Blossom Nursing Center

National Labor Relations Board - Board Decisions

Jul 31, 1990

299 N.L.R.B. 333 (N.L.R.B. 1990)

BLOSSOM NURSING CENTER 333
Gerald F. Schroer, Inc. d/b/a Blossom Nursing
Center and United Food and Commercial Work-
ers International Union, Local 880, AFL-CIO.
Cases 8-CA-20180, 8-CA-20452, 8-CA-
20680, 8-CA-20884, 8-CA-21269, 8-CA-
23149, and 8-CA-21430
July 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 10, 1989, Administrative Law Judge
Thomas R Wilks issued the attached decision, cor-
rected by an Errata on September 1, 1989 The Re-
spondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat-
ed its authonty in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Gerald F
Schroer, Inc d/b/a Blossom Nursing Center, Alli-
ance, Ohio, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order
1 No exceptions were filed to the judge's finding a violation of Sec
8(a)(1) in connection with the Company's no-solicitation rule and a viola-
tion of Sec 8(a)(3) and (1) in connection with the Company's disciplining
Pandora Howell for wearing union jewelry Nor were exceptions filed to
any of the judge's dismissals of complaint allegations
Charles Z Adamson, Esq , for the General Counsel
Stanford Gross, Esq (Gross, Goodman & (Issociates), of
Cleveland, Ohio, for the Respondent
Michele L Yarde, Administrator, Blossom Nursing
Center, of Alliance Ohio, for the Respondent
Joseph C Kapzath, Organizer, of Cleveland, Ohio, for the
Charging Party
DECISION
STATEMENT OF THE CASE
THOMAS R WoAcs, Administrative Law Judge The
trial in this matter was litigated before me on February
27, 1989, at Alliance, Ohio, pursuant to unfair labor prac-
tices charges and amended charges filed by United Food
and Commercial Workers International Union, Local
880, AFL-CIO-CLC (Union) against Gerald F Schroer,
Inc d/b/a Blossom Nursing Center (Respondent) and a
complaint and series of complaints that preceded a fourth
order consolidating cases and third amended consolidat-
ed complaint that issued by the Regional Director for
-
Region 8 on January 31, 1989 The sequence of events
leadmg to that consolidated complaint is as follows
Pursuant to a Stipulated Election Agreement between
the Union and Respondent, an election was conducted in
Case 8-RC-13624 on June 5, 1987, in a bargaining unit
of all full-time and regular part-time aides, laundry em-
ployees, housekeeping employees, and dietary employees
employed at the Respondent's Alliance, Ohio facility
Subsequent to the election, on June 19, 1987, the Union
filed an unfair labor practice charge in Case 8-CA-20180
alleging that the Respondent violated Section 8(a)(1) and
(3) of the Act by interfering with its employees' Section
7 rights and by discriminating against employee Virginia
Toussant because of her activities on behalf of the Union
The unfair labor practice charge was amended on July
16, 1987, to include alleged unilateral changes of vaca-
tion and pay raise policies, discriminatory treatment of
employee Pam Kraft, and violation of Section 8(a)(5) of
the Act by a refusal to bargain with the Union
Further unfair labor practices were filed by the Union
on October 7, 1987, in Case 8-CA-20452 alleging viola-
tions of Section 8(a)(3) and (5) of the Act Among the
additional allegations of unlawful conduct were the fol-
lowing (1) discrimination against employees Claudia
Kirksey, Pamela Cline, Betty Stevens, Tina Baker, and
Diane Wiley, (2) discharge of employee Darlene Hall be-
cause of her support of the Union, (3) suspension of em-
ployee Donna Lare because of her support of the Union,
and (4) discipline of employee Pandora Howell because
of her support of the Union This charge was amended
to omit the charge regarding the above-named discrimi-
nation against Claudia Kirksey, et al General allegations
of violations of Section 8(a)(3) were set forth in Case 8-
CA-20680 dating from December 1, 1987, to January 19,
1988, which was amended on March 3, 1988
Concurrently, the Respondent challenged the validity
of the election held on June 5, 1987 It was Respondent's
position that the conduct of the organizational campaign
and the election itself necessitated setting aside the elec-
tion of the Union as the collective-bargaining agent for
bargaining unit employees A hearing was held and the
hearing officer overruled the Respondent's objections to
the election These findings were upheld by the Board
which on March 10, 1988, certified the Union as the col-
lective-bargaining agent for the bargaining unit employ-
ees The Union's demand for bargaining on March 21,
1988, was refused by Respondent on April 6, 1988 Re-
spondent challenged the Board's findings as being con-
trary to law and fact from April 6, 1988, to this litiga-
tion Respondent's refusal to bargain pending its test of
the Board certification gave rise to an unfair labor prac-
tice charge filed by the Union on April 12, 1988, alleging
violation of Section 8(a)(5) of the Act in Case 8-CA-
20884
Further violations of Section 8(a)(1), (3), and (5) of the
Act were alleged in the charges in Cases 8-CA-21269,
8-CA-21349, and 8-CA-21430 filed on September 23,
October 20, and December 1, 1988, inclusive of alleged
discriminatory discipline and discharge of employee
Kraft After issuance of the third amended complaint,
shortly prior to the trial, the parties stipulated to the
299 NLRB No 42
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
withdrawal of Respondent's denials to numerous com-
plaint allegations of Section 8(a)(1) as set forth in com-
plaint paragraphs 11(A) through (M), 12(A) through (E),
12(I), 12(K), 12(M), 13(A) through (E), 12(B), 15, and
19(0) and thereby rendered them admitted under the
Board's Rules The parties stipulated further to the issu-
ance of an appropriate order and notice posting remedy-
ing the violations alleged in those paragraphs and reserv-
ing to the General Counsel the right to adduce evidence
of the alleged violations, which in fact, at trial, the Gen-
eral Counsel did to a limited extent for the purpose of
establishing background and motivation
In addition, the parties resolved the alleged termina-
tion of employee Pamela Kraft which was set forth in
complaint paragraph 23 which was subsequently with-
drawn by counsel for the General Counsel The discipli-
nary warnings alleged in complaint paragraphs 18(C) and
(D) in respect to employee Virginia Toussant and
Pamela Howell were also resolved by the parties, and
withdrawn from the complaint allegations of violative
conduct The parties also entered into a stipulation as to
Respondent's alleged unilateral conduct which will be
discussed below
In consequence of the foregoing stipulations and reso-
lutions, the following issues remained for litigation before
me (1) whether Respondent violated Section 8(a)(5) of
the Act by admittedly, unilaterally, and without notice
to the Union, effecting certain changes in terms and con-
ditions of employment, some of which are also alleged to
have been coercively implemented and discriminatorily
motivated and thus also violative of Section 8(a)(1) and
(3) of the Act, (2) whether it engaged in certain conduct
violative of Section 8(a)(1) of the Act, e g, certain coer-
cive statements and the promulgation and maintenance of
an overly broad no-solicitation rule, (3) whether, by the
termination of employment of employee Darlene Hall
and the disciplining of employee Donna Lare, Respond-
ent violated Section 8(a)(1) and (3) of the Act, and (4)
whether, by the disciplining of employee Pamela Howell
pursuant to an allegedly unlawful "no access" rule, Re-
spondent violated Section 8(a)(1) and (3) of the Act
Posttnal bnefs were filed by the General Counsel and
Respondent on May 15, 1989
Having reviewed the entire record in this consolidated
matter, including the testimony, documentary evidence,
and briefs, and based on my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I JURISDICTION
At all times material, Respondent, an Ohio corpora-
tion, with an office and place of business in Alliance,
Ohio (Respondent's facility), has been engaged in the op-
eration of a nursing home Annually, Respondent, in the
course and conduct of these business operations, derived
gross revenues in excess of $100,000 and received goods
valued in excess of $50,000 directly from points located
outside the State of Ohio
It is admitted, and I find, that Respondent is now, and
has been at all times material, an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act
II LABOR ORGANIZATION
It is admitted, and I find, that the Union is now, and
has been at all times material, a labor organization within
the meaning of Section 2(5) of the Act
III FACTS
A Background
The parent corporation of Respondent, 1 e, Gerald F
Schroer, a/k/a Altercare, purchased the Alliance, Ohio
facility from Kathy and Mike Callihan in July 1986
Kathy Callihan continued for a period thereafter as ad-
ministrator In January 1987, Michele Yarde was hired as
the new administrator after a December interview and
orientation by her superiors at Altercare She com-
menced actual duties for Respondent at the Blossom
Nursing Center in Alliance in February 1987 Yarde tes-
tified that upon her hiring she was told by her superiors
that she was to enforce the employment policies of Al-
tercare, which Kathy Callihan had failed to do
In early 1987, the Union commenced an organizing
effort directed at Respondent's facility (Blossom) which
employed about 60-65 employees in the admitted appro-
priate bargaining unit consisting of full-time and regular
part-time aides, laundry employees, housekeeping em-
ployees, and dietary employees and excluding casual and
temporary employees, licensed practical nurses and main-
tenance employees, office clerical and statutory exclu-
sions That effort resulted in a Board-conducted election
on June 5, 1987, and Board certification on March 10,
1988 As noted above, Respondent withdrew its denial of
multitudinous allegations of Respondent's coercive an-
tiunion conduct which, thus, becomes admitted under the
Board's Rules The General Counsel further adduced
credible, largely uncontradicted evidence of Respondent
conduct from which pervasive antiunion hostility must
be inferred
As noted above, the Respondent has chosen to contest
the Board certification and has refused to recognize and
