Johnson, Calvin D., Nursing Home

National Labor Relations Board - Board Decisions

Mar 23, 1982

261 N.L.R.B. 289 (N.L.R.B. 1982)

CALVIN D. JOHNSON NURSING HOME
Calvin D. Johnson Nursing Home and Mary Deen,
Theresa Mueller, and Shirley Johnson. Cases
14-CA-15005-1, 14-CA-15005-2, and 14-CA-
150054
March 23, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On December 17, 1981, Administrative Law
Judge Richard H. Beddow, Jr., issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting 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 in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions2 of the Administrative Law Judge, to
modify his remedy,3 and to adopt his recommended
Order, as modified herein. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Calvin D. Johnson Nursing Home, Belleville, Illi-
nois, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Insert the following as new paragraph 2(b)
and reletter the subsequent paragraphs accordingly:
"(b) Expunge from Mary Deen's, Theresa
Mueller's, and Shirley Johnson's personnel records,
or other files, any reference to their discharges on
May 22, 1981."
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
'In adopting the Administrative Law Judge's Decision, we note that
we have consistently held that employee complaints about their supervi-
sors' treatment of them constitute protected concerted activity. A.4alon-
Carver Community Center, 255 NLRB 1064 (1981);, Dreis & Krump Monu-
facturing Inc. 221 NLRB 309 (1975), enfd. 544 F.2d 320 (7th Cir. 1976).
' The Administrative Law Judge inadvertently failed to cite Isis
Plumbing d Heating Cox, 138 NLRB 716 (1962), as his rationale for inter-
est.
' We find it will effectuate the purposes of the Act to require Respond-
ent to expunge from the discriminatees' personnel records, or other files.
any reference to their unlawful discharges. We shall modify the Adminis-
trative Law Judge's recommended Order and notice accordingly.
261 NLRB No. 44
2. Substitute the attached notice for that of the
Administrative Law Judge.
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.
WE WILL NOT threaten our employees with
loss of employment, or discharge employees,
or otherwise discriminate against them, be-
cause of their complaints regarding conditions
of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act.
WE WILL offer immediate and full reinstate-
ment to Mary Deen, Theresa Mueller, and
Shirley Johnson to their former jobs or, if
those jobs no longer exist, to substantially
equivalent positions without prejudice to their
seniority or any other rights or privileges pre-
viously enjoyed, and WE WILL make them
whole, with interest, for any losses they may
have suffered as a result of the discrimination
against them.
WE WILL expunge from the personnel
records, or other files, of the above employees
any reference to their discharges on May 22,
1981.
CALVIN D. JOHNSON NURSING HOME
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge:
This matter was heard in St. Louis, Missouri, on August
27 and 28, 1981. The proceeding is based upon charges
filed May 27 and 28 by individuals Mary Deen, Theresa
Mueller, and Shirley Johnson. The General Counsel's
complaint alleges that Respondent Calvin D. Johnson
Nursing Home, Belleville, Illinois, violated Section
8(a)(1) of the National Labor Relations Act, as amended,
by informing employees that other employees had been
discharged for making complaints about a supervisor to
Respondent's administrator and by discharging the
Charging Parties because they engaged in protected con-
certed activities.
289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Briefs were filed by the General Counsel and Re-
spondent. Upon a review of the entire record in this case
and from my observation of the witnesses and their de-
meanor, I make the following findings:
I. JURISDICTION
Respondent is a health care institution providing medi-
cal and nursing care services. During the representative
year ending April 30, 1981, it derived gross revenue in
excess of $100,000 and purchased and received goods
and materials valued in excess of $10,000 from points
outside Illinois. It admits that at all times material herein
it is and has been an employer engaged in operations af-
fecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
Respondent operates a nursing home providing long-
term health and nursing care to residents of its Belleville,
Illinois, facility. Elder Care, Inc., an Illinois corporation,
manages and operates Respondent through its president
and chief executive officer, Steven Wolf, an experienced
health care administrator. He maintains regular contact
with Administrator Annette Bierschenk who has been
delegated responsibility for day-to-day operation. Re-
spondent's employees are not represented by any labor
organization.
