Western Care Nursing Home

National Labor Relations Board - Board Decisions

Jul 10, 1980

250 N.L.R.B. 509 (N.L.R.B. 1980)

WESTERN CARE NURSING HO()ME
Western Care, Inc. d/b/a Western Care Nursing
Home and United Food and Commercial Work-
ers International Union, Local 684, AFL-CIO-
CLC. Cases 19-CA-11143 and 19-CA-11231
July 10, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI.I O
On February 29, 1980, Administrative Law
Judge James M. Kennedy issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief, the
Charging Party filed exceptions, and the Respond-
ent filed answering briefs.
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 conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
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, Western Care,
Inc. d/b/a Western Care Nursing Home, Helena,
I Inadvertently, the Administrative Law Judge referred to employee
Flansburg as an epileptic. Epilepsy was not mentioned in the record with
respect to Flansburg, but with respect to another employee.
The General Counsel and the Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Weall Products, Inc., 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings
The General Counsel has also excepted to the Administrative Law
Judge's failure to make findings of violations of Sec. 8(aX1) of the Act in
addition to those violations he found. As all of the additional violations
thus claimed are similar to those already found, such additional findings
would be cumulative and would not affect the scope of the remedial
order, and we therefore find it unnecessary to pass on them.
a In dismissing the allegations that Respondent violated Sec. 8(a)(3) of
the Act by discharging three employees in retaliation for their support of
the Union. the Administrative Law Judge characterizes Administrator
Stokes as being myopic regarding her legal obligations but incapable of
firing anyone for union-related reasons. Such psychological profiling is,
of course, always hazardous. On this record, moreover, such conclusions
appear to he particularly unwarranted. Stokes expressly and repeatedly
threatened massive retaliation against employees who supported the
Union. then swore that she did not. similarly denying other 8(a)(1) con-
duct credibly attributed to her. This persuades us that Stokes ,sas indeed
capable (if blatant discriminatory conduct. However, the preponderance
of the credited evidence does not support the General Counsel's allega-
tion of 8(al 3) violations
250 NLRB No. 84
Montana, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order.
DECISION
SIA I MIENT OF1 IHI CASI
JAMI.S M. Ki-NNI )Y, Administrative Law Judge: This
case was heard before me at Helena, Montana, on July
20, 1979,1 pursuant to a second amended consolidated
complaint issued by the Regional Director for Region 19
on July 5 and which is based upon charges filed by the
predecessor of United Food and Commercial Workers
International Union, Local 684, AFL-CIO-CLC2
(herein called the Union). on February 22 (later amend-
ed) and March 26. The complaint alleges that Western
Care, Inc. d/b/a Western Care Nursing Home (herein
called Respondent), has engaged in certain violations of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (herein called the Act).
Issues
Whether or not Respondent prior to an National
Labor Relations Board representation election committed
various violations of Section 8(a)(1) of the Act to coerce
employees from voting for representation by the Union,
including interrogating employees about their union sym-
pathies and desires and how they would vote in the elec-
tion, creating the impression that their union activities
were under surveillance, promising or granting benefits,
threatening wage reductions, threatening to discharge
employees, threatening to cease business, stiffening the
penalty for missing shifts, and refusing to grant an em-
ployee a periodic pay increase. In addition, I must decide
whether the February 16 discharges of Roseann McCul-
loch, Nancy Smith, and Lila Mitchell violated Section
8(a)(3) of the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
Upon the entire record3 of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent admits it is a Montana corporation which
operates a nursing home in Helena. It further admits that
during the past year, in the course and conduct of its
business, its gross volume exceeded $100,000 and it annu-
ally purchases goods and materials valued in excess of
$50,000 from sources outside Montana. Accordingly it
All dates herein refer to 1979 unless otherwise indicated
Amended pursuant to a motilo granted at the hearing to shoe, the
Charging Party's new name
a The General Counsel's motion to withdraA tw o allegations, as set
forth on p. 17 of their brief. is gralnled
509
DI):CISIONS OF NATIONAl I ABOR RELATIONS BO()ARI)
admits, and I find it to be an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. 'iHI I ABOR OR(iGNIZA'TION INVOI VIIl)
Respondent admits, and I find, the Union to be a labor
organization within the meaning of Section 2(5) of the
Act.
III. THi AL. lEGiED UNFAIR LABOR PRAC'IICIES
A. Background and Participants
Respondent is a nursing home in Helena, Montana. It
employs approximately 85 people, although due to turn-
over many more persons than that are employed during
the course of a year. The corporation which owns the
facility is owned by Keith and Georgia Stokes. Mrs.
Stokes is the administrator of the home while her hus-
band serves as chairman of the board of directors. He
does not take an active role in the day-to-day operation
of the facility. Respondent's director of nursing during
the relevant period was Delores "Dodie" Rolando.
The Union's organizing effort began on November 19,
1978, when the Union's International representative, Jef-
frey Doyle, while having dinner with a family in Helena
and discussing an organizational effort elsewhere, ob-
tained the signatures of Jean Northey and Twyla Soren-
son, two of Respondent's employees. The remainder of
the organizing was carried out by Kathy Van Hook, an
organizer employed by Local 684. On December 1, 1978,
Doyle returned and went to the nursing home where he
presented Mrs. Stokes with a demand for recognition.
She did not believe Doyle represented her employees
and rebuffed him. He reports she stated that she did not
want a union in her nursing home, did not want her
people to join, and would fire people for organizing. He
recalls her saying she could not afford a union, that if a
union came in the nursing home would "go broke" and
would close its doors. She said that unions were on the
way out in the nursing home industry. Then she asked
him to leave. He also remembers her saying that there
had been unions in the nursing home before, but she had
gotten rid of them.
Also on December 1, 1978, the Union filed its petition
for a representation election. On December 8, 1978, Van
Hook and Union President Beverly Reinhart visited the
nursing home and spoke to Stokes. Again Stokes re-
buffed their effort to obtain a recognition agreement.
Van Hook tried again on December 12, 1978, with simi-
lar results.
It appears from the testimony that the principal em-
ployee organizer was Crystal Delp nee Sandru. It also
appears that the three employees who were allegedly dis-
charged in violation of Section 8(a)(3), Roseann McCul-
loch, Nancy Smith, and Lila Mitchell were not in the
forefront of the organizing movement.
After a hearing on the Union's petition, an election
was conducted on February 7 which the Union won and
thereafter became the certified representative of the em-
ployees.
B. Alleged Interfirence, Restrainl, and Coercion
All of the following incidents which are alleged to
have violated Section 8(a)(1) occurred after the petition
was filed on December 1, with the exception that Re-
spondent changed its policy regarding missed shifts
somewhat earlier. Most of the alleged misconduct is al-
leged to have been committed by Stokes although Ro-
lando is accused of having engaged in two instances of
unlawful interrogation.
