Lincoln Hills Nursing Home

National Labor Relations Board - Board Decisions

Sep 3, 1981

257 N.L.R.B. 1145 (N.L.R.B. 1981)

LINCOLN HILLS NURSING HOME
Lincoln Hills Nursing Home, Inc.; Leaseholding
Company; and Tell City Distributors (Joint Em-
ployers) and Chauffeurs, Teamsters and Helpers
Local Union No. 215, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
25-CA-9432
September 3, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On December 7, 1978, Administrative Law
Judge Norman Zankel issued the attached Decision
in this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and briefs, and
Respondent filed a reply 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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
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 and
hereby orders that the Respondent, Lincoln Hills
Nursing Home, Inc.; Leaseholding Company and
Tell City Distributors, Tell City, Indiana, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for
that of the Administrative Law Judge.
MEMBER JENKINS, dissenting in part:
' We accept the Administrative Law Judge's dismissal of complaint al-
legations based on the withholding of vacation benefits from strikers. The
uncontroverted testimony of Respondent's administrator shows that it
was Respondent's practice to compute eligibility for vacation benefits
upon a year's actual work and not simply upon a year's tenure of em-
ployment. Unlike our dissenting colleague we do not read Respondent's
written benefit policy making eligibility dependent upon "one full year"
with Respondent to be clearly contrary to this practice. Nor do we think
a finding of disparate treatment of strikers is warranted because Respond-
ent on occasion might allow time lost due to sickness to be counted
toward vacation eligibility.
2 We find that Respondent. by its unlawful withdrawal of recognition
of the certified bargaining representative. its refusal to reinstate a substan-
tial number of strikers, and the other v.iolations found herein, has demon-
strated a general disregard for its employees' fundamental statutory
rights. We view the aforesaid conduct as sufficiently severe to warrant
the imposition of the broad remedial order recommended by the Admin-
istrative Law Judge, which we shall accordingly adopt IHickmotr Fods.
Inc., 242 NLRB 1357 (1979).
257 NLRB No. 145
Contrary to my colleagues and the Administra-
tive Law Judge, I would find that Respondent vio-
lated Section 8(a)(l) of the Act by withholding va-
cation or sick benefits from reinstated strikers
Dickman and Holmes until they made up the
worktime they missed during a strike.
The facts show that Dickman and Holmes par-
ticipated in an economic strike against Respondent
from April 29 to July 29, 1977, and were thereafter
reinstated to their jobs in August. In mid-Septem-
ber, Dickman's 42d month of employment with Re-
spondent and 12 months after her previous vaca-
tion, Dickman requested vacation leave and was
told that she would first have to make up her
worktime missed during the strike. Dickman did so
and subsequently received her full vacation benefit.
Thereafter, Holmes in April 1978, her 25th month
of continuous employment with Respondent, made
a similar request and got the identical response.
Holmes reacted by resigning without giving ad-
vance notice, and was not paid for her unused va-
cation or sick days.3 Ambrose, Respondent's ad-
ministrator, testified that the responses to the re-
quests by Dickman and Holmes accurately reflect-
ed Respondent's actual prior practice of crediting
employees with vacation hours after a full year's
work. 4 Applying this policy in other situations,
such as one where employees are absent from work
for extensive periods of time due to illness, one
would think that they likewise would be ineligible
for vacation benefits because they also did not
meet the requirement of a "full year's work." How-
ever, Ambrose testified that this type of situation
would require a managerial decision, and added, "if
somebody is off sick I am not going to jerk any-
body around, if they have the doctor's excuses to
supply." Based on Ambrose's testimony concerning
Respondent's practice, which was uncontradicted,
the Administrative Law Judge found, and the ma-
jority now agrees, that the General Counsel failed
to prove that Respondent's withholding of benefits
based on its exclusion of strike time from computa-
tion of those benefits was discriminatorily motivat-
ed; i.e., for the purpose of penalizing them for their
strike activities. I disagree for the following rea-
sons.
I Respondent's published vacation and sick policiec: provide for pay-
ment upon termination of any unused vacation time, and unused sick
leave at half credit, on condition that 2 weeks' notice is given to Respond-
ent.
' Ambrose's testimony was elicited by Respondent's counsel to explain
how Respondent's practice may have differed from Respondent's written
leave policies, which provide in pertinent part as follows:
V4 CA 710\NS
AN EMPLOYEE WHO HAS BEEN WITH THE COMPANY
FOR O.NE FULL YE.4R. SHALL QUALIFY FOR A PAID VA-
CATION IN THE MANNER SET FORTH BEI.OW:
One year - 40 hours vacation time .. [Emphasis supplied I
1145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from the "with the Company for one
full year" clause in Respondent's published leave
policy that vacation benefits are keyed to tenure of
employment rather than to a work requirement, and
thus the General Counsel, by introducing the writ-
ten leave policy into evidence, has established
prima facie that Dickman and Holmes met Re-
spondent's qualifications for vacation benefits. Re-
spondent's rebuttal evidence, consisting solely of
Ambrose's self-serving, albeit uncontradicted, state-
ment of Respondent's work requirement in prac-
tice, lacks corroboration or any showing that em-
ployees were even aware of such an alleged prac-
tice. In these circumstances, I find that the Re-
spondent has failed to overcome the presumption
that Respondent's published leave policy, which is
clear and unambiguous on its face, was and is the
policy in actuality. In my view, the record evi-
dence shows that Respondent's denial of benefits to
Dickman and Holmes was contrary to its own
policy and practice.
Further, even accepting the assumption that Re-
spondent's leave policy was predicated on work
rather than tenure, there is nonetheless a violation
on the basis of Respondent's own evidence. Thus
Ambrose's own testimony relating to absences due
to illness shows clearly that they would not cause a
loss of vacation pay, and thus establishes that Re-
spondent applied its alleged "work" requirement in
a disparate manner to the disadvantage of strikers.
See Russell Sportswear Corporation, 197 NLRB
1116, 1121 (1972).
I therefore conclude that Respondent's withhold-
ing of benefits-in consequence of the strike activi-
ties of Dickman and Holmes-was inherently de-
structive of their Section 7 right to engage in pro-
tected concerted activities, and thereby violated
Section 8(a)(1) of the Act, irrespective of Respond-
ent's intent.
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 parties had the oppor-
tunity to present their evidence, it has been decided
we violated the law in certain respects. We have
been ordered to post this notice. We intend to
carry out the order of the Board and abide by the
following:
The National Labor Relations Act gives em-
ployees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives whom they themselves select
To engage in activities together for pur-
poses of collective bargaining or to act to-
gether in order to seek improvement in their
wages, hours, working conditions, and other
terms and conditions of employment
To refrain from any and all such activi-
ties.
WE WILL NOT give job preference to strike
replacements over former strikers.
WE WILL NOT unlawfully hire new appli-
cants for employment before offering reinstate-
ment to employees who were on strike April-
July 1977 and who applied for reinstatement.
WE WILL NOT change the job of any non-
striker so as to discriminate against anyone
who was on strike during April-July 1977.
WE WILL NOT refuse to bargain collectively
in good faith with your Union, Chauffeurs,
Teamsters and Helpers Local Union No. 215,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as your exclusive bargain-
ing representative with regard to wages,
hours, working conditions, and other terms
and conditions of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any of you in the ex-
ercise of any and all of the rights described at
the top of this notice.
WE WILL offer each striker against whom
we have been found to have discriminated full
and immediate reinstatement to his or her
former job or, if that job no longer exists, to a
substantially equivalent position of employ-
ment, without prejudice to his or her seniority
or other rights and privileges previously en-
joyed; and WE WILL make each striker whole
for any loss of pay suffered as a result of the
discrimination against her or him, with inter-
est.
WE WILL, upon request, recognize and bar-
gain collectively with your Union which rep-
resents the employees in the appropriate unit
described below, with regard to your wages,
hours, working conditions, and other terms
and conditions of employment, and, if an un-
derstanding is reached, WE WILL embody such
understanding in a signed agreement if request-
ed. The appropriate bargaining unit is:
All service and maintenance employees, in-
cluding licensed practical nurses, nurses
aides, charge aides, orderlies, physical ther-
1146
LINCOLN HILLS NURSING HOME
apy aides, kitchen employees, activities em-
ployees, social designee, housekeeping em-
ployees, and laundry employees who are
employed by us at our Tell City, Indiana, fa-
cility, excluding all office clerical employ-
ees, all professional employees, all registered
nurses, director of nursing, assistant director
of nursing, the dietary manager, all guards,
and all supervisors as defined in the National
Labor Relations Act as amended.
LINCOLN HILLS NURSING HOME,
INC.; LEASEHOLDING COMPANY; AND
TELL CITY DISTRIBUTORS
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: This
case was heard before me in Tell City, Indiana, on June
20 and 21 and July 10 through 13, 1978.
Upon a charge filed by Chauffeurs, Teamsters and
Helpers Local Union No. 215, affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (hereinafter called the Union),
on November 16, 19 77 ,' a complaint and notice of hear-
ing was issued on January 31, 1978, by the Regional Di-
rector for Region 25 of the National Labor Relations
Board (hereinafter the Board) against Lincoln Hills Nurs-
ing Home, Inc.; Leaseholding Company; and Tell City
Distributors (hereinafter jointly called the Employer).
In essence, the complaint alleges that the Employer
discriminated against employees in violation of Section
8(a)(3) of the National Labor Relations Act, as amended
(hereinafter the Act), by having failed to reinstate strik-
ers at, and after, the conclusion of the strike in which
they participated. By virtue of oral amendments at the
hearing, the complaint alleges the Employer discriminat-
ed against strikers in other miscellaneous respects. Addi-
tionally, the complaint alleges that the Employer refused
to bargain collectively with the Union in good faith in
violation of Section 8(a)(5) of the Act by engaging in
dilatory bargaining tactics, by refusing to sign an agree-
ment reached between the Employer and Union, and by
unilaterally withdrawing recognition from the Union as
the collective-bargaining representative of an appropriate
unit of employees.
The Employer's timely amended answer to the com-
plaint, while admitting certain allegations, denies the
commission of any unfair labor practices. All issues were
fully litigated at the hearing; all parties were represented
by counsel and were afforded full opportunity to exam-
ine and cross-examine witnesses, to introduce evidence
pertinent to the issues, and to engage in oral argument.
Post-hearing briefs were received from counsel for the
General Counsel, counsel for the Employer, and the
' All dates are in 1977 unless stated to be otherwise.
Union's counsel. These briefs have been carefully consid-
ered.2
Upon the entire record, my observation of the wit-
nesses and their demeanor in the witness chair, and upon
substantial, reliable evidence, "considered along with the
consistency and inherent probability of testimony" (Uni-
versal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496
(1951)), 1 make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Each of the entities named as a joint employer has at
all times material herein been an Indiana corporation.
The Employer has at all times material maintained its
principal office and place of business at Tell City, Indi-
ana, where it has been, and is, engaged in the operation
of a nursing home providing and performing health care
and related services.
During the 12-month period immediately preceding
the issuance of the complaint, the Employer performed
services in excess of $100,000 gross value. During the
same period of time (a representative period), the Em-
ployer received goods valued in excess of $50,000 at its
Tell City, Indiana, location directly from States other
than Indiana.
The Employer admits, the record reflects, and I find
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Additionally, the Employer admitted, the record re-
flects, and I find that at all times material herein each of
the joint employers constitutes a single integrated busi-
ness enterprise, based on the admission that they operate
with common officers, ownership, directors, and opera-
tors; and because it is admitted that the directors and op-
erators formulate and administer a common labor rela-
tions policy for each of the joint employers which affects
their employees.
II. THE LABOR ORGANIZATION INVOLVED
The parties agree, the record reflects, and I find that
the Union has at all times material herein been a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The alleged unlawful conduct emanates from the
Union's efforts to negotiate a first-time collective-bar-
gaining agreement on behalf of the employees in an ap-
propriate bargaining unit.
On November 21, 1976, the Union was certified as the
collective-bargaining representative of all the Employer's
2 After the hearing closed counsel for the General Counsel submitted a
"Motion to Receive Exhibit After Hearing Closed." Inasmuch as this
motion is unopposed it is hereby granted. Accordingly, the document
marked as G.C. Exh. 68, attached to the motion, is received in evidence
and has been attached by me to the formal exhibits contained in the offi-
cial record. Also, the Employer later filed a motion to reopen the record
which is disposed of hereinbelow.
1147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
service and maintenance employees as a result of a
Board-conducted election. 3
The parties held their first bargaining session on Janu-
ary 4. Seven bargaining sessions were held between that
date and April 29 when a strike ensued. It is undisputed
that the strike was economic in character. The strike
continued until July 29. On that date the Union delivered
"an unconditional application for reinstatement" on
behalf of 80-named employees. The Union's letter as an
effective unconditional offer to return to work is unchal-
lenged. Indeed, the Employer's administrator, Roger
Ambrose (immediately upon receipt of the Union's
letter), established recall procedures. These procedures
included, inter alia, sending recall letters which, in salient
part, acknowledge that the Employer has communicated
with the employee "pursuant to your unconditional offer
to return to work .... " Upon the foregoing, I find the
Union's July 29 letter to constitute an unconditional offer
to return to work on behalf of the employees named in
it.
Uncontradicted testimony of Ambrose and Nina Le-
maire, the Employer's health services supervisor, reflects
that the Employer hired certain individuals during the
strike to perform the strikers' regular services. The un-
controverted testimony is to the effect that those em-
ployees hired during the course of the strike were explic-
itly informed they were being hired into permanent posi-
tions. As an example, each nurses aide hired on an on-
call basis 5 were advised they would be moved into per-
manent part-time positions and elevated into full-time
jobs as vacancies occurred. Based on the foregoing, I
find that each individual hired into a unit position while
the strike was in progress was a permanent replacement
for a striker.
Before the strike the Employer was operated as a
skilled/intermediate care facility of approximately 165
beds. Average occupancy was approximately 130 pa-
tients dispersed among four wings of the facility. A fifth
wing housed the Employer's administrative functions.
Ambrose became the Employer's administrator in Feb-
ruary 1977. He and Lemaire share responsibility for day-
to-day operations. Ambrose directs the activities of the
maintenance, laundry, food service, social activities, and
physical therapy sections. Lemaire has overall responsi-
bility for the operation of the Employer's health services.
