Extendicare of Kentucky, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1972

199 N.L.R.B. 395 (N.L.R.B. 1972)

EXTENDICARE OF KENTUCKY, INC. 395
Extendicare of Kentucky , Inc. and Service Employees'
International Union, AFL-CIO, Local 557. Case 9-
CA-6689
September 29, 1972
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
On May 25, 1972, Trial Examiner Sidney Sher-
man issued the attached Decision in this proceeding.
Thereafter, the Charging Party and counsel for the
General Counsel filed exceptions and supporting
briefs, and Respondent filed cross-exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the cross-excep-
tions, the briefs, and the entire record in the case, and
hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner subject to the
modifications set forth below:
1. We find, in agreement with the Trial Examin-
er, that the Respondent violated Section 8(a)(1) of the
Act by:
(a) Interrogation of employee Simmons on or
about December 23; 1971, by Respondent Supervisor
Wise concerning the union activities or sentiments of
Simmons and other employees.
(b) Maintenance of an unlawfully broad rule for-
bidding solicitation by employees on behalf of a un-
ion on company premises during nonworktime and
forbidding employees to distribute union literature in
nonwork area during nonworktime.
2. We also agree with, and adopt, the Trial
Examiner's finding that Respondent violated Section
8(a)(1) and (3) of the Act by imposing on employees
Simmons and Doyle more onerous work assignments
because of their union activity.
3. The Trial Examiner concluded there was insuf-
ficient evidence of discrimination against Doyle with
respect to her termination to warrant an 8(a)(1), (3),
and (4) finding. Although we accept the Trial
Examiner's credibility and fact findings, we find merit
in the General Counsel's and Charging Party's excep-
tions to this conclusion insofar as the 8(a)(1) and (3)
allegation is concerned.'
i We deem it unnecessary to consider the 8(a)(4) allegation as it cannot
affect the remedy herein
The facts are fully set forth by the Trial Examin-
er. Doyle, a known union adherent who had previous-
ly been assigned more onerous work duties because of
her union activity, was granted a leave of absence for
medical reasons that was to commence October 12,
1971.2 Due to a worsening of her medical problem,
Doyle did not work after October 5. Without notify-
ing her, Respondent changed the starting date of her
leave of absence to October 5.
Doyle, who believed her leave of absence expired
December 12, 1971, received a telephone call at home.
from Supervisor Wise, while recuperating, about the
middle of November. Wise, who called from work,
asked Doyle about the progress of her recovery and
when she could return. Doyle replied that she had to
see her doctor again in the first week of December and
asked Wise if there were any more papers she had to
fill out concerning her leave of absence. Wise replied
that she did not know of any and asked Doyle when
her leave expired. Doyle replied that her leave ended
December 12 and asked if there was any reason she
should report to work earlier than that. Wise, who had
recently been on a medical leave of absence herself,
responded that she did not know any reason for it.
Doyle then asked if Food Services Manager Henry,
the head of the department in which both she and
Wise worked, was there. Wise said that she was not
but that she would check with Henry and if, for any
reason, Doyle had to come to work before December
12, Wise would contact and tell her.
Doyle reported to work on December 9 and was
told by Wise to return on the 13th and speak to Hen-
ry, who was then out of town. Doyle returned on the
13th and was told by Henry that she had been termi-
nated because her leave had expired on December 5,
as a result of its starting date having been changed
from the 12th to the 5th of October.
In our view, Respondent, in light of the state-
ments made by Supervisor Wise when she called
Doyle in mid-November, was obligated to notify
Doyle if the expiration date of her leave of absence
was earlier than December 12. The only evidence of
any attempt on Respondent's part to so notify Doyle
was Henry's self-serving testimony that she tele-
phoned but was unable to reach, Doyle shortly before
her leave expired. This can hardly be characterized as
a reasonable attempt to notify, much less as notifac-
tion. In addition, it is noted that the Trial Examiner
did not find Henry to be a very credible witness.
In view of Doyle's known union activities and
sympathies; the earlier unlawful discrimination prac-
ticed against her by Respondent; the issuance of our
Decision and Direction of Election 3 relating to the
2 Unless otherwise noted all dates mentioned herein refer to 1971.
Extendicare, Inc., d/b/a St Joseph Infirmary, 194 NLRB No. 51, issued
on December 3, 1971
199 NLRB No. 47
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign in which Doyle had been active on behalf
of the Charging Party, which would necessarily reinvi-
gorate that campaign as a prelude to the election
therein directed; the other unfair labor practices
found herein; and the animus and unfair labor prac-
tices found in an earlier proceeding 4 which took place
during the same organizational campaign and in-
volved employees in the same bargaining unit, we
believe the inference is clearly warranted that Wise
and Henry's failure to notify Doyle of the change in
her leave expiration date was based on her union
activities. As both of these individuals are supervisors
within the meaning of the Act, their failure is attrib-
utable to Respondent. In view of this failure, the role
played by Coffey, Respondent's personnel director, in
the decision to discharge Doyle was not material. Cf.
Sears, Roebuck and Co., 172 NLRB No. 246.
