Canter-Bury Villa

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1196 (N.L.R.B. 1984)

1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Health Enterprises of America, Inc., d/b/a Canter-
bury Villa and United Paper Workers Interna-
tional Union and its Local Union No. 571,
AFL-CIO. Cases 8-CA-14834 and 8-CA-
14834-2
14 December 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 16 May 1983 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs, and the Charging Party
filed a brief in answer to the Respondent's excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision in light of
the exceptions and briefs and has decided to affirm
the judge's rulings, findings,' and conclusions, 2 but
not to adopt the recommended Order.
We agree with the judge that the Respondent
unlawfully instituted several unilateral changes in
its employees' terms and conditions of employment.
We believe, however, that the judge's recommend-
ed Order lacks sufficient specificity as to the un-
lawful changes made and the affirmative steps that
the Respondent must take to remedy those viola-
tions of the Act. We shall provide that the Re-
spondent make the employees whole for any mone-
tary losses they suffered as a result of the unilateral
changes. Payments to employees shall be made
with interest as prescribed in Florida Steel Corp.,
231 NLRB 651 (1977). See generally Isis Plumbing
Co., 138 NLRB 716 (1962).
Similarly, we agree with the judge that the strike
that commenced 24 May 1981 was an unfair labor
practice strike and that Joyce Green was unlawful-
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy Is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
While Member Hunter agrees that there is no basis for overruling the
judge's credibility findings, he disapproves of the judge's conclusions that
the Respondent's owner gave false testimony under oath
2 We disavow the judge's statement that "[Iln a sense the strikers were
former employees " See Lou/law Corp, 171 NLRB 1366 (1968),
enfd 414 F 2d 99 (7th Cm 1969), cert denied 397 U S 920 (1970)
In addition we find it unnecessary to rely on his discussion of the so-
called "hypothetical employer" in par 8 of the section of his decision
headed "Violations of Section 8(a)(3) "
Finally, we agree with the judge that the Respondent's no-solicitation
rule violated Sec 8(a)(1), but we do not rely on T R W Bearings, 257
NLRB 442 (1981), and rely instead on Beth Israel Hospital, 223 NLRB
1193 (1976), affd 437 US 483 (1978)
ly discharged while participating in the unfair labor
practice strike. Again, however, we find the
judge's recommended Order to be inadequate con-
cerning those matters. Accordingly, we shall order
that the Respondent offer the strikers, on their un-
conditional applications to return to work, immedi-
ate and full reinstatement to their former positions
or, if these positions no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority and other rights and privileges, dismiss-
ing, if necessary, persons hired on or after 24 May
1981, and to make them whole for any loss of earn-
ings they may suffer as result of the Respondent's
refusal, if any, to reinstate them in a timely fashion
by paying to each of them a sum of money equal
to that each would have earned as wages during
the period commencing 5 days after the date on
which each unconditionally offers to return to
work to the date of the Respondent's offer of rein-
statement, less any net earnings during such period.
The Board has found that the 5-day period is a rea-
sonable accommodation between the interests of
the employees in returning to work as quickly as
possible and the employer's need to effectuate that
return in an orderly manner. 3 Accordingly, if the
Respondent has already rejected, or later rejects,
unduly delays, or ignores any unconditional offer
to return to work, or attaches unlawful conditions
to its offer of reinstatement, the 5-day period serves
no useful purpose and backpay will commence as
of the unconditional offer to return to work.4
Having further found, in agreement with the
judge, that during the strike the Respondent termi-
nated Joyce Green in violation of Section 8(a)(3)
and (1) of the Act, we shall order the Respondent
to offer Joyce Green immediate and full reinstate-
ment to her former position or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights
and privileges, dismissing, if necessary, persons
hired on or after the date of her discharge, and to
make her whole for any loss of earnings she may
have suffered as a result of the discrimination prac-
ticed against her.3
In each instance where backpay is appropriate,
such backpay and interest shall be computed in the
manner prescribed in E W. Woolworth Co., 90
8 Drug Package Co, 228 NLRB 108 (1977)
4 Newport News Shipbuilding Co, 236 NLRB 1637 (1978), enfd. 602
F 2d 73 (4th Cir 1979)
1 Abilities & Goodwill, 241 NLRB 27 (1979), enf denied on other
grounds 616 F 2d 6 (1st Or 1979)
Member Dennis agrees with the dissent in Abilities & Goodwill that the
majority in that case improvidently overruled more than 30 years of
Board precedent requiring unlawfully discharged strikers to offer to
return to work in order to initiate the running of backpay Absent a ma-
jority to overrule Abilities & Goodwill, Member Dennis will apply the
remedy set forth in that decision
273 NLRB No. 150
CANTERBURY VILLA 1197
NLRB 289 (1950), and Florida Steel Corp., supra.
Finally, we find that the Respondent's misconduct
was egregious and demonstrates a general disre-
gard for the employees' fundamental rights. There-
fore, we shall issue a broad order requiring the Re-
spondent to cease and desist from infringing "in
any other manner" on employees' Section 7 rights.
Hickmott Foods, 242 NLRB 1357 (1979).
