Heartland of Lansing Nursing Home

National Labor Relations Board - Board Decisions

Apr 21, 1992

307 N.L.R.B. 152 (N.L.R.B. 1992)

152
307 NLRB No. 25
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On September 25, 1991, subsequent to the judge’s decision and
the Respondent’s filing of exceptions to that decision, the Charging
Party requested withdrawal of its election objections filed in Case 8–
RC–14289. On October 23, 1991, the Board granted the Charging
Party’s request and severed that case from Cases 8–CA–22647 and
8–CA–22795, decided herein, and remanded it to Region 8 for fur-
ther appropriate action.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’ established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
No exceptions were filed to the judge’s findings that the Respond-
ent violated Sec. 8(a)(1) of the Act by: Supervisor Messer’s ques-
tioning employee Reed about the Union and threatening that Reed’s
support for the Union would ruin their friendship; Supervisor
Messer’s removing prounion campaign literature from the employee
breakroom; Supervisor Malone’s accusing employee Susi of
harassing other employees; Supervisors Malone’s and Lyons’ accus-
ing employee Susi of calling these other employees ‘‘liars’’; and,
Supervisor Lyons’ questioning Susi about the scabies rumor.
3 The following rule on solicitation was contained in the Respond-
ent’s rules booklet:
II. Soliciting or distributing written materials during work time
or in any work area or resident care area is not permitted. [Em-
phasis added.]
4 We note that the warnings issued to Hall and Jako did closely
follow the date of their infractions of the absentee policy (i.e., Hall’s
warning was issued on April 17 for an infraction of the policy on
April 3; Jako’s warning was issued on April 23 for an infraction on
April 22). However, the warnings issued to both Reed and Persiani
did not closely follow the date of the infraction of the policy (i.e.,
both were in violation of the policy from between 6 and 11 months
prior to the issuance of the warnings). Thus, we find that the Re-
spondent’s policy of issuing warnings for absenteeism lacked an
overall uniform application.
Health Care and Retirement Corp. of America
d/b/a Heartland of Lansing Nursing Home and
United Food and Commercial Workers Inter-
national Union, Local Union 23, AFL–CIO–
CLC. Cases 8–CA–22647 and 8–CA–22795
April 21, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 23, 1991, Administrative Law Judge Rich-
ard A. Scully issued the attached decision.1 The Re-
spondent filed exceptions and a supporting 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 exceptions2 and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
1. The judge found that the Respondent’s rule on so-
licitation3 was overly broad and thus violated Section
8(a)(1) of the Act. The Respondent has excepted to
this finding, arguing, inter alia, that it did not have a
fair opportunity to address that issue because it was
not raised by the General Counsel until its posthearing
brief to the judge. We find no merit in this exception.
The General Counsel’s original complaint alleged
that the maintenance of the Respondent’s rule on solic-
itation was unlawful. In its posthearing brief to the
judge, the General Counsel amended the complaint to
conform to the language of the rule contained in the
Respondent’s employee handbook, which had been in-
troduced into evidence as General Counsel’s exhibit. In
addition, we note that the Respondent, in its
posthearing brief to the judge, admitted that its rule on
solicitation in effect during all relevant times was as
contained in its employee handbook. The Respondent
thereby acknowledged its understanding of the par-
ticular language at issue in the no-solicitation rule alle-
gation.
2. The judge found that Supervisor Mazzulli’s April
20, 1990 written warning to employee Reed for exces-
sive absenteeism, 8 days after the Board election, vio-
lated Section 8(a)(3). The Respondent has excepted to
this finding and contends that three other employees
were also issued warnings for absenteeism by Mazzulli
at approximately the same time as Reed, but that the
judge only found that the warning to one of the three,
Persiani’s, was given to ‘‘mask its unlawful action
against Reed.’’ The Respondent argues that the record
thus does not support a finding that Reed was singled
out for an absenteeism warning in violation of the Act.
We find no merit in this contention.
