Beverly Enterprises, Inc. t/a Cumberland Nursing & Convalescent Center

National Labor Relations Board - Board Decisions

Aug 16, 1982

263 N.L.R.B. 428 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beverly Enterprises, Inc. t/a Cumberland Nursing &
Convalescent Center and Retail Store Employ-
ees Union, Local 692, United Food and Com-
mercial Workers International Union, AFL-
CIO, CLC
Cumberland Nursing & Convalescent Center and
Retail Store Employees Union, Local 692,
United Food and Commercial Workers Interna-
tional Union, AFL-CIO, CLC and Beverly En-
terprises, Inc. t/a Cumberland Nursing & Con-
valescent Center, Party in Interest. Cases 5-
CA-12858, 5-CA-12982, and 5-CA-13030
August 16, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 30, 1981, Administrative Law
Judge James T. Youngblood issued the attached
Decision in this proceeding. Thereafter, the Gener-
al Counsel and Respondent Beverly Enterprises,
Inc., filed exceptions and supporting briefs, and
each filed a brief in opposition to the other's excep-
tions.
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,1 and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.3
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 Respondents, Cumberland
' The General Counsel and Respondent Beverly Enterprses have ex-
cepted to certain credibility findings made by the Administrative Law
Judge. It is the Board's established policy not to overrule an administra-
tive law judge's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the reso-
lutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings.
a Rejecting her testimony to the contrary. the Administrative Law
Judge found that former striker Shelby Nixon was in fact told and indeed
understood that she was to report to work on December 8, 1980. Her
failure either to report or to notify her employer of her intended absence
on that date precipitated her discharge. In this respect, there is no evi-
dence that Nixon was treated more harshly than the other nursing home
employees who violated the Respondent's rules concerning unexcused ab-
sence. Accordingly. we agree with the Administrative Law Judge that
her discharge did not violate Sec. 8(aX3) and (I) of the Act, as alleged.
s In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due baud on the formula set forth therein.
263 NLRB No. 61
Nursing & Convalescent Center, and Beverly En-
terprises, Inc. t/a Cumberland Nursing & Conva-
lescent Center, Cumberland, Maryland, their offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge: A
hearing on the complaints herein, alleging violations of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, was held in Cumberland, Maryland, on
June 8 and 9, 1981. Respondents denied the commission
of any unfair labor practices. All parties were represent-
ed at the hearing and post-trial briefs were filed by the
General Counsel and Respondents which have been duly
considered.
Upon the entire record in this matter, and from my ob-
servation of the witnesses and their demeanor, and after
due consideration of the briefs filed herein, I hereby
make the following:
FINDINGS OF FACT AND CONCLUSIONS'
I. THE EMPLOYERS INVOLVED
Prior to September 15, 1980, Cumberland Nursing &
Convalescent Center (herein Cumberland) was engaged
in Cumberland, Maryland, in the operation of a nursing
home. On September 15, 1980, Beverly Enterprises, Inc.,
t/a Cumberland Nursing & Convalescent Center (herein
Beverly) purchased the nursing home business operation
from Cumberland and continued that operation provid-
ing substantially the same service to substantially the
same customers, and employing a majority of the em-
ployees who were previously employees of Cumber-
land.2 It is admitted, and I find, that Beverly has contin-
ued the employing entity and is a successor of Cumber-
land. It is further admitted, and I find, that Cumberland
and Beverly are employers as defined in Section 2(2) of
the Act and are engaged in commerce and in operations
affecting commerce as defined in Section 2(6) and (7) of
the Act.
1. THE LABOR ORGANIZATION INVOLVED
The complaints allege, and the answers admit, that the
Retail Store Employees Union, Local 692, United Food
and Commercial Workers International Union, AFL-
CIO, CLC (herein the Union), is a labor organization
within the meaning of Section 2(5) of the Act.
I The facts found herein are a compilation of the credited testimony,
the exhibits, and stipulations of fact, viewed in light of logical consisten-
cy and inherent probability. Although these findings may not contain or
refer to all of the evidence, all has been weighed and considered. To the
extent that any testimony or other evidence not mentioned in this Deci-
sion might appear to contradict my findings of fact, I have not disregard-
ed that evidence but have rejected it as incredible, lacking in probative
weight, surplusage, or irrelevant. Credibility resolutions have been made
on the basis of the whole record, including the inherent probabilities of
the testimony and the demeanor of the witnesses. Where it may be re-
quired I will set forth specific credibility findings.
2 Cumberland and Beverly are collectively referred to as Respondent.
428
CUMBERLAND NURSING & CONVALESCENT CENTER
III. THE ALLEGED UNFAIR LABOR PRACTICES
On March 11, 1980,3 the National Labor Relations
Board, in Case 5-CA-10889, certified the Union as the
exclusive collective-bargaining representative of all full-
time and regular part-time service and maintenance em-
ployees employed by Cumberland at its Cumberland,
Maryland, location.4
On May 10, certain employees of Cumberland ceased
work concertedly and engaged in a strike. Of the ap-
proximately 104 employees of Cumberland, 55 went on
strike and 48 participated in the strike activities. Picket-
ing took place at two driveway entrances to the nursing
home center off Winifred Road in Cumberland, Mary-
land. On November 20, the Union, by letter, notified
Beverly that the employees 5 engaged in the strike were
making an unconditional offer to return to work at the
nursing home.
