Shorewood Manor Nursing Home & Rehabilitation Center

National Labor Relations Board - Board Decisions

Apr 10, 1975

217 N.L.R.B. 331 (N.L.R.B. 1975)

SHOREWOOD MANOR NURSING HOME Harold R. Bursten and Dr. Robert Bursten, a Partner- ship, d/b/a Shorewood Manor Nursing Home & Rehabilitation Center and Local 1199W, National Union of Hospital and Health Care Employees, AFL-CIO. Case 30-CA-2582 April 10, 1975 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On July 15, 1974, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs, and Re- spondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and 1 We do not adopt this portion of the Administrative Law Judge's Deci- sion concerning his discussion and treatment of Respondent's no-solicita- tion rule that was put into effect at the time of the organizational campaign There were no allegations in the complaint or by General Counsel at the hearing that the rule was unlawful on its face or that it was unlawfully promulgated or discriminatorily enforced, and the issue concerning the rule's legality was not litigated by the parties. Accordingly, we disavow the Administrative Law Judge's conclusions that the "illegality" of the rule precludes Respondent from relying on it as a defense to any of the complaint allegations, and provides evidence of Respondent' s animus bearing on "mat- ters specifically alleged " Although we have disavowed the Administrative Law Judge's statement that Respondent could not use the rule as a defense, we nevertheless reject Respondent's contention that it did not violate Sec. 8(a)(1) in two separate incidents involving employees Vella and Stapleton, respectively, because it was merely policing said rule With respect to Stapleton, she testified without contradiction that Ad- ministrator Bursten questioned her whether she had been talking to em- ployee Bill Kaplan about the Union on the second floor of the nursing home. When she replied she had not seen Kaplan since lunchtime and even then they had not discussed the Union, Bursten asked her if she "was sure." Only when she affirmed her previous answer did he stop questioning her. There is no mention of the rule in Stapleton's testimony Rather, the repeated thrust of Administrator Bursten's inquiry to her was directed towards whether she was associating with Kaplan-whose vigorous advocacy for the Union brought him two reprimands and ultimately discharge-and whether they were talking about the Union Interrogations into these matters have nothing to do with a no-solicitation rule, and constitute a violation of Sec. 8(a)(1) of the Act because of their coercive intrusion into the exercise of rights guaranteed employees under Sec. 7 of the Act. As to Vella, the facts establish that Bursten summoned her to his office where he accused her of "signing up people on the floors [a]nd do you realize that this is grounds for termination " We find that these remarks were phrased in such a broad and unqualified manner, specifying neither the time, nor the place, nor the persons allegedly solicited, that the only reasonable interpretation to be placed on them was that they were intended to encom- pass Vella's union activities as a whole rather than merely being directed towards the enforcement of the rule. Bursten's concluding remarks, that he wanted Vella to reevaluate her position with the Union, further supports this interpretation In these circumstances, we find that Bursten's conduct in connection with this incident was not directed towards policing the no- 331 conclusions, of the Administrative Law Judge and to, adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders the Respondent, Harold R. Bursten and Dr. Robert Bur- sten, Partnership, d/b/a Shorewood Manor Nursing Home & Rehabilitation Center, its agents, successors, and assigns, shall take the action set forth in said recommended Order. MEMBER PENELI,O, concurring, in part,' and dissenting, in part: The Administrative Law Judge found that, from the standpoint of its scope as well as its timing, the no- solicitation rule posted on the company bulletin board constituted illegal interference with the employees' ex- ercise of their Section 7 rights. I do not agree. Regarding the scope of the rule, it proscribed union activity only during "working time," and expressly per- mitted solicitations on company premises during free time. As such, the rule was clearly proper on -its face under the rationale set forth in the Essex International case.2 - - Regarding the timing of the promulgation of the no-solicitation rule during the union campaign, I do not agree with the Administrative Law Judge that it justifies the conclusion that Respondent acted with the intention or necessary effect of interfering with em- ployees' rights to organize. As noted above, the rule was valid on its face, applying to working time only. Moreover, the rule carries with it its own justification, providing that "between now and the election, it is essential that every employee continue to render service we have always given to our patients." The Board has heretofore recognized that the nature of a hospital's operation and its facilities may provide cause for spe- cial consideration, in that organizing activity in hospi- tals may be more disruptive of the productive activity involved, i.e., patient care, than that engaged in elsewhere.' Respondent might well have anticipated solicitation rule, but rather was designed to thwart Vella's union activities in violation of Sec. 8(a)(1) of the Act 2 Essex International, Inc., 211 NLRB 749 (1974). 3 In Guyan Valley Hospital, Inc, 198 NLRB 107 (1972), for example, we adopted the Trial Examiner 's Decision , which stated: [It] must be recalled that the Respondent's facility is not a manufactur- ing plant, it is a hospital And it is in the nature of hospitals that certain of the-working areas (hallways, elevators, stairs, patients' rooms, gift shops, etc.) are necessarily open to the use of patients and to visitors. Further, the hospital services ill individuals who, in their weakened condition, may readily be upset if they overhear antiunion-prounion Continued - 217 NLRB No. 55 332 DECISIONS OI; NATIONAL LABOR RELATIONS BOARD an expansion of discussion and solicitation with the onset of the union campaign. As this could have inter- fered with the productive effort of the hospital, I would find that it was reasonable to stress the need for a continuing effort to sustain patient services by way of the no-solicitation rule, and that in'so doing Respon- dent's conduct was not illegal. Furthermore , the rule restricts all solicitations in an evenhanded manner, explicitly stating that "any other kind of solicitation , such as for the United Fund, can- not be permitted [during working time] ." I find nothing in the record to indicate that Respondent had applied the rule disparately by permitting solicitations for pur- poses unrelated to the organizing campaign . There is also no indication in the record of any additional fac- tors or combination of factors which we have in the past found necessary to rebut the presumptive validity of a rule banning solicitations only during worktime on the basis of the timing of its promulgation , or dis- criminatory motivation.' Accordingly, I find, as in Se- quoyah Spinning Mills, Inc., 194 NLRB 1175 (1972), that the mere timing of promulgation of a facially valid no-solicitation rule during a union organizing cam- paign , absent more, is insufficient evidence to support a conclusion that the rule was discriminatorily moti- vated or enforced . I disavow the explicit and implicit findings of the Administrative Law Judge that Respon- dent 's no-solicitation rule was either in itself illegal from the standpoint of scope or timing or that it was improperly applies and, therefore, could not be used by Respondent to defend any of its actions herein, or that it provides strong evidence of union animus bearing on the matters contested. My colleagues reject Respondent 's contention that it did not violate Section 8(a)(1) in two separate incidents involving employees Stapleton and Vella because it was policing its no-solicitation rule. I agree with Members Fanning and Jenkins , for the reasons given by them, that , with respect to Stapleton, Administrator Bur- sten's interrogations have nothing to do with the rule and constitute a violation of Section 8(a)(1) because of their coercive intrusion into the exercise of rights guar- anteed employees under Section 7 of the Act. Similarly, with regard to the Vella incident, I agree with them that the only reasonable interpretation of Bursten's re- marks to Vella when he summoned her to his office was that they were intended to include Vella's union activi- ties as a