel
Orozco also spoke, telling them not to be calling his family or
threatening them.129 Martha Orozco does concede that when
Hankinson did appear, she told her, “Carolyn, get your fucking
ass over here and talk to us and let us know why you’re not
putting us back to work.” She also concedes, as to Pinheiro,
that she did say she knew where his wife worked, and what
time she got off, but denies threatening either Pinheiro or his
wife. Samuel Orozco denied using the word “bitch” in refer-
ence to Hankinson. He concedes that he used the word “bitch”
but cannot recall to whom he was speaking. He denied using
any profanity. Samuel Orozco testified that while he did see a
group of people outside the building, he did not make the
statements attributed to him, nor did he hear Martha Orozco
129 Orozco testified that his brother and mother had told him that
“someone” had telephoned their home making threats and obscene
remarks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 228
make any threatening or abusive remarks. He did admit that he
was so angry when he left the facility that De Los Reyes had to
drive his truck home for him.
De Los Reyes testified that both Samuel Orozco and Martha
Orozco told Hankinson to stop “messing” with their families.
She also testified that while Martha did address some remarks
to Ford and Pinheiro, but not to Hill or Jewell Williams and that
she could not recall any threatening or abusive remarks toward
anyone’s personal property, either by Martha Orozco or Sam
Orozco. Arroyo’s testimony generally supports the testimony of
De Los Reyes and that she either could not recall any threaten-
ing remarks or could not recall anything being said by Sam
Orozco or Martha Orozco.
Having reviewed all the relevant testimony, I am satisfied,
despite the somewhat disjointed and confusing testimony, that
those accounts offered by the Respondent’s witnesses were
more credible. To the extent that there exist inconsistencies
between their accounts and the accounts of others, I credit their
accounts. Specifically, I conclude that this record supports the
conclusion that Samuel Orozco and Martha Orozco, angered by
not being able to return to work on December 9, became angry.
This anger manifested itself in certain identifiable misconduct,
namely, threats to the person and/or properties not only of Han-
kinson, but Pinheiro, Hill, Ford, and Peralta. In addition, Sam-
uel Orozco made sexist, racist, and intimidating remarks to
Jewell Williams on December 9 and to other female administra-
tors on December 7. Viewed in its totality, I am satisfied that
the threats of physical harm to Hankinson and others, together
with the other misconduct set out above, was so flagrant and
serious as to justify their terminations. In reaching this conclu-
sion, I note that the strike began and ended on December 7 and
that picketing had ended. The employees were being brought
back to their jobs pursuant to the Union’s offer to return to
work on the afternoon of December 7. Thus, this is not a case
of discharge for misconduct on a picket line. The misconduct
was prompted by the fact that Martha Orozco and Sam Orozco
were unhappy with the delay that they were experiencing in
being returned to their jobs. They were not immediately re-
turned to their jobs on the Union’s offer of reinstatement, which
is apparently what they had anticipated. The General Counsel
concedes that the strike and the picketing were over but con-
tends that both were nonetheless engaged in the protected con-
certed activity of protesting Respondent’s failure to return them
to their jobs. The delay was not, however, in my opinion, un-
reasonable in view of the fact that Respondent was committed
to the employment of transferred replacements in order to pro-
vide continuing patient care, and some delay was inherent in
returning to normal operations after the strike. But even if the
misconduct were perceived as picket line misconduct, I would
reach the same conclusion because their misconduct, in these
circumstances, was such as to “reasonably tend to coerce or
intimidate employees in the exercise of rights protected by the
Act,” i.e., refraining from engaging in the protected concerted
activity of striking.130
4. The 8(a)(1) allegation—threats for having joined the Union
On December 10, according to Samuel Orozco, he was
called at his home by Hankinson who advised him that he was
being suspended. In a second call later that day, according to
Samuel Orozco, he was told by Hankinson that he should not

130 Clear Pine Mouldings, 268 NLRB 1044 (1986).
have joined the Union but had chosen the wrong side and now
he knew what would happen to him. Samuel Orozco became
offended, calling her “nothing but a bitch,” and hung up. Han-
kinson denied talking to Samuel Orozco by telephone on De-
cember 10. She recalls attempting to reach him on December 9
to tell him that he was being suspended, but cannot recall
whether she spoke to him personally or not. She denied having
made any such statement. The credible testimony convinces me
that no threatening telephone call was made to Samuel Orozco
on December 10 and that the call on December 9 was for the
purpose, as Hankinson testified, of advising him of his suspen-
sion because of his misconduct on the prior day, not to gratui-
tously advise him that he was being discharged for having
joined the Union. Accordingly, the 8(a)(1) allegations based on
the December 10 telephone call should be dismissed.
