Hacienda de Salud-Espanola

National Labor Relations Board - Board Decisions

Jun 26, 1995

317 N.L.R.B. 962 (N.L.R.B. 1995)

962
317 NLRB No. 135
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All subsequent dates are in 1994.
2 Although the judge did not cite in his decision Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), it is clear his opinion achieved the analytical
objectives established in that case. See also Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982).
Pilot Development Southwest d/b/a Hacienda de
Salud–Espanola and Erlinda Garcia. Case 28–
CA–12573
June 26, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On March 29, 1995, Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified below and to adopt the rec-
ommended Order as modified.
1. The Respondent asserts that on May 3, 1994,1 it
discharged certain certified nurses aides, who were em-
ployed at the Respondent’s nursing home, because they
abandoned their posts en masse, thus leaving the Re-
spondent’s residents unattended and at risk. After hear-
ing all the evidence, the judge concluded that the Re-
spondent discharged the employees because it knew or
suspected that at the time they left their posts they
were airing their work-related grievances to a news re-
porter—activity protected by the Act—and not because
of the alleged abandonment. In reaching this conclu-
sion, the judge relied in part on a factual finding that
some of the discharged nurses aides were on a sched-
uled midmorning break while they were speaking with
the reporter.
Because the record does not support the judge’s
finding that some of the certified nurses aides were on
a scheduled workbreak, we do not rely on it. After a
full review, we nevertheless conclude that the record
is replete with other evidence to support the judge’s
determination that the nurses aides were discharged be-
cause they engaged in activity protected by Section 7
of the Act.
Most persuasive in this regard is the testimony of
the Respondent’s chief executive officer, Alan A. Eng-
land, who admitted that he had extended a blanket
offer to consider the reinstatement at entry-level wages
of those nurses aides that were discharged, a point that
severely undermines the Respondent’s position that the
discharges were based solely on the alleged abuse and
neglect of residents. As the judge aptly stated, ‘‘[I]f
Respondent had truly regarded the [nurses aides’ de-
parture from work] as rising to the level of patient ne-
glect and abuse . . . then it seems illogical that it
would have even considered rehiring any one of
them.’’ Furthermore, it was the Respondent, and not
the nurses aides, that compounded the risk to the resi-
dents by abruptly terminating those employees without
fully investigating the reasons for their brief departure
and before any significant alternative provisions could
be made for the residents’ safety and security. Finally,
it is notable that the Respondent based its discharge of
two other nurses aides on the same grounds of aban-
donment despite the fact that those aides were not even
on duty at the time of the meeting with the reporter.
For these and other reasons stated in the judge’s deci-
sion, we adopt his conclusion that the Respondent vio-
lated Section 8(a)(1) of the Act by terminating the
nurses aides.2
2. We further adopt the judge’s conclusion that the
Respondent independently violated Section 8(a)(1) of
the Act by notifying New Mexico Rehabilitation, Inc.
that Charging Party Erlinda Garcia would not be per-
mitted to work on its premises for that firm, but we
shall modify the judge’s remedy.
The judge found that on May 1 Garcia notified the
Respondent that on or about May 14 she would be
leaving the Respondent’s employ to begin working for
New Mexico Rehabilitation, Inc., a company whose
employees performed services on the Respondent’s
premises. After the Respondent unlawfully discharged
Garcia on May 3, the judge found that the Respondent
again violated the Act when it advised New Mexico
Rehabilitation, Inc. that it could not employ Garcia on
the Respondent’s premises.
In order ‘‘to restore, so far as possible, the status
quo that would have obtained but for the wrongful
act,’’ NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S.
258, 265 (1969), we shall modify the judge’s backpay
remedy to make clear that Respondent’s obligation to
make Garcia whole has two components. First, for the
period of May 3 to 14, the Respondent shall make
Garcia whole for any loss of earnings and other bene-
fits suffered as the result of her discharge from Re-
spondent’s employ. Second, beginning May 14, the
Respondent shall make Garcia whole for any loss of
earnings and other benefits suffered as a result of the
Respondent’s precluding her from working for New
Mexico Rehabilitation, Inc.
AMENDED REMEDY
Substitute the following for the third paragraph of
the remedy section.
963HACIENDA DE SALUD–ESPANOLA
‘‘It shall also be ordered to make each of the above-
named employees whole for any losses of pay and
benefits she/he may have suffered because of the un-
lawful terminations of May 3, 1994, and to make
Erlinda Garcia whole for any losses of pay and bene-
fits she may have suffered because of the unlawful
preclusion by the Respondent of her employment with
New Mexico Rehabilitation, Inc., which was scheduled
to begin on May 14, 1994, with backpay to be com-
puted on a quarterly basis, making deductions for in-
terim earnings, F. W. Woolworth Co., 90 NLRB 289
(1950), and with interest to be paid on the amounts
owing as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Pilot
Development Southwest d/b/a Hacienda de Salud–
Espanola, Espanola, New Mexico, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer Erlinda Garcia, Mary Romero, Lorenzo
Pino, Ronald Trujillo, Joe Ocana, Rosemary
Vialpando, Efren Moya, Mary Muniz, Teresa Coffeen,
Mary Rose Martinez-Gonzales, and Sarah Vences im-
mediate and full reinstatement to the positions of CNA
from which they were discharged on May 3, 1994, dis-
missing, if necessary, anyone who may have been
hired or assigned to any of those positions or, if any
of those positions no longer exists, to a substantially
equivalent position, without prejudice to seniority or
any other rights and privileges, and further, make
whole those employees for any loss of pay and bene-
fits suffered as the result of those discriminatory acts,
and further, make whole Erlinda Garcia for any loss of
pay and benefits suffered as the result of her pre-
clusion from employment with New Mexico Rehabili-
tation, Inc., and, in addition, provide appropriate train-
ing for Teresa Coffeen and an opportunity for her to
become licensed as a CNA, in the manner set forth in
the amended remedy section of the decision.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise interfere with,
restrain, or coerce you for temporarily ceasing work to
protest terms and conditions of employment, or for en-
gaging in other concerted activity for mutual aid or
protection.