The Employer admitted and, based upon the record I
find, that Ambrose and Lemaire are supervisors within
the meaning of the Act. Additionally, I find that attor-
3 Based on the record as a whole I find the following unit in which the
election had been conducted constitutes a unit appropriate for collective-
bargaining purposes within the meaning of Sec. 9(b) of the Act:
All service and maintenance employees, including licensed practical
nurses, nurses aides, charge aides, orderlies, physical therapy aides,
kitchen employees, activities employees, social designee, housekeep-
ing employees, and laundry employees of the Employer at its Tell
City, Indiana facility, excluding all office clerical employees, all pro-
fessional employees, all registered nurses, director of nursing, assist-
ant director of nursing, the dietary manager, all guards, and all su-
pervisors as defined in the Act.
'Implementation of the recall procedures will be discussed infra.
5 "On-call" employees are assigned no regular shift. Rather. such em-
ployees are called to work as needed and work at any time during the
Employer's round-the-clock operations.
ney Gerald R. Cureton was the Employer's attorney and
agent at all material times.
B. The Refusals To Bargain
The complaint alleges the Employer refused to bargain
in good faith in three separate ways: (1) By engaging in
dilatory tactics demonstrating general bad faith (com-
plaint par. 7(a)); (2) by refusing and failing to sign a con-
tract embodying the agreements reached during negotia-
tions (complaint par. 7(b)); and (3) by unilaterally with-
drawing recognition form the Union (complaint par.
7(c)).
1. Dilatory tactics
Although the complaint alleged that the Employer en-
gaged in general bad-faith bargaining since May 16, the
General Counsel disclaimed reliance on that date. In-
stead, the General Counsel's theory of violation is fo-
cused on the Employer's bargaining tactics within later
phases of negotiations. The General Counsel relies on the
Employer's "failure to keep the Union posted with
regard to the progress made in . . . [its] dealings with
the State [of Indiana], concerning the increase in the fi-
nancial assistance or contribution the State is making to
... [the Employer's] operation .... " The Employer
claimed it could not intelligently prepare a wage propos-
al because it needed to know the degree to which the
State would render financial assistance to its operations
and because it needed to evaluate the impact of the Fed-
eral Minimum Wage Law which had been pending for
congressional action during the course of the collective-
bargaining negotiations.
The last bargaining session involving in-person pres-
ence of the Union and the Employer negotiators oc-
curred on October 4. Since the inception of negotiations,
Cureton was the Employer's principal spokesman. Al-
though Union Attorney Anne C. Thomas attended the
meetings, the Union's principal spokesman was Charles
McDonald, its vice president-business representative.
Between October 4 and November 29, the parties
communicated with one another through a series of 11
letters and 5 telephone conversations, as will be de-
scribed in detail, infra, within the discussion of the al-
leged refusal to sign a contract. A review of the various
conversations and contents of the letters in evidence
shows that the collective-bargaining process was a con-
tinuing event although the parties did not personally
meet together. It is noted that none of the total of 16
communications contains a request by either party to
convene a meeting. Analysis of the documents and all
testimony concerning the telephone conversations shows
a dialogue of discussion upon subjects relevant to the ne-
gotiations. Whenever the Union questioned the Employ-
er's position, clarification was forthcoming. As will be
seen in greater depths hereinbelow, the communications
subsequent to November 3 reveal the principal subject
under consideration was the status of the wage proposal
and whether, in fact, there was in existence a complete
collective-bargaining agreement requiring the Employ-
er's signature.
1148
LINCOLN HILLS NURSING HOME
The General Counsel argues that the record demon-
strates the Employer withheld critical wage knowledge
in its possession from the Union in order to permit the
certification year to expire before the parties could come
to complete economic terms. I disagree. Initially, I note
that there is no evidence that the Union specifically re-
quested the information, the transmission of which it is
alleged was intentionally delayed. Next, the documentary
evidence relied on by the General Counsel (specifically a
letter dated November 21, Resp. Exh. 32) was the first
advice to the Employer that its requested rate change
had been approved. There is no evidence of the date the
Employer received the November 21 letter.
By letter dated November 17, Thomas submitted to
Cureton a wage proposal intended to be considered in
connection with the newly enacted Federal Minimum
Wage Law. Thomas requested Cureton to communicate
with the Union to arrange a meeting to discuss her pro-
posal. Neither Cureton nor any other Employer repre-
sentative responded to Thomas' November 17 letter.
The General Counsel's argument requires me to
impose an obligation upon the Employer to have ar-
ranged the requested meeting virtually simultaneous with
receipt of the November 21 letter advising of the rate
change approval. I am unwilling to do so. November 21,
1977, fell on the Monday immediately prior to Thanks-
giving. The letter was addressed to Ambrose at the Em-
ployer's facility. Assuming the letter had been immedi-
ately dispatched in the mails, it could not have been re-
ceived by Ambrose earlier than a day or two before
Thanksgiving. Because Cureton was the Employer's ne-
gotiating spokesman, Ambrose (in Tell City, Indiana)
surely would have had to communicate the information
contained in the letter to Cureton (in Philadelphia, Penn-
sylvania). The Employer's letter withdrawing recogni-
tion was written on the following Tuesday. In my view,
adoption of the General Counsel's contentions, in this
chronological framework, provides the Employer with
insufficient time (in the entire context as will be devel-
oped herein) for analysis of the Union's November 17
proposal in relation to the Employer's newly approved
rate change. In sum, I conclude it would be straining to
find the Employer delayed collective bargaining on the
grounds proposed by the General Counsel. I conclude
the totality of the Employer's conduct during the final
phases of negotiations does not meet the tests of illegality
set forth in N.L.R.B. v. Benne Katz, etc., d/b/a Williams-
burg Steel Products Co., 369 U.S. 736 (1962). According-
ly, I find that the facts do not support the allegations
contained in paragraph 7(a) of the complaint by a pre-
ponderance of the evidence.6
2. Refusal to sign
This allegation is predicated upon the General Coun-
sel's assertion the parties had reached agreement upon all
contract issues by virtue of a union ratification meeting
conducted on November 3. It is uncontested that the
' In any event to find a violation upon the dilatory conduct theor,
would not enhance the nature of the bargaining order remedy which I
shall provide, infia. to rectify what I shall find was an unlawful ith-
drawal (of recognition from the Union.
Employer was requested to sign a contract on November
4 and, at all times since, has refused to do so.
The Employer contends there had been no mutual
agreement upon wages at the time the union membership
took its ratification vote. Specifically, the Employer
argues the interjection of the new minimum wage legisla-
tion signed into law on November 1, to be effective Jan-
uary 1, 1978, effectively vitiated the Employer's then
pending wage proposal made on October 5. That Em-
ployer proposal is contained in a letter dated October 5
(to be discussed below) from Cureton to Thomas and
McDonald.
A synopsis of the negotiations is necessary to resolve
the instant issue. The evidence as to what transpired
during the negotiations was presented by Thomas and
Cureton,7 each of whom I credit. There was no material
difference between their versions of material facts, some
of which is supported by documentary evidence, admis-
sions and factual stipulations. The ultimate choice in
making my findings of fact throughout this Decision is
based, additionally, on my observation of the demeanor
of the witnesses, the weight of the respective evidence
provided by them, inherent probabilities and reasonable
inferences which may be drawn from the record as a
whole. Northridge Knitting Mills, Inc., 223 NLRB 230
(1976); Warren L. Rose Castings. Inc. d/b/a V & W Cast-
ings, 231 NLRB 912 (1977); see also Gold Standard En-
terprises, Inc., 234 NLRB 618 (1978).
Regarding wages, in bargaining sessions prior to Octo-
ber 4, the Union suggested that negotiations proceed
upon the then pending FLSA legislation which, accord-
ing to reports, was designed to raise the minimum wage
to $2.65 per hour. At that time the lowest paid unit em-
ployee was receiving $2.35 per hour. The Employer ex-
pressed a willingness to negotiate wages in accordance
with the minimum wage then actually in existence. It de-
clined, however, to accede to the Union's request, claim-
ing that the anticipated legislation was too speculative a
basis for bargaining purposes. Nonetheless, the Employer
agreed that if the parties successfully concluded a wage
package before the new minimum wage was enacted
then the negotiated wage agreement would automatically
be subject to reopening by operation of the savings
clause upon which there was no apparent dispute for in-
clusion in the contract. It is undisputed that by the con-
clusion of the October 5 bargaining session tentative
agreements had been reached upon substantially all con-
tract issues except wages. The events described below
comprise the relative activity based on the foregoing
backdrop.
October 4: The parties met. Cureton and Ambrose rep-
resented the Employer. Thomas and McDonald together
with several employees represented the Union.
Despite the Employer's position that it would negoti-
ate only on the current minimum wage, the Union had
7 At the time of their testimony. Cureton was not the attorney-of-
record fr the Employer, hut Thomas appeared as the Union's attorney
Under Board precedent, I find no impropriety in Thomas' appearance as
a witness Local Union No. 9 of the International Union of Operaling Engti-
neers (he Fountain Sand & Gravel Compatyl). 210 NL.RB 129, fn I
(1974)
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonetheless modified its wage proposal in accord with
the not-yet-enacted FLSA minimum wage. Thus, the
Union had proposed a 30-cent across-the-board increase
for all unit employees. Also, the Union proposed to
reopen wages for negotiations in each of the second and
third years of the proposed contract. The Union's pro-
posal would have brought the lowest paid employee
from $2.35 to $2.65 per hour. The Employer rejected
this proposal.
The Employer counterproposed by offering a 5-cent
increase in the third year. These increases were based on
the current wage rates enjoyed by unit employees. 8 In
connection with the pending minimum wage legislation,
Cureton maintained his position that, pursuant to the sav-
ings clause, wages would have to be reopened in the
event the new minimum wage rate would be higher than
that which was negotiated.
This negotiating session ended without agreement on
wages.
Immediately after the meeting Thomas and McDonald
conferred with the employee committee. According to
Thomas who was uncontradicted on this point, the union
committee decided to accept the Employer's wage offer.
They also agreed to submit the entire contract proposal
to the union membership. This "ratification" was con-
ducted in two sessions on November 3. The record does
not reveal the precise time that date had been selected.
October 5: Cureton called McDonald. Cureton orally
submitted an amended wage proposal on behalf of the
Employer. Thus, Cureton proposed across-the-board in-
creases of 5 cents in each of the first two contractual
years and 10 cents in the third year.
Also, on October 5, Cureton confirmed that telephone
conversation by letter to McDonald and Thomas. In sa-
lient part, the letter stated:
In an effort to conclude the negotiations with a col-
lective-bargaining agreement that is mutually satis-
factory we [the Employer] make the following
modification in our proposal:
(1) Across-the-board 5-cent raise during the first
year of the contract.
(2) Across-the-board 5-cent raise in the second
year of the contract.
(3) Across-the-board 10-cent raise in third year of
the contract.
(4) We will tie our uniform allowance provisions
to any employee earning 10 cents or less over the
then prevailing legal minimum wage.
October 10: Thomas and Cureton spoke on the tele-
phone. Cureton wrote Thomas on the same date in con-
firmation of that conversation.
After discussing matters relative to recall of strikers,
Cureton's October 10 letter contains clarification of the
Employer's oral and written revised wage proposal of
October 5. Cureton explained that the October 5 offer
constituted "an increase from ... [the Employer's] prior
"The 5 -cent increase proposed for the first year had already been im-
plemented by the Employer during the strike. The Employer's action is
not the subject of any unfair labor practice allegation herein.
offerings in the following respect: We had earlier with-
drawn the second year raise. We now offer a second
year raise of 5 cents. We then increased our third year
offer to 10 cents. Our increased uniform allowance is
self-explanatory."
As to the effect of the pending minimum wage legisla-
tion, Cureton noted that Thomas had inquired (during
their telephone conversation that day) how the Employ-
er's offer would be affected by the proposed $2.65 mini-
mum. Cureton responded that "the savings clause of the
contract provides that clauses which are superseded by
law are unenforceable. We would then renegotiate wage
rates in light of the changed minimum wage."
October 20: Thomas wrote Cureton questioning the
transfer of a "scab" kitchen employee into a laundry va-
cancy.
In this letter Thomas asked for contract language on
wages to assure the Union no one would suffer a reduc-
tion.
October 31: Cureton wrote to Thomas to respond to
her October 20 letter. After providing the Employer's
explanation for the kitchen-laundry transfer and claiming
the Employer acted properly in that connection, Cureton
responded to Thomas' concern that no one would suffer
a wage reduction. His letter states that no employee will
receive less than his or her current wage. Regarding
Thomas' request for wage language, Cureton responded,
"I believe that ... [the Employer's offer] regarding
wages is clear and concise. If you wish to submit addi-
tional language to clarify any difficulty you . . . [the
Union] have I will of course be receptive to such pro-
posals."
November 2: Thomas called Cureton. As previously in-
dicated I find Cureton and Thomas fully credible. The
conversation held this date is critical to resolution of the
issues. In many respects the versions provided by Cure-
ton and Thomas are mutually corroborative. I find Cure-
ton's account more comprehensive than Thomas'. Nei-
ther denied the version presented by the other. Upon the
foregoing, my description of the telephone conversation
is a composite of the testimony provided by those two
witnesses. Thus, I find the November 2 conversation oc-
curred as follows:9
First, there was a discussion concerning the kitchen-
laundry transfer.
As to the wage proposal, Thomas asked whether the
first year 5-cent increase was intended as an across-the-
board increase or whether the Employer was proposing
a separate rate for each classification. Cureton responded
(consistent with the language of his October 5 letter) that
it would be across the board.
Thomas then advised Cureton that President Carter
signed the minimum wage bill on November 1. Cureton
said he was unaware of that fact. He told her he would
look into it. Cureton's uncontradicted testimony is to the
effect that after his investigation he told Thomas he
would "give another proposal" (on wages).' ° Cureton
9 The General Counsel's brief concedes that "there is no substantial
conflict between Thomas' and Cureton's testimony . ." of their Novem-
ber 2 telephone conversation.
0 Thomas was not asked to deny this assertion by Cureton.
1150
LINCOLN HILLS NURSING HOME
also said he would check to find out how much of the
new minimum wage the Employer could pass to the
state.
Thomas asked Cureton whether he could conduct his
investigation and advise her whether he had any new
wage proposal the following day. Cureton responded
that he would make efforts to communicate with the
necessary people that very day but cautioned he might
not be able to reach them. Cureton said he was "not
sure" if he could reach the Employer's principals in time
to contact Thomas the next day. Additionally, he told
Thomas he wanted to read the new minimum wage law
and that would take some time. Finally, Cureton said, "I
can't get back to you tomorrow [November 3]. I'll try
Friday, but more probably Monday at the earliest. Even
then it would be tough."
