Clark Manor Nursing Home Corp.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 455 (N.L.R.B. 1981)

CLARK MANOR NURSING HOME CORP.
Clark Manor Nursing Home Corp. and United Food
& Commercial Workers International Union,
Local 1445, AFL-CIO. Cases -CA-15221, 1-
CA-15796, 1-CA-15955, 1-CA-16130, I-CA-
16239, 1-CA-16240, 1-CA-16547, 1-CA-
16565, 1-RC-16262, and 1-RC-16263
January 14, 1981
DECISION, ORDER, DIRECTION OF
SECOND ELECTION, AND
CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, PENELLO, AND
ZIMMERMAN
On August 15, 1980, Administrative Law Judge
George F. McInerny issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel and the Union filed limited exceptions ac-
companied by supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge as modified herein.
1. The Administrative Law Judge found that
Francis Fowley was discharged for just cause on
May 18, 1979, and therefore concluded that he was
not terminated in violation of the Act. The Union
has excepted to this finding, claiming that Fowley
was fired in retaliation for union activities. We find
merit in this exception.
The record reveals that at the time of his dis-
charge Fowley had been employed in the mainte-
nance department of Respondent's nursing home
for 7 years. Not only was his work record unble-
mished by even an oral warning before the Union
began its organizing drive, but Fowley also appears
to have been a favored employee. He was routinely
scheduled for holiday work, for which he was paid
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enrd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
Nor do we find merit in Respondent's contention that because the Ad-
ministrative Law Judge generally discredited the Employer's witnesses
and credited the General Counsel's witnesses, his credibility resolutions
are arbitrary or attended by prejudice. N.L.R.B. v. Pittsburgh Steamship
Company, 337 U.S. 656 (1949).
254 NLRB No. 54
at overtime rates, and he maintained flexible
hours. 2
The Union began its organizing campaign at Re-
spondent's facility in late September 1978. Shortly
thereafter, Fowley had a conversation with his su-
pervisor, Robert Bradway, in which Bradway indi-
cated that he knew Fowley had expressed hostility
toward Robert Sibulkin, Respondent's president
and administrator, at a union steering committee
meeting. Not long afterwards, Bradway told
Fowley that Sibulkin considered Fowley the top
organizer in the Union's campaign and predicted
that he would run for shop steward if the Union
won an election. Just before Thanksgiving 1978,
Bradway, who had previously assured Fowley that
he would be permitted to work the holiday as
usual, removed Fowley's name from the Thanks-
giving Day schedule. Fowley was also denied per-
mission to work on Christmas or New Year's Day.
Bradway told Fowley that the schedule change
had been initiated by Sibulkin, who did not deny
the allegation at the unfair labor practice hearing.
At about the same time, Bradway also required
Fowley to begin maintaining a rigid work sched-
ule.
In February 1979, Bradway and Fowley had an-
other conversation. Fowley had apparently been
late for work that day, and Bradway told him not
to give Sibulkin any opportunity to issue him a
warning because Sibulkin was "after" him.
The Administrative Law Judge found that the
foregoing incidents constituted violations of Sec-
tion 8(a)(1) of the Act except for the "top organiz-
er" conversation, which the Administrative Law
Judge found noncoercive under the circumstances.
Fowley's relationship with Respondent during the
organizing campaign also serves as background to
the events of May 18, 1979,3 with which we are
primarily concerned here. The Union lost the elec-
tion held on May 17, 1979. On May 18, Fowley
came to work late. At 8:30 that morning he had
spoken to Eli Erlich, Respondent's psychiatric
social worker, over the telephone and had told
Erlich that he would be late. Fowley refused to
identify himself, but Erlich recognized his voice.
Later that morning, at or about 10:30, Erlich en-
countered Fowley at the nursing home. Fowley
made an obscene remark concerning Erlich's tele-
phone manner, to which Erlich responded that if
Fowley called again without identifying himself
2 We also note that Fowley was a friend of Respondent's housekeeping
supervisor, Carl Graham, and kept Graham's house every other weekend
when Graham was away. There is een an uncontradicted suggeslion in
the record that the nev. wing of Respondent's nursing home was named
for Fovley's mother
:' All dates hereafter are in 179 unless otherwise indicated
455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Erlich would hang up. Fowley replied that if
Erlich did so Fowley would "take care" of him.
Erlich immediately, in his words, "shared" the inci-
dent with Sibulkin. He claims to have been profes-
sionally concerned about Fowley's behavior al-
though he did not consider Fowley the least bit
dangerous. In any event, Erlich testified that Sibul-
kin did not solicit Erlich's professional opinion, al-
though Erlich did tell Sibulkin that Fowley was
understandably upset about the outcome of the
union election.
Almost at once after his encounter with Erlich,
Fowley was again rude, vulgar, and insulting to
employees Marie Petit and Sheila Shanley in the
solarium in which the employees typically took
their breaks. Shanley also immediately reported the
incident to Sibulkin.
At noon, in the same solarium, Fowley again
rudely accosted two female employees, Marie Pol-
lard and Elizabeth Giguere. To Giguere he not
only made remarks of a personal and sexual nature
but apparently frightened her by his threatening
demeanor. Both Pollard and Giguere reported
Fowley's behavior to Sibulkin, and both were ap-
parently quite distraught when they did so.
At or about 1 p.m. Fowley left the nursing home
for the day. Sibulkin made no independent investi-
gation of the reports given to him of Fowley's be-
havior. He asked no questions of any of the em-
ployees who made the reports, nor did he speak to
Fowley himself. In making the decision to dis-
charge Fowley that afternoon, ostensibly based
upon the reports, Sibulkin did not consider Fow-
ley's previous excellent work record. The Adminis-
trative Law Judge concluded that Respondent dis-
charged Fowley because of his disruptive and of-
fensive behavior and not for his union activities.
In Wright Line. A Division of Wright Line, Inc.,4
the Board recently set forth its mode of analysis
for determining whether the discharge of an em-
ployee constitutes a violation of the Act. 5 We
employ the Wright Line standards to evaluate the
evidence here. In presenting a prima facie case of
wrongful motive, the General Counsel demonstrat-
ed that Fowley was from the early days of the
union campaign a leading union advocate and that
Respondent was not only aware of his sympathies
and activities but had, before discharging him,
taken such retaliatory measures against Fowley as
4251 NLRIRB 1083 (1980)
s In Wright Line, the Board stated
First, we shall require that the General Counsel make a prima fac.
showing sufficient to support the inference that protected conduct
was a "motivating factor" in the employer's decision. (O)ce this is
established, the burden will shift to the employer to demonstrate that
the same action would has.e taken place even in the absence of the
protected conduct
denying him holiday work, insisting that he adhere
to a more rigid schedule than previously, and inter-
rogating him about union meetings-all of which
the Administrative Law Judge found to violate the
Act. It is also relevant that the discharge occurred
only I day after the 1979 election.
Moreover, Respondent clearly harbored animus
toward both the Union and union activists. Respon-
dent's antiunion campaign included, inter alia, dis-
criminatory enforcement of an invalid no-solicita-
tion rule, the arrest of employees who were distrib-
uting union literature in Respondent's parking lot,
and two other unlawful discharges of union adher-
ents.
The General Counsel also demonstrated that Re-
spondent had never before discharged an employee
under these circumstances. Sibulkin himself ad-
mitted that he became involved in termination de-
cisions only rarely, since hiring and firing were
normally entrusted to the heads of Respondent's
various departments. The General Counsel intro-
duced uncontroverted evidence that during the
past 5-1/2 years Respondent had discharged only
60 of 1,000 employees, and of that number only I
other than Fowley who had service of over 2
years.
The General Counsel also established beyond
question that the language used by Respondent's
supervisory and nonsupervisory employees was
uniformly vulgar but was tolerated by Respondent
and that written warnings were the usual form of
disciplinary action taken against employees whose
abuse of their mother tongue and their fellow
workers went beyond even Respondent's tolerant
limits. 6 The General Counsel also offered uncon-
tradicted proof of several instances in which em-
ployees who quarreled or even assaulted each
other were not discharged. For example, Robert
Shea shoved Night Supervisor Godwin and called
him a vulgar name and, on another occasion,
"punched out" an employee who had offended
him. Shea also pushed a kitchen employee at an-
other time and threatened to kill him, and, on yet
another occasion, deliberately burned an employee
'i We refer to t he wairinlg issued to employee Kehoe by Sibulkin for
language Sihulkin described as "abusie" Aside from the discharge of
Elaine Czyzewski, which we consider i detail later in our decision,
Kehoe was the only employee ever disciplined for impermissible lan-
guage Ihe record is replete with examples of vulgarity that went unre-
primanded Robert Shea testified that his supervisors were aware of the
prevalence of obscenity among employees Shea himself had called Night
Supervisor Godwin a "fuckinlg nobody" without being disciplined, and
had, also without being disciplined, hit another employee for calling him
an assihle." Kim Bolio credibly testified that Sheila Shanley regularly
used obscrne anId antisemitic language and that employee Jhn Sokowski
had called another employee a "dumb bastard" for oing against the
Unionl i hese are only a fes examples of' tile sort of shop talk that Re
spTnleill tllcir ted l ithiuir tt Illplitittm if anL) sort of discipline
456
CLARK MANOR NURSING HOME CORP
on the arm with a cigarette. None of these inci-
dents resulted in disciplinary action. Sibulkin him-
self admitted that an employee had once sprayed
scalding water on female employees and used foul
language to such an extent that his coworkers peti-
tioned Graham to take some action. The employee
received a written warning but was not discharged.
Linda Nishan credibly testified that two aides were
once physically separated for fighting on the 11-7
shift and that the incident was reported to supervi-
sory personnel but that no action was taken.7
Moreover, the General Counsel demonstrated
that under most circumstances the discipline at Re-
spondent's facility was progressively administered.
An oral warning for the first infraction was fol-
lowed by three written warnings before discharge, 8
and Respondent used printed forms for this pur-
pose. Even more significant, in our opinion, the
General Counsel demonstrated that Respondent
normally did not discharge an employee without
investigating complaints lodged against him and
without interrogating the employee himself about
the misconduct that served as the basis for the dis-
charge. Nurse McPartland, director of Respon-
dent's nursing department, testified that she consid-
ered such investigation so important in termination
decisions that she had once declined to discharge
or even to issue a warning to two employees for
fighting on the 11-7 shift because she had been
unable to conduct an immediate personal investiga-
tion of the reported incident. In addition, we note
that in the case of Paul Girard, whose discharge
the Administrative Law Judge found to violate the
Act, at least a pretext of counseling and investiga-
tion was made.
From the foregoing we conclude that the Gener-
al Counsel has made a prima facie showing that
Fowley's union activity was a motivating factor in
Respondent's decision to discharge him. Our con-
clusion is based upon Respondent's union animus as
reflected in its conduct throughout the organizing
campaign, the retaliatory measures directed against
Fowley because of his active prounion role in the
campaign, and the timing of the discharge. Of par-
ticular significance is Respondent's unexplained de-
parture from its usual practice of investigating
complaints before making termination decisions and
of declining to discharge employees for the first in-
stance of conduct abusive to nonsupervisory per-
' Nursing Director McPartland testified that, although she was aware
of this incident and considered that it called for disciplinary action. she
did not issue even a warning to the two employees because she was not
able to conduct a personal investigation of the fight, an outcome we find
significant in another context elsewhere in this decision
* Respondent followed this procedure. for example, in the unlawful
discharge of Paul Girard.
sonnel. Moreover, the discharge here is particularly
suspect in light of Fowley's excellent work record.
We further conclude that Respondent has failed
to demonstrate that it would have taken the same
action against Fowley had he not engaged in union
activities. At the outset, we note that none of the
employees who complained to Sibulkin about Fow-
ley's behavior were union supporters and at least
two of them had actively campaigned against the
Union. Eli Erlich had so closely identified himself
with Respondent's management in the union cam-
paign that he ordered handbilling employees off
the property. Sheila Shanley, initially a member of
the Union's organizing committee, had become dis-
affected when the other members raised doubts
about her sincerity and ejected her from a commit-
tee meeting, after which she became a bitter and
vocal opponent of the Union. Moreover, the
record shows that Sibulkin was aware of the sym-
pathies of these employees. 9 Additionally, Respon-
dent has not explained why Sibulkin failed to ques-
tion the grievants closely, to make an independent
investigation, and to speak to the subject of the
complaint, especially when it was otherwise his
practice to do so. Furthermore, Respondent depart-
ed from its own system of administering discipline
without showing that the incidents Fowley perpe-
trated created a situation so exigent that it was jus-
tified in doing so. In this regard, the record shows
that Respondent tolerated abusive and obscene lan-
guage.1 0 In fact, the record establishes that, by all
credited accounts, Sheila Shanley, one of the com-
plainants, was herself an expert in foul language
and overbearing behavior. Both Fowley and Bolio
testified that on May 18, when Fowley insulted
Shanley, she responded in kind, calling Fowley a
"fucking liar." Bolio also testified that Shanley had
called one of the union organizers a "Jew bastard"
and that she regularly used obscene language at
work. Since Shanley's linguistic habits did not pre-
vent her promotion to supervisory status, we find
reason to doubt that Sibulkin was genuinely con-
cerned about crude conduct on nursing home
premises.
The record establishes further evidence of dispa-
rate treatment. Respondent offered only one inci-
dent in which Sibulkin discharged an employee for
u During the hearing, whenever he was asked, Sibulkin candidly ad-
mitted knowing the position an emploee took with regard to union rep-
resenlation. He also purchased and made available "Vote No" buttons,
which the record indicates were orn about the home. he record a)
establishes that this union campaign as sigrously and openly debated
among employees and that Sibulkin encouraged antliurmon campaigning
We also observe that Sheila Shanles. the Lniorn's most vocal opponent.
was promoted to a supervisory position shiortly after the election
o We wuould make it clear that we do inot cndone the use of such
language However, we recognize that the contexl i hich it is used
must be considered
457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a single instance of abusive conduct. In finding that
Fowley was not discharged because of his union
activities, the Administrative Law Judge consid-
ered this incident determinative because both dis-
charges involved misconduct of similar gravity.
However, we find the discrepancies between Fow-
ley's discharge and the discharge of Elaine Czy-
zewski more salient than the similarities to which
the Administrative Law Judge gave such control-
ling significance. Czyzewski was discharged in No-
vember 1978 for calling Sibulkin at his home on
Thanksgiving Day and ordering him in obscene
terms to come to the nursing home, where she was
on duty, and issue her a paycheck. At the close of
the conversation, Sibulkin called the home and
spoke to Czyzewski's supervisor, who informed
him that Czyzewski's behavior was threatening and
that she was upsetting patients and visitors. Sibul-
kin again talked to Czyzewski and attempted to
reason with her and to explain that paychecks were
never issued on holidays but would be given out
the following day. It was only when Czyzewski re-
mained intransigent and abusive that Sibulkin ter-
minated her over the telephone, and then only
when she rejected his suggestion that she go home
for the rest of the day. In the end, Czyzewski had
to be removed from the home by police persuasion.
Thus, the record, which is composed entirely of Si-
bulkin's own testimony, establishes not only that
Sibulkin investigated the problem by talking with
Czyzewski's supervisor about an incident that
surely required minimal investigation, since Sibul-
kin himself was a witness to the misconduct, but
also that, before discharging Czyzewski, Sibulkin
attempted to remedy matters short of discharge by
reasoning with the employee and then by suggest-
ing that she leave work for the day. Sibulkin took
no such measures before discharging Fowley, and
we are constrained to conclude that the manner in
which Czyzewski was discharged weakens rather
than strengthens Respondent's defense.