WE WILL NOT report as patient neglect or abuse to
the New Mexico Department of Health Licensing and
Certification Bureau, or to any other agency, activity
by you that is protected by the National Labor Rela-
tions Act.
WE WILL NOT bar from our premises, as employees
of another employer, employees whom we have dis-
charged for a motive unlawful under the National
Labor Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Erlinda Garcia, Mary Romero,
Lorenzo Pino, Ronald Trujillo, Joe Ocana, Rosemary
Vialpando, Efren Moya, Mary Muniz, Teresa Coffeen,
Mary Rose Martinez-Gonzales, and Sarah Vences im-
mediate and full reinstatement to the positions of cer-
tified nurses aides from which they were discharged on
May 3, 1994, dismissing, if necessary, anyone who
may have been hired or assigned to any of those posi-
tions or, if any of those positions no longer exists, to
substantially equivalent positions, without prejudice to
seniority or any other rights and privileges previously
enjoyed, and WE WILL make them whole for any loss
of earnings and other benefits suffered as a result of
our unlawful acts, including making whole Erlinda
Garcia for any loss of pay and benefits suffered as a
result of her preclusion from employment with New
Mexico Rehabilitation, Inc., less any net interim earn-
ings, plus interest, and WE WILL provide appropriate
training for Teresa Coffeen and an opportunity for her
to become licensed as a certified nurses aide, which
we prevented her from doing prior to her discharge.
WE WILL notify each of them that we have removed
from our files any reference to their discharges and
that the discharges will not be used against them in
any way.
WE WILL notify the New Mexico Department of
Health Licensing and Certification Bureau that the
above-named employees were engaged in activity pro-
tected by the National Labor Relations Act on May 3,
1994, and WE WILL make all reasonable efforts to have
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless stated otherwise, all dates occurred during 1994.
2 In its answer to complaint, Respondent admits the allegation that
in the course and conduct of those operations during the 12-month
period ending June 3, it derived gross revenues in excess of $1 mil-
lion and further admits the allegations that at all material times it
has been an employer engaged in commerce within the meaning of
Sec. 2(2), (6), and (7) of the Act and a health care institution within
the meaning of Sec. 2(14) of the Act.
that agency remove from its records and files all ref-
erences to our report about that activity and the pro-
ceedings arising as a result of it, and WE WILL inform
those employees in writing of the actions that we have
taken to accomplish those objectives.
WE WILL notify New Mexico Rehabilitation, Inc.
that we have no objection to the employment of
Erlinda Garcia on our Espanola premises, should that
firm choose to hire her and employ her at that loca-
tion, and WE WILL inform Garcia in writing that this
has been done.
PILOT DEVELOPMENT SOUTHWEST D/B/A
HACIENDA DE SALUD–ESPANOLA
Richard C. Auslander, for the General Counsel.
Craig B. Fretwell, Esq. (Northern New Mexico Legal Serv-
ices), of Las Vegas, New Mexico, for the Charging Party.
Rita G. Siegel and, with her on brief, Peter J. Adang, of Al-
buquerque, New Mexico, appearing for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Espanola, New Mexico, on January 31,
1995. On July 13, 1994,1 the Regional Director for Region
28 of the National Labor Relations Board (the Board) issued
a complaint and notice of hearing, based upon an unfair
labor practice charge filed on June 3, and amended on July
7, alleging violations of Section 8(a)(1) of the National
Labor Relations Act (the Act). All parties have been afforded
full opportunity to appear, to introduce evidence, to examine
and cross-examine witnesses, and to file briefs. Based upon
the entire record, upon the briefs that were filed, and upon
my observation of the demeanor of the witnesses, I enter the
following
FINDINGS OF FACT
I. INTRODUCTION
The answer to complaint admits that 11 employees, classi-
fied as certified nurses aides (CNAs)—Erlinda Garcia, Mary
Romero, Lorenzo Pino, Ronald Trujillo, Joe Ocana, Rose-
mary Vialpando, Efren Moya, Mary Muniz, Teresa Coffeen,
Mary Rose Martinez-Gonzales, and Sarah Vences—were dis-
charged on May 3 by Pilot Development Southwest d/b/a
Hacienda de Salud–Espanola (Respondent). It is a New Mex-
ico corporation, with an office and place of business in
Espanola, New Mexico, where it engages in operation of a
licensed long term health care facility.2 In addition, the com-
plaint alleges that, on that same date, Respondent notified the
New Mexico State Department of Health Licensing and Cer-
tification Bureau that the 11 employees had abused and/or
neglected patients. Respondent denied that allegation, but, in
its answer, ‘‘affirmatively states that it notified the New
Mexico Department of Health Licensing and Certification
Bureau, as required by state law and its provider agreement,
that the Certified Nurse Aides on the day shift had walked
off the job.’’
The complaint alleges that the discharges, as well as the
notification to the State Bureau, had been motivated by the
discharged employees’ concerted activities protected under
the Act and, also, to discourage employees from engaging in
such activities or other concerted activities for the purposes
of collective bargaining or other mutual aid or protection. As
to the statutorily protected activity forming the basis for the
unlawful motivation allegations, the complaint alleges that
nine of the employees concertedly left their work areas on
May 3 to conduct a meeting regarding their dissatisfaction
with Respondent’s changes in hours and in other employ-
ment terms and conditions. It further alleges that the two re-
maining employees—Martinez-Gonzales and Vences—with-
held their services on that same day because of their dis-
satisfaction with those changes.
Respondent denies that its foregoing actions had resulted
from the motives alleged by the General Counsel. Instead, in
its answer it ‘‘states that it terminated the employment of
[nine of] the employees . . . because they abandoned the pa-
tients in their care, in violation of state law.’’ As to Mar-
tinez-Gonzales and Vences, the answer asserts that their ter-
minations occurred ‘‘because they failed to show up for work
and failed to call prior to their shift to notify Respondent of
their absence, in clear violation of Respondent’s ‘no call, no
show’ policy.’’ In short, contends Respondent, its actions had
been taken ‘‘solely to protect the health, safety and well
being of the patients in its charge.’’