There is no evidence that, during this conversation,
Thomas advised Cureton of the "Union ratification"
meeting scheduled for November 3. Also there is no evi-
dence that Cureton made any effort to communicate
with Thomas again on November 2 or at any time on
November 3.
November 3: The Union conducted its "ratification"
meeting. All tentative agreements were submitted to, and
approved by, the members in attendance. Also submitted
for their consideration was the Employer's October 5
wage proposal. This, too, was approved by the member-
ship.
November 4: Thomas called Cureton. Thomas told
Cureton, "You have a contract." He asked her to explain
that comment and Thomas advised that the membership
voted to ratify all the tentative agreements together with
the wage proposals then on the bargaining table. Thomas
testified that Cureton protested that he had advised her
during their November 2 telephone conversation that the
Employer's offer was no longer valid.
Thomas' narration of the November 4 telephone con-
versation was general and brief. Additionally, during
cross-examination, she acknowledged she did not recall
the entire conversation. Accordingly, the following find-
ings as to what was said during this conversation is de-
rived from Cureton's more direct, explicit, and uncontro-
verted recount.
Relative to what Thomas described as Cureton's pro-
test of the Union's action, Cureton said, "I was preparing
a new wage proposal and you knew that. What are the
wages in this new contract you have?" Thomas respond-
ed, "Your old wages." Cureton asked, "What about the
minimum wage law. That invalidated those wages we
were proposing and we are preparing a new proposal."
Thomas insisted, "The membership voted on it." Cureton
protested, "[T]he negotations are between the Company
and the Union-not between the Union and its members.
I am not bound by what the membership does." Thomas
insisted, "Well, we have a contract." Cureton retorted,
"I don't think we do until we get the wages straightened
out."
Thomas then suggested the savings clause would cure
any impediment. Cureton opined that a savings clause
could not be used to make lawful that which is unlawful
at the time of contract execution. Thomas observed that
the new law was not effective until January 1, 1978, and
insisted there was a contract between the parties. Cure-
ton accused the Union of engaging in a refusal to bar-
gain, commenting that he thought the Union's tactic was
a way to circumvent the Employer's previous rejections
of wage reopeners.
Cureton suggested that they call the situation a misun-
derstanding. Thomas said a contract was on its way to
him for the Employer's signature. Cureton said he would
treat the document sent by Thomas as a proposal for
wages and he would counterpropose.
By letter dated November 4, Thomas wrote Ambrose
that on November 3 "the Employer's final offer was ac-
cepted in a secret ballot vote." Enclosed were copies of
the agreement which the Union prepared. Thomas re-
quested Ambrose review the document, and obtain the
necessary Employer signatures. On the same day
Thomas wrote Cureton forwarding a copy of Thomas'
letter to Ambrose together with a copy of the agreement
for Cureton's review. In this letter Thomas advised Cur-
eton that "the Union proposes an effective date of No-
vember 3, 1977 and a termination date of November 2,
1970." She asked Cureton to insert the dates on the con-
tract.
Also, Cureton wrote Thomas and McDonald on No-
vember 4. Cureton confirmed his November 4 telephone
conversation with Thomas "regarding the effect of the
minimum wage increase just signed into effect." Cureton
advised that the Employer's wage offer "is invalidated
by the new minimum wage law. We are, therefore, re-
evaluating our financial situation in this light, and will
have a new proposal for you in the next few days." Cur-
eton also agreed to schedule a meeting with the Union as
soon as the Employer had prepared its new proposal.
November 8: Thomas wrote Cureton. First referring to
the November 4 telephone conversation between those
two attorneys, Thomas claimed Cureton "did not with-
draw the [October 5 offer] that was on the table nor did
. . .[he] tell [Thomas]" that the Employer would be
making new proposals. Thomas stated it was her recol-
lection that Cureton advised her he was not aware the
minimum wage law had been signed and that he "would
have to verify that fact." Further, the letter comments
"only after [Cureton] learned that the employees had ac-
cepted your offer did you state that your final offer was
no longer on the table."
Thomas also claimed that, although the Union had
raised the "minimum wage contingency" during negotia-
tions, "the Company chose not to deal with that issue."
Thomas asserted that the documents forwarded to Cure-
ton on November 4 "was not a proposal but was, in-
stead, the agreement reached between the parties, based
upon the Company's final economic offer of October 5,
1977." Thomas' letter ended inviting Cureton to commu-
nicate with her regarding any questions he may have and
requesting him to obtain the Employer's signature on the
contracts.
November 9: Cureton wrote Thomas responding to her
November 4 letter to him. He acknowledged receipt of a
copy of the "contract." After expressing his consterna-
tion at the events of the preceding week, Cureton stated
that he was "in the process of preparing a new wage
1151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposal for the Union." Cureton wrote that Thomas
knew this on November 2 "when [Cureton] told
[Thomas] so" during their November 2 telephone con-
versation. This letter reiterates that Cureton "made it
clear that the prior proposals had become invalid as a
result of the new law." Further, Cureton wrote he could
not understand why Thomas had presented the Union
membership with an "outdated, invalid" wage proposal.
He surmised that the Union's motivation was to "use the
new minimum wage law as a lever to reopen all wages
immediately upon signing the contract." Cureton com-
mented that he "would have no problem with this if it
were done prior to enactment of the new minimum wage
law. In fact, I [Cureton] alluded to this in a letter prior
to enactment of the minimum wage law. It is impossible
to use a savings clause for the sole purpose of a wage
reopener. An illegal wage rate is just that, and a savings
clause will not cure it." Cureton contended that the
"contract" forwarded by Thomas contains "no lawful
wage rate ab inito. Hence, there can be no agreement."
Next, Cureton's November 9 letter indicates that the
Employer considers the wage issue "vitally important."
He indicated that the new minimum wage "may have
spillover effects into other economic aspects of the con-
tract. .. ."
Cureton ended this letter repeating he would treat the
document forwarded by Thomas as a counterproposal.
He requested that the Union now supply him "with a
wage proposal that complies with the new minimum
wage law."
November 10: Cureton wrote Thomas advising her that
he had completed his review of the document forwarded
to him on November 4. He advised that all matters con-
tained in the document were satisfactory to the Employ-
er, except for wages. Cureton wrote "since wages are
the heart of any collective-bargaining . . . I feel it is im-
perative that we resolve the economic issues in light of
the new minimum wage, and that we do so as soon as
possible."
Cureton wrote that the Employer is preparing its wage
proposal. He outlined, in some detail, the Employer's
concern that Indiana would not absorb the entire finan-
cial impact of the minimum wage law. Thus, he advised
the Employer currently was undertaking a cost analysis
of the new minimum wage.
Cureton asked Thomas to have the Union supply him
with a new wage proposal "as soon as possible. .... "
November 17: Thomas wrote Cureton in response to
Cureton's November 9 and 10 letters.
First, Thomas noted the effective date of the new
minimum wage law is January 1, 1978. Thus, Thomas
protested there is no substance to Cureton's claim that
the wages contained in the Union's November 4 "con-
tract" are void ab initio. Thomas claimed that those
wages now must be "renegotiated under the savings
clause prior to January 1, 1978."
Next, Thomas' November 17 letter responded to Cure-
ton's recent request for a new wage proposal by setting
forth two alternative wage proposals. The first proposal
called for an across-the-board 30-cent increase over the
employees' current wages to be "effective immediately,
with wage reopeners in 1978 and 1979." The alternative
proposal requested an immediate 30-cent increase for all
employees, a 25-cent increase "effective November 4,
1978," and a 20-cent increase "effective November 4,
1979."
Finally, Thomas reiterated her position that the parties
"have reached an agreement and . . . have a contract."
Thomas' letter ended by requesting Cureton to commu-
nicate with her or McDonald to arrange a meeting. Also
Thomas requested the Employer return signed copies of
the "contract" to her.
As previously noted, the Thanksgiving holiday was
observed during the very next week after this final letter
from Thomas to Cureton.
November 29: Cureton wrote Thomas. This letter com-
pletes the sequence of events relative to the collective
bargaining between the parties. Additionally, it forms the
basis of the alleged unlawful withdrawal of recognition.
Thus, the full text of the letter appears, as follows:
Dear Ms. Thomas:
I bring to your attention the enclosed documents we
recently received in which a substantial number of
our employees have declared their desire to no
longer be represented by Local 215. Because this
"petition" is signed by a majority of our employees,
I am in a difficult position of having to withdraw
recognition from Local 215 until this matter is re-
solved. As you know, it would be an unfair labor
practice for me to continue negotiations with a
union that represents only a minority of bargaining
unit employees. I suggest that any doubt you have
concerning your status could best be resolved by
your filing of an appropriate petition with the Na-
tional Labor Relations Board.
Please call me if you have any questions. [Emphasis
supplied.]
After receiving Cureton's november 29 letter, the
Union made no effort to contact the Employer for fur-
ther negotiations, and no further bargaining sessions
were held.
The General Counsel argues that the Employer's wage
proposal contained in Cureton's October 5 letter re-
mained a valid offer which the Union could accept, as it
did, during its ratification meeting of November 3. The
General Counsel theorizes that Thomas' advice, on No-
vember 2, to Cureton that the new minimum wage law
had been signed and her request for the Employer to
submit a proposal based on it, did not affect the viability
of the Employer's October 5 wage offer. Additionally,
the General Counsel asserts that the record contains no
evidence of any conditions imposed by the Employer
upon its October 5 offer.
The Employer contends, in effect, that no valid wage
offer existed after November 1 because of the interven-
tion of the FLSA amendments and, also, that there was
no mutuality of agreement upon the terms ratified by the
union membership.
The question presented is whether there is a contract
between the parties. If one existed by virtue of the
Union's ratification and subsequent oral and written
1152
LINCOLN HILLS NURSING HOME
advice to the Employer to that effect, then the General
Counsel should prevail. H. J. Heinz Company v.
N.L.R.B., 311 U.S. 514 (1941). If not, then this allegation
fails. The Board has no authority to order an Employer
to execute a contract to which it has not assented. H. K.
Porter Co., Inc., etc. v. N.L.R.B., 397 U.S. 99 (1970).
I find that there was no effective contract. Resolution
of the issue depends upon analysis of the critical Novem-
ber 2 telephone conversation between Cureton and
Thomas. During that conversation, Cureton told Thomas
he would confirm the signing of the minimum wage law
and give another proposal based on it. Accordingly,
what was, to that point, an indisputably clear wage offer
of October 5 became equivocal. Viewed in the context of
the Employer's previously announced adamant position
in opposition to culminating an agreement containing
wage reopeners, I conclude that there was no wage pro-
posal from the Employer in existence on the date the
membership voted on the contract. Thomas had full
knowledge that what was presented to the membership
was incomplete in substantial and material terms; namely,
wages. At best, what was presented to the membership
on November 3 was a wage proposal which could be ef-
fective only until January 1, 1978, the effective date of
the new minimum wage law. It stretches credulity and
imagination beyond reasonable bounds to hold that the
Employer had intended its October 5 wage proposal to
be fragmented in such a manner. It is clear that the Em-
ployer had intended its proposal to settle the wage issue
for the duration of the contract. Based on the Employ-
er's position throughout earlier negotiations, only the op-
eration of the FLSA amendments after a contract had
been signed would have subjected wages to further ne-
gotiations. The Union's actions seeking the Employer's
signature after the wage law had been signed was not an
acceptance within the terms of the Employer's proposal
(offer). In contract formation, there must be a valid offer
and acceptance, since these are necessary in order that
mutual assent may exist, "[a]n offer must be definite and
certain" (17 Am. Jur. 2d 368.) "until the offer is accepted
both parties have not assented, or, in the figurative lan-
guage frequently used by the courts, their minds have
not met." (17 Am. Jur. 2d 378.) "The rule is fundamental
that an acceptance must comply with the terms of the
offer-that is, in order to form a contract, the offer and
acceptance must express assent to one and the same
thing, and there must be no substantial or material vari-
ance between them." (17 Am. Jur. 2d 400.)
The Board consistently finds the parties must come to
a meeting of the minds before it will impose an obliga-
tion to sign collective-bargaining agreements. Sunshine
Hotels Limited d/b/a Outrigger-Maui, 226 NLRB 31
(1976); Georgia Roofing & Sheetmetal Company, 217
NLRB 115 (1975); Printing Industries of Northern Cali-
fornia, 204 NLRB 329, 332 (1973), and cases cited there-
in.
On facts strikingly similar and analogous to the instant
case, the Board affirmed a trial examiner's conclusion
that an employer did not refuse to bargain by failing to
sign a contract in Service Equipment Company, 198
NLRB 266, 268 (1972). There, the employer's proposal
was based, in relevant part, upon the expiration of a
wage freeze (imposed by the Federal Government) by a
certain date. The Employer in Service Equipment was
confronted with a union's "acceptance" of the employ-
er's offer which had been made subject to resolution of
the then-existing legal impediments to operation of the
contemplated contract provisions. The employer con-
tended it required further study of the Federal Wage
Regulations. The trial examiner concluded that the em-
ployer was entitled to consider the full impact of the
Federal regulations upon the proposal. Apparently, the
request for time to undertake such consideration was
deemed to be sufficient to find that no valid offer existed.
I find that the Service Equipment case buttresses my con-
clusion that there was no wage offer pending upon
which the Union could act on November 3.
Assuming, arguendo, that a valid offer existed, I none-
theless find the Union's ratification to be an ineffective
acceptance. The only evidence presented before me to
show what was presented to the union membership is the
totality of the Employer's October 5 wage proposal.
That proposal covered terms for a 3-year period. As a
result of the Cureton-Thomas November 2 telephone
conversation, it is eminently clear that only the portion
of the October 5 offer providing wages up to January 1,
1978, was amenable to acceptance. Despite this, the em-
ployees apparently voted on what they thought was a 3-
year arrangement. Indisputably, this situation created a
substantial variation between the offer and acceptance.
As seen from the above-cited authorities, the acceptance
must be in the identical terms of the offer. Thus, the rati-
fication vote is negated as a valid acceptance.
In making my conclusions herein, I have also consid-
ered the precipitous nature of the Union's actions. How-
ever, I do not attach to them the sinister significance
suggested by the Employer. I have not based any of my
conclusions thereon. I conclude the Union's failure to ap-
prise the Employer of the pending ratification meeting
and its timing to be irrelevant and recriminatory. Tactics
of recrimination do not comprise a valid defense to alle-
gations to unfair labor practices. Anderson Lithograph
Company, Inc. and Jeffries Banknote Company, 124
NLRB 920 (1959). No recourse to those activities is nec-
essary because I simply find that other facts demonstrate
no contract existed.