Registered Nurse Hilton Beauchamp is employed by
Respondent as a night supervisor and charge nurse in the
skilled care section, halls 300 and 400. In addition to his
nursing duties he was in charge of building security and
he engaged in training and "counseling" of nurses aides
with respect to their work habits.
Mary Deen, Theresa Mueller, and Shirley Johnson
(the Charging Parties) were employed by Respondent as
nurses aides on Respondent's night shift. The Charging
Parties, as well as former employee Lana Stevens, regu-
larly reported for duty on the 11 p.m. to 7 a.m. shift at
Respondent's facility at 10:30 p.m. and punched a time-
card upon arrival. Stevens and Mueller were assigned to
hall 300, Deen and Johnson to hall 400. Each hall held
between 40 and 45 patients. Supervisor Beauchamp has
overall responsibility for the care of patient residents and
for supervision of the nurses aides on the night shift.
Each day the aides received a verbal briefing from Beau-
champ, prepared linen carts, and began their first rounds
at about 11:30 p.m., which rounds would last more than
an hour. Two aides worked together and during the first
round would check patients for incontinence, change bed
linen when necessary, empty urinals, and turn patients as
needed. The aides would also take patient temperature,
pulse, respiration and blood pressure, and escort patients
who were unable to walk to the restroom when neces-
sary. Beauchamp also expected aides to check floors for
paper and to pick it up; check windows, air-conditioning
or heating; and check bed rails and lights in patient
rooms and bathrooms. For the most part, however, pa-
tients generally were asleep during this period of time.
After the first round, the aides generally took a half-hour
lunchbreak, two at a time. Second round duties similar to
those of the first round started about 2:30 a.m. The third
round started at 5 a.m., during which time the aides
would get patients up and bathe and groom them. While
the aides were making their first rounds, Beauchamp
would spend 20 minutes checking doors throughout the
facility to assure they were secure. He made hall rounds
himself, giving particular attention to the more critical
patients, such as patients requiring oxygen, and he had
occasion to come into frequent contact with the aides
throughout the shift.
Employees Stevens and Mueller were hired during the
latter part of March 1981, Deen was hired on December
15, 1980, and Johnson November 23, 1980. All four re-
ceived 5-day orientation course and Deen and Johnson
had served an established 3-month probationary period.
At the end of orientation all employees signed for a per-
sonal policy guide on a sheet that also contained refer-
ences to other forms and requirements for new employ-
ees. The guide contains a section on grievances; howev-
er, no instruction time during orientation was spent on
such matters. The guide also has a three-page listing of
violations which includes the items "leaving the job
without permission" and "leaving early .... " The
action to be taken for a second offense "possible dis-
charge (immediate suspension)."
Sometime during April 1981, Beauchamp told Mueller
that he, Beauchamp, had a bad reputation around the
nursing home at one time "because two aides felt they
were being treated unfairly compared to another aide
there and so they went to the administration and they
complained to the administration about Beauchamp's be-
havior to them ... those two aides that went to the ad-
ministration to complain about him had been fired not
soon after .... " As a result of this statement by Beau-
champ, Mueller testified that she was afraid that she
would be discharged if she brought any complaints con-
cerning Beauchamp to Respondent's management.
Prior to April 1981 relations between Beauchamp and
the nurses aides had been harmonious. Beauchamp mar-
ried in April but did not return to work when he was
expected to. After his return, Beauchamp acted in a
moody and disruptive manner. He constantly hollered
and picked on the nurses aides and they all felt that it
was becoming unbearable to work for him. Johnson had
attended Beauchamp's wedding reception and apparently
had gossiped about her observations of Beauchamp's
conduct as well as reasons why he had not returned to
work when expected. She felt some responsibility for
precipitating Beauchamp's attitude and indicated to the
other aides that she would resign; however, Deen per-
suaded her not to do so.