5. Solicitation to vandalize autos
Bill Pinheiro, the maintenance manager,131 testified that
about October 1992, in the facility’s parking lot, in conversa-
tion with Hankinson, he was asked by her what he would take
to “do something” to a car and that he responded that he didn’t
want to have anything to do with that. In a later conversation,
but sometime prior to the strike, he was asked specifically what
he would want to cut the vinyl top on Maryl Arreola’s car and,
again, Pinheiro declined to have anything to do with it. It ap-
pears that later, on January 22, 1992, Arreola’s car was vandal-
ized and the damage included slashing the vinyl roof.132 Pin-
heiro testified that about May 1992, Ford confided to him that
he had been paid by Hankinson to take care of the top of Ar-
reola’s car. Pinheiro further testified that he gave all of this
information to Celano with whom he was living. Celano con-
firms being told by Pinheiro that Ford had been paid to damage
Arreola’s car.
Celano also testified that in December 1991, after the strike,
she was in Hankinson’s office with Jim Jones, another CNA. At
that time there was on Hankinson’s desk a tool that looked like
a linoleum knife. Hankinson explained that it was a tool to
slash tires and asked Celano if she would slash union tires.
Celano said that she did not have a car to do that with, and
Hankinson offered to pay for gas if she would use Celano’s
niece’s car, but Celano refused, saying, “That’s not me” and
left the office.
131 The record discloses that Pinheiro has been the maintenance
manager for about 4 years. In this job, he is assisted by Ford. For about
40 days in early 1991, Pinheiro was also the acting housekeeping su-
pervisor with about 10 to 13 employees under his direction. About the
same time, he was also employed for about 30 to 40 days as director of
staff development. It appears that Pinheiro, on his own authority, gives
Ford time off and initials his timecard for payroll purposes. In Hankin-
son’s absence, he also authorizes overtime for Ford and sends him
home when overtime is not required to be worked. Although both Ford
and Pinheiro are salaried, Pinheiro makes about $4 to $4.50 per hour
more than Ford. Pinheiro also conducts and signs written evaluations of
Ford’s job performance that he submits to Hankinson. In my opinion,
although Pinheiro, like Ford, works with tools and Ford is the only
other employee in the maintenance department, and despite the fact that
Pinheiro may not have the authority to hire or discharge employees, the
record, nonetheless, supports the conclusion that Pinheiro’s relationship
to Ford is supervisor to supervisee and that Pinheiro is a supervisor
within the meaning of the Act.
132 Arreola was a union-shop steward elected by other employees,
actively supporting, the Union and was involved in attempts to negoti-
ate a new contract with Respondent.
BEVERLY CALIFORNIA CORP. 229
Jones testified that while he recalled being in Hankinson’s
office with Celano on a few occasions, he does not recall seeing
or having any conversation about a cutting tool and did not hear
Hankinson offer either himself or Celano gas or money to dam-
age any automobile. Similarly, Hankinson denied ever having
anything like a linoleum knife in her office and never offered
Celano, Jones, or Ford gas or money to vandalize any auto.
Hankinson testified that apart from his salary, the only addi-
tional money paid to Ford was a one-time $50 payment for
“extra effort” in performing his duties short-handed.
Having reviewed all of the relevant testimony, I am satisfied
that the weight of the probative evidence, particularly noting
the mutually corroborated testimony of Hankinson and Jones,
that Hankinson did not either solicit Celano or Jones to vandal-
ize the auto of union supporters as alleged.
I do find, however, based on the credible evidence adduced
at the hearing, that Pinheiro violated Section 8(a)(1) of the Act
by telling Celano that Hankinson had solicited him to vandalize
Arreola’s car and that Hankinson had actually paid Ford to do
it. This violation is not nullified by their close, personal rela-
tionship. Essentially, Pinheiro, a supervisor, was telling Celano,
an employee, that the administrator was soliciting employees to
vandalize the cars of union supporters. Whether the information
is accurate or not, it was intimidating and clearly inhibitive as
to the rights guaranteed to employees under Section 7 of the
Act to form, join, or assist labor organizations free from em-
ployer interference.
IV. EFFECTS OF THE UNFAIR LABOR PRACTICE ON COMMERCE
The activities of the Respondent set forth in section III
above, occurring in connection with Respondent’s operations
described in section I, above, have a close and intimate rela-
tionship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY133
Having found that Respondent has engaged in and is engag-
ing in unfair labor practices, as set out above, I shall recom-
mend that it cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the Act.