Accordingly, for the foregoing reasons, we shall
substitute the Order below for that recommended
by the judge.6
ORDER
The National Labor Relations Board orders that
the Respondent, Health Enterprises of America,
Inc., d/b/a Canterbury Villa, Milan, Ohio, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that they should quit their
union membership.
(b) Coercively interrogating employees concern-
ing their union activities.
(c) Telling employees the owner of the Respond-
ent will never sign a collective-bargaining agree-
ment with the Union.
(d) Telling employees they will regret having en-
gaged in union activities.
(e) Telling employees that the Respondent will
not bargain with the Union because it filed charges
with the National Labor Relations Board.
(f) Promulgating or maintaining an unlawful no-
solicitation rule.
(g) Discharging or in any other manner discrimi-
nating against its employees because of their union
or other protected concerted activities.
(h) Dealing directly with its employees, or dis-
cussing terms and conditions of employment with
its employees while bypassing the employees' es-
tablished collective-bargaining representative.
(i) Unilaterally changing its employees' terms
and conditions of employment including, but not
limited to, insurance benefits, working hours, rates
of pay, incentive plans, and vacation pay and eligi-
bility standards, provided, however, that nothing in
this Decision and Order shall be construed as au-
thorizing or requiring the Respondent to withdraw
or eliminate any benefits presently enjoyed by the
Respondent's employees absent the express consent
of the Union.
(j) Refusing to bargain in good faith with United
Paper Workers International Union and its Local
Union No. 571, AFL-CIO as the exclusive repre-
6 We shall also correct certain omissions and other minor errors in the
Judge's recommended Order so as to conform the Order to our tradition-
al practice and the specific violations found
sentative of its employees in the following appro-
priate unit:
All full-time and regular part-time service and
maintenance employees including laundry em-
ployees, housekeeping employees, dietary em-
ployees, nurses aides and LPN's, excluding
registered nurses, therapists, professional em-
ployees, business and admitting office employ-
ees, guards and supervisors as defined in the
Act, employed by the Respondent at its Can-
terbury Villa Nursing Home.
(k) In any other 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 neces-
sary to effectuate the policies of the Act.
(a) Restore all terms and conditions of employ-
ment specified in paragraph 1(1) above to the status
quo as it existed before the unlawful unilateral
changes were made, to the extent such changes
were detrimental to the employees.
(b) Make whole any employees who may have
been detrimentally affected by the changes in terms
and conditions of employment specifically de-
scribed in paragraph 1(i) above, with interest on
any monetary losses the employees may have suf-
fered to be computed in the manner set forth in
this Decision and Order.
(c) Offer immediate and full reinstatement to
Laura Baisden, Sandra Baisden, Glenda Foster,
Charlotte Habeck, Joan Kuhlman, Ethel Signs, and
Emily Walker to their former positions or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges, and make them whole
for any loss of earnings they may have suffered as
a result of the discrimination practiced against
them in the manner set forth in this Decision and
Order.
(d) Offer immediate and full reinstatement to
Joyce Green to her former position or, if that posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to her seniority or
other rights and privileges, dismissing, if necessary,
persons hired on or after the date of her discharge,
and make her whole for any loss of earnings she
may have suffered as a result of the discrimination
practiced against her in the manner set forth in this
Decision and Order.
(e) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
(1) Offer the unfair labor practice strikers, upon
their unconditional applications to return to work,
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediate and full reinstatement to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority and other rights and privileges,
dismissing, if necessary, persons hired on or after
24 May 1981, and make them whole for any loss of
earnings they may have suffered in the manner set
forth in this Decision and Order.
(g) Recognize and, on request, bargain in good
faith with the aforesaid labor organization as the
exclusive representative of the employees in the
above-described appropriate unit with regard to
rates of pay, hours of employment, and other terms
and conditions of employment, and embody in a
signed agreement any understanding reached.
(h) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(i) Post at its Milan, Ohio nursing home copies of
the attached notice marked "Appendix." 7 Copies
of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(j) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
7 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT tell employees they should quit
their union membership.
WE WILL NOT coercively interrogate employees
concerning their union activities.
WE WILL NOT tell employees the owner of the
Company will never sign a collective-bargaining
agreement with the Union.
WE WILL NOT tell employees they will regret
having engaged in union activities.
WE WILL NOT tell employees that the Company
will not bargain with the Union because it filed
charges with the National Labor Relations Board.
WE WILL NOT promulgate or maintain an unlaw-
ful no-solicitation rule.
WE WILL NOT discharge or in other manner dis-
criminate against our employees because of their
union or other protected activities.
WE WILL NOT deal directly with our employees,
or discuss terms and conditions of employment
with our employees while bypassing the employ-
ees' established collective-bargaining representa-
tive.
WE WILL NOT unilaterally change our employ-
ees' terms and conditions of employment including,
but not limited to, insurance benefits, working
hours, rates of pay, incentive plans, and vacation
pay and eligibility standards, and WE WILL NOT
withdraw or eliminate any benefits presently en-
joyed by our employees absent the express consent
of the Union.