On May 11, 1981, seven employees, including Stevens
and the three Charging Parties, discussed plans for a
meeting to formulate a plan to meet with management
regarding working conditions. The meeting, set for May
12, was delayed when Deen was called home because of
a serious home fire. Because of concern over Beau-
champ's treatment, as well as concerns related to her
house burning down, Deen made a request to a Barbara
(who made out schedules) to be transferred from the
night shift. The request was approved and she was
290
CALVIN D. JOHNSON NURSING HOME
scheduled to change shifts on May 24 or 31, 1981. Shir-
ley Johnson also requested a schedule change but it had
not been granted as of May 20.
B. Events of Wednesday, May 20, 1981
Stevens and the Charging Parties reported for work at
10:30 p.m, on Tuesday, May 19, 1981. During the early
part of their shift Beauchamp followed directly behind
Deen and Johnson on their rounds. This was not his
usual practice. Halfway down the hall he criticized them
regarding patient restraints. Johnson explained she was
trying to do her best so he would not be hollering at her
and she started to cry. Johnson recalled that Beauchamp
left the room without saying anything; however, Beau-
champ stated that he told Johnson to "just keep your
mind on your work."
Shortly after their lunch breaks, Stevens and Mueller
started back towards the nurses station. They had a brief
conversation with Deen and Johnson, and agreed that
they all would meet with Hagler, Respondent's director
of nursing, following the shift. Deen and Johnson started
to return to hall 400 when Beauchamp called for Ste-
vens. Stevens went to Beauchamp in response to the call,
with Mueller following along. Beauchamp then ques-
tioned Stevens regarding the emptying of urinals in pa-
tient rooms on hall 300. Stevens replied she had emptied
them. Beauchamp informed Stevens that "he had just
been down on the hall and they were full." Stevens and
Mueller went down hall 300 again checking urinals, and
found one urinal about an inch full, emptied it, and re-
turned to the nurses station. Stevens testified that Beau-
champ then said that "he had been in this business for 30
years and . . . by God, when he tells her to do some-
thing, do it . .. don't ask questions, do it." In an increas-
ingly louder voice, Beauchamp made remarks that the
aides were "not doing things right ... weren't changing
the beds right . . . weren't emptying the urinals .. ."
Stevens responded by asking Beauchamp "why couldn't
he treat us like human beings. We were human." Beau-
champ asked Stevens, "Who do you think you are?
God?" Stevens retorted, "Who in the hell do you think
you are, God?" Beauchamp, at this point, was hollering
and hysterical. He then stated, "Well, I'm the supervi-
sor. .... If you don't like the way I'm running this hall
you can leave." By this time Johnson and Deen had re-
turned to the area of the nurses station. Stevens stated, "I
will not leave until told that I have, to leave," and Beau-
champ said, "I will tell you. You can leave now, but be
back here in the morning."
Beauchamp's testimony regarding the incident with
nurses aide Stevens on May 20, 1980, was substantially
the same as that given by Stevens; however, he charac-
terized his attention to her as "counseling" and he de-
scribed her attitude toward him "becoming sarcastic and
insubordinate." He testified that, after telling Stevens to
leave, he gathered his books to go to his lunch break. At
this point, Beauchamp's recollections begin to differ
somewhat from those of the other witnesses.
Beauchamp testified that as he was on his way to the
dining room he was intercepted by aides Eiskant and
Barendright and that an exchange took place. Eiskant,
who is Mueller's mother, walked over to Beauchamp and
quietly told him that he was ill and needed to see some-
one professionally. Beauchamp replied that he did not
want to talk to anybody. Beauchamp believed that Eis-
kant and Barendright had been "signaled" over to the
nurses station by the aides on his halls. After the re-
marks, he told them to do what they liked and he pro-
ceeded to the dining room and began to work on his
books. He stated that he did not know the Charging Par-
ties had left work until he was so informed by the other
registered nurse on duty that night. His next recollection
was that he checked the corridors to determine if the
aides were gone and he then checked his patients. He
made no attempt to call anyone for assistance or to
report the loss of his staff. Beauchamp further testified
that he was aware that Deen, Mueller, and Johnson were
around the corner from the nurses station at the time he
spoke to Stevens but he could not remember if he saw
the Charging Parties at that time. He denied that he had
any conversation with them. Stevens and the Charging
Parties, however, testified that a conversation did take
place when Stevens got ready to leave. Mueller testified
that she said, "Beau, we agree with Lana. The way your
behavior has been the last few weeks it's been almost un-
bearable to work and we'd kind of like to talk about it."