Accordingly, for the reasons given above, we
find that Respondent discharged Francis Fowley in
violation of Section 8(a)(3) and (1) of the Act, and
we shall order that he be reinstated to his former
position or, if that position no longer exists, to a
substantially equivalent position at Respondent's
nursing home and that he be made whole, with in-
terest, for any loss of earnings he may have suf-
fered as a result of the discrimination against him.
2. The Administrative Law Judge found that Re-
spondent imposed a pretextual condition upon
Robert Shea's continued employment as a part-time
dishwasher by requiring him to secure a note from
his doctor for absence from work during the week
of May 13, 1979. He concluded that Respondent
violated Section 8(a)(3) and (1) of the Act by ter-
minating Shea's employment in retaliation for his
activities on behalf of the Union and ordered
Shea's immediate reinstatement with backpay. We
uphold the Administrative Law Judge's conclusion
and adopt his recommended Order in this respect,
but we are of the opinion that the recommended
remedy falls short of the relief to which Shea is en-
titled.
The General Counsel has excepted to the Ad-
ministrative Law Judge's failure to conclude that
Respondent unlawfully reduced Shea's hours prior
to his discharge and to provide a backpay remedy
for this additional violation of Section 8(a)(3) and
(1). We find merit in the General Counsel's excep-
tions.
As the Administrative Law Judge observed in
his Decision, the record is somewhat unclear with
respect to the events centering around Respon-
dent's reduction of Shea's hours and his eventual
discharge. The evidence does establish, however,
that Shea was regularly scheduled to work week-
ends and was often called in for additional work
during the week if other help was not available.
The record also establishes that on or about May
18, 1979, Shea noticed that he had been removed
from the schedule for May 19, 20, and 23 and was
told by his supervisor, Carl Graham, that Sibulkin
was responsible for the erasure. Respondent's
animus toward the Union and its adherents is
amply documented, and its specific animus toward
Robert Shea is demonstrated not only by his un-
lawful discharge but also by Graham's remark to
Shea and another kitchen employee, Rene Lymon,
on May 16 that they would "learn the hard way,"
which the Administrative Law Judge found to be a
violation of Section 8(a)(1) of the Act. We there-
fore conclude that the General Counsel established
a prima facie case of unlawful discrimination in the
reduction of Shea's hours.
Moreover, Respondent advanced no credible jus-
tification for removing Shea's name from the kitch-
en work schedule for the week of May 19. In fact,
from Graham's confusing testimony it is difficult to
be certain that any justification whatsoever was
given. We are therefore prepared to conclude that
Respondent removed Shea's name from the sched-
ule for May 19 and 20 in retaliation for his union
activities and thereby violated Section 8(a)(3) and
(1) of the Act. We shall order a backpay remedy
for those days. Because the record does not clearly
establish that Shea was regularly scheduled during
the week, however, or that he had arranged with
Graham to work on Wednesday, May 23, before
noticing that his name had been erased for that
458
CLARK MANOR NURSING HOME CORP.
day, we shall not include May 23 in the backpay
award.
3. The General Counsel also excepts to the Ad-
ministrative Law Judge's refusal to order that Re-
spondent reimburse Linda Nishan and Karen Baker
for legal expenses that they may have incurred in
defense of the trespass complaint brought against
them by Respondent in the Worcester district
court. We find merit in the exception. It is our
practice to order reimbursement of legal expenses
arising from charges brought against an employee
by an employer unlawfully motivated under the
Act,'L and the issue whether such expenses were
in fact incurred and paid by the employees them-
selves or by the Union is irrelevant to an unfair
labor practice proceeding. We shall therefore order
the relief requested by the General Counsel' 2 and
leave resolution of related questions to the compli-
ance stage of this proceeding.
4. We also agree with the General Counsel that a
broad order is warranted in this case, particularly
since we have here found additional violations of
Section 8(a) (3) and (1). Respondent's unfair labor
practices include, inter alia, discriminatory enforce-
ment of an overly broad no-solicitation rule, the
threat to arrest and the actual arrest of employees
distributing union literature on Respondent's prop-
erty, various retaliatory actions against union ad-
herents with regard to their schedules and employ-
ment status, and three discharges from an employee
complement of approximately 150. We also note
that Respondent concentrated its unlawful activity
upon those groups of employees which it believed
to represent union strongholds, that is, on the main-
tenance and housekeeping and on the kitchen de-
partments, and on the nurses aides who worked the
11-7 shift. While Respondent's unfair labor prac-
tices perhaps cannot be characterized as wide-
spread, they were certainly numerous, varied, and
egregious, and, we conclude, demonstrated a delib-
erate disregard for the Section 7 rights of the em-
ployees of the nursing home.' 3
5. Finally, while we conclude that the Adminis-
trative Law Judge properly recommended over-
turning the election in Case -RC-16262, we wish
to correct his statement of the law concerning the
propriety of considering conduct not specifically
alleged in objections to the election in determining
whether the election should be set aside. The Ad-
ministrative Law Judge noted that, of four inci-
i' See, e.g. Baptist Memorial Hospital, 229 NLRB 45 (1977).
12 We construe an award of legal expenses to Nishan and Baker to in-
clude any further expenses that may arise in the proceeding to expunge
their records in the state court. The Administrative Law Judge inadver-
tently omitted the expunction order from his notice, and in issuing a new
notice we shall correct the error.
I3 See Hickmort Foiods. Inc.. 242 NLRB 157 (1979)
dents occurring during the critical period before
the election, only two were specifically alleged as
objections. Finding that these two incidents were
violations of Section 8(a)(1), the Administrative
Law Judge determined that they constituted objec-
tionable conduct sufficient to set aside the elec-
tion.' 4 However, the Administrative Law Judge
refused to consider as objectionable conduct one
other incident of misconduct,' 5 which he found to
be a violation of Section 8(a)(1) but which was not
specifically alleged as an objection.
Our decisions establish that any improper con-
duct discovered during the course of an investiga-
tion of objections to an election, whether or not
specifically alleged, may, if sufficiently objection-
able, constitute grounds for invalidating an elec-
tion.' 6 Where, as here, an administrative law
judge, after full litigation, finds that a respondent
committed an unfair labor practice during the criti-
cal period before the election, that misconduct is to
be considered as a basis for overturning the elec-
tion even if not alleged in the written objections to
election filed in the representation case. 7 We
therefore find that the incident that occurred on
May 16, 1979, in which Supervisor Graham in-
formed Rene Lymon and Robert Shea that they
would "learn the hard way" in the union election
was not only a violation of Section 8(a)(l) of the
Act but was also objectionable conduct that further
supports the Administrative Law Judge's recom-
mendation that we order a second election.
For the reasons discussed above, we conclude
that, in addition to those violations found by the
Administrative Law Judge, Respondent committed
a violation of Section 8(a)(3) and (1) of the Act by
discharging Francis Fowley for engaging in pro-
tected concerted activity and by reducing the work
hours of Robert Shea for participating in the
Union's organizational efforts. We have also con-
cluded that Karen Baker and Linda Nishan are en-
titled to legal expenses they may have incurred in
the defense of trespass charges instituted against
them by Respondent and for any expense involved
in the expunction of those charges from their re-
cords in state court. Finally, we conclude that the
1' Dal-Tex Optical Company. Inc., 137 NLRB 1782. 1786 (1962)
' The other incident occurring during the critical period hut not spc-
cifically alleged as an objection was, we presume, Sibulkin's connersatoln
with Kim Bolio. which the Administrative Law Judge found not to he a
violation of Sec. 8(a)(1).
"I Dayton Tire & Rubber Co., 234 NLRB 504 (1978) See. eg. Boiler
Tub, Company ofAmerica, 238 NLRB 1641 (1978).
7 As stated in Dal-Ter Optical Company, Inc.. supra at 1786 "Conduct
violative of Section 8(a)(l) is, a fortiori, conduct which interferes with the
exercise of a free and untrammeled choice in an election "
Member Penello, while he agrees that a new election is warranted
here, adheres to the position expressed in his dissent in Dayton fire &
Rubber Co.. supra. and would not consider conduct not specifically al-
leged in written objections as grounds for setting aside the election
459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record in this case supports the issuance of a broad
cease-and-desist order. We shall modify the Admin-
istrative Law Judge's recommended Order accord-
ingly and shall order that the election in Case 1-
RC--16262 be set aside and a new election conduct-
ed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Clark Manor Nursing Home Corp., Worcester,
Massachusetts, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening to call the police, calling the
police, or causing employees to be arrested because
they engaged in union activities.
(b) Promulgating and enforcing unlawful rules
prohibiting solicitation in nonwork areas on non-
working time and rules prohibiting employees'
access to Respondent's premises.
(c) Interrogating its employees concerning their
union activities.
(d) Giving employees the impression that their
union activities are under surveillance.
(e) Threatening its employees with retaliation for
engaging in union activities.
(f) Issuing warnings to employees because they
have engaged in union activities.
(g) Changing or reducing the status of employ-
ees, or their hours or shift schedules, because they
have engaged in union activities.
(h) Depriving employees of holiday work be-
cause they have engaged in union activities.
(i) Discharging employees or setting unlawful
conditions upon their return to work.
(j) In any other manner interfering with, restrain-
ing, or coercing its employees in the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Remove from the files of Karen Baker, Linda
Nishan, Ann Stinchfield, and Paul Girard all warn-
ing notices, and all references to such notices
issued to them in the period from November 15,
1978, to August 27, 1979.
(b) Remove from the file of Linda Nishan the
personnel change form noting that she is a "union
organizer" and recommending that she not be
reemployed, together with all references to that
form in Respondent's files.
(c) Rescind the change of status form issued to
Karen Baker on January 18, 1979, and restore her
to full-time status, and grant her any benefits she
may have lost as the result of this action.
(d) Revise its personnel policies and posted rules
to eliminate unlawful restrictions on solicitation
and access to its premises.
(e) Restore Karen Baker and Ruth Burke to the
schedule under which they were working prior to
April 1, 1979.
(f) Pay to Robert Shea any money due him be-
cause of its refusal to schedule him for work on
May 19 and 20, 1979, together with interest there-
on.
(g) Pay to Karen Baker and Linda Nishan any
expenses they incurred in defense of charges result-
ing from Respondent's complaint against them in
the district court for Worcester County.
(h) Pay to Francis Fowley any money due him
because of its refusal to allow him to work over-
time on Thanksgiving and Christmas 1978, and
New Year's Day, 1979, together with interest
thereon.
(i) Offer Paul Girard, Robert Shea, and Francis
Fowley immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and
privileges previously enjoyed by them, and make
them whole for any loss of earnings they may have
suffered by reason of the discrimination against
them, together with interest thereon, computed in
the manner set forth in that section of the Adminis-
trative Law Judge's Decision entitled "The
Remedy."
(j) Petition the police department of the city of
Worcester, and the appropriate district court for
Worcester County, requesting that any proceedings
involving Respondent's complaint against Karen
Baker and Linda Nishan be expunged from their
records, and pay any expenses involved in the ex-
punction proceedings.
(k) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(1) Post at its place of business in Worcester,
Massachusetts, copies of the attached notice
marked "Appendix."' 8 Copies of said notice, on
forms provided by the Regional Director for
Region 1, after being duly signed by Respondent's
authorized representative, shall be posted by Re-
" iln 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."
460
CLARK MANOR NURSING HOME CORP.
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(m) Notify the Regional Director for Region ,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the election held
on March 17, 1979, in Case -RC-16262 be, and it
hereby is, set aside and that said case is hereby re-
manded to the Regional Director for Region I for
purposes of conducting a second election, as direct-
ed below.
IT IS FURTHlER ORI)ERII) that the challenges to
the ballots cast by Rita McMenemy and Ann San-
soucy in the election conducted on March 17,
1979, in Case -RC-16263 he, and they hereby are.
sustained.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for United Food & Commer-
cial Workers International Union, Local 1445,
AFL-CIO, in Case -RC-16263, and that, pursuant
to Section 9(a) of the National Labor Relations
Act, as amended, the said labor organization is the
exclusive representative of all the employees in the
following appropriate unit for the purposes of col-
lective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of em-
ployment:
All technical employees including licensed
practical nurses, physical therapist assistant,
and activity director, but excluding all other
employees, registered nurses, business office
clericals, professional employees, guards and
supervisors as defined in the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT threaten to call the police,
nor call the police, nor cause our employees to
be arrested, for their union activities.
WE WILL NOT promulgate or enforce unlaw-
ful rules prohibiting either solicitation in non-
work areas on nonworking time or employee
access to our premises.
WE WILL NOT interrogate our employees or
give them the impression that their union ac-
tivities are under surveillance.
WE WILL NOT threaten our employees with
retaliation for engaging in union activities.
WE WILL NOT issue warnings to employees
for engaging in union activities.
WE WILL NOT change or reduce the status
of employees, their hours or their shift sched-
ules, because of their union activities.
WE WILL NOT deprive employees of holiday
work because they have engaged in union ac-
tivities.
Wl- WIl NOT discharge employees, or set
unlawful conditions upon their return to work.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them under
the National Labor Relations Act, as amended.
WE WII.l remove warning notices from the
files of Karen Baker, Linda Nishan, Ann
Stinchfield, and Paul Girad, and a personnel
change form from the file of Linda Nishan.
WE Wll.l. remove the change of status form
from the file of Karen Baker, restore her to
full-time status, and grant her any benefits
which she may have lost as a result of our
action against her.
WE Wll.l restore Karen Baker and Ruth
Burke to the schedules under which they were
working prior to April 1, 1979.
WE WILL pay the legal expenses incurred by
Karen Baker and Linda Nishan in defending
the charges we brought against them, and WEi
WIL petition the police department and the
district court for Worcester County to ex-
eunge their records relating to that charge and
pay any expenses involved in the expunction
procedure.
WE WILL pay to Robert Shea any money
due him because of our refusal to schedule him
for work on May 19 and 20, 1979. with inter-
est.
WE WlIl. pay to Francis Fowley any money
due him because of our refusal to allow him to
work overtime on Thanksgiving and Christ-
mas, 1978, and on New Year's Day, 1979, with
interest.
461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Paul Girard, Robert Shea,
and Francis Fowley immediate and full rein-
statement to their former positions or, if those
positions no longer exist, to substantially
equivalent positions, without loss of seniority
or other rights or privileges previously en-
joyed, and WE WILL make them whole for any
losses they may have suffered on account of
our discrimination against them, with interest.
WE WILL rescind our no-solicitation and no-
loitering rules to the extent that they prohibit
our employees during their nonworking time
from soliciting in our facility with regard to
matters protected by the National Labor Rela-
tions Act or from having access to our prem-
ises in order to engage in protected activity in
the nonwork areas of our nursing home.
CLARK MANOR NURSING HOME
CORP.
DECISION AND REPORT ON CHALLENGES
AND OBJECTIONS
GEORGE F. MCINERNY, Adminstrative Law Judge: On
November 17, 1978, the charge in Case -CA-15221 was
filed by Local 1445, Retail Clerks International Union,
AFL-ClO,' alleging that Clark Manor Nursing Home,
herein referred to as the Home or Respondent, had vio-
lated the National Labor Relations Act, as amended, 29
U.S.C. § 151, et seq., herein referred to as the Act. This
charge was amended by the Union on December 11,
1978, and thereafter on December 27, 1978, the Acting
Regional Director for Region I of the National Labor
Relations Board, herein referred to as the Board, issued a
complaint alleging that Respondent had engaged in and
was engaging in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act. On January 4, 1979,
Respondent filed an answer denying the commission of
any unfair labor practices.