1. The missed shift rule
It is undisputed that for a long period of time Re-
spondent has had difficulty in maintaining sufficient staff-
ing to cover each shift as desired. The problem has been
continuous since early 1978, if not before, and usually in-
volves employees scheduled to work who either "call
off' or who simply do not appear. The latter type of at-
tendance transgression is known as a "dump." Obviously
when either occurs it creates staffing problems. The first
situation, a call off, might be rectifiable if sufficient
notice is given by the employee. The second type, the
dump, is the more serious of the two because Respond-
ent's management would not become aware of the miss-
ing employee until after the shift had begun and would
have little opportunity to obtain a replacement. Over the
years Respondent has had a policy, somewhat unevenly
enforced, of discharging employees whose absenteeism
became chronic. So far as has been shown, the rule was
never reduced to writing until the incident which will be
described below. Nonetheless, most employees were
aware of the difficulties caused by excessive absenteeism
and most knew that if they failed to report to work on a
chronic basis they would be subject to some sort of disci-
pline, including discharge. The problem, according to
Mrs. Stokes and Rolando and supported to some extent
by all witnesses, had become quite serious in the late
summer and fall of 1978.
At some point in late 1978 Mrs. Stokes placed a notice
next to the timeclock. (G.C. Exh. 9.) It was later moved
to the bulletin board immediately above the clock. In es-
sence the notice, after reiterating the difficulties brought
on by excessive absenteeism, stated that effective No-
vember 1, 1978, anyone having three absences in a pay
period (I month) would be automatically terminated and
taken off the schedule. In addition, the notice also con-
tained a reference to Respondent's payroll rule regarding
salary advances. 4
The General Counsel contends that the three-miss rule
was promulgated as a response to the union organizing
drive. Respondent denies that, averring that the notice
was placed on the clock sometime in mid-October. The
General Counsel called a number of witnesses who testi-
fied that they did not see the document until November
or December. That of course does not mean that it was
4 Respondent's practice is to issue two checks per month. The first
check was called an advance even though it covered work already per-
formed Mrs Stokes explained the reason for that part of the notice was
to cut down on the number of payroll checks issued each month because
employees commonly asked for early or partial paychecks.
51()
Wt:SITERN CARE NURSIN(G H()ME:
not placed there earlier. None of those witnesses were
able to testify about the date it first appeared.
Respondent called four witnesses. Stokes, Rolando,
bookkeeper Freda Toner, and activities director/clerical
Ann Peaslee. Both Stokes and Rolando say the notice
was the result of a complaint that Rolando had made re-
garding excessive absences. Toner testified she recalled it
occurred during the time she was preparing the Septem-
ber payroll in October. She remembers seeing the docu-
ment before it was posted, and also remembers looking
at the document immediately afterwards. She testified
Respondent's three-miss rule was not a new rule as she
had become aware of it even before Rolando became
nursing director during the first part of 1978. Irene Sil-
berling, the nursing director before Rolando, had advised
her of the rule so Toner could make proper payroll en-
tries regarding terminations. Peaslee testified that she re-
members the notice was put up sometime in October be-
cause it contained an effective date of November 1, 1978.
I conclude and find that, based upon the foregoing tes-
timony, it is more probable that the notice was posted in
October rather than after November I. It appears to me
likely that any notice such as this would contain a grace
period so that offenders would have the opportunity to
correct their deficiencies. It is unlikely, therefore, that
the notice would be put up on an ex po.st facto basis.
Even if it were posted in early November. since the first
authorization cards were not signed until November 19,
and those were obtained somewhat by chance, it does
not seem likely that Stokes republished the rule as a
result of the organizing drive.
I regard the General Counsel's allegation with the re-
spect to this allegation to be unproven and shall recom-
mend its dismissal.
2. Witness descriptions of various alleged
misconduct
Lois Blair, a nurses aide, testified that in early Decem-
ber she went to Stokes' office to pick up her November
paycheck. She remembers Stokes asking her if she was
aware that the Union was trying to get in and when she
replied she was, Stokes asked her, "How do you feel
about that?" Blair gave a noncommittal reply. Stokes
then told her it was she who signed the paychecks even
if the Union did get in. In February Blair again went to
pick up her paycheck and Stokes told her that she had
given everyone a raise, but if the Union came in she
might have to take it back. She repeated her earlier state-
ment that she was the one who signed Blair's paycheck.
Lila Mitchell, the head nurses aide, testified that in
December when she went to get her paycheck Stokes
asked her if she was "for or against the Union." Mitchell
replied that she did not know. Stokes then told her she
was the one who signed the paychecks, not the Union.
She also asked Mitchell to "talk to the other employees
about the Union; tell them I don't want the Union." Also
in January Rolando asked Mitchell how she felt about
the Union.
Aide Penny Myler testified that during the first part of
December, when she went to get her paycheck from
Stokes, they had a discussion regarding the "pros and
cons" of the Union. Stokes told Myler she did not want
a union in her place. When Myler said that she favored
unionllization and believed that it was best for both the
employees and patient care, Stokes replied the Union did
not sign the paychecks.
Larry Villars, the head housekeeper, testified that
sometime in mid-November 1978, after he had signed a
union authorization card. he and his assistant. Margaret
Gerhart, were approached by Stokes who asked if they
were the union organizers. Gerhart confirmed the ques-
tioning but places the date as being in January. I credit
Gerhart's January date. When they denied involvement.
according to Gerhart, Stokes asked who had started the
Union. Villars also says Stokes asked for their opinions
about the Union.
Gerhart recalls that in early February when she went
to pick up her paycheck Stokes asked if she intended to
vote in the election and then told her that she "couldn't
have employees voting for the Union ... remember
who signs the checks." Villars testified that he had a
number of conversations, apprently 10 to 15, with Stokes
during which she "hinted" he should do something to
stop the organizing drive. He suggested circulating a
counterpetition but Stokes did not reply However. his
testimony on this point was vague and disoriented
Villars further alleged that Stokes had promised him a
raise about the first of the year and then threatened him
with a decrease, also saying that she would decrease the
entry level for new hires. It should be that Villars has a
pay dispute with Respondent which is proceeding in
forum. He claims he worked a large number of hours
which do not appear on timecard and has made a claim
for them. He no longer works for Respondent having
been discharged on approximately February 14. His last
day of work February 8 when he was injured in a bar
fight following the NLRB election. He later underwent
treatment for alcoholism. Villars is an admitted alcoholic
and appears to suffer from an inability to relate events as
they occurred. If he were not corroborated for the most
part by Gearhart I would discredit him. However, she
was most credible. Villars and Gerhart were cohabiting
time; thus, it is possible that Gerhart suffered from the
same anti-Respondent bias as Villars. Even so, it seemed
to me that she testified in a straightforward, candid
manner.