We agree with the judge, for the reasons he stated,
that the General Counsel has made a prima facie show-
ing that the warning to Reed was motivated by
antiunion considerations and that the Respondent has
not established that it would have taken the same ac-
tion against Reed in the absence of her prounion ac-
tivities. Contrary to the Respondent’s contention, the
absenteeism warnings to the other employees do not
negate the finding that the Respondent acted out of
antiunion animus toward Reed. In this regard, we note
that all of these warnings were issued after the elec-
tion, that the credited testimony established that the
Respondent’s policy of issuing warnings had not been
regularly enforced prior to the organizing campaign,
and that, indeed, no evidence was presented that any
warnings had been issued prior to this time. In addi-
tion, there was no uniform correlation between the tim-
ing of these warnings and the timing of the employees’
violations.4
It is readily apparent why the judge focused on
Persiani rather than the other employees who received
warnings in determining the motive for issuing Reed a
warning. As the Respondent’s election observer,
Persiani presumably was not a supporter of the Union.
Thus a warning issued to her would at first blush ap-
153HEARTLAND OF LANSING NURSING HOME
5 We thus agree with the judge that the General Counsel estab-
lished that antiunion considerations were a motivating factor in the
adverse action taken against Messenger, and that the Respondent has
failed to establish that it would have taken the same action in the
absence of Messenger’s protected activity.
1 The charge in Case 8–CA–22647 was filed on April 23, 1990,
and an amended charge was filed on June 4, 1990. The charge in
Case 8–CA–22795 was filed on June 20, 1990, and an amended
charge was filed on August 27, 1990.
pear to be the strongest evidence that prounion senti-
ments played no part in the issuance of the warning to
Reed. It is noteworthy, however, that the warning to
Persiani was issued less than a week after the Re-
spondent had been served with the unfair labor practice
charge alleging the issuance of unlawful warnings to
employees—a time when the Respondent might be
considering its defenses to the allegations. Like the
warning to Reed, the warning to Persiani cited conduct
that could have supported the issuance of a warning
well before the Union came on the scene. Reed’s
record showed that she had violated the Respondent’s
announced absenteeism policy nearly 6 months earlier,
in October 1989; and Persiani’s record showed viola-
tions of the policy even earlier—in May 1989, nearly
a year before the Respondent saw fit to issue the warn-
ing. Accordingly, the judge had ample reason to com-
pare both Reed’s and Persiani’s situations and to con-
clude that the Respondent’s belated discovery of a
need to enforce its absenteeism policy was motivated
by its intent to retaliate against outspoken union activ-
ist Reed and that Persiani’s warning was intended to
mask the Respondent’s unlawful warning to Reed.
3. The judge further found that the Respondent vio-
lated Section 8(a)(3) by failing to return Messenger to
the day shift as of May 13, the day after her leave of
absence ended. The Respondent has excepted to this
finding, arguing, inter alia, that the General Counsel
failed to carry the burden of proving Messenger’s
availability for work on May 13 and thereafter, given
the demands of Messenger’s class schedule. We find
no merit in this exception because the Respondent ex-
pressly told Messenger, even before it was aware of
any limits on her availability, that it would no longer
accommodate her class schedule as it had done in the
past. Consequently, Messenger’s availability does not
affect the merits of the judge’s finding.5 Messenger’s
availability to work after the expiration of her leave of
absence is, however, an issue to be considered in the
compliance proceedings in determining any amount of
backpay that may be owed to Messenger.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Health Care and Retire-
ment Corp. of America d/b/a Heartland of Lansing
Nursing Home, Bridgeport, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Victoria Belfiglio, Esq. and Mark Carissimi, Esq., for the
General Counsel.
R. Jeffrey Bixler, Esq., of Toledo, Ohio, for the Respondent.
James R. Reehl, Esq., of Pittsburgh, Pennsylvania, for the
Charging Party.