A. The Alleged Discriminatory Discharge of Clondetta
Arbogast
Arbogast went on strike on May 10. On September 11,
she was discharged by Cumberland for alleged picket
line misconduct. Following receipt of the Union's No-
vember 20 letter, Beverly began contacting the employ-
ees to make arrangements for their return to work.
Every striking employee except Arbogast was offered re-
instatement. When Arbogast failed to hear from Beverly,
she contacted Beverly concerning her returning to work
without success.
Betty Cook, director of nurses for Beverly, testified
that all striking employees except Connie Arbogast were
offered reinstatement. She further testified that Connie
Arbogast was not offered reinstatement because she had
been terminated and therefore were no longer considered
an employee. Cook testified that on August 29, when she
came to work at 7:30 a.m., Mrs. Dolly Mudge, the night
supervisor, informed her that Connie Arbogast had at-
tacked Nancy Dolly. Mudge told her that Nancy Dolly
was attempting to drive into the parking lot the evening
of August 28, and there was a car parked in the way so
that she had to go out of her way to get into the lot. As
she was doing this the individuals on the picket line
yelled at her and called her bad names, such as "nigger
lover." When Dolly got out of her car the individuals on
the picket line asked her to come to the picket line. She
went to the picket line and informed the picketing em-
ployees that she did not appreciate being called those
names, and that it was her right to work, and that if she
wanted to work she certainly should be able to. She in-
3 Unless otherwise specified, all dates refer to 1980.
The appropriate unit is described as follows:
All full-time and regular part-time service and maintenance employ-
ees employed by the employer at its Cumberland, Maryland, loca-
tion, including nurses aides, L.P.N.'s, orderlies, dietary, housekeep-
ing, laundry and maintenance employees, but excluding R.N.'s, office
clerical employees, guards and supervisors as defined in the Act.
On August 18, in Cumberland Nursing & Convalescent Center, 251 NLRB
290 (1980), the Board found Cumberland in violation of Sec. 8(aXI) and
(5) of the Act. On June 29, 1981, the U.S. Court of Appeals for the
Fourth Circuit issued its decision enforcing the Board's Order directing
Cumberland to bargain with the Union.
a The letter listed the names of 50 employee strikers.
formed them that she was not afraid of them, and when
she turned to leave she was attacked by Connie Arbogast
who pulled her hair, and actually pulled some of it out
by the roots, scratched, and hit her.
Cook said she contacted Dolly and her story coincided
with that given by Mrs. Mudge. Cook stated that to her
knowledge this was the first incident of picket line vio-
lence, but there had been many instances of rock throw-
ing, nails dropped, flat tires, cars being hit, and name
calling, but that this was the first incident of bodily
harm. Cook stated that Arbogast had been involved in
picket line violence before by hitting an employee's car
with her fists. Cook said there had been reports that she
had done other things, but that she had not been disci-
plined for any of these. She said that Arbogast was the
only employee ever disciplined for picket line violence,
and that she was disciplined because she was the only
one involved in bodily harm and assaults. Cook testified
to other conduct on the part of Arbogast prior to the
advent of the Union in an attempt to establish that Arbo-
gast should have been or could have been discharged for
cause at any time prior to the strike. And she testified
that these facts were in her mind at the time she recom-
mended the discharge of Arbogast. 6
Cook testified that, after discussing the incident with
Nancy Dolly, she contacted Bruce Boyer, the adminis-
trator of the nursing home. Cook informed Boyer of
what had happened and told him that, in view of the
past year and Connie's record which had been very bad,
she felt very strongly that Arbogast should be terminat-
ed. Cook testified that, although Arbogast was terminat-
ed as a result of the picket line incident on August 29,
her past record certainly had a bearing on the discharge
and that was what she had in mind and that is what she
conveyed to Boyer. Cook testified that she was present
when Boyer called the company attorney and that, while
she did not remember word for word, she was sure that
was what Boyer told the attorney. She testified that no
discipline was given to Nancy Dolly because Dolly was
attacked, and why should she have been disciplined.
Bruce Boyer testified that from September 3, 1972,
until October 17, he was the administrator of the nursing
home. Boyer testified that around 9:30 a.m., on August
29, Betty Cook informed him of what had transpired on
the picket line between Nancy Dolly and Connie Arbo-
gast and that Nancy Dolly had been attacked by Connie
Arbogast. He stated that Mrs. Cook recommended that
Arbogast be discharged and that he called the attorney,
6 The file reflects that on July 23, 1979, Arbogast received a warning
involving her presence in the employee lounge twice in several weeks
not on scheduled break and, leaving patients unattended; she was in-
formed that next time would result in dismissal. On December 20, 1979,
Cook reprimanded Arbogast for language she had placed on a note left in
one of the vending machines. On May 28, Arbogast received a warning
from Cook regarding her sitting and watching television apparently when
she was on duty. The warning indicated that it was a final warning. On
April 8, Cook suspended Arbogast for 3 working days beginning April 7,
for leaving her floor unattended on April 3. The warning pointed out
that she had previously been warned and that future infractions would
result in her termination. On May 5, Arbogast received a i-week suspen-
sion for falsification of her timecard on April 29. The warning indicated
that future incidents would result in her termination. See Resp. Exhs. I
through 5.
429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Berens, and recommended that Connie Arbogast be dis-
charged for that conduct. Boyer said the decision to dis-
charge Arbogast was made by Mrs. Cook and that he
merely rubber stamped and passed it on to the attorney
for his clearance.