WE WILL NOT refuse to bargain in good faith
with United Paper Workers International Union
and its Local Union No. 571, AFL-CIO as the ex-
clusive representative of our employees in the fol-
lowing appropriate unit:
All full-time and regular part-time service and
maintenance employees including laundry em-
ployees, housekeeping employees, dietary em-
ployees, nurses aides and LPN's, excluding
registered nurses, therapists, professional em-
ployees, business and admitting office employ-
ees, guards and supervisors as defined in the
Act, employed by the Respondent at its Can-
terbury Villa Nursing Home.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of th
rights guaranteed you by Section 7 of the Act. 9",
WE WILL restore all terms and conditions of el
ployment to the status quo as it existed before
unilateral changes were made, to the extent
changes were detrimental to our employees.
WE WILL make whole any employees w' Amy
have been detrimentally affected by the cl. ges in
terms and conditions of employment wit' interest
on any monetary losses our employees nay have
suffered.
CANTERBURY VILLA 1199
WE WILL offer immediate and full reinstatement
to Laura Baisden, Sandra Baisden, Glenda Foster,
Charlotte Habeck, Joan Kuhlman, Ethel Signs, and
Emily Walker to their former positions or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges, and make them whole
for any loss of earnings they may have suffered as
a result of the discrimination practiced against
them, with interest.
WE WILL offer immediate and full reinstatement
to Joyce Green to her former position or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or
other rights and privileges, dismissing, if necessary,
persons hired on or after her discharge and make
her whole for any loss of earnings she may have
suffered as a result of the discrimination practiced
against her, with interest.
WE WILL notify the above-named employees that
we have removed from our files, and have asked
the Employer to remove from the Employer's files,
any reference to their discharges and that the dis-
charges will not be used against them in any way.
WE WILL offer the unfair labor practice strikers,
upon their unconditional applications to return to
work, immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and
privileges, terminating, if necessary, persons hired
on or after 24 May 1981, and make them whole for
any loss of earnings they may have suffered, with
interest.
WE WILL recognize, and on request, bargain
with the above-named labor organization as the ex-
clusive representative of our employees in the
above-described appropriate unit with regard to
rates of pay, hours of employment and other terms
and conditions of employment, and embody in a
signed agreement any understanding reached.
HEALTH ENTERPRISES OF AMERICA,
INC., D/B/A CANTERBURY VILLA
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge. A hear-
ing in this proceeding was held on February 16 and 17,
1983, at Sandusky, Ohio, on complaint of the General
Counsel against Health Enterprises of America, Inc.,
d/b/a Canterbury Villa (the Respondent or the Compa-
ny). The original complaint issued on June 18, 1981,
based on a charge filed on May 6, 1981, by United Paper
Workers International Union and its Local Union No.
571, AFL-CIO (the Union). A second charge was filed
on June 5, 1981, and a second complaint was issued on
July 16, 1981, involving the same parties. The issues pre-
sented are whether, as alleged in the complaint, the Re-
spondent unlawfully refused to bargain with the Union,
and discharged a number of employees in violation of
Section 8(a)(3) of the Act. Briefs were filed by all par-
ties.
On the entire record, and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation, operates a facil-
ity in Milan, Ohio, where it is engaged in the operation
of a nursing home. Annually it derives gross revenues in
excess of $100,000 from this operation and receives
goods valued in excess of $2000 at this location directly
from points outside the State. I find that the Respondent
is an employer within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I fmd that the United Paper Workers International
Union and its Local Union No. 571, AFL-CIO is a labor
organization within the meaning of Section 2(5) of the
Act.
HI. THE UNFAIR LABOR PRACTICES
A. The Case in Brief
The events giving rise to this case occurred at a nurs-
ing home located in Milan, Ohio, which the Respondent
purchased on February 1, 1981. There were about 70
employees working there at the time, about 50 to 55 of
them represented by Local 571 of the Paperworkers
Union, which filed this charge. The Union had been cer-
tified as bargaining agent following a Board election the
year before in 1980. Within 2 months of taking over the
business, Peter Kern, the owner and president of the
Company, started to change conditions of employment
unilaterally, dealing directly with the employees as
though the Union were not in the picture at all. He gave
pay raises, changed vacation allowances, established new
work rules, etc. While doing this he met a few times
with union agents, ostensibly carrying on simultaneous
collective bargaining. There came a time when the
Union filed charges with the Board, claiming the Re-
spondent was not bargaining in good faith. With this, the
Company formally cut off all recognition of the Union,
asserting that because of the charges filed, it was no
longer obligated under the statute to continue recogni-
tion of the exclusive certified bargaining agent. And it
continued to deal with the employees directly, still ignor-
ing the Union's existence. It promised them benefits and
advised them to stay away from the Union for at least 6
months, so that they could judge for themselves how
more generous his personal treatment of them was with-
out a union.
The first question presented is: Did the Respondent
violate Section 8(a)(5) of the Act by refusing to bargain
with the Union and by dealing directly with the employ-
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees and changing their conditions of employment behind
the Union's back, as it were?