whole and were not simply being directed toward the enforcement of the valid no-solicitation arguments among employees while they (the patients) are in their rooms or in the halls or elevators . And a hospital need not wait until an untoward incident actually takes place before undertaking reason- able measures to anticipate and forestall such an occurrence. , 4 See, e.g., Hosiery Corporation ofAmerica, 175 NLRB 180 (1969); State Chemical Company, 166 NLRB 455 (1967), Pepsi Cola Bottlers of Miami, Inc, 155 NLRB 527 (1965) rule. I , therefore , concur in the finding that Bursten's conduct was not directed towards policing the no- solicitation rule, but rather was designed to thwart Vel- la's union activities in violation of Section 8(a)(1). The Administrative Law Judge found two other vio- lations of Section 8(a)(1) by Bursten with which I do not agree . He found that Bursten coercively interro- gated Vella in violation of the Act. According to the Administrative Law Judge, Bursten called Vella to his office in an attempt to persuade her to abandon both the union cause and its in -house leader, William Kap- lan. Vella's uncontradicted testimony regarding this interview was that in a private conversation in Bur- sten's office Mr. Bursten asked me if I was-well , he started off by stating that he thought that I was a more intelli- gent person than to have got involved with a radi- cal, with Bill Kaplan. And, he asked me if I knew Bill's political history, to which I replied that I had. He told me that his books had been confis- cated or stolen sometime during the weekend. And, I replied that I knew nothing about it. And I was-I think I asked him what he meant by telling me that. He didn't respond. " Bursten 's question to Vella did not require her to dis- close her affiliation with the Union. Rather, the inquiry was directed solely as to her personal knowledge of a fellow employee's political history, and the comment, while critical of Kaplan, cannot be regarded as coer- cive . I am thus unable to infer that Bursten unlawfully interrogated Vella, or that his remarks to her constitute a threat, expressed or implied. Accordingly, I do not adopt the Administrative Law Judge's finding that this conversation violated Section 8(a)(1) of the Act. Contrary to the Administrative Law-Judge, I would not find a violation of Section 8(a)(1) with respect to Bursten's remarks to employees urging them to select SEIU Local 150 over Local 1199W, National Union of Hospital and Health Care Employees, AFL-CIO. The Administrative Law Judge found that Bursten stated at a meeting of employees in September 28 that the usual course of nursing home employees to follow when they wanted to organize was to become members of SEIU Local 150, not Local 1199W. He was also found to have referred to Local 1199W as a radical out-of-state union and to have stated that the union organizer for Local 1199W had lied to the employees about Shorewood's profits margin . Apart from these disparaging remarks, which I view as in the nature of campaign propaganda, and not coercive or threatening in any respect, Bur- sten's comments amounted to no more than a wholly lawful expression of views as to the relative merit of one union as compared to another . An employer is free under Section 8(c) to express his views as to whether SHOREWOOD MANOR NURSING HOME he prefers a union or no union, and in my view, by parity of reasoning, an employer is equally free to ex- press his preference between competing unions in the absence of coercive remarks or financial or other pro- hibited assistance to either or any of them. In all other respects, I agree with my colleagues and the Administrative Law Judge as to his Decision. DECISION FINDINGS OF FACT WALTER H. MALONEY, JR, Administrative Law Judge: This case came on for hearing before me on May 14 and 15, 1974, in Milwaukee, Wisconsin. The hearing was held upon a com- plaint, issued by the Regional Director for Region 30 of the Board, which alleges that the Respondent Shorewood Manor Nursing Home & Rehabilitation Center violated Section 8(a)(1) and (3) of the Act.' In particular, the complaint al- leges that the Respondent unlawfully attempted to persuade employees to withdraw their support for the Union by solicit- ing support for a rival union, that is unlawfully interrogated employees concerning their union activities, that it threat- ened to take disciplinary action against employees for engag- ing in union activities, that it unlawfully issued disciplinary warnings to employees for engaging in union activities, and that it discriminatorily discharged William Kaplan and Ar- della Gee. Respondent' denies the commission of acts which independently violate Section 8(a)(1) of the Act, and asserts that Kaplan and Gee were discharged for insubordination. Upon these contentions, the issues herein were drawn. I THE UNFAIR LABOR PRACTICES ALLEGED The Respondent is a partnership composed of Harold R. Bursten and his brother, Dr. Robert Bursten. Since 1970 it has operated a nursing and rehabilitation home in Shore- wood, Wisconsin. The home serves an average of 225 resident patients and employs approximately 130 regular full-time and part-time employees. An organizing drive was conducted among the employees of the Respondent commencing in the summer of 1973. While several employees were active in this effort, the undisputed and acknowledged in-house leader of this campaign was William Kaplan . Kaplan held meetings of employees at his home in the course of organizing the nursing home. It was he who initially contacted representatives of Local 1199W. He leafletted employees in front of the nursing home on several occasions, spoke on numerous occasions to 1 The principal formal papers in this case are as follows . charge filed by Local 1199W, National Union of Hospital and Health Care Employees, AFL-CIO (herein called Union) on January 11, 1974; complaint issued on April 19, 1974; Respondent's answer filed on April 29, 1974, hearing held in Milwaukee, Wisconsin, on May 14 and 15, 19'74, briefs filed by the General Counsel and the Respondent with me on June 17, 1974. 2 Respondent admits, and I find, that the Respondent is a partnership which operates a nursing home in Shorewood, a suburb of Milwaukee, Wisconsin . In this business during the past calendar year . It derived gross revenues in excess of $100 ,000 and received goods valued in excess of $10,000 from points and places outside the State of Wisconsin It is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. 333 employees with a view toward soliciting their support, dis- tributed union buttons, and obtained the signatures of be- tween 40 and 50 employees on designation cards. His most evident union activities are set forth below. Shortly after Bursten, the administrative head of the nurs- ing home, learned of the organizational effort, he held a meeting of employees in the chapel of the nursing home to discuss the drive.' Approximately 60 or 70 employees at- tended this meeting, which took place on September 28, the date on which the RC petition was filed. While Bursten had a number of points which he wished to discuss, the meeting had no structured format. It was advertised and conducted as a "rap" session, a term frequently applied by the Respond- ent to its employee meetings to emphasize the informality of the occasions and also to encourage interest and attendance among the many college-age personnel whom it employs. It was Bursten's avowed purpose to use the occasion to counter certain "misrepresentations " concerning the nursing home which assertedly had been circulated at union meetings by Local 1199W's staff organizer, Roger Jacobson. At this meet- ing, Bursten stated to employees that Jacobson had lied about the finances of the Respondent at a union organizing meeting, making specific reference to a statement he attributed to Jacobson that the Company was operating on a 22 percent profit margin. Bursten stated to the assembled employees that this was not so, that in fact the Company was operating at a loss, and that his financial records were open for inspection to substantiate his claim. Bursten made reference to so-called Title 19 rates, payments made to the nursing home by the State of Wisconsin under provisions of the Medicaid Pro- gram. He stated that while, in New Yoric State, medicaid payments amounted to $65 per day per patient and wage rates of nursing home personnel averaged $3 per hour, in Wiscon- sin the Title 19 rates were only $19 per day per patient, and hence the Respondent could only afford to pay employees $2 per hour, regardless of what the pay scale might be in New York. In the course of his talk, he also touched on insurance programs and other