Further charges were filed in Case 1-CA-15796 on
March 19, 1979, and on May 3, 1979, the Regional Di-
rector for Region 1 issued an order consolidating Cases
l-CA-15221 and 1-CA-15796 and an amended com-
plaint designating additional actions of Respondent as
unfair labor practices. On May 11, 1979, Respondent
filed an answer denying these allegations.
The charge in Case -CA-15955 had been filed on
April 18, 1979, and amended on May 7, 1979. These, in
turn, led to an order by the said Regional Director, on
May 17, 1979, consolidating Case -CA-15955 with
Cases I-CA-15221 and -CA-15796 and the issuance of
a second amended complaint adding allegations of unfair
labor practices arising from Case -CA-15955 to those in
the prior complaints. Respondent duly filed an answer to
this second amended complaint, continuing to deny the
commission of any unfair labor practices.
I In June 1979, tilhe name of this organization was changed to the
United Food and Commercial Workers Union, Local 1445, AFL CIO.
and it is referred to herein as the Union.
On May 25, 1979, the charge in Case -CA-16130 was
filed by the Union. This charge was amended on June
26, 1979, and on July 3, 1979, the said Regional Director
issued an order consolidating Case I-CA-16130 with
Cases 1-CA-15221, 1-CA-15796, and I-CA-15955, to-
gether with a third amended complaint containing new
allegations deriving from Case 1-CA-16130. On July 12,
1979, Respondent filed an answer to this complaint.
On June 19, 1979, the charges in Cases -CA-16239
and 1-CA-16240 were filed by the Union. On August 1,
1979, the said Regional Director issued an order consoli-
dating Cases 1-CA-16239 and 1-CA-16240 with Cases
I-CA-15221, I-CA-15796, 1-CA-15995, and I-CA-
16130, and a fourth amended complaint adding further
violations of Section 8(a)(1) of the Act. 2 Respondent
filed an answer to this fourth amended complaint on
August 9, 1979, continuing to deny the commission of
any unfair labor practices.
In the meantime, the Union had, on March 26, 1979,
filed petitions for certifications of representative in Cases
l-RC-16262 and 1-RC-16263 for two separate units of
the Employer's employees. Case -RC-16262 concerned
employees in the dietary and maintenance departments,
nurses aides, other aides, clerks, and orderlies. The peti-
tion in Case 1-RC-16263 was for a technical unit, includ-
ing licensed practical nurses. On April 18, 1979, the
Union and the Employer entered into Stipulations for
Certification Upon Consent Election, setting out the
units in each case agreed to by the parties to be appro-
priate. Pursuant to the agreement reached in these stipu-
lations, elections were conducted by Region I on May
17, 1979.
The results of the election in Case -RC-16262 show
that, of 98 valid votes counted, 35 voted for the Union,
63 voted against it, and 9 ballots were challenged. In
Case -RC-16263 there were 13 valid votes, of which 6
were in favor of the Union, 5 against, and 2 challenged.
In the latter case, the challenges were determinative of
the results.
However, on May 22, 1979, the Union filed objections
to the elections in both cases. The objections as well as
the challenged ballots in Case -RC-16263 were investi-
gated and considered by the Acting Regional Director
for Region 1, resulting in the issuance of a Report on
Objections and Challenged Ballots dated June 28, 1979,
in which he noted that two of the objections had been
withdrawn, with his approval; he overruled three other
objections; and he found no evidence to support a fourth.
He noted that the content of two of the objections was
identical to the content of certain allegations in the
second amended complaint issued in Cases -CA-15221,
I-CA-15796, and 1-CA-15955. The Acting Regional Di-
rector therefore recommended that these objections
should be resolved at a hearing before an administrative
law judge along with the issues in the second amended
complaint. Further, he recommended that the two chal-
lenged ballots likewise be resolved at a hearing before an
administrative law judge.
2 It is noted that neither f the specific allegations containcd in the
charges i Cases I-CA-16239 and I CA 16240 is reflected in the allega-
lions of the fourth amended complaint
462
CLARK MANOR NURSING HOME CORP.
No exceptions were filed to the Acting Regional Di-
rector's Report on Objections and Challenged Ballots
and the above recommendations were adopted by the
Board in an order directing hearing dated August 22,
1979. In accordance with this order, the said Acting Re-
gional Director issued an order consolidating Cases 1-
RC-16262 and 1-RC-16263 with the cases heretofore
consolidated in the fourth amended complaint, Cases I
CA-15221, -CA-15796, 1-CA-15955, -CA-16130, I-
CA-16239, and -CA-16240.
The hearing opened before me on September 24, 1979,
at Worcester, Massachusetts. After the opening of the
hearing I granted the General Counsel's motion to add
certain allegations to the complaint and to consolidate
Case -CA-16547:1 with the other cases consolidated
herein. At this point a recess was granted and the hear-
ing resumed in Worcester on October 9, 1979. On re-
opening I granted a further motion by the General
Counsel to amend the complaint and to consolidate Case
l-CA-16565 with the others.4
The hearing then continued on October 9-11 and No-
vember 13-15 at which times all parties had the opportu-
nity to present testimony and documentary evidence, to
examine and cross-examine witnesses, and to argue
orally. After the conclusion of the hearing all parties
submitted briefs, which have been carefully considered.
Upon the entire record, including my observation of
the witnesses and their demeanor, I make the following:
FINDING;S OF FACT
1. ltHEi BUSINESS 01 RESPONDENT
Clark Manor Nursing Home Corp. is a Massachusetts
corporation which maintains its principal office and place
of business at 1350 Main Street in the city and county of
Worcester where it is engaged in the business of operat-
ing a proprietary nursing home. Respondent has gross
annual revenues in excess of $100,000 and annually re-
ceives goods valued at over $50,000 directly from points
outside the Commonwealth of Massachusetts. The com-
plaints allege, the answers admit, and I find that Respon-
dent, a health care institution within the meaning of Sec-
tion 2(14) of the Act, is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaints allege, the answers admit, and I find
that United Food & Commercial Workers International
Union, Local 1445, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
Itl. THE ALLEGED UNFAIR I ABOR PRACTICES
A. Background and Union Organization
Clark Manor Nursing Home is a long term geriatric
care center located on Main Street in a residential area
of Worcester, Massachusetts. The physical plant consists
of a 66-bed facility built in 1961, with a 36-bed addition
3 The charge in Case I-CA 16547 had bhcen filed on September 6.
1979, and Ilnellded on September 7, 1979
' The charge in Case I CA 10565 as filed on September 14. 1979
constructed in 1964, and a four-story, 60-bed unit added
in 1970, together with support areas, storage rooms,
kitchens, offices, and, on each floor of each wing, solar-
iums used both by patients and staff for recreational pur-
poses., At the times material to this case the Home em-
ployed about 155 employees in 3 shifts on a 24-hour, 7-
day basis.
The Home is administered by Robert Sibulkin. whose
titles are president and assistant administrator. Under Si-
bulkin are several departments: the nursing department
under Director of Nursing Frances McPartland, RN; the
dietary department under Carl Graham; and the mainte-
nance department which up to May 18, 1979, was super-
vised by Robert Bradway, and, after that date, by Robert
Lucier and Sheila Shanley. Other lower level supervisors
will be discussed as their participation in events becomes
relevant.
Late in September 1978, Richard T. Courtney, an In-
ternational representative for the Union's professional
and health care division, began handbilling on behalf of
the Union at the Home. Sometime after that, on Septem-
ber 27 or 28, he heard from Karen Baker, a nurses aide
on the I1 p.m. to 7 a.m. shift. They met and Courtney
gave Baker a number of union authorization cards to dis-
tribute among her fellow employees. After that Courtney
had another meeting with Baker and Linda Nishan, a li-
censed practical nurse (LPN) on the I I p.m. to 7 a.m.
shift, and then, as interest in the Union quickened among
the employees, he had a meeting with Baker, Nishan, an-
other LPN, Marie Pollard, Francis Fowley from mainte-
nance, and Sheila Shanley, an employee in the Home's
laundry. From this group a larger number of employees
was formed with the title of Clark Manor Nursing Home
organizing committee. The committee included Baker,
Nishan, Fowley, and Shanley, together with Ruth Burke,
a nurses aide who worked with Baker. Paul Girard from
maintenance, Rene Lyman and Robert Shea from the
kitchen, Anne Stinchfield. a nurses aide from the 7 a.m.
to 3 p.m. shift, and others who do not figure in this case.
The above-named employees participated i meetings,
passed out and collected authorization cards, distributed
literature, and generally exhibited prounion attitudes
around the Home.
B. The No-Solicitation Rules
At the time of the initial union organization efforts,
Respondent maintained, and had since 1972 or 1973,
rules against solicitation and loitering on the premises by
off-duty employees. These rules provided as follows:
SOLICITATION: No solicitation of any type will
be allowed on the premises. Example: sale of food
items, cosmetics, etc. This applies to employees as
well as the outside public.
LOITERING: Upon completion of your day's
work it is requested that you leave the home prem-
5 Much was made h all the parties of the fact that the Home is built
on a higher lesel than the street and that there is an embankment on the
Mailn Street side ushlch aries in height The fact f the embankment, or
its relative height at different points, is, hos.ecr, u nconnected to any of
the ssues in the case
463
DFCISIONS OF NATIONAL LABOR RELATIONS HBOARD
ises immediately so there will be no delay in the
continuance of work schedules. Off duty employees
are not to visit other employees while they are
working on the premises.
Infractions of these rules were punishable by written
warnings, three of which would lead to the employee's
discharge.
These rules were contained in Respondent's personnel
policies, which were distributed to all new employees.
The employees, in turn, were required to acknowledge
receipt of these policies to affirm that they had read
them, and to agree "to abide by them as written."
The no-solicitation rule appears on its face to be pre-
sumptively invalid; Republic Aviation Corporation v.
N.L.R.B., 324 U.S. 793 (1945). Even in the case of health
care institutions, where the application of the law to
rules of this type is somewhat less restrictive than in an
industrial or commercial setting, a broad prohibition of
this type, the Board has held that application of such
rules to areas beyond patient care areas is not justified;
St. John's Hospital and School of Nursing, Inc., 222 NLRB
1150 (1976).
There was considerable evidence from employee wit-
nesses that the no-solicitation rule was, at least in areas
not devoted to patient care, observed mainly in the
breach. This evidence, which I credit, shows that solici-
tation for Avon products, raffle tickets, furniture, an-
tiques, and other sundry items went on unabated and un-
deterred by lower level supervisory personnel. On the
other hand, the director of nursing, Frances McPartland,
and the assistant administrator. Robert Sibulkin, testified
that they enforced the rule on all occasions except for
certain patient-oriented activities such as a sale of af-
ghans made by patients, and fashion shows oriented
toward patients. As noted below, I did not find either
McPartland or Sibulkin to be a particularly reliable wit-
ness. However, it seems clear to me that the no-solicita-
tion rule was observed by the employees in patient care
areas, but was not in other parts of the Home at least
until the coming of the Union. In this regard I specifical-
ly do not credit McPartland's uncorroborated assertions
that she went around picking up Avon catalogs, and
firmly dissuaded named employees, who did not testify,
from bringing in other items for sale.
Thus I find that Respondent's no-solicitation rule, as it
ostensibly extends to nonpatient care portions of the in-
stitution, is invalid.
In making this finding I am aware of the decisions in
Beth Israel Hospital v. N.L.R.B., 437 U.S. 483 (1978), and
Baylor University Medical Center v. V.L.R.B., 593 F.2d
1290 (D.C. Cir. 1979), where the courts were confronted
with the application of no-solicitation rules to areas open
to employees, the public, and patients, and where these
three groups mixed in varying percentages at different
times of the day. There really is no comparable question
in this case. The only portions of Respondent's premises,
as shown by the record, where patients and staff were
described as mixing were the solariums which were used
as recreational facilities by patients and for breaks and
lunch by employees. However, there is no evidence that
the no-solicitation rule was ever enforced in these areas.
The rule against loitering in Respondent's personnel
policies is analogous to the rule found invalid in Tri-
County Medical Center, Inc., 222 NLRB 1089 (1976).6
The Board in 7ri-County held that a rule restricting em-
ployee access to areas outside the working premises, but
on the employer's property, was invalid except where
justified by business reasons.
Here, Respondent has introduced evidence which pur-
ports to raise such business justification in the context of
a health care institution. Director of Nursing McPartland
testified that in her opinion the presence of people stand-
ing in the parking lot would tend to disturb and upset
the Home's elderly or senile patients. She was able to
cite only one instance, and that occurred after the police,
who had been summoned by Respondent to deal with
employees who were handing out leaflets in the parking
lot, had arrived. Robert Sibulkin testified that the rule
against employees remaining on the premises outside of
the Home, particularly in the parking lot, was justified
because of parking problems and reported damage to or
vandalism of employees' cars parked in the lot: the theft
of two vehicles from the lot, one in 1975 and one in
1978; and the need for security outside the Home to pre-
vent breaches of security within. He pointed out in this
regard the fact that the Home maintained large amounts
of narcotics and other drugs, and the fact that there had
been thefts of handbags and other items belonging to
those inside the Home, as well as two substantial thefts
of supplies from the Home. Sibulkin attributed these last
two incidents to insiders since there was no forcible
entry of the premises.
There was no evidence that this rule against "loiter-
ing" was ever enforced prior to the union organization
campaign. A number of employees testified that off-duty
employees returned to the Home frequently, sometimes
to pick up paychecks which were distributed on Thurs-
days, and sometimes just socially. These employees testi-
fied that the off-duty employees would sit around and
visit with on-duty employees, or even with patients,
without reprimand by management. There was further
evidence that employees frequently arrived early for
work and remained either outside or inside the Home
until they were to begin their shifts. I also note an inci-
dent which occurred toward the end of August, more
than 3 months after the union election, when Sibulkin en-
countered Paul Girard at the emergency entrance to the
Home talking to three nonemployee friends. At no time
did Sibulkin request these strangers to leave the prem-
ises. In the circumstances I cannot find that Respondent
has adequately shown that these reasons serve as valid
business justifications for the rule against "loitering."
There was no evidence, other than bare assertions, that
employees' or other cars were damaged, vandalized, or
stolen. There was no evidence that the presence of pe-
destrians in the parking lot would exacerbate any parking
problems there. Certainly, if Respondent were really
concerned about security Sibulkin would have been
more concerned about the young strangers talking to
Girard at the rear entrance to the Home, than about
" tilnguikhing GI_' Le.nkurt Incorporated. 204 NLRH 921 (1973)
464
CLARK MANOR NURSING HOME CORP.
nurses aides passing out literature in the parking lot in
front of the building. With respect to the security prob-
lems, particularly the thefts from the Home, there is no
evidence that employees were responsible, or that en-
forcement of a no-access rule would have any significant
effect on such activities, or that an increase of security
inside the building would not deter further thefts.
Thus I find that by maintaining and enforcing rules
prohibiting solicitation in nonworking areas and during
off-duty time, and by prohibiting off-duty employees
from outside, nonworking areas of its premises, Respon-
dent has violated Section 8(a)(1) of the Act.7 The Presby-
terian Medical Center, 227 NLRB 904 (1977).
On November 21, 1978, apparently sensing some prob-
lem with respect to its no-solicitation policy, Respondent
posted a notice to employees reading as follows:
In order to avoid any questions-there will be no
union solicitation or distribution at anytime in pa-
tient care or patient access areas.
Solicitation and distribution will be permitted
during non-working time in other areas of the home
such as employees lounges, dining areas, coffee
rooms so long as there is no disruption to the health
care operation or disturbing of patients.