bargain with the Union and has admittedly executed uni-
lateral changes in bargamable terms and conditions of
employment without having afforded the Union notice
and bargaining opportunity Respondent has admitted
having afforded the Union no notice nor bargaining op-
portunity with respect to all the matters alleged as
changes in terms and conditions of employment in com-
plaint paragraph 12(K) (the admitted order of removal of
jewelry from the person of an aide), 12(N) (the admitted
cessation from May 1987 through September 1988 of all
employee wage reviews and suspensions of discretionary
wage increases), 17(B) (the alleged new promulgation
and enforcement of an employee "no access" rule), 18(A)
(the alleged June 1987 denial of a general 6-month auto-
matic employee wage increase), 18(B) (the alleged June
1987 deviation from past practice of the prepayment of
employee vacation pay), 19(A) (the August 1987 new
form of work hour scheduling), 19(B) (the August 1987
change in work shifts), 19(C) (the August 1987 change in
BLOSSOM NURSING CENTER 335
employees' regularly assigned days off), 19(D) (the
August 1987 discontinuance of employee discretion as to
unrestricted mutual work hour substitutions), 19(E) (the
August 1987 change in discipline regarding failure to
report to work), 19(F) (the July 1987 alleged new gar-
nishment policy), and 22 (the August 1987 termination of
employee Hall pursuant to the alleged new garnishment
policy)
Much of the facts surrounding those allegations are
not contested, but Respondent, in certain instances,
denies that it had acted contrary to past practice, i e, the
garnishment policy, the "no access" rule or no loitering
policy, the wage raise (which it contends was always dis-
cretionary and not automatic), and the advanced pay-
ment of accrued vacation pay
B Withholding of Wage Raises and Life Insurance
Benefits
The General Counsel's brief is silent as to complaint
allegation 18(a) of a June 5, 1987 suspension of a past
practice 6-month automatic employee wage increase
There is no evidence of an automatic 6-month general
wage increase The uncertain and vague testimony of
General Counsel witnesses as to cryptic promises made
by Kathy Callihan and/or other unidentified charge
nurses prior to Respondent's assumption of control is not
sufficient to establish such a practice Documentary evi-
dence did not support the allegation The General Coun-
sel rather directs his attention to the conceded suspen-
sion from May 1987 to September 1988 of any employee
merit wage increases, and the testimony of adverse wit-
ness Yarde as to the context for that suspension
Yarde testified credibly and without contradiction that
pursuant to her orientation by Altercare, she had accept-
ed and implemented a policy of discretionary raises
based on a 3-month review during the employee's first
year of employment and every 6 months thereafter That
review encompassed an evaluation of the employee's per-
formance and a range of zero to a maximum amount that
would be merited pursuant to the judgment of the re-
viewer In May 1987, certain merit raises were awarded
in a review I of eight employees in accordance with this
policy Thereafter, Yarde was advised by Respondent's
counsel regarding the possibility of an unfair labor prac-
tice allegation concerning the issuance of discretionary
raises during the Union's bargaining agent's recognition
effort She decided to suspend raises and she thereafter
informed employees of this decision and the motivation
for it during individual conversations and by way of a
posted notice dated September 16, 1988
Yarde testified that in June and July 1987 during meet-
ings with employees, she told them that because of the
"uncertainty of the union situation" that all raises were
frozen She testified that she explained to several em-
ployees that because the raises were discretionary and
varied from employee to employee that it could be con-
strued as an unfair labor practice Testimony of General
Counsel's witnesses corroborated her The September 16,
1988 posted notification contained a denial of discrimina-
tory intent, asserted the discretionary nature of Alter-
care's wage raises, and advised that pursuant to the
advice of legal counsel raises were suspended "until the
situation is resolved" In her testimony, she explained the
"situation" as the pending of Respondent's test of certifi-
cation
Complaint paragraphs 12(L) and 14(A) allege that in
December 1987 Respondent informed two employees
that the issuance of new life insurance benefits were
being withheld from them because of the "union situa-
tion" in one instance and because of the employees' pro-
tected union activities in another instance, in violation of
Section 8(a)(1) and (3) of the Act Unlike the wage in-
crease suspension, there is no companion 8(a)(5) allega-
tion with respect to the withholding of new life insur-
ance benefits from bargaining unit employees, despite the
fact that Respondent did at the same time grant such
benefits to nonumt employees Such benefits were asser-
tedly withheld from bargaining unit employees to avoid
accusations of unfair labor practices
Aide Pamela Kraft testified that in mid-December
1987, when she questioned Yarde as to why bargaining
unit employees were not granted these new benefits as
had the nurses, she was told that it was "because of the
union situation" and that "it would appear like a bribe
and charges could be filed"
Aide Claudia Kirksey testified to an almost identical
conversation with RN Supervisor Carol Stewart about
the same time Yarde testified that when unit employees
asked her about their exclusion from the new life insur-
ance coverage that had been granted nonunit employees,
she explained to them that "any kind of benefit" would
be construed as an unfair labor practice Yarde testified
that in December 1987, pursuant to Altercare's company-
wide policy implementation at all of its 16 facilities, all
full-time RN's and LPN's at Blossom were issued a free
$20,000 life insurance policy She explained that the bar-
gaining unit employees would have also received this
benefit under that implementation but for the advice of
legal counsel to withhold it in order to avoid unfair labor
practice charges
The General Counsel's brief is silent as to the life in-
surance issue, but his argument concerning the wage in-
crease suspension clearly encompasses the issue, at least
insofar as Section 8(a)(1) and (3) is concerned, and rests
upon citation of Gupta Permold Corp, 289 NLRB 1234
(1988), in which 8(a)(1), (3), and (5) violations were
found to have been committed by the suspension of an
in-place merit wage increase system
The Respondent contends that because the suspension
of discretionary wage increases was uniformly applied
and expressly made to avoid unfair labor practices, an
8(a)(1) and (3) violation was not shown A similar argu-
ment is made as to the withholding of new benefit of a
paid life insurance policy In support thereof, Respond-
ent cites Peabody Coal Co v NLRB, 725 F 2d 357 (6th
Cir 1984) In that case, the court, in disagreement with
the Board, found that an employer did not violate Sec-
tion 8(a)(5) of the Act during a period when it was test-
ing a Board certification of representation by excluding
bargaining unit employees from receipt of new benefits
and unscheduled pay raises granted to nonumt employ-
ees The court observed, however, that unilateral
changes in existing wage structures is violative of Sec-
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion 8(a)(5) of the Act whether it be an increase or a
denial of a raise that normally would have been granted
under past practice In Peabody, the court noted that the
administrative law judge found an absence of any past
practice The court exculpated an employer from 8(a)(5)
violations when, during a test of certification, it "sedu-
lously avoids changing precertification work conditions
" 725 F 2d at 365-366 The court, however, in
agreement with the Board, found that the employer vio-
lated Section 8(a)(1) and (3) of the Act It noted that be-
cause of the absence of evidence that wage and benefit
increases withheld were part of preexisting terms and
conditions of employment, the Board could not rely on a
per se violation but that direct and circumstantial evi-
dence of union animus supported the finding of an 8(a)(1)
and (3) violation by excluding unit employees from new
benefits and nonscheduled raises
The facts of this case are distinguishable from those
which the court was presented in Peabody The Respond-
ent herein had a policy and practice of reviewing and
granting merit wage increases which employees expected
to be continued The suspension of that policy for a
period well beyond the election during a period of a re-
fusal to bargain, even with the explanation proffered to
employees, particularly in the context of other coercive
conduct, falls within that form of conduct the Board
found violative of Section 8(a)(1), (3), and (5) in Gupta
Permold and cases cited therein See also Parma Indus-
tries, 292 NLRB (1988), in which the suspension of a past
practice of semiannual raises for the ostensible reason of
avoiding "bribe" accusations during the union election
campaign in the context of other coercive conduct was
held violative of Section 8(a)(1) and (3) of the Act
With respect to the withholding of life insurance bene-
fits from the bargaining unit employees, that action was
not alleged violative of Section 8(a)(5) of the Act, but
clearly constitutes the kind of conduct that the court in
Peabody found violative of Section 8(a)(1) and (3) of the
Act, occurring as it did against a background of admitted
widespread, unlawful coercive conduct by Respondent
I conclude that Respondent's reliance on Peabody is
misplaced and undermined by its other unlawful conduct
and that Respondent violated the Act as alleged in the
complaint with respect to the announcement and suspen-
sion of its policy and practice of reviewing employee
work performance and granting merit wage raises, and
by announcing and withholding from them the life insur-
ance coverage granted to nonumt employees
C Vacation Pay
Paragraphs 18(B), 27, and 28 of the complaint allege
that on or about June 5, 1987, Respondent, contrary to
past practice, refused to provide an employee advanced