It is clear that Doyle determined the date she
sought to return to work and scheduled an appoint-
ment with her physician upon her belief that her leave
did not expire until December 12. There is no reason
to believe that she could not have scheduled her medi-
cal examination several days earlier 5 and received the
same medical clearance had she been notified of the
change. Therefore, we find upon the facts set forth
above and the entire record herein that Respondent
discriminatorily terminated Doyle in violation of Sec-
tion 8(a)(1) and (3) of the Act.6
Accordingly, we shall order that Respondent of-
fer Rita Doyle immediate and full reinstatement to
her former job or, if that job no longer exists, to a
substantially equivalent position, and make her whole
by payment of a sum equal to that which she normally
would have earned from the date of discrimination to
the date of offer of reinstatement, less her net earnings
during that period. The backpay provided herein shall
be computed in accordance with our formula set forth
in F. W Woolworth Company, 90 NLRB 289, with
interest thereon at the rate of 6 percent per annum in
the manner prescribed in Isis Plumbing & Heating Co.,
138 NLRB 716.
4 Extendicare, Inc., Case 9-CA-6478, TXD-114-72, issued on February
29, 1972, and, in the absence of exceptions , adopted by Board order on
March 29, 1972 (not printed in NLRB volumes). The respondent in that case
was the instant Respondent's parent and the employees involved worked at
the same location and were participating in the same organizational cam-
paign as the employees in the instant case . Violations of Sec. 8(a)(1) and (3)
were found which involved the surveillance, harassment , reprimand, and
suspension of an employee union adherent Animus toward the Union was
further evidenced by a series of notices posted on the employee bulletin
board which bluntly expressed strong opposition to the Union
5 Doyle was examined by her physician on December 8.
6 In view of our decision herein , we need not reach the question of whether
Doyle was treated disparately in being refused reemployment on or after
December 13 and whether there were any job openings as these would be
relevant only if we were to find that she was properly terminated as of
December 6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as it Order the recommended Or-
der of the Trial Examiner as modified below and
hereby orders that the Respondent, Extendicare of
Kentucky, Inc., Louisville, Kentucky, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended Order,
as herein modified:
1. Insert the following paragraph and reletter para-
graphs 1(a), (b), (c), and (d) as 1(b), (c), (d), and (e):
"(a) Terminating Rita Doyle or any other em-
ployee or otherwise discriminating aginst any employ-
ee in regard to their hire or tenure of employment, in
order to discourage membership in or activity on be-
half of Service Employees' international Union,
AFL-CIO, Local 557, or any other labor organiza-
tion."
2. Insert the following paragraph and reletter
paragraphs 2(a) and (b) as 2(b) and (c):
"(a) Offer Rita Doyle immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privi-
leges, and make her whole for any loss of earnings in
the manner prescribed in this Decision."
3. Substitute the attached notice for the Trial
Examiner's notice.
MEMBER KENNEDY, concurring in part and dissenting
in part:
While I accept my colleagues' adoption of the
Trial Examiner's findings of 8(a)(3) and (1) violations,
I do not agree with their reversal of the Trial
Examiner's findings that Respondent did not discrim-
inatorily terminate employee Doyle.
The issue is whether Respondent discharged
Doyle for overstaying her sick leave or for discrimina-
tory reasons. In reversing the Trial Examiner my col-
leagues appear to have overlooked or slighted several
very critical findings of the Trial Examiner. For exam-
ple, the Trial Examiner credited Coffey, Respondent's
personnel director, who testified that he made the
decision to terminate Doyle, that he was influenced
solely by Doyle's record of absenteeism and tardiness,
and that notwithstanding her termination he would
have rehired her when she returned if there had been
any suitable opening for her, but there was none. This
credited testimony would seem to dispose of the alle-
gation that Doyle was terminated for discriminatory
reasons. But the Trial Examiner also examined the
question of whether the circumstantial evidence
pointed to a discriminatory discharge. In this connec-
tion, the Trial Examiner took into consideration the
facts that Respondent was aware of Doyle's union
EXTENDICARE OF KENTUCKY, INC. 397
activity and that it was hostile to the Union. Never-
theless, he concluded that the evidence was not suffi-
cient to support a finding of discrimination. He
pointed out that in August, despite its knowledge of
Doyle's union activity, Respondent promised Doyle a
wage increase. He also credited Henry's testimony
that she tried to reach Doyle on the telephone before
the latter's leave expired to inform her of the earlier
leave expiration date but had been unsuccessful. In
addition, he stressed that there was no evidence that
Doyle would have been able to return to work on
December 6, even if she had known that her leave
would end on that date because her own testimony
was that her doctor did not discharge her until De-
cember 8, with the caveat that she refrain from heavy
lifting.? The Trial Examiner further held that Doyle
was not treated in a disparate manner. Respondent's
sick leave rule required the termination of any employ-
ee overstaying such leave and there was no evidence
that Respondent had waived the rule for any other
employee under comparable circumstances. Finally,
the Trial Examiner found that the General Counsel
had not shown that in failing to rehire Doyle on and
after December 13, Respondent treated Doyle differ-
ently from other employees. From December 1, Re-
spondent had no opening of any kind in the dietary
department where Doyle had formerly worked.
The majority has, sua sponte, suggested a theory
of violation not urged by the General Counsel and
therefore not discussed by the Trial Examiner, in rev-
ersing the Trial Examiner's finding that Personnel Di-
rector Coffey acted for nondiscriminatory reasons in
terminating Doyle. The scenario for this theory ap-
pears to be as follows: Respondent was hostile to the
Union, Supervisors Wise and Henry were hostile to
Doyle because of her activity in behalf of the Union,
Wise and Henry failed to give Doyle timely notice of
the change in her leave time because of this hostility
to Doyle, therefore the fact that Coffey was innocent-
ly motivated in discharging Doyle was immaterial to
a finding of discriminatory discharge, citing Sears,
Roebuck and Co., 172 NLRB No. 246.