By letter dated September 11, Kelvin C. Berens, coun-
sel for Respondent, informed Arbogast that because of
the assault on Nancy Dolly she was being terminated as
of September 10. It is clear from this record that no at-
tempt was made by Cumberland to contact Arbogast to
get her side of the story prior to her discharge. It is also
clear that the letter of termination makes no reference to
Arbogast's prior record.
Nancy Lee Dolly testified that she began working at
the nursing home in June while the strike was in prog-
ress and that she had to cross the picket line to get to
work. She said that when she first started working the
pickets would just yell at the employees crossing the
picket line. She said that she began working a shift from
11 p.m. to 7 a.m., and that after she had worked for a
month or so the pickets began calling her "nigger lover"
and saying that she had half-breed kids and telling her
that while she was working "I have your black nigger
out." 7 She testified that this taunting continued on a
fairly regular basis. In testifying to the incident on the
picket line in late August, she said that on that particular
night she drove her own car, although she normally rode
with other people. She testified that when she arrived at
the picket line a man and several women would not let
her through. She said she had to drive out of their way
to keep from hitting one of the women. She said she
parked her car, got out, and the pickets continued calling
her "nigger lover," and dared her to come down to the
picket line. She said she started to go into the nursing
home but instead went down to the picket line, and said,
"Okay, here I am, what are you going to do now." She
said she took some things out of her pockets and laid
them on the ground, and told the pickets to come on.
She said the pickets did not do anything, so she picked
up her things and put them in her pocket and started to
turn away, when one of the girls grabbed her hair. She
grabbed the woman and in doing this she was scratched
across her nose and across her eye, and at this point two
men took them apart. She went into the nursing home
and called the police. She stated that when the police
came she went out to the picket line but she did not rec-
ognize the woman who had attacked her. She went back
into the nursing home and worked the rest of the night.
The next morning she received a call from Cook who
wanted to know what had happened. She related her
story to Cook. A couple of weeks later she recognized
Arbogast on the picket line.
Clondetta Arbogast testified that she became involved
with the Union early in 1979; that she attended union
meetings, handed out literature, signed a union card, and
got other employees to sign union cards. When the
Union went on strike she was one of the striking employ-
ees and was also a picket captain. She testified that on
the night of August 28, at or around 10:45 p.m., she was
7 Dolly who is white testified that she has been living with a Black
man for 8 years and that they have three children. They are not married.
on the picket line in the presence of Shelby Nixon,
Nixon's husband, David L. Berg, a union representative,
and employees Riva Miller, Virginia Kimes, and Doro-
thy Welsh. She said she was talking to Berg when Dolly
went through the picket line8 into the parking lot and
parked her car. Dolly got out of her car and started hol-
lering dirty language and then headed toward the picket
line. At this point Arbogast said that she left Berg's car
and went over near the picket line. She said Dolly kept
telling Arbogast to hit her, and called Arbogast "a fuck-
ing whore like my mother." Arbogast told Dolly she
was not going to hit her and to go on back up to work
where she belonged. Dolly emptied her pockets, placed
the contents on the ground, and came up swinging.
When Dolly came up swinging she merely defended her-
self. At this point Berg and Loretta Wells broke up the
fight, and, in so doing, she fell to the ground. She said
that Dolly then went to the nursing home and shortly
thereafter the police came to the picket line in the com-
pany of Dolly, but Dolly could not identify who had
been in the altercation.
Dave L. Berg, Loretta Wells, and Shelby Nixon, with
the exception of certain minor discrepancies, corroborat-
ed the testimony of Connie Arbogast.
There is no doubt that a strike occurred on May 10,
and that pickets were located at two driveway entrances
to the nursing center off Winifred Road in Cumberland,
Maryland. On November 20, the Union made an uncon-
ditional offer of reinstatement on behalf of some 50 em-
ployees, including employee Connie Arbogast. Every
striking employee was offered reinstatement, except Ar-
bogast. When Arbogast failed to receive an offer of rein-
statement, she contacted Beverly and was informed that
she was being denied reinstatement because she had been
terminated on September 11, because of an altercation
with employee Dolly on the picket line.
The General Counsel argues that the discharge of Ar-
bogast was discriminatory in violation of Section 8(a)(1)
and (3) of the Act, because Arbogast did not engage in
any misconduct on the picket line because she was only
defending herself against attack and that, even if the
attack were provoked by Arbogast and Arbogast actual-
ly swung the first blow, the incident was merely a "triv-
ial rough incident" which did not justify Arbogast's dis-
charge. Respondent on the other hand claims that Arbo-
gast provoked the incident and struck Dolly at the picket
line because she was working behind the picket line, and
that the discharge of Arbogast was purely for such mis-
conduct on the picket line.
There is no doubt that an incident occurred on the
picket line on the night of August 28. And that Connie
Arbogast and employee Dolly were involved in that in-
cident. The witnesses for the General Counsel all testify
that the first blow was swung by employee Dolly and
that Connie Arbogast was merely defending herself.
Dolly on the other hand testified that Arbogast grabbed
her by the hair and that she in turn grabbed Arbogast by
the hair.
8 Ai this point in the transcript. the reporter uses the name Polly
rather than Dolly the proper name.
430
CUMBERLAND NURSING & CONVALESCENT CENTER
It is clear from the testimony of all the witnesses that
Dolly had crossed the picket line and was safely in the
parking lot, and could have gone in the nursing home
without further incident and worked the rest of the eve-
ning. However, Dolly chose not to stay safely in the
parking lot, but to return to the picket lot. In her own
words it appears that she expected trouble because she
took the contents from her pockets and laid them on the
ground. There does not appear to be much issue about
the facts to this point.