DECISION
RICHARD A. SCULLY, Administrative Law Judge. On
charges1 filed by United Food and Commercial Workers
International Union, Local Union 23, AFL–CIO–CLC (the
Union), the Regional Director, Region 8, National Labor Re-
lations Board (the Board) issued a complaint and an amended
consolidated complaint on June 7 and September 27, 1990,
respectively, alleging that Health Care and Retirement Corp.
of America d/b/a Heartland of Lansing Nursing Home (the
Respondent), had committed certain violations of Section
8(a)(1), (3), and (4) of the National Labor Relations Act (the
Act). The Respondent filed timely answers denying that it
had committed any violations of the Act.
The Union filed a representation petition in Case 8–RC–
14289 on February 26, 1990, and a stipulated election was
conducted by the Board on April 12, 1990. The Union filed
timely objections to conduct affecting the results of the elec-
tion and on June 14, 1990, the Regional Director issued an
order in which he permitted the withdrawal of certain objec-
tions and ordered that the remaining objections should be
consolidated for hearing with the unfair labor practice cases.
A hearing was held in Bridgeport, Ohio, on November 14,
15, and 16, 1990, at which all parties were given a full op-
portunity to participate, to examine and cross-examine wit-
nesses, and to present other evidence and argument. Briefs
filed on behalf of the General Counsel and the Respondent
have been given due consideration. On the entire record and
from my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was an Ohio cor-
poration with an office and place of business in Bridgeport,
Ohio, where it has engaged in the operation of a nursing
home. Annually, in the course and conduct of its business
operations, the Respondent derives gross revenues in excess
of $500,000 and purchases and receives products valued in
excess of $50,000 directly from points located outside the
State of Ohio. The Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Hereinafter, all dates are in 1990 unless otherwise indicated.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all times mate-
rial the Union was a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In January 1990,2 the Union began a campaign to organize
certain of the Respondent’s employees. After the filing of the
representation petition on February 26, the Regional Director
approved a stipulated election, conducted on April 12, among
the Respondent’s employees in a unit described as follows:
All full-time and regular part-time employees including
nurses aides, housekeeping aides, dietary aides, laundry
aides, and social and activity aides employed by the
Employer at its 300 Commercial Drive, Bridgeport,
Ohio facility, but excluding all registered nurses, li-
censed practical nurses, professional employees, office
and clerical employees, confidential employees, guards
and supervisors as defined in the Act.
Out of approximately 65 eligible voters, 21 votes were
cast in favor of the Union and 40 against. The Union filed
timely objections to conduct alleged to have affected the out-
come of the election. There had been an unsuccessful attempt
by the United Steelworkers of America to organize the Re-
spondent’s employees during 1988.
B. Alleged Violations of Section 8(a)(1)
1. Interrogations and solicitations of grievances
a. Carol Wagner
Virginia Messenger was employed by the Respondent at
its Bridgeport facility for about 4 years as a nursing aide.
Messenger testified that she had been involved in the Steel-
workers’ attempt to organize the facility and had served on
the union organizing committee during that campaign. Dur-
ing the first week of February 1990, Messenger was stopped
in the hallway by Carol Wagner, the Respondent’s director
of nursing. Wagner asked Messenger if she had anything to
do with the Union’s current organizing campaign as Wagner
had heard her name ‘‘all over the place.’’ Messenger told
Wagner that she had not started this campaign. Wagner re-
sponded that she was ‘‘relieved’’ to hear it because it was
not good that Messenger’s name was going all over the facil-
ity. Messenger testified that at the time of this conversation
she had signed an authorization card for the Union, but had
not been active in the campaign. Later, beginning near the
end of February, Messenger did become active on the
Union’s behalf.
Carol Wagner testified that in early February when union
cards were being signed she approached Messenger and told
her that she had heard there was union activity again, that
she was surprised and concerned because she felt the Com-
pany had made a lot of positive strides in the 2 years since
the last union drive and that she was disappointed that they
would have to go through something like that again. Mes-
senger responded that she had seen that big strides had been
made and that there were no problems. Wagner testified that
she did not ask Messenger if she was involved in starting the
union campaign or if she supported the Union and did not
ask her any questions at all during their encounter. Wagner
testified that she spoke to Messenger about the union cam-
paign because she knew Messenger had been involved in the
previous campaign by the Steelworkers, but she denied that
she thought Messenger was involved in the new campaign.