In addition, it is undisputed that one of the alleged
discriminatees, Erlinda Garcia, had given notice on May 1
that she would be quitting her employment with Respondent
effective on or about May 14 to work for New Mexico Reha-
bilitation, Inc. (Rehabilitation). It had a contract with Re-
spondent whereby some of its employees performed work on
Respondent’s premises. Respondent admits that on May 3 it
notified Rehabilitation that Garcia would not be permitted on
Respondent’s premises to work for Rehabilitation. The com-
plaint alleges that the notification to Rehabilitation had been
the product of the same alleged unlawful motives as Garcia’s
and the other dischargees’ termination, but Respondent con-
tends that it merely did not want to employ on its premises
an employee whom it had terminated previously.
II. STATEMENT OF FACTS
As stated in subsection A, supra, Respondent operates a li-
censed long term care health facility in Espanola. From 1987
until approximately October 1994, management of that facil-
ity had been provided by Quality Health Systems, a manage-
ment company not named as a respondent in this proceeding.
From his office in Albuquerque, the chief executive officer
of Quality Health Systems, Alan A. England, had been re-
sponsible for overall management of Respondent at all times
material to this proceeding. Onsite management was supplied
by an administrator, Scott A. Nelson, and by a director of
nursing, Barbara Pacheco. Respondent admits that, at all ma-
965HACIENDA DE SALUD–ESPANOLA
terial times, Nelson and Pacheco had each been a statutory
supervisor and its agent.
During April and May, Respondent’s patient or resident
population had numbered approximately 100 persons, about
95 percent of whom were Medicare recipients. The physical
condition of approximately 50 of them was such that each
one required constant supervision or total care. The others
needed less constant, or only general, assistance and super-
vision. Meal, attire, bathing, and related services were pro-
vided to those patients primarily by CNAs employed by Re-
spondent, apparently with nurses providing all directly medi-
cal-related services.
By the beginning of May, dissatisfaction had arisen among
those CNAs. For example, Mary Rose Martinez-Gonzales
testified that she had applied for a vacation. But when she
spoke about that subject with Pacheco at that time, Pacheco
had replied that while the vacation had been approved by the
home office, Pacheco was not sure that she would approve
it due to staff shortages. In light of that shortage, added
Pacheco all CNAs were going to have to work an extra shift
each week and that shift would have to be an evening one.
Moreover, Pacheco stated that CNAs should not be expecting
any raises. On May 1, while in her office, Pacheco also men-
tioned to a few other CNAs that they would not be allowed
to take their vacations.
In fact, CNA staffing appears to have been an ongoing dif-
ficulty for Respondent, which is located northwest of Santa
Fe, New Mexico. Although England testified that the number
of CNAs employed there had always been appropriate, he
conceded that there had never been a large pool of CNAs
available to work in Espanola and, moreover, that temporary
agencies had been unable to continuously supply CNAs on
a routine basis. Indeed, Teresa Coffeen testified that while
she had been hired by Pacheco as a CNA and had performed
the same duties as CNAs since December 12, 1993, she had
never participated in classroom or hands-on instruction as a
CNA and, further, had never taken a state certification exam-
ination to be a CNA. Instead, Pacheco, apparently desperate
for CNAs, had simply hired Coffeen, with a promise that
CNA classes would be provided later to her, and had pre-
pared ‘‘a copy of the certificate, with a number and
[Coffeen’s] name on it.’’ When classes later became avail-
able, however, Pacheco told Coffeen not to take them be-
cause ‘‘it would raise suspicion among the other aides, won-
dering why [Coffeen] was taking the classes when, yet, I
should have been certified.’’
At meetings conducted on May 2 with some of the CNAs
and on May 3 with the remaining CNAs, Pacheco announced
the same messages that she earlier had communicated: that
there would be no raises and, moreover, that the staff short-
age would necessitate withholding approval of vacations and
would oblige each CNA to work an extra shift, during the
evenings, each week. Any CNA who failed to report for that
extra shift, warned Pacheco, would be terminated automati-
cally.
Those announcements upset the CNAs. A few had antici-
pated vacations requested previously. Some had young chil-
dren. Due to the need to care for them, an extra shift during
the evening was viewed as a hardship. Some asked Pacheco
if personnel could be secured from an employment agency,
but she did not answer those questions.
After the May 3 meeting, which had been conducted early
that morning, the CNAs who were working discussed
Pacheco’s announcements. Coffeen testified that some CNAs
‘‘mentioned trying to talk to Barbara and Scott prior to this,
and that no one had answers for them, Scott was never in
his office, if even in the facility, and we couldn’t . . . com-
municate with Barbara.’’ They decided, testified Coffeen,
that ‘‘we needed to find someone to hear us and listen to us,
so we decided to call a reporter and maybe somehow try to
negotiate or get Barbara’s and Scott’s—Nelson’s attention, to
maybe try to talk to us.’’ Her testimony in that respect was
encompassed by a stipulation that, if called to testify con-
cerning events on May 2 and 3, the other CNAs would tes-
tify in the same manner as, inter alia, Coffeen.
According to Coffeen and Erlinda Garcia, the other CNA
whose testimony was encompassed by the above-mentioned
stipulation, the reporter from the Rio Grande Sun, whom the
employees had contacted, showed up at Respondent’s facility
that same morning. At that time some of the CNAs were on
their break. Those CNAs, joined by the others who were then
not scheduled for break, walked out to the parking lot to
speak with him. Coffeen and Garcia testified that they de-
scribed their complaints about Respondent to the reporter. In
that respect, Coffeen specified ‘‘the underpay, the over-
worked, understaffed. Our main concern was because we
were understaffed, we couldn’t do our jobs right.’’ Similarly,
Garcia identified, as a complaint voiced to the reporter, ‘‘the
shortage of help.’’