company benefits. Various employees took issue with Bursten in the course of the rap session. Some addressed comments directly to him and others made audible "asides" in the nature of peanut- gallery remarks which emanated from the rear of the room. Bursten's principle adversary in the course of the rap session was Kaplan, who repeatedly took issue with various of Bur- sten 's statements . There is no contention that Kaplan used- profanity, vulgarity, or sarcasm, but it appears clear that the discussion between the two men became heated and involved. J I take official notice of the fact that the Union filed a representation petition in Case 30-RC-2158 on September 28, 1973, by which it sought an election among all full -time and regular part-time employees of the Respondent, including licensed practical nurses. On October 9, the parties signed an agreement for an election which was approved by the Regional Director on October 10. The election was held on November 9. The Union won by a vote of 67 to 49, with 8 votes challenged On November 15, the Respondent herein filed objections to the conduct of the election. On Janu- ary 21, 1974, a hearing was held on certain of the Respondent's objections On February 7, the Hearing Officer issued a report in which he recom- mended that the remaining objections be overruled. On February 15, 1974, the Respondent filed exceptions to the Hearing Officer's Report On May 31, the Board remanded the case to the Regional Director for a hearing on Objection 4, relating to matters allegedly spoken by a Board agent to the company observer at the election, on which issues no evidentiary hearing had previously been held 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kaplan claimed that the Union had talked with Shorewood's exauditor and had obtained from him proof that the Re- spondent was financially able to pay better wages. In the course of the discussion, Bursten mentioned that the com- pany books had been temporarily missing, and also stated that the lugnuts on the wheel of the Volkswagen had been loosened to the point that the wheel of the car came off while he was driving on Oakland Avenue. Kaplan challenged Bur- sten to state whether he was accusing the Union of engaging in such tactics. Bursten stated that he was not directly doing so, but that he thought it peculiar that such events occurred just when the organizing drive was in progress when they did not happen before. Kaplan insisted that the Umon was nonvi- olent and that it did not engage in such tactics. In the course of his remarks, Bursten stated that the usual course for nursing home employees to follow when they wanted to organize was to become members of SEIU Local 150, not Local 1199W. He spoke disparagingly of Local 1199W, stating among other things that it was an out-of-state union and that it was a radical union. He claimed that Jacob- son, the Local 1199W organizer, had been fired by Local 150. Kaolan immediately retorted that, in his opinion, Local 150 was a corrupt union, that Local 1199W was a progressive and effective union, and that Jacobson had not been fired but had quit Local 150 because of his belief that it was corrupt. Kap- lan took advantage of the rap session to complain about low wages received by employees and about the lack of air-condi- tioning in the face of summer heat. Employee Kohls, a housekeeper, complained about the lack of fans in the laun- dry during the summer months, and employees John Bur- feind, John Spence, and Kate Spence criticized the quality of patient care. Complaints were also voiced about mistakes on paychecks attributable to the payroll clerk. Bursten replied that he was not aware of the heat problem in the laundry and the kitchen, but contended that he had statistics establishing that the-number of employees per patient was adequate and appropriate to provide a high quality of patient care. The meeting broke up after about 45 minutes or an hour On the following Monday, October 1, Bursten summoned Kaplan to his office and spoke, with him there in the presence of Kaplan's immediate supervisor, Mrs. Mary Beth Osinski, the director of the occupational therapy department. Bursten told Kaplan on this occasion that his behavior the previous Friday was rude and insubordinate. Kaplan's reply was that he did not have to discuss union organizing matters with Bursten and that the labor laws provided that he did not have to answer any of Bursten's questions. He denied being disre- spectful at the September 28 meeting. Bursten stated that he did not care if Kaplan talked to him or not, but that he would not tolerate rude and insubordinate conduct on Kaplan's part. Bursten told Kaplan that, if he continued to be disre- spectful, his conduct would be grounds for termination. Kap- lan declined to make any further comment on this occasion. After the meeting in Bursten's office had concluded, Mrs. Onsinski told Kaplan privately that his behavior was causing tension in her department and that this tension was detract- ing from patient care. She told Kaplan that he lacked com- mon courtesy- and that his attitude should improve. Helen Vella was also summoned to Bursten's office for a conference in the presence of his supervisor, Mrs. Suzanne Groth, the director of nursing services. During the course of the September 28 rap session , Miss Vella was heard to utter the, word "bullshit." Bursten asked her if the remark had been directed at something he had said, and she declined to an- swer. Bursten said that she had been soliciting union member- ships on the floors of the nursing home, and asked her if she realized such actions were grounds for termination. Miss Vella denied doing so, saying she had only signed up people on her lunch hour. Bursten said he did not want to hear of her doing so. He also told her he would like to have her reevaluate her position in supporting the Union. Several days later, Vella was again summoned to Bursten's office. On this occasion, Bursten said he thought she was more intelligent than to get mixed up with a radical like Kaplan. Bursten asked her if she was aware of Kaplan's political history. Vella said she knew about it. Bursten went on to mention that the Company's financial records had been missing. Vella asked him what he meant by that remark, so Bursten changed the subject. On or about October 10, Mrs. Suzanne Groth conducted a meeting of employees in the nursing home dining hall, This area is frequented by employees during their breaktime in order to obtain coffee which is available there. There is some dispute as to who was invited to attend this meeting. A notice announcing the meeting was placed on bulletin boards throughout the building, although it was not introduced into evidence at the hearing. It seems plain that the notice was directed to all aides and orderlies, without qualification, and urged their attendance at a meeting to be held in the dining room at an appointed hour. Mrs. Groth testified that the meeting was in the nature of a rap session which she and her immediate supervisory subordinate, Mrs. McGlone, wanted to hold because she had noticed that the emotional tempera- ture of her employees was rising. She wanted employees to have an opportunity to air their gripes and possibly work out solutions. There are 32 employees in this department. Esti- mates of attendance ranged from 7 to 20, depending on the point of the meeting to which reference is made. Kaplan, who is an orderly in the occupational therapy department, sought and obtained permission from Gwen Balling, his immediate supervisor, to attend this meeting. At the outset of the meeting, Mrs. Groth told Kaplan that the meeting was for nursing department -personnel, but she did not request or direct him to leave.' Kaplan remained. Dur- ing the course of the meeting, Kaplan spoke emphatically in support of the selling points in the Union's organizing drive, which by that time had reached the point of execution of a "stip" agreement for an election on November 9. While there is no suggestion that Kaplan used profanity, vulgarity, or sarcasm , or that he resorted to personal or ad hominem at- tacks, there is no doubt that he was the most voluble em- ployee spokesman in attendance. Mrs. Groth inquired whether there were difficulties that some of the assembled aides and orderlies were encountering at their duty stations. Various employees spoke up, including Kaplan. Kaplan's 4 This point creates an unusual conflict in testimony, giving rise to a "reverse" credibility problem. Mrs Groth, a Company witness, stated twice, and quite emphatically, that she did not in fact request Kaplan to leave. Helen Vella, a Umon activist summoned by the General Counsel, testified that, about