Frankly, I am unable to credit Villars regarding the
latter, uncorroborated incidents even though Stokes does
not specifically deny them. Villars was at times nearly
incoherent on the witness stand and was certainly disor-
iented. I cannot in good conscience find such testimony
sufficiently credible to draw the conclusions the General
Counsel alleges.
Pat Mahoney, an orderly, testified that on the Febru-
ary payday before the election Stokes pointed to her sig-
nature on his paycheck saying she was the one who
signed it, not the Union; she then said if the Union got in
she would reduce his pay from $3.05 per hour to $2.90
per hour. He denies she was merely calculating the
amount he would lose by paying union dues. He says she
repeated her signature remark a day or so later. He also
remembers an incident in early February at the nurses'
station where Stokes demanded to know who had folded
S I I
D[.ICISIONS ()F NAII()NAI LABOR REL.ATIONS BOARI)
up an item of Respondent's campaign propaganda and
said that anyone who folded it up could be fired. He also
says that about the same time she came to him saying she
had received a complaint from a patient's family regard-
ing his competence as an orderly and that the family had
asked her to fire him. She told him she would not be-
cause she considered him to be a good worker.
Stokes also spoke to Tara Anderson, a nurses aide, in
early February when Anderson came to the office to get
her paycheck. Anderson remembers Stokes gave her a
list of reasons why she should not vote for the Union.
The list included the statement that Medicaid and Medi-
care were cutting back their financial assistance and that
staffing would necessarily be reduced. Moreover, as
union members, their dues would be so high there would
be no real gain. Thus, concluded Stokes, employees
would get nothing from unionization.
Kitchen aide Jean Northey said that on February 2
when she went to Stokes to obtain her paycheck, Stokes
asked her why she should give it to her because she was
such a bad employee. Stokes accused Northey of taking
excessive breaks, not wearing her uniform, breaking
dishes, losing money, and being for the Union. Stokes
then repeated herself, finishing by saying she signed the
checks, not the Union, and that she did not know why
Northey should get a raise.
Crystal Sandru, a licensed practical nurse, testified that
on December I, 1978, she had a conversation with Ro-
lando during which Rolando asked her what she knew
about the Union. Rolando admits that. Sandru also says
Rolando asked her if Roseann McCulloch was involved.
In reply Sandru admitted she, not McCulloch, was the
organizer. On the following day Rolando directed
Sandru to see Stokes in her office. Those two had a con-
versation which lasted about an hour. During that time
Stokes told Sandru to read newspapers for they would
show that unions were a thing of the past and anyone
who thought a union could help them was a fool. Stokes
also stated she would deny employees increases in Janu-
ary if the Union got in. Sandru says Stokes had a list of
proposed increases. According to Sandru, Stokes also
told her that her lawyer had advised her to fire anyone
involved. Sandru protested that the law protected em-
ployees who engaged in union activities. Sandru recalls
Stokes replying, "there [are] a thousand ways to do it."
Although it is not alleged in the complaint as a viola-
tion although the General Counsel now urges me to
make such a finding, Sandru says that about January I
she told Rolando that she was considering taking a job at
a doctor's office. She says she told Rolando that she had
not yet made up her mind but would find out within a
day or so. When she learned the job had gone to some-
one else, she reported for work as usual but discovered
Rolando had taken her off the schedule and replaced
her. Sandru appealed to Stokes who later reinstated her
to a different shift. Rolando testified that Sandru had
told her she was quitting to start a new job on Monday
and couldn't give two weeks' notice. For that reason Ro-
lando replaced her that Monday.
Kitchen aide Sorenson also testified that approximately
I or 2 weeks before the election she had had a conversa-
tion with Stokes at the timeclock. Stokes asked Sorenson
how she intended to vote. Sorenson replied she did not
know. Then. Sorenson testified, Stokes said that if the
Union got in she would have to close the nursing home
as she could not afford a union. About a week later
Stokes again asked Sorenson how she intended to vote,
saying that if the Union got in there would be pay cuts,
and she would fire anyone who voted for the Union.
In January Lila Mitchell had a conversation with Ro-
lando in Rolando's office. Mitchell was not exactly cer-
tain when during January it occurred, but believes it was
during the first half of the month. Rolando simply asked
Mitchell how she felt about the Union and Mitchell re-
plied she did not know.
On January 30 the Union conducted a meeting at the
Four B's Cafeteria. Blair testified that shortly before the
meeting she heard Mrs. Stokes tell Peaslee and Toner to
"hurry up or they would be late." Blair heard no more
of the conversation but assumes Stokes was urging them
to attend the union meeting. Peaslee, Toner, and Stokes
all deny the incident. The General Counsel argues, nev-
ertheless, that the statement constitutes Stokes' attempt
to convey the impression that the employees' union ac-
tivities were under surveillance. I am unable to agree.
First, the remark, if made, could have meant anything. It
has not been shown to have been aimed at the union
meeting. Even if it was, Blair was not intended as the re-
cipient; she was only an eavesdropper and such an "im-
pression" was not being conveyed to her. Finally, the
remark is credibly denied by the others. I find the allega-
tion to be unproven.
After attending the meeting, Peaslee and Toner told
Stokes that the Union was transmitting some erroneous
information respecting Montana State financial reim-
bursement for staffing. It appears they reported the union
officials as referring to Respondent as having a large
number of "skilled nursing care" beds where in fact it
had only six. On the following day, apparently upset by
the misinformation that was being transmitted, Stokes
saw employees Mitchell, Nancy Smith, Jean Hammer-
backer, and Kathy Hammond in the dining room having
a coffeebreak. According to those employees she walked
up to the table with either a newspaper or other docu-
ment in her hand telling employees to read it in order to
learn how bad union representation was. She berated
them to some extent, calling them "stupid and ignorant"
for joining the Union and conducted herself in a very
angry manner. After the tirade was completed, Mitchell
spoke to her in the hallway saying she thought the out-
burst was uncalled for, and Stokes replied she thought
the employees were being disloyal to her. Almost imme-
diately thereafter Rolando asked Mitchell how she
thought the election would turn out and Mitchell replied
that she hought everyone would vote in favor of union
representation because of Stokes' outburst.
I have set forth the foregoing facts without detailing
either Stokes' or Rolando's versions. Stokes generally
denied the conduct though she admitted to some interro-
gation prior to her receiving notice that the Union's peti-
tion had been filed. She claims that after having received
the NLRB's "packet" she ceased such conduct. Rolando
was not asked about her part in most of these incidents
512
WESTERN CARE NURSING HOME
and that testimony stands admitted or rebutted. Frankly,
I was not particularly impressed with Stokes' denial re-
garding these instances, nor was I impressed by her con-
tentions that while she was opposed to unionization and
would engage in lawful conduct to persuade employees
to vote against it, that she really believed it was their de-
cision. I think it is clear that she did not heed the warn-
ings contained in the NLRB "packet", probably because
she did not recognize her conduct as unfair labor prac-
tices. (See the analysis in the next subsection.) I view her
as relatively naive regarding employee rights under the
Act; moreover, it appears that she does have a temper
which can get out of control. Nonetheless, I am not con-
vinced that her entire testimony should be discredited.