In May 1981 the Union decided to strike, and gave the
Respondent the usual 10-day notice of such intent. The
strike was set to begin at 7 a.m. on May 24. On May 23
the Union decided otherwise, and chose to continue bar-
gaining instead. After the 7 a.m. shift reported to work
on May 24 seven of the employees were summarily dis-
charged. Within a matter of an hour or so, the Union
again switched position and started the strike, and the
picketing, that very day.
The second major issue presented is: Were the seven
employees discharged because of the union activities—in
violation of Section 8(a)(3) of the Act, or were they re-
leased for just cause, as the Respondent contends? Most
of the employees struck, at least 40 of them. The picket-
ing went on for several months. If either of the first two
questions is answered affirmatively in favor of the com-
plaint—allegations of refusal to bargain and in fact illegal
discharge of seven employees—it follows that it was an
unfair labor practice strike which followed. In that
event, each and every one of the strikers has a statutory
right to be returned to work upon unconditional applica-
tion.
A final major allegation of the complaint is that the
Respondent discharged 40 of the strikers after the strike
started. As to that, see below.
B. Violations of Section 8(a)(5)
That Kern, the owner of the business, was adamantly
opposed to having a union represent the employees in
this place is the clearest reality shown on this record. He
admitted the fact a number of times verbatim, both to
the employees when he gathered them apart from the
Union, and at the hearing while testifying. It matters not
that he believed a union is a bad thing in nursing homes,
that the possibility of strike could endanger the well-
being of the patients. The law is clear, and he simply
cast it aside. The Respondent took over the very same
business of the predecessor, the same full complement of
employees, the same building and equipment, the same
supervisory staff, etc. The duty to bargain with the es-
tablished certified union could not be questioned. NLRB
v. Burns Security Service, 406 U.S. 272 (1972).
Two months after he arrived, about April, Kern an-
nounced to the employees, without a word to the Union,
that he was changing the health and life insurance policy
then in effect. The new policy became available to more
employees than in the past. On May 3 he also changed
the work schedule, ordering the day shift to work 7-1/2
hours a day instead of the old 7 hours. On April 24 he
called all the employees to a meeting where he addressed
them for perhaps an hour. His initial message to them
that day was that he had no intention of having anything
at all to do with the Union, that Robert Moore, the
Union's business representative, with whom he had been
talking, was no longer welcome, and that he had written
a letter to the Union telling them that. He also distribut-
ed to the employees that day a new policy handbook to
take the place of one which had governed conditions of
employment under his predecessor. It made a number of
changes in their benefits—such as, among others, with
respect to a grievance procedure, holiday and vacation
benefits, a discipline system, a no-solicitation rule, etc.
There is little need to quote the various employees who
were present and who testified about what he said that
day, for Kern's own words suffice to prove the unfair
labor practices. For example:
Q. Did you ask the employees to give you six
months time within which to see what you could do
with the nursing home and to help them, and if at
the end of that time they were still dissatisfied, they
could have their union?
A. Yes, I did tell them that . . I told them that
we didn't normally conduct ourselves in the way
that they had been treated and, yes, that, you know,
within 6 months, we will let them make their deci-
sion.
This was the employer telling his employees they
could do better dealing with him directly than through
the Union of their choice, promising to improve the
terms of employment within 6 months to the point where
they themselves would quit the Union. But they had al-
ready chosen to be represented by the Union. If ever
there was a clear violation of Section 8(a)(5) of this stat-
ute this was it, without need for citing precedent!
In early May, Kern held a number of small group
meetings with the employees, talked to three or four at a
time in his office, privately. Again he explained the
changes he had made and the way he thought it would
all benefit them. Asked did he tell them, as some of the
employees testified at the hearing, that he would never
sign a union contract, Kern denied it. Then came the fol-
lowing:
Q Directing your attention again to these small
group meetings, isn't it true that you told the em-
ployees that were gathered in small groups that
these proposals were only for the employees that
would stay on and not for those who would go on
strike?
A. No I didn't tell them that. I said that these
wages and policies were going into effect If they
went on strike, they obviously wouldn't be there to
participate in them. If they stayed that's what was
going on.
. . .
Q. Did you tell the people that they could strike
and get nothing or accept what you were offering
and not strike and drop the Union?
A. No. What I told them, again, is that as of May
1st or June 1st or whatever date this document
went up on the board, that it was going to be the
rates of pay and benefits, etc. If they went on strike,
they wouldn't physically be there to get a pay-
check.
Q. Did you tell the employees—did you ask the
employees for a chance and tell them that this was
hard to get rid of a union once they had it and if
they weren't successful, they could try again and
get one?
A. Yes, I believe I said something like that.
CANTERBURY VILLA 1201
In light of the foregoing testimony from Kern himself,
of course, I credit the following testimony of the em-
ployees. Joyce Green spoke of the April 24 mass meeting
of employees. "He said that he wanted to know what the
Paperworkers was doing in a health facility. He would
not sit down and negotiate with Robert Moore because
we had filed an unfair labor practice charge against him.