three quarters of the way through the meeting, Mrs Groth asked Kaplan to leave, although she reluctantly permitted him to remain. I credit Mrs. Groth's version. SHOREWOOD MANOR NURSING HOME comments at the rap session were critical of working condi- tions at Shorewood Manor generally . He also commented adversely about poor wages and the Respondent's asserted unwillingness to pay its employees a living wage. Other em- ployees complained about the policy of transfering or rotating employees from floor to floor without previous notice. Many objected strongly to this practice. Other employees present complained about the quality of food which was served to patients, some felt that the load of patient care was too great for the staff to handle, and others complained about the lack of company fringe benefits. After the meeting concluded, Mrs. Groth complained to Bursten that Kaplan had monopolized and disrupted the meeting, and further complained that, as an occupational therapy orderly, he had no business being there at all. The following morning, Mrs. Osinski asked Gwen Balling whether she had given hun permission to attend. Miss Balling said that Kaplan had misrepresented to her that the meeting was an "in service," and on that basis she casually okayed his attendance on the condition that he complete his chores in the Occupational Therapy Department.' She testified that she would never have given him permission to attend if she had realized the meeting was limited to personnel in the nursing services department. On or about October 12, Bursten called Kaplan into a conference in his office which he conducted in the presence of Miss Balling. Bursten told Kaplan that he should not have attended Mrs. Groth's rap session, and that he was disruptive of the meeting. Kaplan replied that the meeting was for all aides and orderlies, including himself, and that he did not have to comment further because of protections afforded to him by the labor laws. Bursten told Kaplan not to be involved in union activities or union solicitation except during lunch or break time, forbade him from leaving his department ex- cept on official business, forbade him from participating in meetings which were none of his concern, and directed that a written notice be placed in Kaplan's personnel record that he had left his place of duty. In mid-October , Bursten conducted a second rap session for employees in the chapel. About 30 employees attended. At this meeting, Bursten again mentioned that the lugnuts had been removed from the wheel of this car and that the company books had been stolen. He admonished employees for being so foolish as to listen to radicals like Bill Kaplan and Helen Vella, and insinuated some connection between them and the Union, on one hand, and the missing books and lugnuts on the other hand. He said that the nursing home was losing money, a contention which Vella immediately chal- ' There was much testimony concerning the difference between a "rap session" and an "in-service ," as those terms are used at Shorewood Manor. The simple fact is that these terms have no universally accepted meaning. Employees are encouraged to attend "in-service" meetings, even though held in another department, because they are deemed to be of an educational nature and of benefit to all personnel engaged in patient care . Apparently "rap sessions" are not classified as "in-services " or vice versa , in the vocabu- lary of some personnel at Shorewood Manor. Whatever the jargon might connote , it is clear from the meeting notice which was generally circulated throughout the building that there were no specific exclusions from Mrs Groth's rap session, that Kaplan had supervisory permission to go to this meeting, whatever its designation, and that he had supervisory permission, however reluctant, to remain in attendance. I so find and conclude. 335 lenged . Bursten then went on. to discuss company insurance and fringe benefits. During this same preelection period, Kaplan had a chance meeting in the building with Mrs. Abby Trudeau, the former head of the housekeeping department.6 Mrs. T-rudeau warned Kaplan to "be careful" about his union activities, and told him that a suggestion had been made at a supervisor's meeting that the Respondent should get rid of Kaplan. She went on to wish Kaplan luck in his effors. Sometime in October , Bursten passed Susan Stapleton, a licensed practical nurse, as she was walking in a hallway. He called her into his office and stated to her that she was seen talking to Kaplan about the Union on the second floor about 1 p.m. on that day. Stapleton denied it was true to which Bursten asked, "Are you sure?" to which Stapleton gave the same reply. He then terminated the interview. Mrs. Helga Pfau became the director of the housekeeping department about the middle of October. Shortly thereafter, she mentioned to the members of her staff that she would like to transfer or rotate housekeeping aides from floor to floor. This suggestion met with considerable opposition . On Friday, December 28, she handed slips of paper to various housekeep- ing aides notifying them of their new floor assignments, effec- tive the following Monday. On the morning of December 28, she handed a notice to Mrs. Ardella Gee, who was then working on the second floor, instructing her to report to work the following week on the first floor.' Gee asked Pfau why she was making the transfer , and Pfau replied that she was doing so in order to familiarize all of the housekeeping per- sonnel with all of the areas of housekeeping work. Gee replied that she had already worked on the first floor, implying that she was familiar with the area and the routine. Pfau insisted on the transfer, and Gee complained that she had cleaned up on the second floor behind another employee who left it in a less than satisfactory condition and felt it was unfair to be sent to the first floor. When Pfau asked Gee whether she was going to accept the transfer, Gee simply replied that she did want to leave "her" floor. Pfau then said that if she did not transfer, she would have to seek employment elsewhere. Gee immediately sought counsel and assistance from another housekeeping aide, Beverly Boyce. The two of them gathered together several other housekeeping aides who were working on other floors and went as a group to Bursten's office. When they arrived, Bursten was not in, but Pfau was. Pfau simply told them that Bursten was not in and instructed them to go back to work. A while later, Pfau visited Gee again 6 Mrs Trudeau was the immediate predecessor of Mrs . Olga Pfau, the present incumbent in the position of director of the housekeeping depart- ment. Mrs . Pfau can fire individual employees and direct them in the per- formance of their duties She is admittedly a supervisor . I also conclude that, at the times material herein , Mrs. Trudeau was also a supervisor within the meaning of the Act. 7 Both parties agree that the work on the second floor for a housekeeping aide is more arduous than a comparable assignment on the first floor The reluctance of housekeeping aides and others to floor rotation does not stem so much from a reluctance to perform more exacting duties but from a desire to remain in contact with patients whom they knew and with daily routines which they were familiar. Mrs. Pfau described the feeling as a reluctance of personnel to leave their respective niches . Her desire to rotate personnel was to familiarize all personnel under her supervision with all facets of the nursing home housekeeping operation, so that, in event of absences or shortages of personnel, any housekeeping aide could readily be reassigned to fill any vacancy. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and inquired whether she was going to accept` the transfer. Gee refused, and Pfau fired her. She wrote out a discharge slip and handed it to Gee, requesting that Gee place a written acknowledgement on the slip. Gee refused! The next week, Gee returned to the nursing home to see Bursten. Gee, Bursten, and Pfau had a brief conference in Bursten's office. Bursten told Gee that, in such matters as personnel assignment, he was leaving the matter in Pfau's hands and that he in effect had ratified her action in discharg- ing Gee for refusal to relocate her work station on the first floor. On January 10, 1974, a large number of employees, includ- ing Kaplan, received a notice in their pay envelopes from the company bookkeeepr which read as follows: MEMO To: All Personnel All employees working the following shifts: 7:15 a.m. thru 3:30 p.m. 3:15 p.m. thru 11:30 p.m. night 11:15 p.m. thru 7:30 a.m. will be paid 7-3/4 hours which reflects the hours worked after deducting 1/2 hour for the meal break. In the past you have been paid 8 hours for the same shifts due to an error or misunderstanding in computing time. Business Office s/ LaVina Parrish Controller Immediately upon receiving this notice, Kaplan and Vella gathered together a number of nurses aides, housekeeping aides, and others and went in a body to Bursten's office to inquire about this action and to protest it. When about 15 of 16 employees arrived at Bursten's office, he was talking on the telephone. When he finished his call, they entered the office at Bursten's invitation. Bursten looked to Kaplan and asked him what was the trouble. The initial response came from a nurse aide, Helen Irby, who proffered the notice in question to Bursten and voiced a complaint of how could the nursing home resort to this method of cutting wages when wages were already so low to begin with. Bursten professed ignorance of the memo, looked at it, and then said that it did not apply to housekeeping aides, who worked different shifts.' He requested housekeeping aides to leave the meet- ing. They left. Kaplan began to complain to Bursten that wages were terribly low, that Bursten was never willing to bargain with the Union despite the fact that the Union had won the elec- tion 2 months previously, and that he was avoiding his obliga- tion to bargain collectively by taking frivolous appeals in the S Pfau denies that a confrontation ever took place in Bursten's office between herself and the assembled employees. I discredit this portion of Pfau's testimony and credit the corroborated versions supplied by the em- ployees who were present on this occasion. 9 It has been a practice at the nursing home to require nurses aides to report to work 15 minutes after the beginning of the normal shift hour worked by the nurses whom they assist. The 15 minute interval gives nurses coming on duty an opportunity to review the condition of patients, as set forth in reports by the nurses going off duty, before beginning their daily routine, and before beginning to utilize the services of these assistants representation case. Bursten replied that he was not appealing the representation case; rather it was his attorneys who were doing so. At this point, Burstefi asked Kaplan to leave; He said that the memo in question did not affect occupational therapy orderlies but was confined to nurses aides and, as such, did not apply to Kaplan. Kaplan replied that he did not think he should leave since he was their spokesman, and argued further to Bursten that if he could do this to nurses' aides, he could do the same thing to him. Kaplan told Bursten that if he did not leave the meeting, he would be terminated. Kaplan refused to leave, and Bursten told him flat out that he was fired. Kaplan still refused to leave, so Bursten called the Shorewood police and reported that a trespasser was on the premises who refused to leave. During the ensuing few minutes, Kaplan accused Bursten of subverting the demo- cratic process, but told Bursten he would leave if he would promise to listen to the remaining personnel. Bursten said he would not negotiate with anyone and that it was illegal to negotiate at this point because an appeal of the representation case was still pending. He refused to give Kaplan any assur- ance on any point because Kaplan had been terminated. A policeman appeared a few minutes later, and when he did, Kaplan left without further incident. The meeting continued a few minutes longer with those still remaining in the office. Among those remaining were Helen Vella, a ward clerk, and Gerry Metcalf and Sherry Page, who are nurses aides. Page asked Bursten if she wanted her to leave, as she worked a 6-to-2:30 shift as nurses aide and was not on the shifts which suffered the cut back. Bursten told her to remain. Metcalf and Vella were not affected di- rectly by the cut in hours, although they are members of the nursing services department. They also remained. Bursten continued to discuss the grievance with the employees who were present. He promised to make some kind of equitable adjustment of the matter,, although nothing definite was ei- ther suggested or agreed upon. He did promise that the cut in wages would not be applied retroactively. II. DISCUSSION AND ANALYSIS A. The Independent Violations of Section 8(a)(1) of the Act The General Counsel has not alleged that the no-solicita- tion rule posted by the Respondent midway during the organ- izational campaign constituted a violation of Section 8(a)(1) of the Act, either by virtue of the scope of the rule or because of the timing of the announcement. Accordingly, no finding will be made that the imposition of this rule is per sea viola- tion of the Act. However, because the existence of this rule is woven into the fabric of this case and makes its appearance in connection with various allegations, more than passing attention must be given to it. It has long been held that a prohibition against soliciting or engaging in union activities while on the job and on com- pany property during working hours is presumptively valid unless promulgated or enforced for discriminatory purposes. Serv-Air, Inc., 161 NLRB 382 (1966); Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 527 (1965); Ward Manufacturing Company, Inc., 152 NLRB 1270 (1965); Walton Manufactur- ing Company, 126 NLRB 697 (1960). The premise for this rule is that an employer may legitimately insist to his em- SHOREWOOD MANOR NURSING HOME ployees that worktime is for work and not for some collateral activity. However, if it appears that the no-solicitation rule goes beyond banning solicitations during worktime, or if it appears that the purpose of the rule is specifically to thwart an organizing drive, the promulgation and enforcement of the rule constitute violations of Section 8(a)(1) of the Act. Telex Corporation, 171 NLRB 1155 (1968); TRW, Inc., 161 NLRB 690 (1966); Ulrad, 185 NLRB 434 (1970); Central Power and Light Company, 173 NLRB 287 (1968). Where the rule an- nounced is ambiguous in its scope and content, the risk that it is or can be construed as an unlawful prohibition against the exercise of Section 7 rights falls on the employer. N.L.R.B. v. Harold Miller, d/b/a Miller-Charles and Company, 341 F.2d 870 (C.A. 2, 1965). The rule posted by the Company on its bulletin board following the commencement to the organizing drive read: NOTICE TO ALL EMPLOYEES A union from New York has filed a petition with the NLRB to hold an election on November 9 on the ques- tion of whether our employees want their union to repre- sent them in their dealings with management . Between now and the election, it is essential that every employee continue to render service we have always given to our patients. Accordingly, this notice serves as a reminder to everyone about our longstanding policy that working time is for the care of patients and discussions or activi- ties during working time relating to the union 's organiza- tional attempts or any other kind of solicitation, such as for the United Fund, cannot be permitted. Employees violating this rule will receive appropriate discipline, ranging from a warning to immediate discharge. Employees are free to carry on discussion and solicita- tions during their lunch hour or other nonworking time. Both by the timing of the posting of this notice and by the contents of the notice, it is clear that it was promulgated to put the quietus on union activity at Shorewood Manor during the preelection period. The reference to "our longstanding policy" does not save it from the taint of illegality, since it clearly appears from testimony in the record that, prior to the onset of the organizing drive, the Respondent had no policy whatsoever forbidding solicitations on company time or com- pany premises by its employees. Moreover, this newly pro- mulgated rule against "discussions or activities during work- ing time relating to the union 's organizational attempts" was construed by 'the Respondent to prohibit employees from voicing prounion sentiments at employee gripe sessions, or "rap" sessions, specifically called by the employer for the purpose of examining employee sentiment and the voicing of employee complaints. Just as worktime is for working, by the same token, rap time is for rapping. If an employer provides his employees a forum for this purpose, he can hardly be heard to complain when union sympathizers among them use the occasion to voice union sentiments and to challenge provocative antiunion statements. Bursten's construction of his no-solicitation rule was broad enough to prohibit voicing of prounion statements at company rap sessions , and hence was an interference with the exercise of Section 7 rights. Thus, from the standpoint