However, it is discredited with respect to the foregoing
matters.
Thus, I find that Respondent violated the Act when
Stokes and Rolando interrogated employees regarding
their union activities. Violations also occurred when
Stokes threatened to discharge employees, threatened to
reduce wages, asked employees how they intended to
vote in the election, said that unionization would be a
futile act,5 and threatened to close the nursing home.
3. Tara Anderson and Penney Lorenz
Nurses aide Tara Anderson was rehired on December
7 or 8, 1978, after interviewing with both Rolando and
later Stokes. Stokes told Anderson that her hourly wage
was to be $2.85 but that in January it would be raised to
$3 because the minimum wage was being increased.
While Stokes did not mention it, it is undisputed and An-
derson knew from her previous tenure that it was Re-
spondent's policy to give new hires an increase after 3
months. During the conversation Stokes told Anderson
that she wanted her to be a loyal employee and knew
she would be. Anderson remembers Stokes telling her
not to have anything to do with the union organizers.
She also remembers Stokes telling her that it was she
who signed the checks, not the Union, and it was the pa-
tients who determined the wages and nothing could
change that.
Anderson testified that she did not receive a wage in-
crease after 3 months. On January I the minimum wage
increased 25 cents, from S2.65 to $2.90 per hour. As
noted, Anderson testified that when she was hired Stokes
told her she would be increased from $2.85 to $3 on Jan-
uary 1. In fact, the increase was slightly larger, to $3.05.
Stokes testified that the January I increase was a "double
raise." She says she gave Anderson her 90-day raise after
21 days. It consisted of two stages, a 10-cent hourly raise
and a second 10-cent hourly raise. She said she took this
action because the Board's Guide, which she had re-
ceived, stated she could not give any raises "until it was
in the bargaining period." On January I she also gave an
across-the-board wage increase to the remaining employ-
ees, based on her view that the minimum wage increase
required a concomitant ripple effect for others.
' The futilit) of unionizaliion finding is not specifically alleged ill the
complaint hut was fully litigated and I Iherefore shall issue an appropriate
remedy Gerald G Gogilr d/h/ua ogin Trucking. 229 NL RH 529. fin
2(1977)
In March Anderson asked why she had not received
her 3-month increase and Stokes told her that she could
not give her a wage increase because the Union had been
voted in and she did not believe employees were allowed
raises unless there was a contract.
Penney Lorenz, a licensed practical nurse, was hired
in October 1978. She was aware of Repondent's policy
relating to holiday pay. She knew that the policy was to
give employees a day's pay for holidays not worked and
time and a half if they worked on the holiday. To be eli-
gible for holiday pay the employee had to have been em-
ployed at least 3 months. On New Years Day 1979
Lorenz was several days short of the 3-month employ-
ment requirement. Although she did not work that day
she decided to claim holiday pay to see if Respondent
would pay her anyway.
When she filled out her January timesheet she made
the claim. On February 3 or 4, only a few days before
the election, she picked up her paycheck from Stokes.
Stokes told her she was going to pay her for the holiday
even though she was not eligible for it. She said it was a
gift from her to Lorenz.
In viewing Stokes' conduct in both these incidents,
and in observing her in the witness stand, I became im-
pressed with Stokes' mental myopia regarding both the
law and her perception of complying with it. Under
most circumstances it would be easy to say that Stokes
was either bribing Lorenz to vote against the Union or
punishing Anderson out of pique because a majority had
voted for union representation. That, however, is too
easy and would not accurately reflect Stokes' attitude as
I perceived it.
I think it is fair to say that Stokes was strongly op-
posed to unionization and was willing to do much that
was unlawful to prevent it. But in self-analyzing her con-
duct she denies to herself that her acts were either un-
lawful or that they functionally interfered with employ-
ees' free choice. For example, she is unable to view her
"gift" to Lorenz as anything but that. She believes she
did it out of the goodness of her heart and is unable to
see it as having the effect of a bribe. To her such an act
cannot therefore be unlawful. Likewise she sees nothing
unlawful about her failing to give Anderson the 3-month
raise. Her actual explanation, that on January 1 she gave
a "double raise," is so untenable that it is obviously a
desperate afterthought, probably generated by a fearful
inability to explain that she either simply forgot Ander-
son's 3-month anniversary or never understood her legal
obligation.
Her explanation is untenable for two reasons. Had she
truly intended the raise to include both the minimum
wage "ripple" and the 90-day increase she no doubt
would have told Anderson. But she was silent. The 90-
day portion of the raise came after only 21 days. Surely
she would have explained to Anderson such a radical de-
parture from established policy. Second, the 20-cent raise
given Anderson is quite consistent with the 25-cent
"ripple" and what she told Anderson during the hiring
interview. Stokes' conduct was not, as the General
Counsel argues, motivated by a disregard of the law or
even an attempt to blame the Union for the lost wage in-
513
DFJCISIONS O)F NATI()NAL L.AOR RELATIONS BOARD
crease. In Anderson's case Stokes simply became con-
fused and blindly made the remark.
These circumstances, of course, do not insulate Re-
spondent from Section 8(a)(1). In both cases the conduct
had a reasonable tendency to interfere with the employ-
ees' free choice of a bargaining representative as guaran-
teed by Section 7. Respondent's obligation during the
preelection and precontract periods was to maintain ex-
isting conditions-continue to operate as it would have if
the Union were not in the picture. McCormick Longmea-
dow Stone Co., 158 NLRB 1237, 1242 (1966). Stokes
should have denied Lorenz' claim for holiday pay and
should have given Anderson the 3-month raise. By grant-
ing Lorenz' claim Stokes effectively bribed her to vote
against the Union. By failing to give Anderson her raise
she gave the impression that it was the Union's fault.
Both incidents violated the Act. But in analyzing Stokes'
motivations it should be borne in mind that she is afflict-
ed with a perception problem, because another side of it
will be seen in the discharge issue.
4. The discharges of McCulloch, Smith, and
Mitchell
Crystal Sandru testified that on February 6 Rolando
held staff meeting in which she said that depending on
the election outcome there were bound to be some termi-
nations. Roseann McCulloch testified similarly. Even so,
it is unclear what the context was. Likewise, sometime
after the February 16 discharges, Lois Blair overheard
Stokes in the dining room say she "had gotten rid of
some and would get rid of more."
Twyla Sorenson, a kitchen aide, one of the first two to
sign union authorization cards, testified that shortly after
the election on February 7 she went to Stokes' office.