As the CNAs’ conversation with the reporter progressed,
testified Coffeen, ‘‘Scott Nelson drove up and the reporter
asked to talk to him, and he refused and went into the build-
ing.’’ After that, Pacheco came out of the facility and asked
the CNAs ‘‘to come back in.’’ When they continued speak-
ing to the reporter, Pacheco returned to the facility and, then,
the police arrived. One officer went into the facility with
Pacheco, who had come out when the police had arrived.
Two other officers remained with the CNAs in the parking
lot. The first officer then came out and informed the CNAs
that they had been terminated. When the CNAs asked for a
reason, Coffeen testified, the officer replied ‘‘because we had
walked off our posts.’’
Two at a time, escorted by a police officer, the CNAs
were allowed to retrieve their personal belongings from Re-
spondent’s facility and were instructed to move their vehicles
from the facility’s premises. Two of the alleged discrim-
inatees—Martinez-Gonzales and Sarah Vences—had not
been at work that morning. When they learned what had oc-
curred, they decided to support their coworkers and refused
to report for work on their next scheduled shifts. As a result,
both were terminated by Respondent. In that connection,
Martinez-Gonzales testified that she had spoken by telephone
with Pacheco on May 3 and, during that conversation, ‘‘I just
told her I had joined the other CNAs.’’ According to Mar-
tinez-Gonzales, Pacheco responded, ‘‘‘Well, are you actu-
ally—then, actually, you are terminating yourself,’ she
goes.’’
In point of fact, Garcia—then classified as a CNA, but
who had been working for Respondent as a restorative
aide—had earlier given 2 weeks’ notice of intention to quit
employment with Respondent. Her intent was to commence
working with Rehabilitation, providing services to Respond-
ent’s patients inside of the Espanola facility. Following Gar-
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cia’s May 3 termination, England testified, Respondent in-
formed Rehabilitation ‘‘that we had no problem with her
being employed with them, but she could not work in [Re-
spondent’s] building.’’ In view of that situation, Rehabilita-
tion informed Garcia that she could not work for it, because
Respondent would not allow her to work in its facility.
In connection with those terminations, Respondent took
two additional actions. First, it notified the New Mexico De-
partment of Health Licensing and Certification Bureau of
what had occurred. Secondly, it challenged the dischargees’
claims for benefits under the Unemployment Compensation
Law. As to the latter, it was concluded ultimately that each
one had engaged in misconduct, by leaving a duty station
without permission, thereby leaving patients without adequate
care. Yet, as to the former, although the Bureau determined
that the names of seven discharged CNAs should be placed
on an abuse registry, that determination was reversed after a
hearing by the Department of Health. As a result of that
hearing, a hearing officer’s report issued, adopted by the sec-
retary for that department, in which it was concluded:
D. The State[’]s witnesses testified that patients were
not abused or neglected while the appellants were with
the reporter.
E. The State Investigative Team in their write up of
the three complaints concluded all were unsubstantiated.
Accordingly, I find that there was no harm resulting
from the appellants[’] actions.
III. DISCUSSION
Respondent does not contest the fact that, on May 3, the
11 CNAs had engaged in concerted activity. The nine who
were at work that morning went as a group to meet with the
reporter. Martinez-Gonzales and Sarah Vences were not
working at the time. But they later refused to report for
work, both to demonstrate their support for the discharged
CNAs and for the protest they had been trying to make about
employment terms.
Nor does Respondent challenge the proposition that, stand-
ing alone, the CNAs had engaged in activity protected by
Section 7 of the Act in voicing their complaints to the re-
porter. Approximately three of them had been on break.
There is no evidence that Respondent had a rule prohibiting
Espanola employees from leaving the facility and going out
to the parking lot while on break. As to those who were
working, and who ceased work to go to the parking lot with
the CNAs who were on break, they were unrepresented and
it has long been settled that unrepresented employees enjoy
a statutory right to temporarily cease working to protest
terms and conditions of employment. NLRB v. Washington
Aluminum Co., 370 U.S. 9 (1962).
To be sure, the ordinary situation involves employees
ceasing work to protest about employment terms directly to
their employer. Yet, as set forth in section II, there was testi-
mony that, during the May 2 and 3 meetings—when changes
were announced in vacation allowance, shift and raises—
some of the CNAs had questioned why Respondent could not
avoid those changes by securing personnel from employment
agencies. Their questions went unanswered; they were simply
ignored by Pacheco. Moreover, CNAs had attempted pre-
viously to speak with both Pacheco and Nelson about work-
ing conditions. Those attempts however, had been unsuccess-
ful. Nelson was rarely available. The CNAs had been unable
to establish a dialogue with Pacheco concerning employment
terms. As a result, they turned to calling a reporter to
‘‘maybe somehow try to negotiate or get Barbara’s or
Scott’s—Nelson’s attention, to maybe try to talk to us.’’
Consequently, the CNAs were speaking to the reporter as a
means for being able to communicate directly with Respond-
ent’s officials about employment terms.
The fact that such an approach is unconventional does not
strip it of protection otherwise extended to employee activity
under Section 7 of the Act. Workshifts, vacations, and raises
are each encompassed by the general phrase ‘‘hours, and
other terms and conditions of employment,’’ within the
meaning of Section 8(d) of the Act. Employees’ dissatisfac-
tion with such employment terms, or with their employer’s
changes in them, gives rise to ‘‘a controversy concerning
terms, tenure or conditions of employment,’’ thereby creating
a ‘‘labor dispute’’ within the meaning of Section 2(9) of the
Act. As a general proposition, Section 7 of the Act protects
employee communications to the public directly related to an
ongoing labor dispute, so long as those communications are
‘‘a part of and related to the ongoing labor dispute.’’ Allied
Aviation Service Co. of New Jersey, 248 NLRB 229, 231
(1980), enfd. 636 F.2d 1210 (3d Cir. 1980). Employees do
not ‘‘lose their protection under the ‘mutual aid or protec-
tion’ clause [of Section 7 of the Act] when they seek to im-
prove terms and conditions of employment or otherwise im-
prove their lot as employees through channels outside the im-
mediate employee-employer relationship.’’ Eastex, Inc. v.