payment of accrued vacation pay prior to actual vaca-
tion, in violation of Section 8(a)(1), (3), and (5) of the
Act The General Counsel alludes to this allegation in
the brief only in a collective reference to the alleged uni-
lateral actions of Respondent as 8(a)(5) violations Re-
spondent contends that any changes effectuated regard-
ing advance vacation pay policy was effectuated for
business reasons prior to union activity
Uncontradicted, credible testimony establishes that
under the prior ownership of the facility, employees
could obtain in advance of their vacation departure, on
individual special request, the paycheck that would oth-
erwise have been due actual receipt on a subsequent
date The reasons for such practice had been the conven-
ience of the employee Yarde testified that during her
orientation by Respondent at the corporate office, she
was specifically instructed that vacation pay was to be
paid when due in order to provide "continuity of getting
a paycheck" and for "cash flow purposes" She ex-
plained that it was her objective pursuant to her financial
statement responsibilities to budget her payroll in accord-
ance with all other expenses and that uncontrolled vaca-
tion pay advances unknown to her interfered with her
ability to maintain a consistent cash flow She testified
that she was aware that a different policy had preexisted
at the facility when in March 1987 "a couple of employ-
ees" asked her about receipt of advance vacation pay in-
asmuch as they in turn had been told by Kathy Callihan
that the practice ran contrary to the Altercare corporate
policy Yarde testified that she confirmed to these un-
identified employees that Altercare policy precluded ad-
vance receipt of vacation pay She testified, without
challenge, that, as confirmed by her inspection of the
payroll records up to March 1987, she discovered that
some employees had received advance vacation pay and
some had not despite the Altercare policy which Kathy
Callihan was obliged to enforce She testified that after
March 1, with but one exception in March, no employee
thereafter received advance vacation pay
It is undisputed that Yarde directed the posting of a
notice to employees which stated to them, "please re-
member [that vacation pay will not be issued in ad-
vance of when due] " General Counsel witnesses testified
that, in fact, on the date of assumption of control by Al-
tercare, some changes in employment policy and practice
did commence despite personal assurances to the con-
trary by Schroer, even before any union activity The
first contact to the Union was made by aide Pamela
Kraft in mid-March 1987, but no overt activity occurred
until April Although Kraft testified that the June notice
constituted a change of past practices, she also testified
that Kathy Callihan informed her that the Blossom ad-
vance vacation pay policy was to be changed as of Janu-
ary 1, 1987 Aide Mary Doney testified also that the
June notice constituted a change of policy Yet, on cross-
examination, she admitted that within months of
Schroer's acquisition of the facility and his assurances
against changes, by September 1986 "things started
changing pretty drastically," and that vacation pay
policy was one of the changes
In light of the admissions of General Counsel wit-
nesses and the uncertainty and inconsistency on this
issue, I credit Yarde and I conclude that the vacation
pay policy had changed prior to any union activity or
bargaining obligations and that it did not violate the Act
D Reduction of Hours
Complaint paragraphs 12(J) and 26 allege that in late
August 1987 Yarde advised an employee that her hours
BLOSSOM NURSING CENTER 337
of employment were reduced because of her union ac-
tivities and thus Respondent violated Section 8(a)(1) and
(3) of the Act The General Counsel does not discuss this
allegation Respondent argues that hours worked were
determined by the number of patient-residents, i e,
"census," and were unrelated to union activities The Re-
spondent appears to conclude that paragraph 12(J) al-
ludes to a general reduction in hours that was incidental
to the change of scheduling allegations in paragraph 19
of the complaint However, paragraph 19 refers to the
events of on or about August 12 which affected all em-
ployees Paragraph 12(J) refers to a single incident in-
volving a single employee Paragraph 19 is alleged to be
violative of Section 8(a)(1) and (5) of the Act, but not
Section 8(a)(3) Although the conduct described in para-
graph 12(J) is alleged to be violative of Section 8(a)(3) of
the Act, unlike allegations of discriminatory conduct set
forth in complaint paragraphs 17(A) and (B), 18(B), (D),
(E), and (F), 22, and 23, it is not alleged to have been
motivated by the Union or other protected activity Be-
cause of its misconception of the nature of paragraph
12(J), the Respondent does not discuss the incident to
which, I conclude, It must refer, i e, the proffered expla-
nation for the loss of employment opportunity by Yarde
to aide Pamela Cline following her mid-August 1987
fourth annual surgical leave since her initial hiring in
1985
According to Cline, following her mid-August 1987
medical release, she sought reinstatement, only to be told
by Yarde that no work was available but that she would
be rescheduled when work became available She testi-
fied that she did accept ad hoc assignments as a substi-
tute for aides who failed to appear for duty and that
when she did return to regular employment in late
August 1987 she found that her work hours were re-
duced by an unspecified amount and that her day off was
changed She testified that although she had engaged in
little union activities, in a private meeting with Yarde she
asked whether the reason she did not "get my hours"
was "because of the Union," to which Yarde assented
without any explanation
In cross-examination, Cline testified that she obtained
her medical release on either August 17 or 24 but was
uncertain of the date She conceded that it was only a
"couple of days" between the time that she returned to
work to find that she was not listed on the monthly
posted schedule and the alleged coercive conversation
with Yarde She revealed that there was more to the
conversation with Yarde, i e, Yarde expressed surprise
that Cline desired reinstatement after major surgery She
also testified that Yarde then acknowledged the unlawful
motivation for assigning Cline "no hours" and promised
that Clme could pick up ad hoc assignments Cline then
testified that she was reinstated on a full-time basis 2 or 3
days later
Cline's testimony on its face is confusing, muddled,
and inconsistent In cross-examination, she implies, unrea-
sonably, that Yarde ought to have placed her on the
monthly schedule that had been constructed well before
her medical release, and that Yarde acknowledged un-
lawful motivation for totally excluding her from sched-
uled work at a time when Yarde was unaware of her im-
pending availability In direct examination, she placed
Yarde's confession of unlawful motivation as having oc-
curred after her reinstatement and made in reference to a
reduction of hours This testimony is facially unreliable I
credit Yarde that she placed Cline in a full-time position
in accordance with her seniority status as soon as one
opened up, i e, 2 weeks after her medical release, and
that the manner of Cline's reinstatement was unrelated to
union activity
I find that there is insufficient clear, convincing, and
credible evidence to conclude that an employee was told
that antiunion motivation caused a reduction of that em-
ployee's work hours
E August 12, 1987 Unilateral Changes
Complaint paragraphs 19(A) through (E), 21, 25, and
27 allege that on or about August 12, 1987, Respondent
made unilateral changes with respect to the amount of
hours, worked, shift assignments, scheduled days off, em-
ployee trading of assigned work hours, and discipline for
failing to provide good reason for absence from work, all
violative of Section 8(a)(1) and (5) of the Act
The General Counsel addressed this allegation only by
way of a generalized observation of Respondent's pur-
ported bargaining obligation, having found it sufficient to
note only that the Respondent admitted the unilateral
nature of the alleged changes Respondent, however,
raises a factual issue inasmuch as it asserts that these
changes in employment conditions were predetermined
by Respondent prior to onset of any bargaining obliga-
tion or known union activity, were intended to alleviate
specific problems, were directly related to the manner its
business had been structured, and were motivated by a
desire to obtain more control over its business It also
contends that there were no changes in practice regard-
ing the trading of work hours
Yarde's testimony as to the business reasons for the ad-
mitted changes was not effectively controverted, and I
credit her testimony in this regard as reasonable and con-
vincing The genesis for Yarde's effectuation of the ad-
mitted changes in working conditions did in fact occur
prior to union activities The patient census had declined
prior to her hiring, and at hiring she had been instructed
to "review staffing patterns" at the Blossom facility and
to "adjust staffing hours accordingly" That was in De-
cember 1986 It was not until July 1, 1987, that she start-
ed working on it diligently, and not until August 12,
1987, that the changes were announced to the employ-
ees
Clearly, the general motivation for these unilateral
changes in working conditions predated Respondent's
bargaining obligations, but the actual decision as to what
specific actions were to be taken were made after the
Board-conducted election and during the time Respond-
ent was challenging the results of that election With re-
spect to the trading of hours, there was a change in
policy and practices General Counsel witness Kirksey
revealed employees did not in fact have complete free-
dom to trade hours without some sort of supervisory ap-
proval In the past, the charge nurse had that authority,
whereas, after August 12, Yarde's direct approval was
338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
necessary This was a change in supervisory responsibil-
ity and, as Respondent argues, not a real change vis a vn
the employer and employee Respondent, however, ig-