Based upon all the foregoing, I conclude that the
record does not establish the requisite elements of a cor-
tract by a preponderance of the evidence. Thus, I find
the allegations of paragraph 7(b) of the complaint have
no merit. ' t
3. Withdrawal of recognition
The Employer by Cureton's November 29 letter with-
drew recognition from the Union. This was 3 days after
the end of the certification year. The withdrawal is al-
leged to constitute an unlawful refusal to bargain in vio-
lation of Section 8(a)(5) of the Act in paragraph 7(c) of
the complaint.
" In view of this finding, and the reasons for it, I consider it unneces-
sary to assess the Employer's contention that its wage offer was void ab
inrl o.
1153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The applicable legal principles have been accurately
summarized in the General Counsel's brief. The General
Counsel contends that the Union's certification creates a
presumption of a continuing majority status. It is ac-
knowledged this presumption is rebuttable under the
rationale of Terrell Machine Company, 173 NLRB 1480,
1480-81 (1969). Thus, in Terrell, the Board stated:
It is well settled that a certified union, upon expi-
ration of the first year following its certification,
enjoys the rebuttable presumption that its majority
representative status continues. This presumption is
designed to promote stability in collective bargain-
ing relationships without impairing the free choice
of employees. Accordingly, once the presumption is
shown to be operative, a prima facie case is estab-
lished that an employer is obligated to bargain and
that its refusal to do so would be unlawful. The
prima facie case may be rebutted if the employer af-
firmatively establishes either (1) that at the time of
the refusal the Union, in fact, no longer enjoyed
majority representative status; or (2) that the em-
ployer's refusal was predicated on a good-faith and
reasonably grounded doubt of the union's continued
majority status. As to the second of these, i.e.,
"good faith doubt," two prerequisites for sustaining
the defense are that the asserted doubt must be
based on objective considerations and it must not
have been advanced for the purpose of gaining time
in which to undermine the Union.
These rules were reaffirmed by the Board in Dalewood
Rehabilitation Hospital, Inc., d/b/a Golden State rehabili-
tation Convalescent Center, 224 NLRB 1618 (1976).
The Employer herein contends it had a good-faith
doubt of the Union's majority status. The Employer
argues it has established such doubt by undisputed evi-
dence in the form of Cureton's November 29 letter. I dis-
agree.
In salient part, that letter asserts12 that the Employer
received a "petition" in which a substantial number of
employees signified their desire to no longer be repre-
sented by the Union. Additionally, the letter contains
Cureton's assertion that the "petition" is signed by a ma-
jority of the unit employees. The enclosures to Cureton's
letter purportedly contain the signatures of a majority of
unit employees who signify their desire to be no longer
represented by the Union. Although the letter was of-
fered in evidence by the General Counsel, and was re-
ceived, no party produced the enclosures (the "petition")
during the course of the hearing.
Instead, 7 days after receipt of the Employer's brief,' 3
I received a motion to reopen record, dated October 19,
1978, from the Employer's counsel. That motion prays
the record be reopened to receive the enclosures to Cur-
eton's November 29, 1977, letter. The bases of the
motion may be summarized as a mistake and an inadver-
tence. On October 27, I issued an order to show cause
2 See full text of the letter, supra.
'" The hearing closed on July 14, 1978. Briefs initially were due on
August 17. The due date was subsequently extended to September 29 and
later to October 16.
why the Employer's motion should not be granted.
Timely responses and oppositions to the motion were
filed by counsel for the General Counsel and for the
Union.
The motion to reopen the record is hereby denied for
the following reasons.
The Employer must establish, on the basis of objective
facts, it had a reasonable doubt as to the Union's continu-
ing majority status. The burden of presenting such facts
rests upon the party desiring to rebut the presumption of
continuing majority. Barrington Plaza and Tragniew. Inc.,
185 NLRB 962 (1970), enforcement denied 470 F.2d 669
(9th Cir.) The assertion of doubt must be "supported by
a showing of objective considerations providing reason-
able grounds for a belief that a majority of employees no
longer desire Union representation." Nu-Southern Dyeing
& Finishing, Inc., and Henderson Combing Co., 179
NLRB 573 (1969), and cases cited therein. The evidence
of doubt must be "clear and convincing." Ref-Chem
Company and El Paso Products Co., Individually and as
Co-Employer, 169 NLRB 376 (1968). The test of whether
an Employer has met its burden of proof "requires more
than mere evidence of the Employer's subjective state of
mind." Sahara-Tahoe Corporation, d/b/a Sahara-Tahoe
Hotel, 229 NLRB 1094 (1977), and cases cited therein.
Viewed in a posture most favorable to the Employer,
Cureton's November 29 letter contains but self-serving
declarations. The above-cited authority makes it clear
that the General Counsel is not obligated to refute the
accuracy of the conclusions set forth by Cureton;
namely, that the "petition" expressed sentiment from a
majority of employees against representation by the
Union. The burden of proof squarely is upon the Em-
ployer.
The lesson derived from the above cases creates an ob-
ligation upon me to adjudge the parties' rights and obli-
gations independently of the private preceptions of those
parties. I would be giving mere perfunctory attention to
the issue if I were to attach dispositive probative weight
to Cureton's unchallenged conclusions. My analysis
would be shallow and unfounded.
The motion to reopen the record is designed to pro-
vide the predicate by which I might fulfill my analytical
imperative to assess the validity of the Employer's assert-
ed good-faith doubt of the Union's majority standing.
Seemingly, the Employer is prejudiced by the failure to
have its proffered evidence contained in the record for
consideration. My careful deliberation, however, results
in a contrary conclusion.
In its motion, the Employer cites decisional precedent
for the proposition that motions of this type have been
granted. I find those cases distinguishable and inapposite.
Thus, in Mademoiselle Shoppe, Inc., 199 NLRB 983, 984
(1972), a motion to reopen was granted to cure an appar-
ent procedural aspect of the rejection of a certain exhibit
offered at the hearing. Herein, the record does not at all
reflect the documents in question were intended to be of-
fered in evidence. In International Brotherhood Electrical
Workers, AFL-CIO, Local 648 (Foothill Electrical Corpo-
ration), 182 NLRB 66, 69 (1970), a record was reopened
to receive an exhibit which was explanatory in nature.
1154
LINCOLN HILLS NURSING HOME
Thus, the post-hearing offer simply supplemented the
evidence already received. Additionally, the IBEW case
clearly showed an intention to have offered the late re-
ceived evidence during the hearing. In Vangas, Inc.,
d/b/a Tahoe Vangas, 209 NLRB 961, fn. (1974), the re-
opening was to receive in evidence portions of an affida-
vit read into the record at the hearing. This post-hearing
evidence was to clarify the transcript. The record was
reopened in Bricklayers Local Union No. I to receive an
exhibit identified during the hearing but inadvertently
not offered. Finally, in Ruttmann Construction Company.
etc., 191 NLRB 701, fn. 4 (1971), evidence was received
after the hearing closed for the purpose of clarification.
In Ruttmann, the evidence was received without objec-
tion from the Board's General Counsel.
If granted, the present motion would not clarify evi-
dence already submitted by the Employer in support of
its burden to show the Union lacked majority support.
The motion does not rectify any inadvertence apparent
on the record. I find no support in the record for saying
that the Employer signified an intention to adduce the
evidence now sought to be proffered. Thus, the instant
matter does not fall within the category of cases in
which post-hearing evidence was received to cure an in-
advertence.
In effect, what is sought by the Employer is an oppor-
tunity to produce substantive evidence to sustain its
burden of proof of the defense. The documents offered
are ingredients of the Employer's prima facie case. As
such, I find disposition of the motion is more aptly gov-
erned by that line of cases which, in essence, bind liti-
gants by their conduct at the hearing, and by those cases
which interpret Section 102.48(d)(1) of the Board's Rules
and Regulations, Series 8, as amended.
Recently, the Board observed, in California Pacific
Signs, Inc., 233 NLRB 450 (1977):
Section 102.48(d)(1) . . . permits a party to a Board
proceeding, because of extraordinary circumstances,
to move for a reopening of the record. It further
provides, however, that only newly discovered evi-
dence, evidence which has become available since
the close of the hearing, or evidence which the
Board believes should have been taken at the hear-
ing will be taken at any further hearing....
There is no contention before me that the evidence the
Employer wishes to introduce was not available during
the course of the hearing. Indeed, the record shows
without doubt that it was available at all times, and even
had been in the Employer's possession. Thus, there is no
justification for reopening the record based on the first
stated condition of "newly discovered evidence."
Similarly, there is no foundation to receive the post-
hearing evidence herein pursuant to the condition that it
constitutes "evidence which the Board believes should
have been taken at the hearing .... " In making this
conclusion, I have considered two things. First, as al-
ready noted, the record contains no discourse or argu-
ment by which the Employer signified any intention to
offer the exhibits now proffered. It could have insisted
that the General Counsel offer the enclosures at the time
he offered the November 29 letter-but did not do so.
Later, in presentation of the Employer's defense evi-
dence, there is no hint of anything on which it now
could be concluded the "petition" should have been
taken at the hearing. Moreover, the elapsed time be-
tween the close of the hearing and mailing of the motion
to reopen-slightly over 3 months-manifestly supports
an inference that the Employer had not intended to offer
them prior to the hearing's close. In this chronological
context, it would be folly for me to conclude there is a
valid basis for concluding the proffered evidence "should
have been taken at the hearing." It is clear, in any event,
that the second condition permitting reopening relates to
factual situations attendant in cases such as Bricklayers
Local Union No. , supra.
In General Mercantile & Hardware Co., 191 NLRB 20,
fn. 1 (1971), the Board said:
[T]here is no explanation offered as to why such
documents were not available at the time of hear-
ing. Accordingly, absent a showing that these docu-
ments are newly discovered or previously unavail-
able evidence . . . [the Board denied the respond-
ent's motion to reopen the record to receive its
business records]. 4
I have considered the Employer's attempt to explain
why the "petition" had not been offered, but find it un-
persuasive. The Employer contends in an off-the-record
conversation the General Counsel said he did not have
the "petition" in his possession, but assumed responsibili-
ty for later furnishing the documents. In opposing the in-
stant motion, the General Counsel disputes the accuracy
of this assertion. I find it unnecessary to resolve this dis-
pute because it is clear that the Employer took no action
to make its assertion until long after having received its
copy of the official transcript. In any event, even if the
General Counsel did say what is ascribed to him, that
fact does not relieve the Employer of its burden of
proof. Inasmuch as the General Counsel's alleged com-
mitment is supposed to have been made before the intro-
duction of the November 29 letter in evidence, the Em-
ployer had more than ample time to take corrective
action.
Upon all the foregoing, I find no legally compelling
reason to grant the Employer's motion to reopen
record. 5
Having denied the motion to reopen, on the state of
this record, I conclude that there is in evidence but a
bare, unsupported opinion of the Union's loss of majority
status. The evidence, specifically, is Cureton's November
29 letter (G.C. Exh. 15). In my view, this evidence is not
sufficiently competent or probative to establish that any
employee was opposed to representation by the Union.
" For similar ruling, see Richard. Robin and Colin Williams. copartners
d/b/a Williams Brothers .4iphalr Paving Company. 126 NLRB 388. fn. I
(196)). ,4rmcor Indusries. Inc.. 217 NLRB 358. fn. 3 (1975).
" The Employer's motion to reopen record, the General Counsel's op-
position, and the Union's opposition are hereby received in evidence as
Emp. Exh. 35 G C. Exh. 69. and Union Exh 1. respectively
'" There is no evidence that any representation petition was filed after
the end of the certification year. Even if one had been filed. that fact
would have little probative value United States Gpsum Compar. 157
NLRB 652 (1966)
1155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon all the foregoing, I find there is insufficient evi-
dence to show that the withdrawal of recognition was
based on the requisite objective considerations to relieve
the Employer of its recognitional duties. Accordingly, I
find the presumption of continuing majority has not been
rebutted by the Employer and, by having withdrawn
recognition, the Employer violated Section 8(a)(5) and
(1) of the Act as alleged. "
Assuming, arguendo, I were to have granted the
motion to reopen and received the "petition" into evi-
dence, my ultimate conclusions and finding of a violation
based on the withdrawal of recognition would be unaf-
fected. The petition, standing alone (or when supported
by Cureton's opinion stated in his November 29 letter) is
not sufficiently probative to demonstrate that the Union
lost its majority status. First, the signatures on the "peti-
tion" have not been authenticated. This defect might be
cured by reopening the record for additional evidence.
However, no useful purpose would be served by that un-
dertaking. I shall find, infra, that the Employer did not
accord all the former strikers their full rights as econom-
ic strikers. Those findings entitle certain strikers, not all
of whom are presently identifiable (as will be shown
hereinbelow), to be considered as unit employees when
recognition was withdrawn. s Thus, the discriminatees
are to be counted in computation of the numerical size of
the unit. Without a precise count indicating unit size, it
would be virtually impossible to declare the signatures
presented in the "petition" (even if fully authenticated)
comprise a majority of unit employees. There simply
would exist herein no numerical standard against which
the Employer's proof can be tested.
C. The Discrimination
In paragraph 5 of the complaint, as amended at the
hearing, it is alleged that the Employer discriminated
against the strikers in a variety of ways. Thus, para-
graphs 5(b) and (c) as amended allege that the Employer
failed to reinstate 51 named economic strikers 9 after the
Union submitted its July 29 unconditional offer to return
to work on their behalf. Thirty-nine of the alleged dis-
criminatees held prestrike positions as nurses. The other
12 strikers formerly were employed in a variety of other
departments.
Additionally, paragraph 5(d) of the complaint alleges
that the Employer unlawfully failed to rehire certain
named strikers. Further, it is alleged in subparagraph (e)
that W. L. Cronin was constructively discharged on or
about August 27, in subparagraph (f) that M. J. Holmes
unlawfully was denied vacation and/or sick days in early
April, in subparagraph (g) that R. Dickman was dis-
criminatorily denied vacation days in September, and in
subparagraph (h) that D. Stephens was improperly as-
signed to more arduous work.20
'7 See Peoples Gas System. Inc., 238 NLRB 1008 (1978).
' Pacific Tile and Porcelain Company, 137 NLRB 1358, 1365-66 (1962):
Sioux City Brewing Company, 85 NLRB 1164. 1166 (1949).
'9 The economic character of the strike is unrefuted.
20 The discriminatees named in pars. 5(e) to (h) are also named in
subpar. (b).
These allegations will be considered seriatum.