NLRB, 437 U.S. 556, 565 (1978).
More specifically, the protection of Section 7 of the Act
encompasses employee communications about labor disputes
with newspaper reporters. Roure Bertrand Dupont, 271
NLRB 443 fn. 1 (1984). See also Automobile Club of Michi-
gan v. NLRB, 610 F.2d 438 (6th Cir. 1979); Community Hos-
pital of Roanoke Valley v. NLRB, 538 F.2d 607, 610 (4th
Cir. 1976). Obviously, that protection is not so broad that it
embraces employee communications disparaging the employ-
er’s reputation or the quality of its product, nor maliciously
motivated employee communications. But, Respondent does
not contend that any of the CNAs’ communications to the re-
porter constituted disparagement or had been motivated by
malice toward it. To be sure, the CNAs’ comments, if pub-
lished, undoubtedly would have left Respondent with an un-
comfortable public image. Still, ‘‘activity that is otherwise
proper does not lose its protected status simply because [it
is] prejudicial to the employer.’’ NLRB v. Circle Bindery,
536 F.2d 447, 452 (1st Cir. 1976).
Nor is that protection lost merely because one or more of
the CNAs may have voiced the protest in terms of staffing
shortages and its effects on patient care. After all, those
shortages had been what Pacheco had told the CNAs were
the reason for the vacation approval suspension and the
added weekly evening shift—the employment changes which
most immediately gave rise to the CNAs’ dissatisfaction. ‘‘In
the health care field patient welfare and working conditions
are often ‘inextricably intertwined.’ Misericordia Hospital
Medical Center v. NLRB, 623 F.2d 808, 813 (2d Cir. 1980).’’
NLRB v. Parr Lance Ambulance Service, 723 F.2d 575, 578
(7th Cir. 1983).
Nor can it be said that Martinez-Gonzales and Vences’ ac-
tivity had not enjoyed the protection of Section 7 of the Act.
967HACIENDA DE SALUD–ESPANOLA
To the extent that they refused to report in support of the
other CNAs’ protest about working conditions, those two
CNAs’ withholding of services enjoyed the same statutory
protection as that of their coworkers. To the extent that Mar-
tinez-Gonzales and Vences had been protesting the dis-
charges of those other nine CNAs, their purpose is no less
protected by Section 7 of the Act. Even assuming arguendo
that those nine terminations had been lawful ones, ‘‘employ-
ees who go on strike to protest a lawful discharge enjoy stat-
utory protection as economic strikers.’’ NLRB v. John Swift
Co., 277 F.2d 641, 646 (7th Cir. 1960). Obviously, a termi-
nation for striking violates the Act.
It is axiomatic that an employer cannot be found to have
effected an unlawfully motivated discharge without some
showing of knowledge—or, at least, suspicion, Henning &
Cheadle v. NLRB, 522 F.2d 1050, 1052 (7th Cir. 1975)—that
employees had been engaging in activity protected by the
Act. When he testified, England, the official who claimed to
have made the May 3 decision to terminate the CNAs,
seemed to be trying to imply, at least, that he had no knowl-
edge of why the CNAs had gone to the parking lot, although
careful review of the record of his testimony reveals that he
never firmly denied having possessed such knowledge.
During direct examination, England testified that, while in
his Albuquerque office during the morning of May 3, he had
received a telephone call from Pacheco. She reported, he tes-
tified, ‘‘that the nursing assistants were in the parking lot and
that she didn’t know what to do, basically.’’ It had been dur-
ing that same conversation, testified England, that he had in-
structed Pacheco to ask the CNAs ‘‘to come back to work;
if they refused to come back to work or basically stated they
would not come back to work, to advise them that they were
no longer employed, to leave the property; if they refused to
leave the property, to call the Police Department and have
them removed from the property.’’ Nevertheless, although
England claimed that he had never experienced a situation
such as the one on May 3 in his 20-some odd years in long-
term care, he denied that Pacheco had told him ‘‘why [the
CNAs] were in the parking lot[.]’’
England did not advance that testimony convincingly and,
on its face, it is inherently incredible that an official faced
with so extraordinary a situation, would not have asked, and
ascertained, the reason for the employees’ presence in that
location. That becomes an even more natural reaction in
view of England’s instructions to Pacheco to tell the CNAs
‘‘they were no longer employed’’ if they refused to return
to Respondent’s facility. By directing Pacheco to terminate
the CNAs, if they refused to return from the parking lot, he
would be stripping the facility of all CNAs who were work-
ing that day. Of course, he testified that he also had in-
structed Pacheco, during that same telephone conversation,
‘‘to pull all available nursing personnel as far as the RNs and
LPNs that were working, also the office personnel, and any-
one else that she could call in, to go to the floor to take care
of the residents.’’ Although a logical procedure, it is one that
is extraordinary. And it is simply illogical to conclude that
an employer would go to those extremes without first
ascertaining the intentions of the CNAs, including their rea-
son for having congregated in the parking lot. That is, with-
out first ascertaining what their problem was.
Not only was England’s assertion that he had not been told
why the CNAs were in the parking lot not credible, but sev-
eral factors show affirmatively that Respondent had a basis
for, at least, suspecting that their presence there was con-
nected to their dissatisfaction with the employment changes
announced by Pacheco. First, their presence in the parking
lot followed shortly after Pacheco conducted meetings during
which she had announced those changes. From the questions
to her by some CNAs, it should have been obvious that there
was CNA-dissatisfaction with her announced changes. Sec-
ond, Coffeen testified credibly that discussions by CNAs
about that dissatisfaction had been conducted so openly that
morning that the nursing staff had become aware that the
CNAs were upset over Pacheco’s announced changes.