Our rule with respect to leaving the premises upon
completion of your day's work is based upon sound
business reason and has been promulgated as much
as for your protection as ours. Consequently, it will
be enforced.
What Respondent did here, in an ostensible attempt to
clarify the existing no-solicitation rule, was, in effect, to
replace that rule, which prohibited all solicitation at all
times and in all areas of the Home, with one prohibiting
only union solicitation and distribution but in working
areas and on working time.
Considering this rule in the light of the Supreme
Court's construction of the rule in Republic Aviation,
supra, by its decision in Beth Israel, supra,8 it would
appear that, on its face, the rule is valid.9 However its
promulgation, at the very onset of the Union's organiza-
tional drive, the circumstances of its enforcement solely
against known union supporters, and the encouragement
by Respondent of antiunion activities by employees in
disregard of the rule show that the rule was intended not
to protect patients from unwanted and disturbing solici-
tation activity.
I 1 am aware that the complaint alleges only that these rules ere
maintained and enforced on and after November 21, 1978 However the
rules as contained in Respondent's personnel policies were introduiced in
evidence, and this matter has been completely and thoroughly litigated
Thus no prejudice or violation of due process occurs in this finding.
R The rule in Bath Israel, as here, was limited only to union solicitation
9 There is no evidence that this rule was applied to restrict solicitation
in the solariums where. it is clear, patients and off-duty emplhyees nun-
gled, took coffee, and ate lunch In the absence of such evidence I infer
and filnd that the rule did not apply to those places, even though thes
were not specifically designated in the rule Further. I do not believe iat
the issue of access or the aailaililit of other means for the nlion tI
reach the employees is particularly imnlportant here in the light of this
finding
In spite of the Court's decision in Beth Israel, the im-
position of a new, or clarified no-solicitation rule, appli-
cable only to union solicitation, at the onset of a union
organization campaign must raise questions about the
motivation for the statement or restatement of the rule.
In contrast to the facts in Beth Israel, this case presents
an abundance of evidence showing hostility by Respon-
dent's officials toward the Union, and a series of illegal
actions against union adherents.
Both Sibulkin and McPartland made no secret of their
opposition to the Union. They are entitled under the Act
to look with disfavor upon the Union. But what they,
and through them Respondent, may not do is turn legiti-
mate views and expressions into unlawful actions against
employees. The several examples of such actions, dis-
cussed in detail below, demonstrate that the purpose of
the no-solicitation rule was to curtail the exercise of or-
ganizational rights by employees. To illustrate this fur-
ther I note the disparity between Sibulkin's two warnings
to Ann Stinchfield purportedly for violations of this
rule,' ° and Sibulkin's encouragement of employee Kim
Bolio's antiunion activities with no suggestion, in the
latter case, that those activities be confined to nonwork
areas. " Adding to these factors the findings I have al-
ready made, based on the voluminous evidence that the
prior no-solicitation rule was not enforced, at least at the
working levels of the Home, I am constrained to find
that this portion of the November 21 notice was likewise
invalid and a violation of Section 8(a)(l) of the Act.
Turning to the second part of the November 21 notice,
there was no change in this prohibition against access for
off-duty employees from that contained in the personnel
policies discussed above. What I held to be unlawful
there continues unlawful in its restatement here, Presbyte-
rian Medical Center, supra, and a violation of Section
8(a)(1).
C. Alleged Violations of Section 8(a)(1)
1. On November 15, 1978, employees Karen Baker,
Linda Nishan, and Ruth Burke were in the parking lot of
the Home at or about 3 p.m. passing out handbills to em-
ployees. Robert Bradway, the supervisor of maintenance,
came out of the Home and asked them to leave the prop-
erty and they refused. The parties stipulated, and the evi-
dence shows, that Frances McPartland then called the
Worcester police. The police responded but took no
action. The police report submitted in evidence succinct-
ly and pragmatically describes the matter as a "labor dis-
pute." Bradway had left the Home on May 18, 1979, and
was not called as a witness.
Following my conclusions with respect to Respon-
dent's rule against "loitering" given above, I find that the
employees here were involved in protected concerted ac-
tivity on behalf of the Union, and that Respondent by
"' Slinchfield as ain l ii;r it
'
tillOn supporter 'ssho ss a idenlific(l )II
unnriln literature as a member o1 ti org;rllllzirlg Ctiilllttt Site slltiid
that she received two oral wartirngs rmn Sihulkin fir ,ttl osl,, I lhl
rule Sihulkin did not den) this
I HIolio sas a physical therapist ssIhos du itlk her t .iAll prts it
rhe Iotlic , and iito contalt l . ll 1t l ail l i i a iIs -'hlft cmploscCs Slhtil
kin hitselif stated Ithat h Id thd t t h r iI sh snacrc opposed t, Oh I il11ii,
"s it, mhe o s peak tr hter peers ibuuil Tiit"
465
DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
calling the police, to have them removed from the park-
ing lot, interfered with, restrained, and coerced these em-
ployees in violation of Section 8(a)(1) of the Act.' 2
2. Again on November 20, Baker alone was handbill-
ing in the parking lot. The complaint alleges that Sibul-
kin threatened her by saying that he was going to call
the police. The evidence does not show that Sibulkin did
this, but the parties did stipulate that on that day "at 3:16
p.m. the police were summoned by Clark Manor Nursing
Home because there were persons on the property-a
person on the property who refused to leave; and the
police were in fact called." I find this, for the reasons
outlined above, to be a violation of Section 8(a)(l) of the
Act.
3. On November 29, 1978, the parties stipulated that
"Linda Nishan and Karen Baker were arrested for tres-
passing after, in the presence of the police officer, Mr.
Robert Sibulkin asked them to leave the property at 1350
Main Street. These two people were arrested for tres-
passing."
"On or about January 18, 1979, all the charges were
dismissed by the District Court." This further enforce-
ment of an invalid rule, involving as it does the actual
arrest of two employees who were engaged in activities
protected by the Act, is a further violation of Section
8(a)(1) of the Act.
4. Francis Fowley, a maintenance employee, testified
concerning three conversations with her supervisor,
Robert Bradway. The first two occurred on the same or
on consecutive days in mid-October 1978. The first con-
versation took place on the day after the first union com-
mittee meeting, which Fowley had attended. He had not
told Bradway that he was going to the meeting, but on
that next day Bradway approached him and asked how
the union meeting went. Fowley just shrugged, and
Bradway went on to say that he had had a conversation
with Sibulkin in which Sibulkin had told Bradway that
he, Sibulkin, had heard that Fowley had used an expres-
sion indicating a desire to physically assault Sibulkin.' 3
Later that same day, or on the next day, Bradway again
approached Fowley and told him that Sibulkin thought
Fowley was one of the union organizers and that, if the
Union got in, Fowley would run for steward.
I had some difficulty with Fowley's credibility, as will
be discussed in more detail below, but with respect to
this incident I found his testimony candid and believable.
Bradway, of course, did not testify. I thus credit Fow-
ley's versions of these conversations. In the first conver-
sation it is clear that Bradway was informing Fowley not
only that Respondent was aware of the fact of the union
meeting but that Respondent was also aware of what
went on and what was said there. This clearly created
the impression of surveillance and constitutes a further
violation of Section 8(a)(l).
With regard to the second conversation, Fowley did
not state whether the remark by Bradway reflected any-
12 There was no evidence that Bradway, McPartland, or Sibulkil de-
manded that the employees leave the parking lot or forbade them to pass
out union literature I therefore recommend that par 8(a) of (ihe coil-
plaint be dismissed.
"a Fowley had in fact said something like that at the union meeting on
the previous night.
thing which had gone on at a union meeting. Further,
Bradway's remark does not, as described by Fowley,
appear to be a question requiring an answer, and there
does not appear to be any threat, either expressed or im-
plied in this remark. Fowley certainly made no secret of
his participation in the organizing committee, or in other
union activities. In this context I cannot find that this
statement violated the Act.
The third conversation between Bradway and Fowley
took place in February 1979. Fowley apparently had
been late for work a few days before, and there had been
some question about whether he had called in to report
this. The matter was straightened out, but a few days
later Bradway approached Fowley and told him, that
whatever he did, not to give Sibulkin a chance to give
him a warning because Sibulkin was out to get him. I
find that this warning was prompted by Fowley's union
activity, and not related to his job performance. Fowley
had never received any warnings or other discipline in 7
years of employment at the Home. Thus I find that this
warning was a threat of reprisal for Fowley's union ac-
tivities in violation of Section 8(a)(l) of the Act.
5. Ann Stinchfield, a nurses aide employed on the day
shift from 7 a.m. to 3 p.m., testified that on February 14,
1979, she was approached by Sibulkin while she was
working and he said that he wanlted her to keep her out-
side activities in the designated areas. She said she did
not know what he meant, and he told her to read the
bulletin board.
About a month later Sibulkin again came up to Stinch-
field and said he wanted to remind her about solicita-
tions. He said he was giving her another warning to
desist or she would be "outside the door." He told her
that "people" had been telling him that she was still
doing the same thing. She remonstrated with him about
corridor gossip, but he merely replied that he did believe
it. Stinchfield admitted to passing out union cards, but
stated that she had done so only in nonwork areas and
on nonwork time.
Stinchfield's testimony was candid and credible. Sibul-
kin did not deny her story.
These warnings, if they related to a valid no-solicita-
tion rule, would certainly be inoffensive. However, I
have found that the rule promulgated on November 21,
1978, and posted on the bulletin board was in fact de-
signed to thwart the employees' lawful organizational ef-
forts. Thus these warnings, particularly in the absence of
any evidence that Stinchfield or any other employee en-
gaged in solicitation or distribution of union literature in
patient care areas of the Home, constitute further viola-
tions of Section 8(a)(1) of the Act.
6. On March 31, 1979, in the kitchen of the Home at
or about 6:15 a.m. Carl Graham, Respondent's food ser-
vice director and supervisor in charge of the kitchen,
was preparing breakfast. Only one employee, Susan
Vachon, was present. Vachon testified that while she
was making toast Graham asked her if she had signed a
union card. Graham did not specifically testify about this
conversation, but did deny that he had ever asked
Vachon about her signing a union card. I found Vachon
to be a credible witness even though she testified only as
466
CLARK MANOR NURSING HOME CORP
to this brief incident. Graham testified at length about a
number of incidents and, as I will discuss in more detail
later, I did not find him to be candid or credible about
most of those incidents. Likewise I do not credit his
denial here, and I find that this interrogation violated
Section 8(a)(l) of the Act.
7. Another incident involving Bradway happened on
March 14, 1979. A maintenance employee named Theo-
dore Dumas had just come in to work at 3 p.m. He was
in the parking lot near a basement entrance to the home
when he started talking with Bradway. In the course of a
conversation about what had happened at the Home
over the previous weekend, Bradway suddenly asked
Dumas how he felt about the Union. Dumas shrugged
his shoulders. Then Bradway added that the Union really
did not belong in "a place like this." I found Dumas, like
Vachon, to be a candid and credible witness, albeit on
short exposure, and Bradway, of course, did not testify.
While this short exchange would not, in isolation, seri-
ously contravene the law, I feel that, in the context of so
many similar incidents, this one tends to fall into a pat-
tern. Accordingly, I find that this interrogation violated
Section 8(a)(1) of the Act.
8. Rene Lyman, a dishwasher employed in the kitchen,
testified concerning a conversation with Carl Graham on
May 16, 1979. Lyman and Robert Shea, another dish-
washer, had been active in the union campaign. Lyman
was a member of the organizing committee, had attended
meetings, and passed out literature. On that morning
Graham was telling several employees, including Lyman.
Robert Belanger, and Lyle Croft, that they should vote
and vote as they felt. He then turned to Lyman and said,
"You and Bob Shea, you'll learn the hard way."
Lyman's testimony was corroborated by Belanger and
was not denied by Graham. I found both Lyman and Be-
langer to be credible witnesses and I find that Graham's
remarks constituted a threat of retaliation for the union
activities of Lyman and Shea and a violation of Section
8(a)(1). Shea's situation will be discussed further below.
Lyman voluntarily left Respondent's employ in July
1979.
9. In late November or early December 1978 another
kitchen employee, Theresa Yurick, testified that during
the morning break Graham asked her if she were going
to vote for the Union, and if Sue Vachon were going to.
Yurick replied that she did not know. Again Graham
generally denied asking employees about their union
sympathies, and again I do not credit that denial, but do
credit Yurick's version of this event. Therefore I find
this interrogation to be a further violation of Section
8(a)(1).
10. The complaint herein, as amended at the opening
of the hearing, alleged that Sibulkin threatened employ-
ees with termination and called the police again on Feb-
ruary 6, 1979, on account of the handbilling which had
started again after the dismissal of the trespass charges
against Baker and Nishan on January 18. No evidence on
this allegation was introduced and I recommend its dis-
missal.
II. On or about April 24, 1979, Kim Bolio, a physical
therapy assistant, had a conversation with Respondent's
receptionist, Sue Corbett, in which Bolio expressed her
concern over the union campaign and further stated her
own antiunion feelings. At this point Sibulkin came up.
There is some discrepancy in the versions of this incident
related by Bolio, Corbett, and Sibulkin, particularly as to
its location, but the substance of the exchange between
Bolio and Sibulkin is fairly uniform in all three versions.
In this conversation Bolio volunteered the fact that she
was concerned and that she was against the Union.
There is no indication that Sibulkin interrogated her
about this, but he did advise her to circulate, as her job
took her, throughout the Home, and tell the people she
encountered how she felt without any restriction on pa-
tient care areas, or any limitation on this activity to non-
working time.
I cannot find this incident to constitute further unlaw-
ful interrogation, but I do find it to be convincing evi-
dence of Sibulkin's disregard of his own no-solicitation
rule. This has led me to find, as I have above, that the
promulgation of the no-solicitation rule was not prompt-
ed by legitimate business reasons in this health care insti-
tution, but as a device to restrain and coerce the employ-
ees in their organizational efforts. I recommend that this
allegation of the complaint be dismissed.
12. At some time, the date is imprecise but apparently
early in September 1979 a maintenance employee named
Gregory St. Jacques asked to see Sibulkin about 2 or
2:30 in the afternoon and the two of them went in to Si-
bulkin's office and talked. St. Jacques was concerned be-
cause he had not received a raise to which he thought he
was entitled. He had received periodic increases as grant-
ed by Respondent each November, but he felt it was
unfair that with 3 years' experience he was being paid at
the same rate as new employees.
In the course of a wide ranging conversation covering
such diverse subjects as schooling, jobs and occupations,
the problems in running a nursing home, and St. Jacques'
future prospects, Sibulkin said that he could not give St.
Jacques a raise at that time because there were a lot of
troublemakers he had to deal with before he knew "ex-
actly who he's dealing with." Sibulkin went on to say
that he had to get rid of the troublemakers. St. Jacques
asked if they were the people in the Union, to which Si-
bulkin responded, "Yes, you know who I am talking
about."
The foregoing is based upon the testimony of St. Jac-
ques, which I have credited. It is true that St. Jacques
admitted on cross-examination that he was upset at not
getting a raise, but he seemed, rather philosophically I
thought, to accept that, and, significantly, he was still
working for Respondent at the time he testified. His de-
meanor impressed me as candid and open, and while his
memory was not of the best, his recollection of Sibulkin's
words was fairly uniform and not elicited by leading
questions. I thus credit his testimony on this matter,
which was not denied by Sibulkin.