Having concluded that Respondent unlawfully suspended Val-
erie Faulkner and Amy Johnson and unlawfully discharged
Amy Johnson, Nelia Aldape, Cathy Lewis, and Johnny Scott
for reasons that offended the provisions of Section 8(a)(3) and

133 On May 27, 1994, General Counsel filed a motion to reopen re-
cord to include newly discovered documents, together with the docu-
ments, relating to the single employer and remedy issues herein. The
documents sought to be introduced were produced by Respondent
pursuant to subpoena issued in Beverly III (Beverly Enterprises, 6–
CA–24221, et al.). Respondent filed an opposition thereto on June 7,
1994. It appears that, except for a single document, none of the docu-
ments sought by the General Counsel to be made part of this record
existed during the time period for which documents were subpoenaed
in the instant case, i.e., January 1, 1988, to November 1, 1991. Respon-
dent was under no obligation to produce them prior to the close of the
hearing in the instant case, even if they came in to existence before the
hearing closed. Nor is it obliged to produce them now for consideration
in the instant case as newly discovered documents. I shall therefore
deny the General Counsel’s motion, except as to appendix E, an inter-
office memorandum dated January 14, 1991, concerning “Labor Rela-
tions—1990.” Regarding that document, the General Counsel’s motion
is granted, and the document marked as ALJ Exh. 1 is hereby made part
of the record.
(1) of the Act, Respondent shall, to the extent that this has not
been accomplished, offer to the above employees full and im-
mediate reinstatement to their former positions of employment
or, if those positions no longer exist, to substantially equivalent
employment, without prejudice to their seniority or other rights
and privileges, and backpay with interest from the dates of their
discharges. I shall also recommend that the Employer make all
of the above employees whole for any loss of pay they may
have suffered as a result of the discrimination practiced against
them. All backpay and reimbursement provided herein, with
interest, shall be computed in the manner described in New
Horizons for the Retarded, 283 NLRB 1173 (1987), and F. W.
Woolworth Co., 90 NLRB 189 (1950).
The General Counsel seeks a remedy to include, in addition
to the customary relief, a broad national cease-and-desist Order
applying to all of Respondent’s operations nationwide. This
remedy was sought and granted by the Board in Beverly I, su-
pra, and it is the contention of the General Counsel that a na-
tional order is equally appropriate herein, particularly in view
of the fact that the Beverly II unfair labor practices violations
must now be added to the Respondent’s history of unfair labor
practices and make an even stronger case for extraordinary
relief.134
There can be no doubt that the Respondent has an extensive
history of unfair labor practice violations. Prior to Beverly I,
Board decisions had issued finding unfair labor practice viola-
tions at nine of the Respondent’s facilities. Numerous other
unfair labor practice charges against Respondent were adjusted
short of adjudication, by either informal settlement or non-
Board adjustment. According to the General Counsel, it per-
ceived a pattern of continuing violations despite the settle-
ments, and determined that rather than a “piece-meal” approach
of issuing individual complaints, it would issue a single com-
plaint including all outstanding meritorious unfair labor prac-
tice charges and complaints. That case, Beverly I, with amend-
ments, grew to allegations of violations at 35 of the Respon-
dent’s facilities in 12 states during a period from about mid-
1986 to mid-1988. On November 9, 1990, Judge Martin Linsky
issued a decision wherein he found various 8(a)(1), (3), and (5)
unfair labor practice violations by the Respondent at 33 nursing
home facilities in 12 states. Linsky, in agreement with the Gen-
eral Counsel, concluded that a broad corporatewide remedial
Order running to each of the Respondent’s approximately 1000
nursing home facilities was appropriate.135
On January 29, 1993, the Board issued its decision in Bev-
erly I, supra, concluding that Respondent had committed some
135 unfair labor practices at 32 facilities. In agreement with
Judge Linsky, the Board also found that Respondent had dem-
onstrated a proclivity to violate the Act, had engaged in a pat-
134 On May 5, 1994, counsel for Respondent filed with me a motion
for leave to file a supplemental memorandum, together with the sup-
plemental memorandum, urging that I allow memoranda to be filed by
the parties for the purpose of explaining the impact of a decision by the
United States Circuit Court of Appeals for the Second Circuit in Tor-
rington Extend-A-Care Employee Assn. v. NLRB, 17 F.3d 580 (2d Cir.
1994), reversing the the remedy aspects of Beverly I.