The law appears to be well settled that even though
employees engage in picket line misconduct they may
not be deprived of reinstatement or be discharged for
such conduct, absent a showing that such conduct was
so violent or of such a serious nature as to render the
employee unfit for future services. See Southern Florida
Hotel & Motel Association, etc., 245 NLRB 561 (1979). It
is also settled that not every impropriety committed in
the course of a strike deprives an employee of the pro-
tection of the Act. See Coronet Casuals, Inc., 207 NLRB
304 (1973).
Even if employee Dolly's version of the incident is to-
tally credited, Arbogast only grabbed her by the hair,
which resulted in a brief scuffle at which point they
were pulled apart.
It is my conclusion that Dolly returned to the picket
line, from the safety of the parking lot, seeking satisfac-
tion because of obscenities hurled at her by the pickets.
It also appears that she struck out at the first picket she
ran into, which in this case was Arbogast and Arbogast
merely defended herself.
Respondent contends that because of this conduct it
discharged Arbogast for picket line misconduct. The
only person that Cumberland interviewed who knew
anything about the incident was Dolly, who without
making any further investigation discharged Arbogast.
Cumberland did not even check with Arbogast to get
her side of the story. In any event, if I were to accept
Dolly's version of the incident, Cumberland did not have
sufficient justification for discharging an employee who
was otherwise legitimately engaged in peaceful concert-
ed and protected activities. At most, the incident in-
volved only hair pulling, and was therefore an isolated
"trivial rough incident," and as far as this record goes
was the only such incident committed during the entire
strike from May until December.
It appears to me that nurse Cook, having the opportu-
nity to consider Arbogast's past record in view of the
changed circumstances, namely, the appearance of the
Union on the scene and an actual strike by that Union,
and knowing that Arbogast was a active participant in
the strike, took the opportunity to rid Cumberland of a
thorn in its side. It is my conclusion that the total inci-
dent was trivial and did not cause any injury to either
party, and did not deter the strike replacements from
continuing to work, that the incident was a single isolat-
ed incident which was insufficiently serious to deprive an
employee caught up in a lawful strike from the protec-
tion of the Act. Therefore, this impropriety did not de-
prive Arbogast of the protection of the Act, and her dis-
charge for engaging in protected concerted activities and
union activities on the picket line was violative of Sec-
tion 8(a)(1) and (3) of the Act. There is no doubt that
such conduct discourages union membership in violation
of Section 8(a)(3) of the Act, and I so find. See MP In-
dustries, Inc., etc., 227 NLRB 1709 (1977), and Star Meat
Company, etc., 237 NLRB 908 (1978).
B. The Unlawful Discharge or Failure To Reinstate
Shelby Nixon
As indicated earlier on November 20, the Union made
an unconditional offer of reinstatement on behalf of some
50 striking employees, including Connie Arbogast and
Shelby Nixon. Thereafter, Beverly began contacting the
striking employees to make arrangements concerning
their return to work. On December 1, Shelby Nixon was
contacted by Christopher Johns, the new administrator,
and requested to appear at the nursing home on Decem-
ber 3, for an interview. On December 3, at 11:30 a.m.,
Nixon met with Johns and Betty Cook in the administra-
tor's office.
According to Nixon, they went over the employee's
manual and briefly discussed the rules in the handbook.
She testified that Johns did not mention anything about a
no-show/no-call policy which would result in discharge.
She said that she was told to report for work on Decem-
ber 9, at 7 a.m., and that after the orientation period she
would be working on the 3 to 11 p.m. shift. She testified
that when she read the rule book she saw the rule deal-
ing with discharge for failure to show up for work or
call in, the so-called no-show/no-call policy.
On December 9, she reported for work at or about
6:45 a.m. She had in her possession a signed slip from the
employee manual indicating that she had read the hand-
book, and her doctor's certificate, She offered these to
nurse Betty Kirk. Kirk told her to have a seat and, at 7
a.m., she was asked to go into Cook's office. She said
that Kirk and Cook were in the office with her, and Kirk
told her that her starting date was December 8, and
when she responded it was December 9, Kirk said, "I'm
sorry, you will have to go home and Mr. Johns will call
you."
On cross-examination Nixon said that she reported to
work on December 9, and gave her slips to Betty Kirk
who told her to have a seat in the lobby. She said that
when Cook came in she was asked to go into Cook's
office. She testified that Cook told her that her starting
date was December 8, and Nixon told Cook that she was
positive that it was December 9. Nixon said that Cook
told her to go home and wait for a call from Johns. Sev-
eral days later she received a letter from Johns, dated
December 10, informing her that she was terminated as
of December 9, because she failed to report to work as
scheduled on December 8, and did not contact the nurs-
ing home. On the following Monday, she went to the
nursing home and asked Johns if he would not reconsid-
er and let her have her job back. He said that he could
not do that, that the company had policies which she
had to abide by, and it was an unfortunate situation.
Betty Cook testified that all of the employees who
made an offer to return to work were offered reinstate-
ment, with the exception of Connie Arbogast. Cook testi-
fied that Shelby Nixon was interviewed on December 3,
431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
along with about five other employees. She said they
were told of the rules and regulations, and that if they
could not come to work on.the assigned day that they
were to call and if they did not call they would be termi-
nated. She said that Shelby Nixon was scheduled to
work on Monday, December 8, and that.she did not call
or show up that day. She said Nixon reported the next
morning, and that she told Nixon that no-call/no-show
was cause for termination. Cook testified that Johns had
concurred with her decision, and that she told Nixon
that she was terminated. She said that, although the deci-
sion to terminate Nixon was made on December 8, she
talked to Johns again on December 9, and they both re-
mained firm on the decision to terminate Shelby Nixon.