The significance of this conversation is not only in the
threat which it conveyed to St. Jacques to the effect that
union activity invited retribution, including termination,
but also its revelation of Sibulkin's state of mind with
refercnce to union activists who already had been dis-
charged. as Fowley and Girard, or had work opportuni-
467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties denied, as Shea, or received warnings or changes in
status, as Baker, Stinchfield, and Burke. This state of
mind I find to be set against those employees he identi-
fied as prounion. I shall use this finding in considering,
below, the disciplinary action taken against these em-
ployees.
More to the point at this stage of this decision, I find
that Sibulkin conveyed to St. Jacques a clear threat of
retaliation for union activity in violation of Section
8(a)(l).
13. On June 15, 1979, Linda Nishan tendered her resig-
nation to Respondent. At that time Respondent main-
tained a form headed "Personnel Change Form" show-
ing changes in status of employees for use in maintaining
orderly personnel records and to have a reference in case
a departing employee should apply for work again. One
of these forms was made out for Nishan on June 15,
showing her resignation to take effect on June 29. On
this form Director of Nursing McPartland noted that
Nishan was not recommended for reemployment in the
same department, further noting, under the space pro-
vided for "remarks" the words "union organizer" and
"good nursing ability."
McPartland admitted that she made the note about
Nishan being a union organizer because she did not ap-
prove of unions in health care facilities. She added that if
she were to refer to that file she "would take that into
consideration." She stated that she would think twice
about rehiring Nishan because of her disapproval of
unions at health care facilities. She did not directly state
that she would not rehire Nishan because of this fact, but
admitted that she would "think about it." 4
There is no question over McPartland's right to hold
whatever opinions she wishes about the good or evil of
unions in health care facilities. Nor, in the abstract,
would there be a serious question about her notation on
the file of a departing employee that she was a "union
organizer." However when the permissible thought, and
the innocuous notation, became a specific recommenda-
tion against reemployment, I find that McPartland has
crossed the line from free speech and thought to pro-
scribed activity. Whatever McPartland may have recom-
mended to the hospital where Nishan went to work, or
whatever McPartland might have done if Nishan reap-
plied to the Home the personnel change form remaining
in the files of Respondent constitutes an interference
with the rights of Nishan to participate in union activity
free from restraint and coercion. I find this personnel
change form to constitute a violation of Section 8(a)(l)
of the Act.
D. The Alleged Violations of Section 8(a)(3) and (4)
1. Karen Baker and Linda Nishan
At the time of the hearing in this case, Karen Baker
had been employed as a nurses aide at the Home for 3
years. As described above, she was the first employee to
become interested in the Union, and thereafter remained
active on the organizing committee, soliciting authoriza-
14 McPartland also stated that she had given Nishan a good reference
for a good job at n area hospital, where she apparently sias worrking at
the time of this hearing.
tion cards, and handbilling, particularly in Respondent's
parking lot.
On November 22, 1978, as a result of her handbilling
in the parking lot on November 15 and 20, Baker re-
ceived in her pay envelope an employee warning notice,
indicating that this was a first warning for her disregard
of Respondent's policy against "loitering" during off-
duty time on November 15 and 21.
On December 7 Baker received another notice, this
time a second notice, for the incident of November 29,
described above. This notice indicated that "any further
miss conduct [sic] will lead to your termination of em-
ployment."
Also on December 7, Linda Nishan received a similar
warning for her conduct on November 15 and 29, 1978.
It is clear from my findings above that Respondent's
policy against "loitering," denying off-duty employees
the right to remain on Respondent's property outside of
the Home itself was invalid and unlawful, whether in its
original version or as restated in the November 21
notice. It follows, then, that disciplinary action in the
nature of warning notices'" is likewise unlawful. I thus
find that the issuance of these two warnings to Baker
and one to Nishan violated Section 8(a)(1) and (3) of the
Act.
On January 18, 1979, Baker received in her pay enve-
lope a notice on a form changing her employment status
from full time to part time. There was no signature on
the form Baker received, and the form merely indicated
that it was from the payroll department. The copy of the
form retained in Respondent's personnel file, however,
bore the notation "Attached to pay check 1/18/79
R.C.H. per Fran."
Respondent's personnel policies designate full-time em-
ployees as these "regularly scheduled and working" 40
hours a week. Part-time employees are those "regularly
scheduled and working" 24 to 39 hours a week. 6 There
are distinctions in the schedules of benefits listed in the
personnel policies for these groups of employees. For ex-
ample, full-time employees receive pay for all holidays.
Part-time employees are paid only if they work on the
holidays. Full-time employees also receive more bereave-
ment days, sick days, and have lower eligibility for enti-
tlement to 2-week vacations. Thus it appears that the
change in status from full time to part time has an ad-
verse effect on employment benefits. 7
The reason for the change in Baker's status was ex-
plained by Rita C. Hill, a clerk in the payroll depart-
ment. She testified that she had begun to work for Re-
spondent on July 27, 1978. At the time she started she
was given little training so was not aware of Respon-
dent's practices in classifying employees as full time or
part time. Then in December of 1978 she was confronted
with the job of determining who was full time and part
time in order to prepare bonus checks and to pay for
' Respondent's pcrslrinel policies provide that three such warnings
will ]clad tr trlillr;tiol oi t cipllI ylCent
i shos t rorkilg less hilil 24 hours a week arc ctlassilied as "relief
erlpl ee" hutlil these eCnlplo,res iare illl 1illl s ied here
17 There is Ill eidcllcc Ihatl htere is anN: difference In age rates he-
tween thcse t io groups (' empliyees
468
CLARK MANOR NURSING HOME CORP.
unused sick days. 8 She stated that she found this very
difficult and determined that it would not happen again.
At some point after the first of the year 1979 Hill stated
that she found the forms used in Baker's change of status
in a drawer, and, for no apparent reason, picked one out,
reviewed Baker's attendance record, found that the lat-
ter's hours did not average 40 over a 3-month period.
and then issued the form changing Baker from full-time
to part-time status.
After this, Hill waited to see "if anyone said anything"
but issued no more change of status forms until May
1979. '9 Hill explained the notation on the file copy of
Baker's form as meaning that Frances McPartland had
approved this action after the fact.
In May and June a number of these forms were issued
in accordance with Respondent's practice. This was de-
scribed by Hill as involving a continuous review of em-
ployee hours by the payroll department. If an employee's
hours reviewed for a 3-month period fell below the mini-
mum hours for his or her status, according to Hill, the
employee would be issued a warning to bring the hours
up. Hill was somewhat confused on the question of
whether a warning would be given to someone who was
scheduled to work 40 hours, but for somn reason did not
know or whether the warning was not given to that em-
ployee.
Hill was similarly confused when she was confronted
with the names of other employees who had worked less
than the required average in the period up to January
1979. She was unable to say why Baker was chosen or
why the others were not.
Hill's testimony on this incident did little to inspire
confidence. I can understand her frustration and confu-
sion in December 1978 when she had to figure out the
eligibility of 150 employees for sick leave pay and bo-
nuses. But her expressed determination that this confu-
sion would not occur again fell very short when she
picked out only one employee between January and
May. This would do little to settle the confusion. The
question of why Baker was chosen eludes an answer in
Hill's testimony. However, that question may be logical-
ly answered by reference to the notation on the file copy
"R.C.H. per Fran." It seems clear to me that Hill
(R.C.H.) did not do this on her own, but at the request
of McPartland (per Fran). These last words would not
have been used, in my opinion, for an ex post facto ap-
proval, but rather indicate to me a prior direction. Thus
I do not credit Hill's explanation for this action, and find
that McPartland in fact directed that Baker's status be
changed. 2
Moreover, all of the facts, Hill's unfamiliarity with the
system; her inability (or unwillingness) to explain why
Baker was singled out, the fact that no other employee
among all those subject to this change of status were
Is Full-time employees earned 6 sick das, per year Parl-nnlln emnplo.-
ees earned days The personnel policies prosided that unused sick das
would be paid by Respondent at the end iof each year
11 The charge in Case I CA 157
9
6. alleging his action Io be a ufair
labor practice as filed on March 19. 179.
20 1 assume, in the absence of any eidence. that Baker' atletldani
record did bring her wilhin Respondent'si polic> rhere is nto hcli ;o
that she had Lveraged 4 hours per '.cek er the 3-month pod prirt
to JanuarN I, 1979
changed until 5 months later; and the fact of McPart-
land's involvement given her admitted dislike of the
Union and her actions, discussed above, with regard to
Nishan lead to the conclusion that McPartland ordered
Hill to issue the change of status form for Baker. I fur-
ther infer and find that the motivation for this action was
Baker's activities on behalf of the Union, and constituted
a violation of Section 8(a)(1) and (3) of the Act. 21
Another incident involving Baker occurred in March
1979. On March 13 she received a notice on her pay en-
velope to see McPartland. Baker was unable to keep the
appointment because she had another job during the day.
She then received a call from someone who identified
herself as calling for Sibulkin. They attempted to arrange
a meeting for Baker and Sibulkin but Baker could not
make it at the suggested times and the meeting did not
take place.
The reason for the meeting was revealed to Baker
through a third warning notice dated March 15, 1979.
This notice was signed by Sibulkin and informed her
that, because of her failure to meet with Sibulkin as re-
quested, he had "no alternative but to issue a warning
for" her leaving work and the building at 6:50 a.m. on
March 8.
Baker recalled that she had actually left the building
some time after 7 a.m. that morning and she also remem-
bered that she had left in the company of Frances
Meade, a registered nurse who works for Medical Hospi-
tal Pool, an agency which provides temporary nursing
help to employers in the area. Baker spoke to Meade
who wrote a note to Sibulkin stating that Baker had left
the building with her at or about 7:15 on the morning of
March 8. Baker added a letter of her own and forwarded
both notes to Sibulkin.
A day or so later McPartland called Meade, informed
her that two people had seen Baker outside the Home at
6:50 a.m., and asked if she wanted to retract her state-
ment. Meade mentioned that Baker was a good employ-
ee, in contrast to others on the night staff and that she,
Meade, thought that it was too bad that she was getting
a warning. McPartland agreed, pointing out that she had
assigned Baker and another aide a special time schedule.
She went on to agree with Meade's evaluation of Baker
as a nurses aide, and that she thought it was unfortunate
that Baker was involved in the union activities at the
Home. There was some additional conversation about
the Union, and unions in general. Meade shared McPart-
land's views and asked her for some details on the cam-
paign at the Home. McPartland informed her of the pro-
gress of the campaign, pointing out that she thought the
Union was strongest on the night shift and in the kitch-
en. The conversation concluded when McPartland asked
Meade again whether she wanted to reconsider her posi-
tion on Baker in view of the two witnesses who saw
Baker outside at 6:50 a.m. Meade said she would think it
over.
Within a couple of days Sibulkin called Meade on the
telephone and asked if she had reconsidered. She replied
i' l; ia r lt.ificd Ihat he did nol reall lhmg al, hbenefits on account
of this actionl to'sCer. her eligibilit for hriefis \as rducrd fir s
lmig ,is li rlrit.i d in1 par t-llnlte itais
464
l DECISI()NS OF NAIIONAL LAIOR RELATIONS H()AR)
that she was not going to change her position and that
she felt strongly that Baker had not been absent from the
floor long enough to have gone out to the parking lot
and come back. Sibulkin pointed out that she could not
see her nurses aides at every moment and that she could
have been distracted long enough for Baker to have
gone out of the building and returned. Meade then told
him that she still felt that Baker probably had not been
off the floor long enough, but that if he put the case that
way she would have to go along with the fact that she
could not say where Baker was for every minute of that
time period.
Sibulkin then replied to Baker's letter, saying that
Meade stated that it was possible that Baker had left the
building at 6:50 a.m. He declined to remove the warning
from Baker's file.
These findings are based on the credible and undenied
testimony of Baker and Meade. I was particularly im-
pressed by Meade as a witness. Despite her admitted dis-
like of unions, she testified on behalf of the General
Counsel, and, as an employee of an outside employer,
had nothing to gain or lose by her testimony here.
Meade's testimony points directly to the motivation for
this warning notice.22 McPartland, speaking to a person
of her own professional level, who shared her views on
unions, candidly admitted that Baker was a good em-
ployee, and that it was unfortunate that she had gotten
herself involved with this Union. In view of this conver-
sation, together with McPartland's already established
hostility, in word and action, toward the Union and
union adherents, and the failure of Respondent to identi-
fy the two alleged witnesses to the incident either to
Meade, or at this hearing, I infer and find that the mici-
dent either did not happen at all, or that Respondent's in-
formants got their times mixed up. In any event, the evi-
dence in this case shows that the practice of employees
leaving the premises while on duty was commonplace,
and there is nothing in the record to indicate that any
other employee was ever warned for this reason. In the
circumstances, I find that the warning of March 13 was
given to Baker in retaliation for her activities on behalf
of the Union and constitutes a further violation of Sec-
tion 8(a)(1) and (3).
The final incident concerning Karen Baker also in-
volved Ruth Burke, a nurses aide on the same shift as
Baker. For some time before the Union began organizing
the Home, Baker and Burke had enjoyed a special sched-
ule which provided coverage for the Home, but also al-
lowed each of these employees more freedom on week-
ends. This had been initially arranged with their shift su-
pervisor, and had been approved by McPartland. Indeed
McPartland had mentioned this "special" schedule in her
conversation with Meade in the middle of March 1979.
At some time after that McPartland was talking with her
sister, a nursing supervisor at a hospital in Rutland, Mas-
sachusetts. They were discussing this schedule, and
McPartland's sister informed her that she had had prob-
lems with a union at her hospital over that kind of
22 Neither McPartland nor Sibulkin estified as to an) of the facts of
this incident
schedule. McParland thereupon terminated the special
schedule effective April 1, 1979.
This record amply demonstrates McPartland's hostility
toward the Union, and her actions with respect to Linda
Nishan and Karen Baker show her readiness to apply
this hostility to illegal actions against them. In this situa-
tion her motivation, as shown by evidence, is different.
She did not change the schedules of Burke and Baker be-
cause of their unionl activity, or to retaliate against them
on that account. Her expressed motive was to avoid
future problems in arranging or rearranging schedules if
the Union were certified as the employees' bargaining
representative. Thus she took this action because of the
union activity of all of the employees of the Home.
In this incident, the different motivation does not man-
(late a different result. Management may certainly
change schedules where its employees are not represent-
ed by a collective-bargaining agent. but it may not do
these things where, as here, the expressed motivation is
the organizational effort employees. Accordingly, I find
this schedule change on April I to be a violation of Sec-
tion 8(a)(I) and (3) of the Act.
2. Ann Stinchfield
Otn March 22, 1979, Ann Stinchfield, a nurses aide on
the 7 a.m. to 3 p.m. shift, received a written warning for
two incidents. The first was an allegation that Stinchfield
had told a patient that they had no toast on March 15,
and then, on March 16, she had failed to dress a patient
in a proper malnner.
The evidence on these two incidents was supplied by
Stinchfield on one hand and McPartland on the other.
Stinchfield stated that on the morning of March 15 she
was working and serving breakfast to patients. A patient,
Hooly,2 3: asked for some more toast. Stinchfield replied
that it had not been sent up yet, but that she would order
it. This apparently upset Hooly, and when the toast did
come up she refused it, saying she had already had her
breakfast. Sometime later that day, Stinchfield's supervi-
sor, Madelaine Sullivan. came up to her and told her that
she had upset a patient by handing her an empty plate
and telling her there was no toast. Stinchfield explained
the incident and told her that her charge nurse, Mary
Driscoll, could verify this. They went to see Driscoll.