In my opinion, however, the record herein, including the briefs sub-
mitted by the parties, are sufficient to resolve all of the issues raised for
consideration in the instant case, including the remedy, and additional
memoranda are deemed unnecessary. Accordingly, Respondent’s mo-
tion is denied.
135 Single employer status was admitted by Respondent in Beverly I
but denied and exhaustively litigated in the instant case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 230
tern of unlawful conduct, and that a broad corporatewide cease-
and-desist Order would best effectuate the policies of the Act.
While Beverly I was being litigated, additional unfair labor
practice charges and complaints were collecting at National
Labor Relations Board Regional Offices over the country.
These unfair labor practice allegations were based on events
occurring from about mid-1988 and formed the basis for the
original complaint herein that issued on August 20, 1991.
Those allegations, plus some later amendments to allege addi-
tional violations after the hearing opened, were allowed by me
and together comprise the unfair labor practices heard and de-
cided in the instant case. The allegations in the instant case are
based on events occurring between approximately mid-1988
and early 1992. Unfair labor practice charges and complaints
after the instant case form the basis of a consolidated complaint
issued by the General Counsel on June 30, 1993, Beverly III,
supra.
It is against this background that the unfair labor practice
violations found in the instant case must be evaluated to deter-
mine whether or not the request of the General Counsel and
Charging Party for a broad corporatewide Order must be as-
sessed. In my opinion, the Respondent’s collective history of
unfair labor practices, as well as the unfair labor practices
herein, warrant the imposition of such an Order.
In reviewing those considerations leading to a single em-
ployer finding, set out above, it is clear that the Respondent
exercised close supervision over the individual facilities
through a clearly defined and well organized hierarchy. This
was especially true in the area of labor relations. As noted
above in greater detail, labor relations at the individual facilities
were under the direction and control of the regional directors
for human resources, and the human resources representatives
from that office attended to the labor relations needs at the
various facilities. Individual facilities had little or no autonomy
with respect to decisions affecting labor contracts at organized
facilities or dealing with the responses to organizational efforts
at unorganized facilities. On the first indication of any organ-
izational effort, administrators were required to contact higher
authority and thereafter regional human resources assumed
control of an antiunion campaign to support the Respondent’s
“union free” philosophy. The individual facilities have no hu-
man resources representative on their staffs and rely on regional
human resources for all their needs in the area of labor rela-
tions.
Corporate human resources formulates the policy and is in-
volved in virtually all significant decisions affecting union
relations, including those resulting in unfair labor practices.
Union animus is manifest, by corporate involvement in efforts
to evade union organization. The process is designed to repulse
employee organizational efforts. At those facilities already
organized, the object was to frustrate the process of collective
bargaining and contract negotiation so as to undermine em-
ployee support for their Unions.
Clearly, this record discloses that it was the responsibility of
corporate human resources to become and/or remain “union
free.” Respondent makes no bones about its expectations of
corporate adherence to those principles at the corporate re-
gional and facility levels of the organization. In this respect, the
human resources policy manual states, in pertinent part:

The company policy is to force a pro-associate [em-
ployee] relationship in a nonunion environment whenever
possible.
Regional responsibilities: . . . to support preservation
of a nonunion environment through support of a pro-
associate philosophy and practices.
Facility responsibility: . . . to preserve a union free en-
vironment.136
A review of the applicable authority makes it clear that the
Board, with Court approval, has ordered extraordinary relief in
circumstances when the respondent has demonstrated a procliv-
ity to violate the Act. For example, in Hickmott Foods, 242
NLRB 1357 (1979), a broad cease-and-desist Order prohibiting
Respondent from violating employee Section 7 rights in “any
other manner” rather than the customary “any like or related
manner” was deemed appropriate. In other cases, cease-and-
desist relief has been afforded, running to employer locations in
addition to those where the unfair labor practices occurred. J. P.
Stevens & Co., 247 NLRB 420 (1980); Florida Steel Corp., 244
NLRB 395 (1979), revd. and remanded 646 F.2d 616 (D.C. Cir.
1981), reaffirmed 262 NLRB 1460 (1982), enfd. in pertinent
part 713 F.2d 828 (D.C. Cir. 1983); S. E. Nichols, Inc., 284
NLRB 556 (1987), enfd. 862 F.2d 952 (2d Cir. 1988). Of
course, as discussed herein, the propriety of such relief was
recently affirmed by the Board in circumstances much the same
as the instant case in Beverly I, supra, although, as noted above,
the Board’s national corporatewide cease- and-desist Order was
denied enforcement by the Second Circuit.
