Danmor Company d/b/a Madison South Convalescent Center

National Labor Relations Board - Board Decisions

Mar 11, 1982

260 N.L.R.B. 816 (N.L.R.B. 1982)

DE)C1ISI()NS O() NAl IONAI LABOR REI ATl IONS BOARD
Danmor Company d/b/a Madison South Convales-
cent Center and Retail Clerks Union Local
1439, affiliated with the United Food and Com-
mercial Workers International Union, AFL-
CIO. Cases 19-CA-11072, 19-CA-11128, and
19-CA-11173
March 11, 1982
DECISION AND ORDER
BY CHAIRMAN VAN 1)E WA I ER AND
MI.MBFRS FANNING AND HUNTFI R
On April 9, 1980, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Therefter, the General Counsel
and Respondent filed exceptions and supporting
briefs, and Respondent filed an answer to the Gen-
eral Counsel's exceptions. On August 26, 1980, the
Board issued an Order reopening the record and
remanding' the proceeding to the Regional Direc-
tor for further hearing. On June 16, 1981, Adminis-
trative Law Judge Jay R. Pollack issued the at-
tached Supplemental Decision in this case. Thereaf-
ter, Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision and Supplemental Decision in
light of the exceptions and briefs and has decided
to affirm the rulings, findings,2 and conclusions of
the Supplemental Decision, and to affirm the rul-
'On June 20, 1980. Administrative Law Judge Rashury died Acciird-
ingly, the case sas assigned to another aIdlinistratise law judge fir fur-
ther hearing
Respondent excepts to. among other things, the credibility rulings of
Administrative Lass Judge Pollack It is the Board's established poilic; to
attach great weight to an administrative lasw judge's credibility findings.
insofar as they are based on demeanor However ill conlltested cases, the
Act commits to the Bilard itself the power anid responlsibility oft deteriln-
ing the facts as revealed by a preponderance of evidence arld the tBoard is
not bound by the adminiistrative law judge's findings of facts, hut based
its findings on a de nowr review of the entire record Sltandard DI)rr Wall
Prmducts, Inc., 91 NLRB 544 (1950), enfd. 188 F2d 3h2 (3d Clr I'51)
Administrative Lauw Judge Pollack's credibility findings are based iii fac-
tors other rtian demeanor. and il consoniance ssith the Boai;rd's p lihc set
forth in Standurd Dry Uull Products, Inc. iupru, swe have irldependenltls
examined the record il this case We find there is ino basis on the reciord
in this proceeding for reversing his crcdibility determinlationrs or his find-
ings of fact based thereon
Administrative .aw Judge Pollack, im sec 1., par 3,3 of his Supple-
mental Decisuon, reciting an earlier finlding of Administrative I.a5;5 Juldge
Rasbury found that Johnson anid lIyoln sere discharged li order to hide
the unlawful discharges of Jarsis and Frechburger In fact, AdmniistratisV
Law Judge Rashury found that Jarvis and Frechirger wcre dischalrged ti
hide the unlawful discharges of Jolhnsonl arid l yion
Administrative Law Judge Pollack inadi ertentlN statcd that Carol
Palmer applied for work on J;anuary 4. 19X80 rather thaii the cir recti year
of 1979
260 NLRB No. 106
ings, findings,3 and conclusions of the Decision4
only to the extent not inconsistent with the Supple-
mental Decision.
ORDER"
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Danmor Company d/b/a Madison South Convales-
cent Center, Spokane, Washington, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their
union activities or interests.
(b) Labeling employees as "union agitators" in
response to prospective employers' reference
checks.
(c) Discharging or otherwise discriminating
against employees because of their union activities
or interests.
(d) Failing to replace licensed practical nurses,
increasing its use of contract labor services, and re-
fusing to consider job applicants for positions as li-
censed practical nurses, for the purpose of dissuad-
ing its employees from supporting the Union
and/or for the purpose of dissipating the bargain-
ing unit and undermining the Union's majority
status.
(e) Refusing to hire job applicants in order to
discourage employees from supporting the Union.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
I We note that no exceptions .,ere filed to Administrative Law Judge
Rashury's dismissal of the complailt illegatlio, that employees were un-
lalwfully denied union representation during a disciplinary session.
Ihe case 'sas reniallded on the issues of whethcr Respondent violated
Sec 8Xa)(3) and (5) of the Act by failing to fill vacant unit positions with
licensed practical nurse applicants i,, all attempt to dissipate the unit. con-
tracitig out unit *,ork to undermine the Union's majority; and by failing
and relusing to hire 13 allegedly qualified named applicants for unit posi-
tilons
[)ue to Admnilistratixe I ai, Judge Pollack's coFnclauiSir in his Supple
menial Dlecision that Respondent did intenltioally and unlasfully dissi
paite the uliti. we do not ;adpl Aii ldministrativse La Judge Rashury's dis-
rissal of this part of the complatint
'We set fotrlh the pertiltlent pro:isillns of the Order iof Administrative
I.ass Judge Rashurb's I)ecison, and the ()rder ,of Admilnistrative l.aw
Judge I'ollack's Supplemenwal I),cion as oine Order for purpoises of sim-
plificaltioni ail ease i f uiidcrtaidiing
" Adtlllnlilstriti e I.aA Judge RahurrN stated. it sec V. 5, of his D)ci-
siin. thail Rcspillndcet haid illatled tile Act "lHlB discharging and refus-
I.g 1R Imcillte JualC JI slJohnsiinr Mlarcy 1.,oii. Juds Jarvis. and Glenda
:re hurger. hcc alie if their 1111 11 ;tll iitles" Jiudi Jarvis and (ilenda.
F rebiurger scre rIot dt'ichat gcd 'I ,r their uniln aCt;Ities Rather, thee
,. crc disch;,rgedl , l order ti hide tle uanlas. ful discharges of Johlson ;,nd
I.o,, W'i e Cnote anid correct tlis error
816
MADISON SOUTH CONVALESCENT CENTER
(a) Offer to Judy Johnson, Marcy Lyon, Judy
Jarvis, and Glenda Freeburger immediate and full
reinstatment 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 previously enjoyed.
(b) Make Judy Johnson, Marcy Lyon, Judy
Jarvis, and Glenda Freeburger whole for any loss
of earnings each of them respectively may have
suffered by reason of Respondent's unlawful dis-
crimination against them in the manner set forth in
that section of the Decision entitled "The
Remedy."
(c) Make Frances L. Frederick, Beverly Ann
Riley, June K. Zimmerman, Russell K. Goo, Patty
Ann Colbert, Carol Palmer, Vicky Renee Mostul,
Jacquelyne Jean Tilton, Pamela Jowleen Row-
berry, Theodore Q. Blasingame, and Teresa J. Bla-
singame whole for any loss of pay they may have
suffered by reason of the discrimination against
them in the manner and to the extent set forth in
the section of the Supplemental Decision entitled
"The Remedy."
(d) Offer the above-named employees immediate
employment, subject to the conditions and limita-
tions set forth in the section of this Decision and
Supplemental Decision entitled "The Remedy."
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay and reinstatement rights as set
forth in "The Remedy" section of the Decision and
the Supplemental Decision.
(f) Post at its Spokane, Washington, facility
copies of the attached notice marked "Appendix."7
Copies of said notice, on forms provided by the
Regional Director for Region 19, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 19,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
7In Ihe c.Inll thal tIhl, ()rdCr i, etnforced hi A JULdgCrmLnt of ai L niled
States Courrl if Appeali . I he nlmocrds ii the rict realdig "Pl'i, cd h,
()rd r oft th Natli l.l I ahor RClatIU, I, loard ',hall r ead "i'o,ted I'lrr,ur
-
ani to I Juldgnirillt I Ihi Irlllted Strale Coiulrt t A[ipt.lc I lkrri ring ;al
Order of the Nail[l.. i] I hhor Rclatl onir Boalrd "
IT IS FURTHER ORDERED that the complaint be,
and hereby is, dismissed insofar as its alleges an un-
lawful refusal to hire John Eugene Storment and
Shirley Kathleen Tock.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL. NOT discharge or otherwise dis-
criminate against any employee for engaging
in activities on behalf of any union.
WE WILL NOT interrogate employees con-
cerning their and/or their fellow employees'
union activities.
WE WILL NOT interfere with employees'
Section 7 rights by referring to them as "union
agitators" in response to reference checks from
prospective employers.
WE WILL NOT fail to replace licensed practi-
cal nurses, increase our use of contract labor
services, or refuse to consider job applicants
for positions as licensed practical nurses, for
the purpose of dissuading our employees from
supporting Retail Clerks Union 1439 and/or
for the purpose of dissipating the bargaining
unit and undermining the Union's majority
status.
WE WILL NOT refuse to hire job applicants
in order to discourage employees from sup-
porting the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WtE wvi. offer Judy Johnson, Marcy Lyon,
Judy Jarvis, and Glenda Freeburger immediate
817
DECISIONS OF NATIONAL L ABOR RELATIONS BOARD
and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially
equivalent positions without prejudice to their
seniority and other rights and privileges previ-
ously enjoyed and WE WILL make them whole
for any loss of earnings, plus interest.
WE WIL L make Frances L. Frederick, Bev-
erly Ann Riley, June K. Zimmerman, Russell
K. Goo, Patty Ann Colbert, Carol Palmer,
Vicky Renee Mostul, Jacquelyne Jean Tilton,
Pamela Joleen Rowberry, Theodore Q. Blasin-
game, and Teresa J. Blasingame whole for any
loss of pay they may have suffered by reason
of the discrimination against them in the
manner and to the extent set forth in the
section of the Supplemental Decision entitled
"The Remedy."
WE WILL offer the above-named employees
immediate employment, subject to the condi-
tions and limitations set forth in the section of
this Decision and Supplemental Decision enti-
tled "The Remedy."
The Union is the exclusive collective-bargain-
ing representative of our employees in the fol-
lowing appropriate unit:
All full-time and part-time licensed practical
nurses and graduate practical nurses em-
ployed by the Danmor Company at the
Madison South Convalescent Center, but ex-
cluding all registered nurses, nursing assis-
tants, dietary and housekeeping employees,
physical therapy aides, laundry employees,
maintenance employees, office clerical em-
ployees, professional employees, administra-
tors, managers, confidential employees,
guards and supervisors as defined in the Act.
DANMOR COMPANY D/B/A MADISON
SOUTH CONVALESCENT CENTER
DECISION
STIA' ITIMENT OF THE. CASE
JAMES T. RASBURY, Administrative Law Judge: This
case was heard by me in Spokane, Washington, on Sep-
tember 18 through 21, 1979.' A charge was filed by
Retail Clerks Union L ocal 1439, affiliated with the
United Food and Commercial Workers International
Union, AFL-CIO (hereinafter called the Union), against
Danmor Company d/b/a Madison South Convalescent
Center (hereinafter called Respondent) in Case 19-CA--
11072. Additional charges were filed on February 16,
1979, by the Union against Respondent in Case 19-CA-
11128. Thereafter, an order consolidating cases, consoli-
' The relcxanlt .and significani evellts, %et forth hercinafter. occuitrred
during the period from April 1978 through Janua;ll ry 1'971 Inlessi, olher-
wise indicaed. All dalte hereinallier shall refer to this timnefranle
dated complaint and notice of hearing issued on March
15, 1979. New charges were filed by the Union on
March 5, 1979, against Respondent in Case 19-CA-
11173, following which a consolidated complaint and
notice of hearing which incorporated all of the above-
mentioned charges was issued on April 19, 1979. Addi-
tional amendments were granted at this hearing. 2 The
consolidated complaint alleges that Respondent violated
Section 8(a)(5) of the National Labor Relations Act, as
amended (hereinafter called the Act), by contracting out
work, by calculating a course of conduct designed to dis-
sipate the unit, and by refusing to hire qualified appli-
cants. The discharge of four employees is alleged to be
violative of Section 8(a)(3) of the Act and there are three
specific acts alleged to be violative of Section 8(a)(1) of
the Act-namely, interrogation, labeling of a former em-
ployee as a "union agitator," and denying employees
union representation at a disciplinary conference after a
request for such representation had been made.