When she arrived Jim Erikson and his wife Thin were
already there. Jim Erikson explained he was present in
order "to tell [Stokes] we had lost the election." Erikson
had earlier been involved in a letter writing campaign
complaining of NLRB procedures (he disapproved of the
Regional Director's failure to respond to a letter he had
written) and later circulated a petition to protest the out-
come of the election.s In any event when Sorenson ar-
rived, she told Stokes in the presence of both Eriksons
that she intended to quit because she did not want to
work with "all the tension." Sorenson recalls Stokes re-
plying that the Union would not get in, that she would
set up another election, and would "fire the traitors who
voted for the Union." Sorenson also says Stokes told her
that the traitors were Sandru, Mitchell, McCulloch,
Nancy Smith, and Larry Villars. Sorenson says Stokes
told her she would find reasons so she would not be ac-
cused of firing them because of the Union and urged
Sorenson not to quit because things would return to
normal soon. Stokes and both Eriksons deny Sorenson's
testimony. Standing by themselves there seem to be no
reasons to question either version.
However, the entire scene is really very strange. Sor-
enson, one of the two original union card signers, went
to the office ostensibly to quit because of alleged dissen-
s He sent copies of his petition and complaints about the Board to U.S.
Senator Max Haucus of Montana as well as to sarious Board officials.
sion resulting from the Union's success. That seems quite
odd. There is no showing that she had ever changed her
point of view from favoring to opposing representation.
She should have been elated. Then, she says Stokes not
only told her she was going to fire the traitors who fa-
vored the Union, but listed them by name. Not only that,
Stokes' list included people who, objectively, were not
traitors because they were not significantly active for the
Union. The list included Villars who had offered himself
to Stokes as a pawn; Mitchell who did not even vote;
McCulloch who may have been seen in a union official's
car;7 and Smith who had, like many others, attended one
or two union meetings. The only "traitor" was Sandru
the admitted leader.
On the other side, there is Stokes' denial, corroborated
by the admittedly disgruntled Jim Erikson and his wife.
His explanation that their presence was ("to tell Stokes
we had lost") is suspect. Stokes was well aware of the
election's outcome and did not need Erikson to tell her
about it. Sorenson did say that Stokes told her she would
seek a new election. If she is credited on that point the
Eriksons' presence is more explainable. Stokes may well
have wished to consult with Jim Erikson regarding pos-
sible grounds for setting the election aside.
Thus the question boils down to who is telling the
truth, Sorenson or the the other three? It seems to me
that Sorenson's purpose in being there was at least as
contrived as Erikson's explanation. Was she there to tell
Stokes she wanted to quit? Was she there for another
purpose? Perhaps there is no good answer--she seems an
unlikely agent provacateur. Yet the admissions allegedly
made to her by Stokes must be questioned. In the final
analysis it seems unlikely that Stokes or anyone else
would make such an admission to even apparent confi-
dantes such as the Eriksons, much less to a nontrusted
employee like Sorenson. I do not, therefore, accept at
face value Sorenson's testimony.
Earlier in this Decision I discussed the fact that Re-
spondent in mid to late 1978 had been suffering from ex-
cessive absenteeism, both "call offs" and "dumps." To
correct this it had posted in October the notice reaffirm-
ing the three-miss rule. Both Stokes and her husband tes-
tified that upon receiving notice from the Board's Re-
gional Office that the Union had filed a petition for an
election, they reassessed their intent to enforce the rule.
They were both aware that it was unlawful to discharge
people for union activities and rightly feared that any
discharge during the preelection period would trigger
NLRB charges and subject Respondent to having to deal
with them. Thus, according to Stokes, they decided not
7 Immediately after the February 7 election, Nursing Director Rolando
may or may not have seen Roseann McCulloch silting in a union offi-
cial's automobile outside the facility. As Rolando was leaving the nursing
home Pat Mahoney, standing next to the car, greeted her; she returned
his greeting, momentarily glancing at the auto. McCulloch was sitting
inside. 15 to 20 feet away, and it is unclear whether Rolando even could
have seen into the car. Rolando denies she was aware of McCullich's
presence and could not even recall Mahoney's greeting. There was no
reason that she should. The incident was relatively sterile. All of the em-
ployees who testified about the incident admit that Rolando's glance at
Mahoney was brief and that she continued on her way. Frankly, I am
unimpressed with the quality of this testimony with respect to Respond-
enl's having labeled McCulloch as a uniot, activist
514
WFSTERN CARI NUIRSIN(i HtOME
to enforce the rule until after the campaign was over. Its
reaffirmation had only been in effect for a month when
the petition was filed and by deciding not to enforce it
Respondent merely continued its past tolerance of at-
tendance transgressions. That is not to say that it intend-
ed to tolerate the problem ad infinitum.
However, during the course of the campaign Stokes
made a number of comments to employees which would
seem to indicate that she was ready, willing, and able to
discharge employees if they elected the Union as their
representative. On numerous occasions she demanded
"loyalty" from employees-a phrase which I deem a
code word requesting employees to vote against union
representation. In addition, she made some straightfor-
ward threats of discharge, including remarking on sever-
al occasions that she "could always find a reason" to dis-
charge an employee. Such remarks were made to
Sandru, Sorenson, Mitchell, and Hammerbacker.
On Febuary 12, at the beginning of the 11 p.m. shift,
an unusual incident occurred. McCulloch was scheduled
to be the second floor charge nurse and had arrived on
time to perform that duty. Shirly Pippy, a registered
nurse, was scheduled to be the charge nurse for the first
floor. Pippy's automobile suffered a flat tire and in order
not be be excessively late she telephoned one of the aides
who was also scheduled for that shift to ask her to pick
her up. That individual normally carpooled several other
people to work at the same time. Pippy also telephoned
the nursing home to advise them of her problem and to
tell them that she would be tardy, It is unclear whether
or not she said the others would also be late. In any
event she and the other members of the carpool were 20
minutes late. The late arrival caused McCulloch to be
left alone for that time on the second floor, although the
first floor crew remained, awaiting the arrival of the
others. McCulloch, apparently having in mind the at-
tendance problems which had been continuing, became
very upset that she had been left alone upstairs. McCul-
loch refused to accept the departing first floor nurse's
report (though that individual remained until Pippy ar-
rived) and upon Pippy's arrival engaged her in a loud
verbal altercation which was heard by and disturbed
some of the patients. She had even left her floor to re-
prove Pippy for her tardiness and for leaving her short-
handed. This reproof interfered with Pippy's ability to
receive the report from the departing charge nurse.
McCulloch's conduct resulted in a number of notes writ-
ten by both employees and patients being given to Stokes
on the following morning. All of these complained about
McCulloch's flareup.