There are serious factual weaknesses in this theo-
ry. First, Respondent was found guilty in an earlier
proceeding of having discriminatorily reprimanded
and then suspended a maintenance employee for 3
days without pay. In the present case, the Trial Exam-
iner found only the following unfair labor practices:
an unlawfully broad no-solicitation rule which was
7 The majority decision states. "There is no reason to believe that she could
not have scheduled her medical examination several days earlier [than De-
cember 8]." There is absolutely no evidence to support the inference which
this statement seeks to convey-that Doyle could have been discharged by
her doctor before December 8. If this was a fact , it was within Doyle's
knowlege and the General Counsel should have introduced probative evi-
dence thereof.
however voluntarily recinded by Respondent; a single
query of an employee, not Doyle, by Supervisor Wise
as to the former's "opinion about this voting"; and the
assignment of more onerous duties to two employees,
one of whom was Doyle. However, the Trial Examin-
er characterized the extra assignment to Doyle as
"rather petty." The sum total of this evidence hardly
justifies an inference that Respondent had a proclivity
to discriminate against employees for unlawful rea-
sons. Second, a principal is responsible for the antiun-
ion conduct of its agent on the basis of respondeat
superior, but an agent is not responsible for the con-
duct of his principal or of fellow agents. Neither Wise
nor Henry was found guilty of unfair labor practices
in the earlier proceeding. No attribution of animus
against Wise and Henry can therefore be made on the
basis of the decision in that case. Wise was involved
in the single borderline instance of interrogation in
this proceeding. As aginst this, Wise had promised
Doyle a wage increase in August despite her knowl-
edge of Doyle's union activity. The record is unclear
as to whether either Wise or Henry was responsible
for the assignment of additional duties to employees
Simmons and Doyle. The sum of the evidence thus
shows no significant animus either toward unions or
Doyle by Wise and Henry. Third, the majority states
that in view of the statements made by Wise to Doyle
in mid-November, Respondent was "obligated" to
notify Doyle if the expiration date of her leave was
earlier than December 12. I do not know how the
majority reaches this "obligation" conclusion from
the facts set forth. Perhaps if the Board were sitting
as an arbitration panel the finding of obligation would
be justified. But the Board's sole determination must
be not whether Henry should have taken additional
steps to notify Doyle of her leave expiration date, but
whether the action she did take or omitted to take
showed discriminatory motivation toward Doyle. If
the General Counsel had been able to show that Hen-
ry had treated Doyle in a disparate manner in regard
to further calls, that would be some evidence of illegal
motivation. But he has not shown this. Wise did com-
municate Doyle's November query to Henry. And the
latter, according to her credited testimony, did try,
although unsuccessfully, to reach Doyle by telephone
before her leave expired.' Perhaps Henry should have
8 The majority is uncomfortable with this credibility finding of the Trial
Examiner Although unwilling to overturn the finding, the majority attempts
to minimize Henry's testimony with the statement that the Trial Examiner
"did not find Henry to be a very credible witness." But the Trial Examiner
did find that this part of Henry's testimony was credible He stated: "While
Henry was not in general an impressive witness, there was no contradiction
of her testimony that she did attempt to reach Doyle and there was nothing
inherently improbable in such testimony nor any circumstantial evidence
that would warrant rejecting it." It is not uncommon for a trier of facts to
credit in part and discredit in part the same witness . Colonial Shirt Corpora-
tion, 96 NLRB 711; Elgin Standard Brick Manufacturing Company, 90 NLRB
1467.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made further efforts to communicate with Doyle. On
the other hand, it can as well be argued that since
Doyle was uncertain about when her leave expired,
she should not have been content with a single tele-
phone call from Wise, but should have persisted in her
efforts at clarification until she received either written
or oral assurance as to the terminal date of her sick
leave. Thus, if we are going to apportion blame, Doyle
would seem to have been as responsible as Henry for
failure to timely clarify the date when Doyle's sick
leave ended. In any event, the evidence does not jus-
tify the inference that it was because of Doyle's union
activities that Henry did not make further attempts to
get in touch with Doyle.
The Trial Examiner made a very careful analysis
of all the evidence in reaching his conclusion that Re-
spondent had not discriminated against Doyle. I think
his analysis sound and his conclusion justified. I
would therefore adopt his findings and recommenda-
tions.
APPENDIX
exercise of the right to self-organization, to form
labor organizations, to join or assist the above-
named Union, or any other labor organization,
to bargain collectively, through representatives
of their own choosing, and to engage in any other
concerted activity for the purpose of collective
bargaining or other mutual aid or portection, or
to refrain from any or all such activities, except
to the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
All of our employees are free to become or
remain, or to refrain from becoming or remain-
ing, members of the above-named Union or any
other labor organization.
Dated By
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 opportunity
to present evidence and state their positions, the Na-
tional Labor Relations Board has found that we have
violated the National Labor Relations Act, and has
ordered us to post this notice.
WE WILL offer Rita Doyle immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other
rights and privileges, and make her whole for any
loss of earnings in the manner prescribed by the
Board.
WE WILL NOT discriminate against any of our
employees by terminating them, or by giving
them harder and more difficult work assign-
ments, because of their interest in or activities on
behalf of Service Employees' International Un-
ion, AFL-CIO, Local 557, or any other union.
WE WILL NOT unlawfully question employees
about their union activities or sentiments or those
of other employees.
WE WILL NOT maintain any rules forbidding
employees to solicit for unions during nonworking
time or forbidding them to distribute union litera-
ture during nonworking time in nonwork areas.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
EXTENDICARE OF KENTUCKY, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room 2407,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: The charge herein
was served upon Extendicare of Kentucky, Inc.,' herein
called the Respondent, on December 23, 1971,2 the com-
plaint issued on January 31, 1971, and the case was heard
on March 21 and 22, 1972. The issues litigated related to
alleged violations of Section 8(a)(1) and (3) of the Act. After
the hearing briefs were filed by the General Counsel and
Respondent.