Upon the entire record, including my observation of
the demeanor of the witnesses and after giving due con-
sideration to the briefs filed by the General Counsel and
the Respondent, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a State of Washington corporation en-
gaged in the business of operating convalescent centers
in Spokane, Washington, and other locations. During the
past 12 months it grossed in excess of $500,000 for per-
formance of its services and during the same period pur-
chased and caused to be transferred and delivered to its
facilities within the State of Washington, goods and ma-
terials valued in excess of $50,000 directly from sources
outside said State, or from suppliers within said State
which, in turn, obtained said goods and materials directly
from sources outside said State. Respondent admits, and
I herewith find. that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE I ABOR ORGANIZATION
Respondent admits, and I herewith find, the Union to
be, and at all times material herein to have been, a labor
organization within the meaning of Section 2(5) of the
Act.
111. ITHI A Il EGI l) UNFAIR l ABOR PRACTICEIS
A. Background
On May 8, 1978, the Union filed a representation peti-
tion seeking an election among Respondent's service and
maintenance employees which included nurses aides and
2 At I en r quest ilald s oth the agreemlent of all Ihe partiles the General
Ct riustl filed a late exhibit A hich incorporated all of the aforemenitoned
conlsolidated complaint. anenllded charge, and oral amendments to the
icomplainl and appears in the formal file as (i C t xh 8 Counsel for both
Respondent and the Charging Parts acknov ledged the exhibit as a true
anld accutrate compilaltioll of the aIfioretllentionled consolidated tolmpl;ints
allndl IllcindlTInc lts
818
MADISON SOUTH CONVALESCENT CENTER
orderlies. On June 27, 1978, an election was held, which
resulted in objections to the election filed by the Union.
A second election in said unit is blocked pending the
outcome of the instant proceeding. On May 15 the Union
filed a petition in Case 19-RC-8892, seeking to represent
Respondent's employees in the following described unit:
All full-time and part-time licensed practical nurses
and graduate practical nurses employed by Danmor
Company at the Madison South Convalescent
Center, but excluding all registered nurses, nursing
assistants, dietary and housekeeping employees,
physical therapy aides, laundry employees, mainte-
nance employees, office clerical employees, profes-
sional employees, administrators, managers, confi-
dential employees, guards and supervisors as de-
fined in the Act.
On August 16 the Regional Director for Region 19
certified the Union as the exclusive representative of Re-
spondent's employees in the heretofore described bar-
gaining unit, which I now find to be an appropriate unit
within the meaning of Section 9(b) of the Act. Collec-
tive-bargaining negotiations in an effort to reach a collec-
tive-bargaining contract covering the licensed practical
nurses' bargaining unit heretofore described (hereinafter
LPN unit) commenced on October 24 and have contin-
ued at least through the end of January 1979. Two of the
alleged discriminatory dischargees-Marcy Lyon and
Judy Johnson-served as employee representatives on
the Union's bargaining committee.
Testimony principally set forth by employees Donald
Nelson and Trudel Dean clearly established the follow-
ing named employees to have occupied key supervisory
or managerial positions with Respondent as follows:
T. D. Mortimer-President
T. D. Mortimer-Operations Manager 3
Grace Ellis-In-Service Instructor at Madison South
from October 1976 until July 1978, and from July
until February 1979 Director of Nursing Services
Donald Nelson-Administrator at Madison South
since October 1978
Elizabeth Dillingham-Administrator at Madison
North but formerly employed as Administrator at
Madison South immediately before Nelson as-
sumed the position
Betty Ellis-In-Service Director for Madison South
from May 1978 until mid-January 1979;
Betty Heinje-In-Service Director for Madison
South immediately following the resignation of
Betty Ellis in mid-January 1979.
There is no conflict in the evidence that the heretofore
named individuals in this paragraph had authority in the
interest of Respondent to hire, fire, reward, or discipline
other employees and I herewith find each of them to
have been at all times critical to their participation in the
events hereinafter to be discussed supervisors and agents
tHarry Roger, ;lasumled the positlon of pr.rtir lsDon, manager for Re-
spondent in Mal. 1979q hoeur.v r, rrudll Dealn has conllillnud ai, c(mptrol-
ler of Resportndcnt
of Respondent within the meaning of Section 2(11) and
(13) of the Act.
B. The Evidence
1. Regarding the 8(a)(l) allegations
Grace Ellis, the director of nursing services during
most of the critical period with which we are here con-
cerned, was called by the General Counsel and testified
extensively but was not cross-examined by Respondent's
counsel, nor was she called by Respondent in the presen-
tation of its case. Grace Ellis was charged with violating
Section 8(a)(l) of the Act by interrogating an employee
on or about September 8, 1978, concerning the employ-
ee's and other employees' union or protected concerted
activities. In the course of Glenda Freeburger's testimo-
ny, she stated that the following occurred "about the
middle of September," 1978.
I just went in [Grace Ellis' office] and asked her if I
could have a week off to go down to Florida and
see my son. And we discussed that for a little while.
And then she pointed to a newsletter she had, and
she told me she was very disappointed in me. And I
just asked her why. And she says, "Well, all this
union activity that's going on," she said, "I've got
two employees left and it looks like they're both
giving me the run around." And I didn't understand
what she meant, so I asked her and she said, "Well,
you know about the union meetings?" And I said,
"What union meetings?" And she said, "You're sup-
posed to have a union meeting over at Perkins."
And I told her, I said, "I didn't know nothing about
it, and if I did, I wouldn't squeal on my fellow em-
ployees."
When asked if there was anything else said at that time
Freeburger replied, "She just told me she was very dis-
appointed in me."
Respondent is further charged with violating Section
8(a)(1) of the Act in that Grace Ellis gave Glenda Free-
burger a "poor employment recommendation" because
she had engaged in union and/or protected concerted ac-
tivities. In this connection, Virginia Garrity, a personnel
clerk with St. Joseph's Care Center, testified that in con-
nection with an employment application filed by Glenda
Freeburger with St. Joseph's Care Center that she con-
tacted Grace Ellis in connection with a routine inquiry
of former employers. According to Garrity, "Mrs. Ellis
told me that she was a very good worker. She was very
kind to the patients and the patients liked her very much.
She said that Glenda is very loud and that they had-she
had a big mouth and they had counseled her that she
wasn't out in the street, to be more quiet. And they said
that she was a union agitator." When asked by the Ad-
ministrative Law Judge to reflect on her answer and be
certain that "union agitator" were the words used by
Grace Ellis, the witness responded, "Yes, she did."
When Grace Ellis was questioned by the General Coun-
sel as to what she (Grace Ellis) might have stated to any
prospective employer inquiring concerning Glenda Free-
burger, she was extremely vague as to any specific inci-
819
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent or inquiry. When Ellis was asked specifically if she
had told anybody that she (Freeburger) was a union agi-
tator, Ellis replied, "The only thing I could have an-
swered is she was prounion and that would have been
all, but not that she was an agitator because she was
not." Garrity further testified that Ellis had asked her,
"if this could be kept confidential, and I promised her I
would do this."
Respondent, acting by its agent Don Nelson, is further
alleged to have violated Section 8(a)(l) of the Act by
denying employees Judy Johnson and Marcy Lyon union
representation at a disciplinary meeting, even though
union representation was requested by both Lyon and
Johnson. The facts of this incident are not in serious dis-
pute.
Marcy Lyon testified that, on January 4 at approxi-
mately 2:30 p.m., she was told by Unit Coordinator Beth
Gaines that she wished to talk to her. They went into
the charge nurse's office at which time Beth Gaines
pulled out a counseling form. When Lyon saw the coun-
seling form she told Gaines that she would like to call
her union representative, and did so. At that time
Donald Nelson came into the charge nurse's office and
inquired as to what the trouble was. Lyon responded,
"Beth has given me a counseling form, and I called my
union representative." At that time Nelson advised Lyon
that she was not entitled to union representation. At that
moment Judy Johnson appeared in the charge nurse's
office and asked if she was to be included in on this.
Nelson invited her in and Lyon informed Johnson of the
phone call to Katz, the union representative. At that
moment Lyon was paged on the intercom system, but
Nelson asked her to stay there and he would take care of
it.4 When Nelson returned to the charge nurse's office,
Judy Johnson asked him if the counseling form was
going to result in disciplinary action. According to her
testimony, Nelson indicated that it was and she asked for
union representation, which Nelson denied, stating em-
ployees were not entitled to union representation in the
absence of a union contract. Nelson, Gaines, and John-
son then proceeded to Nelson's office where Johnson
was given her counseling form. The forms for both Lyon
and Johnson had been prepared prior to the meeting and
no changes were made in their content. She was given
an opportunity to write her comments on it. She signed
it, Gaines signed it, and then Johnson left the office.
Katz testified that on January 10 at a collective-bar-
gaining session the disciplinary issue was discussed, at
which time Nelson acknowledged that he had informed
the girls that it was a disciplinary session. Moreover,
Grace Ellis testified that the written counseling forms
are used as a basis for progressively disciplining employ-
ees and that employees can and have been discharged for
receiving too many counseling forms. Nelson did not dis-
pute the facts as generally related to by Lyon and John-
' Kalz tesilfied that he caused L yorn to hbe paged over the intercom
upon his arri al at the cotinalescent center in response to . o, n's call
Nels,on ippeared in response to the L',on page and, when Katzl inforlled
hint of the purpose of hi., isit, Nelsonl asked himt to aill Grahicki. Re-
sps.ndenlll' c ilsel (irahlcki intformcd Katz that the womienl wV re riot erl-
titled to nliloll reptresentalion syince it ,a', a "CoIIuilltg" rather than a
disciplinary interxte . alid relused to permri particip.alon h, Kiat Kale
then left the facility
son concerning this incident and specifically did not
deny the testimony of either Katz or Johnson that he
(Nelson) had referred to this "counseling session" as a
"disciplinary session."
2. The incident leading to the discharges of Judy
Jarvis and Glenda Freeburger
Judy Jarvis and Glenda Freeburger were both nurses
aides working on the first floor on January 24. Free-
burger was employed on April 4 and Jarvis in October.
The testimony of the three witnesses who testified re-
garding what was said 'Jarvis, Freeburger, and
Divine-differed slightly, but is of no material signifi-
cance because Respondent presented no accurate version
of what was said and based its reasons for the discharges
on the employees' loud tone which it claimed was dis-
turbing to the patients and on the anger or inability of
the employees involved to get along. According to
Jarvis, who had to leave early that day because of an ap-
pointment, she passed Freeburger in the hall while both
were engaged in passing out the trays during the lun-
cheon hour and called out Freeburger. Freeburger re-
plied, "Just a minute." Jarvis then asked her if she would
pick up her l's and O's (I's and O's stand for input and
output which had to do with the charting procedure of
patients). Freeburger responded, "What did you say?"