Driscoll seemed, in Stinchfield's testimony, to be more
concerned about the lack of sufficient toast. but did
verify that Stinchfield had called the kitchen for more
toast. The only other testimony on this incident came
from Frances McPartland. However, her version of
events derived only from her interview with Sullivan,
who apparently had spent some time calming down
Hooly, from the patient herself, her daughter, who also
was a patient, and from Carol Kelleher. McPartland did
not speak to Stinchfield about the incident.
The second incident mentioned in the warning in-
volved a patient named Ryan. McPartland testified that
on March 16 she came upon Ryan, and in assisting her to
the bathroonl found that she had not been dressed with
underwear. McPartland found out that Stinchfield had
:' ()it ioic as it s solmoi/clr spellc(l i the recCord
470
CLARK MANOR NURSING HOME CORP.
been responsible for this patient, and called supervisor,
Carol Kelleher, who explained that Stinchfield had said
that Ryan was "too confused" to be dressed with under-
wear. McPartland ordered that Ryan be fully dressed,
and issued a warning to Stinchfield for these two inci-
dents. Stinchfield did not disagree with this version of
the incident. There was, however, a disagreement as to
the practice at the home of dressing patients who were
confused, incontinent, or careless. Stinchfield stated that
there was no real policy and that she was told to use her
own judgment in making determinations on dressing pa-
tients. She also said that she had dressed Ryan without
underwear for a year before this incident. McPartland
emphasized the commitment of the Home to quality, and
to the treatment of patients at all times with respect and
dignity. She mentioned that she constantly advised em-
ployees and supervisors of this with particular emphasis
on the dress of patients, that they should be fully
dressed, including underwear, during waking hours.
These are laudable goals, manifestly and devoutly to
be wished in those institutions where, it is sad to say.
many of us will spend our last days. Beyond this, I
cannot say, even though there was no physical abuse
here, or any danger to the health or well being of pa-
tients, that these incidents were minor in nature or unde-
serving of formal reprimand. However there are other
elements to be considered. I have noted the oral warn-
ings given Stinchfield by Sibulkin for alleged improver
union activity, despite the lack of any evidence in this
case that anyone engaged in such activity. I have noted
further the tendency of McPartland to transform her dis-
like of unions into concrete and illegal actions affecting
Nishan, Baker, and Burke. The evidence further shows
that the policies of the Home, relating to solicitation and
leaving the premises, were uniformly disregarded by em-
ployees and lower level supervisors alike. In this incident
McPartland's own testimony shows that she did some in-
vestigation, but never talked to Stinchfield, and that she
did not follow her usual practice in cases of this type of
talking the matter over with the offending employee and
giving a verbal warning before instituting more formal
proceedings. Here McPartland admitted only that she
had spoken to Stinchfield before, on other matters, but
had never given her a verbal warning. My decision on
this incident is not made any easier by the absence of tes-
timony from the supervisors involved, Sullivan and Kel-
leher, or the only employee witness to the Hooly inci-
dent, Mary Driscoll, but I will not raise any inferences
from this lack of corroborative evidence.
Therefore, having found that McPartland has shown a
tendency to discipline or otherwise treat employees in a
way that violated the law, and in view of her variance
from her usual practice in issuing warnings, I find that
this March 22 warning to this union activist likewise vio-
lated Section 8(a)(1) and (3) of the Act.
3. Robert Shea
Shea was employed in the kitchen at the Home from
May 29, 1977,24 to May 27, 1979, as a dietary aide, pri-
marily a dishwasher. He was enrolled at a local college,
24 At first Shea missrated this date as Ma 29,4 1979
and was regularly scheduled to work only on weekends
from 7 a.m. to 3 p.m. According to his supervisor, Carl
Graham, Shea was a good employee, and, by the spring
of 1979, he had acquired sufficient seniority among the
dishwashers so that Graham would call him first to fill in
during the week when needed. 25 During the winter
months Shea played hockey so he was not available, but
otherwise he would be called frequently. Respondent's
kitchen schedule for the period from April 29 to May 26,
1979, shows that from the beginning of the schedule until
May 13 Shea worked the 7 a.m. to 3 p.m. schedule every
day except for two Thursdays, May 3 and May 10, and
Saturday, May 12.26
Shea had also got himself involved in union activities
in the spring of 1979. He handed out literature and cards,
he was named as a member of the Union's organizing
committee on its literature, and at the election on May
17 he acted as a runner for the Union, going to each de-
partment to inform employees of their time to vote.
Graham testified that the schedule for each month was
made up by him in advance and posted in the kitchen for
all employees to see. He noted that Shea., as a "relief'
employee, was scheduled to work only on weekends.
Then Graham would add his name to the schedule
during the month as Shea worked on days other than
weekends. According to Graham, a dishwasher quit
during the week of May 13, 1979, and that sometime
over the weekend of May 12 and 13 he asked Shea to
come in every day during the week.27 Shea at first
agreed to this, but later called Graham and told him he
had "a lot of doctor's and dentist's appointments that
week and he could not work."
Shea's version of this is somewhat different, and also
somewhat confusing. At first he testified that he was
scheduled to work on the Wednesday before the election
and he told Graham that he needed a day off to straight-
en out his college schedule, then he said that he told
Graham that he needed the whole week to do this.2
Later his story was that he had exams during that week,
and finally he admitted he had told Graham he had a
doctor's appointment in that period.
All of this convinces me that whatever Shea may have
recalled on the witness stand, he did at some point tell
Graham that he had medical appointments during that
week.
Respondent's policy on dealing with employees who
have reported sick was, according to Sibulkin, flexibly
administered in the discretion of the department heads.
:. Dring May Shea was offered a full-time job hy (iraham. but he
declined because of his commitments to college
i (Giraham estified that Shea worked "a few days" in Ma. becaluse he
needed a. disha s hcr. but that h ould not work son -hursdays because
he ad "somehing n." Graham added hat on those Thursdays he sas,
Shea outside passing out leaflets for the Union
21 Shea was to come in on the 7 a m to 3 p m shift The schedule,
however, showu;s that one employee quit during the week of May 13. but
that employee, S Ferraro. is shown on the schedule as calling in on May
16 and quitting Ferraro was scheduled to work on May 16 through 18,
hut oil 1 3p m t 8 pm schedule According to this, Graham could not
h;a ha.le kli vlw;l ibout Ferraro's resignation on May 12 or 13. ad Iis
schedule was different from that assigned to Shea
2 In his initial testimony he did not say that he had been scheduled to
,s rk he wholc c'k
471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Depending on the circumstances, a doctor's note or cer-
tificate would not be required for minor illnesses lasting
a few days. If, however, an employee was out for more
than 3 days of a scheduled workweek then ordinarily a
doctor's note would be required. Sibulkin noted that as a
health care institution the Home was concerned about
contagion, and as an employer the Home was concerned
about the ability of an ill or injured employee to perform
on his or her return. Graham testified that he always re-
quires a doctor's certificate if an employee is out for
more than 1 or 2 days.
Shea remained out for that whole week of May 13,
1979. As I have found, Rene Lyman testified that on
May 16 Graham told him that he and Shea would "learn
the hard way." I found this, as corroborated by Robert
Belanger, to be a threat of retaliation for the union ac-
tivities of Lyman and Shea, and a violation of Section
8(a)(1) of the Act. 29
At some time, the record is not clear as to when Shea
noticed that his name had been crossed off the schedule
for May 19, 20, and 23. He stated that he spoke to
Graham about this and that Graham told him he had
nothing to do with it, and that "the boss" told him to do
it.
Both Graham and Sibulkin denied that Sibulkin ever
dictated any scheduling in the kitchen. Graham admitted,
however, that he did consult with Sibulkin about a doc-
tor's note for Shea.
In general I found Graham to be an unreliable witness.
His testimony was rambling and discursive, but his
memory concerning his own schedule was not good. His
testimony was contradicted by Susan Vachon, and The-
resa Yurick whom I have credited, and his testimony
about his relations with Francis Fowley, particularly
when he asked Fowley to bring him the key to his
house, and when Fowley did so, Graham's testimony
that they had no conversation at all, makes all of Gra-
ham's testimony on substantive issues suspect. His de-
meanor, likewise, was furtive and sly, despite his garruli-
ty. I will deal with the question of Sibulkin's credibility
later, but suffice it to say at this point that it is my view
that he was aware of everything that went on concern-
ing the Union and its adherents, and that nothing was
done to those adherents without his direction or approv-
al.
Shea demonstrated a poor memory in testifying about
his reasons for being off during the week of May 13, but
otherwise impressed me as a candid and truthful witness.
He certainly made no secret of his foul mouth or his
brawling and horseplay around the kitchen. The record
shows that this had no part in the incident under discus-
sion here. I therefore find that Shea accurately represent-
ed the conversation with Graham which occurred some
time between May 17 and 26.
On May 26 Shea worked on the 7 a.m. and 3 p.m. shift
according to his usual schedule. Sometime during the
day Graham told him that he would have to produce a
doctor's excuse, or excuses, for the days he did not work
during the week of May 13. There is a great deal of testi-
'2 Lyman stated that he, elanger, and l.yle Croft were present in the
kitchen on May 1. I'his is verified by the schedule showing all three
working from 3 p m to 8 p.tn that night.
mony about what was done after that, but further discus-
sion of this is unnecessary to this decision. Shea never
worked for Respondent after May 26, 1979.
Even assuming that Sibulkin accurately described Re-
spondent's policy with regard to doctor's certificates,
there is no indication in his testimony that the same
policy applied to a situation where, as here, Shea was a
casual employee during the week, and was scheduled
only on weekends, with additional work requested as
needed. Graham testified about times when Shea was
asked to work and could not, with no requests for ex-
cuses. Further, in view of my findings on Graham's
credibility, I do not find that he asked Shea to work
during the entire week of May 13 and Shea first accept-
ed, then refused on account of "doctor's and dentist's"
appointments. I find, rather, that Shea was scheduled to
work on Wednesday that week and that Shea told
Graham something indicating he had to see a doctor
during that day. Then, Graham scheduled Shea to work
on Monday, Tuesday, and Friday without consulting
him. Thus I find that Shea was not "scheduled" for that
whole week. This is consistent with all of the testimony
concerning Shea's working arrangement, and Graham's
testimony showing that he was not scheduled except by
mutual agreement from Monday to Friday.
Since Shea offered the doctor's visit as an excuse only
for I day, under either Sibulkin's or Graham's version of
the Home's policy on employee absences for sickness,
Shea would not have been required to produce a doc-
tor's certificate. In so finding I find further that the re-
quirement for a doctor's certificate in this case was a
pretext so that Respondent could get rid of Shea. This is
apparent when one considers Graham's remarks to
Lyman on the day before the election, Graham's com-
ment to Shea that "the boss" told him to reduce Shea's
hours, and the statements of Sibulkin to St. Jacques, in
September 1979, that he had gotten rid of "troublemak-
ers" involved with the Union.
All of these reasons lead me to find that the real
reason for denying employment to Shea was his activities
on behalf of the Union. I find that this violated Section
8(a)(1) and (3) of the Act.
4. Paul Girard
Girard worked in Respondent's maintenance depart-
ment from June or July of 1977 until his discharge in
August 1979. He was active in the union campaign in the
spring of 1979, being named as a member of the organiz-
ing committee in the Union's literature and wearing a
number of prounion buttons on his shirt and on his hat.
His work record up to July 19793' was good, and he
had received no warnings or reprimands.
Like Shea, Girard was a part-time worker who
worked on weekends and afternoons during the week
after school. His duties consisted mainly of sweeping and
mopping together with related tasks.
The events leading up to Girard's discharge began on
July 6 when Maintenance Supervisor Norman Lucier
asked Girard and another part-time employee, O'Conner,
:"' All dalc hereafter re in 179 unless oiherwise specified
472
CLARK MANOR NURSING HOME CORP.
if either of them would take care of the distribution of
linens in the Home on the next morning because the
person who ordinarily did that was going to be off.
O'Conner said that he did not know how to do it, but
Girard said that he had helped the former supervisor,
Bradway, do it on one occasion. Lucier then assigned
Girard the job, emphasizing that it had to be done first
thing in the morning. (The job is apparently quite simple,
and directions for distribution are displayed in the cen-
tral linen storage room explaining where and how much
to deliver.) Girard apparently forgot to do it, or did not
do it correctly, because he testified that at or about 11
a.m. Sheila Shanley, another maintenance supervisor, ap-
proached him and told him he was supposed to have dis-
tributed the linen, that he had not done it, and that he
was going to get a "big, fat warning." Shanley did not
specifically deny this, but in her testimony told a slightly
different story of her conversation with Girard on the
morning of July 7.
Since Sheila Shanley is a key figure in this incident,
and in the incident which resulted in Girard's discharge,
I have evaluated her testimony carefully. It appears from
the record that Shanley was one of the first employees to
become interested in the Union. She was a longtime em-
ployee and at the beginning of the union campaign
worked in the laundry. She became a member of the
Union's organizing committee and began to attend meet-
ings. Before one of those meetings, about April 22, the
union officials who were in charge had heard from un-
identified informants that Shanley was speaking unfavor-
ably about the Union to employees. She came to the
meeting on April 22 but was told by Ronnie Keane (or
Kean), another organizer, to leave the meeting. She
asked to confront her accusers but was refused, and she
left. Shanley was extremely upset by this, whether or not
she had been acting as a double agent, and thenceforth
was strongly opposed to the Union. In fact, when Court-
ney came to her home the next day to tell her that the
Union was still investigating the claims against her, he
testified that she was reluctant to let him into the house,
and said that it was a good thing that "that no good god-
damn [sic] kike Kean didn't come here."31 She further
told Courtney that she was no longer interested in
having the Union come into the nursing home. Shanley's
own version of the incident with Courtney was that she
was angry at her expulsion from the meeting and that
she had no respect for Keane. She added that if he did
approach her house she would "hit him over the head
with a broom." She specifically denied calling Keane a
"no good goddamn kike," and, indeed, averred that she
did not know what the term "kike" meant.
Immediately after the election Robert Bradway, the
supervisor of maintenance, left, and Respondent appoint-
'3 My failure to allow this conversation in to the record when object-
ed to by Respondent on the grounds of hearsay led to a special appeal to
the Board by the General Counsel on November 15. 1979. The Board
granted this appeal, reversed my ruling, and ordered me to admit the tes-
timony offered, on November 19 However, after the appeal was filed, on
November 15, the testimony in question was offered again, was not ob-
jected to by Respondent, and was received. The hearing closed on No-
vember 15 It is m view that the receipt of the eidence hich 'was the
subject of the appeal rendered that appeal moot. However, I accept the
reversal of my original ruling b the Board
ed two people, Norman Lucier and Shanley, as supervi-
sors.
It is evident from all this that Shanley was after April
22 hostile toward the Union. Further, her denial that she
even knew the meaning of that insulting term "kike"
makes me skeptical of her credibility. In addition to this
disingenuous remark, I found her testimony to be ram-
bling and vague, perhaps purposely so, in view of her
demeanor, which I observed as shrewd and calculating. I
therefore do not credit her testimony where it differs in
substance from that of Girard. I found the latter to be
credible and straightforward, candidly admitting in the
case of the linens his own failures. He is young and inex-
perienced, and I can see where a task which Respon-
dent's witnesses saw as simple could be difficult for him.
Norman Lucier impressed me as a man who wished he
were a mile away from the witness stand where I ob-
served him. His memory of events was poor, mixing up
in his testimony the several warnings that were given to
Girard, and seeming, particularly in regard to the final
warning of August 27, to want to avoid responsibility for
the decisions he admitted that he made. I did not find
Lucier to be a particularly credible witness.