Ambrose testified regarding recall procedures. I fully
credit him in this regard because he appeared direct and
forthright, was corroborated by documentary evidence,
and because the General Counsel apparently has accept-
ed Ambrose's description of those procedures. Ambrose
testified that within a few days after receiving the strik-
ers' offer to return to work he consulted with the Em-
ployer's attorney. It was arranged between them21 to es-
tablish a recall list. The list contained the names of all
strikers, separately arranged by their prestrike job, rank-
ing them in seniority order. Ambrose personally imple-
mented the recall procedure. Health Services Supervisor
Lemaire advised him of specific job requirements. If an
immediate replacement was needed, Ambrose telephoned
the strikers on the recall list in the order in which they
appeared. If the need to fill a vacancy was not urgent,
Ambrose wrote letters offering recall in the same order
and would wait for a response. If a striker responding to
a recall notice advised Ambrose of some inability to
accept the position offered but desired to be maintained
on the recall list, Ambrose honored such requests. Those
strikers who did not at all respond to recall letters were
removed from the recall list. Those strikers who told
Ambrose during the course of telephone calls that they
did not wish to return to work for the Employer, also,
were removed from the list. When Ambrose could not
communicate with a striker by telephone because her
phone was not answered when he called, he maintained
that striker's name on the list. Additionally, Ambrose
kept those strikers on the list who told him they needed
more notice to report or when they advised they could
not report for any other reason but still desired reinstate-
ment.
When the recall list was exhausted by Ambrose, the
nursing staff was hired by Lemaire who had performed
this function prior to the inception of the recall list. Le-
maire credibly, and without contradiction, testified that
she had no formal hiring procedures. She stated that
openings commonly occurred suddenly. Because of this,
she virtually hired the first available applicant who may
have been on the Employer's premises at the time a va-
cancy arose. If there were no applicants present, Lemaire
referred to a file containing approximately 60 applica-
tions. Lemaire then telephoned those applicants. If the
first or second effort to call such applicants failed, Le-
maire destroyed the application.
Numerous employees testified as to what occurred to
them during the operation of the recall list. I find the
composite of their testimony substantially corrborates the
above-described procedures.
1. The general refusal to recall-complaint
paragraphs 5(b) and (c)
As noted, the Employer's contention that those indi-
viduals hired during the strike were permanent replace-
ments for strikers is unchallenged. Also, it is undisputed
the strikers are to be considered economic strikers.
21 The Union was not involved.
1156
LINCOLN HILLS NURSING HOME
The parties are in agreement upon the basic legal prin-
ciples governing the rights of the strikers in this case.
Under The Laidlaw Corporation, 171 NLRB 1366 (1968),
enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S.
920 (1970), case economic strikers who make an uncondi-
tional application are entitled to reinstatement to their
former or substantially equivalent jobs even if they had
been replaced, and that right requires the employer to
seek out the former striker to give the striker priority
over new applicants for any comparable job that opens
by virtue of the replacement's departure. This right to
reinstatement is not without limit. Thus, the entitlement
exists "unless they [the strikers] have in the meantime ac-
quired regular and substantially equivalent employment,
or the employer can sustain his burden of proof that the
failure to offer full reinstatement was for legitimate and
substantial business reasons." 171 NLRB at 1369-70.
As to the nursing staff, the General Counsel pro-
pounds several theories of violation. In sum, those the-
ories attack the propriety of the Employer's operation of
the recall list.
a. Licensed practical nurses and general practical
nurses
Five licensed practical nurses and two general practi-
cal nurses were employed when the strike started. All
went on strike. None of these yet had been recalled by
the hearing date.
The Employer defends its failure to recall LPNs and
GPNs on economic grounds. Specifically, the Employer
contends those positions had been eliminated as a result
of a change in the Employer's operations. Accordingly,
the Employer urges that it satisfied its burden to show a
substantial and legitimate justification for its failure to
offer reinstatement (N.L.R.B. v. Fleetwood Trailer Co..
Inc., 389 U.S. 375 (1967)), to those striker classifications.
The General Counsel argues that defense is a sham and
that, in any event, the LPNs and GPNs should have
been recalled to "any available job for which the striker
is qualified .... "
Ambrose became the Employer's administrator on
February 1, 1977. Around that time the Employer's
board of directors decided to decertify its operation as
"skilled" and convert it entirely to an "intermediate"
care facility. Whereas "skilled" operation required li-
censed nursing personnel in constant attendance and
nurses aides cannot administer medication, the "interme-
diate" type operation does not require the presence of li-
censed nurses and medication may be administered by
aides.
On January 27, Cureton wrote Thomas advising the
Employer was considering elimination of the skilled care
operation. He indicated that "would mean the elimina-
tion of two LPN positions...." Cureton requested ne-
gotiations with the Union concerning this matter. Corre-
spondence in evidence reveals that the Union opposed
such a plan.22 On March 1, the Employer officially de-
*2 There is no allegation in the instant complaint that the change from
skilled to intermediate care constituted an unlasful refusal to bargain.
certified itself as a skilled care facility. Also in evidence
is a series of correspondence between Ambrose and the
Indiana State Board of Health. These documents confirm
Ambrose's testimony regarding the Employer's intention
to alter its operations. Some of the correspondence indi-
cates that personnel other than LPNs and GPNs would
be required to undergo a training course before certifica-
tion for administering medication. Additionally, those in-
dividuals taking the course were required to pass a test
provided by the State. That test was administered to ap-
proximately 10 employees on November 19.
There is no evidence that any LPN or GPN had been
laid off prior to the strike. Implementation of the March
I decertification was delayed because the Employer had
received a notice of picketing pursuant to Section 8(g) of
the Act. Presumably, during the strike charge aides sub-
stituted for absent licensed personnel. It is undenied that
after the strike, also, charge aides were permitted to ad-
minister medication in violation of the state law which,
apparently, was not strictly enforced.
The General Counsel implicitly contends that the Em-
ployer penalized the striking LPNs and GPNs for having
gone on strike. The General Counsel observes that the
implementation of the decision to operate as an interme-
diate care facility was not instituted until after the strike.
He ignores the unrefuted testimony of Ambrose that the
delay was caused by receipt of the Section 8(g) notice.
He, in effect, urges I should discount the Employer's de-
fense because it is unreasonable to believe that the Em-
ployer would continue to flaunt the state law unless such
action was motivated by an intent unlawful under the
Act.
Under other circumstances, I would agree with the
General Counsel. However, there are two factors herein
which lead me to conclude that the Employer has
proved its economic defense. First, it appears that the
Employer achieved financial savings from its change to
an intermediate care facility. Thus, Ambrose testified
that charge aides receive 15 to 25 cents an hour less
wages than the licensed personnel. The General Counsel
argues that Ambrose's failure to provide a specific differ-
ence in wages renders his testimony unreliable. I dis-
agree, for it is clear that Ambrose's uncontradicted testi-
mony shows it cost the Employer less to operate with
unlicensed personnel (charge aides). The General Coun-
sel's argument that the Employer failed to fulfill its evi-
dentiary burden by not producing specific documentary
evidence of the exact cost differential between licensed
and unlicensed personnel is misplaced. No one sought to,
or did, contradict Ambrose's oral testimonial assertions.
Second, the facts show that the use of unlicensed person-
nel to administer medications did not start after the
strike. The evidence reveals that the charge aides substi-
tuted for LPNs during the strike. Thus, I conclude this
substitution was a necessary expedient to maintain the
Employer's operations throughout the strike. Therefore,
the poststrike implementation of the decision to become
an intermediate care facility cannot be said to have oc-
curred in retaliation for the employees having exercised
their statutory rights.
1157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, Ambrose testified that the failure to recall
LPNs, who admittedly were qualified to perform the
work of aides, had been attempted unsuccessfully by the
Employer in the past. According to Ambrose, that earli-
er effort resulted in poor employee morale, principally
because the LPNs were required to work at lower than
normal pay.
Upon all the foregoing, I conclude that the Employer
has sustained its burden of proving a substantial business
justification for its failure to recall the LPNs and GPNs.
The General Counsel impliedly suggests that the Em-
ployer's discriminatory motive is shown by its delay in
implementation of the decision to operate as an interme-
diate care facility. I find no merit to this contention. The
documentary evidence amply demonstrates that the Em-
ployer decided to change its operations several months
before the strike. It afforded the Union an opportunity to
negotiate upon that subject matter. The Union expressed
opposition. However, there is no evidence whether the
ensuing collective-bargaining sessions considered this
subject. To infer an unlawful motivation from this con-
text simply because of the interjection of the strike dis-
torts the background events. Thus, I find that the record
as a whole supports the Employer's economic defense to
the failure to recall LPNs and GPNs.
b. Nurses aides
Thirty-two of the discriminatees alleged in paragraph
5(b) of the complaint held prestrike positions as charge
aides or nurses aides. 2 3 The nursing staff operates on
three regular shifts: 7 a.m. to 3:30 p.m. (day shift); 3 to
11:30 p.m. (evening shift); and II p.m. to 7:30 a.m. (mid-
night or night shift). There are both full-and part-time
employees assigned to these shifts. Historically, new em-
ployees on the nursing staff are hired as on-call employ-
ees. They are customarily informed that they will be
reassigned to part-time and ultimately to full-time posi-
tions if they choose, as vacancies arise. This commitment
was also made to the strike replacements when they
were hired.
The parties stipulated that certain documentary evi-
dence (G.C. Exhs. 65 and 65-a) contains the work histo-
ry of those employees working when the strike began,
during the strike and subsequent to it, as that history is
reflected on the Employer's official records.24 The stipu-
lated abstract confirms Ambrose's testimony that he
began to recall strikers almost as soon as he received the
guidelines from the Employer's counsel. Ambrose testi-
fied that the first striker recalled was Dorothy McCallis-
ter. Her name appears first on the recall list for nursing
staff. Ambrose testified that McCallister had been re-
called to her former position. I accept his testimony. No
controverting evidence was adduced. Although the
record does not reflect the exact date of McCallister's
recall, I conclude it occurred on or before August 4. On
August 4, the stipulated abstract reveals that the second
striker, Justine McMahon, on the nursing recall list was
returned to work as a full-time nurses aide on the eve-
:' For purposes of this Decision these terms are used synonymously
G.C. Exhs 65 and 65-a will hereafter be called the "stipulated ab-
stract."
ning shift. Additionally, on January 8, 1978, McMahon
became a charge aide on the same shift. Prior to the
strike, McMahon was a charge aide on the same shift.
As to the aides, the General Counsel expounds several
theories of violation. He contends strikers recalled to on-
call or part-time positions were not provided jobs sub-
stantially equivalent to those held prior to the strike.
This contention applies also to strikers who formerly had
been charge aides, but who were recalled to nurses aides
positions after the strike. The General Counsel argues
that openings for the above categories of strikers oc-
curred in their former positions before the offer of a dif-
ferent job was made to them. The stipulated abstract
shows this is true.
However, the General Counsel's argument is but su-
perficially appealing. It is the General Counsel's burden
to show that a striker's former job was available (Green-
ville Cotton Oil Company, 92 NLRB 1033, 1034 (1950)).
The fallacy in the General Counsel's theory is that it pre-
sumes absolutely no striker-aide had been returned to her
former position. Ambrose's testimony and the stipulated
abstract show otherwise. I have already noted the un-
contradicted testimony that McCallister was returned to
her old job. Thereafter, the stipulated abstract shows re-
calls were made by seniority as vacancies occurred in
any available position. (This apparently is what the Gen-
eral Counsel claims should have been done.)
As an example of the General Counsel's proposition,
he contends that V. Rudolph's recall was unlawfully de-
layed. She was recalled on October 1 to an on-call posi-
tion, part-time on the day shift. When the strike began,
Rudolph was a regular part-time employee. The stipulat-
ed abstract shows that some vacancies occurred as a
result of the termination of replacements and returned
strikers. The returned strikers had more seniority than
Rudolph. (Compare Rudolph to W. Cronin and N. Har-
peneau.) Comparison of the seniority dates of other nurs-
ing employees not recalled precisely to their prestrike
jobs shows that their recall was in proper order of rela-
tive seniority. The stipulated abstract, however, does not
permit a determination of which vacancy each such
striker filled. The most the stipulated abstract demon-
strates is that vacancies occurred from time to time after
the strike ended.
The state of the instant record persuades me that the
General Counsel has not sustained his burden of showing
a particular vacancy existed for the yet unrecalled strik-
ers. The General Counsel did not produce specific evi-
dence that at the strike's end any aide's position was then
available. My examination of the stipulated abstract leads
me to conclude that, generally speaking, vacancies in
nursing jobs were filled by available strikers from the
recall list in accordance with Ambrose's description of
how he operated the recall procedure.
Accordingly, I find the record does not demonstrate
by a preponderance of evidence that the Employer dis-
criminated against strikers by recalling them to positions
other than those held prior to the strike or by delaying
their recall offers.
This finding does not resolve the allegations regarding
discrimination against the nurses aides. The General
1158
LINCOLN HILLS NURSING HOME
Counsel contends that the Employer discriminated
against strikers by implementation of the longstanding
commitment made to new employees (and also made to
the strike replacements) to move them from on-call to
part-time and/or full-time positions as they became avail-
able. Examination of the stipulated abstract shows no re-
placement had been transferred pursuant to that hiring
promise between the end of the strike and January 18,
1978. On that date strike replacement, Carol Goffinet,
hired during the strike as an aide, evening shift, full time,
was transferred to a day-shift full-time position.
Goffinet's transfer on January 18, 1978, demonstrates
that the Employer indeed implemented its policy of
granting preference to striker replacements. The list of
unrecalled striker-aides (G.C. Exh. 57) shows two aides,
C. Jones and M. Criss, not yet reinstated as of July 10,
1978. At least they, and perhaps unidentified other strik-
er-aides, were available for recall on the date of Goffin-
et's transfer. The strikers' rights under Laidlaw have no
time limitation upon them. In Brooks Research & Manu-
facturing, Inc., 202 NLRB 634, 636-637 (1973), the Board
noted:
We likewise reject the Respondent's contention that
a time limit should be placed on the reinstatement
rights of economic strikers. Not only is such a time
limit contrary to the principles enunciated in
Fleetwood and Laidlaw, the alleged burden upon an
employer is neither onerous nor severe.
In Brooks Research, the Board noted that the Fifth Cir-
cuit Court of Appeals also rejected an employer's con-
tention that a time limit should be placed upon the rein-
statement rights of economic strikers. In American Ma-
chinery Corporation v. N.L.R.B., 424 F.2d 1321, 1327 (5th
Cir. 1970), the court stated:
We are not impressed with [respondent's] protesta-
tion that the difficulty in seeking out strikers "sever-
al months" or "five years" after their application for
reinstatement, when a replacement leaves, justifies
its conduct.