And Jarvis, who was passing on down the hall deliver-
ing her tray replied, "I'll catch you when I get back."
According to Jarvis, she was probably as much as 30
feet away from Freeburger during the exchange. Free-
burger's account of the exchange was very similar to
that of Jarvis; however, Freeburger testified that she had
replied, "[A]ll right, I will, if I've got time at the end of
the day." Freeburger's reply was apparently not heard
by Jarvis or Divine, because Divine approached Jarvis
immediately thereafter and said that she would pick up
the l's and O's. Neither Jarvis nor Freeburger regarded
the exchange as being unusual or excessively loud, and
they were good friends at the time and have remained
good friends since the incident. Sue Divine, a registered
nurse and a team leader, generally confirmed the testimo-
ny of Jarvis and Freeburger and further testified that the
girls were speaking in a normal speaking voice. During
the exchange, Divine was seated at the nurses station
performing charting.
When questioned as to what happened after the ex-
change between Jarvis and Johnson, Divine replied,
"Trudel Dean was standing at the end of the counter at
the nurses station, and she turned to me and asked if I
was going to do anything about it, and I didn't know
what she was referring to, and she made a gesture that
directed my attention to Judy and Glenda, and I got up
and went to Judy and I said I would take her 'I's' and
'O's' for her and she said, no, she'd make time and make
sure she had it done before she left." Divine further testi-
fied that Trudel Dean did not inquire as to the girls'
names nor did she appear visibly upset. Divine testified
that she was never asked by anyone in management what
she may have heard or seen in connection with the ex-
change.
820
MAD)ISON S()'L1t C ()N\ AI [ SC'FNF C-EN IE R
Trudel Dean was unable to recall any of the conversa-
tion between the two nursing assistants involved, but tes-
tified that, after speaking to Charge Nurse Sue Dixirne.
she "literally ran upstairs and went into the administra-
tor's office. Mr. Grabicki was there and Mr. Nelson was
there and I told them that there was another shouting
match going on downstairs and that something needed to
be done right away about that." According to Dean, she
returned to the first floor and there observed Grace Ellis
"going down the hall with one of the people involed."
Grace Ellis' testimony was extremely vague regarding
the incident. She could not remember who had first in-
formed her of the incident; the nature of the fight or ar-
gument; how she had learned that it was Judy Jarvis and
Glenda Freeburger who were involved; and the extent
of her investigation or just what she may or may not
have said to either of the individuals involved. She
thought that she had made the decision that they should
be discharged, but she acknowledged that she had not
reviewed their personnel files before the discharge.
Nelson's testimony was equally unspecific but again he
thought, "between my attorney and myself and Trudel
Dean we discussed the implications of taking any action
on all individuals concerned" including "Sue Divine, and
the two nursing assistants, Glenda Freeburger and Judy
Jarvis." This was in contrast to Grace Ellis' testimony
that she made the decision to discharge the two nursing
assistants.
3. The discharges of Judy Johnson and Marcy Lyon
Judy Johnson was an LPN who had been hired at
Madison South Convalescent Center in January 1976.
and Marcy Lyon, an LPN, hired on May 11, 1978. John-
son was active in the Union's organizational campaign
and both Johnson and Lyon were members of the nego-
tiating committee after the Union was successful in xwin-
ning the election in the LPN unit. The incident giving
rise to their discharge on January 24 occurred on the
day before. Johnson, who had just returned to work
after an illness which had lasted several weeks, was the
only LPN assigned to the first floor and had been caring
for a patient that day who was in critical condition and
not expected to live. Unknown to Johnson, Lyon had
been assigned to "catch up" on all the charting and had
been so engaged for about 2 weeks. As Johnson entered
the charge nurse's office where Lyon and Divine were
seated, Lyon asked Johnson to remember and chart on
Tabert, the critically ill patient. Johnson replied, "I
always do my charting," and with that she turned and
left the room. As Johnson passed outside the door, she
overheard Lyon tell Sue Divine that she was "God
damn sick and tired of doing all the charting." Lyon, ap-
parently realizing that her remark to Divine had been
overheard, sought Johnson out in the medication room
and told her, "Judy, look, I'm tired. I've been doing all
the charting. We were told in a meeting that we would
be fired if we did not keep it up." Johnson explained that
she had been helping Dr. Van Veen and that one of her
patients was dying. Lyon tried to explain that she had
not intended to imply that Johnson was not working.
When Johnson offered to do some of the charting. Lyon
declined stating that she had been instructed to do it her-
self. At the end of the exchange. in apparent response to
Johnson's expressed desire just to be left alone. Lyon ut-
tered an obscene expression and walked out of the room.
At that point Betty Heinje, the in-service director, ap-
proached the two women and, in an apparent attempt to
relieve the tensions told them, "I..ook girls. I know
you're up tight from all these people being here in the
facility. We're all up tight getting ready for this inspec-
tion. Marcy. you've worked II days in a row, you're
tired Judy, I know you don't feel well. Let's just forget
it. Everything will be all right." Lyon testified that Betty
Heinje, Betty Owens. a ward secretary, and Liz Walker,
a vward secretary, were the only other employees within
hearing distance and that the nearest patient was approxi-
mately 50 feet away.
Divine testified that she had been working with Marcy
L yon at the nurses station during the initial exchange,
but that she had not been able to hear the conversation
that occurred in the medication room, although she de-
scribed it as being only a short distance away. "Well, the
nurse's station is at the intersection of the two halls, pa-
tient care and patient rooms, and the conference is kind
of around the corner down one end of the hall. It's just
around the corner. It's a separate little room." On further
questioning she explained that the medication room was
probably about 25 feet away from the nurses station.
Testimony from other witnesses indicated that there was
no door to the medication room.
The following morning Lyon and Johnson apologized
to each other for their behavior on the previous day. At
approximately 2:30 on January 24, Lyon was called into
Grace Ellis' office and was informed by Donald Nelson
that she was being discharged for fighting. Lyon was not
given an opportunity to explain what had happened the
day before and, despite her protestations, Nelson told her
that she had been previously warned and counseled sev-
eral times before and that "it'll all come out at the
hearing." Johnson had left work early in order to assist
employee Liz Walker with an emergency concerning
Walker's daughter and she was advised by Nelson tele-
phonically that she too had been fired. Johnson was nei-
ther asked to explain nor given an opportunity to explain
what had occurred.
Trudel Dean testified that she was first informed of
the incident in a discussion with Barbara Barton, a super-
visor from the Respondent's Yakima facility who was
temporarily at Madison South, who informed her that,
"Marcy Lyon and Judy Johnson had a very loud argu-
ment downstairs," that a verbal confrontation had taken
place in back of the nurse's station, that Lyon had com-
plained about Johnson's job performance, that Lyon was
upset with Johnson, and that she (Barton) had advised
the employees to work it out. Dean testified that she re-
layed this information to Nelson and recommended that
the women involved be terminated. According to Dean,
Nelson replied that he would consult with Grace Ellis,
that the attorney would have to be consulted, and that
there had been previous incidents of arguments between
the two individuals. Dean testified that later that after-
noon she had called Respondent's attorney, Grabicki,
and that Grabicki, Nelson, and possibly Grace Ellis had
DECISIONS OF NAIIONAI. LABOR REIL.AlIONS BO()ARI)
discussed the situation and "the decision was made that
we had people who did not conduct themselves accord-
ing to our policies. They were infringing on patient's
rights. They were arguing among each other, and that
they be discharged." However, despite repeated requests
by counsel, Dean was unable to relate any specific state-
ments that were made by any of the participants and
there is no indication that anyone else was consulted
other than possibly Barbara Barton.
Donald Nelson's account of the incident was far from
precise and was lacking in detail and specificity even
after having been cautioned by the court that he was not
being very specific and that this was his opportunity to
articulate his version of the incident. He stated that it
was probably Grace Ellis and Betty Heinje who had re-
ported to him, "We had an altercation down there. A
physician has told us about it." Nelson related that he
was told that "an altercation had happened at the nurs-
ing station on first floor . . . and they were talking to
each other quite loudly in fact, almost to the point of
shouting." When pressed as to who had reported this in-
formation, Nelson was unable to answer specifically and
replied, "Well, the people reported to me. Yes, that's
what I was told." Nelson recalled that there was a meet-
ing on January 24 with Grabicki and Trudel Dean
wherein it was decided to investigate the situation. When
questioned as to what investigation had taken place
before the decision to discharge was reached, Nelson re-
plied that a physician (Dr. Van Veen) was interviewed
as well as all personnel in the area. Later, Nelson recant-
ed and admitted that Dr. Van Veen may have been inter-
viewed for the first time after the women were dis-
charged. (A file memorandum in Lyon's personnel file
indicates that there was a telephone conversation be-
tween Dillingham and Dr. Van Veen on January 24 at 5
p.m.-which would have been after the women involved
were notified of their discharge-indicating that Van
Veen had "heard some nurses arguing in first floor .
on January 23, 1979. He heard something about .... "
Nelson first testified that he had interviewed Barbara
Barton and Barbara Townsend on January 24 in the
presence of Grabicki, but later corrected his testimony to
state that he had obtained written reports from Town-
send and Barton on the afternoon of January 23. (The
written statements of Townsend and Barton were never
produced at the hearing and neither Townsend nor
Barton, although still in the employment of Respondent
at facilities other than the Madison South, was called to
testify.) While Dean was of the opinion that the decision
to terminate Johnson and Lyon had been made on Janu-
ary 23, Nelson was of the opinion that the decision had
not been made until on the afternoon of January 24.
Grace Ellis testified that her first knowledge of the
January 23 incident came in a meeting attended by Gra-
bicki, Nelson, and Dean shortly after the luncheon hour
on January 24. At that time she learned Johnson and
Lyon had been "fighting in the unit" and that they had
previously been counseled on a similar situation and it
was decided that they should be discharged. Ellis testi-
fied that after the decision she and Nelson walked out of
the main office into her office where they paged Marcy
Lyon and informed her that she was being terminated.
Ellis stated that Nelson did the talking and that she did
not participate in the conversation. There is no indication
that either Marcy Lyon or Judy Johnson was given an
opportunity to explain what had actually occurred.
Respondent also contends that both Johnson and Lyon
had previously been counseled and the January 23 inci-
dent was merely the culmination of their unsatisfactory
performance. The January 4 counseling incident which
both Johnson and Lyon received has heretofore been re-
lated in connection with the failure of Respondent to
permit the employees to have union representation. This
counseling form stemmed from criticism by Beth Gaines,
a charge nurse under whom Lyon and Johnson worked
as LPNs, and appears to have been a response by Gaines
because both Lyon and Johnson had been critical of
Gaines and her inability to handle her job, and this criti-
cism had been reported on several occasions to repre-
sentatives of management. According to the testimony of
Lyon,-which was not disputed by Betty Ellis, one of
the management representatives to whom the LPN's had
complained-Betty Ellis, "asked Judy and myself had
anything improved on the floor. And we had to honestly
tell her, 'no, it had not.' And she said, 'Well, I have been
working with Beth, and to be honest with you, I must
agree with you, that she's not able to handle it."' Al-
though Betty Ellis testified on behalf of Respondent, she
did not deny having made such a remark to Johnson and
Lyon regarding Beth Gaines.