Turning, then, to this first warning, it is undisputed
that Girard did not pass out the linens on time. In the
sequence of events following that failure I credit Gir-
ard's story that Shanley spoke to him about this, and
promised that he would get a warning for it. Lucier's
story that Shanley did not speak to him about it is not
believable. If the facts were otherwise it is hard to un-
derstand why Lucier varied from his usual practice of
discussing problems with employees and giving verbal,
rather than written warnings. Indeed he stated that he
did not give written warnings, but admitted here that he
gave both a verbal and a written warning.
This circumstance, considered in the light of Shanley's
avowed hostility toward the Union and Sibulkin's re-
marks, shortly after Girard's discharge, to St. Jacques
that he had eliminated union "troublemakers" from the
Home, leads me to the conclusion that this incident is a
further manifestation of Respondent's retaliatory actions
against its employees for their union activities. If it were
not for Girard's union activities I infer and find that he
would have received an oral warning for his failure to
distribute the linens. The written warning so given set
Girard on the path which led to his discharge. I find this
written warning to be a violation of Section 8(a)(1) and
(3) of the Act.
The next incident involving Girard occurred on
August 3. Again the facts constituting the incident itself
are substantially undisputed. Girard was sweeping the
rear entrance to the Home when three friends of his
came up. They were talking when they were observed
by Sibulkin. He approached them and asked Girard why
he was talking instead of working. Girard explained that
one of his friends was taking Girard's truck and chain
saw, and leaving a motorcycle for Girard to use. Sibul-
kin then turned to one of the visitors and said to him that
he might just have cost Girard his job.32 Sibulkin also
, I have noted Sibulkin's failure lto request these oung men to leave
as incilnslslenil with his .(lwcd concerti with security in the Home
473
I)ICISIONS OF NA IIONAL LABOR RELATIONS BI()ARI)
premises, but there is no indication that anything further
was done about that.
If Girard had merely been issued a warning because of
this incident there would not appear to me to be any evi-
dence of discrimination. However, it appears that it did
not happen that way. Sibulkin at first testified that he did
issue a written warning to Girard, then changed his story
to state that he had told Girard's department head,
Lucier, to do so. Lucier, on the other hand, admitted
that Sibulkin had told him about the incident, but specifi-
cally denied that Sibulkin had told him to issue a written
warning. In addition Lucier was hopelessly confused
about the date of the warning. Ordinarily warnings are
placed in employees' pay envelopes on the next payday
following the offense. Here the incident happened on
August 3. The warning, then, should have been included
in Girard's next pay envelope, distributed on August 9.
The warning, however, was dated August 13. Lucier did
not remember when it was actually given to Girard. The
latter, however, testified credibly that he actually re-
ceived the warning, together with his final discharge
warning, on the day of his discharge, August 27.
I view these discrepancies in the stories told by Sibul-
kin and Lucier, and the embarrassed confusion evident ill
Lucier's testimony as evidence that this warning was not
really given for the offenses described therein, but for
some other reason. I therefore infer that the other
reason, as with the first warning, and for similar reasons,
was made up predated, and given to Girard at the time
of his discharge as justification for that discharge under
Respondent's personnel policies. Based on these consid-
erations I find that this second warning would not have
been given to Girard if it were not for his union activi-
ties, and constitutes a further violation of Section 8(a)(1)
and (3) of the Act.
The third and final incident involving Girard occurred
on Saturday, August 25. I credit Girard's version of that
day's events. He stated that he was washing floors on
August 25 and had no discussions with Shanley, who
was his supervisor. On Sunday, August 26, however, he
testified that Shanley began to complain about Girard
and O'Connor, who was working with him. Girard
stated that Shanley told them that they had missed a spot
on one of the floors, and then proceeded to tell them
that their attitude was "lousey." She repeated this accu-
sation at least once, but Girard said nothing to her
except to ask why she thought that was so.
Shanley's version, I find, was wholly untrue, albeit
elaborate and verbose. I discredit her entire testimony on
this incident and find that it happened as described by
Girard.
On the following Monday, Shanley spoke to Lucier.
According to her, she told him what had happened over
the weekend. He told her that she did not have to take
the abuse from Girard that she described and told her he
would handle the matter. Lucier on the other hand
stated that Shanley came to him on Monday and told
him she had had a problem with Girard in regard to
sweeping. She mentioned something about backtalk, but
he could not remember what was said. He indicated that
she gave no details, but he decided to fire Girard on the
basis of what Shanley had said.
Girard testified that when he came in to work on
Monday, August 27, he could not find his timecard. He
went to see Lucier and was told that he was discharged.
Lucier then told Girard that Shanley was responsible for
it and that he did not know the reason They then went
to see Shanley, who mentioned some dirt thrown in a
corner by the elevator, and then unleashed a flood of
words at Girard. Lucier then told Girard, "There's noth-
ing you can do about it now," and then handed Girard
his paycheck together with the second and third warn-
ings.
Girard's report of the events of this day and his de-
scription of Lucier's and Shanley's conduct are com-
pletely consistent with my observation of the two super-
visors. Lucier was trying to please everybody, while
evading responsibility, while Shanley was garrulous and
imprecise.
Having discredited Shanley and Lucier, and crediting
Girard's story, it is apparent that the ostensible reasons
for the discharge are not the true reasons, but rather a
pretext, as in the other two warnings. I find, therefore,
that Girard's discharge in fact was effected because of
his union activities, and in retaliation for those activities
and violated Section 8(a)(1) and (3) of the Act.
5. Francis Fowley
Francis Fowley, also referred to in the record as
"Butch," was employed in Respondent's maintenance de-
partment from February 1972 until his discharge on May
18, 1979. He was a full-time employee whose duties in-
cluded plumbing, electrical work, carpentry, and a little
bit of everything. He had been a good worker and up to
the time of his discharge he had received no warnings or
disciplinary actions.
Fowley became involved in the union activity at the
Home almost from its inception. He apparently was quite
militant since he admitted that at the first, or one of the
first, union meetings that he would get personal satisfac-
tion out of punching Sibulkin. This remark, or a version
of it got back to Sibulkin and led to Bradway's conversa-
tion with Fowley about the Union in October 1978
which I discussed above.
Fowley continued his union activities after his conver-
sations with Bradway October or November 1978. Then,
about 2 weeks before Thanksgiving, Fowley asked Brad-
way if he were going to work Thanksgiving, as he had
always done, in order to earn the double time for work-
ing the holiday. Bradway said yes, but then sometime
later told Fowley that he could not work on Thanksgiv-
ing. According to Fowley's undenied testimony, Brad-
way told him that Sibulkin had looked at the schedule
and asked why Butch was working-that he could not
afford to pay this double time. Fowley was likewise
denied the privilege of working on Christmas and New
Year's Day, despite his custom in the past. Sibulkin did
not deny this, and Bradway did not testify at all.
In the same period of time, October or November
1978, Bradway again approached Fowley and told him
that he would thenceforth have to work straight hours,
either from 7 a.m. to 3 p.m. or 8 a.m. to 4 p.m. Before
this, Fowley had more or less set his own hours, coming
474
CLARK MANOR NURSING HOME CORP.
in earlier in the summer and later in the winter, and
making up time when he might have taken off for doc-
tor's appointments or other business. a
Viewing these two incidents with the background of
Bradway's two conversations with Fowley in October in
which the former gave Fowley what I have found to be
the impression that his union activities were under sur-
veillance and that Sibulkin was aware of Fowley's state-
ments about him as well as Fowley's prominent role in
the union campaign and further noting Sibulkin's ex-
pressed hostility as demonstrated by his actions involving
Baker and Nishan and, finally the fact that Sibulkin nei-
ther denied these incidents nor furnished any economic
or other justification for changing Fowley's schedule or
reducing his overtime, I find that these actions were
taken in retaliation for Fowley's union activities and con-
stitute violations of Section 8(a)(1) and (3) of the Act.
On May 18, 1979, the day after the election, which
had resulted in a vote of 35 for the Union and 63 op-
posed, Fowley was late in coming to work. 4 Eli Ehr-
lich, a psychiatric social worker employed on contract
by Respondent, was standing by the main desk at the
Home about 8:30 that morning when the telephone rang,
and he picked it up. Ehrlich announced that it was the
Home, and a male voice on the other end of the line
asked who was talking. Ehrlich identified himself and
asked who was calling. There was a pause, and the voice
asked for a charge nurse. Ehrlich said there were none
available, then asked if it were Butch. The voice, identi-
fied as Fowley's by Ehrlich, then said "tell the charge
nurse that I'll be in."
Later in the morning, about 10:30, Ehrlich was again
standing by the front desk when Fowley came by. Ehr-
lich greeted him, and then Fowley asked him, with an
obscenity, who he was to ask him who he was when he
called. Ehrlich replied that, if he did not identify himself,
Ehrlich would hang up. Fowley then turned to Ehrlich,
pointed his finger at him, and said that if he did that "I'll
take care of you."
Fowley's version of this conversation was that, after
Ehrlich greeted him, he merely said "don't bother me."
As I have noted I believe, based on all the testimony,
that Fowley tended to understate his actions on that day.
It is evident that he was distressed and angry over the
defeat of the Union after a long campaign in which he
had been so closely involved, and it is unlikely that in
admittedly striking out at persons he identified with the
Employer's side in the campaign he was as restrained as
he would lead me to believe. 35 Thus I credit Ehrlich's
version of this incident.
3s The fact that he may have been carried on the schedule for particu-
lar hours would cast no doubt on Fowley's statement which is undenied
that he kept his own, informal, schedule
a4 In making my findings on this incident I have relied on the testimo-
ny of Eli Ehrlich, Kim Bolio, Elizabeth Giguere, and to some exlent
Fowley, himself, although I have not credited his testimony where it
conflicts with those others. In that regard I find that Fowley tended to
minimize both his emotions and his conduct on May 18 As before I have
totally disregarded Shanley's testimony, except to credit that she was at
certain places at certain times.
35 Ehrlich was identified by Richard Courtney as rudely ordering him
off the premises during one handbilling episode
Following this encounter Ehrlich went to see Sibulkin
and told him about it, adding that he was concerned
about how Fowley might react to other employees, par-
ticularly if there were a disagreement.
Fowley proceeded to change into his work clothes
and went to one of the solariums, where he joined em-
ployees Janice Thienel, Marie Petit, and Chris Lamprey
for coffee and doughnuts. They began discussing the
union election and Fowley made a remark to Lamprey
to the effect that her mother made up her mind for her.
At this point, Fowley began discussing other employees
in obscene terms, when Sheila Shanley came up to the
table. Fowley directed a particularly obscene remark to
her, to which, according to Fowley and Kim Bolio who
also was there, she replied with a flood of equally offen-
sive language. I do not, of course, credit Shanley's denial
that she ever used such language.
Shanley, however, went immediately to Sibulkin's
office, in tears, and told him her version of what had
been said to her.
Fowley then left and worked until noontime when he
returned to the solarium to watch the news on television.
Another employee, Marie Pollard came in and greeted
him. He told her not to talk to him and directed an ob-
scene remark to her. She did not appear upset, but re-
plied that her "old man" called her that all the time. She
reported to Sibulkin, however, that she was extremely
distraught.
Fowley next walked over to a table where Shanley
was sitting with Elizabeth Giguere, banged his elbows
down on the table, and asked Giguere if Dick (one of the
firemen at the Home) knew she had "shacked up" with
Fowley those two times. Giguere became very upset and
left the solarium. She looked for Sibulkin but could not
find him, so she went downstairs to the laundry, weep-
ing, for a while. She later came back upstairs and told
Sibulkin that Fowley had said something very insulting
about her personal life. She would not tell Sibulkin what
Fowley had said, and even at the hearing, when asked
what it was, she was obviously and sincerely distressed. I
found Giguere to be an entirely credible witness and I
do not credit Fowley's denial that he slammed his
elbows down on the table, although the stories agree in
other particulars.
Shortly after this, Fowley left the Home for the day.
Sibulkin testified that he came into the Home about
10:30 on the morning of May 18. He was approached by
Ehrlich who proceeded to tell him about his encounters
with Fowley on the telephone and in person, adding that
Fowley appeared unstable. Shanley was the next person
to come in to see Sibulkin, giving her version of her ex-
change with Fowley. Marie Polland was the next one to
report on Fowley's conduct, although Sibulkin quoted
her as saying that Fowley had referred to her in obscene
terms on two, not one, occasions and, despite her appar-
ent calm when she was talking to Fowley, Sibulkin testi-
fied that she was extrely distraught when she talked to
him. Finally, Giguere came in to see Sibulkin and report-
ed what had happened between Fowley and herself. Si-
bulkin's recollection of this conversation is consistent
with the facts related by Giguere.
475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After his interview with Giguere, Sibulkin tried to find
Fowley, but he had already left for the day. At this point
it was about 1:30 in the afternoon, and Sibulkin decided
on the basis of the reports he had received from Ehrlich,
Shanley, Pollard, and Giguere, as well as a report from
someone on the remark Fowley had made to Marie Petit,
to discharge Fowley.
The General Counsel asks that I find, in all the cir-
cumstances of this case, that Respondent through Sibul-
kin seized upon and magnified these incidents as a pre-
text to get rid of Fowley, one of the chief union adher-
ents. In support of this position the General Counsel
points to the length and quality of Fowley's service to
Respondent; his union activities and his "disappoint-
ment" at the loss of the election; the fact that those who
reported Fowley's behavior were antiunion; the fact that
Sibulkin fired Fowley without getting his side of the
story; the fact that Fowley, in an interview with Sibulkin
on the day after he was fired, was not told what he was
alleged to have said and to whom; the fact that other
employees engaged in conduct "far worse" than Fow-
ley's and were not discharged; and, of course, the fact
that Sibulkin harbored animus against the Union and had
previously changed Fowley's schedule and curtailed his
overtime in retaliation for his union activities.
I certainly agree, and my findings show, that Sibulkin
was hostile to the organizational activities of his employ-
ees, and that he manifested that hostility in several in-
stances involving Baker, Nishan, and Fowley himself. I
further think that Sibulkin may have had a hand in the
discharge of Girard, as he certainly did in Shea's situa-
tion. In regard to Fowley's discharge, however, the situ-
ation is quite different. Where in Girard's case there was
no credible evidence of misconduct over the August 25-
26 weekend which would furnish grounds for discharge,
in Fowley's situation the evidence is clear and almost un-
disputed that Fowley came into the nursing home raging,
and struck out with obscene, cutting, and insulting
phrases at those he thought had had a hand in defeating
the Union.
With respect to the language used, the General Coun-
sel certainly has shown that crude and obscene language
was no stranger to those halls, and that the level of dis-
course was almost uniformly low. I can take no issue
with that, or attempt to impose different standards on
these employees. But even in such an atmosphere there is
a distinction between the casual or even jocular use of
such words, and their use as fighting words, directed in
anger to wound and to hurt. It is this aspect of Fowley's
conduct rather than the words themselves which differs
significantly from the examples cited by the General
Counsel.
With regard to the cases of Simonelli and Keough,
cited by the General Counsel to show disparate treat-
ment, there is no evidence showing that the conduct of
these employees, who were reprimanded and not dis-
charged, approached the level of intensity reached by
Fowley. The facts in Shea's case, and the fight involving
two nurses aides in May 1979 certainly are not compara-
ble to Fowley's conduct. The one case which did ap-
proach, and, indeed, exceeded Fowley's conduct, also re-
sulted in immediate discharge. This last case is the only
one I feel is comparable and in it the results were the
same.
The other grounds cited by the General Counsel to
support her position, the fact that Fowley was a respect-
ed, long service employee and the fact that he was not
allowed to face his accusers, are in my view irrelevant.