The most obvious indicator to Respondent, that the CNAs
were in the parking lot in connection with the employment
changes announced by Pacheco, occurred while they had
been speaking with the reporter. As set forth in section II,
Coffeen testified that ‘‘Scott Nelson drove up, and the re-
porter asked to talk to him, and he refused and went into the
building.’’ Respondent represented that it had been unable to
present Pacheco as a witness because it could not locate her.
But it made no similar representation as to Nelson. Neverthe-
less, he never was called as a witness, leaving Coffeen’s tes-
timony uncontradicted.
There is no evidence as to exactly what the reporter had
said to Nelson—no evidence that he expressly had told Nel-
son that his presence was connected with the CNAs’ com-
plaints about their working conditions. Still, the record is de-
void of any evidence that would naturally have suggested to
Nelson some other reason for the CNAs to be meeting with
a reporter, as well as for the reporter to seek to speak with
Nelson. And the proximity of that meeting to Pacheco’s an-
nounced changes, as well as to the CNAs’ openly expressed
dissatisfaction with them, certainly gives rise to an inference
that Nelson would likely have known, or at least suspected,
that the parking lot meeting was connected to the CNAs’ dis-
satisfaction with those announced changes, as opposed to
some other subject.
Noteworthy was England’s apparent attempt to avoid such
an inference—to provide a defense that Nelson could not
have known of the CNA meeting with the reporter before the
discharge decision had been made. After his first telephone
conversation with Pacheco on May 3, testified England, she
had again called him, ‘‘shortly thereafter,’’ and had assert-
edly reported that ‘‘she had achieved’’ the actions which he
had instructed her to take during their earlier telephone con-
versation. According to England, she also said ‘‘that she had
contacted Mr. Nelson, who was at home, and he was on his
way in.’’ If so, that would mean that Nelson had not arrived
at the facility until after the discharge decision had been
made and the instruction to tell the employees ‘‘they were
no longer employed,’’ if they did not return to work, had
been ‘‘achieved.’’ Yet, that secondhand description of what
had occurred in Espanola that morning does not correspond
to firsthand accounts of events that had taken place there
during the morning of May 3.
As set forth in section II, supra, Coffeen testified that Nel-
son had arrived at Respondent’s facility before Pacheco came
out and asked the CNAs ‘‘to come back in.’’ Further, con-
trary to England’s secondhand account of what had sup-
posedly been ‘‘achieved,’’ there is no evidence that, when
she had done so, Pacheco also had told the employees that
‘‘they were no longer employed’’ if they did not return to
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work. Though Pacheco was not available to Respondent to
provide testimony, based upon firsthand knowledge, as to
what had occurred at Espanola that morning, so far as the
record discloses, Nelson certainly was. Nonetheless, Re-
spondent did not call him to challenge Coffeen’s description
of the point at which he had arrived that morning at the fa-
cility and to deny that he had done so before Pacheco spoke
with the CNAs in the parking lot.
I conclude that a preponderance of the credible evidence
establishes that Respondent knew, or at least suspected, that
the CNAs were meeting with the reporter in connection with
their dissatisfaction concerning the recently announced
changes in their employment terms. As described in section
I, Respondent argues that it had not been that reason which
had motivated it to discharge the CNAs on May 3. Rather,
it contends, those discharges, as well as its notice to the New
Mexico Department of Health Licensing and Certification
Bureau, had been motivated by its concern about the adverse
impact on patient care caused by the CNAs leaving the facil-
ity, even if only temporarily.
That is an emotion-laden contention, as I am sure has not
escaped Respondent. It raises the specter of injury, perhaps
death, of senior and infirm persons, individuals whom public
policy especially seeks to protect. Still, in the circumstances
presented here, that contention appears to partake more of
using the conditions of those patients as pawns to divert at-
tention from, and to conceal, Respondent’s actual unlawful
motive, than as a genuine concern which had truly motivated
its decision to discharge the CNAs on May 3.
First, the most obvious evidence supporting that conclu-
sion is that not all of the CNAs had been working at the time
of the parking lot meeting with the reporter. Some were on
break. Since there is no evidence that Respondent required
employees on break to remain inside the Espanola facility,
on call, it hardly has been shown that those CNAs somehow
abandoned patients by going to the parking lot during their
break. Yet, Respondent lumped them with CNAs who had
not been on break and fired the lot, all for the same pur-
ported reason.
Similarly, Martinez-Gonzales and Vences had not even
been working that morning. But they were also portrayed by
Respondent as having abandoned patients. True, they did not
report for work later that day, as scheduled. Yet, as pointed
out in section II, Respondent has experienced an ongoing
history of staff shortages at Espanola. But there is no evi-
dence that it usually followed a rule or policy of automati-
cally terminating CNAs, or any other personnel, for a single
failure to report for work as scheduled. Indeed, during her
meetings on May 2 and 3, Pacheco warned that CNAs would
be automatically terminated for failure to report for the
newly added evening shift. The fact that she made a special
point of announcing that penalty is, itself, some evidence that
Respondent had not followed a similar course, in the past,
every time a CNA failed to report as scheduled. Certainly,
had that been Respondent’s normal policy—of firing employ-
ees for failing to report when scheduled to do so—England
likely would have so testified. He did not.
Second, despite the generalized portrayal of helpless senior
and infirm patients thoughtlessly abandoned by CNAs on
May 3, the simple fact is that there is no evidence that the
CNAs had crassly neglected to provide care for patients by
going to the parking lot that morning. That was the conclu-
sion specifically reached as a result of proceedings conducted
by the state agency charged with evaluating claims of patient
neglect and abuse: ‘‘The State[’]s witnesses testified that pa-
tients were not abused or neglected while the [CNAs] were
with the reporter.’’ In this proceeding, Respondent has
shown not a single instance where a patient had been de-
prived of medical care—essential or otherwise—during the
time that the CNAs had been in the parking lot. Indeed, by
abruptly terminating them, Respondent created the very situa-
tion—lack of CNA services to patients—that it now casti-
gates the CNAs for causing, at least until alternative person-
nel could be located and put in place at the facility.