There was also an incident in June 1978 which result-
ed in a verbal counseling by Administrator Elizabeth
Dillingham for employees Lyon, Johnson, and Connie
Gillespie (see Resp. Exhs. 7 and 10, and the brief type-
written counseling form dated June 29, contained there-
in). This incident apparently stemmed from a conversa-
tion in the charge nurse's office on the first floor during
which Marcy Lyon was complaining to Judy Johnson
because she felt the Union had not worked hard enough
to win the election in the service and maintenance unit.
(The election in that unit had just been lost a few days
before.) The testimony supports the fact that Lyon
talked rather loud during the discussion, but it was rela-
tively brief when Johnson walked away and refused to
be further involved. So far as can be determined, Connie
Gillespie did not participate. However, all three employ-
ees were reported to Dillingham by Betty Ellis and each
received the verbal counseling as noted in their person-
nel files. There is nothing in the counseling form to indi-
cate that the employees were informed that a repetition
of the incident would result in discharge.'
5. Respondent's failure to hire LPNs
The General Counsel contends that Respondent delib-
erately failed to hire and/or replace LPNs following the
certification of the licensed practical nurses' unit. This
5There was aln idditinal incident concerning Judy Johnson and a
nurses aide named Rita Pasquini, aboult vhich there w.as con'siderable tes-
timony However, because this incident ,was not listed or given as a
reason by Respondent foir the discharge of Jlhnsoin. I have not deemed it
sufficientIl relcant to the issues to he cil forlh in great detail However.
if the testinlonl of Johnsoli and L afrr. Baauso is to be accepted at facve
Nalue. then it would appear that Respotndenll was seeking to "franme"
some foirrt if justifiahle basis to get rid of Johnson
822
MAIDIS()N S()lI'T CON\VAI F-SC'NI CE:NT:ER
she contends was done for reasons proscribed by the Act
and with the intention of deliberately dissipating the unit
in an effort to rid itself of the Union. To support this al-
legation she presented undeniable evidence that the
number of I PNs declined from eight in May 1978 to
two--each of vwhom was on a leave of absence--in Janu-
ary 1979. However by the summer of 19'9 there were
four LPNs on the payroll. The General Counsel also
presented the application forms for 13 applicants who ap-
plied for positions with Respondent during the period
from September 26 through February 9, 1979. (See G.C.
Exhs. 3a through 3m.)6
Additionally, the General Counsel points to the testi-
mony of Larry Buchanan. a former nurses aide employed
by Respondent, who testified to three conversations he
engaged in with Grace Ellis. According to Buchanan,
the first conversation occurred just prior to the election
in the LPN unit at which time Buchanan asked Ellis if
she were going to replace the two LPNs who had re-
cently resigned. According to Buchanan, Ellis responded
by saying that sort of thing was out of her hands, that it
was not her responsibility, and that she had nothing to
say about it. According to Buchanan, the next conversa-
tion with Ellis occurred toward the end of September.
This conversation concerned an LPN named Ruth Jones
who had just been discharged by Respondent for sleep-
ing on the job. According to Buchanan, the telephone
conversation occurred, "I suppose now you are going to
find an LPN to replace her with?" Grace said, "Prob-
ably not. I don't know, I don't think so." I said, "Well
now, we've got a very interesting situation don't we?
We're down to four, we're down to four LPN's where
there used to be eight. And it's really getting down to
the wire, because Denise is pregnant, you know she will
be leaving, and there is every probability that Connie
will be leaving. That will leave two. That isn't much of a
unit." She agreed that it was not much of a unit. The
next conversation between Buchanan and Ellis occurred
when he called and asked her if he could return to work
and she replied, "Absolutely not." When Buchanan
stated, "Why not? You have openings and I'm a good
aide, you know that." Ellis then replied, "That's not the
question." 7 According to Buchanan, when he filled out
the application and presented it to Ellis, she stated, "You
know I can't hire you. I've gotten instructions. I cannot
hire you." When he inquired as to who had given the
instructions Ellis replied, "I'll give you three guesses."
When Buchanan guessed Mortimer, Ellis replied,
"You've got it." With that they both laughed and Bu-
chanan told her, "I heard about Judy and Marcy, and as
6 The General Counsel was prepared to present the testimon> of each
of these applicants concerning the fact that the) had applied for positions
as licensed practical nurses with Respondent. However, after receiving
the testimony of four of these sitnesses-i e., Vickie Mostul, Beverly
Riley, Francis Frederick, and Theodore Blasingame--further testimony
from other applicants was denied on the basis that it swould be cumulative
and that nothing further would be gained inasmuch as Ihe application of
all 13 prospectime employees had been received in evidence The General
Counsel made arn offer of proof as to what each of the remaining appli-
cants wsould have testified to if permitted to testify, which appears in the
record beginning on I 24, p 619, through I 23, p 622
7 Buchanan had resigned on October 31 in order to go into business for
himself but had fiound it more diffiicut than expected and vwanted to
return to v ork
far as I'm concerned you're in for the time of your
lives." Buchanan testified that Ellis replied, "I know it. I
think it's a horrible mistake, but I didn't have anything to
do with it. That's all Mr. Nelson, and I really don't have
anything to say about anything around here anymore."
Analysis and Conclusions
I. The 8(a)(1) allegations
As has been noted earlier herein, an election had been
held in the service and maintenance unit which would
have included Glenda Freeburger's classification. In Sep-
tember when the alleged conversation between Free-
burger and Grace Ellis occurred, the parties were await-
ing the outcome of the unfair labor practice in order to
resolve the question of when to hold a new election. The
testimony of Glenda Freeburger regarding Grace Ellis'
efforts to seek her out regarding union activity among
the employees stands unrefuted in the record. As related
by Freeburger, there were no direct inquiries by Ellis,
however, the subtleness was not missed by Freeburger
otherwise she would never have replied, "I didn't know
nothing about it, and if I did, I wouldn't squeal on my
fellow employees." Such subtleness betrays Respondent's
efforts to obtain information regarding the employees'
union activities and as such interfered with, restrained,
and tended to coerce the employees in the exercise of
their Section 7 rights. Respondent's argument that this
allegation is barred by Section 10(b) of the Act is errone-
ous. The interrogation occurred in mid-September. The
charge relating specifically to the wrongful discharge of
Freeburger and Jarvis was filed on February 16, 1979
(well within the 6 months time limitation). The com-
plaint need not be restricted to the precise allegations of
the charge. So long as there is a timely charge the com-
plaint may allege any matter closely related to or grow-
ing out of the charged conduct, or related to the contro-
versy which produced the charge, or which relates back
to or defines the charge more precisely.8 I shall find that
Respondent-through the conduct of its supervisor,
Grace Ellis-wrongfully sought information from
Glenda Freeburger in violation of Section 8(a)(1) of the
Act.
Virginia Garrity testified that Grace Ellis had labeled
Glenda Freeburger as a "union agitator" when she (Gar-
rity) called Madison South to obtain a reference check
on Freeburger. Such labeling of employees would have a
natural tendency to impede and interfere with an appli-
cant's employment opportunities. Such interference
amounts to blacklisting and has been held by the Board
to be a violation of Section 8(a)(1) of the Act. I shall
find Respondent to have interfered with, coerced, and
restrained Freeburger in the exercise of her Section 7
rights when Grace Ellis told Virginia Garrity of St.
Joseph Care Center that Freeburger was a union agita-
tor. See Steere Broadcasting Corporation, 158 NLRB 487,
496 (1966).
' I .R. I oni a .filing ( irnpan3., 36(0 I S 301 (1959: .Natio al l.ic-
orice (ompanri .N RB. 309 U S 350 (1040)1 and N LR.R l Kohier
Co(tpauti' 22( ) 2d 1 3(7th Cir 10553
823
I)[lCISI()NS ()1 NA I()NAI. L Al()R RE .AI()IONS B()ARI)
The evidence is clear and unchallenged that, on Janu-
ary 4 when Gaines and Nelson sought to present Judy
Johnson and Marcy Lyon with derogatory counseling
forms, they were apprised that it was a disciplinary ses-
sion. However, the counseling forms had been prepared
in advance and the employees were rather routinely
handed the forms and given an opportunity to express
their version of the incident or note their c omments on
the forms. There is no evidence to indicate that this was
an investigatory session.
In two rather recent decisions.9 the Board appears to
have distinguished between an investigatory interview
that may lead to disciplinary action and an interview
where the disciplinary action to be taken is a Jait accom-
pli and the employer is merely informing the employee
of his or her "shortcomings" and the action taken by the
employer. As the Board said in the Texaco case, supra:
It is clear on the record before us that. at a time
prior to the meetings here in question, Respondent
had decided to take specific disciplinary action
against the five employees in this case. Moreover, it
is clear from a reading of each of the letters men-
tioned above that Respondent intended to and did
treat both the written notice of disciplinary action
and the meetings during which they were tendered
as intrical parts of the disciplinary process. Like-
wise, the uncontroverted evidence herein demon-
strates that no defense offered by the employees
who were summoned to the aforesaid meetings, or
by any representative speaking in their behalf,
would have deterred Respondent from its disciplin-
ary decisions.
There is no evidence that Respondent needed or
desired to obtain admissions of misconduct by the
employees disciplined, nor can such a purpose be
inferred from the evidence. As previously men-
tioned, the Administrative Law Judge concluded
that all employees were afforded an opportunity to
explain or defend themselves. This offer, however,
was not designed to obtain information to support
Respondent's discipline. Rather, it constituted an es-
sential part of the communication process during
which an effort was made by Respondent to deter-
mine whether the employees understood the reasons
for disciplinary action, their concurrence therewith
aside. Whether called "counseling" as Respondent
urges, or by some other term, such conduct does
not demonstrate, nor are we persuaded, that Re-
spondent went beyond the parameters established in
our Baton Rouge decision so as to warrant the pro-
tection accorded employees by Weingarten.
Accordingly, we hold that the employees in this
case were not entitled to representation at the disci-
plinary meetings here in question, and, therefore,
that Respondent did not violate the Act by compel-
ling their presence at those meetings without benefit
of the representation they requested.
Baron Rouge atulr Works Company. 246 NLRH 995 (1979); and
Texaco. Inc. 246 NI RB 1021, 10)22 (1979)
The facts of the instant case would appear to be identi-
cal to those with which the Board was concerned in the
l'exaco case, supra, and I shall accordingly dismiss this
aspect of the complaint.
2. The 8(a)(3) allegations
The Respondent defends its actions of discharging
Judy Johnson and Marcy Lyon on the employees' viola-
tion of one of the rules listed as a dischargeable offense
in the personnel policies booklet. (Resp. Exh. 5 at pp. 28
and 29.) The specific rule involved was No. 18-"Fight-
ing or Other Evidence of Inability to Cooperate with
Fellow Employees." (See termination forms contained in
Resp. Exh. 7-personnel file of Marcy Lyon-and Resp.
Exh. 10-personnel file of Judy Johnson.) Yet much of
the vague, indefinite, unspecific testimony of Respond-
ent's witnesses was concerned with the "patients' rights"
having been violated. '
The testimony of Respondent's witnesses regarding the
investigation of the incident between Johnson and Lyon
was confusing and not convincing.
Dean first testified that she learned from Barbara
Barton that "Marcy Lyon and Judy Johnson had a very
loud argument downstairs." According to Dean she re-
lated this to Nelson and commented that it was "an in-
fringement of patients' rights," but failed to explain
which patients, if any, had heard the argument or how
she had come by such knowledge when there was no in-
dication that Barton had made such a report to her.