Upon the entire record,3 including observation of the
witnesses' demeanor, the following findings and conclu-
sions are adopted:
I RESPONDENTS COMMERCE
Extendicare of Kentucky, Inc., herein called Respon-
dent, is a Kentucky corporation, engaged in the operation
of a proprietary hospital known as St. Joseph Infirmary. It
was agreed at the hearing that Respondent is receiving gross
'Respondent's name appears as amended at the hearing.
2 All dates hereinafter are in 1971, unless otherwise indicated.
3 For corrections of the transcript and certain rulings, see the order of May
1, 1972.
EXTENDICARE OF KENTUCKY, INC. 399
revenues at an annual rate of more than $250,000 and that
its annual rate of out-of-state purchases exceeds $50,000.
Respondent is engaged in commerce under the Act.
II. THE UNION
Service Employees ' International Union, AFL-CIO,
Local 557, hereinafter called the Union, is a labor organiza-
tion under the Act.
III THE MERITS
The pleadings raise the following issues:
1. Whether Respondent violated Section 8(a)(1) by pro-
mulgating, enforcing, and maintaining an unlawful no-so-
licitation and no-distribution rule and by interrogation of
an employee.
2. Whether Respondent violated Section 8(a)(3) and (1)
by assigning more arduous duties to Doyle and Simmons
because of their union activities.
3. Whether Respondent discharged Doyle because of
her union activity and because she gave testimony at a
Board hearing?
A. Sequence of Events
Respondent operates a number of hospitals within the
State of Kentucky, including the one here involved, which
is known as St. Joseph Infirmary,4 hereinafter called St.
Joseph. A campaign to organize, inter alia, the dietary em-
ployees of St. Joseph's was launched by the Union in Feb-
ruary 1971. A union meeting held at that time was attended
by, among others, Simmons and Doyle. Thereafter Doyle
solicited other employees on behalf of the Union. A hearing
on a petition for an election filed by the Union was held
about April 1 and was attended by Doyle as a witness for
the Union.
On October 4, she arranged with Henry for leave be-
cause of impending surgery and, on October 8, was admit-
ted to a hospital for that purpose. On December 7, she was
terminated for overstaying her leave and has not been re-
hired.
For some time prior to January 22, 1972, a handbook
distributed to employees at St. Joseph contained a rule for-
bidding solicitation or distribution for any purpose on com-
pany premises . On January 22, 1972, the rule was amended
to omit such prohibition.
B. Discussion
1. The no-solicitation rule
It was stipulated that between August 31, 1971,5 and
January 22, 1972, a personnel manual distributed by Re-
spondent to its employees contained the following rules:
Solicitation or distribution for any purpose by any per-
son is not allowed on the premises of the infirmary.
This hospital had been separately incorporated under the name of St.
Joseph Infirmary , Inc., until August 31, 1971, when it became an unincorpo-
rated division of Respondent.
5 This date was selected because it was then'that Respondent was incorpo-
rated and took over the operation of St. Joseph . The rules under considera-
tion had apparently been promulgated long before that date , and there is no
evidence or contention that they were not adopted until after the advent of
the Union.
Any employee found in violation of this rule is subject to
immediate discharge.
Any employee may be dismissed without notice
for ... soliciting or distributing on the hospital premises
for any purpose.
It is clear that the foregoing rules were broad enough to
interdict any union solicitation by employees on company
premises during nonwork time and any distribution of union
literature by employees during such time in nonwork areas.
While such interdiction was rescinded when the rule was
amended on January 22, 1972, it is found that while it was in
effect the rule placed an unlawful restriction on union activity
and that Respondent thereby violated Section 8(a)(1) of the
Act. The fact that the rule has been amended does not obviate
the need for a remedial order, there being no assurance that
the former rule will not be reinstated.
2. Interrogation
As already related, a petition for a Board election
among the employees at St. Joseph was filed by the Union
early in 1971. On December 3, the Board directed an elec-
tion on that petition,6 which was held in February 1971.
Simmons testified without contradiction, and it is
found, that on December 23 Wise, an alleged supervisor,
asked for her "opinion about this voting," evidently having
reference to the impending election, and, when Simmons
attempted to avoid the issue, Wise pressed her for an an-
swer.
Respondent's only defense here appears to be that
Wise was not a statutory supervisor. However, apart from
anything else, Wise's status as a statutory supervisor is es-
tablished by the admission of Henry, an acknowledged stat-
utory supervisor, that between 6:30 and 8 every morning,
with respect to the 24 odd employees in the dietary depart-
ment, Wise performs the same duties, and has the same
authority, as Henry. It is, therefore, found that the foregoing
interrogation was unlawful.
3. Discrimination in work assignments
The complaint, as amended at the hearing, alleges, and
the answer denies, that Respondent discriminatorily as-
signed more onerous duties to Simmons from August 31 to
mid-November and to Doyle from August 31 to December
31.
There was no dispute that Respondent was well aware
of Doyle's union activities, including her testifying for the
Union at the Board hearing in April. As to Simmons the
only evidence of knowledge by Respondent of her union
activity consists in her uncontradicted testimony that at the
union meeting attended by her in February she sat close to
Carr, an alleged supervisor. Although Respondent disputed
Carr's supervisory status, Henry conceded that Carr per-
formed the same duties as Henry in directing the work of
about 24 employees between 5 or 5:30 p.m. and 7 p.m. every
day. It is therefore found that Carr was a statutory supervi-
sor and her awareness of Simmons' attendance at the union
meeting is chargeable to Respondent.