Christopher Johns, the new administrator of the nurs-
ing center, testified that he was first employed by Bever-
ly on October 13, and that he was involved in interview-
ing the striking employees who were offered reinstate-
ment in December. He said that all the interviews were
basically the same, that he did most of the talking, that
he would identify the individuals and then inform them
that they were returning to work unconditionally, and
that there were a few things that they should know in-
cluding the personnel policies of Beverly. He said that
each employee was given a mimeographed copy of the
manual or employee handbook and that he went over
this handbook with them in detail. He said that he spe-
cifically emphasized "absence and lateness," and that he
told the employees that, if for any reason they could not
meet the time in which they were to return to work,
they were to notify the nursing home. This was dis-
cussed several times with each individual. Each employ-
ee was to sign an acceptance sheet that she had read and
understood the policies of the nursing home and agreed
to abide by them while they were an employee. He testi-
fied that Shelby Nixon was interviewed on December 3,
and that she was informed that she was to report to
work on December 8, and this was made very clear to
her. He said that he went over the handbook with her
the same as all other employees.
He said that Nixon did not report for work on Decem-
ber 8, and Cook informed him that she did not call or
notify the nursing home in any way. He stated that he
told Cook that this constituted a violation of the policies,
and that Nixon would be terminated. He said that a letter
of termination was mailed out and that on the following
Monday he had a talk with Nixon. He said thar he ap-
preciated her position and, although he was sympathetic
to what had happened, he nevertheless was enforcing the
company policies and that her termination would stand.
The General Counsel argues that Beverly discriminat-
ed against Shelby Nixon by refusing to reinstate her to
her former position and terminated her employment be-
cause of her membership in and activities on behalf of
the Union. Respondent on the other hand contends that
Shelby Nixon was terminated simply and solely because
she failed to call in and report her absence on December
8, and failed to report to work on December 8. The Re-
spondent contends that her union activities and her mem-
bership in the Union had no bearing whatsoever on her
termination.
There is no doubt that Shelby Nixon was a member of
the Union and that she went out on strike May 10, and
stayed out on strike until it terminated in the latter part
of November. This fact was obvious to the nursing
home, as Shelby Nixon was one of the employees who
applied for reinstatement by the Union's letter of No-
vember 20. She was interviewed on December 3, and ac-
cording to Respondent, was told to report to work on
December 8. Nixon asserts that she was told to report to
work on December 9, and with that in mind she did not
show up until December 9, and that her discharge was a
total surprise.
Both Cook and Johns testified that Shelby Nixon was
informed, on December 3, that she was to report to
work on December 8. Cook's testimony reflects that the
other employees interviewed on that date were also told
to report for work on December 8. Respondent's Exhibit
7 supports the testimony of both Cook and Johns and
while this document is certainly self-serving I have no
reason to believe that it is not authentic. The document
indicates that Shelby Nixon was scheduled to start work
on December 8, and that her regular shift would be from
3 to 11 p.m. The record reflects that Nixon did not
report for work on December 8, nor did she call in and
explain her absence. She did report for work at 6:45
a.m., the following day, December 9.
This record adequately reflects that Shelby Nixon was
informed of the employee handbook and that she was
aware of the policies and procedures relating to being
absent from work without giving the proper notice.
It is clear in my mind that Shelby Nixon was aware
that, if she was scheduled to work at the nursing home
and was not going to be there, she must call in or con-
tact somebody at the nursing home to explain her ab-
sence. This would be a normal function at any nursing
home and I am certain is not limited to Beverly.
I have carefully read the testimony of Johns, Cook,
Nixon, and other witnesses in an attempt to determine on
what day Shelby Nixon was informed that she was to
return to work at the nursing home. I recognize that I
am dealing with individuals who have some interest in
the outcome of these proceedings. With that in mind I
have carefully evaluated the testimony of all involved.
Christopher Johns appeared to me to be a very reliable
witness and his testimony had a ring of truth. His testi-
mony was straightforward and he impressed me as a
truthful individual. Both Cook and Nixon were involved
in this labor dispute from its inception and their testimo-
ny, to some extent, indicates some of the bitterness that
was generated by this labor dispute. To the extent that
Cook's testimony corroborates that of Johns in this in-
stance, I have accepted her testimony. Therefore, it is
my conclusion that Shelby Nixon was informed by Bev-
erly that she was to report for work on December 8, and
that she was aware of this fact.
The General Counsel argues that, even though she
was scheduled to report on December 8, her failure to
return on that date should be excused because she was an
unfair labor practice striker. Even assuming that these
employees were engaged in an unfair labor practice
strike, which fact I do not deem necessary to decide, this
432
CUMBERLAND NURSING & CONVALESCENT CENTER
fact in my view does not excuse Nixon's failure to report
for work on an agreed-upon time. I agree that an em-
ployer cannot establish an arbitrary date and terminate
an employee or fail to reinstate an employee who does
not report for duty at that precise time. Here Nixon was
interviewed on December 3, and told to report for work
on December 8. She had an opportunity to raise an ob-
jection to this date; however, she did not raise any objec-
tions. Additionally, she had at least 5 days in which to
make an objection to the date on which she was due to
report. She did not call in or indicate to the nursing
home that she would not report for work on December
8, as scheduled. Under these circumstances, the fact that
Nixon may have been an unfair labor practice striker in
my view does not excuse her from reporting to work at
an agreed-upon time.