Dean contended that the decision to terminate Johnson
and Lyon was made on January 23 at a meeting among
Dean, Nelson, and "possibly" Grace Ellis. Nevertheless,
according to Dean, Grabicki, Respondent's attorney,
spent considerable time in the facility on January 24
"talking to employees who overheard the confrontation."
However, Liz Walker, the ward secretary, and Betty
Heinje, the in-service director, each testified that they
did not speak to anyone from management concerning
the incident until after Lyon and Johnson had been dis-
charged.
Nelson's testimony was equally lacking in specificity
and clarity. Nelson testified that it was probably Grace
Ellis or Betty Heinje who informed him that a physician
(Dr. Van Veen) had told them of an altercation down
there. Nelson recalled a meeting on January 24 with
Grabicki in which it was decided "to investigate the situ-
ation." (This in contrast to Dean's testimony that the de-
cision to terminate was made on January 23.) A memo in
Lyon's personnel file (Resp. Exh. 7) confirms a tele-
phone conversation between Dillingham and Dr. Van
Veen on January 24 at 5 p.m. (which was after the two
LPNs had been notified of their discharge). "
"' While I can see some relationship between the two rules, the absence
of some comment regarding "patients' rights" on the termination forms
would seem to indicate that this was an afterthought and not part of the
original reasoning by Respondent for the discharges
1" The document admitted into evidence was difficult to read, but
merely indicates that Dr \'Van Veen had "heard some nurses arguing in
first floor medication room on 1/2 /79 He heard something about
824
MADISON SOUTH CONVALESCENT CENTER
Grace Ellis claimed that her first knowledge of the in-
cident came in a meeting attended by Grabicki, Nelson,
and Dean after the noon hour on January 24. Ellis could
not recall whether or not she had been asked what her
feelings or recommendations were regarding the dis-
charges. Although Ellis denied that she conducted any
investigation regarding the incident. Sue Divine testified
that she was asked by Ellis if she (Divine) knew any-
thing about the conflict between Johnson and Lyon
"concerning Mr. Tabert's chart." Divine then reported
that she had heard Marcy tell Judy to make sure she had
charted on Tabert, and Judy said she would and then
left. Divine said later she had heard Barbara (Barton)
suggest that "Marcy go put her arm around Judy and
say that everything's o.k., just kind of try and make it
up."
The union activities of both Johnson and Lyon were
well known to Respondent. Both employees had re-
ceived better than average evaluation reports prior to the
advent of the Union. Johnson had been selected as em-
ployee of the month and employee of the year. While
both employees had been counseled regarding a June in-
cident, this could very well have been motivated more
because of the subject matter of their discussion (the
Union) rather than any commotion or disturbance it may
have caused. 12 Moreover, in contrast to the reason given
for the discharge-inability to cooperate with fellow em-
ployees-the testimony is quite clear that Johnson and
Lyon were good friends and were quite capable of coop-
erating with one another.
The totally inadequate investigation of the January 23
incident prior to the decision to discharge Johnson and
Lyon, the inconsistent reasons advanced for the dis-
charges, the total failure to interview either Johnson or
Lyon regarding the incident, the minimal disturbance
created as testified to by Sue Divine, and the well-known
active union participation by Johnson and Lyon have
convinced me that the reasons advanced for the dis-
charges of Johnson and Lyon were pretextual and the
real reason was because of their union activity. I find
that Johnson and Lyon were discharged in violation of
Section 8(a)(3) and (1) of the Act.
The Freeburger-Jarvis discharges were an obvious at-
tempt to give added emphasis to rule 18 with the hope
or desire of masking the Johnson-Lyon discharges. Their
conversation-which appeared to be such a startling
event to Dean-went totally unnoticed by their immedi-
ate supervisor who was working at the charge nurse's
office directly in front of the place where the incident
occurred. Divine did not regard the conversation as un-
usual or other than normal. However, because it oc-
curred at a time when the Johnson-Lyon incident was
being "investigated" or "considered" it provided a con-
venient mask to hide the illegal discharges of the union
activists-Johnson and Lyon. I believe this incident was
seized upon by Respondent to give an "aura of legality"
to the illegal discharges of Johnson and Lyon. As best
reflected by the evidence, the incident was very minor
and insignificant There is no evidence that there was an
" Connie (illespie recels ed the idenlilal counseling and there is aih,.
lutely no eidence thal ihe partlicpail ed in u0 sa Iw the toIierslltll i
other Ihan his inlg heen il tht Sanie lweoll " ilh Jihlllnii. aldl 1 s1io
inability of the two employees involved to cooperate
with one another. The contrary is true-both employees
testified they were good friends and frequently visited
each other outside working hours. I shall find the dis-
charges of Freeburger and Jarvis to have been in viola-
tion of Section 8(a)(3) and (1) of the Act. 13
3. The 8(a)(5) allegations
The essence of the General Counsel's allegations with
regard to the 8(a)(5) violation is that Respondent deliber-
ately, and with the intent of dissipating the bargaining
unit, failed and refused to hire qualified LPNs since on
or about September 8.
The proof unmistakably shows a gradual diminution of
the employees in the LPN unit. The record is also clear
that between September 26, 1978, and February 9, 1979,
Respondent received applications from 13 individuals
who were licensed practical nurses. However, the con-
clusion the General Counsel wishes to be drawn from
these two established facts is highly speculative in view
of Respondent's credited evidence.
Both Donald Nelson and Grace Ellis testified they
were under instructions from Trudel Dean to hire LPNs.
Nelson was under instructions to reduce the contract
labor expense. '4 Numerous advertisements seeking to hire
LPNs were placed in local newspapers by Respondent.
Contacts with "sister" facilities were made in an effort to
have any unwanted or unneeded LPNs referred to Madi-
son South. Respondent did hire a few registered nurses
during the critical period and the evidence is clear and
convincing that the duties of the RNs and the LPNs
were nearly identical and interchangeable. ' The evi-
dence is also quite clear and convincing that RNs were
much more available and the number of applications
from RNs were running nearly four to one over the
number of LPN applications.
The use of contract labor was not a new procedure for
Respondent. While it is true that the use of contract
labor was heavier during this particular period of time,
in my opinion it stemmed from Respondent's primary
concern of getting the facility in a position to pass in-
spection by the State of Washington Department of
Social and Health Services. ' It was this intense preoccu-
pation with getting the facility prepared for its next in-
spection that caused several supervisors from sister facili-
ties to be working at Madison South." In my opinion it
i While I heliese the real reason for Ihe discharges f I reebhurger and
Jar Is toI ha e been an effirt Ito mask the illegal ds charge, If Johntsonl
and 1.)on, as prel iusl indicated herein. Grace Illhs , as at Ieast 'upl-
to Iou if I ildia F reehurger's union actsi it
5
I_PN colnlract labor cost Respondent 52 per hour more than rm-
ploiee or pa)roll lahbor in Ihe same classification
" The RNs hai e recelied more extenri e training and are qualified in
,ome areas of rendering mredicatlln sthich the I PN, are nllt qualified to
admni l ter Hlt, e.er the salaries If RN,, %ere generall' a little greater
ti th l se t )i LP Ns.
"ilt he MNidi o ( l S.Olth ficilit had rci',ed setcrail iIspectlIIns h) the
Slate I)epairtnlqlll Of I eaIth Sert iccr arid 't ere threa tened with a loss of
thel Iicense Illnless col itid tlns t erc drast call ,n impr - ed Fheir next Il-
pecltIil ils. las tI*p at'led in lati Jatliars (or earl Fehruitr! 1V74
Itirhara iBartoiit itarhira I ol ,itd, anid (c aroli n Ctochran si re all
inmpltiled at ilther fa.cilile pcratlci h5 I);lnnir Compano, and "ere
%e.llmlil i. h I dlll hlClaC t lime t 51 li, 11 1r SOttlh 1 dirig thisl criticrl l Period
825
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
was also the major concern of Grace Ellis who had the
responsibility of interviewing and hiring the LPNs.
Grace Ellis took the easy way out and turned to contract
labor to fill needed replacements because it was the expe-
dient thing to do and allowed her more time to devote to
her primary task of getting ready for the inspection.
Moreover, the proof does not show that the applicants
were totally ignored. While Grace Ellis could not re-
member the specifics on each of the applicants, her testi-
mony generally supports the fact that one of the appli-
cants whom she might have desired to hire could not be
contacted by telephone; some of the applicants were un-
willing to work irregular hours or required a specific
shift; others were lacking long-term care experience; S
and still others were deficient in one area or another
which indicated they were not qualified employees even
though they may have had their license as a practical
nurse. '9
The General Counsel relies primarily on a4lexander'
Restaurant and Lounge, 228 NLRB 165 (1977), affd. 586
F.2d 1300 (9th Cir. 1978), wherein the Board and court
found respondent to have violated the Act by "unlawful
interrogation of prospective employees" and "the out-
right refusal to hire individuals whose background indi-
cated potential union adherence." However, these factors
were not shown to exist in the instant case. The General
Counsel has not shown one scintilla of evidence to con-
nect the failure to hire LPNs with union animus on the
part of Respondent. Nor has there been any showing
that Respondent questioned or sought in any manner to
ascertain the attitude of the applicants toward unionism.
This is not a case where a respondent has been shown to
have a strong antiunion attitude. While the evidence sup-
ports, and I sincerely believe, the propriety of finding
discriminatory discharges and some wrongful questioning
(as heretofore found), nevertheless these transgressions
were not so outrageous and pervasive as to totally tar-
nish every act of Respondent. Any such inference ar-
rived at "must be based upon evidence, direct or circum-
stantial, not upon mere suspicion." Cedar Rapids Block
Co., Inc. and Cedar Sand and Gravel Co. v. ,.L.R.B., 332
F.2d 880, 885 (8th Cir. 1964); Kings Terrace Nursing
Home and Health Related Facility, 229 NLRB 1180
(1977).
The General Counsel is required to prove a case by a
preponderance of the evidence and this she has failed to
do in connection with the alleged 8(a)(5) violation. I
shall recommend dismissal of this aspect of the com-
plaint.
IV. ITHLI REM N-1I)
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
' Tllhis term ,as unlder,,tood to he the dilllTelnc blectil c hospltall ex-
ptrienctc and conallesclent homle expericlce
'9 [he unit was lneser Iltall., dissipaled As anll hbc' he dclelrlllnned
from the record there wert four l.'Ns Io Rspolidenlt is palylll t thlie
time of the hearing
Having found that Respondent unlawfully discharged
Judy Johnson, Marcy Lyon, Judy Jarvis, and Glenda
Freeburger and failed to reinstate them, I shall recom-
mend that Respondent offer to each of them immediate
and full reinstatement to their former jobs, or, if those
jobs no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and
privileges. I shall also recommend that Respondent make
them whole for any loss of earnings suffered as a result
of the discrimination practiced against them by payment
to them a sum of money equal to that which they nor-
mally would have earned as wages from the date of their
termination to the date of said offers of reinstatement,
less net earnings during such period. Backpay is to be
computed on a quarterly basis in the manner prescribed
by the Board in F W. Woolworth Company, 190 NLRB
289 (1950), plus interest as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), and Florida Steel
Corporation, 231 NLRB 651 (1977).
CONCLUSIONS OI LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating employee Glenda Freeburger con-
cerning her and/or her fellow employees' union activi-
ties, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By referring to Glenda Freeburger as a union agita-
tor in response to a telephone call from a prospective
employer, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(l).