Accordingly, I conclude that nurses aides C. Jones and
M. Criss and any other unrecalled striker-aide similarly
situated on January 18, 1978, are entitled to preferential
hiring rights.
The Employer, citing H. & F. Binch Company, 188
NLRB 720 (1971), by analogy urges that the instant
commitment to striker replacements they would ascend
from on-call to part-time to full-time positions is tanta-
mount to the preference permitted a replacement in the
situation where the agreement to hire is made before the
former encumbent striker unconditionally offers to return
to work. I disagree. The attempted equation ignores a
very real factual distinction. In situations where the pref-
erences have been allowed, the job offered the replace-
ment actually is vacant concurrent with the agreement to
hire. In the case at bar, the Employer's transfer commit-
ment was made for jobs not yet available. Preferences of
the latter type are unlawful (United Aircraft Corporation
(Pratt & Whitney Division), 192 NLRB 382 (1971)). Thus,
I conclude that the H. & F. Binch case is inapposite.
In my opinion it is inherently destructive of strikers re-
instatement rights to accord striker replacements prefer-
ence to future job openings in positions for which quali-
fied strikers remain available. Where an employer's dis-
criminatory conduct is "inherently destructive" of im-
portant employee rights, no proof of antiunion motiva-
tion is needed to find an unfair labor practice. N.L.R.B.
v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). Accord-
ingly, I find that by transferring Carol Goffinet from
full-time evening shift to full-time day shift on January
18, 1978, at a time there were at least two striker-aides
yet awaiting reinstatement, the Employer violated Sec-
tion 8(a)(3) and (I) of the Act.
My analysis of the stipulated abstract reveals that be-
tween October 18 and December 7 at least five individ-
uals (Barbara Billow, Janice Lee, Denise Mullen, Sherry
Hyde, and Geraldine Middleton) were hired as nurses
aides. All, except Billow who was assigned to a midnight
shift, full-time position, were given on-call positions
when hired. All were transferred into other positions as
aides at various times between November 9 and March
15, 1978. The records of these five individuals show they
have no previous employment history with the Employ-
er. Thus, they are so-called new hires.
As already indicated there were striker-aides not yet
recalled on the dates these five employees were hired.
The record is silent as to why it was necessary to
employ new hires when the recall list was still operative.
I conceive of no more glaring example of discrimina-
tion so foreseeably causing employee response in contra-
vention of Section 7 rights as to obviate the need for any
other proof of intent than to afford new hires employ-
ment opportunities superior to those of strikers awaiting
recall. Such disparate treatment is unlawful. It patently
discourages union activity. The Radio Officers' Union of
the Commercial Telegraphers Union, AFL [A.H. Bull
Steamship Company] v. N.L.R.B., 347 U.S. 17 (1954);
N.L.R.B. v. Erie Resistor Corp., et al., 373 U.S. 221
(1963).
Accordingly, I find the Employer violated Section
8(a)(3) and (1) of the Act by hiring new employees as
aides and by transferring them into various aide positions
at a time when all striker-aides had not yet been reinstat-
ed.
Finally, the evidence shows three new hires (K. Alvey
in housekeeping department and Edith Hemfling and
Patsy Faucett as aides) who started work between the
date of the strikers' unconditional offer to return to work
and the date (August 4) the record shows the first
former strikers (McCallister and McMahon) were re-
called. No evidence was adduced to show the employ-
ment strikers' unconditional offer. If such evidence had
been presented I could conceivably find that the hire of
Alvey, Hemfling, and Faucett are within the purview of
H. & F. Binch. supra. Because I perceive the Employer's
obligation to reinstate strikers began when they made
their unconditional application to return, I find the Em-
1159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer violated Section 8(a)(3) and (1) by giving prefer-
ence to these three new hires. 25
As noted, the General Counsel contends that the Em-
ployer violated the Act by having failed to afford the
strikers sufficient time in which to respond to their offers
of recall. I have considered the evidence which demon-
strates the Employer has an obvious need for round-the-
clock staffing for patient care, the numbers of strikers
who had no difficulty responding in the time allotted,
and the Employer's policy of keeping the strikers on the
recall list whenever they indicated they had insufficient
time to report. These factors, considered in the absence
of independent evidence that the time limits were im-
posed to defeat the strikers' rights (cf. Murray Products.
Inc., 228 NLRB 268 (1977)), lead me to conclude, as I
do, that there was nothing unlawful in the Employer's
conduct in this regard.
2. Other categories of alleged discrimination
In paragraph 5(b) there are alleged two maintenance
employees, two laundry employees, one social service
employee, one dietary employee, one physical therapy
aide, and five housekeeping employees as discriminatees.
a. Maintenance
There were two maintenance employees, R. Alvey and
N. Holpp, employed in the maintenance department.
Both of them engaged in the strike and had not been re-
called to work. It is undisputed that they were replaced
by J. Tindall (hired May 2) and M. Chenault (hired May
4). Tindall was still employed at the time of the hearing.
Chenault was laid off on or about March 22, 1978. It is
undisputed that Tindall and Chenault were permanent
strike replacements.
The Employer defends its failure to reinstate Alvey
and Holpp to the job vacated by Chenault on economic
grounds. Ambrose testified that in early 1978 he re-
viewed the duties of the maintenance employees and sug-
gested the elimination of one maintenance position to the
Employer's board of directors. This testimony is support-
ed by documentary evidence. Ambrose received the re-
quested approval and, consequently, Chenault was laid
off.
One of the documents submitted by Ambrose (G.C.
Exh. 59) contains an analysis of the Employer's cost of
Chenault's employment. It shows that during the course
of his employment he had already been paid $7,106.83.
This figure, adjusted to an annual basis, equaled
$9,536.77. That document also indicates that work con-
tracted out amounted to $240 annually. Ambrose testified
he based his recommendation to eliminate one mainte-
nance position upon his judgment that all necessary
inside maintenance work could be performed by one
person. According to him this would be a significant sav-
ings to the Employer. No evidence was presented to re-
flect that Chenault's departure had an adverse impact
25 The record does not reveal, with precision, which strikers are affect-
ed by any of my findings of 8(a)(3) violations. This is a matter which can
be resolved by subsequent compliance proceedings if the parties are
unable to reach voluntary agreement. Amercan Machinery Corporation,
174 NLRB 130. 135 (1969).
upon the Employer's maintenance functions. Also, no
evidence was adduced reflecting the Employer engaged
nonemployee contractors to perform maintenance work
other than that reflected by the $240 sum.
The General Counsel contends that the financial evi-
dence provided by Ambrose is contradicted by other evi-
dence showing that the maintenance personnel "consis-
tently" worked overtime. The General Counsel's reliance
on the overtime documents is misplaced. Scrutiny of
those records clearly shows that the overtime was per-
formed during winter months in years when the weather
conditions were severe. I do not agree with General
Counsel this proves the consistency he asserts. Thus, I
do not find the overtime records in evidence so proba-
tive or reliable as to discredit Ambrose. Similarly, I dis-
count a notation on Chenault's timecard which states:
"Employee was laid off due to lack of work. Employee
will be recalled if workload picks up." This notation, the
General Counsel contends, contradicts the Employer's
assertion that one maintenance position had been perma-
nently eliminated. During his testimony, Ambrose con-
ceded that the authority to lay off one maintenance em-
ployee was experimental and conditioned upon his ability
to properly function with only one maintenance employ-
ee. In this context, I regard the timecard notation to be
nothing more than a reflection of the authority granted
to Ambrose.
Viewing all the relevant evidence regarding the main-
tenance position in its totality, I am persuaded that the
Employer has sustained its burden of meeting the
Fleetwood test of substantial business considerations in its
failure to recall Alvey and Holpp.
The General Counsel's brief does not specifically ad-
dress itself to the laundry, dietary, housekeeping, and
physical therapy discriminatees. He relies, instead, on the
various theories of violation discussed, supra, in connec-
tion with the nurses aides.
b. Laundry department
When testifying, Ambrose acknowledged that employ-
ee O. Hearth was transferred to the laundry department
on October 12. He said this was at the employee's re-
quest. Hearth was transferred from the dietary depart-
ment. No other evidence of poststrike vacancies in the
laundry department was presented.
The only other evidence relating to the laundry is con-
tained in an October 20 letter from Thomas to Cureton.
In that letter, Thomas complained that Hearth's transfer
was unlawful. By letter dated October 31, Cureton re-
sponded to Thomas' charges stating, "when the opening
in laundry arose, Hearth voluntarily and on her on initia-
tive requested the transfer. This worked out very well
because another employee on two weeks sick leave re-
turned to work about the same time. The returning em-
ployee Helen Farmer, did not fill Hearth's vacancy. Con-
currently, we [the Employer] were able to increase the
number of hours worked of two other kitchen employ-
ees, both of whom were former strikers." Further, Cure-
ton denied the Employer violated the Act by transfer-
ring Hearth.
1160
LINCOLN HILLS NURSING HOME
On the above facts, I conclude it is clear that, when
the employee whose place Hearth had taken terminated
her employment, there was created a vacancy in the
laundry department. At that time strikers C. Kratzer, C.
Bybee, and L. Hagerdon had not yet been recalled to
their former dietary department jobs. Although there is
no evidence that Hearth is a strike replacement I find her
transfer to the laundry department is analogous to the
unlawful preference, found above, accorded striker re-
placements and reflects unlawful disparate treatment. The
Radio Officers' Union v. N.L.R.B., supra.
Accordingly, I find that by Hearth's transfer on Octo-
ber 12, to the laundry department the Employer violated
Section 8(a)(3) and (1) of the Act.2 6
c. Social services
The Employer's brief argues there was no discrimina-
tion regarding this department. The original complaint
contained the name of L. D. Jones. The records in evi-
dence reveal that Jones was recalled to her prestrike po-
sition on August 22. At the hearing, the General Counsel
moved to strike Jones' name from the complaint. I grant-
ed this motion. Accordingly, no further discussion of this
matter is necessary.
d. Dietary department
J. Covetts is the only dietary department employee
against whom the Employer is alleged to have discrimi-
nated of the six dietary employees who struck. Covetts
testified that she was an assistant cook on the day shift
prior to the strike. She testified she was recalled as a
part-time cook's helper on August 29, on split shift
working from 7 to 11 in the morning and 3 to 7:30 in the
evening. Two weeks after her recall she was returned to
her prestrike shift. After her recall she was paid $2.35
per hour, the same rate she received prior to the strike.
The General Counsel contends this employee had not
been returned to her former job and that the position to
which she was recalled was not substantially equivalent.
Ambrose testified, in effect, that Covetts misdescribed
the job title to which she had been recalled. He testified
there are only the classifications of cook and cook's
helper in the dietary department. I credit this testimony.
Thus, I find no difference between the job titles of "as-
sistant cook" described by Covetts and "Cook helper"
described by Ambrose. Additionally, Covetts testified
that she performed substantially the same work after, as
before, the strike. Covetts testified that she was aware
her former position was not available at her recall. It
was apparently held by a striker replacement. The
records reveal that Covetts was the first striker returned
26 This finding is not diminished b the fact that the evidence reveals
the Employer recalled striker H. Howe to the laundry department on Oc-
tober I I. In making this finding of violation in the laundry department, I
have considered Ambrose's testimony that when Hearth was transferred
the dietary department was overstaffed Thus, presumably no vacancy ex-
isted. However, dietary overtime was increased b) 7-1/2 hours per em-
ployee who remained in that department. Each such employee worked
77.5 hours per pay period. In this context. considering overtime rates
normally exceed straight time pay, it is reasonable to assume a vacancy
was indeed a feasible (if not desirable) method of filling the void created
by Hearth's transfer. I am not impressed by the Employer's ohservation
that there had already been two former strikers recalled to the dietary
department.
to work after the strike in the dietary department. There-
after, she quit and apparently was replaced by another
striker.
Based on the foregoing, I conclude that Covetts was
reinstated to a substantially equivalent position of em-
ployment. She received her prestrike wage rate and per-
formed work virtually identical with that performed
before the strike. I place little probative significance
upon her identification of her prestrike position as "as-
sistant" cook. Both she and Ambrose agree that her post-
strike classification was "helper." This latter classifica-
tion is consistent with the official designation by the Em-
ployer. Thus, I consider the General Counsel's efforts to
distinguish Covetts' prestrike job from that to which she
was recalled to be shallow. While Covetts was the third
employee on the recall list, it appears she was the first
dietary striker who had been actually reinstated. 27
Based upon the foregoing, I find that the Employer
did not discriminate against J. Covetts in the manner as-
serted by the General Counsel.
e. Physical therapy aide
The original complaint alleged that two physical ther-
apy aides, M. Criss and B. P. Nugent, were not reinstat-
ed after the strike.
Ambrose testified, without contradiction, that at the
end of the strike one opening occurred in the physical
therapy department. Nugent was recalled to it. (The
General Counsel moved to strike Nugent's name from
the complaint. I granted this motion.)
Ambrose further testified that since Nugent's recall the
physical therapy department operated with her together
with strike replacement Moore.
The General Counsel conceded at the hearing that no
physical therapy job was available since the strike ended.
However, the General Counsel asserts that M. Criss
should have been recalled to any available job. Appar-
ently, this theory is based on the fact that M. Criss was
initially employed in September 1975 by the Employer as
a nurses aide. Thus, she possessed qualifications to per-
form work in the nursing department. In view of my ear-
lier findings that the Employer did not discriminate
against the striker-nurses aides and, in general, properly
implemented the recall list I find no merit to the General
Counsel's contentions. Therefore, as it appears that no
job as a physical therapy aide was available after the
strike to which Criss was entitled, I find no merit to this
aspect of the complaint.
f. Activities director
The original complaint alleged two activities directors,
R. A. Sprinkle and J. Clark, as having been refused rein-
statement. During the hearing, I granted the General
Counsel's motion to strike Sprinkle's name from the com-
plaint.
In mutual corroboration of one another, Ambrose and
Clark testified that in April Ambrose advised Clark that
one of the then existing two activities directors positions
7' Coverts' case buttresses my conclusions. upra. that the Employer
operated the recall list in a nondiscriminatory manner.