nores the uncontradicted evidence that there was a new
restnction placed upon the trading of hours, i e, with re-
spect to the effectuation of that trade, i e, unlike past
practice, the employees who relinquished the hours
sought by another employee must actually work the as-
signed hours of the petitioning employee Thus an abso-
lute quid pro quo was created to prevent a past situation
where an employee might cede certain hours to another
employee and effectuate a situation where one employee
worked more than a full workweek and one less Yarde's
explanation for this real change did not relate directly to
the census problem as it did to her decision to help tight-
er control over who worked when, so as not to jeopard-
ize the employee contingency reserve as had occurred
previously
Thus, the August 12 announcements all constituted
changes in policy and practice regarding terms and con-
ditions of employment Yarde testified that she did not
notify the Union of these changes because Respondent
was concurrently challenging the results of the Board
election
Respondent argues that the Union made no request to
bargain regarding these changes and that it was justified
under the rationale of Peabody, supra It would be super-
fluous and futile to expect the Union to request bargain-
ing over every unnoticed change of working terms and
conditions effectuated dunng the course of the Respond-
ent's general refusal to recognize and bargain with it
With respect to the Peabody decision, Respondent's reli-
ance on it is misplaced because, with respect to changes
in preexisting terms and conditions of employment as oc-
curred herein, the court's rationale supports the General
Counsel's theory of violations Accordingly, I conclude
that Respondent violated Section 8(a)(1) and (5) of the
Act as alleged in paragraphs 19(A) through (F) of the
complaint
F No-Solicitation Rule
Complaint paragraphs 16 and 25 allege that Respond-
ent violated Section 8(a)(1) of the Act since January 1,
1987, by the maintenance of the following employee
work rule
No solicitation of any kind is permitted without the
approval of the administrator
The maintenance of the rule is admitted, but its unlawful-
ness is denied in the answer Respondent does not ad-
dress the issue in its brief Yarde merely testified that no
employee has ever been disciplined for violation of the
rule As noted by the General Counsel, the Board, how-
ever, has decided that such a rule, as involved here, is
overly broad and unlawful on its face, inasmuch as its
mere existence "tends to restrain and interfere with em-
ployee nghts under the Act even if the rule is not en-
forced" Brunswick Corp, 282 NLRB 794 (1987), and
cases cited therein
In Beth Israel Hospital v NLRB, 437 U S 483, 1507
(1978), the Supreme Court held that health care institu-
tions are subject to the Board's policy regarding solicits-
'non of union activities and stated
We therefore hold that the Board's general ap-
proach of requiring health-care facilities to permit
employee solicitation and distribution dunng non-
working time in nonworking areas, where the facili-
ty has not justified the prohibitions as necessary to
avoid disruptions of health-care operations or dis-
turbance of patients, is consistent with the Act
The Board in Intercommunity Hospital, 255 NLRB 468,
471 (1981), subsequently applied the general standard of
immediate patient care areas to specific areas in a hospi-
tal In so doing, it guided itself by NLRB v Baptist Hos-
pital, Inc , 442 U S 773 (1979), and balanced the medical
service with employee organizing rights in such context
It held
that prohibitions on solicitation in immediate
patient care areas are presumptively valid and that
solicitation may be legitimately prohibited in other
areas if justified by the hospital as necessary to fur-
ther patient care
The Board will find that, absent the Respondent's
proving a direct effect on patient care, an absolute prohi-
bition on union related solicitation or distnbution of
union literature at all times in all areas of a health care
facility, including clear nonpatient or nonwork areas, is
overly broad and furthermore is unlawful even where an
incumbent union agrees to such restnction Harper-Grace
Hospitals, 264 NLRB 663 (1982), enfd 737 F 2d 576 (6th
Cu- 1984)
In the instant case, the Respondent failed to adduce
evidence of justification for its broad no-solicitation rule
which necessarily encompassed union solicitation by defi-
nition Accordingly, I find that Respondent, by the mere
maintenance of an overly broad no-solicitation rule, vio-
lated Section 8(a)(1) of the Act
1 Pandora Howell discipline—no-access rule—
Jewelry rule
Paragraphs 12(K), 21, and 25 allege that Respondent in
late August 1987, unilaterally and without bargaining
with the Union, ordered employees (i e, employee Pan-
dora Howell) to remove union pins and jewelry from
their uniforms to discourage union activities in violation
of Section 8(a)(1) and (5) of the Act (but not Sec
8(a)(3)) Respondent withdrew its denial as to paragraph
12(K) and stipulated to an appropnate remedial Order,
notwithstanding the conclusionary allegation
Paragraphs 17(A) through (C), 21 (with respect to
17(B) only), 24 (with respect to 17(A) and (B) only), 25,
26, and 27 (with respect to 17(B) only) allege the follow-
ing That on or about August 31, 1989, Respondent
issued two disciplinary warnings to employee Pandora
Howell pursuant to Respondent's alleged unlawful main-
tenance and disparate enforcement of the no-union
pm/jewelry rule described above and pursuant to a "no
access" rule, unilaterally and without bargaining, pro-
mulgated on the same date All this conduct is alleged
BLOSSOM NURSING CENTER 339
violative of Section 8(a)(1) The issuance of the warnings
and the "no access" rule promulgation and enforcement
is alleged to be motivated by the employees' union or
protected activities and violative of Section 8(a)(3) of the
Act The conduct regarding the "no access" rule is also
alleged as violative of Section 8(a)(5) of the Act Re-
spondent did not amend its answer regarding paragraph
17, which admitted the issuance of the warnings to
Howell but which denied that the warnings were issued
pursuant to unlawfully promulgated and enforced no-
union pm/jewelry rule or "no access" rule and denied
the promulgation and enforcement of a "no access" rule
The Respondent's admission of complaint paragraph
12(K) places its answer in an anomalous position with re-
spect to complaint paragraph insofar as the union
pin/jewelry rule is concerned Although by stipulation it
agreed to cease and desist from the admitted conduct al-
leged in paragraph 12(k), it stipulated to no remedy for
the written disciplinary warnmg admittedly issued to
Howell on August 31, 1987, because she wore an elon-
gated pair of earrings constructed from union buttons,
despite a past practice of permissiveness of similarly
gaudy jewelry worn by Howell according to her uncon-
tradicted testimony The Respondent and General Coun-
sel ignore the jewelry allegation m paragraph 17, pre-
sumably on the assumption, as expressed by Respond-
ent's counsel at trial, that it was cured by the stipulated
remedy and the admission to paragraph 12(K) It was
not In view of the admission to paragraph 12(K), How-
ell's uncontradicted testimony and the admission of nu-
merous other acts of unlawful interference, I find that
the issuance of the jewelry warning to Howell on
August 31 was unlawfully motivated and violative of
Section 8(a)(1) and (3) of the Act and requires its own
remedial order The warning issued to her was issued os-
tensibly and pretextually on the grounds of specific inap-
propriate attire and not pursuant to any new formal or
informal general rule regarding union jewelry The viola-
tion is therefore more appropriately alleged as an 8(a)(1)
and (3) violation
A limited amount of testimony was adduced by both
General Counsel and Respondent as to the balance of the
paragraph 17 allegations Howell was demonstrated to be
a known union activist, as an employee in the dietary de-
partment and who, when she vociferously intervened in
the disciplining of another employee in June 1987 by an-
nouncing to her supervisor, Mary Bissett her status as a
member of the union bargaining committee, was told to
"shut up" by Bissett who then shut a door in Howell's
face
The jewelry reprimand of August 31 was preceded by
an August 27 confrontation by Yarde and Howell where-
in Yarde told her to remove the union button earrings
On Saturday, August 29, Howell engaged in conduct
which subjected her to the second of alleged unlawful
reprimand also received on August 31 Howell testified
that on that Saturday, her day off, she visited the Blos-
som facility to retrieve keys from a coworker to enable
her to unlock the kitchen the next day at 6 30 a m She
testified that upon leaving, after spending a "few sec-
onds" in the kitchen but while still in the hallway in the
building, she encountered her sister, also an employee
who had just finished a coffeebreak and was about to
start work Upon her sister's expressed cunosity of why
Howell was there, she explained the need to obtain the
keys, when at that moment she was seen by Director of
Nursing Thelma Yoho She testified that she spoke to
her sister for "just those few seconds, i e, to answer her
questions"
On August 31, m addition to the already unlawfully
determined jewelry reprimand, Yarde issued to Howell a
written reprimand for loitering on the premises and "in-
terrupting" workers on duty In direct examination,
Howell claimed that almost all kitchen employees had
keys but that she, an employee of almost 3 years' tenure,
had only recently started working the morning shift and
had not been issued keys yet In cross-examination,
Howell admitted that employee work rules, long before
posted in the kitchen, included a rule which prohibited
loitering m the facility by off-duty employees and that
she was aware of incidents throughout her tenure when
other employees had been disciplined for violation of
that rule She insisted that she was not in violation of the
no-loitering rule because she had need of the kitchen
keys While she conceded that her kitchen coworker
scheduled for work that Sunday had a set of keys, she
protested "but what if she had been ill or not able to