5. By discharging and refusing to reinstate Judy John-
son, Marcy Lyon, Judy Jarvis, and Glenda Freeburger
because of their union activities, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
6. The following is an appropriate bargaining unit
within the meaning of Section 9(b) of the Act:
All full-time and part-time licensed practical nurses
and graduate practical nurses employed by Danmor
Company at the Madison South Convalescent
Center, but excluding all registered nurses, nursing
assistants, dietary and housekeeping employees,
physical therapy aides, laundry employees, mainte-
nance employees, office clerical employees, profes-
sional employees, administrators, managers, confi-
dential employees, guards and supervisors as de-
fined in the Act.
7. All other allegations of the complaint not specifical-
ly found hereinbefore to be violative of the Act are to be
dismissed.
[Recommended Order omitted from publication.]
826
MADISON SOUTH CONVALESCENT CENTER
SUPPLEMENTAL DECISION
STATEMENT 01 THE CASi
JAY R. POIt.ACK, Administrative Law Judge: On
April 9, 1980, Administrative Law Judge James T. Ras-
bury of the National Labor Relations Board (herein
called the Board) issued his Decision in the above-enti-
tled proceeding (JD-(SF)-100-80), and, on the same
date, the case was transferred to and continued before
the Board. The Administrative Law Judge found that
Respondent had engaged in certain unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended (herein called
the Act), and recommended that Respondent take certain
steps to remedy the unfair labor practices found. Howev-
er, the Administrative Law Judge recommended that the
remaining allegations of the consolidated complaint be
dismissed, including the allegation that Respondent had
violated Section 8(a)(3) and (5) of the Act by the follow-
ing conduct: failing to replace vacant unit positions with
licensed practical nurse applicants in an attempt to dissi-
pate the unit; contracting out unit work to undermine the
Union's majority; and failing and refusing to hire 13 al-
legedly qualified named applicants for unit positions.
Thereafter, Respondent and the General Counsel filed
timely exceptions and supporting briefs Respondent also
filed an answering brief.
On August 26, 1980, the Board issued an Order re-
opening the record and remanding the proceeding for
further hearing before an administrative law judge' for
the purpose of taking evidence only as to whether Re-
spondent violated Section 8(a)(3) and (5) of the Act by
the conduct set forth in the allegations described above
The matter was heard by me in Spokane, Washington,
on March 17, 1981.
Upon the entire record, from my observation of the
demeanor of the witnesses,2 and ha'ving considered the
post-hearing briefs, I make the following:
FINDINCS 01 FACr
I. THE: ALI EGED UNFAIR I ABOR PRACTICi S
A. Background and Issues
On May 8, 1978, the Union filed a representation peti-
tion seeking an election among Respondent's service and
maintenance employees which included nurses aides and
orderlies. On June 27, 1978, an election was held under
the supervision of the Regional Director for Region 19
of the Board. Timely objections to the conduct of the
election were filed by the Union. A second election in
the service and maintenance unit has not been held due
to the pendency of the instant unfair labor practice
charges. On May 15 the Union filed a petition in Case
Due to the dealh of Administrative l.a" Judge RashurN. Ihe .cad ¥,
remanded to anorlher adminisratlr, la" judge
2 he onl wultnesse% 1o testif 5 beforce me vere t, i Ihe Ihl 13 named appl-
Calrts for emlplomerit as licensed practllcal rlursc Nolne olf Ihe *n lll"rees
who testified before Adminlsirati\e Iau Judge RasburN w'ere re.alled toi
testify The credlchilit findings herein are hased o( in m rexle ,ffI lle
record eviden e and the inferenes i lrl, dra'.ll Ilhcrefroml Sece II
Rancho .ltfart, 235 Nl RI 4b8. 470 (1107.)
19-RC-8892, seeking to represent Respondent's employ-
ees in the licensed practical nurse unit at issue herein:
All full-time and part-time licensed practical nurses
and graduate practical nurses employed by the
Danmor Company at the Madison South Convales-
cent Center, but excluding all registered nurses.
nursing assistants, dietary and housekeeping em-
ployees, physical therapy aides, laundry employees,
maintenance employees, office clerical employees,
professional employees, administrators, managers,
confidential employees, guards and supervisors as
defined in the Act.
On August 16, the Regional Director certified the
Union as the exclusive representative of Respondent's
employees in the above-described bargaining unit, found
to be appropriate within the meaning of Section 9(b) of
the Act. Collective-bargaining negotiations in an effort to
reach a collective-bargaining contract covering the li-
censed practical nurses' bargaining unit described above
(LPN unit) commenced on October 24 and continued at
least through the end of January 1979. The consolidated
complaint does not allege that Respondent failed to bar-
gain in good faith during negotiations.
The General Counsel contends that, following the cer-
tification of the Union as the exclusive bargaining repre-
sentative in the LPN unit, Respondent attempted to
evade its obligation to bargain with the Union by failing
to hire replacements for vacant LPN positions in an at-
tempt to dissipate the LPN unit. The General Counsel
further alleges that, in order to avoid its obligation to
bargain with the Union, Respondent contracted out unit
work by using the services of nursing agencies rather
than hiring LPNs and refused to hire 13 allegedly quali-
fied named applicants for LPN positions. Respondent
does not deny that the number of LPNs in its employ de-
clined from eight in May 1978 to two-both of whom
were on leaves of absence-in January 1979.' However,
Respondent contends that its failure to hire LPNs result-
ed from external conditions beyond its control. In sup-
port of this argument Respondent presented evidence
that its primary concern was to upgrade the facility so
that it would not lose its license to operate in the State
of Washington. Rather than hiring LPNs, Respondent
hired registered nurses (RNs) and utilized nurses from
contract labor agencies. The General Counsel and Re-
spondent agree that the critical issue herein is the Re-
spondent's motive for hiring RNs and utilizing contract
labor rather than hiring LPNs.
B. The Decline in the Number of LPNs
In May 1978, at the time of the filing of the represen-
tation petition in the LPN unit, Respondent employed
eight LPNs, seven full time and one part time. During
the 6-month period from the election through January
1979, the number of LPNs in Respondent's employ de-
creased to two, both of whom were on leaves of ab-
sence. During the same time period, Respondent's com-
1J Ihe sillmllll r ,1 It)7'). a.lld a.i the tIlnlC OF Ic he nil m al hearing hterill.
hire , 'i r btn,,i i i I'Ns In R(t ' t, f Itli+ r p'rl lf l
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plement of RNs ranged from a low of 7 to a high of 15.
There was extensive evidence, that with minor excep-
tions, LPNs and RNs performed virtually the same
duties for Respondent.
During this critical time period, Respondent was pre-
paring for an inspection by the State of Washington
Department of Social Health Services. The Department
of Health Services had threatened Respondent with the
loss of its license unless conditions improved by its next
inspection scheduled for late January or early February
1979. In preparing for this inspection, Respondent had
some supervisors from sister facilities spend considerable
time working at the Madison South Convalescent
Center.
Concurrent with these events, as found by Administra-
tive Law Judge Rasbury, Respondent discharged nurses
aides Judy Jarvis and Glenda Freeburger, both members
of the Union's bargaining team, on January 24, 1979, in
violation of Section 8(a)(3) and (1) of the Act. On that
same date, Respondent further violated Section 8(a)(3)
and (1) of the Act by discharging LPNs Judy Johnson
and Marcy Lyon in order to hide the illegal discharges
of Jarvis and Freeburger. Further, Respondent engaged
in the following conduct in violation of Section 8(a)(l) of
the Act: interrogating employees concerning their union
activities or interests; and labeling employees as "union
agitators" in response to prospective employers' refer-
ence checks.
In support of its contention that Respondent sought to
evade its obligation to bargain with the Union, the Gen-
eral Counsel relies on the following uncontradicted testi-
mony of Larry Buchanan, a former nurses aide. 4 Just
prior to the August 1978 election in the LPN unit, Bu-
chanan had a conversation with Grace Ellis, then Re-
spondent's director of nursing services, in which he
asked Ellis whether she intended to replace two LPNs
who had recently resigned. Ellis responded by saying
that sort of thing was out of her hands, that it was not
her responsibility, and that she had nothing to say about
it. Buchanan commented that it did not look like Ellis
was trying to replace those LPNs and Ellis agreed with
that observation but said she, personally, had nothing to
do with it. During September 1978, Buchanan asked Ellis
if she were going to replace an LPN named Ruth Jones
who had just been discharged for sleeping on the job.
Ellis replied, "Probably not. I don't know, I don't think
so." Buchanan said, "Well now, we've got a very inter-
esting situation don't we? We're down to four, we're
down to four LPN's where there used to be eight. And
it's getting down to the wire, because Denise [another
LPN] is pregnant, you know she will be leaving, and
there is every probability that Connie [an LPN] will be
leaving. That will leave two. That isn't much of a unit."
Ellis agreed that it was not much of a unit.
4I credit Bluchanan's tesiimny (irace Fllis. formerly Respondentclls di-
rector of nursing services, was called to teslify by the General Cotunsel ais
an adverse 'ritmess and Bwas nhot questioned Oin this mlatter RespondentI
did not ask any queslitns Otf [llis ;Ird she "as not recalled to delni tlis
testimony Fromr the failure to recill Ellis concernillg thes milttiert.s. I
draw the infereilce that her lestiriloll otluld nolt haIl hbeen11 fai rabl e lo
Respondent See Martin, Iuther Kirng. Sr, \'urulng ( enter, 21 Nl R13 15,
fn I (1977)
Buchanan resigned from Respondent's employ on
October 31, 1978. Thereafter, in January 1979, he called
Ellis seeking to return to work. Ellis told Buchanan that
he could "absolutely not" return to work. When Buchan-
an stated, "Why not? You have openings and I'm a good
aide, you know that," Ellis then replied, "That's not the
question." Several days later, Buchanan filled out a job
application and presented it to Ellis. Ellis said, "You
know I can't hire you. I've gotten instructions. I cannot
hire you." Buchanan asked who had given those instruc-
tions and Ellis replied "I'll give you three guesses."
When Buchanan guessed Mortimer (Respondent's presi-
dent), Ellis replied, "You've got it." With that both Bu-
chanan and Ellis laughed and Buchanan said, "I heard
about Judy [Johnson] and Marcy [Lyon], and as far as
I'm concerned you're in for the time of your lives." Ellis
replied, "I know it. I think it's a horrible mistake, but I
didn't have anything to do with it. That's all Mr. Nelson
[Respondent's administrator] and I really don't have any-
thing to say about anything around here anymore."5 Ellis
told Buchanan that she was unhappy with her job and
that she intended to find another job. She said she was
upset that she did not have a regular staff. Buchanan
commented on the number of contract service nurses and
the lack of employee LPNs. When Ellis agreed that
there was a lack of LPNs, Buchanan said, "Well, you've
got a hell of a bargaining unit here now. You lost your
last 2 nurses, you can negotiate forever with what
you've got left, which is nothing."
C. The Failure To Hire the 13 Allegedly Qualified Job
Applicants
The General Counsel contends that Respondent's re-
fusal to hire any or all of the 13 LPN applicants was part
of a calculated and deliberate scheme to avoid its obliga-
tion to bargain with the Union by dissipating the LPN
unit. 6 The General Counsel further contends that Re-
spondent's animus is aimed at the Union rather than the
individual applicants. Respondent contends that its fail-
ure to hire the 13 applicants for LPN positions was due
to "objective nondiscriminatory criteria and circum-
stances and was not for the purpose of dissipating the
bargaining unit or undermining the Union's majority."