At some point, not clear in the record, Respondent
had began reviewing absenteeism records, putting to-
gether a list of chronic offenders. That list is in evidence
I The "find an excuse to fire" remarks to Sandru and Sorenson are
cited above. The remarks to Mitchell and Hammerbacker occurred in
conjunction with the coffeebreak outburst. Hammerbacker says that
during the course of the outburst Stokes said it was she, not the union,
who offered job security and that she could get rid (of anybody she
wanted to: she could always find a reason Mitchell, after spe;aking to Ro-
lando, as recited above, later had a conersation with Stoke, In the hall-
way During thai discussion Mitchell quotes Stokec a, sa.ylig she kne.s
Mitchell was foir the Union and that she would fire tHammerh;akcr If she
could find a reasron
as General Counsel's Exhibit 8. It %was prepared by Ro-
lando at Stokes' direction. Stokes testified she saw it at
all stages of its completion, when it had one column, two
columns, and so on. That tends to indicate that the list
was begun as early as December, though that is not con-
clusive. It contains columns for November and Decem-
ber 1978 and January and February 1979. Rolando. how-
ever, said she believes she prepared the list in February.
For the most part the list contains writing from a single
pen, although February column shows stick figures in
pencil and the abbreviation for the November column is
also in pencil. That would indicate that marks were
made on the document on at least two separate occa-
sions. Of course there are a wide variety of variables
available as possibilities in terms of the sequence of what
was written. All the names and all the stick figures in the
November, December, and January columns are written
in ink. I believe, therefore, that the list must have been
begun shortly before or during February because the
February column contained some pencil records. All the
names are written in ink.
The February timing of the list cuts both ways. The
General Counsel argues that it was prepared as a reprisal
for the the election results. Respondent argues that it
was simply a corollary to the presumption of the tempo-
rarily halted policy, announced in October, of correcting
excessive absenteeism-records had to be compiled in
order to begin enforcement. On balance, it seems to me
that Respondent has the better of the two arguments.
The McCulloch outburst of February 12 occurred 5
days after the election. That was a serious incident and
demonstrated a behavioral disability on McCulloch's part
which she had demonstrated to a lesser degree earlier.
Before me it was obvious that McCulloch has a personal-
ity eccentricity which manifests itself in an aggressive,
hostile fashion; she is accusatory and defensive. While I
profess no expertise with respect to personality disorders,
it seems likely that she is so affected. Her husband is an
alcoholic who apparently has made her life miserable.
On one occasion in December 1978 she became intoxi-
cated with him at a bar and following a disagreement
fled in fear to Respondent's facility, arriving in an inebri-
ated state. She was unable to stand without help and had
to be driven home. At times she was seen weeping while
at work and at other times was observed for long periods
of time on the telephone speaking either to her husband.
her children, or her mother, presumably about family
matters. Thus, despite her protestations to the contrary, I
credit the testimony that she responded to Pippy's prob-
lem on the evening of February 12 with unacceptable be-
havior.
On February 16 McCulloch's daughter, Nancy Smith,
who was employed by Respondent as an aide, was told
by a fellow employee to check the following week's
schedule because her name did not appear. Smith did so
and then went to see Stokes to ask why she had not been
scheduled. Stokes told her she had been sick too much
and had missed too much work. Smith protested she had
given a doctor's excuse to Rolando and had called in.
Stokes replied she knew nothing of that but also said she
would not be the only one to be discharged. Stokes
DCISIONS () NA'I()ONAL L ABOR RELATIONS BOARD
showed her a list which included her mother, Lila
Mitchell, Kathy Hammond, Laurie Flansburg, Lisa
Hakala, and Patty Estes.D After a further discussion,
Stokes suggested that Smith get new doctor's excuses or
the old ones from Rolando. Smith went back to check
the schedule again to make certain her mother had been
removed from it. Upon doing so she noticed that some
of the employees whose names she had seen on Stokes'
list were still employed-Estes, Flansburg, and Ham-
mond.
Smith went home and spoke to her mother who then
came down to the facility and had a long conversation
with Stokes. Stokes told McCulloch that she was being
discharged, together with others, because of excessive
absences. McCulloch protested that she had always
"called off' and had not "dumped," and had given medi-
cal excuses to Rolando. Stokes replied she had never
seen an excuse. She told McCulloch to get new excuses,
but McCulloch accused her of discharging her because
of the Union. Stokes made no reply to the accusation.
They then had a discussion about whether these were
layoffs or terminations and the conversation ended.
Shortly thereafter McCulloch telephoned Rolando who
told her she was sorry about the terminations of herself
and her daughter but said, "You take orders, I take
orders."
In addition to McCulloch and Smith, alleged discri-
minatee Lila Mitchell and two others, Lisa Hakala and
Penny Myler, were also discharged that day. All of these
individuals were nursing staff personnel. Moreover, Head
Housekeeper Larry Villars was also discharged. It will
be recalled that he had been off work since February 8
following a bar fight. He said he later learned that the
effective date of his termination was February 14, only 2
days before the others were descheduled.'°
Mitchell, beginning February 5, missed 5 straight days.
The first three were call offs but the last two are listed
as no shows. Thereafter she returned and worked for a
week at which time she was fired. On February 16 Ro-
lando told her to check the schedule and then to see
Stokes. When she spoke to Stokes and asked why she
was off the schedule, Stokes told her she had "missed
too much work" and said she had a list of others that she
was getting rid of. Mitchell says the list was not General
Counsel's Exhibit 8 but another one. I believe she is mis-
taken as there is no evidence that any other document
was used. Mitchell says she was ill that week in Febru-
ary, admitting she had no doctor's excuse, but claims
that she had gotten Rolando's permission after missing
the first 2 days. She asked Stokes to reconsider but
Stokes refused to do so.
McCulloch, Smith, and Mitchell all had serious ab-
sence records. So did Hakala, Myler, and Villars. What,
then, is the General Counsel's theory? Does the General
Counsel allege that in a fit of rage Respondent dis-
charged all six of these individuals as a reprisal for the
entire group's having voted for union representation? If
so, why has the General Counsel not alleged the other
t II appear, that Ihe list which Smith saw is G C Exh 8 which alsio
includes C t)unilng and P'elny Myler
"' Villars, as a housekeeper. was oii(t on the nursing staff and his nalmc.
thcrerfire did nlot appear ini that schedule
three to have been discriminatorily discharged? They
were named in the union's original charge. Is the theory
that these people were engaged in union activities and
were singled out for special treatment? But the principal
union activist, Crystal Sandru, was not discharged.
Indeed, in January, after a misunderstanding over her in-
tention to quit, Sandru was rehired, though the General
Counsel wishes to ascribe an evil motive to the incident,
a view which I do not accept. Does the General Counsel
claim that these three were greater "traitors" than the
others who voted for union representation? It is true that
Mitchell was once asked to persuade employees to vote
against union representation, but did not do so. She also
says Stokes told her she knew she was for the Union.