Simmons testified that for about 5 or 6 months, begin-
6 Extendicare, Inc., 194 NLRB No. 51
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ping with the end of June, she was given an unusually heavy
workload, there being added to the regular duties pertaining
to her job certain tasks which, to her knowledge, no other
employee had been required to do, including the prepara-
tion of certain jellos for half an hour a day and carrying
between-meal snacks to patients in their rooms, which made
it extremely difficult for her to keep up with her regular
assignments.
Respondent offered no denial nor explanation of the
conduct imputed to it by Simmons. The inference is therefore
warranted that whatever Respondent's witnesses might have
had to say about the matter would not have aided its case.
Accordingly, it is found that Simmons was singled out for
more onerous duties than other employees because of her
apparent interest in the Union, as evinced by her attendance
at the union meeting, and that Respondent thereby violated
Section 8(a)(3) and (1) of the Act.
Doyle testified that on several occasions in September,
whilst she was assigned to operating a supply cart, she was
given various chores in addition to her normal duties; that as
a result she was hard pressed to keep abreast of her work; and
that no other employees operating supply carts were required
to perform such additional chores.
Here, again, there was no denial nor explanation by Re-
spondent of the conduct with which it was charged, and, while
the harassment described by Doyle seems to have been rather
petty, I am constrained to find, absent any denial or explana-
tion, that she was singled out for such treatment because of her
union activity and that Respondent thereby violated Section
8(a)(3) and (1)?
4. The discharge of Doyle
Doyle had worked in the dietary department at St. Joseph
since August 1968. It has been found above that she was a
known union adherent, who testified in April for the Union in
the representation case, and that in September she was sub-
jected to discriminatory treatment in the matter of work as-
signments . As related above, on October 4, she was granted
"extended leave" because of an impending operation, and, on
December 13, when she applied to Henry for reinstatement,
she was notified of her discharge, allegedly for overstaying her
leave. The General Counsel contends that the true reason for
her discharge was her union activity.
Respondent has a policy of granting 12 days' paid sick
leave a year and, in addition, its employee manual contains the
following provision for "extended" sick leave:
In case of illness or injury when a permanent full time
employee finds it necessary to request a leave of ab-
sence after having used all of his sick hours and vaca-
tion days, the hospital may grant up to a total of 60
days of extended sick leave. Following the last such
extended sick leave day, the employee will be terminat-
ed. Upon the employee's recovery and ability to return
to work from such disability, as certified by his physi-
cian, the Infirmary will make an earnest effort to place
that employee in his previous position or another posi-
tion in the hospital commensurate with his skills and
qualifications, although it is not bound to do so. If the
employee is rehired under these conditions, his prior
service will be restored.
This would seem to mean that an employee on extended
sick leave is entitled to reinstatement in his former job, if he
returns before his leave expires, but not if he overstays his
leave, in which case he must wait for the first available open-
ing.8
There was no dispute that on October 4, Doyle was ad-
vised by her doctor to undergo surgery for an ulcer; that on the
same day she discussed with Henry the matter of extended
leave to cover the period of her hospitalization; and that it was
agreed that such leave would start on October 12, it being
contemplated that Doyle would continue to work for several
days after October 4. However, due to illness Doyle was able
to work thereafter only on October 5, and she entered the
hospital on October 8.
It was, also, not disputed, and it is found, that in mid-
November, while Doyle was still recuperating, she received
a call from Supervisor Wise; and that, after informing Wise
that her leave would end on December 12,9 Doyle asked her
to check with Henry as to whether Doyle had to report
before that date for any reason, which Wise promised to do.
On December 8, Doyle's doctor authorized her to return to
work subject to the condition that she not lift any weight in
excess of 15 pounds. The next day, when Doyle reported to
Wise and advised her of the foregoing limitation on her
capabilities, Wise told her to return on the 13th and speak
to Henry, who was then out of town. On the 13th Doyle met
with Wise and Henry and the latter told Doyle that she had
already been terminated because her leave had expired on
December 5, the starting date having been moved back to
October 5, which was her last workday. Doyle testified that
she protested to Henry that she had not been told of any
change from the original understanding that her leave
would start on October 12, and that Wise had promised to
check with Henry and notify Doyle if there had been any
change in the date of expiration of her leave; that, acknowl-
edging that Wise had broached the matter to her, Henry
said she had tried to call Doyle the preceding week but
could not reach her; that, when Doyle continued to com-
plain about the absence of any prior notice to her of the
change in her leave penod, Henry retorted that she didn't
like Doyle's attitude at the moment nor the attitude she had
displayed "for several months before"; that, when Doyle
asked for particulars, Henry explained that she was re-
ferring to Doyle's absenteeism ; that, when Doyle asserted
that her absences were due to illness and asked how such
absences could reflect on her attitude, Henry answered,
"Well, you know what I mean," glancing at Wise, and both
supervisors smiled; and that Henry then told Doyle she
could appeal to Respondent' s personnel office, which might
reconsider its decision to terminate her, but, in view of
Doyle's attitude, Henry would recommend against it. Doyle
8 This construction of the afore -quoted provisions is confirmed by Doyle's7 Doyle also testified about being given extra duties "several times" during testimony concerning the explanation of the provisions given her by Henry,
a 4-month period while assigned to the iced tea station. However, she did not which is discussed below.
say that she was the only one assigned such extra duties, and her testimony 9 This presumably was based on Doyle's belief that she had been granted
with regard to that matter was unclear in several other respects . Accordingly, 60 days' leave from October 12 to December 12. The basis for such belief
no violation finding is based thereon is discussed below, at fn. 14.