At this point employees Eiskant and Barendright, the
nurses aides on halls 100 and 200, arrived at the scene.
Eiskant testified that she was drawn there by Beau-
champ's "screaming and yelling." Beauchamp responded
to Mueller, stating, "Hey, if anybody doesn't like the
working conditions you can all get out," and he pointed
towards the elevator. Deen, Mueller, and Johnson hesi-
tated for a moment, "kind of scared, not knowing what
to do," then got their coats and proceeded toward the
elevator. Here, I credit the latter testimony to the effect
that Deen, Mueller, and Johnson engaged in a conversa-
tion with Supervisor Beauchamp after he had told aide
Stevens to leave and that during that conversation he
told them that they could all get out.' After arriving at
the elevator, the Charging Parties hesitated momentarily
and observed that Beauchamp gathered some record-
keeping books and walked into the staff dining room.
Stevens and the Charging Parties left and went to a
nearby restaurant. They had breakfast and returned to
Respondent's facility at 7 a.m. Upon their return they en-
countered Eiskant and some other employees who in-
formed them that they were aware of the incident at the
nurses station and had spoken to the director of nursing
about the incident and about Beauchamp's behavior over
the past several weeks.
'I find it unlikely that Deen, Mueller, and Johnson would have silently
walked out in support of Stevens. Also, I find it unlikely that witness Eis-
kant would have engaged in her conversation with Beauchamp (which he
admittedly engaged in), unless she had not first heard the exchange be-
tween Beauchamp and the Charging Parties, and then had come to the
aid of her daughter and the other nurses aides. I also credit the General
Counsel's witnesses as to their impressions of Beauchamp's behavior and
his apparently disturbed state of mind, and I conclude that such facts
tend to discredit the reliability of Beauchamp's memory regarding any
conversation with the Charging Parties. Accordingly, I cannot credit
Beauchamp's testimony that he did not talk with Deen, Mueller, and
Johnson, after he told Stevens to leave, especially since he otherwise ad-
mitted that he was aware that they were nearby.
291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The four aides then had a 30- to 45-minute meeting
with Director of Nursing Hagler. Stevens, Deen, and
Mueller (Johnson was present but did not participate in
the discussions) told of the incident at the nurses station.
At the end of the meeting, Hagler assured Stevens and
the Charging Parties that she would make arrangements
for them to meet with Administrator Bierschenk and
nurse Beauchamp. She also said that the Charging Par-
ties and Stevens would not be discharged as a result of
the incident at the nurses station but that they should not
report back to work until the meeting was held.
C. The Discharge and Subsequent Events
On Friday, May 22, Stevens and the Charging Parties
returned for an appointment with Administrator Biers-
chenk. Hagler appeared and asked Stevens to come into
the administrator's office, alone. Hagler advised Stevens
that it was not Beauchamp's intention to discharge her
and she requested that Stevens work with Beauchamp
until her previously requested schedule change was ef-
fected. Stevens then left the office and waited outside
while Deen, Mueller, and Johnson met with Hagler and
Bierschenk.
Hagler asked the Charging Parties if they wished to
make any additional statements concerning the incident
of May 20. No further statements were made. However,
some additional complaints concerning Beauchamp's
prior conduct were made latter during the discussion.
Hagler then told them they would have to be terminated
because they "left the floor." Mueller stated they had not
just walked off the floor, but were told to leave. Hagler
stated she bet they would not have left if they had par-
ents or relatives in the hospital and Deen replied that she
would if parents or relatives in the hospital and Deen re-
plied that she would if told to leave and that Beauchamp
was her boss and he had ordered them out of the build-
ing. In response, Hagler stated that she heard from an-
other registered nurse that Beauchamp did not tell the
Charging Parties to leave. Mueller replied that it was a
lie because the only other registered nurse was on the
other side of the building away from the conversation.