Nonetheless, Mitchell abdicated her prounion or antiun-
ion concern by not voting in the election.
Frankly, none of the General Counsel's scenarios is
particularly persuasive. The most probable chain of
events is that Respondent had begun attempting, even
before the organizing drive, to remedy an absenteeism
problem. It had called a temporary halt to that effort
during the election campaign and until McCulloch trig-
gered an inquiry into her activities on February 12 the
absenteeism concern had been "put on hold." However,
McCulloch's behavior that evening triggered an inquiry
into her background and she was discharged on the dual
ground that she had personality conflicts and a history of
absenteeism. (See G.C. Exh. 16, the personnel record.)
When Respondent decided to utilize absenteeism as one
of the reasons for firing her it was forced to analyze the
absence records of others. The most obvious candidate
was Nancy Smith who had 26 absences in 3-1/2 months.
The next worst was Lisa Hakala who had 12 in 1-1/2
months, including 9 in January; she was followed by
Penny Myler who had 14 absences in 2-1/2 months. Mit-
chell's and Villars' attendance situations were quite simi-
lar to one another. Villars had stopped showing up for
work after the election and was terminated after approxi-
mately five straight absences; so was Mitchell, although
she had resumed work for a short time. Such a context
certainly explains Rolando's preelection remark relating
to discharges as well as Stokes' post-discharge remark
that she had gotten rid of some and would get rid of
more. Absenteeism explains those ambiguous remarks
somewhat better than antiunionism.
The General Counsel, however, argues that there were
others on the list who had absences who were not fired.
In particular they point to Kathy Hammond. However,
Hammond only had nine, including no absences in Feb-
ruary, and was apparently improving. Flansburg had II11,
but Flansburg suffers from epilepsy and Stokes consid-
ered her a special case.
It is true that there are some harsh aspects to these de-
cisions. For example, Nancy Smith, who is in her late
teens or early twenties was off work in December be-
cause of a miscarriage. That fact does not appear to have
been known by any of Respondent's officials. " Indeed,
the only official statement regarding her situation was a
doctor's excuse dated December 26 which advised that
I It 1 as lInot know ii h) Ihe General Counsel either Smith' coinceal-
meil of Ihe incidenl caused an unhappy sceine at the hearing.
W\VSTI RN CARE NIURSIN( tt()N11
she had been "ill from 12/16 12/26'" I appears that her
miscarriage was not discovered until the hearing. Smith
delivered that particular excuse slip to Rolando personal-
ly and both she and McCulloch say additional slips were
also given to Rolando. Rolando denies that and the Gen-
eral Counsel appears to intimate Respondent destroyed
those slips. New slips were obtained after the discharge
but were deemed to be ineffective as too late and Stokes
would not reconsider. Frankly, I am unconvinced that
Rolando or anyone else in Respondent's employ doc-
tored or destroyed the slips.i2 It is my view that McCul-
loch was not candid about them and that Smith, in pro-
tecting her mother, corroborated her the best she could.
Respondent had no specific policy regarding excused ab-
sences and thus even if the doctor's excuses had been
provided in a timely fashion the absences did not solve
the problem which Respondent faced. It is not unreason-
able for Respondent in that circumstance to have rid
itself of the most chronic transgressors. It may be that
there were other individuals on Respondent's staff who
had absence problems too, and even though they may
have technically violated the three-miss rule, their situa-
tion was no worse than individuals whose names ap-
peared on General Counsel's Exhibit 8. but who were
not discharged. It is clear that it was not the three-miss
rule that was being enforced here, for many who violat-
ed the rule remained. Nonetheless, the ones who were
discharged were clearly the worst offenders. Literal en-
forcement of the three-miss rule would have decimated
the work force.
The General Counsel argues that Resondent shifted its
reasons for discharging both McCulloch and Mitchell
and that the shift should be regarded as evidence of
guilt. But Respondent did not shift with respect to either.
McCulloch wasgiven two reasons-personality conflicts
and absenteeism. Both were proven. Absenteeism is the
only reason given Mitchell when she was discharged. At
the hearing the General Counsel persuaded Stokes to say
that another reason was "exceeding authority." It would
be unfair, however, to characterize that as a shift. Stokes
may have thought Mitchell guilty of that, but the subject
was never raised except by the General Counsel's pursuit
of "every and all" reasons. It was not a reason advanced
by Respondent in its defense. The General Counsel's ar-
gument is therefore rejected.
One final matter deserves comment. As noted, inJia.
Stokes suffers from a myopia regarding her legal obliga-
tions. That myopia, however, does not extend in my
view to an inability to see the line between lawful and
unlawful discharges. I do not think she willingly breaks
laws she understands. She may not have recognized that
certain activities interfered with employee rights under
Section 7, but she knew it was "wrong" to discharge em-
ployees because of their union affiliations or activities.
Thus, though she had the opportunity, she did not at-
tempt to take advantage of the confusion between
Sandru and Rolando when Sandru intimated she was
taking another job. She did not insist Sandru had quit, as
2 The Gcneral Counsel argue that Rolalndo generallly wa, noit a
credible wintiess I do IIu1 CloiCU r She alppeared crS honcl iand c.idttid
lo me. Moreoscr. he inio hllger is cmnpl o, cd hb. Repn,(idcnlt ian1 hias
nothing It gain h rfahricaticl l
'he would have if she were truly intlerested in ousting
union actlivists-particularly a leader like Sandru. Instead
she rehired Sandru.
Sandru claims the rehire was conditioned on her aban-
donmeni of the Union. Even if ihat is true, it does not
negate my conclusion that Stokes was not capable of
firing anyone for union-related reasons. Stokes under-
stands a mnalurn in se approach to conduct: she just does
inot understand the rnaluml prolihiltlui approach I con-
clude that she abides by nulurn in vc interdictions and
did so here as far as the discharges were concerned
In sum, considering Stokes' odd view of her legal obli-
gationis; the fact that prior to the organizinig drive she
had commenced an effort to correct absenteeism: that
three others who \were fired at the same time are not al-
leged as discriminatees; that none of the alleged discri-
minatees engaged in union activity great enough to call
Respondent's attention to it; that Respondent did not fire
knoswn union activist Sandru when presented the oppor-
tunity to do so, and that the trigger incidenll w;ls ca'used
by McCulloch's personality disorder, I am not persuaded
that the discharges were improperly nmoltisald In these
circumstances I am unable to conclude the (iecneral
Counsel has proven by a preponderance of the eidencce
that the discharges of McCulloch, Smith. and Mitchell
violated the Act. I find that they swere discharged for
good cause and that union coinsiderations had nothing
whatsoever to do with that decision.