Accordingly, I find that Fowley was discharged be-
cause of his disruptive and offensive behavior on May
18, and not because of his union activities. This discharge
did not constitute a violation of Section 8(a)(1) and (3) of
the Act. Bogart Sportswear Mfg. Co., Inc., 196 NLRB 189
(1972).
6. The Alleged Violations of Section 8(a)(4)
The complaint alleged that certain actions taken
against Karen Baker on March 15 and against Robert
Shea and Francis Fowley on April 1, 1979, were taken
against them because they had filed charges or given tes-
timony under the Act, in violation of Section 8(a)(4) of
the Act.
The record shows that there is no evidence whatso-
ever which could lead me to this conclusion. The only
thing in the record in which I can discern any connec-
tion between the actions of Respondent and the filing of
charges is in the actions of payroll clerk Rita Hill in issu-
ing change of status forms in May and June 1979 after
charges had been filed alleging that the change of status
given Baker in January was a violation of law. This does
not furnish grounds for a finding of an 8(a)(4) violation
relating to Baker, much less the others. I will recom-
mend that these allegations of the complaint be dis-
missed.
IV. REPORT ON CHAI.I.ENGED BALLOTS
The record shows that the tally of ballots in Case 1-
RC-16263 resulted in six votes for the Union (Petition-
er), five against the Petitioner, and two challenges. The
challenged ballots were cast by Rita McMenamy and
Ann Sansoucy. In its Order dated August 22, 1979, the
Board directed me to prepare and serve on the parties a
report containing resolutions of the credibility of wit-
nesses, findings of fact, and recommendations to the
Board as to the disposition of these challenges.
A. Ann Sansoucy
On April 18, 1979, the Employer, Clark Manor Nurs-
ing Home Corp., and the petitioning Union, Professional
and Health Care Division, Local 1445, Retail Clerks In-
ternational Union, AFL-CI0,3 6 entered into a Stipula-
tion for Certification Upon Consent Election in Case 1-
RC-16263. The stipulation provided for an appropriate
bargaining unit described as follows:
All technical employees including licensed practical
nurses, physical therapist assistant and activity di-
rector but excluding all other employees, registered
nurses, business office clericals, professional em-
3The name of the International Union was changed to United Food
and Commercial Workers International Union. AFL-CIO.
476
CLARK MANOR NURSING HOME CORP.
ployees, guards and supervisors as defined in the
Act.
Ann Sansoucy testified that she is the activity director
at the nursing home. Her vote was challenged by the
Union on the ground that she was a supervisor. Howev-
er, counsel for the Union argued at the hearing, and in
his brief, that she could be challenged, and a decision as
to her status could be made, on grounds other than that
stated at the time of the election. However, in cases
where the parties have stipulated to an appropriate bar-
gaining unit, the stipulation will control the disposition
of challenges unless it is found to be contrary to the Act
or established Board policy. The Tribune Company, 190
NLRB 398 (1971). Where the language of the stipulation
is clear and unambiguous, the clear meaning of the stipu-
lation governs. White Cloud Products. Inc., 214 NLRB
516 (1974). Thus I will consider the Union's argument
with respect to Sansoucy's supervisory siatus, or her po-
sition as a professional employee, but not the argument
that she has no community of interest with the other em-
ployees in this technical unit. To that extent the Union is
bound by its own stipulation.
Sansoucy testified that she organizes activities for the
patients at the Home, and that she has been so engaged
for 6 years. It is clear from Sansoucy's testimony that
she has very little freedom of action in arranging activi-
ties. All proposed activities must be cleared with Sibul-
kin, or in his absence McPartland. Sansoucy has no
budget for her operation, but when she needs craft sup-
plies she writes out a list, then has it approved, and gets
the money from Sibulkin. Once the activities have been
approved, however, Sansoucy apparently is free from
minute-to-minute guidance in actually directing these ac-
tivities. In this she is assisted by another employee,
Clouatre.
Clouatre succeeded another employee who was dis-
charged for not working enough hours. 37 The evidence
is not clear whether Sansoucy made any recommenda-
tion on the termination of this former employee. San-
soucy stated that Sibulkin knew the person was not
working enough hours, and he had put warning slips in
her pay envelope "several times," but she did admit that
she had discussed this person's performance, twice, with
Sibulkin. With regard to the hiring of Clouatre, San-
soucy testified that after the other employee was termi-
nated she knew that the Home was required to have two
employees in the activities department, and she knew
Clouatre, who had worked as a nurses aide but had been
injured and had not worked for a while. When she came
back Sansoucy "thought I'd like to have her work for
me because she was a nice person." Sansoucy further tes-
tified that "everybody" agreed that Clouatre would "be
a good partner for me," and that thereafter she suggested
to Sibulkin that Clouatre fill the position. Sansoucy im-
pressed me as a gentle and easygoing person, and her tes-
timony with regard to her relations with Clouatre
seemed to say that she and Clouatre were more asso-
ciates, or partners, than supervisor and employee. Cer-
tainly Sansoucy had no authority to grant time off, or to
.7 Apparently there i a state lass or regulation requiring that there he
two people in this department
recommend pay increases. Sansoucy likewise said that
she had never given reports to Sibulkin about Clouatre's
work, but then pointed out that she had had no reason to
do that. However, in response to my questions, Sansoucy
did say that she directed Clouatre's work on a day-to-
day basis and that she made the decisions as to what
Clouatre was going to do.
Both Clouatre and Sansoucy perform their work in
street clothes, and both punch the timeclock. Sansoucy
attends monthly meetings with supervisors, physicians,
and other nonunit employees. Those meetings are not
management meetings, but are designed to help work out
programs, including activities for patients. At the time of
the election Sansoucy received $4.40 per hour, and
Clouatre, $3.10.
In these circumstances I find that Sansoucy, in spite of
her diffident attitude, did discuss and make recommenda-
tions to Sibulkin with respect to the former employee
who was discharged, as well as in the hire of Clouatre. s
She has the authority, although it has not been exercised,
to report on Clouatre's work. Otherwise Sibulkin would
have no way of knowing whether that work was satis-
factory. and the fact that Clouatre and Sansoucy work
well together should not obscure the fact that Sansoucy
is in charge of the day-to-day activities of the other. Fi-
nally, since the evidence shows that the people in the ac-
tivities department must, on their own, implement the
programs approved by Sibulkin, it is clear that the au-
thority exercised by Sansoucy over Clouatre must of ne-
cessity be more than routine and ministerial, showing
that Sansoucy responsibly directs Clouatre's work on a
daily basis.
On these grounds, then, I recommend to the Board
that it find Sansoucy to be a supervisor within the mean-
ing of Section 2(11) of the Act, and that the challenge to
her ballot be sustained. Cartwright Hardware Co., 22q
NI.RB 781, (1977).:'9
B. Rita McMenamy
Supervisors of nurses in nursing homes must be regis-
tered nurses. The record shows that at the end of De-
cember 1978 a registered nurse named Lorna LaTulippe,
who was supervisor of the 11 p.m. to 7 a.m. shift at the
home, resigned. At this time McPartland took over the
scheduling of employees for that shift, but during the
period between the time LaTulippe left and the election
on May 27, 1979, there was no registered nurse in charge
of that shift. The credible evidence, based on the testi-
mony of Linda Nishan and Karen Baker, shows that
with the exception of the advance scheduling, which was
done by McPartland, all of the functions previously per-
formed by LaTulippe were performed by a licensed
practical nurse named Rita McMenamy. McMenamy did
all of the paperwork for the shift, made changes in
: i Her lestilnony on this point, while inpreclse, allows the nference.
which I Imaike, thai Sansoucy did recommend Cloualre's hlre, and Sibidl-
kin foll, st id that recommendaton
:1 Hiaving made this inding I find it unneccssary to rule on the
Ullion
'
s contention that Sansoucy was a professional emplio ,e slthin he
nmcaning of Sec 2( 12) of the Act It is evident In an11 aseC that he idoes
not fit into that statlitor category. having completed ins ;til assoclalte'
degree ild (,-rkinig primnarily sith crafts aind ocial nctions
477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
schedules, approved swapping of the schedules, trained
new employees, and on one occasion sent an employee
home who had been drinking and reported the incident
to McPartland, which resulted in the discharge of the
employee and her charge nurse. There is no dispute
about the fact that there was no other supervision on
that shift for four or five LPNs and eight aides sched-
uled to work during those hours.
Karen Baker testified, credibly, that she had a dis-
agreement with McMenamy, and went to see McPart-
land concerning it. Baker stated that McPartland told her
that McMenamy was in charge of the shift and that her
word was law. McPartland did not recall saying that, but
did say that McMenamy was "a long term employee
who did try to keep things together."
McMenamy herself did not testify but the undisputed
facts recited above show that she acted in a supervisory
capacity until at least the date of the election on May 17,
1979.40 In that period there is no dispute that McMen-
amy was the only person directing the day-to-day activi-
ties of the people on that shift, including the recommen-
dation of discipline, assignments, shifts, or swaps of as-
signments. National Living Centers, Inc., d/b/a Autumn
Leaf Lodge, 193 NLRB 638 (1971).
I therefore find that at the time of the election herein
on May 17, 1979, McMenamy was a supervisor within
the meaning of Section 2(11) of the Act, and I recom-
mend that the Board sustain the challenge to her ballot.
V. REPORT ON OBJECTIONS
It may or may not be coincidental, but it is curious
that, of all the incidents which make up this case, only
four occurred during the period between the filing of the
petitions in Cases -RC-16262 and 1-RC-16263 on
March 26, 1979, and the election on May 17, 1979, and,
of these four, only two were made the subject matter of
the Objections to Conduct Affecting the Results of the
Election, filed on May 22, 1979. Thus only these two in-
stances of objectionable conduct may be considered in
this report. Goodyear Tire and Rubber Company, 138
NLRB 453 (1962). However I have found the interroga-
tion of Susan Vachon in the kitchen of the nursing home
on March 31, 1979, to be a violation of Section 8(a)(l),
and I have found the changes in the schedules of Karen
Baker and Ruth Burke on April 1, 1979, to be violative
of Section 8(a)(l). I find that this conduct interfered with
the conditions established with the Board as necessary to
guarantee the free choice of employees in these elections.
Dal-Tex Optical Company, Inc., 137 NLRB 1782 (1962);
Associated Mills, Inc., 190 NLRB 113 (1971).
Since I have previously recommended that the chal-
lenges to the ballots of Ann Sansoucy and Rita McMen-
amy be sustained, it appears from the tally of ballots in
Case -RC-16263 that the Union has gained a majority
of the valid votes cast. I therefore recommend to the
Board that that case be severed from this proceeding,
and that the Union be certified as the collective-bargain-
40 McPartland testified that during this period she arranged for the
presence of registered nurses from temporary employment agencies on
the 11 p.m. to 7 a.m. shift in order to comply with state regulations, but
admitted that McMenamy did the paperwork, discussed problems with
McPartland, and "started to assume responsibility."
ing representative in the appropriate unit stipulated by
the parties, adding, however, to the exclusions from that
unit the activity director.
With respect to Case -CA-16262, I recommend that
the election be set aside and a new election ordered.
VI. THE REMEDY
Having found that Respondent has violated Section
8(a)(l) and (3) of the Act:
A. I shall recommend that it cease and desist there-
from and that it take certain affirmative action designed
to effectuate the policies of the Act. Specifically I shall
recommend that Respondent:
1. Remove from the files of Karen Baker, Linda
Nishan, Ann Stinchfield, and Paul Girard all warning no-
tices and all references to such notices issued to them in
the period from November 15, 1978, to August 27, 1979.
2. Remove from the file of Linda Nishan the personnel
change form noting that she is a "union organizer" and
recommending that she not be reemployed, together
with all references to that form in Respondent's files.
3. Revise its personnel policies and any posted rules to
eliminate unlawful restrictions on access to the premises
by off-duty employees, and solicitation in nonwork areas
on nonworking time.
4. Rescind the change of status form given to Karen
Baker on January 18, 1979, and restore her to full-time
status, together with any benefits she may have lost as a
result of this discrimination.
5. Restore Karen Baker and Ruth Burke to the sched-
ule under which they were working prior to April 1,
1979.
6. Offer to Robert Shea and Paul Girard immediate re-
instatement to their former positions, or, if those posi-
tions are no longer available, to substantially equivalent
positions, with no loss of seniority or other benefits, and
make them whole for the discrimination suffered by
them by the payment to them of backpay together with
interest thereon to be computed in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (197 7 ).4'
7. Pay to Francis Fowley any money due him because
of Respondent's refusal to allow him to work on Thanks-
giving and Christmas Day 1978 and New Year's Day
1979 together with interest thereon.
B. The General Counsel has requested that I order
that Respondent pay for legal fees and expenses incurred
by Karen Baker and Linda Nishan in defense of the com-
plaint brought against them by Respondent in the
Worcester District Court. However, no evidence was in-
troduced that they incurred any fees or expenses on this
account. Indeed, it is probable that they were defended
by the Union's counsel, and that any expenses they in-
curred were borne by the Union. There is no request
that the Union be reimbursed so I will not grant this re-
quest of the General Counsel.
C. The General Counsel has also requested that I
order that Respondent petition the city of Worcestor
police department, and the Worcester District Court to
4" Sec, gener.ally, Isi Plumbing &t Ifeating Co., 138 NLRB 716 (1962).
478
CLARK MANOR NURSING HOME CORP.
expunge from the records of those bodies references to
the arrest and trial of Nishan and Baker. 42 No authority
was cited as to my authority to do this, or what effect
such petitions would have under city ordinance or police
department or state law, but I do think the request is ap-
propriate, for whatever effect it may have. I will there-
fore order Respondent to prepare petitions to the police
department of the city of Worcester, and to the appro-
priate Worcester District Court asking that the records
of the proceedings before these bodies involving the
complaints by Respondent against them in November
1978 be expunged from their records.
D. The General Counsel has also asked that I issue a
broad remedial order against Respondent. I have consid-
ered this case in the light of the standards set out in
Hickmot Foods, Inc., 242 NLRB 1357 (1979), and I con-
clude that a broad order is inappropriate, as I do not be-
lieve that Respondent has demonstrated such a proclivity
to violate the Act, nor has engaged in such egregious or
widespread misconduct as to demonstrate a general dis-
regard for the employees' fundamental statutory rights.
CONCLUSIONS o01 LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mcan-
ing of Section 2(5) of the Act.
42 The actual request was to "join in a petion" hill there i no idllcit-
lion as to who else is to join.
3. By maintaining overly broad no-solicitation and no-
access rules, Respondent has violated Section 8(a)(1) of
the Act.
4. By threatening to call the police, by calling the
police, and by causing employees to be arrested, while
they were engaged in protected concerted activities, Re-
spondent has violated Section 8(a)(1) of the Act.
5. By creating the impression that its employees' union
activities were under surveillance, Respondent has violat-
ed Section 8(a)(l) of the Act.
6. By interrogating its employees about their union ac-
tivities, Respondent has violated Section 8(a)(1) of the
Act.
7. By issuing warnings to employees because they en-
gaged in union activities, Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act.
8. By changing the status of an employee, by changing
the hours of an employee, and by changing the shift
schedules of employees, Respondent has violated Section
8(a)(l) and (3) of the Act.
9. By discharging its employee Paul Girard and by im-
posing unlawfill conditions on its employee Robert Shea
to allow him to return to his job, Respondent has violat-
ed Section 8(a)(3) of the Act.
10. By depriving its employee Francis Fowley of holi-
day work, Respondent has violated Section 8(a)(l) and
(3) of the Act.
II11. Respondent has not violated the Act in any other
manner.
[Recommended Order omitted from publication.]
479