Shortly thereafter, the meeting ended and the Charging
Parties left the administrator's office. Bierschenk denied
that the Charging Parties there said that they were "told,
asked, or given permission to leave." She agreed, howev-
er, that she previously had met with Hagler on Wednes-
day and was informed of the incident, that Hagler indi-
cated she planned to terminate the Charging Parties, that
Hagler sought Bierschenk's opinion, and that Bierschenk
concurred with Hagler's decision. Otherwise, Bierschenk
did not testify regarding any aspects of the Friday meet-
ing that would contradict the testimony of the Charging
Parties and their supporting witnesses. I do not credit
Administrator Bierschenk's denial that the Charging Par-
ties told Respondent that Beauchamp had instructed
them to leave, especially in light of her subsequent con-
versation with aide Stevens.
Stevens was waiting outside the office, and upon learn-
ing that the Charging Parties were discharged, she went
back into the office and stated to Hagler and Bierschenk,
"I understand that Shirley Johnson, Theresa Mueller and
Mary Deen were fired because Beau said that he did not
tell them to leave." Bierschenk then told Stevens that
"there was a difference in the way Beauchamp told [the
Charging Parties] to leave." Stevens stated she did not
see any difference and told them she was quitting. Eis-
kant resigned the following week in order to avoid
having to work under Beauchamp's supervision. Within
the next few weeks, Hagler and several other nurses and
aides that had been employed on the night shift also re-
signed.
D. Respondent's Justification
Administrator Bierschenk testified that health care
facilities are subject to state requirements relating to
staffing levels and are subject to fines or decertification
for noncompliance. She also testfied that no adverse inci-
dents related to patient care were reported to her regard-
ing the time period when the Charging Parties were
absent from their shift during the early morning hours of
May 21, 1981. She was aware of no problems regarding
the Charging Parties, although personnel problems of
employees have been brought to her attention in the
past. After the time she initially was informed of the inci-
dent by Director of Nursing Hagler, Bierschenk person-
ally made no further investigation of the matter.
Respondent's president expressed the opinion that
based upon his overall experience in the health care field
the accepted consequence of an employee's deserting her
job would be termination. He asserts that that is the
policy followed by Respondent. He further asserts that
employees are primarily bound to use Respondent's
grievance procedure rather than "deserting" their jobs.
He considers Respondent's listed violation "leaving the
job without permission" not to include the Charging Par-
ties' actions, but to be an abandonment of the employee's
job, an action that Respondent did not list specifically as
a violation.
III. DISCUSSION
Upon a review of the briefs and the entire record, I
am satisfied that the evidence presented by the General
Counsel has established by a preponderance of the evi-
dence that Respondent has engaged in unfair labor prac-
tices in violation of Section 8(aX1) of the Act.
First, it is noted that employee complaints regarding
conditions of employment are protected concerted activi-
ties and that Charging Party Mueller had the right to
pursue any such complaint, if she so desired. Mueller's
undisputed testimony shows that Beauchamp, Respond-
ent's night supervisor, made a statement to the effect that
other employees had been discharged for making com-
plaints to management about his treatment of employees.
This statement constituted an implied threat of discharge
if Mueller or other employees should engage in similar
protected activity in the future and, accordingly, I con-
clude that Respondent has violated Section 8(a)(1) as al-
leged.
The principal allegations made by the General Counsel
relate to the events of May 20, 1981, when the Charging
Parties left their shift after a confrontation between sev-
eral employees and Supervisor Beauchamp regarding
conditions of their employment. The complaints made by
292
CALVIN D. JOHNSON NURSING HOME
these employees affect all of the employees working as
nurses aides and I find that their joint effort to deal with
Night Supervisor Beauchamp's behavior clearly consti-
tutes a protected concerted activity. Accordingly, the
issues raised are whether the Charging Parties left their
place of employment on their own volition and whether
they lost the protection of the Act by engaging in serious
misconduct.