In that regard, the evidence is not disputed that after pa-
tients are returned to their rooms, or to other locations in the
facility, following breakfast, they are helped to take showers
by the CNAs. Aside from Coffeen’s testimony that she had
been ‘‘charting the consumption of food’’ by patients, there
is no evidence whatsoever that the CNAs had any other func-
tion to perform on May 3 when they met with the reporter.
In fact, uncontested is the testimony that it is during that par-
ticular point in the workday that some CNAs usually take
their breaks. As a result, the only consequence of meeting
with the reporter had been that delays occurred in charting
food and in aiding patients to take showers.
There is no evidence that a few minutes delay in shower-
ing adversely affected patients. Indeed, given the ongoing
shortage of Espanola staff, it seems likely that showers were
not ordinarily taken by patients at the same precise times
each day—that there was some variance in the exact times
when each patient took his/her daily shower. In these cir-
cumstances, it is not surprising that the Secretary of the De-
partment of Health agreed that there had been no abuse or
neglect while the CNAs had been meeting with the reporter.
Moreover, it is difficult to ascertain how Respondent’s offi-
cials, particularly England, could have genuinely believed
that there had been any abuse or neglect.
Third, this is not a situation where the CNAs had stealthily
left the facility, without anyone knowing about it, to meet
with the reporter. The credible evidence shows that, as they
left the facility, the CNAs had walked past two nursing sta-
tions and, also, the secretary’s office. Two or three nurses
had been present at one of the nursing stations and one of
them, Toni Nelson, had been informed expressly that the
CNAs were leaving the facility. In addition, the secretary had
been told, according to Coffeen, ‘‘That we were going out
to speak to a reporter.’’ Apparently, it had been that sec-
retary, or perhaps one of the nurses, who had told Pacheco
that the CNAs had gone to the parking lot, since she had to
obtain that information somehow in order to relate to Eng-
land, during their first telephone conversation that morning,
that the CNAs were in the parking lot.
Fourth, there is no evidence that the CNAs were leaving,
or planning to leave, work for the remainder of the day. Gar-
cia testified credibly that, after speaking with the reporter,
‘‘we were planning on going back to and continuing our du-
ties.’’ The secretary had been told expressly that the CNAs
were ‘‘going to speak to a reporter,’’ not that they were
walking out for the remainder of the day.
Finally, and perhaps most significantly, England testified
that he had instructed Administrator Nelson, ‘‘That if any of
the assistants would like to reapply for their positions, that
we would consider them on an individual basis.’’ Now, if
969HACIENDA DE SALUD–ESPANOLA
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 During the hearing, Respondent disclosed that it was negotiating
for the sale of the Espanola facility, but declined to identify the po-
Continued
Respondent had truly regarded the CNAs’ May 3 trip to the
parking lot as rising to the level of patient neglect and abuse,
as it claimed before the state agencies and now claims, then
it seems illogical that it would have even considered rehiring
any one of them. Yet, according to England, Respondent had
been willing to consider reemploying one or more of the
very CNAs whom Respondent was accusing of patient ne-
glect and abuse. Those positions, at least, seem diametrically
opposed and England never explained that inconsistency—
never explained his willingness to consider reemploying
CNAs whom he had purportedly discharged for misconduct
so supposedly severe.
I do not credit England’s testimony that he terminated the
11 CNAs because he genuinely believed they had engaged
in patient neglect and misconduct. I conclude, instead, that
Respondent terminated them because it knew, or at least sus-
pected, that they had ceased work to voice a concerted pro-
test about their employment terms and conditions. Moreover,
I further conclude that Respondent made its report about
their conduct to the New Mexico Department of Health Li-
censing and Certification Bureau to further retaliate against
the CNAs and, possibly also, to fortify its own pretextuous
defense to their terminations. Finally, Respondent admits that
it told Rehabilitation that it could not employ Garcia on Re-
spondent’s premises, as it had planned to do, because Re-
spondent would not permit a discharged employee to work
on its premises. Because that discharge had been unlawfully
motivated, the bar on allowing Garcia to work on Respond-
ent’s premises thereafter constitutes a direct consequence of
her unlawfully motivated termination and, accordingly, an
independent violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
Pilot Development Southwest d/b/a Hacienda de Salud–
Espanola committed unfair labor practices affecting com-
merce, in violation of Section 8(a)(1) of the National Labor
Relations Act, by terminating Erlinda Garcia, Mary Romero,
Lorenzo Pino, Ronald Trujillo, Joe Ocana, Rosemary
Vialpando, Efren Moya, Mary Muniz, Teresa Coffeen, Mary
Rose Martinez-Gonzales, and Sarah Vences on May 3, 1994,
by reporting the CNAs’ concerted protected activity as pa-
tient abuse and neglect to the New Mexico Department of
Health Licensing and Certification Bureau, and by notifying
the New Mexico Rehabilitation, Inc. that Erlinda Garcia
would not be permitted to work on its premises for that firm.
REMEDY
Having found that Pilot Development Southwest d/b/a Ha-
cienda de Salud–Espanola engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and, further, that it be ordered to take cer-
tain affirmative action to effectuate the policies of the Act.
With respect to the latter, it shall be ordered to offer Erlinda
Garcia, Mary Romero, Lorenzo Pino, Ronald Trujillo, Joe
Ocana, Rosemary Vialpando, Efren Moya, Mary Muniz, Te-
resa Coffeen, Mary Rose Martinez-Gonzales, and Sarah
Vences immediate and full reinstatement, as CNAs, to the
positions from which they were terminated on May 3, 1994,
dismissing, if necessary, anyone who may have been hired
or assigned to perform the work from which each was dis-
charged on that date. If one or more of those positions no
longer exists, it shall be ordered to reinstate those terminated
employees to a substantially equivalent position, without
prejudice to their seniority or other rights and privileges.