1161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was being eliminated. Ambrose then offered to transfer
Clark to a nurses aide position. She told him she was
available only for the day shift. Ambrose, therefore, per-
mitted Clark to remain in her activities director position
until such time as a day-shift aide position became availa-
ble. He cautioned however, in writing, dated April 15
(G.C. Exh. 21) that he "cannot, and will not, keep" her
in the activities position "forever." Clark worked as ac-
tivities director from that date until the April 29 strike.
On May 4, L. Hagerty was hired as a permanent replace-
ment for the activities director position. Hagerty has
worked continuously in that job until the hearing dates.
Clark's name was placed on the recall list for physical
therapy aide. According to Ambrose, whom I credit in
this regard, the failure to place Clark's name on the
recall list for the nursing department was an inadver-
tence. Although the Union had been provided the recall
list, it did not bring this omission to the Employer's at-
tention. During the Board's investigation of the charges
herein this error was brought to the Employer's atten-
tion. The Employer took corrective action. Clark's name
was then placed on the nurses aides recall list.
On January 31, 1978, Ambrose wrote Clark offering
her a nurses aide position beginning February 15. Clark
responded by telephone on February 7, 1978, rejecting
the recall offer because it was to the night shift. On Feb-
ruary 7, Ambrose wrote Clark confirming their tele-
phone conversation. In this letter Ambrose told Clark
she would be retained on the recall list pursuant to her
request which indicated she desired to be further consid-
ered for a day-shift position. On February 8, Ambrose
again wrote Clark advising her that "on reflection" he
had removed her name from the recall list.
During her testimony, Clark stated that she "may
have" told other people she had no intention of returning
to work for the Employer.
Clark's case presents a close question. Though not ex-
plicidy argued by him, the General Counsel's theory ap-
parently is predicated upon a claimed right to reinstate-
ment to a nurses aide job. Whether or not this is true, I
find the facts indicate but a single activities director's po-
sition was in existence immediately prior to, during, and
after the strike. Thus, Clark's job classification was in
limbo. In these circumstances, it is understandable that
Clark's name did not initially appear on the nurses recall
list.
It is problematical whether the Employer was obligat-
ed to put Clark's name on the nurses recall list or to con-
sider her for employment in such a position. Nonetheless,
the Employer voluntarily chose to do so in January
1978. I view this act as having made operative the Laid-
law principles as regards Clark. Indeed, the Employer
signified its intention to accord her those rights when it
considered her for reemployment as it signified in Am-
brose's January 31 letter.
Ambrose's February 7 letter is evidence of the Em-
ployer's consistency in implementing the recall proce-
dures. However, without offering a reason for his "re-
flection," Ambrose repudiated his own recall procedures
when he precipitously wrote Clark on February 8 that
she had been removed from the recall list. This reversal
occurred but one day following that on which Ambrose
wrote Clark she remained on the list for consideration
for reinstatement. No explanation was offered for Am-
brose's last action.
As observed supra, an economic striker's right to rein-
statement exists for an indeterminate period (Brooks Re-
search & Manufacturing, Inc., supra). In my view, the un-
explained abrupt removal of Clark's name from the recall
list signals to employees a derogation of their rights. Al-
though I have noted the uncertainty of whether Clark
was entitled to be considered for a nurses aide position in
the first instance, on balance, the rights of employees to
reinstatement after having engaged in an economic strike
are superior to those which may be asserted by the Em-
ployer in connection with Clark's situation. Accordingly,
I find that, by removing Clark's name from the recall list
on Fcbruary 8, the Employer violated Section 8(a)(1) of
the Act.
As previously indicated, the record does not reveal
with specificity whether a nurses aide position to which
Clark might have been entitled by virtue of her seniority
became vacant on and after February 8, 1978. Accord-
ingly, and consistent with my earlier findings, I find the
General Counsel has not sustained his burden of proving
that Clark had been discriminated against in violation of
Section 8(a)(3) of the Act.
g. Housekeeping department
All seven individuals employed in the housekeeping
department went on strike. Housekeeping-striker R.
Dickman was recalled on August 27. However, as noted
hereinabove, new hire K. Alvey was improperly hired
on August 2. have found that preference to be unlaw-
ful. Ambrose's testimony, the stipulated abstract and re-
lated documents in evidence show that subsequent house-
keeping vacancies were offered to the strikers on the
housekeeping recall list in seniority order.
Based on earlier discussions and findings within this
Decision, I conclude now that the Employer did not dis-
criminate against any housekeeping employee because of
its failure to recall any of them to work. However, be-
cause Alvey's hiring was unlawful, it is clear the offers
of reinstatement to Dickman and the other below her on
the recall list was discriminatory. If preference had not
been given Alvey then each of the housekeeping employ-
ees on the recall list would have been entitled to earlier
recall. Accordingly, I find that by according Alvey em-
ployment preference over the housekeeping employees
on the recall list, Respondent violated Section 8(a)(3)
and (1) of the Act.
In effect, paragraphs 5(d) to (h) set forth alternative
theories of discrimination allegedly practiced against spe-
cific strikers whose names also appear in the complaint
paragraph 5(b). These remaining subparagraphs of the
complaint are considered below.
3. The failure to rehire-complaint paragraph 5(d)
J. K. Morris: Morris was a full-time day-shift nurses
aide before the strike. On September 6, she was recalled,
worked the midnight shift for 2 days and then was trans-
ferred to a part-time day-shift position. She asked Le-
maire for a full-time position but was told there were no
1162
LINCOLN HILLS NURSING HOME
openings. On October 17, she resigned, in writing, "for
better pay." In February 1978 Morris returned to the
Employer's premises and advised Ambrose she was
working elsewhere but was unhappy. Morris asked Am-
brose for a job. Ambrose told her there were no open-
ings but he would keep her in mind. Morris did not file a
new application for employment at that time.
The foregoing facts show that Morris voluntarily quit
her job in October 1977. There is no evidence that action
was other than voluntary. Thus, I conclude that Morris
abandoned her position and her rights to further consid-
eration for employment as an economic striker. P.B.R.
Company, 216 NLRB 602, 603 (1975); Beverage-Air Com-
pany, 185 NLRB 168, 170 (1970). Accordingly, I find no
merit to this aspect of complaint paragraph 5(d). This
finding, however, does not diminish any rights to which
Morris may accede as a result of my findings of violation
regarding complaint paragraphs 5(b) and (c).
V. J. Rudolph: Rudolph was recalled as a nurses aide,
returning to work approximately October 1. She worked
until January 1978 when she told Lemaire that she could
work no longer because of poor weather conditions and
she no longer had a ride to work. There is some evi-
dence that Rudolph returned in May 1978 and requested
a housekeeping job. Apparently, the General Counsel's
theory is based on the failure to offer Rudolph such a
position. I conclude that when Rudolph resigned in Jan-
uary she relinquished her rights as an economic striker.
(See P.B.R. Company and Beverage-Air Company, supra.)
Accordingly, I find no merit to this aspect of complaint
paragraph 5(d).
These findings as to Rudolph do not affect any rights
she may have by virtue of the unfair labor practice find-
ings made relative to complaint paragraphs 5(b) and (c).
R. J. Brown: Ambrose wrote her on September 16,
confirming a telephone conversation where he offered
her recall. Brown told him she was working elsewhere.
Brown testified that in the spring of 1978 the state unem-
ployment authorities referred her to the instant Employ-
er for a housekeeping position. She testified she complet-
ed an employment application but Lemaire testified it
could not be located. Lemaire testified further that she
called Brown twice. Apparently, in accordance with Le-
maire's practice, Brown's application had then been de-
stroyed.
I find it unnecessary to consider either the propriety of
destroying the employment application or to determine
whether the Employer actually made an effort to offer a
housekeeping job to Brown. I conclude the facts reveal
that she abandoned her rights as an economic striker
when she advised Ambrose in September that she had
obtained employment elsewhere. (P.B.R. Company and
Beverage-Air Company, supra.) Accordingly, I find no
merit to this aspect of complaint paragraph 5(d). Howev-
er, inasmuch as R. J. Brown held a prestrike job as
nurses aide, this finding should not affect any rights she
has by virtue of my unfair labor practice findings as to
complaint paragraphs 5(b) and (c).
P. G. Boyer: When the strike started Boyer was a full-
time GPN on the day shift. In October she spoke to Am-
brose and asked for a job. He told her none was availa-
ble, but he would contact her if one became vacant. In
November, Boyer asked Lemaire for any available posi-
tion but was told there were none.
On April 27, 1978, Ambrose wrote Boyer that he was
in the process of updating the Employer's records. He
asked whether she was still interested in employment
should a vacancy arise in her "former job or a substan-
tially equivalent position." Boyer responded, in writing,
that she was willing to return to work, adding "as soon
as I am released from my doctor's care I would love to
come to work." Boyer advised she just had another child
and requested her job be held if any openings occur.
Boyer testified that on June 26, 1978, she telephoned
Ambrose and told him she had been released from her
maternity care. Boyer has not been recalled to work.
I find nothing in the above narration to alter my earli-
er findings and conclusions that the failure to recall
GPNs was not discriminatory. No evidence was adduced
to show that any GPN had been hired after the strike.
Also, there is no evidence to reveal that a GPN vacancy
existed after the strike. Thus, I attribute the failure to re-
instate Boyer to the Employer's decision to become an
intermediate care facility. Accordingly, I find this aspect
of Complaint paragraph 5(d) without merit.
G. Cox: Cox was a full-time nurses aide on the mid-
night shift before the strike. She was recalled to an on-
call position on September 6. At that time she was em-
ployed elsewhere. Cox did not respond to her recall
letter. Therefore, Ambrose removed her name from the
recall list.
During the last week in December, Cox returned to
the Employer's facility and completed an employment
application. Lemaire then advised Cox that the Employ-
er was "not hiring." Cox started another job on Febru-
ary 6, 1978. In the interim, however, Cox testified that in
January 1978 she visited the Employer's premises a
"dozen times." Cox insisted she went to the Employer's
premises three or four times a week during January. Le-
maire denies that Cox visited the nursing home with the
frequency she claimed. In fact, there were extremely
severe winter weather conditions in existence-so much
so that Lemaire remained on the Employer's premises
for 2 weeks. Also, only motor vehicles with four-wheel
drive could traverse the snow conditions. Despite this, I
find it unnecessary to resolve the testimonial conflict be-
tween Cox and Lemaire.
It is unquestioned that Cox did not respond to her
September recall notice. Ambrose waited a full week
after the requested reporting date for a response. At that
time, I conclude he reasonably could assume she had
abandoned her rights as an economic striker; particularly
inasmuch as she was employed at some other location.
Accordingly, I find no merit to this aspect of complaint
paragraph 5(d).
R. J. Morris (Goffinet): Before the strike, this striker
was employed as a full-time nurses aide. She was re-
called by Ambrose on or about September 16, and told
him that she could not return to work because she was
employed at Burger King. Ambrose wrote her, on Sep-
tember 16, advising she was being removed from the
recall list.
1163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the following remark attributed by Morris-
Goffinet to Ambrose appears in the striker's oral testimo-
ny, it is not alleged as an independent violation of Sec-
tion 8(a)(1). According to Morris-Goffinet, in November
she appeared at the Employer's premises. She completed
an employment application and gave it to Ambrose who
told her if there were any openings he would contact
her. During this conversation, Morris-Goffinet testified
that Ambrose asked her if she walked off the job when
the strike started. Ambrose denied he made this remark.
I credit Ambrose. It is illogical and unlikely Ambrose
would have uttered the comment ascribed to him be-
cause she had already been identified as a striker. Her
name had been on the recall list. Ambrose recalled her in
writing. They had a conversation concerning her new
employment. All this indisputedly occurred in Septem-
ber. It is implausible to believe that in November he
would have had any question concerning her status as a
striker. In an atmosphere, as herein, otherwise free of ex-
amples of interference, restraint, or coercion I regard it
as irresponsible to give credence to Morris-Goffinet's tes-
timony regarding Ambrose's potentially unlawful com-
ment, especially where the complaint contains no such
allegation and the General Counsel did not seek to
amend the complaint to add it.
Upon all the foregoing, I find that, when Morris-Gof-
finet told Ambrose she could not return to work because
she was otherwise employed, she effectively relinquished
her rights as an economic striker.
R. Brock: When the strike started, Brock was em-
ployed as a full-time nurses aide on the day shift. On
August 25, she was recalled to the day shift as a nurses
aide. She worked there but 2 days and was then trans-
ferred to a part-time position on the day shift. Brock tes-
tified that, on or about September 1, she wrote Lemaire
a note requesting to be returned to a full-time position.
Having received no affirmative response, Brock quit on
October 3.
Sometime in January, February, or March 28 Brock vis-
ited the Employer's facility along with her stepmother,
Virginia Kieser. Brock was referred to the Employer by
the state unemployment compensation authorities. Brock
and Kieser completed employment application forms.
Brock was interviewed by Lemaire. Lemaire testified she
asked Brock whether she was looking for a job and
Brock responded, "[N]ot really. They [the unemploy-
ment compensation authorities] sent me in." Brock
denied she made this statement. I find it unnecessary to
resolve this conflict. There is no evidence that when
Brock quit in October she had obtained any other em-
ployment. The fact she was referred to the Employer by
the unemployment authorities shows that she had not yet
acquired the regular and substantially equivalent employ-
ment required by Laidlaw so that it could be said an eco-
nomic striker relinquishes her right to reinstatement. In
these circumstances, I find Brock was entitled to consid-
eration for employment as a nurses aide in 1978, notwith-
standing the possibility she may have told Lemaire she
was not "really" interested in one. The fact is no job had
been offered to Brock. In this connection, I note that the
:2 It is unnecessary to determine the precise date.
Employer's records reflect that Kieser, a new hire, was
employed as a nurses aide on March 24, 1978. Kieser
worked only I day. Nevertheless, Kieser's employment
shows that a nurses aide position was available. Lemaire
testified that she could not locate Brock's application. In
accordance with Lemaire's previously described employ-
ment procedures, I am asked to infer that Brock had
been called to be offered a position. Although I do not
discredit Lemaire's account of her employment practices,
in the circumstances surrounding the applications of
Kieser and Brock and Kieser's hiring, I am unwilling to
draw that inference. Accordingly, I find there is no evi-
dence that Brock had been offered any position in 1978.
As noted, Brock had been recalled on August 25, 1977.
Apparently, then, she possessed sufficient seniority for
immediate recall to an available position. Kieser's em-
ployment shows such a vacancy actually existed, albeit
in 1978.