As noted above, I credit the General Counsel's wit-
nesses as to their recollection of the events of May 20
through 22, 1981. Night Supervisor Beauchamp admit-
tedly told aide Stevens to leave. This occurred against a
background of several weeks of tension between supervi-
sor and employees and under conditions where Beau-
champ was acting in an agitated manner. Beauchamp
then said: "Hey, if anybody doesn't like the working
conditions, you can all get out." As characterized by the
statement of Administrator Bierschenk, there is a differ-
ence in the way Beauchamp told the Charging Parties to
leave, however, I find that, under the cirumstances, the
Charging Parties understood that they were ordered by
their supervisor to get out and that they had no reason-
able alternative but to leave their shift.
It is recognized that health care facilities have a legiti-
mate business reason to be concerned with the necessary
staffing and care of their patients and that employees
who otherwise engage in protected conduct would lose
such protection if they abandon or desert their jobs.
Here, however, the Charging Parties were ordered to
leave by a supervisor and they cannot be held chargeable
for desertion.
Respondent has chosen to characterize the Charging
Parties' conduct as unwarranted "desertion" and to apply
discharge as the penalty, even though its own personnel
guide book otherwise has a provision "leaving without
permission" with a written warning listed as the penalty
for a first offense.
I find Respondent's charge of desertion to be a pretex-
tual mischaracterization of the Charging Parties' activi-
ties which, in view of Supervisor Beauchamp's prior
8(aXl) threat and Administrator Bierscienk's disinterest
in any personal investigation into the incident, justifies
the inference that Respondent's actions were motivated
by animus directed at the Charging Parties' concerted
conduct in pursuing their complaints against their super-
visor. I conclude that at the time Respondent ordered
the Charging Parties' discharge it knew of their com-
plaints against their supervisor and knew that Supervisor
Beauchamp had told them they could all "get out." I
find that discharge under such circumstances acts to di-
rectly and unambiguously penalize or deter the exercise
of protected conduct. Moreover, I believe that, even if
circumstances had not fully justified the Charging Par-
ties' leaving their shift, they would not have been dis-
charged if their protected concerted conduct had not oc-
curred. Accordingly, I conclude that the General Coun-
sel has met his overall burden of proof, see American
Geri-Care, Inc., 258 NLRB 1116 (1981), and I find that
Respondent's discharge of Deen, Mueller, and Johnson
on May 22, 1981, violated Section 8(a)(l) of the Act as
alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By informing employees that other employees had
been discharged for making complaints about a supervi-
sor to Respondent's administrator, Respondent interfered
with, restrained, and coerced employees in the exercise
of their Section 7 rights and engaged in an unfair labor
practice in violation of Section 8(a)(1) of the Act.
3. By discharging Mary Deen, Theresa Mueller, and
Shirley Johnson on May 22, 1981, Respondent engaged
in an unfair labor practice in violation of Section 8(a)(1).
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it is recommended that Respond-
ent be ordered to cease and desist therefrom and to take
the affirmative action described below which is designed
to effectuate the policies of the Act.
With respect to the necessary affirmative action, it is
recommended that Respondent be ordered to offer Mary
Deen, Theresa Mueller, and Shirley Johnson immediate
and full reinstatement to their former positions or, if such
positions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or any other
rights or privileges they previously enjoyed. It is also
recommended that Respondent be ordered to make Mary
Deen, Theresa Mueller, and Shirley Johnson whole for
the losses which they suffered as a result of their termi-
nation in accordance with the method set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
as prescribed by the Board in Florida Steel Corporation,
231 NLRB 651 (1977).
Based upon the record, the above-noted findings of
fact, discussion, and conclusions of law, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 2
The Respondent, Calvin D. Johnson Nursing Home,
Belleville, Illinois, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Making implied threats that employees may be dis-
charged for complaining about conditions of employ-
ment.
(b) Discharging any employees or otherwise discrimi-
nating against them in retaliation for engaging in protect-
ed concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
'In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto be
deemed waived for all purposes.
293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer Mary Deen, Theresa Mueller, and Shirley
Johnson immediate and full reinstatement and make them
whole for the losses they incurred as a result of the dis-
crimination against them in the manner specified in the
section above entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Belleville, Illinois, facility copies of the
attached notice marked "Appendix." 3 Copies of said
s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by an authorized rep-
resentative of Respondent, shall be posted by Respond-
ent immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
294