The criteria for LPN hiring as testified to by Grace
Ellis were possession of a valid Washington State license,
long-term care experience as a licensed employee, and, if
an individual had graduated before 1965, a certificate
that he or she had taken pharmacology. Although indi-
cating that there might be other criteria, Ellis could
recall no other criteria. Ellis testified that she could not
independently recall the reasons for the failure to hire
any of the 13 applicants. However, she identified her
I lihe failurc to rehire Buchanllan las, notr alleged as a siolialion of the
Act ardli is rlot befor e ei on reiTllild
"'I' I 13 allegedls qualifid applicants for iunit poritiors and date' of
ilpliticat ioIn are
Franci.r I Frederick. 9 20 78. liecerl. Ann Riley. IO) 18 78 June K
Zinmilerrimal 11 02 78; Russell K (itoo. II-27 78: Patts Ann Colbertl
12 28 78 John IluigerC Storrnclnti. I 1)5 79 Carol Palmer. I 1)4 79
\Vlck RenKee Mrltul. I ()8 7(9 Jalquelvn Jean 'lillon. I 21 79; PaImela
Joleen Ro hberry. I 31 79, Iheoldore () ilBlsiuganic. 2 -1)-79 lerres, J
lilsiigar.im 2 (8 791 .and Shlirl, Kalhcilen lt.ik 2 0)9 79
828
MAI)IS()N S()L1lt C()N\'ALi SCII Ct'N 'I ER
written remarks on their job applications which gave ab-
breviated reasons for not hiring nine of the applicants
traunc" L. t'red#ric'k, an LPN, applied for work at Re-
spondent's Madison South facility on September 26,
1978. No reason was offered for why Frederick was not
hired except that Ellis noted that she had not inter-
viewed Frederick. Ellis could not recall why Frederick
was not inter.iew ed
Beverly Ann Rileyv, an LPN, filled out an application
for employment on October 18, 1978, and was inter-
viewed that same date by Ellis. Riley testified that she
told Ellis that she could work any shift, and that she had
worked in a hospital before, but did not give medica-
tions. Thereafter, Riley had no contact with Ellis but
was subsequently dispatched by a contract service
agency to work at Madison South as an LPN where she
passed out medications. Ellis could not recall why she
did not hire Riley. Respondent in its brief, relying on
Ellis' written remarks on the job application, contends
that Riley was not hired because she had no experience
in giving medications and was rather unkempt. Respond-
ent further argues that at the time of Riley's application
no serious staffing problem existed. Finally, Respondent
argues that Riley's experience was insufficient.
June K. Zimmerman, an LPN, applied for employment
on November 2, 1978. Zimmerman had received clinical
training at Madison South under the supervision of Ellis.
Ellis told Zimmerman that there were no positions open
during the shifts for which Zimmerman sought work. 7
Ellis told Zimmerman that she would be contacted if
anything in her desired timeslot opened up. However,
when Zimmerman contacted Ellis later to again inquire
about a job, Ellis told Zimmerman that the applicant
would not be hired due to her lack of experience. Ellis
could not recall why Zimmerman was not hired but her
notes indicated that Zimmerman wanted full-time work.
In its brief Respondent contends that Zimmerman was
not hired due to her lack of experience.
Russell K. Goo, an LRN, applied for employment on
November 27, 1978. Goo testified that, at the time of his
application, he was willing to work all hours and had
nursing experience. Further Goo testified that he had
geriatric training. Ellis offered no reason for not hiring
Goo but said she was unable to contact him by telephone
(presumably for an interview). Goo acknowledged that
he was looking for employment and could have missed
Ellis' call. In its brief Respondent contends that Goo
lacked sufficient experience for employment.
Party Ann Colbert. an LRN, applied for employment
on December 28, 1978. Ellis testified that Colbert prob-
ably was not hired because she had a back injury. Col-
bert credibly testified that, at the time of her interview
with Ellis, Ellis did not indicate that Colbert's back
injury would prohibit her from being hired. Rather, Ellis
told Colbert that she would be hired. Colbert was not
later contacted. In its brief, Respondent contends that
Colbert was not hired because she concealed the exist-
ence of her back injury and because of the injury itself.
7 My revles of the record indicate, that positions were aatlahbl
during the shilfts for wuhich Zimmerman appiled Respondent is utiltzirng
nurses from contracdt labor agenclCes for thrse shitis
Joh, Eugene Stormnent applied for employment on Jan-
uary 5, 1979, hut had not worked as an LPN since 1974.
Storment was in the process of renewing his license at
the time of his application. Ellis noted on the job appli-
cation that Storment did not have a current license. The
General Counsel apparently argues that Storment could
have obtained a license in time to be hired by Respond-
ent. Respondent argues that Storment's disqualification
from hire is patently obvious.
Carol Palmer. an LPN with more than 20 years' nurs-
ing experience, applied for employment on January 4,
1980. Palmer was interviewed by Ellis at the time of her
application and told that she would be contacted. Palmer
testified that, after Ellis failed to call, she attempted to
call Ellis four times. Ellis never returned Palmer's calls.
Ellis testified that she was interested in hiring Palmer.
but that when she tried to contact Palmer by phone no
one answered. Palmer credibly testified that someone
was available to take phone messages at all times but that
she received no messages. Ellis never explained why
Palmer was not hired immediately or why Palmer was
not contacted by mail. Nor did Ellis explain why she
called Palmer only once. Respondent contends that
Palmer was not hired because of the lack of a telephone
and lack of long-term care experience.
Vicky Renee Mostul applied for employment and was
interviewed by Ellis on January 8, 1979. Mostul in-
formed Ellis that she had worked previously with geriat-
ric patients as a student nurse and that she would work
any shift. Ellis told Mostul that Respondent did not have
an opening at that time but would have an opening
within a couple of weeks because of "high turnover."
Ellis told Mostul that she would call the applicant as
soon as there was an opening. However, Mostul was not
later contacted. Ellis testified, after reviewing the job ap-
plication, that Mostul was not hired because of the lack
of long-term care experience as an LPN.
Jacquelyne Jean Tilton was an LPN when she applied
for employment on January 23, 1979. Tilton had 5 years'
nursing experience and indicated that she was available
for full-time work. Ellis could offer no reason for not
hiring Tilton except that she had not interviewed Tilton.
Ellis offered no reason why she had not interviewed
Tilton. Respondent contends that Tilton was not hired
due to a lack of long-term care experience.
Pamela Joleen Rowberry, an LPN, applied for employ-
ment on January 31, 1979. Ellis testified that, after re-
viewing Rowberry's application, Rowberry was not
hired because she had been dismissed from another hos-
pital for excessive absenteeism. Rowberry testified that
she was interviewed by Ellis and told that all day-shift
positions were filled at the time. Approximately 2 weeks
later, Rowberry was working at Respondent's Madison
South facility as a contract services employee during the
day' shift. Rowberry also worked the other two shifts
during her assignment of approximately 3 weeks at Madi-
son South.
Theodore Q. Blasingame and his wife, Teresa J. Blasin-
game, both LPNs, applied for employment on February
8, 1979. Neither Blasingame was interviewed by Ellis.
Teresa Blasingame testified that she attempted to contact
829
DIECISIONS OF NAII()NA. I.AB()R REItATIONS BOARD
Ellis for an interview but was unsuccessful in doing so.
Ellis offered no reason for not hiring the Blasingames.
She testified that at the time of their application for em-
ployment she was very busy with the upcoming state in-
spection. Respondent contends that Mr. Blasingame was
not hired due to a lack of experience and that Mrs. Bla-
singame indicated a refusal to work irregular hours.
Shirley Kathleen 7bck, an LPN, applied for employ-
ment on February 9, 1979. Tock did not testify. Accord-
ing to Ellis' remarks on Tock's job application, Tock did
not appear for an interview. There is no evidence to con-
tradict these remarks.
D. Respondent's Defense
Respondent's defense must be considered in the light
of the General Counsel's prima facie evidence. Grace
Ellis, Respondent's director of nursing services from July
1978 until February 1979, called as an adverse witness by
the General Counsel, was not examined or recalled by
Respondent. My review of the record indicates that Ellis
was unable to recall most matters and seemed to be eva-
sive and reluctant to testify. 8 Ellis testified that she was
under instructions from Donald Nelson, Respondent's ad-
ministrator, to hire LPNs and, in fact, told to hire any
qualified applicant. She testified, however, that hiring
LPNs was secondary to her concern for Respondent's
potential loss of its state certification. She testified that,
in January 1979, she was too busy with the state inspec-
tion to train employees and in February she was so busy
that she "probably" did not have time to interview cer-
tain job applicants. Ellis never explained why she in-
creased her use of contract labor services when instruct-
ed to do the opposite. Nor did she explain why she did
not hire LPNs when instructed to do so. Further, Ellis
could not recall why she did not hire the 13 named ap-
plicants for employment. From reviewing the job appli-
cations, Ellis had a reason for not hiring two of the ap-
plicants. But for the most part she had no memory and
her written remarks were brief and not fully explained.
For four of the employees, even utilizing the job applica-
tions, she could not recall a reason. Certain examples are
most telling: With regard to applicant Carol Palmer,
Ellis testified that she was interested in hiring Palmer
and called to leave a message for Palmer, but no one an-
swered.9 However, no explanation was offered for why
Palmer was not hired immediately, why Palmer's calls
were not returned, or why Ellis did not send Palmer a
wire or a letter. Applicant June Zimmerman was appar-
ently not hired because she wanted full-time work. How-
ever, no explanation was offered as to why Zimmerman
could not be offered full-time work. Respondent was uti-
lizing RNs and LPNs from contract services during the
hours that Zimmerman sought work. In its brief, Re-
spondent argues that Zimmerman was inexperienced.
However, Zimmerman had served in an intern program
'Administrative Lasw Judge Rasburry, apparently, credited Ithose re-
sponses given by Ellis ()n the other hand, I place particular importance
on Ellis' failure to offer evidence on matters critical to the resolutioin of
these issues.
9 There is reason to doubl that Ellis in fact called Palmer s I'Palmer
credibly testified someone was present at all times to take phone mesa
sages for her
at Madison South. Moreover, that reason was not offered
by Ellis. "' The General Counsel also presented evidence
that Madison North, Respondent's sister facility, hired an
LPN in April 1979, who did not have long-term care ex-
perience-a requirement used to exclude applicants at
Madison South. Most importantly, Ellis was not recalled
to deny Buchanan's testimony regarding her instructions
not to hire a regular staff of LPNs.
Donald Nelson, Respondent's administrator, testified
that he was under instructions from Trudel Dean (then
Respondent's operations manager) to reduce the contract
labor expense and to "use his own people."" Nelson was
never instructed to increase the number of RNs. Howev-
er, between October 1978 and January 1979, Nelson par-
ticipated in the hire of three RN's.'2 During the relevant
time period at least five RNs were hired. Nelson, like
Ellis, never explained why contract labor expenses in-
creased in contradiction of management's instructions.
Nelson never explained why the 13 applicants named in
the complaint were not hired.
Analysis and Conclusions
In Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083 (1980), the Board announced the following
causation test in all cases alleging violation of Section
8(a)(3) or violations of Section 8(a)(l) turning on em-
ployer motivation. First, the General Counsel must make
a prima facie showing sufficient to support the inference
that protected conduct was a "motivating factor" in the
employer's decision. Upon such a showing, the burden
shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the
protected conduct. 13 As the parties agree and I find that
the critical issue herein is Respondent's motivation for
using contract labor services and not hiring LPNs, I find
that the Wright Line test applies.