He said he wanted no third party and he still held the
ballgame." "He wanted us to sit down and listen. We
told him that we were not there to bargain with him and
any great offers that he had to take them to the bargain-
ing table. He said I'm not here to bargain. This is an
offer. If you stay and you don't strike, that is what you
get. This is for the employees who will stay. We told
him we were for the Union and it didn't seemed to make
any difference. . . I told him there is nothing more than
a bribe. This is better than what we asked for at the
table. He kept going back and forth and he said, you like
the word, Joyce? I said, yes, I do. He said, let's call it a
mass bribe for conversation's sake, so that's what he did
. . . He said he would never put his name on a contract.
He said he had the money, time and ability to hold us off
for four years." On May 8 Green was called to the office
for a small group meeting, four employees sitting with
Kern. "How did the meeting start out? Did Mr. Kern
make a long speech? A. No. He said to discuss the poli-
cies that he implemented into the facility. . . . He asked
if anybody would like to know what he would offer
without the union to just give him a phone number."
In April and into early May, Landis was the nursing
home administrator, an admitted supervisor. About May
1 she told Green: "Why don't you quit. . . the union."
When Green said she would not, Landis came back with
"you will not win and you can't win, you are going to
hurt a lot of people doing this."
Linda Brown recalled Kern saying at the April 24
meeting "to give him a chance, to not have the union,
but give him six months and at the end of six months if
you don't like what he said or what he gave us, then we
could have our union back. He would allow it. He did
make a comment before all this. He said he was probably
hanging himself or crucifying himself for making this
statement, but he was going to state it anyway." As to
her attendance at one of the small group meetings,
Brown said Kern "brought out about benefits at other
homes, and he would—he would get the same things, but
he didn't want to deal with a union and he talked about
going to Florida."
Shirley Holmes, present with Joyce at one of the small
meetings, testified that when Joyce asked was the raise
being offered as a bribe, Kern said: "If you want it to be
a bribe, call it a massive bribe. . . . He kept on saying,
you take this. Drop the union. Get rid of the union. You
accept this. Don't strike."
From Laura Baisden's testimony about a May 5 talk
with Administrator Landis: "She stopped me and asked
me why—she said, I wanted to talk to you for a minute,
but this was very confidential. I don't want it to go no
further. She said, I want to ask you why are you girls
starting a union in here? I didn't answer at that moment,
and she said let me ask you a question: If your grandpar-
ents was in here, would you start a union? I said, well, I
said it wasn't, like, it wasn't up to me to do anything, be-
cause I wasn't supposed to, and she said if you do, that
you'll be sorry of it, and that you'll regret it."
By its entire course of conduct in dealing directly with
the employees in total disregard of their chosen bargain-
ing agent the Respondent violated Section 8(a)(5) of the
Act most flagrantly. Medo Photo Supply Corp., 321 U.S.
678 (1944). I also find that by unilaterally changing the
scheduled hours of work, the established health and life
insurance benefits, 1 the policy handbook, the vacation
benefits previously enjoyed by all the employees, and by
giving raises, all without giving the Union an opportuni-
ty to bargain on all these subjects, the Respondent violat-
ed Section 8(a)(5) of the Act. I also find that by deliber-
ately refusing to recognize the Union as bargaining agent
because it had filed charges of unfair labor practices with
the Board, the Respondent again violated Section 8(a)(5).
Equitable Life Insurance Co., 133 NLRB 1675 (1961).
I also find that by Kern's statement to the employees
that he would not recognize the Union because it had
filed charges against the Respondent with the National
Labor Relations Board, by his statement that he would
never sign a contract with the Union, by his statement to
employees that they should refrain from continued ad-
herence to the Union while he satisfied their economic
demands directly, by Administrator Landis' statement
that employees should quit the Union and that their
union activity would hurt the employees instead, and by
her interrogation of employees as to why they wished to
be represented by the Union, the Respondent violated
Section 8(a)(1) of the Act.
The new rules announced by the Company in the re-
vised policy handbook contain the following no-solicita-
tion rule:
No person is permitted to solicit for any purpose on
the grounds or within the building of this facility,
unless prior approval is obtained from the Adminis-
trator.
I find that by the announcement and enforcement of
this no-solicitation rule the Respondent violated Section
8(a)(1) of the Act. T.R. W. Bearings, Inc., 257 NLRB 442
(1981). Cf. also Gillette's, 226 NLRB 819 (1976).
C. Violations of Section 8(a)(3)
As already stated, the Union changed its strategy and
decided not to strike on May 24. That morning, the day
shift, scheduled to start at 7 a.m., reported for work as
Contrary to the Respondent's contention, the mere fact that the re-
vised insurance plan then put into effect at this nursing home, which in
fact changed the character of the insurance benefit enjoyed by the em-
ployees, conformed with the insurance then in effect at its other nursing
homes, is not a sufficient defense to this element of the complaint here.
The duty to bargain with a certified bargaining agent embraces all condi-
tions of employment involving the employees in that appropriate unit.
Here the bargaining unit is not disputed. It is as follows:
All full-time and regular part-time service and maintenance employ-
ees including laundry employees, housekeeping employees, dietary
employees, nursing aides and LPN's excluding registered nurses,
therapists, professional employees, business and admitting office em-
ployees, guards and supervisors as defined in the Act, employed by
the Respondent at its Canterbury Villa Nursing Home.