make it9" She claimed that no one else would have been
available with keys on Sunday morning
Yarde testified that Yoho had reported the incident
but that Yoho also reported that the other aide at the
moment of conversation in the hallway was interrupted
for 5 minutes from returning to her duty station and her
patient care responsibilities Yarde cited a past example
of discipline meted out to an off-duty aide who returned
to the duty area to converse with coworkers, and she ex-
plained the business purpose of the rule Yarde testified
that during a Monday confrontation she asked Howell
about the purpose of her presence in the facility on a
nonworkday and that Howell did make reference to the
need for kitchen keys Yarde testified that she then ques-
tioned Dietary Supervisor Bissett, who reported that
there was no need for Howell to have keys for access as
other employees present would have had keys to unlock
the kitchen Yarde testified that the nurse on duty had
keys to the office where kitchen keys were always avail-
able and that, in any event, it is well known that hat
Yoho resides "around the corner" from the facility and
possesses the keys to every door in the building Yarde's
testimony was in no way rebutted or challenged
It is evident that Respondent did not promulgate any
new rules regarding employee access in the August inci-
dent The no-loitering rule had existed and been enforced
prior to union activity as to off-duty employees Howell
would have been in clear violation of the preexisting rule
had she returned to the premises on an off-duty day for
no justifiable reason Being there for 5 seconds or 5 min-
utes to talk to an employee, who at that very moment
was supposed to be returning to her duty station, would
have constituted apparent loitering absent some accepta-
ble explanation In her direct testimony, Howell implied
that it was part of her duties to unlock the kitchen
Howell's cross-examination and Yarde's unrebutted testi-
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mony reveal that not to be the case Howell did not ex-
plain why she did not borrow a set of keys prior to her
day off In light of Yarde's unrefuted testimony, How-
ell's explanation to her was reasonably perceived to be
specious
The General Counsel cites Tri-County Medical Center,
222 NLRB 1089 (1976), for the criteria of the validity of
a no-access rule, i e, limitation of interior or work area
access, clear universal dissemination, and nonaccess to
off-duty employees seeking access for any reason The
General Counsel argues that Respondent's no-access rule
is invalid because he had adduced evidence that it was
disparately enforced This contention rests upon the testi-
mony on employee Pamela Kraft She testified that on
August 29, 1987, she observed aide Pat Slaggy, Respond-
ent's representation election observer, in the facility on
her day off selling coffee cups for the benefit of her
daughter's school She observed this incident at the fa-
cility's north section nurses station and observed that
after successfully soliciting sales there, Slaggy proceeded
into the nonwork area breakroom Kraft was asked
whether she observed present at the station "any super-
visor or management official" She identified Jan Saun-
ell., the assistant director of nurses She was asked
whether she recalled whether Sauneir purchased any
cups She testified hesitantly and uncertainly as follows
A I believe she did I did
Q You did')
A I did and I believe Jan did too
There were no specific details given as to precisely
where and how long Sauneir was present nor specifically
who else was present There was no evidence adduced
to demonstrate that Slaggy's activity was not reprimand-
ed More importantly, Sauneir was not alleged in the
third amended complaint as a supervisor, manager, or
agent of Respondent, no evidence was adduced as to her
job duties or status in this proceeding, and I can find no
stipulation as to her status in the record Accordingly,
the General Counsel has failed to submit sufficient proba-
tive evidence to demonstrate that the no-loitering rule
was disparately enforced or knowingly suspended for
nonunion supporters Therefore, despite Respondent's
knowledge of and clear antipathy to Howell's union ac-
tivities, I cannot confidently find that a prima facie
showing had been made that Yarde was at least in part
unlawfully motivated in disparately enforcing an openly
promulgated and openly enforced, preexisting business
motivated rule I therefore conclude that the complaint
allegations regarding the alleged no-access rule are not
proven
2 Darlene Hall discharge—garnishment policy
Complaint paragraphs 19(F), 21, and 27 allege that in
July 1987 Respondent unilaterally instituted a new em-
ployee wage garnishment policy which entailed disci-
pline and discharge, in violation of Section 8(a)(1) and
(5) of the Act, but not Section 8(a)(3) Paragraphs 18(E),
24, and 26 allege that on August 8, 1987, Respondent ter-
minated the employment of aide Darlene Hall because of
her union activities in violation of Section 8(a)(1) and (3)
of the Act Paragraphs 22 and 27 also allege that Hall
was discharged pursuant to the enforcement of the new
garnishment policy, in violation of Section 8(a)(1) and (5)
of the Act
Darlene Hall had been employed at the Blossom facili-
ty by Respondent and its predecessors for 8-1/2 years
until she was terminated pursuant to written notification
by Yarde issued August 7, 1987, citing violation of "the
policy instituted on 7-10-87" whereby "any employee
with multiple garnishments from more than one creditor
shall be subject to discharge" The notification asserted
that on August 7 Yarde had received a seventh garnish-
ment on Hall's wages
A notice had been issued July 10, 1987, by Yarde in
which she recited that "numerous garnishments or other
wage attachments for some" of the employees had been
received and had caused an extreme administrative
burden It was therefore noticed
[A]s of 7-10-87, any employee who receives multi-
ple garnishments from more than one creditor shall
be subject to disciplinary action including dis-
charge
On July 14, 1987, Yarde issued a notice to Hall in
which she recited Hall's recorded garnishments, i e, one
in November 1986 with Columbia Gas as creditor, and
one in February, March, and April 1987, and two in
May 1987, all for a second creditor
Hall testified that prior to July 10, 1987, there had
been no explicit rules concerning garnishment The
posted personnel policies refer to none Yarde testified to
counsel for General Counsel that to her awareness, prior
to July 10, 1987, no employee had received discipline be-
cause of having incurred multiple garnishments In
answer to Respondent's counsel, she testified that before
July 10 she believed that two employees, Shirley Garri-
son and Hall, had been given unspecified verbal warn-
ings in October 1986 Hall admitted that in October
1986, both she and Garrison had been instructed by
Kathy Callihan to take care of their debts She testified
that, accordingly, she made arrangements with the col-
lection agency which obviated the garnishment action
There was no evidence that Hall or any employee had
been warned of possible discipline because of garnish-
ments
Yarde testified that she published the July 10 notifica-
tion on receipt of a garnishment on employee Jenifer
Tinker on some unrevealed date in June 1987 and her
discovery on a review of records by the corporate pay-
roll department that several employees at Blossom had
been subjected to many but unspecified number of gar-
nishments, and an admonishment she received from an
unspecified Altercare supervisor that such "behavior"
was not what was "cared for," and not tolerated and
should be "straightened out and cleared up" She testi-
fied "no," when asked by counsel for Respondent wheth-
er she considered the July 10 posting to be a new policy
She explained that she considered it to have been "exist-
ing policy that financial responsibility are [the employ-
ees] own, not ours She postulated her assumption of an
Altercare policy on the foregoing generalized testimony
•
BLOSSOM NURSING CENTER 341
Yarde testified that her purpose in notifying employees
on July 14 of their outstanding garnishments, as was
done by notification to Hall, was to induce the employee
to "clear up any garnishments that they had or any out-
standing debts so that they had a fair chance to get
them cleared up before any disciplinary action would be
taken" Four other employees were notified that their
records revealed the pending of a single garnishment of
their wages and one other was notified of a record of
several garnishments for a single creditor Hall testified
that on receipt of the July 14 notification, she telephoned
the two creditors involved and was referred to an attor-
ney who, when contacted, assured her that arrangements
could be made to pay the debt without paycheck deduc-
tions and that the creditors did not care how it was paid
Hall testified that she advised Yarde the next day but
that Yarde merely told her that such an arrangement was
not possible but that paycheck deduction was mandatory
Yarde did not contradict her Hall conceded that other
than providing the telephone number of the attorney, she
provided Yarde with nothing but her word that the Re-
spondent need not deduct the debt from her wages Thus
Hall offered to take the same curative action that she
had previously effectuated to Callihan's satisfaction in
1986 This, Yarde rejected
On August 4, 1987, Hall received an NLRB subpoena
to testify in the Board proceeding set for August 10 She
and two other similarly subpoenaed employees disclosed
their subpoenas to Yarde at 8 30 a m, Friday, August 7,
who referred them to Yoho for the necessary scheduling
arrangements On Saturday, August 8, 1987, Hall re-
ceived the letter of termination dated August 7 The only
evidence of any new garnishment on Hall's wages was a
garnishment by the single creditor, Columbia Gas, which
had also previously been recorded as having had ob-
tained a garnishment in November 1986 A copy of a no-
tification of garnishment dated August 6, 1987, was ad-
duced into evidence by Respondent It disclosed as the
creditor, Columbia Gas, and listed the date of the credi-
tor's judgment as October 16, 1986 Hall testified that she
did not receive her copy of the notification until after