of its scope as well as its timing, 337 the rule posted on the company bulletin board was an illegal interference with protected rights. The acts of the Respond- ent hereinafter found to be illegal do not drive their unlawful coloration from considerations relating to the posted rule. However, the fact that this rule is illegal does preclude the Respondent from relying on it either to explain or defend its actions. It also provides strong evidence of animus, which bears on other matters specifically alleged. The complaint specifically asserts that the Respondent at- tempted to persuade its employees to withdraw their support for the Union by soliciting their support for a rival union. Such conduct has long been held to fall under the proscrip- tion of the Act. Abex Corporation Engineered Products Divi- sion, 162 NLRB 328 (1966); Auburn Rubber Company, Inc., 156 NLRB 301 (1965); 3313 Realty Corporation, t/a Hilton Nursing Home, 204 NLRB 107 (1973). In his speech to em- ployees in the chapel of the nursing home on September 28, Bursten disparaged the Charging Party, calling it a radical, out-of-state union and demeaning the status of Jacobson, its staff organizer. He also insinuated, without positively stating, that Local 1199W was responsible for vandalism and larceny relating to company property which had recently occurred. However, in his remarks, Bursten went beyond mere slander by also suggesting to assembled employees that, instead of Local 1199W, they should select SEIU Local 150 if they wanted to join a union. I conclude that , in making such a statement, Respondent interfered with the Section 7 rights of its employees in violation of Section 8(a)(1) of the Act. Early in October, Bursten summoned employee Vella to his office in an attempt to pursuade her to abandon both the union cause and its in-house leader, William Kaplan . In this course of this antiunion effort, he inquired if she was aware of Kaplan's political history. At or about this same point in time, Bursten called employee Susan Stapleton into his office and confronted her with the accusation that she had been seen talking about the Union to Kaplan in the hall, an accusa- tion which required her to disclose whether or not she had been doing so. She denied the accusation. I conclude that, by the above-stated actions, the Respondent herein coercively interrogated employees within the meaning of Section 8(a)(1) of the Act. Early in October, Supervisor Trudeau encountered Kaplan on the stairs and told him of a conversation which had taken place at a supervisors' meeting in which the suggestion had been made that Kaplan be terminated for his union activities. Mrs. Trudeau warned Kaplan to be careful. While this warn- ing was well-meant and was imparted in a friendly manner, its effect is necessarily intimidating. Accordingly, I conclude that, by these statements, Respondent violated Section 8(a)(1) of the Act. Two warnings given by Bursten to Kaplan, and one given to him by Vella were not so friendly. Before considering the substance of these conversations, it is well to reflect first on the rights and privileges of the parties in regard to the inci- dents which gave rise to these warnings , because these consid- erations bear not only on the nature of the warnings but also on the question of Kaplan's ultimate removal. The thrust of Bursten's warnings, as well as the termination which they foreshadowed, is that Kaplan and to a lesser extent Vella were guilty of insubordination by their conduct at the general rap session of September 28 and by Kaplan's conduct at the 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nursing department rap session of October 10. In operating a business and in carrying out the functions of management, an employer has the right to take measures aimed at main- taining order and discipline within his business . Normally, employee remarks and actions, performed in the course of an employment situation and designed to embarass the employer or to impede the operations of the commercial enterprise in which it is engaged , are ample grounds for discipline, includ- ing warnings or discharge . A host of cases so hold . 10 How- ever, where activity protected by Section 7 or by Section 8(a)(3) of the Act comes into play, the congressional policy embodied in the Act serves as marked limitation on the right to reprimand or discharge an employee for what might ap- pear to be insubordination , because, when viewed from a certain limited perspective , much if not all Section 7 activity is by its nature "insubordinate." Section 7 certainly impinges on the common law right of an employer to run his business as his sole and exclusive property. Employee conduct in the course of a grievance proceeding has long been held to be privileged from employer reprisal , even though in a regular employment context the same conduct might readily appear insubordinate , because in such an arena, an employer and his employees address each other not as master and servant but as equals in an industrial or commercial community . Bettcher Manufacturing Corp., 76 NLRB 526 (1948); N.P. Nelson Iron Works, Inc., 80 NLRB 788 (1948 ); Guernsey-Muskingum Electric Cooperative, Inc., 124 NLRB 618 (1959); Thor Power Tool Company, 148 NLRB 1379 (1964), enfd . 351 F.2d 584 (C.A. 7, 1965); Huttig Sash and Door Company, 154 NLRB 1567 (1968); Hugh H. Wilson Corporation , 171 NLRB 1040 (1968), enfd. 414' F .2d 1345 (C.A. 3, 1969); Crown Central Petroleum Company, 177 NLRB 322 (1970), enfd . 430 F.2d 724 (C.A. 5, 1970). Carbet Corporation, 191 NLRB 892 (1971); Will and Baumer Candle Company, 206 NLRB 772 (1973). As this status is derived from Section 7 of the Act, it is immaterial whether the conduct in question takes place in the processing of a formal grievance through conventional grievance machinery with the assistance of a recognized bar- gaining agent , or directly between employees and their em- ployer in situations where no recognized bargaining agent exists. As the Seventh Circuit pointed out long ago, "A proper construction [of Section 7] is that the employees shall have the right to engage in concerted activities even though no union activity be involved , or collective bargaining con- templated." N.L.R.B. v. Phoenix Mutual Life Insurance Company, 167 F . 2d 983, at 988 , (C.A. 7, 1948), cert. denied 335 U .S. 845. In the present case, Bursten held a rap session for the avowed purpose of stimulating employee participation. This mod description of the September 28 meeting is the em- ployer's own terminology . In the course of the meeting, Burs- ten made several statements which were clearly provocative of a hostile reaction . He disparaged Local 1199W in the most unflattering terms, calling its staff organizer a liar, claimed he 10 Martin Theatres of Georgia, Inc, 169 NLRB 108 (1968), Steve Aloe Ford Inc., 179 NLRB 229 (1969); Calms Combining Company, 184 NLRB 914 (1970); Hunter Division, Robbins and Myers, Inc, 173 NLRB 710 (1968); Southwestern Bell Telephone Company, 190 NLRB 427 (1971); American Beef Packers, Inc, 196 NLRB 875 (1972), Packer Sales Corpora- tion, 199 NLRB 912 (1972); Passaic Crushed Stone Co., Inc, 206 NLRB 81 1 (1973) was fired from his previous job, and hinted without actually saying, that Local 1199W was guilty of criminal conduct. Bursten could easily have anticipated a spirited rejoiner from Union adherents in attendance, and that is just exactly what he got. The meeting resulted in a direct confrontation be- tween two leading protagonists. As Kaplan described the meeting, the exchange of remarks "flowed ." He would "flow" and then Bursten would "flow." Bursten objected to being interrupted by Kaplan, but he never objected to a gen- eral format involving the ebb and flow of comments voicing employee sentiment. What Bursten really objected to was the ability and the spunk of an articulate and persuasive union spokesman in countering his antinunion remarks. Kaplan seized on the opportunity to turn the rap session to union advantage, and this was his principal sin. While Bursten wanted to hold a "rap" session, he did not want to "let it all hang out." The fact that the exchange between the two in- dividuals became heated was not only understandable, but, in the light of Bursten's provocative remarks, almost unavoida- ble. However, such a spirited disputation, taking place in such a privileged circumstance, does not amount to .insubor- dination. When, on the following Monday morning, Bursten called Kaplan on the carpet and threatened to fire him for engaging in such activities , he was in effect warning Kaplan not to do what Section 7 gives him the right to do, and Kaplan indicated as much to Bursten on that occasion. Ac- cordingly, Bursten 