Therefore, as there was an established and agreed-
upon time for Nixon to return to work, and she failed to
report that day, I see no reason why that cannot be
grounds for discharge even assuming that Nixon was en-
gaged in an unfair labor practice strike. There is nothing
in this record to indicate that there was any discrimina-
tion in regard to the treatment of Nixon as opposed to
any other employee at the nursing home. The fact that
she was on strike and possibly an unfair labor practice
striker does not give her any privileges not afforded all
other employees.
In this regard this record clearly shows that employee
Carol Redman, a nonstriking employee who was sched-
uled to work on December 7, and who did not report to
work and who did not notify Beverly was terminated be-
cause of this in accordance with the terms and conditions
of the personnel policies of the Beverly Nursing Home.
This record also reflects that Nancy Lee Dolly, the em-
ployee who was involved in the incident with Connie
Arbogast, was also discharged for the same reason in
March 1981. This record also reflects that Loretta Wells,
a striking employee, was also terminated in January 1981
for the same reasons. Additionally, another employee,
Vicky Chandler, was terminated in December, for the
same reasons. Thus, it is clear that there were employees
discharged both before and after the discharge of Shelby
Nixon for failure to contact the nursing home and inform
the nursing home that they would not report to work as
scheduled.
Under these circumstances, I cannot find any disparity
in the treatment of Nixon. Moreover, there were 50
striking employees who requested reinstatement. All
striking employees who wanted to be reinstated were re-
instated, except Nixon. There were approximately 34
striking employees reinstated. If this Respondent was
seeking a way to punish its employees for supporting the
Union, I see no basis in this record why it would choose
Nixon over the other 34 properly reinstated striking em-
ployees. There is no reason why Respondent would
select Nixon as a target for its discrimination.
Under all the circumstances it is my conclusion that
Shelby Nixon was scheduled to report for work on De-
cember 8, that she failed to report for work that day and
also failed to notify Beverly of the fact that she was not
going to report, that because of that fact and in accord-
ance with the Beverly policies and procedures she was
terminated. Therefore, it is my conclusion that the Gen-
eral Counsel had failed to establish that the discharge of
Shelby Nixon was in any way related to her union activ-
ities or other concerted activities, or that she was in any
way discriminated against or treated any differently from
any other employee and has failed to establish that the
Respondent violated Section 8(a)(3) of the Act in this
regard. 1, therefore, recommend that the complaint be
dismissed insofar as it alleges a violation of the Act with
regard to termination of Shelby Nixon.
C. The Alleged Unfair Labor Practices as They Relate
to Employee Kathy Steckman in Violation of Section
8(a)(l) and (3) of the Act
Kathy Steckman testified that she was first employed
by Cumberland on May 23, 1979, and that she left the
employment of Beverly on March 6, 1981. She became
involved with the Union in the spring of 1979, and she
went on strike in May. She returned to work after the
strike and prior to returning she was interviewed and
was told to report for work on December 10. She testi-
fied that, on December 9, she received a call from Cook
who informed her to come to work at 8 a.m., rather than
12 noon. During this conversation she asked Cook about
extra time and was informed that there would be no
extra time. Steckman asked Cook if "scabs" would be
working the extra time at the Christmas and New Year
holidays. Again Cook said there would be no extra time.
Steckman informed Cook that it would be hard for her
to report to work at 8 a.m. on December 10 because she
was scheduled to have a throat culture that morning.
Cook told her to get the throat culture, and when she
received the results to call her and they would set up a
date for her to come back to work. She ultimately re-
ported to work on December 17, and gave her slip from
the doctor, relating to her throat culture, to Head Nurse
Betty Kirk. She signed a slip stating that she had read
the handbook and was sent down to work with nurse
Betty Thomas. At 9:45 a.m., she was called into Johns'
office, where she met Johns and Cook. Cook told her to
sit down, and advised that the meeting had to do with
the telephone conversation the week before when she
had used the word "scab." Cook told her that she was
not to use that word again and that everyone was going
to be treated equal. She stated that Johns told her that he
did not want to hear her use the word again and if she
did she would be asked to leave immediately. She stated
that Cook told her that she had prior knowledge that
Steckman had been active in union activities and that she
had talked to patients and/or employees about the Union
and their activities. Steckman asked if she was blaming
the strike on her and Cook responded by stating that she
knew that Steckman was one of the main instigators in
getting the Union into the nursing home. At this point
Johns said, "[W]e have to be careful as to what we say
because we could get into a labor dispute."
At 1:45 p.m., she was called into Cook's office, and
handed a piece of paper to sign. She read it and refused
to sign and Cook told her to go into Johns' office. She
told Johns that she did not agree with what was on the
paper and would not sign it. She said that Johns said a
433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
word to the wise would be sufficient and that if she was
caught doing anything that had to do with the Union she
would be asked to leave immediately. She told them they
could check with nurse Thomas and she could tell them
that she had not talked to anyone about the Union. The
warning slip, General Counsel's Exhibit 7, signed by
Cook and Johns, was not acknowledged by Steckman
but nevertheless was placed in her personnel file.9
To the extent that there was any reference to the fact
that Steckman had been talking with patients, particular-
ly one Pat Roland, Beverly admits that Roland is not re-
sponsible and that the hospital was in error in issuing any
warning relating to any conversation that Steckman may
have had with Pat Roland dealing with purported union
activities. Beverly admitted that it was in error but re-
fused to admit that this was done for discriminatory rea-
sons.