her discharge and was unaware of it before that time
Apparently Yarde construed a second garnishment from
the same creditor since November 1986 to constitute a
multiple garnishment sufficient for discharge Further-
more, Yarde did not explicitly testify that Hall failed to
clear up the earlier garnishments pursuant to the intent
of the July 14 notification, and it is not clear whether the
November 1986 Columbia Gas garmshment was made
pursuant to the October 1986 judgment Thus it is ques-
tionable whether, in fact, Hall had been subjected to
multiple garnishments from more than one creditor since
July 10 It is also questionable as to whether Hall had
been given a fair opportunity to clear up those debts ac-
cording to Yarde's expressed intent of the July notifica-
tions The discharge letter merely stated
Today I received the seventh garnishment to your
wages from more than one creditor Therefore, as
per policy, as of today, 8-7-87, you are terminated
from employment at Blossom Nursing Center
Hall testified that she was one of the original five em-
ployees who initiated union organizing efforts, and that
she attended all organizing meetings and distributed
union authorization cards to other employees Her
proumon activity was the subject of Respondent's objec-
tions to the election wherein she was alleged by Re-
spondent as agent of the Union to have coerced other
employees while engaged in union card solicitations The
record contains sufficient admissions of Respondent an-
tiunion hostility and uncontradicted evidence of such to
raise an inference that it was strongly adverse to Hall's
union activities
The Respondent argues that the July 10 garnishment
policy was nothing but a continuation of longstanding
policy Although there is some evidence that Altercare
discouraged unlimited toleration of employee garnish-
ments, and Yarde may have perceived of such an Alter-
care policy, there is no evidence to establish that Alter-
care and, much less, Respondent's predecessor had any
explicit rules that dealt specifically with respect to em-
ployee garnishment or degree of discipline that might be
incurred The July 10 notification was clearly what it
purported to be, the announcement of a new policy As
such, it was a change in longstanding policy, i e, infor-
mal lenience and toleration of garnishment without pre-
scribed discipline As a new policy and practice, it con-
stituted a unilateral change in terms and conditions of
employment that violated Section 8(a)(1) and (5) of the
Act, as described above, with respect to other unilateral
acts Inasmuch as Hall was discharged pursuant to an un-
lawfully promulgated rule, it is appropriate that her rein-
statement be ordered as a status quo ante remedial order
With respect to the 8(a)(1) and (3) allegations, the
question must be answered as to whether the General
Counsel has met his burden of proving Respondent's un-
lawful motivation as obliged by Wright Line, 251 NLRB
1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert
denied 455 U S 989 (1982)
The Board stated in the Wright Line case (251 NLRB
at 1089)
we shall henceforth employ the following cau-
sation test in all cases alleging violation of Section
8(a)(3) or violations of Section 8(a)(1) turning on
employer motivation First, we shall require that
the General Counsel make a prima facie showing
sufficient to support the inference that protected
conduct was a "motivating factor" in the employ-
er's decision Once this is established, the burden
will shift to the employer to demonstrate that the
same action would have taken place even in the ab-
sence of the protected conduct
The Supreme Court answered affirmatively the ques-
tion of "whether the burden placed on the employer in
Wright Line is consistent with § 8(a)(1) and 8(a)(3), as
well as with § 10(c) of the [Act], which provides that the
Board must find an unfair labor practice by a 'preponder-
ance of the testimony" (citation of Sec 10(c) omitted)
NLRB v Transportation Management Corp, 462 U S 393,
395 (1983)
•
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the Wright Line case, the General Counsel had ad-
duced evidence of employer knowledge and hostility di-
rected to an employee of admirable work record because
of that employee's active role in a union organizing cam-
paign, suspect timing of the adverse action, departure
from past disciplinary practice, and the lack of significant
impact of the reason advanced for the cause of adverse
action toward the employee In the Transportation Man-
agement case, a similar factual pattern involved a depar-
ture from past practice A variety of factors can thus
give rise to an inference of unlawful motivation sufficient
to establish a prima facie case In cases involving alleged
discriminatory group or individual layoffs, the Board has
frequently cited the factors of suspect timing, coupled
with hostility toward employee representation in support
of finding a prima facie case See, for example, Balch
Pontiac Buick, 260 NLRB 458, 463 (1982), Dutch Boy,
Inc , 262 NLRB 4 (1982), Acme Die Casting Corp, 262
NLRB 777 (1982), Rain-Ware, Inc , 263 NLRB 50 (1982)
Hall's discharge occurred against a background of per-
vasive union animus, including threats of retaliation Hall
was perceived to be a leading union advocate At or
about the time of her enmeshment in the representation
proceedings, she was also perceived by Yarde to have
been an employee with a vulnerable record of garnish-
ments Moreover, Hall appears to have been the only
employee with a record of multiple garnishments from
more than one creditor and thus the only employee im-
mediately jeopardized by the prescribed new rule The
timing and circumstances of Yarde's sudden need to for-
mulate a new disciplinary garnishment rule uniquely ap-
plicable to Hall against a policy of toleration by Re-
spondent's predecessors and Altercare's own nonspeci-
fied, generalized policy, and the questionable execution
of the new policy, provides sufficient evidence to compel
an inference of at least partial unlawful motivation I find
that the General Counsel has sustained his burden of
proof, and Respondent has failed to adduce sufficient
clear, convincing evidence that Hall would have been
subjected to discharge in any event I therefore conclude
that Respondent violated Section 8(a)(1) and (3), as al-
leged, with respect to the discipline and discharge of
Hall
3 Suspension of Donna Lare
Complaint paragraphs 18(F), 24, and 26 allege that on
or about September 28, 1987, Respondent suspended em-
ployee Donna Lare for 3 working days in retaliation for
her union or other protected activities in violation of
Section 8(a)(1) and (3) of the Act
On September 28, 1987, Lare was suspended for 3
days by Yarde pursuant to a reported complaint of a pa-
tient through Yoho regarding alleged rough treatment by
Lare, an aide of 10 years' experience In a confrontation,
Yarde told Lare that the complaint which Lare denied
would be investigated but that Lare had a bad attitude,
i e, gruffness toward patients Yarde investigated by
interviewing Lare's supervisor and the resident patient
involved and concluded that although Lare was ob-
served by the night nurse as having shown tendencies of
roughness and a misdirected sense of humor in patient
care the complainer also manifested a tendency toward
mental confusion Yarde testified that she therefore de-
cided on no further discipline but that the 3-day suspen-
sion would stand Both Yarde and Lare essentially testi-
fied that Yarde explained to Lare that the suspension
would stand as a corrective to her perceived gruff atti-
tude toward patients Yarde denied any union related
motivation Evidence was submitted of historical and
subsequent discipline set out for improper patient care by
aides
The only evidence of Lare's proumon sympathy as
perceived by Respondent was her testimony of an April
17, 1987 private conversation with Yarde, wherein Yarde
explained to her that she was attempting to convey "her
side of the story" regarding the union organizing effort
Without giving a complete context to the conversation,
Lare testified that she responded by saying that while
she could not characterize herself as being either proun-
ion or antiunion, she did feel that unionization would ef-
fectuate a "better future" for employees Yarde merely
responded that she was "sorry to hear it" Compared
with other admitted coercive conduct, this was a rather
mild reaction Six weeks later, Lare was present at a
preelection meeting with respect to the arrangements for
the Board-conducted election Her activity in this regard
and its observation by Respondent was not fully ex-
plained
I conclude that despite the evidence in the record of
union antipathy Lare's own union activity or sympathy
was not shown to be of a sufficiently high profile, nor
immediacy to warrant an inference that the subsequent
suspension was unlawfully motivated regardless of
whether it was justified I conclude the complaint allega-
tion regarding Lare has not been proven
On the entire record, including the amendments to the
complaint, the amended answer, and the stipulations of
the parties, I make the following
CONCLUSIONS OF LAW _
1 As found above in the findings of fact, Respondent
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and the Union is a
labor organization within the meaning of Section 2(5) of
the Act
2 Pursuant to a Board-conducted election on June 5,
1987, a majority of the employees in the collective-bar-
gaining unit set forth below selected the Union as their
exclusive collective-bargaining representative On March
10, 1988, the Umon was certified by the Board as the ex-
clusive collective-bargaining representative of the unit
At all times since June 5, 1987, the Union, by virtue of
Section 9(a) of the Act, has been, and is, the exclusive
representative of the unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment
3 The following employees of Respondent, the unit,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act
BLOSSOM NURSING CENTER

343
All full-time and regular part-time aides, laundry
employees, housekeeping employees, and dietary
employees employed at the Respondent's 11750
Klinger Avenue, Alliance, Ohio facility, but exclud-
ing all casual and temporary employees, licensed