's warning violates Section 8(a)(1) of the Act. I so find and conclude. The same rationale holds true of the October 10 incident involving the meeting conducted by Mrs. Groth and Mrs. McGlone. This meeting was held on the same day that the Regional Director approved an agreement between the Com- pany and the Union setting November 9 as an election date. It was called by Mrs. Groth because she felt that employee "temperatures were rising." It was also designed to follow the same informal , unstructured pattern of Bursten 's earlier dis- cussion session. Much has been made about the fact that Kaplan was not supposed to attend this session. This conten- tion is a track-covering afterthought dreamed up by middle- management when they too were called on the carpet. Kaplan had specific permission to attend, and, had he sat quietly in attendance throughout the meeting his presence would never have been the subject of a second disciplinary warning nor of an unfair labor practice proceeding. Kaplan's fault was not that he attended but that he spoke up, again turning to union advantage a meeting aimed at pacifying employees during the course of a representation election campaign. As in the case of the earlier meeting, no one suggests that Kaplan used vulgarity, profanity, or resorted to personal or ad hominem remarks. He talked a lot, and what he said was to press union arguments in the pending election concerning low wage rates and poor working conditions. However, at no time was he asked to leave. For these remarks, Kaplan was severely chas- tised by Bursten, and given further instructions limiting his union activities. In so reprimanding Kaplan, the Respondent again violated Section 8(a)(1) of the Act. In the aftermath of the September 28 meeting, Vella was also summoned to Bursten's office. After discussing the lan- guage which she employed at the meeting, Kaplan warned her about soliciting union memberships on company property and asked her to reevaluate her position in support of the SHOREWOOD MANOR NURSING HOME Union. In making a broad and unqualified threat to discharge Vella for soliciting union memberships on company property, Bursten violated Section 8(a)(1) of the Act. The Discharge of Ardella Gee There is no doubt that Ardella Gee was a union supporter and gave more than lip service to the union cause. The prob- lem presented by the General Counsel's contention lies in establishing some causal connection between Gee's admitted union activity and her removal from the Respondent payroll. On December 28, Gee, as well as all other housekeepers, was informed by Pfau that they were being reassigned to other floors. Pfau's rationale in rotating housekeeping personnel may have been questionable in the eyes of her employees, but her right to make these changes was well within her preroga- tives. There is no suggestion that her decision was prompted by discriminatory or antiunion motives, or that Gee was somehow being singled out for special treatment. Had Gee complied with Pfau's directive, there is little doubt but that she would still be on the Company's payroll. However, for reasons which have only been vaguely articulated, Gee de- clined to accept the reassignment and told Pfau of her feeling. Appreciating the delicacy of the situation, and thereby evi- dencing a genuine desire to retain Gee as an employee, Pfau did not immediately press the point but allowed matters to stand temporarily with a warning that, if Gee persisted in her refusal, she would be terminated. Gee and others attempted by concerted action to bring pressure to bear in support of their dislike for the reassignment order but Pfau stood fast. It was not until Gee was ordered for the second time to accept a reassignment from the second floor to the first floor that Pfau terminated her. At this point, Pfau had only two alternatives-to rescind the order as to Gee, or to terminate her, since Gee persisted in a refusal to obey. The General Counsel argues that the precipitating cause of the discharge was the effort of Gee and others to bring pres- sure through concerted protected activity to force Pfau to rescind her order. This argument ignores a sequence of events, established by Gee's own testimony, that Pfau had given Gee the choice of complying or leaving before, and not after, Gee and her-fellow employees went as a body to Bur- sten's office. What occurred after this exercise of Section 7 rights was that Pfau carried out a previously announced in- tention, when she again repeated her directive to Gee and Gee again declined to obey it. By persisting in a refusal to obey, Gee sealed her own fate. In my judgment, Gee was guilty of a clear and repeated refusal to accede to a legitimate order relating to the actual performance of duties she was being paid to perform, and as such was insubordinate in the proper application of that term. It was such insubordination, and no other reason, that prompted Pfau's decision to fire Gee. Accordingly, I con- clude that Gee was discharged for cause, and in so conclud- ing, will recommend that the Board dismiss paragraph 7 of the complaint herein. C. The Discharge of William Kaplan The discharge of William Kaplan is quite another matter. He was not discharged for refusing to obey an order relating 339 to the performance of services on behalf of his employer. He was discharged in the midst of engaging in union activities, and in concerted, protected, activities because he persisted in engaging in such activities. It is such conduct the Respondent calls insubordinate. - - By January 10, 1974, Kaplan was already well established in the mind of the Respondent' s management not as just another union activist but as the No. 1 union champion on its payroll. As "Numero Uno," Kaplan had already incurred the wrath of Bursten on more than one occasion because of his similar and repeated "insubordinate" conduct. On this occasion, employees throughout the bargaining unit, includ- ing Kaplan, had received a summary notification with their paychecks to the effect that employees working on certain stated shifts would suffer a cut in pay equal to one-fourth of an hour's pay per day. The notice triggered an immediate response in the form of a visitation to the office by about 15 employees drawn from various departments of the nursing home. It came as no surprise to Bursten that Kaplan was leading the delegation , and he looked to Kaplan to explain what the protest was all about. Another employee, Irby, actu- ally presented Bursten the notice from the company book- keeper announcing a cut in pay. After reading the notice, Bursten explained that it applied only to certain nurses aides who reported to work at the hours stated thereon, and that the notice did not affect the wages of other personnel. He asked the housekeeping aides who were in attendance to leave the meeting and they did. He asked Kaplan to leave since he was not a nurses aide whose pay was affected, and he refused to leave. Bursten did not ask Helen Vella, a ward clerk, to leave, nor did he ask Sherry Page, a nurses aide who worked a shift which did not undergo a pay cut, to leave, despite the fact that Page brought this fact to his attention. Bursten's reason for permitting them to stay was that they were employed in the same department with employees whose pay was affected. Kaplan told Bursten that lie was not leaving because he was the spokesman for the affected employees. This argument failed to impress Bursten . When Kaplan repeated his refusal to leave, Bursten fired him summarily and called the police when Kaplan refused to vacate the premises forthwith. Dur- ing the interval before the police arrived, Kaplan stated that he would voluntarily leave if Bursten would assure him that he would actually listen to employees in the Nursing Depart- ment. Bursten would make no such assurance . Kaplan also complained to Bursten that he was making a mockery out of the democratic process by filing frivolous objections to the election which the Union had won 2 months previously. After Kaplan left, the grievance meeting between Kaplan and the remaining employees continued for approximately 15 minutes. In eliminating Kaplan both from the meeting and from the bargaining unit , Bursten succeeded in eliminating the Union's most effective and articulate spokesman. Kaplan possessed a university degree and had taken postgraduate courses, so it is not surprising that many other employees in menial classifications who lacked his academic training and background looked to him as their spokesman and leader. Even though the election had taken place several -weeks ear- lier, employer objections were then (and still are) pending. But for Kaplan, there is little doubt that the