Based on the foregoing testimony of Steckman, which
was undenied by both Cook and Johns, it is clear that
Steckman was told that Beverly had prior knowledge
that Steckman was involved in union activities and that
she was one of the main instigators in getting the Union
into the nursing home. Steckman was also told that if she
was caught doing anything that had to do with the
Union in the future she would immediately be asked to
leave. These statements clearly create the impression of
surveillance of Steckman's activities on behalf of the
Union and also constitute unlawful interrogation and
threat of discharge, all violative of Section 8(a)(1) of the
Act.
Steckman received a warning which related to her dis-
cussions with patients concerning the Union which the
Respondent admitted was a mistake. The other portion
of the warning dealt whith Steckman's use of the word
"scab" in connection with employees at the nursing
home. The use of the word "scab" in the context of the
labor dispute has been held by the Board to be protected
activity. See Bandag, Incorporated, 225 NLRB 72 (1976),
and cases cited therein. Accordingly, issuing a warning
to Steckman for use of the word "scab," and because of
discussions with patients relating to unions and union ac-
tivities, in connection with prior statements that Re-
spondent knew that Steckman had been involved in
union activities, that Steckman was one of the main insti-
gators in getting the Union into the nursing home, and
that if Steckman was caught doing anything that had to
do with the Union in the future she would immediately
be asked to leave, in my view was violative of Section
8(aX3) of the Act and designed to discourage support for
the Union.
As I have concluded that Arbogast was unlawfully
discharged by Cumberland prior to the takeover by Bev-
9 G.C. Exh. 7 reads as follows:
In regards to your phone conversation with Betty Cook on Tues-
day, December, 1980, the word "scab" was used to describe the em-
ployees here. You will hereby never refer to any employee in this
facility by that term again while on duty.
The next item has to do with the patients. We are here to serve
the patient and see that they are protected at all times, therefore, any
discussion about the union while on duty with any patient will not
be permitted. There was a report from a patient that such a discus-
sion had taken place. If any such reports are heard in the future, this
will result in your possible immediate dismissal.
erly on September 15, 1980, it must be determined
whether Beverly is required to offer full reinstatement to
Arbogast and whether Beverly is also jointly and sever-
ally liable for Arbogast's backpay with Cumberland.
There is no doubt that Beverly is a successor employer
in the normal sense. However, employers who acquire
and continue to operate the business of the predecessor
employer in a basically unchanged form can be held
liable for the unremedied unfair labor practices of the
predecessor employer under certain circumstances. One
of the prerequisite to liability on the part of the successor
employer is that it have actual notice of the unfair labor
practices of the predecessor. It is unneccessary that
unfair labor practice charges be filed prior to the take-
over, but the successor employer must have notice of the
facts of unfair labor practices at the time it took over the
operation.
It is also well settled that the responsibility of estab-
lishing that it was without knowledge of the unfair labor
practices of Cumberland at the time it took over the
Cumberland operation rests squarely with the successor
Beverly. See Mansion House Center Management Corpo-
ration, etc., 208 NLRB 684, 686 (1974); Am-Del-Co-Inc..
etc., 234 NLRB 1040 (1978).
None of the individuals involved in the sales negotia-
tions between Cumberland and Beverly testified at this
proceeding. In fact, the only testimony on this point is
that of Administrator Bruce Boyer, who testified that he
was not involved in the sales negotiations and that he
was not contacted by either party to the sale negotiations
concerning the strike at Cumberland. Respondent argues
that this lack of communication between the participants
in the discharge of Arbogast and those parties involved
in the sales negotiations establishes the fact that Beverly
did not have knowledge of the unfair labor practices.
In my view, Respondent clearly has failed to establish
that Beverly was without knowledge of the unfair labor
practices of Cumberland at the time it took over the op-
eration of the nursing home. On the contrary, from this
record Beverly did have notice of the discharge because
the individuals who made the decision to discharge Ar-
bogast, Boyer and Cook, and thereby committed the
unfair labor practice, continued to work for Beverly in
the same capacity and with the same duties as they had
with Cumberland. Moreover, it was admitted by Cook
that the only reason Beverly never offered Arbogast re-
instatement in December, at the time it offered reinstate-
ment to all other striking employees, was because of Ar-
bogast's discharge in September.
Under these circumstances, it is my conclusion that
Beverly is a successor with full knowledge of the facts
and events surrounding the unfair labor practices com-
mitted by Cumberland in the discharge of Arbogast in
September. Therefore, it is my conclusion that, as such,
Beverly is jointly and severally liable with Cumberland
for Arbogast's backpay and is required to offer her im-
mediate and full reinstatement to her former or substan-
tially equivalent position. See Bellingham Frozen Foods
etc., 237 NLRB 1450 (1978); Southeastern Envelope Co.,
Inc., 206 NLRB 933 (1973); Ashville-Whitney Nursing
Home, etc., 188 NLRB 235 (1977).