practical nurses, maintenance employees, all office
clerical employees, professional employees, guards
and supervisors as defined in the Act
4 Since on or about April 6, 1988, Respondent has
failed and refused to recognize, meet, and bargain with
the Union by advising it by letter that it would not meet
with it for the purposes of collective bargaining, m rejec-
tion of the aboye-cited Board certification, and has there-
by violated Section 8(a)(1) and (5) of the Act
5 Respondent violated Section 8(a)(1) of the Act at its
Alliance, Ohio facility by the following conduct of its
president, Gerald F Schroer, who
(a) On or about June 1, 1987, met individually with
various of Respondent's employees and solicited griev-
ances and impliedly promised to remedy their grievances
in order to discourage their union activity and sympathy
and interrogated them as to their union activities and
sympathies
(b) On or about June 1, 1987, met individually with
various Respondent's employees and mdicated to them
the futility of unionization by advising them that he
would "drag out negotiations" with the Union and not
agree to anything
(c) On or about June 1, 1987, promised an employee
an unspecified monetary benefit if the employee voted
against the Union in a representation election
(d) On or about June 2, 1987, promised an employee
that she and all employees would receive monetary bene-
fits if the employee voted against the Union in a repre-
sentation election
(e) On or about June 1, 1987, promised an employee
that she and all employees would receive a monetary
benefit if the employees voted against the Union in a rep-
resentation election
(f) On or about June 1, 1987, unlawfully interrogated
an employee as to the employee's union activity and
sympathy and the union activity and sympathy of fellow
employees
(g) On or about June 2, 1987, unlawfully interrogated
an employee as to the employee's union activities and
sympathies
(h) On or about June 2, 1987, threatened an employee
with reprisals because of her union activity by indicating
he might have to change employees' work hours if the
Union was selected as the employees' collective-bargain-
ing representative
(i) On or about June 2, 1987, threatened an employee
with termination for union activities by advising the em-
ployee that the employees who initiated the Union's or-
ganizing campaign would have to "move on" if the
Union was not selected as the employees' collective-bar-
gaining representative
(j) On or about June 2, 1987, promised an employee a
potential benefit by informing her that if the Union was
not selected as the employees' collective-bargaining rep-
resentative, he could meet with that emplo yee on a one-
to-one basis while if the Union was selected as the bar-
gaining representative, his "hands were tied"
(k) On or about June 1, 1987, threatened an employee
with reduction in hours if the Union won a representa-
tion election
6 Respondent violated Section 8(a)(1) of the Act at its
Alliance, Ohio facility by the following conduct of its
administrator, Michelle Yarde, who
(a) On or about April 15, 1987, met mdividually with
employees and solicited grievances in order to discour-
age their union activities and sympathies
(b) On or about April 15, 1987, promised an employee
a benefit in order to discourage said employee's union
activities and sympathies
(c) On or about April 15, 1987, unlawfully interrogat-
ed employees as to their umon activities and sympathies
(d) On or about June 26, 1987, advised employees that
"due to the uncertainty of the Union situation, all raises
had been frozen"
(e) On or about July 24, 1987, advised an employee
that employees would receive no raises because of their
union activity
(f) On or about August 4, 1987, advised employees at a
meeting of employees that Respondent had frozen all
raises due to the uncertainty of the union situation
(g) On or about August 12, 1987, at an employee meet-
ing, impliedly threatened employees with unspecified re-
prisals because of their union activities by advising them
that if they did not like their new schedules or hours
they could go to work in a grocery store
(h) On or about November 2, 1988, threatened to fire
umon supporters if they did not cease their discussion of
union activities
7 Respondent violated Section 8(a)(1) of the Act at its
Alliance, Ohio facility by the conduct of its director of
nursing, Thelma Yoho, who
(a) On or about June 4, 1987, unlawfully interrogated
an employee as to employee union activities and sympa-
thies
(b) On or about June 4, 1987, gave an employee the
impression that Respondent had been engaged in surveil-
lance of her union activity by stating that she could not
believe it when she saw the employee's name on a list of
umon supporters
(c) On or about September 14, 1988, unlawfully inter-
rogated an employee as to union activities and sympa-
thies
(d) On or about September 14, 1988, unlawfully en-
couraged an employee to sign an antiunion petition that
was circulating among employees, thereby attempting to
undermine the Union as certified collective-bargaining
representative and thereby also violating Section 8(a)(5)
of the Act
(e) On or about October 1, 1988, unlawfully engaged
in surveillance of employees in the informational picket
line while taking notes on a note pad while observing the
pickets
8 Respondent violated Section 8(a)(1) of the Act at its
Alliance, Ohio facility by its dietary manager, Mary Bis-
sett, who, on or about April 8, 1987, warned employees
that she had heard rumors of "Union talk" and wanted
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
such talk stopped and by threatening them with dis-
charge for engaging in union activity
9 Respondent violated Section 8(a)(1) of the Act at its
Alliance, Ohio facility on or about October 1, 1988, by
its assistant administrator, Rob Aneshansel, who unlaw-
fully engaged in surveillance of employees participating
in informational picketing by photographing and video-
taping the picketers
10 Respondent violated Section 8(a)(1) and (3) of the
Act in December 1987 by the announcement of and the
withholding of life insurance benefits from bargaining
unit employees that would have been given to them as it
was given to nonutut employees had it not been for the
pending claim for representation by the Union
11 Respondent violated Section 8(a)(1) and (5) of the
Act at its Alliance, Ohio facility on or about September
19, 1988, by it supervisor, Carol Stewart, who unlawfully
encouraged an employee to work a shift other than her
normal shift so that she could sign an antiunion petition
that was circulating among employees, and thereby
sought to undermine the Union as the collective-bargain-
ing representative
12 Since on or about January 1, 1987, Respondent has
violated Section 8(a)(1) of the Act by the promulgation
and maintenance at its Alliance, Ohio facility of an
overly broad no-solicitation rule which forbade solicita-
tion of any kind without the approval of the administra-
tor
13 From June 1987 through September 1988, Re-
spondent violated Section 8(a)(1), (3), and (5) of the Act
by unilaterally and without notice or bargaining with the
Union as certified bargaining representative of the em-
ployees, ceasing employee semiannual merit wage re-
views and suspending merit wage increases that would
have been given pursuant to past practice had it not been
for the pending claim for union representation
14 On or about July 12, 1987, Respondent violated
Section 8(a)(1) and (5) of the Act by unilaterally and
without giving notice or bargaining opportunity to the
Union, announcing and effectuating the following
changes in terms and conditions of employment of the
unit employees at the Alliance, Ohio facility
(a) A new form of scheduling which reapportioned the
amount of hours worked
(b) New work shift assignments
(c) Discontinuation of the employees' regular day off
(d) The trading of hours only on a strict reciprocal
hour-for-hour basis
(e) The issuance of written disciplinary warnings for
absenteeism not shown to have been shown for good
reason
15 In late August 1987, Respondent violated Section
8(a)(1) and (3) of the Act by ordering bargaining unit
employee Pamela Howell to remove from her person
jewelry bearing union legends and on August 31, 1987,
issuing a written disciplinary warning to her for that
conduct
16 On July 10, 1987, Respondent violated Section
8(a)(1) and (5) of the Act at its Alliance, Ohio facility, by
unilaterally without giving notice or bargaining opportu-
nity to the Union, by announcing and thereafter enforc-
ing a new disciplmary employee wage garnishment
policy for bargaining unit employees, and by specifically
premising the August 7, 1987 discharge of bargaining
unit employee Darlene Hall upon a breach of that policy
17 Respondent violated Section 8(a)(1) and (3) of the
Act on August 7, 1987, by discharging bargaining unit
employee Darlene Hall because of her union member-
ship, support, and activities
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
Having found that Respondent unlawfully discharged
employee Darlene Hall, I shall recommend that the Re-
spondent be ordered to offer her immediate and full rein-
statement to her former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to her seniority and other rights and privi-
leges, and to make her whole for any loss of earnings
suffered as a result of its unlawful conduct by payment
of a sum equal to that which they would have earned
absent the discrimination, with the backpay and interest
computed in accordance with the formula set forth in
F W Woolworth Go, 90 NLRB 289 (1950), and with in-
terest thereon to be computed in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987)
I shall also recommend that any reference to her termi-
nation be expunged from her employment records
Having found that Respondent unlawfully disciplined
employee Pamela Howell, I shall recommend that any
refeience to her discipline be expunged from her em-
ployment record
Inasmuch as I have found that Respondent breached
its bargaining obligations under the Act by refusmg to
recognize and bargain with the Union and by instituting
umlateral changes affecting wages, hours, and terms and
conditions of employment, I recommend that Respond-
ent be ordered to recognize and bargain with the Union