She said she spoke to several people because she was con-
cerned and wanted to find out why union activity had started
up again.
b. Dennis Lyons
Irene Berus was employed by the Respondent for 4 years
as a dietary aide before leaving its employ on April 24.
Berus testified that in March or April, Dennis Lyons, the ad-
ministrator of the facility, spoke with her in the dining room
and gave her some antiunion literature. During the course of
their conversation Lyons asked Berus how she was going to
vote in the election, told her that they didn’t really need a
union, and said that if she had any problems she should
bring them to him.
Lyons was called as a witness by counsel for the General
Counsel but was not asked about this incident. He was not
called as a witness by the Respondent and Berus’ testimony
is uncontradicted.
c. Robin Messer
Irene Berus testified that about three times during March
Supervisor Robin Messer spoke to her in the dining room or
kitchen. Messer gave her antiunion literature and asked her
if she was going to vote for the Union. Berus told her she
was not. Messer also said that if Berus had any problems she
should bring them to her.
Robin Messer was the dietary supervisor at Heartland of
Lansing for 2 years and was an admitted supervisor and
agent of the Respondent. Messer testified that she attended
several meetings concerning the Union’s campaign which
were conducted by Mike Shuey, a labor consultant retained
by the Respondent to direct its response to the campaign.
Messer testified that Shuey instructed the facility’s super-
visors to go out and talk to their employees, to report back
who the union supporters were and to solicit from these em-
ployees their problems and complaints about their jobs. The
supervisors were also directed to take turns conducting sur-
veillance of the employees’ activities near the facility.
Messer testified that during late February she spoke to a
group of five employees while they were feeding patients at
lunchtime. She asked what they felt they could get by bring-
ing in a union and told them if they were having any prob-
lems they could go to their supervisor. Messer said she spoke
to Irene Berus on one or two occasions in March or April,
giving her antiunion literature, asking her how she felt about
the Union and telling her if she had any problems she could
come directly to Messer.
d. Eleanor Alvarez
Irene Berus testified that the Respondent’s regional man-
ager, Eleanor Alvarez, spoke to her about the Union one time
in the dining room in April. Berus first said that Alvarez
155HEARTLAND OF LANSING NURSING HOME
asked her if she was going to vote for the Union. On cross-
examination, Berus said that Alvarez had not specifically
asked her how she was going to vote or if she was going
to vote for the Union, but during the course of their 10-
minute conversation, in which Alvarez explained why a
union wasn’t necessary, Berus told her she was not for the
Union anyway. Berus testified that Alvarez told her if she
had any problems to come to her and ‘‘we’ll try to help you
and do everything we can for you.’’ Eleanor Alvarez was not
called as a witness and Berus’ testimony in uncontradicted.
e. Robert Possanza
Several employee witnesses testified to attending small
group meetings during the union campaign which were con-
ducted by Robert Possanza, who has been identified as a cor-
porate vice president from the Respondent’s headquarters.
Raelynn Susi who was an activity assistant attended a meet-
ing held for the dietary department during late March or
early April. Susi testified that Possanza told those attending
the meeting that he wanted to find out what the problems
were and see if there was anything that the Company could
do about solving them. The employees spoke about problems
they had with seniority and said that they wanted a wage in-
crease. Another unidentified company representative took
notes during the meeting. Possanza did not discuss the Re-
spondent’s position concerning the Union during this meeting
and did not say that he would do anything for the employees,
just that he would see what he could do.
Patricia Sabinski, a nursing aide, testified that some time
after the Union’s petition was filed she attended a meeting
with about eight other aides held by Possanza and another
man. Sabinski said that Possanza wanted the employees to
tell their ‘‘grievances and gripes about the place,’’ the things
‘‘they didn’t like about it’’ and what they ‘‘were mad
about.’’ Employees complained that they did not like the
way the day shift was being treated, that they were known
to be prounion and were being picked on all the time. There
were complaints about working conditions and wages.