EXTENDICARE OF KENTUCKY, INC. 401
did not pursue the matter further. She has not been rehired.
Although Henry's version of the interview differed in
some respects from Doyle's, I credit the latter, because she
impressed me as a more candid and forthright witness.
Moreover, although Wise was admittedly present through-
out the interview, she was not called to corroborate Henry.
Coffey, Respondent's personnel director, testified,
without contradiction, that Doyle was terminated as of De-
cember 6; that such decision originated with him; that it was
influenced solely by Doyle's record of absenteeism and tar-
diness ; that, notwithstanding her termination, he would
have rehired her when she returned if there had been a
suitable opening for her; and that there was no opening of
any kind in the dietary department at that time nor at any
time thereafter. There was, moreover, no evidence that dur-
ing that period there was a suitable opening for Doyle in any
other department of the hospital.
Before proceeding to an evaluation of the foregoing
evidence, it may be in order to consider what the General
Counsel's burden is here. Under Board case law, the Gener-
al Counsel may establish discriminatory motivation for
Doyle's discharge or for the failure to rehire her either (1)
through direct evidence in the form of an out-of-court ad-
mission by Respondent that it would have taken Doyle back
but for her union activity or (2) through circumstances war-
ranting an inference that her union activity was the true
reason for the failure to reinstate or reemploy her. In a case
such as as this such an inference would normally have to be
supported, inter alia, by a sufficient showing that the failure
to take Doyle back constituted disparate treatment.
As to (1) above, the General Counsel cites Doyle's
aforenoted testimony, which has been credited, that in her
December 13 interview with Henry the latter declared that
she did not like the attitude Doyle had displayed in the past
and for that reason would not recommend that Doyle be
rehired. However, even if it be assumed that Henry was here
referring to Doyle's attitude toward the Union,10 that would
fall short of an admission by Henry that she had already
recommended that Doyle be terminated because of such
attitude or that it had been a factor in the decision to termi-
nate her. As already noted, Coffey testified that the decision
to terminate Doyle originated with him and was based on
her attendance record. While he acknowledged that he con-
sulted Henry before implementing that decision, he denied
that she made 'any reference to Doyle's attitude, insisting
that the substance of her comments was that, while Doyle
was an excellent worker, she had for 2 years been chronical-
ly tardy and absent due to illness and other causes. As to
any discussion between Henry and Coffey about Doyle
after she tried to return, the record contains only Henry's
testimony that, a day or so after December 13, she called to
Coffey's attention the medical restriction on Doyle's lifting
activity. In any event, any adverse recommendation that
Henry may have made on that occasion could have played
no effective role in the decision not to rehire Doyle after her
termination, if one accepts the aforenoted testimony of Cof-
fey that there had been no suitable opening for her since
such termination. As that testimony was not disputed, and
10 As already related , according to Doyle, Henry explained that she had
in mind only Doyle's absenteeism
no other reason appears for rejecting it, it is credited.
Accordingly, even if it be found that Henry impliedly
threatened on December 13 that she would recommend
against Doyle's rehire because of her union activity, there
is insufficient basis in the record for finding either that she
carried out her threat or that any adverse recommendation
she might have made on or after December 13 was a factor
in the decision not to take Doyle back. And, even if it be
inferred from Henry's foregoing remarks that she had al-
ready recommended to Coffey that Doyle be terminated,
and that such recommendation was inspired by Doyle's
union activity, such inference must be weighed against
Coffey's aforenoted, uncontradicted testimony that all he
discussed with Henry on or before December 6 was Doyle's
performance and that her poor attendance record was the
only reason for his decision to terminate her. As will appear
from the discussion of Doyle's attendance record, below,
Coffey's foregoing explanation of his action does not seem
implausible. Thus, all things considered, I do not regard any
inference to be drawn from Henry's remarks as sufficiently
cogent to prove a discriminatory motive for the decision to
terminate Doyle on December 6.
As for circumstantial evidence of discrimination
against Doyle on or after December 6, it is conceded that
Respondent was then well aware of Doyle's union activity,
including her testimony for the Union in April, and that
about December 13, Respondent learned that a Board elec-
tion on the Union's petition had been scheduled for Decem-
ber 29.11 Moreover, Respondent's union animus is amply
demonstrated by the findings heretofore made, including
the discrimination against Doyle with regard to work as-
signments.12 However , as against this, it should be noted
that in August at a time when Doyle's union activity was
already known to Respondent, she was promised a wage
increase by Wise.
There remains to be considered what evidence there is
on the crucial issue whether Respondent's refusal to take
Doyle back constituted disparate treatment. On that score,
there must be considered initially the matter of the sufficien-
cy of the notice given Doyle of the actual date of expiration
of her extended leave. While the record does not show this,
it seems proper to infer that Respondent would normally
make a reasonable effort to advise an employee in Doyle's
situation of the date that she would have to return from an
extended leave or forfeit her job rights. With regard to that
matter, the record contains the testimony of Doyle that on
October 4, she was counseled by Henry to take 60 days'
leave and, on the assumption that Doyle would work for
several more days, it was agreed that her leave would run
from October 12 to December 12. While the documentary
evidence supports Henry's contrary testimony that on Octo-
See Respondent 's brief to the Trial Examiner at p. 2
Official notice is also taken of Trial Examiner Libbin 's Decision in
Extendicare, Inc, Case 9-CA-6478, which issued on February 29, 1972, and,
in the absence of exceptions , was adopted by an unpublished Board order
on March 29 , 1972. The respondent in that case was the instant Respondent's
parent and the employees involved worked at St. Joseph . Violations of Sec
8(a)(1) and (3) were found based on events that occurred during the instant
campaign to organize the employees of St Joseph . The 8(a)(3) violation
consisted in suspension of one employee for 3 days and the 8(a)(1) violations
involved surveillance of union activity . It should be noted, however, that
none of the principal actors in the case at bar played any significant roles
in that case, which involved mainly only maintenance department personnel
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 4 Doyle was initially granted leave only from October
12 to November 12, and such evidence shows further than
on November 10, the starting date of her leave was moved
back from October 12 to October 7,13 and the expiration
date was extended from November 12, to December 6,14 it
was conceded that no notice was given her of this action nor
was she told that she was due to return on December 6.