IV. 111tF RI tNIl )'
Having found that Respondent has engaged in viola-
tions of Section 8(a)(1) of the Act, I shall recommend
that it be ordered to cease and desist therefrom, and to
take certain affirmative action designed to effectuate the
policies of the Act."': The affirmative action shall in-
clude an order requiring Respondent to immediately
make whole Tara Anderson for loss of moneys due her
as a result of Respondent's failure to give her a 3-month
wage increase. Interest on that backpay shall be comput-
ed as set forth in lIlorila Sleel Corporaion, 231 NLRIB
651 (1977). See, generally. Isis Plumbhinlg & lieuating Co.,
138 NLRH 716 (1962).
Based on the foregoing findings of fact. alid the record
as a whole. I hereby make the follow ing:
CONCI USIONS 01- Lxw
1. The Respondent, Western Care. Inc. d/b/a Western
Care Nursing Home, is an employer engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 2(2). (6), and (7) of the Act.
2. United Food and Commercial Workers International
Union, Local 684, AFL-CIO-CLC, is a labor organiza-
tion within the meaning of Section 2(5) of the Act
3. Respondent, at the times found above in the hodly of
this Decision, violated Sectiol X(a)(1) of the Act in the
following respects: Interrogating employ ees regarding
their union activities and how they intended to sote in
"i: HCTl'LsC Rt.l ii I CIill s Jusi t hi tTI llttI i1 -g.I tt' t L " g Iz h l. sieSai .Irll d ;r
criphscliI'' ' t'lc lilllt'iltC;1 Slilllll r! IlIlls.r I slall l iz (t ru( lll' 1 hrotiid
CL'iP, -i .l l ,I'd older 'L ill'.kmofi ,,, I'0o ~. 242 NI RB N,, 177 (1')7'q)
517
DI)V( ISI()NS ()O NAI I()NAI. I.AI()R RFI.lA I()NS BO()ARI)
an NI.KIR election; threatening employees ,wilh a wage
loss ill the evenii they sClected a union to represent them,;
thr;atiniig to terniiiate enlployees if they selected a
uni ion to represent them; threatening to cease operations
if they selected a nition as their represeitativCe saying
unio iiitit is a futile act; failing to pay enmployee Tara
Anderson the normal periodic increase which aill em-
ployees received after 3 satisfictory months of service;
and by granting an ineligible employee holdiay pay to in-
fluceIc her vote il an NILRB election.
4. Respondent did liot republish an absenteeism rule in
response to the union's organizing drive nor did it create
the impression of surveillance of employee's uniotn activi-
ties, and therefore did not violate Section 8(a;)() ill those
respects.
5. Respondent did not discharge its employees Ro-
seann McCulloch, Nancy Smith, and Lila Mitchell for
reasons prohibited by the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDF) R 4
The Respondent, Western Care, Inc. d/b/a Western
Care Nursing Home, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Restraining or coercing employees with regard to
the exercise of their Section 7 rights hby: Interrogating
employees regarding their union activities and how they
intended to vote in an NLRB election; threatening em-
ployees with a wage loss in the event they selected a
union to represent them; threatening to terminate em-
ployees if they selected a union to represent them;
threatening to cease operations if they selected a union as
their representative; saying unionization is a futile act;
failing to pay employee Tara Anderson the normal peri-
odic increase which all employees received after 3 satis-
factory months of service; and granting holiday pay to
ineligible employees to influence their vote in an NLRB
election.
(b) In any like or related mariner restraining or coerc-
ing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Immediately make whole Tara Anderson for lost
earnings in the manner set forth in the section of this De-
cision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
14 frl Ihe ctCli iilo 'epIols are filed as, pl,()\ldd hi ScC 1()2 4t, If
the Rules .wld Rcgilaltioirs of the Nilliollill llhor Rclal.,iis IIJlald. the
finlllill, an. d 'IiinJ. lniIilll Id Cill dCd ()rdti l e cit ii h erhi l l. 1is plO, \ldcdi
ill SCe 102 48 itf tl Rules .rlli Regulaoli qlllos he sipdtp l cd h IlLc tIuard dillr
hecornme is i/lldillg`s. IniC'. Iusi(ini. alld (a)ldtlCI. tin aiii illl 'h. lliulls tihrrlin
shall he deellled al livid for ;1ll pu rpoi.es
(c) Post at its Helena, Montana, facility copies of the
attached notice marked "Appendix." ' Copies of the at-
tached notice on forms provided by the Regional Direc-
tor for Region 19, after being duly signied by its author-
ized representative, shall be posted by Respondent imme-
diately upon receipt thereof and be maintainmed by it for
6h() coisecUtiv e days thereafter. in conspicuous places, in-
cluding all places cwhere notices to employees are cus-
tomarily posted, Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 19. in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
Il IS LFURIIII R ORI)ItRI ) that the remainder of the
complaint be, and hereby is, dismissed.
II IS I:FLRI HIiR ORH) RDI) that any outstanding motionis
are denied.
`' II the s i c' it lthe loardt 's Order is infirccil by I Judgmenlt f a
tillited Still.'e Ci lur t of1 Appealls. Ihe srds ill htie iii(tice reading "''sited
h ()trder iof the N ilional habor Relaltiiiiis Biaird" shall reald "l'oslcd iur-
l lfit to Ig Jtidgmenl 'f the Liiiicei Stiate ('iuiiri of Appeals I ill'r.cing ai l
()rtler iof Ih Nalioial I tihli Rtlaiiions Itaird
APPENDIX
Noll 'i To EMI'I OY t. S
PosTI) Y ORI (I)IR 01F ItlL
NATxI'ONAlI LAtiOR RI i AIIONS BOARs)
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their o wn choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WI wil I Nor interfere with, restrain, or coerce
our employees with regard to the above rights by:
interrogating them about their Union activities or
how they intend to vote in an NLRB election;
threatening them with wage losses if they select a
union as their representative; threatening to dis-
charge employees for union activities; threatening
to cease operations if they select a union as their
representative; or telling employees that union rep-
resenltation is a futile act.
Wli Wll NOI deprive employees of regularly
scheduled pay increases after 3 months' employment
in such a fashion as to appear to be punishment for
WIV'SITIRN CARI- NIURSIN(i I()[ME
our ernployees having voted for representation by
United Food and Commercial Workers Internation-
al Union. I ocal 6hX4, AFL-CIO. or any other unioi
and w t will NO;I grantl holiday pay to ineligible
employees in circumstances which will influence
their vote in an NI RB election.
W l i11 I NOI in any like or related manner in-
terfere with, restrain. or coerce our employees in
the exercise of the righls guaranteed themn hb Sec-
tion 7 of the Act.
W'I Wlt I make employee Tara Anderson \ hol1c
for the amount of w ages she lost as a result of our
failure to granlt her a \tage increase aifter 90 da\ys of
emplhyment , includi ng interest.
WI Sl I RN C\AR. INt(. )/ll/ \ \I S IH RN
C \RI NU RSIN(G Hi()I.