434
CUMBERLAND NURSING & CONVALESCENT CENTER
IV. THE EFFECT OF THE UNFAIR L ABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occur-
ring in connection with the operations described above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
v. THE REMEDY
Having found that Cumberland and Beverly have en-
gaged in unfair labor practices in violation of Section
8(a)(1) and (3) of the Act, I shall recommend that they
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act. As I have found that Beverly's only reason for
failure to offer reinstatement to Connie Arbogast was be-
cause of her unlawful discharge by Cumberland, and as
it is clear that but for that discharge Arbogast would
have been offered employment by the successor, Bever-
ly, I shall recommend that Beverly offer Connie Arbo-
gast immediate and full reinstatement to her former job'°
and, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or other
rights and privileges, and jointly and severally with
Cumberland make her whole for any loss of earnings she
has suffered as a result of the discrimination against her
on September 10,'" until such time as successor Beverly
makes an offer of reinstatement to Connie Arbogast,
with interest thereon, computed in accordance with F.
W. Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977).
1. Beverly Enterprises, Inc. t/a Cumberland Nursing &
Convalescent Center is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Cumberland Nursing & Convalescent Center is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
3. Beverly Enterprises, Inc. t/a Cumberland Nursing &
Convalescent Center is a successor to Cumberland Nurs-
ing & Convalescent Center.
4. By informing employee Steckman that Beverly
knew that Steckman was one of the main instigators in
getting the Union into the nursing home, Beverly violat-
ed Section 8(a)(l) of the Act.
5. By informing employee Steckman that if she was
caught doing anything that had to do with the Union she
would immediately be asked to leave Beverly's premises,
Beverly has violated Section 8(a)(l) of the Act.
6. By discriminatorily disciplining employee Steckman
by reprimanding her because of her union activities, Bev-
erly has engaged in conduct violative of Section 8(a)(l)
and (3) of the Act.
io Southeastern Envelope Co.. Inc.. supra, and cases cited therein.
" In Abilities and Goodwill. Inc., 241 NLRB 27 (1979). the Board de-
cided that unlawfully discharged stnkers will be treated the same as un-
lawfully discharged employees for backpay purposes and, therefore, an
unlawfully discharged striker no longer has to apply for reinstatement to
trigger a backpay obligation. It makes no difference whether it is an eco-
nomic striker or unfair labor practice stnker as suggested by the General
Counsel.
7. By discriminatorily discharging employee Connie
Arbogast on September 10 because of her union activi-
ties, Cumberland violated Section 8(a)(1) and (3) of the
Act.
8. By failing and refusing to reinstate Connie Arbogast
in December 1980 because of her discharge by Cumber-
land on September 10, 1980, Beverly has engaged in vio-
lations of Section 8(aXl) and (3) of the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Cumberland and Beverly have not engaged in any unfair
labor practices other than those specifically found herein.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this matter, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER X 2
The Respondent, Beverly Enterprises, Inc. t/a Cum-
berland Nursing & Convalescent Center, Cumberland,
Maryland, as the successor employer to Cumberland
Nursing & Convalescent Center, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Creating an impression of surveillance by informing
its employees that it is aware of its employees' union ac-
tivities.
(b) Informing its employees that, if they are caught
doing anything that has to do with the Union or any
other labor organization, they will immediately be asked
to leave the nursing home.
(c) Discouraging membership in the Union, or any
other labor organization, by discriminatorily discharging,
refusing to reinstate, issuing warning notices, or in any
other manner discriminating against any employee in
regard to tenure or any other term or condition of em-
ployment because of their activities on behalf of the
Union or any other labor organization.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to join or assist the Union or any other labor
organization or otherwise engage in activities protected
by the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Expunge from any of its files the warning notices
discriminatorily issued to Kathy Steckman on December
17, 1980, if that notice still exists.
(b) Offer immediate and full reinstatement to Connie
Arbogast to her former, or substantially equivalent posi-
tion, without prejudice to her seniority or other rights
and privileges previously enjoyed, and jointly and sever-
ally with Cumberland Nursing & Convalescent Center
make her whole for any loss of pay she may have suf-
1" 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.
435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered by reason of the discrimination against her in the
matter set forth in the remedy portion of this Decision.
(c) Preserve and, upon request, make available to the
Board or its agents all records necessary to determine
the amounts of backpay due under this recommended
Order.
(d) Post at its nursing home in Cumberland, Maryland,
co)pies of the attached notice marked "Appendix." 13
Copies of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by Bever-
ly's authorized representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where 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.
(f) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Beverly has
taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
'3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOiICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT create an impression of surveil-
lance of our employees by informing them that we
are aware of their union activities.
WE WILL NOT inform our employees that if they
are caught doing anything that has to do with the
Union, or any other labor organization, that they
will immediately be asked to leave the nursing
home.
WE WILL NOT discourage membership in Retail
Store Employees Union, Local 692, United Food
and Commercial Workers International Union,
AFL-CIO, CLC (herein Union), or any other labor
organization, by discriminatorily discharging, refus-
ing to reinstate, or issuing warning notices, or in
any other manner discriminate against any employ-
ee in regard to tenure or any other term or condi-
tion of employment because of their activities on
behalf of the Union, or any other labor organiza-
tion.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights to join or assist the
Union, or any other labor organization, or other-
wise engage in activities protected by the Act.
WE WILL expunge from any of our files the
warning notice discriminatorily issued to Kathy
Steckman on December 17. 1980, if that notice still
exists.
WE WILL offer immediate and full reinstatement
to Connie Arbogast to her former or substantially
equivalent position, without prejudice to her senior-
ity to other rights and privileges previously en-
joyed, and WE WILL jointly and severally with
Cumberland Nursing & Convalescent Center make
her whole for any loss of pay she may have suf-
fered by reason of the discrimination against her,
with interest.
BEVERLY ENTERPRISES, INC. I/A CUMBER-
LAND NURSING & CONVALESCENT CENTER
436