For the following reasons I find that the General
Counsel has made a prima facie showing that Respondent
was motivated by a desire to discourage membership in
the Union and to erode the bargaining unit. Concurrent
with the filing of the petition in the representation case,
Respondent substantially increased its use of contract
labor from one agency and began utilizing contract labor
from a second agency. The timing of these events is an
important factor in determining whether Respondent was
motivated by its employees' protected conduct. Further,
during this same time period, Respondent was engaged
in substantial unfair labor practices. The unlawful dis-
charges of two bargaining team members, Judy Johnson
and Marcy Lyon, followed by the discharges of employ-
"u No weight has been given to arguments in Respondent's pretrial
brief regarding alleged delicielncies of job applicants which are not sup-
ported by Ellis' testimony
" Contract labor cost Respondent $2 per hour more than employee
labor in the same classification Nelson was also told by Respondent's
counsel to hire L PNs so as not to appear to be deleting the unit
I' One of these RNs quit shortly after her hire The two RNs replaced
LP 'Ns Nelson testified that Respondent had job applications from ap-
proximately 50 RNs and approximately 20 LP'Ns
"3 If after all the evidence has been submitted. the employer has been
unable to carry its burden. the Board will not seek to quantitatively ana-
I)N7e the effect (,f the unlawful cause once it has been found Id at fn I1
930
MADIS()N S()LT11 C()NVAI ISCENF CFNTER
ees Glenda Freeburger and Judy Jarvis in order to hide
the illegal discharge of Johnson and Lyon, establish that
Respondent had embarked on a course of conduct aimed
at discouraging employees from union activities. An in-
ference can be drawn from such antiunion conduct that
Respondent was similarly motivated in its use of contract
labor.
I find it particularly significant that the use of contract
labor was against Respondent's self-interest. Contract
labor was more expensive. Both Nelson and Ellis were
allegedly told to hire LPNs and reduce the cost of con-
tract labor. However, rather than reduce such costs, Re-
spondent increased its use of the more expensive contract
labor services. Respondent would not have acted in this
manner unless it had a reason. Respondent's failure to ex-
plain its reasons leads me to conclude that it had a
reason which it desires to conceal-an unlawful and dis-
criminatory one.
Contrary to Administrative Law Judge Rasbury, I do
not find that Ellis took the easy way out and turned to
contract labor because it allowed her more time to
devote to her primary task of getting ready for the in-
spection. Ellis did not so testify She only testified that in
January 1979 she was so busy that she could "probably"
not train employees. Ellis further testified that she prob-
ably was too busy in February to interview certain appli-
cants. However, there is no basis to conclude that con-
tract labor required less training or required less of Ellis'
time. Rather, the frequent turnover of contract labor
would require more training and supervision. Further,
two of the LPN applicants, allegedly not qualified. were
sent by nursing agencies to work for Respondent as con-
tract labor. There is no evidence that those two nurses
were given any additional training. Moreover, Respond-
ent did hire RNs and there is no reason to believe that
RNs needed less training or required less of Ellis' time
than LPNs.
Finally, the undenied admissions made by Ellis to Bu-
chanan establish that Respondent knew that the unit was
being dissipated. Ellis further admitted to Buchanan that
she was instructed not to hire applicants regardless of
their qualifications. This evidence was not rebutted or
explained.
The lack of reasons for failing to hire the named appli-
cants further supports the establishment of the General
Counsel's prima facie case. Carol Palmer, concededly
qualified, was allegedly not hired because no one an-
swered one phone call. No effort was made to write her
or call her again. June Zimmerman was not hired be-
cause she allegedly wanted full-time work, but there was
no evidence that full-time work was not available.
Rather it appears that contract labor was being used
during the work hours for which Zimmerman was seek-
ing employment. Further, no attempt was made to inter-
view five of the applicants.
I find that the timing of the increase in the use of con-
tract labor shortly after the filing of the petition and con-
current with substantial unfair labor pi ictices, the use of
a more expensive alternative to hiring L.PNs for unit po-
sitions, and the admissions of Buchanap and Resnond-
ent's failure to offer a plausible explanation for its con-
duct establish the General Counsel's prima facie case.
Thus, the burden shifts to Respondent to come forward
with a business justification for its failure to fill vacant
unit positions with licensed practical nurse applicants.
As stated earlier. Respondent contends that its failure
to hire LPNs resulted from external conditions beyond
its control. First, Respondent asserts that it has always
been easier to hire RNs than LPNs in the nursing home
field. There is some evidence to support that argument.
Secondly, Respondent contends that its hiring problems
,were compounded by its threatened decertification by
the State Department of Social Health Services. This
contention is no doubt true. However, neither argument
explains Respondent's conduct in failing to avail itself of
a qualified applicant when such a person applied for
work. Thirdly. Respondent argues that there was no eco-
normic incentive for Respondent to avoid or minimize the
use of staff LPNs; to the contrary, there was a very
strong economic disincentive to doing so. As discussed
above, it is this economic disincentive which casts seri-
ous suspicion on Respondent's conduct and which must
be explained by Respondent.
Respondent contends that it took strong, affirmative
action to attempt to maintain its LPN staffing during the
critical time period herein. While Respondent did place
extensive advertising in local papers to attract applicants,
no attempt at hiring has been shown. Rather, evidence
has been shown that Ellis was instructed not to hire unit
applicants regardless of qualifications. Moreover. Re-
spondent cannot adequately explain why it did not hire
at least some of the applicants. While certain of the LPN
applicants may not have met nondiscriminatory stand-
ards, it appears that all were disqualified regardless of
qualifications. As stated earlier. I am not impressed by
reasons offered in brief which were not advanced by Re-
spondent's witnesses. The failure to hire LPNs does not
appear to be directed at any of the applicants or the
union activities of any applicant but rather at the Union.
Thus, I do not find it persuasive that none of the appli-
cants were questioned about their union sympathies.
Based on the above analysis, I am not persuaded that
Respondent's conduct in not filling vacant LPN positions
and not hiring LPNs would have taken place in the ab-
sence of its employees' union activities. If Respondent
had evidence to support its defense, it should have pre-
sented such. I find that Respondent has not rebutted the
prima facie case and, therefore, that Respondent had vio-
lated Section 8(a)(3) of the Act.
As found above, Respondent's failure to fill vacant
LPN positions was motivated by its reaction to its em-
ployees' activities in bringing in the Union. Whether Re-
spondent was further attempting to dissipate the unit or
undermine the Union's majority is not clear. However,
dissipation of the unit and the undermining of the Union
were reasonable expectations from Respondent's con-
duct Ellis conceded as much to Buchanan. Thus, I find
that Respondent's conduct violated Section 8(a)(5) as
well as Section 8(a)(3) of the Act.
Respondent further argues that: (I) the Board cannot
determine which applicants are qualified for LPN posi-
tions, and (2) it has not been shown that vacancies exist
for all of the discriminatees. ,Aearonder Dawson, Inc..
83X1
DI)[ISIONS ()F NATIONAI I AlO()R RF[I.A''I()NS B()ARD)
d/b/a Alexanders' Restaurant and Lounge, 228 NLRB
165, 179 (1977)."' The Administrative Law Judge quot-
ing Shawnee Industries, Inc.. subsidiarp of Ihiokol Chenni-
cal Corporation, 140 NLRB 1451, 1452-53 (1963), stated:
Under the Act an Employer must consider a re-
quest for employment in a lawful, nondiscrimimna-
tory manner, and the question whether an applica-
tion has been given such consideration does not
depend on the availability of a job at the time an
application for employment is made. Consequently,
the Act is violated when an employer fails to con-
sider an application for employment for reasons
proscribed by the Act, and the question of job
availability is relevant only with respect to the em-
ployer's backpay obligation.
Having failed to consider any of the applicants because
of reasons prescribed by the Act, Respondent must show
that an applicant would not have been hired even in the
absence of such unlawful reasons. It has sustained that
burden only with regard to two of the applicants: John
Eugene Storment and Shirley Kathleen Tock. Storment
did not have a valid state license and Tock did not
appear for her interview. With regard to the II1 remain-
ing applicants, Respondent has failed to establish that
they were not qualified for employment had their appli-
cations been lawfully considered. Determination of job
availability and possible backpay liability will be proper-
ly left to the compliance stage of this proceeding. Alex-
ander Dawson, supra, 228 NLRB at 179; Apex 'entilating
Co., Inc., 186 NLRB 534, fn. 1 (1970).
CONCLUSIONS 01 LAW
1. By failing to replace licensed practical nurses, by in-
creasing its use of contract labor services, and by refus-
ing to consider job applicants for positions as licensed
practical nurses, for the purpose of dissuading its em-
ployees from supporting the Union and/or for the pur-
pose of dissipating the bargaining unit or undermining
the Union's majority status, I find Respondent violated
Section 8(a)(5), (3), and (1) of the Act.
2. By engaging in a pattern or practice of refusing to
hire applicants for employment, regardless of qualifica-
tions, in order to discourage its employees from support-
ing the Union, I find that Respondent discriminated in
regard to the hire of Frances L. Frederick, Beverly Ann
Riley, June K. Zimmerman, Patty Ann Colbert, Russel
K. Goo, Carol Palmer, Vicky Renee Mostul, Jacquelyn
4 Enfd 58 F 2d 13()00 (9th Cir 19781
Jean Tilton. Pamela Joleen Rowberry, Theodore Q. Bla-
singame, and Teresa J. Blasingame, thereby discouraging
membership in the Union and, accordingly, I find that
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
3. The evidence establishes that Respondent would not
have hired John Eugene Storment and Shirley Kathleen
Tock even in the absence of its unlawful motives de-
scribed above.
Ttliii RFI MI)
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and that it take cer-
tain affirmative action set forth below to effectuate the
policies of the Act.
It having been found that Respondent unlawfully dis-
criminated against Francis L. Frederick, Beverly Ann
Riley, June K. Zimmerman, Russell K. Goo. Patty Ann
Colbert, Carol Palmer, Vicky Renee Mostul, Jacquelyn
Jean Tilton, Pamela Joleen Rowberry, Theodore Q. Bla-
singame, and Teresa J. Blasingame with respect to their
applications for employment, it will be required to offer
them employment in the same position in which they
would have been hired absent the discrimination against
them, in the order that it would have employed them
absent any discriminatory considerations, discharging, if
necessary, any employees hired after the dates of their
applications. In the event that there are insufficient posi-
tions for all the discriminatees, the reinstatement offers
will be made in chronological order according to the
date of application. With regard to those discriminatees
not receiving an offer, Respondent will be required to
place their names on a preferential hiring list and offer
them the first such positions that become available, in
which it would have employed them absent any discrimi-
natory conditions. It will be further recommended that
Respondent be required to make them whole for any loss
of earnings they may have suffered by reason of the fail-
ure to give them nondiscriminatory consideration for em-
ployment in the manner outlined above, with backpay to
be computed on a quarterly basis, making deductions for
interim earnings, F KW Woolworth Company, 90 NLRB
289 (1950), and w'ith interest to be computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).' 5
[Recommended Order omitted from publication.]
" See,. gencrally, siv PlurmbinlK & I eating Co.. 138 Nl.RH 716 11962)
See a)ls ()alsvmpit Med(tl (l rprprrator , 250) NL RB 14tl (19R(0)
832