Respondent argues, however, that the unfair labor practices
alleged in the instant case were relatively inconsequential, far
less serious collectively than those found by the Board in Bev-
erly I, and that they occurred at relatively few of the Respon-
dent’s facilities nationwide; further, that in context, a com-
panywide remedial Order would be punitive rather than reme-
dial.
First, the Board has substantial discretion in determining
what relief is appropriate to remedy violations in order to effec-
tuate the policies of the Act.137 In Beverly I, the Board con-
cluded that Respondent’s proclivity to violate the Act was so
aggravated that it would effectuate the policies of the Act for
the relief to include a corporatewide cease-and-desist Order.
Now, to this background of unfair labor practices found by the
Board in Beverly I, have been added those violations found
herein. Although it is true, as Respondent contends, that the
violations at certain facilities were not serious, violations at
other facilities were substantial. Moreover, the violations at
those facilities disclose a corporate effort to remain union free
even at the expense of those rights guaranteed by the Act.
Respondent also argues that it has “cleaned up its act” and
points to the departure of Division Human Resources Represen-
tative Hugh Gregg. In Beverly I, Gregg was singled out as a
principal offender. Respondent also argues that efforts have
been undertaken to train and educate staff at the facility level so
as to avoid the commission of unfair labor practices. Although
Respondent may be somewhat sadder and wiser, however, this
record discloses no clean break with the Respondent’s history
of unlawful behavior. In these circumstances, I conclude that a
corporatewide cease-and-desist Order is appropriate.
In reaching this conclusion, let me add that I am aware that
the U.S. Court of Appeals for the Second Circuit, as noted
above, has rejected the corporatewide remedy found appropri-

136 G.C. Exh. 403, labor relations section, p. 1.
137 Fibreboard Corp. v. NLRB, 379 U.S. 203, 216 (1964); Virginia
Electric & Power Co. v. NLRB, 319 U.S. 533, 540 (1943).
BEVERLY CALIFORNIA CORP. 231
ate by the Board in Beverly I. Nonetheless, it is my obligation
to follow applicable Board precedent even when there exists a
conflict with U.S. Circuit Courts of Appeal.
Turning to those other elements of relief sought by the
Board, I conclude that posting at all of the Respondent’s indi-
vidual nursing home facilities is appropriate, particularly be-
cause the cease-and-desist Order applies to all the individual
facilities.
The General Counsel also seeks additional extraordinary re-
lief requiring Respondent to: send written instructions to all its
administrators, managers, and supervisors at all of its facilities
requiring them to comply with the provisions of the Order and
notice; reimburse the Board for all costs and expenses incurred
by the Board in the investigation, preparation, presentation, and
conduct before the National Labor Relations Board and the
Courts of that portion of the case related to the single-employee
issue; grant to the Charging Party labor organizations, in both
the instant case and Beverly I, and their representatives, on
request, (1) reasonable access to its bulletin boards and all
places where notices to employees are customarily posted, (2)
reasonable access to employees at its facilities in nonwork areas
during employees’ nonworktime, and (3) notice of and equal
time and facilities for the Charging Party Unions to respond to
any address made by Respondent to its employees at any loca-
tion on the question of union representation; afford to any labor
organization, including the Charging Party Unions, the right to
deliver a 30-minute speech to employees on working time prior
to any Board election that may be scheduled in which the labor
organization is a participant; the provisions of the Order to run
for a period of 2 years from the date of the posting of any No-
tice to Employees. Also that Respondent submit to discovery
procedures by the Board concerning compliance matters under
the Federal Rules of Civil Procedure under the supervision of
the U.S. Circuit Court of Appeals enforcing the Order.
In my opinion, the extraordinary relief provided herein is
adequate and provides appropriate and adequate relief for the
unfair labor practice violations found herein. The additional
extraordinary relief sought by the General Counsel and Charg-
ing Parties is not necessary in order to effectuate the policies of
the Act, and I shall recommend that, except for the extraordi-
nary relief providing for a corporatewide Order applying to all
facilities and the posting of notices at all of those facilities, the
requests for extraordinary relief should be denied.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Unions are labor organizations within the meaning of
Section 2(5) of the Act.
3. By interfering with restraining and coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor
practices proscribed by Section 8(a)(1) of the Act.
4. By discharging, suspending, or otherwise disciplining
employees as set out herein, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and (4) of
the Act.
5. By refusing to bargain with the Union, as set out herein,
Respondent has violated Section 8(a)(5) of the Act.
[Recommended Order omitted from publication.]