and to take certain affirmative action in this regard, in-
cluding the immediate reinstatement and implementation
of the merit evaluation and wage increase system after
giving notice and opportunity to bargain with the Union
as to the amount of each increase, and grant retroactive
increases to each employee found eligible, computed to
the extent appropriate as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
'If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
BLOSSOM NURSING CENTER 345
ORDER
The Respondent, Gerald F Schroer, Inc d/b/a Blos-
som Nursing Center, Alliance, Ohio, its officers, agents,
successors, and assigns, shall
1 Cease and desist from
(a) Coercively interrogating employees as to union
membership, sympathy, and activity
(b) Soliciting employee grievances and impliedly
promising to remedy those grievances in order to dis-
courage union activity
(c) Advising employees that it will "drag out" negotia-
tions with the Union and not agree to anything in negoti-
ations
. (d) Promising employees monetary and other benefits
if they voted against the Union in a representation elec-
tion
(e) Threatening employees with reprisals, including
termination, loss of hours or benefits, or other reprisals
for engaging in union activities
(1) Promising employees benefits in order to discour-
age their union activity and sympathy
(g) Engaging in surveillance of employees' union activ-
ity or giving employees the impression it is engaging in
surveillance of their union activity
(h) Ordering employees to remove union pins and jew-
elry from their uniforms for the purpose of discouraging
their union activity
(i) Encouraging employees to sign antiunion petitions
in order to discourage their union activity
(j) Unlawfully announcing to bargaining unit employ-
ees the withholding of and unlawfully withholding from
them life insurance benefits that would have been given
to them had it not been for the pending claim for union
representation
(k) Promulgating and maintaining at its Alliance, Ohio
facility an overly broad no-solicitation rule
(1) Unlawfully suspending the periodic merit wage
evaluations and wage increase system because of a pend-
ing claim for union representation
(m) Terminating or disciplining employees or other-
wise discrimmating against them because of their mem-
bership in, sympathies for, support of, or activities on
behalf of United Food and Commercial Workers Interna-
tional Union, Local 880, AFL-CIO-CLC, or any other
labor organization
(n) Refusing to recognize and, on request, bargain with
United Food and Commercial Workers International
Union, Local 880, AFL-CIO-CLC, as the exclusive bar-
gaining representative of its employees in the following
unit
All full-time and regular part-time aides, laundry
employees, housekeeping employees, and dietary
employees employed at the Respondent's 11750
Klmger Avenue, Alliance, Ohio facility, but exclud-
ing all casual and temporary employees, licensed
practical nurses, maintenance employees, all office
clerical employees, employees, guards and supervi-
sors as defined in the Act
(o) Unilaterally and without giving notice or bargain-
ing opportunity to the above-named designated bargain-
ing representative, changing wages, hours, terms, or
other conditions of employment
(p) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act
2 Take the following affirmative action to effectuate
the policies of the Act
(a) Offer Darlene Hall immediate and full reinstate-
ment to her former position or, if that position no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority and other rights and privileges,
and make her whole for any loss of earnings suffered as
a result of its unlawful conduct in the manner set forth in
the remedy section of this decision and expunge any ref-
erence of her discharge from her work record
(b) Remove from the work record of Pamela Howell,
any reference to the unlawful discriminatory disciplinary
warning issued to her on August 31, 1989, regarding the
wearing of jewelry bearing union insignia
(c) Recognize and, on request, bargain with the above-
named labor organization as the exclusive collective-bar-
gaining representative of its employees in the bargaining
unit set forth above with respect to wages, hours, and
other terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a
signed agreement
(d) Immediately reinstate and implement the periodic
employee merit and wage increase system after giving
notice and opportunity to bargain with the Umon as to
the amount of each increase, and grant retroactive in-
creases to each employee found eligible with interest in
the manner set forth in the remedy section of this deci-
sion
(e) Make available to unit employees the life insurance
benefits unlawfully withheld from them in December
1987
(f) Rescind the unlawful unilateral changes in wages,
hours, terms, and conditions of employment effectuated
in July 1987, with respect to scheduling of hours
worked, shift assignments, employee day off, employee
trading of hours, absenteeism disciplinary warnings, and
employee wage garnishment discipline
(g) Remove from its rules and posting the unlawful
overly broad rule which forbids all nonpreapproved so-
licitations without limitation as to time or place
(h) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(i) Post at its Alliance, Ohio facility copies of the at-
tached notice marked "Appendix " 2 Copies of the notice,
on forms provided by the Regional Director for Region
8, after being signed by the Respondent's authorized rep-
resentative, shall be posted by the Respondent immech-
2 If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material Post at its Alliance, Ohio facility copies of the
attached notice taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material
(j) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT interrogate our employees as to union
membership, sympathy, and activity
We will not solicit employee grievances and imphedly
promise to remedy the grievances in order to discourage
union activity
WE WILL NOT advise our employees that we will drag
out negotiations with the Union and not agree to any-
thing in negotiations
WE WILL NOT promise employees monetary and other
benefits if they voted against the Union in a representa-
tion election
WE WILL NOT threaten employees with reprisals, in-
cluding termination, loss of hours or benefits or other re-
prisals for engaging in union activities
WE WILL NOT promise employees benefits in order to
discourage their union activity and sympathy
WE WILL NOT engage in surveillance of employees'
union activity or give our employees the impression that
we are engaging in surveillance of their union activity
WE WILL NOT order our employees to remove union
pins and Jewelry from their uniforms for the purpose of
discouraging their union activity
WE WILL NOT encourage employees to sign antiunion
petitions in order to discourage their union activity
WE WILL NOT unlawfully announce to bargaining unit
employees the withholding of nor unlawfully withhold
from them life insurance benefits that would have been
given to them had it not been for the pending claim for
union representation
WE WILL NOT promulgate and maintain at our Alli-
ance, Ohio facility an overly broad no-solicitation rule
WE WILL NOT unlawfully suspend the periodic merit
wage evaluations and wage increase system because of a
pending claim for union representation
WE WILL NOT terminate or discipline employees or
otherwise discriminate against them because of their
union membership in, sympathies for, support of, or ac-
tivities on behalf of United Food and Commercial Work-
ers International Union, Local 880, AFL-CIO-CLC, or
any other labor organization
WE WILL NOT refuse to recognize and, on request, bar-
gain with United Food and Commercial Workers Inter-
national Union, Local 880, AFL-CIO-CLC, as the ex-
clusive bargaining representative of its employees in the
following unit
All full-time and regular part-time aides, laundry
employees, housekeeping employees, and dietary
employees employed at the Respondent's 11750
Klinger Avenue, Alliance, Ohio facility, but exclud-
ing all casual and temporary employees, licensed
practical nurses, maintenance employees, all office
clerical employees, professional employees, guards
and supervisors as defined in the Act
WE WILL NOT unilaterally and without giving notice
or bargaining opportunity to the above-named designated
bargaining representative, change wages, hours, terms, or
other conditions of employment
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Darlene Hall immediate and full rein-
statement to her former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to her seniority and other rights and privi-
leges, and make her whole for any loss of earnings suf-
fered as a result of our unlawful conduct, and expunge
any reference of her discharge from her work record
WE WILL remove from the work record of Pamela
Howell, any reference to the unlawful discriminatory dis-
ciplinary warning issued to her on August 31, 1989, re-
garding the wearing of jewelry bearing union insignia
WE WILL recognize and, on request, bargain with the
above-named labor organization as the exclusive collec-
tive-bargaining representative of its employees in the bar-
gaining unit set forth above with respect to wages,
hours, and other terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement
WE WILL immediately reinstate and implement the
periodic employee merit and wage increase system after
giving notice and opportunity to bargain with the Union
as to the amount of each increase, and grant retroactive
increases to each employee found eligible with interest
WE WILL make available to unit employees the life in-
surance benefits unlawfully withheld from them in De-
cember 1978
WE WILL rescind the unlawful unilateral changes in
wages, hours, terms, and conditions of employment ef-
fectuated in July 1987, with respect to scheduling of
BLOSSOM NURSING CENTER 347
hours worked, shift assignments, employee day off, em- proved solicitations without limitation as to time or

ployee trading of hours, absenteeism disciplinary warn- place
mgs, and employee wage garnishment discipline

WE WILL remove from our rules, and posting, the un- GERALD F SCHROER, INC D/B/A BLOS-

lawful overly broad rule which forbids all nonpreap- som NURSING CENTER