Upon all the foregoing, I conclude the failure to recall
Brock to at least the position which was offered Kieser
constitutes a violation of Section 8(a)(3) and (1) of the
Act. I have previously noted my inability to ascertain
whether nurses aide positions earlier became vacant such
as would have entitled Brock to earlier recall. If, of
course, such vacancies may be found to have existed
then I would find Brock had been discriminated against
at that earlier date because I find that her resignation in
October, in the circumstances herein, does not constitute
an effective waiver of her rights as an economic striker.
Based on the above, I find merit to this aspect of the
complaint paragraph 5(d).
4. The constructive discharge-complaint paragraph
5(e)
Striker W. Cronin was employed as a nurses aide, full
time on the day shift when the strike started. She was
recalled as a part-time nurses aide on the day shift. At
her recall, Cronin was pregnant. She pulled a muscle
while working. Her attending physician, in writing, re-
stricted her from lifting. The record reflects that nurses
aides were required to perform lifting services when
moving patients. Cronin presented her doctor's restric-
tive note to Lemaire. Cronin, in generalized testimony,
testified that Lemaire told her to take maternity leave.
Lemaire's version is different. Lemaire said she told
Cronin there were no jobs which did not require lifting.
According to Lemaire, it was Cronin who requested to
be placed on maternity leave.
I credit Lemaire. Her testimony throughout the pro-
ceeding was candid, forthright, and precise. While I do
not generally discredit Cronin, her version of the conver-
sation with Lemaire was considerably less specific. Ac-
cordingly, I conclude it was at Cronin's instigation that
she was placed on maternity leave. Thus, I find that the
record does not contain a preponderance of credible evi-
dence to support the General Counsel's theory that W.
Cronin was constructively discharged. There is no merit
to complaint paragraph 5(e).
1164
LINCOLN HILLS NURSING HOME
5. Denial of vacation and/or sick benefits-
complaint paragraphs 5(f) and (g)
M. J. Holmes (complaint par. 5(f)): Holmes was rein-
stated in late August. She worked until April 1978.
Holmes testified she resigned because one of the Em-
ployer's office clericals, L. Hogeland, told her she had to
make up her time on strike before she could receive her
vacation or sick benefits. Hogeland did not testify.
The Employer's benefit policy is contained in a writ-
ten document (G.C. Exh. 64). That document provides
that vacations are granted to employees "with the Com-
pany for 1 full year." Sick days are accumulated in a
similar way. Ambrose testified that the Employer's
policy is to compute an employee's service based on
actual work. He also testified that if an employee is sick,
management makes a case-by-case appraisal of whether
the sick time should be credited as worktime. According-
ly, Ambrose admitted that returning strikers "had to
make up the time they were off before they were eligible
for vacation."
As to Holmes, the Employer relies on the undisputed
fact that she quit her employment without notice. The
Employer asserts its personnel policies require "sufficient
notice" from employees who resign. Indeed, such a pro-
vision is contained on page 10 of General Counsel's Ex-
hibit 64. From this, the Employer argues that Holmes
was entitled to no accured benefits because she indisput-
ably quit without notice.
R. Dickman (complaint par. 5(g)): Dickman, a rein-
stated striker-aide, requested vacation time in the middle
of September 1977. She was advised by "some girls in
the office" she had to make up her time off on strike
before she could take a vacation. The Employer admit-
tedly credited her with only approximately 8 months
work from September 1976 to April 1977 (when the
strike started). The Employer claims the denial of vaca-
tion time was appropriate because of the policy to credit
employees for time worked. Dickman was still employed
by the Employer at the time of the hearing. Ultimately,
she received her full vacation entitlement.
It is well established that denial of benefits to employ-
ees because they engage in activities protected by the
Act constitutes an unfair labor practice. The issue pre-
sented by the cases of M. J. Holmes and R. Dickman re-
quires analysis of the Employer's motivation. Although
neither Holmes nor Dickman identified any personnel
who could bind management by the expressions which
signified to those former strikers that they had to make
up strike time in order to receive the benefits, I find Am-
brose admitted that indeed was the Employer's position.
The General Counsel's theory, in effect, requires me to
infer a discriminatory intent from the absence of the ex-
plicit directives within the Employer's written personnel
policies. Thus, the General Counsel would require the
written policies to contain specific language warning the
employees that absences from work might not be count-
ed for purposes of accumulating qualifying time for their
benefits. In other circumstances, I might agree with the
General Counsel. Such agreement, however, would
ignore the uncontroverted testimony by Ambrose of the
Employer's past practice. The sum of Ambrose's testimo-
ny indicates that before the strike the Employer made
separate decisions on whether to credit employees with
time spent away from work due to illness. Also Am-
brose's testimony reflects the withholding of payment for
unused vacation time from employees who resigned
without "sufficient notice" was a policy existing prior to
the strike. In this context, I conclude the Employer's ne-
glect to consider the strike time in the computation of
benefit entitlement was not designed as a punitive meas-
ure against the strikers.
Accordingly, I find the General Counsel has not sus-
tained his burden of proof by a preponderance of evi-
dence as to complaint paragraphs 5(f) and (g).
6. Assignment of more arduous duties-complaint
paragraph 5(h)
Striker D. Stephens was in her early stages of pregnan-
cy at the time she was reinstated as a nurses aide. The
General Counsel asserts that the failure to transfer Ste-
phens to a work station requiring lighter work was dis-
criminatory. Stephens was reinstated to her prestrike po-
sition.
Stephens testified that she told her charge aide and
Barbara Jordan of her pregnancy. Jordan was identified
by Stephens as director of nurses. (This identification is
implicitly used by the General Counsel as proof that the
Employer's management personnel were immediately
aware of Stephen's condition.) Considerable evidence re-
garding Jordan's status when Stephens had been reinstat-
ed is in the record. My analysis of all relevant evidence
in this connection leads me to conclude, as I do, that
Jordan then possessed the title of consultant but pos-
sessed no supervisory indicia since she assumed that posi-
tion. There is evidence that before February 1977 Jordan
was a supervisor within the meaning of the Act. Howev-
er, for purposes of the allegation regarding Stephens,
Jordan's earlier status is irrelevant.
Stephens' work station involved heavy lifting. She tes-
tified that in the past, other pregnant employees had
been transferred to lighter work stations. However, the
General Counsel conceded Stephens did not complain
about her job or physical condition after she returned to
work.
At some unspecified date, Stephens was kicked in the
stomach, apparently by a patient. Lemaire was not aware
of Stephens pregnancy at the time of her reinstatement.
However, Lemaire observed Stephens being kicked. The
record is devoid of evidence regarding what next ensued
between Stephens and Lemaire. However, what is clear
is that Lemaire suggested to Stephens that she move to a
different station. The record is uncertain whether Ste-
phens' new station involved lighter work.
On the above facts, which show Stephens was recalled
to precisely her former position and absolutely no indica-
tion that the Employer was aware of her pregnancy it is
virtually impossible to charge the Employer with this
violation. There is no independent evidence of hostility
toward Stephens. The Employer was unaware of her
physical condition. She did not request lighter work. Ac-
cordingly. I find no merit to complaint paragraph 5(h).
Upon the basis of the above findings of fact and upon
the entire record in the case. I make the following:
1165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Employer 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. The following employees constitute a unit appropri-
ate for collective bargaining within the meaning of the
Act:
All service and maintenance employees, including
licensed practical nurses, nurses aides, charge aides,
orderlies, physical therapy aides, kitchen employees,
activities employees, social designee, housekeeping
employees, and laundry employees of the Employer
at its Tell City, Indiana, facility excluding all office
clerical employees, all professional employees, all
registered nurses, director of nursing, assistant di-
rector of nursing, the dietary manager, all guards,
and all supervisors as defined in the Act.
4. The Employer did not engage in surface bargaining.
5. The Employer did not violate Section 8(a)(5) when
it refused to sign the "agreement" proffered on Novem-
ber 3, 1977.
6. The Employer failed to bargain collectively in good
faith with the Union in violation of Section 8(a)(5) and
(1) of the Act by withdrawing recognition from the
Union on November 29, 1977.
7. The Employer did not discriminate against employ-
ees when it recalled and reinstated them to other than
their prestrike jobs.
8. The Employer did not unlawfully delay recall of
strikers.
9. The Employer discriminated against employees in
violation of Section 8(a)(3) and (1) of the Act by accord-
ing job preference to strike replacments over former
strikers.
10. The Employer discriminated against employees in
violation of Section 8(a)(3) and (1) of the Act by hiring
new employees as nurses aides and thereafter transferring
them into aides positions at a time when not all striker-
aides had yet been reinstated.
11. The Employer discriminated against employees in
violation of Section 8(a)(3) and (1) of the Act by hiring
new employees before recalling any strikers after they
had made an unconditional application to return to work.
12. The Employer discriminated against employees in
violation of Section 8(a)(3) and (1) of the Act by trans-
ferring Oma Hearth to a position in the laundry depart-
ment.
13. By removing J. Clark's name from the recall list on
February 8, 1978, the Employer interfered with, re-
strained, and coerced employees in violation of Section
8(a)(1) of the Act. 29
29 The facts supporting this conclusion were fully litigated at the hear-
ing Although the complaint contains no specific allegation of this inde-
pendent violation of Sec. 8(a)(l), unpleaded but litigated issues support
unfair labor practice findings. New England Web, et al., 135 NLRB 1019
(1962), reversed on other grounds 309 F.2d 696 (lst Cir. 1962); Thompson
Manufacturing Co., Inc., 132 NLRB 1464 (1961); Merchandiser Press, Inc..
115 NLRB 144 (1956).
14. By according employment preference to new hire
K. Alvey over the housekeeping-strikers on the recall
list, the Employer discriminated against employees in
violation of Section 8(a)(3) and (1).
15. The Employer discriminated against R. Brock, in
violation of Section 8(a)(3) and (1) of the Act, when it
failed to offer her reinstatement on March 24, 1978.
16. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
17. The Employer did not violate the Act in any
regard other than those found above.
THE REMEDY
Having found that the Employer violated Section
8(a)(1), (3), and (5) of the Act by certain conduct, I shall
recommend it cease and desist from engaging in such
conduct in the future and affirmatively take such action
as will dissipate the effects of its unfair labor practices.
Because the Employer's November 29, 1977, with-
drawal of recognition from the Union was unlawful, the
Order shall require the Employer to cease and desist
from refusing to recognize and bargain with the Union as
the exclusive bargaining representative of the employees
in the appropriate unit described above in paragraph 3 of
the Conclusions of Law. The Order shall also require the
Employer to recognize and, upon request, bargain collec-
tively with the Union as the exclusive collective-bargain-
ing representative of the appropriate unit, described
above, with regard to the wages, hours, working condi-
tions, and other terms and conditions of employment of
the unit employees, and, if an understanding is reached,
embody such understanding in a signed agreement.
Because it has been found the Employer discriminated
against certain individuals and groups of strikers, in vio-
lation of Section 8(a)(3), the recommended Order shall
require the Employer to offer each striker against whom
the Employer has been found to have discriminated im-
mediate and full reinstatement to his or her former or
substantially equivalent job, without prejudice to senior-
ity or other rights and privileges, and to make each such
striker whole for any loss of earnings suffered as a result
of the discrimination by payment of a sum equal to that
which he or she would have earned, absent the discrimi-
nation, from the date of the alleged discrimination (Eagle
International, Inc., 223 NLRB 29 (1976); Murray Products,
supra), to the date of the Employer's offer of reinstate-
ment, with backpay and interest computed in accordance
with the Board's established standards contained in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977). 3°
The unlawful activities of the Employer, including the
discriminatory refusals to reinstate the strikers and with-
drawal of recognition from the Union, go to the very
heart of the act and indicate a purpose to thwart the em-
ployees' rights. The unfair labor practices committed by
the Employer are potentially related to other unfair labor
practices proscribed by the Act, and the danger of their
commission in the future is to be anticipated from the
"o See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1166
LINCOLN HILLS NURSING HOME
Employer's conduct in the past. The preventive purposes
of the Act will be thwarted unless the recommended
Order herein is co-extensive with the threat. According-
ly, in order to make effective the interdependent guaran-
tees of Section 7 and thus effectuate the policies of the
Act, the Order herein shall require the Employer to
cease and desist from in any other manner infringing
upon the rights of employees guaranteed in the Act.
N.L.R.B. v. Express Publishing Company, 312 U.S. 426
(1941); N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (4th
Cir. 1941); Pan American Exterminating Co., Inc., 206
NLRB 289, fn. 1 (1973).
Upon the above findings of fact, conclusions of law,
the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER31
The Respondent, Lincoln Hills Nursing Home, Inc.;
Leaseholding Company; and Tell City Distributors, Tell
City, Indiana, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discriminating against employees by failing to
accord them their reinstatement rights as economic strik-
ers.
(b) Refusing to recognize and bargain with Chauffeurs,
Teamsters and Helpers Local Union No. 215, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the ex-
clusive collective-bargaining representative of the em-
ployees in the appropriate bargaining unit described
below, with regard to wages, hours, working conditions,
and other terms and conditions of employment. The unit
is:
All service and maintenance employees, including
licensed practical nurses, nurses aides, charge aides,
orderlies, physical therapy aides, kitchen employees,
activities employees, social designee, housekeeping
employees, and laundry employees who are em-
ployed at the Employer's Tell City, Indiana, facili-
ty, excluding all office clerical employees, all pro-
fessional employees, all registered nurses, director
of nursing, assistant director of nursing, the dietary
manager, all guards, and all supervisors as defined
in the Act.
a' 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
findings, 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
shall be deemed waived for all purposes.
(c) In any other manner interfering with, restraining,
coercing, or discriminating against its employees in the
exercise of the rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer each striker against whom the Employer has
been found to have discriminated full and immediate re-
instatement to his or her former job or, if that job no
longer exists, to a substantially equivalent position of em-
ployment, without prejudice to his or her seniority or
other rights and privileges, and make each such striker
whole for any loss of pay suffered as a result of the dis-
crimination against him or her in the manner set forth
hereinabove in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary or useful to a determination of the precise identity
of the strikers against whom the discrimination was prac-
ticed and an analysis of the amount of backpay due and
the right of reinstatement under the terms of this Order.
(c) Post at its Tell City, Indiana, facility copies of the
attached notice marked "Appendix." 3 2 Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive 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 cov-
ered by any other material.
(d) Recognize and, upon request, bargain collectively
with Chauffeurs, Teamsters and Helpers Local Union
No. 215, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative in
the appropriate unit described above, with regard to the
wages, hours, working conditions, and other terms and
conditions of employment of the unit employees and, if
an understanding is reached, embody such understanding
in a signed agreement.
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that all allegations of the
complaint which have been found to have no merit be
dismissed.
"1 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
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."
1167