Moreover, notwithstanding Henry's denial, I credit Doyle's
testimony that at the December 13 interview Henry ac-
knowledged that she had been told by Wise of Doyle's
request that she be notified, if there was any need for her
to report before December 12. There remains to be consid-
ered Henry 's insistence at the December 13 interview, as
well as at the hearing, that she tried to reach Doyle on the
telephone before her leave expired but had been unsuccess-
ful. While Henry was not in general an impressive witness,
there was no contradiction of her testimony that she did
attempt to reach Doyle and there was nothing inherently
improbable in such testimony nor any circumstantial evi-
dence that would warrant rejecting it.15 Accordingly, it is
found that Henry did attempt to reach Doyle by telephone
before her leave expired. It may be urged that Henry should
have realized that the matter was of sufficient importance
to Doyle to warrant resort to other, more reliable means of
communication. However, the fact that Henry did make
some effort to reach Doyle argues against any intent on her
part to keep Doyle in the dark about the expiration date of
her leave.
There is, in any case, no evidence that Doyle would
have been able to return on December 6, even if she had
known that her leave would end on that date. Her own
testimony was that her doctor did not discharge her until
December 8 (with the caveat that she refrain from heavy
lifting) and that pursuant to such discharge she reported on
December 9. Thus, even if it be assumed that, for discrim-
inatory reasons, she was kept in the dark about the fore-
going change in her leave period, there would be insufficient
basis for finding any casual relation between that circum-
stance and her termination.
13 October 6 was the last day for which she was paid, she having ceased
work on October 5, and used up the balance of her paid, sick leave on the
6th. Doyle's own testimony shows that the original date of October 12, for
the inception of her leave was contingent upon her working on the 6th, 7th,
and 8th, as well as the 5th, and there is insufficient basis in the record for
inferring that the aforenoted substitution of October 7 for October 12 was
due to any reason other than Doyle's failure to work on those 3 days.
14 The leave application signed by Doyle on October 4 shows that the
initial grant of leave to her had a "tentative" expiration date of November
12. Although Doyle insisted at the hearing that on October 4 she was granted
60 days' leave, to begin on October 12, she did not unequivocally deny that
the foregoing application had been completed in its present form when she
signed it. (While at one point she professed not to recall seeing the November
12 date thereon, she elsewhere acknowledged that she did not read the
application before signing it .) Accordingly, it is found that initially she was
granted leave only from October 12 to November 12. At the same time, I am
persuaded by Doyle' s testimony that she honestly believed that such grant
was for 60 days. It seems likely that she gained this impression from a
reference by Henry to the 60-day provision in the employee manual or from
Henry's assurance that she would be granted the maximum of 60 days, if she
needed it.
15 While I credit Doyle's testimony that on December 13 she told Henry
that she had been home during the period of the alleged telephone calls,
Doyle did not offer any testimony about her actual whereabouts during that
period . There is therefore insufficient basis in the record for finding that
Doyle was in fact at home throughout that period.
The General Counsel's final contention that Doyle was
subjected to disparate treatment, when Respondent decided
to terminate her for failing to return on December 6, is
prima facie negated by the language of Respondent's afore-
quoted extended sick leave policy, which requires the termi-
nation of any employee for overstaying such a leave.16
Nevertheless, as the General Counsel points out in his brief,
certain testimony by Coffey seems to imply that he would
have waived this requirement, if Doyle had been considered
a sufficiently valuable employee; for, as already related, he
testified that on December 6, he reviewed Doyle's case and
decided not to waive the rule for her in view of her record
of absenteeism and tardiness. On this point, Respondent's
timecards show that from January 1 through October 6,
1971,17 Doyle was absent from work a total of 19 days,'s
including 11 days charged to paid sick leave ,19 and was
tardy a substantial number of times; and, Doyle admitted
that at least one of her annual performance ratings con-
tained an unfavorable comment on her absenteeism.20
There was no evidence that Respondent had waived the
60-day limit on extended sick leave for any other employee
under comparable circumstances.21
Under all the circumstances, there appears to be no
preponderance of evidence that the termination of Doyle on
December 6, for overstaying her leave constituted disparate
treatment 22
16 Doyle admitted, moreover, that on October 4, Henry explained that
under Respondent's extended leave policy she would retain her seniority only
if she returned before the end of leave and that, if she returned thereafter,
she would lose her seniority and have to wait for the first , available opening.
17 This was the only period for which any documentary evidence was
offered concerning Doyle's-attendance . There was no contention nor evi-
dence that her record was any better during prior years.
19 This was in addition to 10 days' paid vacation received by Doyle during
that period.
19 There was no explanation for the apparent discrepancy between the
timecards and the testimony in the record than on October 6 Doyle used up
the last of the 12 days of paid sick leave allowed her each year.