1202 DECISIONS OF NATIONAL LABOR RE! ATIONS BOARD
usual. Some of the women testified about that. All said
they arrived, as usual, before 7 a.m., sat in the lobby
talking and some of them having coffee, as they always
did, clocked in before 7 a.m., and went to their work sta-
tions at 7 a.m. At 9 or 9:30 a.m., each of these seven was
called to the office and fired. Why were they dis-
charged?
It is an old principle of Board law that when an em-
ployer is charged with discharging a person for an illegal
reason, and the affirmative reason advanced by the em-
ployer is false, the inference that the true reason was an
improper one is greatly strengthened. Shattuck Denn
Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966),
enfg. 151 NLRB 1329 (1965). 2 The facts of this case
present exactly such a situation. Kern testified that he de-
cided to discharge these ladies because they had "falsi-
fied" their timecards that morning. Again and again he
repeated the statement at the hearing. And each woman
was given a notice, prepared before they were called to
the office, reading: "Falsification of timecard." Kern ex-
° plained this on the ground that the policy book provided
that the employees were not to clock in more than 5
minutes earlier than their starting time; in this instance it
would have been 6:55 a.m. The timecards in this place
are punched by a clock, and there is therefore no way
the recorded time could be false. More important, Kern
admitted that no matter exactly when the employee
punches her card, she is only paid for the scheduled
hours—from 7 a.m. to 3 p.m. or to 3:30 p.m. The word
"false," therefore, was a pure fiction of the imagination.
But what completely destroyed Kern's crediblity in
this entire case is that the cards of four of the seven
women show they punched in at exactly 6:56 a m. ! Kern
even said he looked at the cards before writing the dis-
charge slips. His antiunion feeling may have carried him
away, but that he was giving false testimony under oath
in this case is an absolute fact This, to say nothing of the
fact the clocking-in rule which Kern now professes to
have enforced was unilaterally and therefore illegally es-
tablished in the first place. Latex Industries, 252 NLRB
855 (1980).
There are other grounds for not believing Kern as to
why he discharged these women, but in the light of the
first fact, there is little reason for belaboring the matter.
Three of the ladies did clock in earlier, one at 6:44 a.m.
and two at 6:45 a.m. It was stipulated that in the past
others had also clocked in more the 5 minutes before
starting time, a number of times, but there is no evidence
in the least indicating anyone had been criticized before
for that fact. As he rambled along in his self-exculpatory
2 As stated in 362 F 2d at 470
Actual motive, a state of mind, being the question, it is seldom that
direct evidence will be available that is not also self-serving In such
cases, the self-serving declaration is not conclusive, the trier of fact
may infer motive from the total circumstances proved Otherwise no
person accused of unlawful motive who took the stand and testified
to a lawful motive could be brought to book Nor is the tner of
fact—here the trial examiner—required to be any more naif than is a
judge. If he finds that the stated motive for a discharge is false, he
certainly can Infer that there is another motive More than that, he
can Infer that the motive is one that the employer desires to con-
ceal—an unlawful motive—at least where, as in this case, the sur-
rounding facts tend to reinforce that inference
testimony, Kern merged two asserted offenses by the
girls into one. He said that sitting in the lobby waiting
for 7 o'clock, and talking loudly among themselves, they
did not move on to the work stations on time, that they
deliberately stayed there 10 to 15 minutes beyond 7
o'clock. With that assertion, he explained the use of the
word "falsification" out of his mouth as meaning "falsifi-
cation in the sense they weren't working, expecting to be
paid, but not working." It will not do, for the use of the
word falsification in the discharge slips given to the girls
is tied directly to the "timecards," not the sitting idly
while waiting. Such attempts at double-talking serves all
the more to completely discredit the Respondent's prin-
cipal witness.
Kern's second asserted reason for the discharges is that
the seven women were told by a supervisor to go to
work after 7 o'clock and ignored him He testified that
from his office, next to the lobby, he saw the women just
sitting and talking among themselves after 7 a.m., and
sent his assistant, Richard Macaluso, to tell them to get
work. Macaluso, the administrator of the home who had
been hired 2 weeks earlier in this place, said that about
7:10 a.m. he went out and "asked them if they were plan-
ning on going to work, and if they were, I would like
them to report to their stations," but that all that hap-
pened was "a lot of chitchat and laughing about it."
Kern added that about 7:15 a.m. he went out and told
the girls to get to work, and that they then did.
All seven of the women involved testified that as they
gathered at various times before 7 a.m., they only did
what they had always done—had coffee if there was
enough time, talked among themselves, and went to their
stations directly at 7 o'clock Each one of them denied
either Macaluso or Kern came out of the office to order
them to go to work. Several of them did recall Kern put-
ting his head out of the office door to tell them to be
more quiet. They explained there was much to do in the
lobby at that time because many women were arriving,
with valises and things, who had never worked there
before. These outsiders had been hired in expectation of
the announced strike and formed a complete complement
of replacements in advance of the day. Considering the
situation in its entirety, I credit these women.