In that regard, as described in section II, Coffeen had not
been trained and licensed as a CNA during her employment
at the Espanola facility, but had been hired in that position
with a promise that she would be allowed to participate in
training to become licensed as a CNA. As it turned out, she
had not been allowed to do so by the date of her unlawful
termination. Obviously, it would not be consistent with pub-
lic health policy to order reinstatement of an employee to a
health care position for which she/he is not qualified and li-
censed. Almost a year has passed however, since Coffeen’s
unlawfully motivated termination and, during that interim,
she may well have undergone training and become licensed
as a CNA. Even if that has not happened, given the cir-
cumstances of the promise to her when hired and the fact
that her inability to undergo training, and become licensed
as, a CNA resulted from a specific choice made by an agent
of Pilot Development Southwest d/b/a Hacienda de Salud–
Espanola, it seems an appropriate remedial measure to direct
it to provide appropriate training for Coffeen and to reinstate
her as a CNA if she completes that training and is licensed.
It shall also be ordered to make each of the above-named
employees whole for any losses of pay and benefits she/he
may have suffered because of the unlawful terminations of
May 3, 1994, with backpay to be computed on a quarterly
basis, making deductions for interim earnings, F. W. Wool-
worth Co., 90 NLRB 289 (1950), and with interest to be paid
on the amounts owing as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
In addition, it shall be ordered to remove from its files any
references to the unlawful discharges of those 11 employees.
It also shall be ordered to notify the New Mexico Depart-
ment of Health Licensing and Certification Bureau that those
11 employees’ conduct on May 3, 1994, had been activity
protected by the National Labor Relations Act and to make
all reasonable efforts to have that agency remove from its
records and files all references to the report about that activ-
ity and the proceedings arising as a result of it. Moreover,
it shall be ordered to notify New Mexico Rehabilitation, Inc.
that there is no objection to employment on the Espanola
premises of Erlinda Garcia, should that firm choose to hire
her and employ her at that location. Finally, it shall notify
each of those employees, in writing, that the actions set forth
in this paragraph have been taken and that their discharges
will not be held against them in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Pilot Development Southwest d/b/a Haci-
enda de Salud–Espanola, Espanola, New Mexico, its officers,
agents, successors, and assigns,4 shall
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tential buyer, although it represented that the potential buyer was
aware of the potential liabilities arising from this proceeding. In his
brief, the General Counsel urges that, if Respondent does not reach
agreement with that potential buyer, but does negotiate with any
other potential buyer, I should order Respondent to disclose to the
General Counsel’s Albuquerque office ‘‘the identity of any other
prospective purchaser of the Espanola, New Mexico nursing home
[with] which Respondent is negotiating a sale including the name
and address of each prospective purchaser.’’ The General Counsel
cites no authority for a remedial order extending to notice of any
prospective purchasers of Respondent’s facility. Nor does the Gen-
eral Counsel provide any reason for directing a respondent to dis-
close the identity of entities with whom purchase negotiations are
merely being conducted. I decline to impose so novel and far- reach-
ing, as well as ambiguous (at what point does a purchaser become
‘‘potential’’?) a remedial order. However, should it reach an agree-
ment for sale of the Espanola facility, Respondent is directed to no-
tify the Regional Director for Region 28 of that fact and of the iden-
tity of the purchaser.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
1. Cease and desist from
(a) Discharging or otherwise interfering with, restraining,
or coercing employees for temporarily ceasing work to pro-
test terms and conditions of employment, or for engaging in
other concerted activity for mutual aid or protection.
(b) Reporting as patient neglect and abuse to the New
Mexico Department of Health Licensing and Certification
Bureau, or to any other agency, activity by employees that
is protected by the National Labor Relations Act.
(c) Barring from its premises, as employees of another em-
ployer, employees whom it has discharged for a motivation
unlawful under the National Labor Relations Act.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Erlinda Garcia, Mary Romero, Lorenzo Pino,
Ronald Trujillo, Joe Ocana, Rosemary Vialpando, Efren
Moya, Mary Muniz, Teresa Coffeen, Mary Rose Martinez-
Gonzales, and Sarah Vences immediate and full reinstate-
ment to the positions of CNA from which they were dis-
charged on May 3, 1994, dismissing, if necessary, anyone
who may have been hired or assigned to any of those posi-
tions or, if any of those positions no longer exists, to a sub-
stantially equivalent position, without prejudice to seniority
or other rights and privileges, and further, make whole those
employees for any loss of pay and benefits suffered as a re-
sult of those discriminatory acts and, in addition, provide ap-
propriate training for Teresa Coffeen and an opportunity for
her to become licensed as a CNA, in the manner set forth
above in the remedy section of this decision.
(b) Remove from its files any reference to the unlawful
terminations of the employees named in paragraph 2(a),
above, and notify them in writing that this has been done and
that the discharges will not be held against them in any way.
(c) Notify the New Mexico Department of Health Licens-
ing and Certification Bureau that the employees named in
paragraph 2(a), above, had been engaged in conduct pro-
tected by the National Labor Relations Act on May 3, 1994,
and make all reasonable efforts to have that agency remove
from its records and files all references to the report concern-
ing that conduct and the proceedings arising as a result of
it, informing the employees named in paragraph 2(a), above,
in writing of the actions that it has taken to accomplish those
objectives.
(d) Notify New Mexico Rehabilitation, Inc. that there is no
objection to employment on the Espanola premises of
Erlinda Garcia, should that firm choose to hire her and em-
ploy her at that location, and inform Garcia in writing that
this has been done.
(e) Preserve and, on request, make available to the Board
and its agents, for examination and copying, all payroll and
other records necessary to compute backpay and reinstate-
ment rights as set forth above in the remedy section of this
decision.
(f) Post at its Espanola, New Mexico facility copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice
on forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.