20 The General Counsel disputes the accuracy of Coffey 's reference at the
hearing to Doyle's "inordinate use of sick leave ." Pointing out that on Octo-
ber 4 Doyle had not quite used up her alloted paid sick leave , the General
Counsel asks "how an employee can inordinately use sick leave and at the
same time have sick leave available for her use?" This query misses the point
of Coffey's testimony . As the General Counsel recognizes , Coffey was evi-
dently speaking only of paid sick leave and within that frame of reference
Doyle's use of all or nearly all of her annual allowance within little more than
9 months might well be considered inordinate in comparison with such
employees as used little or more of their paid, sick leave during that period.
The record shows that in 1970 (before the advent of the Union) Simmons
was taken back after an absence of 5 months due to disability and was given
a "sitting-down" job until she completed her recovery. However , it does not
appear whether Simmons was "terminated " after 60 days' absence and taken
back only because of the fortuitous existence of a vacancy when she returned
or whether she retained her status as an employee with full seniority rights
until she returned , thereby enabling her to "bump" a junior employee. More-
over, there was no evidence that Simmons had an absenteeism or tardiness
record comparable to Doyle 's nor any other basis for comparing the relative
merits of the two as employees . Finally, Coffey testified that there was a
factor in Simmons' case , which Respondent thought entitled her to special
consideration-namely, that her disability had been caused by a job-related
injury. It seems not implausible that Respondent would feel greater obliga-
tion to an employee injured while at work than would otherwise be the case.
22 In explaining why, on November 10, he extended Doyle's leave to De-
cember 6, Coffey averred that Respondent "wanted her back ." It may seem
strange that he reached a different conclusion about Doyle on December 6,
when the question of terminating her for overstaying her leave arose . Howev-
er, any contention that this Change in attitude was due to her union activity
runs afoul of the fact that such activity was already well known to Coffey
on November 10, when he extended her leave . Moreover, in view of the fact
that the retention of Doyle after December 6, would have been in derogation
EXTENDICARE OF KENTUCKY, INC. 403
Nor, was it sufficiently shown that, in failing to take
Doyle back on and after December 13, Respondent showed
her less consideration than it had shown to other employees.
The aforequoted rule states only that, once an employee has
been terminated for overstaying his leave, Respondent will
make an "earnest effort" to place him in his previous posi-
tion or in some other suitable position, but only upon "the
employee's recovery and ability to return to work ... as
certified by his physician." Even if it be assumed that
Doyle's condition, when she returned on December 9, with
a medical restriction on her lifting activity, constituted a
proper certification of her "recovery and ability to return to
work" within the intendment of that rule, there is nothing
in the record to contradict Coffey's denial that since De-
cember 1, Respondent has had no opening in the dietary
department of any kind, let alone one that was suitable for
an employee in Doyle's condition, and there is no evidence
that any such opening existed anywhere in the hospital.
Accordingly, it is concluded that there is insufficient
evidence of discrimination against Doyle with respect to her
termination and the failure to rehire her, and it will be
recommended that the relevant allegations of the complaint
be dismissed.
IV THE REMEDY
It having been found that Respondent violated Section
8(a)(3) and (1) of the Act, it will be recommended that it be
ordered to cease and desist therefrom and take appropriate,
affirmative action.
Since the violations found herein consist in discnmina-
tion against employees with respect to their working condi-
tions, a broad cease-and-desist order is warranted.
CONCLUSIONS OF LAW
.1. Extendicare of Kentucky, Inc., is an employer within
the meaning of Section 2(5) of the Act and is engaged in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act. 1
2. The Union is a labor organization under the Act.
3. By imposing more onerous work tasks on Doyle and
Simmons, in order to discourage employees union activity,
Respondent has violated Section 8(a)(3) and (1) of the Act.
4. By interrogating Simmons about her union activity
and by maintaining an unduly broad no-solicitation and
no-distribution rule, Respondent has' violated Section
8(a)(1) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
of Respondent 's published rule, it would have been appropriate for Coffey
at that time to scrutinize Doyle's record more carefully than was the case on
November 10, when all that was involved was the question of granting a
discretionary extension of her leave.
Act, there is issued the following recommended:23
ORDER
Extendicare of Kentucky, Inc., Louisville, Kentucky,
its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in, and concerted activi-
ties on behalf of, Service Employees' Internation Union
AFL-CIO, Local 557, or any other labor organization, by
imposing on employees onerous work assignments because
of their union activity.
(b) Forbidding solicitation by employees on behalf of
a union on company premisis during nonwork time, and
forbidding employees to distribute union literature in non-
work areas during nonwork time.
(c) Interrogating employees about their union activities
or sentiments.
(d) In any other manner, interfering with, restraining,
or coercing its employees in the exercise of their right to
self-organization, to form, loin, or assist the above-named
Union, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent
permitted by the proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:'
(a) Post at its hospital in Louisville, Kentucky, copies
of the attached notice marked "Appendix,"24 Copies of said
notice, on forms to be provided by the Regional Director for
Region 9, shall, after being duly signed by its representative,
be posted by Respondent immediately upon receipt thereof,
and maintained by it for 60 consecutive days thereafter, in
conspicuous places. Reasonable steps shall be taken to in-
sure that such notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of receipt of this Order,
what steps have been taken to comply herewith.25
IT IS FURTHER ORDERED that all allegations of the com-
plaint as to which no violations has been found be dis-
missed.
23 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations and recommended Order herein shall, as
proyided in Sec 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions , and order and all objections
thereto shall be deemed waived for all purposes
24 In the event that the Board's 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 Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
25 In the event that this recommended Order is adopted by the Board, after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 9, in writing, within 20 days from the date
of this Order, what steps have been taken to comply herewith."