The question remains: Why were these women dis-
charged? After 7 o'clock, Kern realized that, with the
anticipated strike replacements having arrived, he was
double-staffed on the day shift. He said as much. Having
brought some of his employees from other homes he
owns, and having hired some new replacements, it can
be presumed he had reason to believe they would not be
enthusiastic unioneers. After all, as opposed to any union
as Kern admitted he was, he must be expected to have
taken such precautions when faced with a strike situa-
tion. The inference must be that he decided to get rid of
the old people who had at least threatened strike and
whom he could do without at the moment. He gave no
other reason for sending them home.
Had this been an employer who kept his hands off the
employee's right to be represented by a union, who had
not committed such clear unfair labor practices before
that date, who in all other respects complied with the
CANTERBURY VILLA 1203
law of the land, the question raised by these seven dis-
charges might appear in a different light. The operator of
a nursing home has a responsibility to see that the pa-
tients are cared for. That is why the law calls for a 10-
day strike notice, so that he can take the requisite pre-
cautions to see that the patients are looked after. May he,
in order to achieve that perfectly proper objective, hire
replacements in advance of the announced strike, even
promising them permanent employment, and insist on
keeping them when the intended strikers change their
minds at the last, critical moment?
I do not reach that question in this case, and decision
here is not intended to rule against that hypothetical em-
ployer. Kern did not give that as his reason when he dis-
charged the ladies. He did not even advance it at the
hearing. Moreover, his revealed animosity towards any
form of union activity strongly strengthens the conclu-
sion, which I reach, that he seized on the immediate situ-
ation to get rid of some of the employees who had re-
fused to heed his advice and delay any union activity for
at least 6 months.
I find that by discharging Laura Baisden, Sandra Bais-
den, Glenda Foster, Charlotte Habeck, Joan Kuhlman,
Ethel Signs, and Emily Walker at that moment the Re-
spondent violated Section 8(a)(3) and (1) of the Act as
alleged in the complaint.
And finally I find that the strike which commenced on
May 24, 1981, was an unfair labor practice strike en-
gaged in by the employees in protest of the unfair labor
practices committed by the Respondent.
D. The Alleged Discharge of All the Strikers
As stated above, the Union set the time for the strike
to start at 7 a.m., and the decision not to strike, made the
night before, was not communicated to the Company. In
preparation for the strike the Company not only hired a
full complement of replacements, but also, not knowing
what would happen, hired guards to look after the prem-
ises. When the morning shift came to work, to the Com-
pany's surprise, they all started to work. While seven of
these were later fired, others remained, and continued to
work. •
When the seven were discharged, about 9 o'clock,
they all went to the home of Joyce Green, Where other
employees were gathered. It was there, about 9:30 or 10
o'clock, in consultation with the union representative,
that the decision was made to begin the strike; The
entire group then went back to the nursing home, and
started picketing. At that moment, some of the early
morning shift employees walked off the job, but some of
them, old employees, remained at work. The picketing
continued for a number of months. Most of the employ-
ees joined the strike, but the record does show quite
clearly that some, a few at least, remained at work, in
addition to the few of the morning shift who came at 7
a.m. and stayed.
The second Complaint, issued on July 16, 1981, alleges,
without detail, that that day—on May 24—the Respond-
ent discharged 40 named employees. • Considering the
record as a whole, I take this to mean every one of the
employees who decided that day to strike. Neither of the
charges, filed long before that complaint was issued, says
anything about the entire group being anything but em-
ployees who chose to withhold their services. Neither
the Union, which filed the charges, nor the employees,
thought they had been discharged instead. There is no
evidence to prove that all these people were fired, and I
shall therefore dismiss this blunderbuss allegation.
The entire case in support of this part of the complaint
centers on a letter Kern wrote to the Union 3 days after
the strike started. He testified, and no one contradicted
him on this point, that after the strike began a Purolater
Company truck making delivery to the nursing home
had been prevented from entering the home by the
picket line. That truck was delivering payroll informa-
tion from another office of this multiestablished compa-
ny. Kern wrote to the Union thereafter that, because of
this difficulty of the delivery being made to the home,
there would be a delay in preparing paychecks, and that
employees who still had pay coming to them would re-
ceive it in the mail, and should not come to the nursing
home to get their checks. In this letter Kern referred to
the strikers as "former staff members"; he wrote "Any
former employees attempting to enter the facility person-
ally to secure their checks will be immediately requested
to leave the facility." Does this phrase, used by Kern in
referring to the strikers at that moment, amount to proof
that he then and there discharged them all in violation of
Section 8(a)(3) of the statute? I think not.
In a sense the strikers were former employees, because
they had voluntarily quit work, and if Kern told them
then to stay out of the place, he had every right to do
so. Since when do strikers have a right to enter the
struck place of business? Had Kern been better versed in
the intricacies of Board law, he would have known that
strikers of any kind, economic or unfair labor practice
strikers, have inchoate reinstatement rights if ever they
choose to abandon their strike. But to hold that by such
a passing phrase, perfectly understandable in the circum-
stances of the moment, is tantamount to actual discharge,
is a play on words.