organizational 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD campaign would have gotten off the ground or that the Union would have achieved so substantial a victory at the polls. Of necessity , Bursten was (and still is) looking forward to the possibility of a second election, and without Kaplan around to challenge and contradict him, his chances of victory at a second go-around-would be greatly improved. Bursten was not free to circumscribe the Section 7 rights of Kaplan or any other employee by imposing on them limita- tions derived from his own internal departmental structure. Kaplan was a member of the same wall-to-wall bargaining unit as were the nurses aides whose pay was being cut by the memorandum under discussion . As such, he was affected, if only indirectly, by the Company's action and he attempted to explain this fact to Bursten . Moreover , Bursten was not free, even in the circumstances where no recognized bargaining agent was in the picture, to pick and choose for his employees the spokesman who is to voice their complaint. This is what Bilrsten was attempting to do when he ordered Kaplan out of the room while permitting others to remain. When Kaplan refused to abide by this limitation on his statutory rights, Bursten fired him. In so doing , Bursten unlawfully interfered with the Section 7 rights of Kaplan and all other employees, in violation of Section 8(a)(1) of the Act. By removing from the payroll a known union adherent who was in the act of performing functions he felt required to perform by virtue of his leadership in the union organizing drive, Bursten also violated Section 8(a)(3) of the Act. I so find and conclude.- G & W Electric Specialty Company, 154 NLRB 1136 (1965); The Masonic and Eastern Star Home of the District of Co- lumbia, 206 NLRB 789 (1973); Carter Carburetor Corporation v. N.L.R.B., 140 F.2d 714 (C.A. 8, 1944); Mod- ern Motors, Inc. v. N.L.R.B., 198 F.2d 925 (C.A. 8, 1952); N.L.R.B. v. KennamentalInc., 182 F.2d 817 (C.A. 3, 1950); N.L.R.B. v. Phaostrom Instrument and Electronics Company, 344 F.2d 855 (C.A. 9, 1965); NLR.B. v. H. A. Holcombe d/b/a Holcombe Armative, 325 F.2d 508 (C.A. 5, 1963); N.L.R.B. v. Pepsi-Cola Bottling Company of Miami, 449 F.2d 824 (C.A. 5, 1971); N.L.R.B. v. J I Case, Betten- dorf Works,498 F.2d 919 (C.A. 8, 1952); N.L.R.B. v. Phoenix Mutual Life Insurance Company, supra, (C.A. 7, 1948);, N.L.R.B. v. Thor Power Tool Company, supra, (C.A. 7,1965); N.L.R.B. v. Illinois Tool Works, 153 F.2d 811 (C.A. 7, 1946); N.L.R.B. v. Washington Aluminum Company, 370 U.S. 9 (1962). Upon the foregoing findings of fact, and upon the entire record considered as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent , Harold R. Bursten and Dr. Robert Bur- sten , d/b/a Shorewood Manor Nursing Home & Rehabilita- tion Center , is an employer engaged in_ commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 1199W, National Union of Hospital and Health Care Employees , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging William Kaplan for engaging in union activities , as found above, Respondent violated Section 8(a)(3) of the Act. 4. By the acts and conduct set forth in Conclusion of Law 3; by discharging William Kaplan, also because he engaged in concerted, protected activities; by attempting to persuade em- ployees to withdraw their support for the Charging Party by soliciting support for another union ; by interrogating em- ployees concerning their union activities ; and by threatening employees with discharge and issuing them disciplinary warnings because they engaged in union activities or in con- certed, protected activities , the Respondent herein violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices have a close, inti- mate, and substantial effect on interstate commerce,, within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices , I will recommend that it be ordered to cease and desist therefrom, and to take certain affirmative actions designed to effectuate the policies and purposes of the Act. The recommended Order shall provide that the Re- spondent be required to offer to William Kaplan reinstate- ment to his former or a substantially equivalent job and to make him whole for loss of earnings in accordance with the Woolworth formula," with interest computed thereon at 6 percent per annum . I will also recommend that the Respond- ent be ordered to cease and desist from engaging in a repeti- tion of the conduct found to be illegal, or in any conduct which interferes with rights protected by Section 7 of the Act,12 and that it be required to post a notice advising its employees to this effect. Upon the foregoing findings of fact, conclusions of law, and upon the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER' 3 Respondent , Harold R. Bursten and Dr . Robert Bursten, d/b/a Shorewood Manor Nursing Home & Rehabilitation Center, and its agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against em- ployees in regard to hire or tenure of employment, or any term or condition of employment , because of their union or protected concerted activities. (b) Interrogating employees concerning their union activi- ties. (c) Attempting to persuade employees to withdraw their support from one union by soliciting support for another union. 11 F W Woolworth Company, 90 NLRB 289 (1950), 12 NL.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532 (C.A. 4, 1941). 13 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 SHOREWOOD MANOR NURSING HOME (d) Threatening employees with discharge or issuing them disciplinary warnings because they have engaged in union activities or in concerted, protected activities. (e) By any means or in any manner interfering with, re- straining, or coercing employees in the exercise of rights guar- anteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effec- tuate the purposes and policies of the Act: (a) Offer to William Kaplan immediate and full reinstate- ment to his former position, or in the event his former posi- tion no longer exists, to a substantially equivalent position, without prejudice to his seniority or to other rights he pre- viously enjoyed, and make him whole for any loss of pay suffered by reason of the discrimination found, in the manner described above in the section entitled "The Remedy." (b) Remove from any company records any warnings placed therein because William Kaplan engaged in union activities or concerted protected activities, as found herein. (c) Preserve, and upon request, make available to the Board or its agents for examination and copying all payroll and other records necessary to analyze the amount of back- pay due under the terms of this order. (d) Post at Respondent's place of business at Shorewood, Wisconsin, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's representative shall be posted immediately upon receipt thereof, and be maintained by the Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily placed. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered over by any other material. (e) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 341 IT IS ALSO RECOMMENDED that insofar as the complaint al- leges matters not found herein to have violated the Act, the complaint is hereby dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT solicit support for any union by request- ing employees to withdraw their support for another union. WE WILL NOT interrogate employees concerning their union sympathies and activities. WE WILL NOT threaten employees with discharge or is- sue disciplinary warnings because employees have en- gaged in union activities or in concerted protected activi- ties. WE WILL NOT discharge or otherwise discriminate against employees in the hire and tenure of employment because they have engaged in union activities or in con- certed protected activities. WE WILL NOT, by any means or in any manner, inter- fere with, restrain, or coerce any employees in the exer- cise or rights guaranteed to them by Section 7 of the Act. WE WILL offer to William Kaplan full and immediate reinstatement for his former or substantially equivalent employment and make him whole for any loss which he has suffered, with interest at 6 percent per annum. All of our employees are free to become or remain members of Local 1199W, National Union of Hospital and Health Care Employees, AFL-CIO, or any other labor organi- zation. 14 In the event the Board's Order in enforced by a Judgment of the United HAROLD R. BURSTEN AND DR ROBERT States Court of Appeals, the words in the notice reading "Posted by Order BURSTEN d/b/a SHOREWOOD MANOR of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the NURSING HOME & REHABILITATION National Labor Relations Board." CENTER