When Green, the employee president of the local
union, heard of the discharge of the seven that morning,
she tried to get Kern on the telephone to discuss that
matter, but Kern refused to talk to her, so she went to
the Home to talk to him about it, but the guard on duty
refused to let her in. She was not reporting to work on
her regular shift, and certainly there is no claim she in-
tended to come in to work at all. How does the fact the
owner did not want to talk to her that day help prove a
violation of Section 8(a)(3)? Moreover, the Union's busi-
ness agent also appeared at the jobsite after the picket
line was up. He quoted the guard as saying "my duties
are to keep peace here. . . he didn't want to have any
problems with the females that were on picket duty in
front of the Villa?" Again, the guard was talking to the
leader of the strikers, telling him and the strikers to stay
out of the place. Do strikers have a right to enter the
premises for any reason at all, except it be to offer to
abandon the strike?
At the hearing the General Counsel came up with two
timecards, one for Audie Overton and one for Shirley
Burris, for May 24, 1981. They show that Overton
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clocked in at 6:40 a.m. and clocked out at 12:10 p.m.;
and that Burns clocked in at 6:45 a.m. and out at 11:20
a.m. On each card is written the word "terminated."
Neither Overton nor Burns appeared at the hearing. The
indications are that they joined the strike when they
clocked out on May 24, and remained strikers thereafter.
Whatever became of them during the 22-month interval
between the start of the strike and the day of the hearing
remains unknown. Asked, at the hearing, to explain the
word terminated on these two cards, Kern said he did
not "remember," he did not know, and added he "imag-
ined" it must have been because they improperly left
their duty stations during their shifts, "not finishing out
their work day."
I am unable to find a violation of the statute with re-
spect to these two employees. An unfair labor practice is
conduct by an employer vis-a-vis his employees, some
action on his part that the employees at least know
about, or hear about, if not actually done to them per-
sonally. There is no evidence, indeed no contention, that
Overton or Burns, or any union officials, ever knew
about what was written on those two cards until the time
the General Counsel examined the company records in
preparation for this hearing. I do not think it can be said,
in terms of statutory law, that an employee is in fact dis-
charged, unless the employee is told about it. Especially
is this logic applicable when the employees voluntarily
strike, and for such a long time choose to remain on
stnke. Unspoken evil intent in the mind of an employer
is not an unfair labor practice.
One direct discharge I do find. About 10 days after
the start of the strike, Green, who had not yet received a
paycheck, called in and was told to bring in the key to
the janitor's room, which she still had in her possession.
She came and talked to Macaluso, the administrator of
the Home. When she looked at the paycheck he gave
her, she noticed her 15 days of paid vacation had not
been included. When she told this to Macaluso, his only
response was, "You're fired." She left and was never re-
called.
It matters not that thereafter Green joined the picket
line. She had a right to take the top management repre-
sentative at the home at the moment at his word, that
she had really been terminated. I find that by discharging
Green the Respondent violated Section 8(a)(1) and (3) of
the Act.
In the course of his many conversations with the em-
ployees, in small and in large groups, the president of the
Respondent said many other things in support of his gen-
eral antiunion campaign which could be said to consti-
tute unfair labor practices under the statute. Indeed,
many of them are listed in the complaints in addition to
those found herein. But no useful purpose would be
served by belaboring those details here now. Two years
have already passed since the events, and the important
thing is to remedy the improper conduct without further
delay.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
The Respondent must be ordered to cease and desist
from continuing to commit the unfair labor practices
found herein. It must also be ordered to bargain with the
Union in good faith on request, to offer unconditional re-
instatement to the eight employees illegally discharged,
and to make them whole for any loss of earnings they
lost as a consequence, to revert to its former practice
with respect to rules of conduct and employee benefits
such as existed before the unlawful unilateral changes,
without particular attention to restoring those benefits
which the employees enjoyed and which were thus ille-
gally taken away from them. And, of course, the Re-
spondent must post the appropriate notices.
CONCLUSIONS OF LAW
1. By dealing directly with its employees represented
by the Union while bypassing their established bargain-
ing agent, and by unilaterally changing conditions of em-
ployment, the Respondent has engaged in and is engag-
ing in unfair labor practices in violation of Section
8(a)(5) of the Act.
2. By refusing to bargain with United Paper Workers
Independent Union and its Local Union No. 571, AFL-
CIO, in good faith, as the representative of all employees
in the appropriate bargaining unit the Respondent has
violated Section 8(a)(5) of the Act.
3. By discharging Laura Baisden, Sandra Baisden,
Glenda Foster, Charlotte Habeck, Joan Kuhlman, Ethel
Signs, Emily Walker, and Joyce Green, for engaging in
protected union activity, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct, and by the conduct of its
management representatives in telling employees they
should quit the Union, in coercively interrogating em-
ployees concerning their union activities, in telling em-
ployees the owner of the Company would never sign a
collective-bargaining agreement with the Union, in tell-
ing employees they would regret having engaged in
union activities, and in telling employees the Respondent
would not bargain with their chosen representatives be-
cause it had filed charges with the Labor Board, the Em-
ployer has violated and is violating Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]