Possanza responded that he couldn’t promise them anything
but they would look into it and get back with them. No one
ever got back to them or followed up on the meeting.
Possanza did not give them the Respondent’s position con-
cerning the Union at the meeting. Sabinski said that they left
the meeting feeling good about it because ‘‘we really thought
there would be something done.’’
Jane Reed, a nursing aide, testified that during mid-March
she attended a meeting of seven employees called by the Re-
spondent which was conducted by two men whose names she
was not sure of. The men were there to hear their complaints
and gripes and ‘‘to see if they could help us.’’ They said
they were not going to promise anything, they were there to
listen and to see if they could help. The employees indicated
they felt they were being picked on because they were
prounion, complained about their work load and said that
they thought they were underpaid. The men wrote down
what the employees complained about. More than once the
men told them that they couldn’t promise anything, but that
‘‘they wouldn’t just write it in their little books,’’ that it
‘‘wouldn’t just stop there,’’ and that they ‘‘would be back.’’
Debra Lyle, a nursing aide, testified that she attended a
meeting in late March conducted by Possanza and another
man. There were about eight nursing aides present. Possanza
wanted to know if they had any gripes and said if there was
anything they wanted to tell him, he was willing to listen.
Employees complained about the way administrator Lyons
was treating people, that day-shift employees were getting
more work to do because they were prounion and that they
deserved more money. Lyle testified that Possanza said that
they would talk about what the employees had raised and
would get back to them, but that they never heard anything
from him.
Kimberly Fatula, a nursing aide, testified that in February,
she attended a meeting conducted by Possanza and another
man, with about six or seven other aides. Fatula said that the
men wanted to hear their gripes and complaints concerning
their working conditions and how they felt about their jobs.
She had never attended a meeting of this kind prior to the
union campaign. The meeting lasted about 15 or 20 minutes
and Possanza did not say anything about what the Company
thought about the Union or the campaign.
Neither Possanza nor the other company representative at
these meetings was called as a witness by the Respondent.
Analysis and Conclusions
I found Messenger to be a credible and persuasive witness.
I did not believe Wagner’s testimony. She admitted seeking
out Messenger for the conversation concerning union activ-
ity, but denied that she asked any questions even though her
reason for the conversation was to find out why a union was
being started again. She was aware of Messenger’s involve-
ment in the previous union organizing drive, but denied that
she spoke to her concerning the current campaign because
she thought Messenger was involved in it. Neither statement
rings true. Although Wagner claimed she did not single Mes-
senger out and similarly questioned others, none corroborated
that testimony. Based on their demeanor while testifying and
the content of their testimony, I credit Messenger over Wag-
ner and find that the conversation occurred as she described
it. Considering all of the circumstances surrounding Wag-
ner’s questioning of Messenger, as the Board has directed in
Rossmore House, 269 NLRB 1176, 1177 (1984), I find it
reasonably tended to restrain, coerce, and interfere with em-
ployees’ rights guaranteed by Section 7 of the Act, in viola-
tion of Section 8(a)(1). The matter did not arise in the course
of a casual conversation. The subject of renewed union activ-
ity at the facility was raised by Wagner who sought out Mes-
senger for the specific purpose of making inquiries about it.
Messenger was not, at that point, an open or active supporter
of this new round of union activity but was known to have
been involved in a previous organizing drive. Wagner made
clear to Messenger that she was suspected of being involved
by saying that she had heard Messenger’s name ‘‘all over the
place’’ in connection with the union activity. Wagner, who
was the highest ranking supervisor in the department in
which Messenger worked, also made clear her unhappiness
and disappointment with the fact that union activity had re-
curred. By telling Messenger that she was ‘‘relieved’’ to hear
Messenger was not involved because ‘‘it was not good’’ that
her name was going all over the facility in connection with
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union, Wagner implied that if Messenger were involved
adverse consequences would result. Wagner’s interrogation
of Messenger had no legitimate purpose other than to iden-
tify who was involved in the renewal of union activity. It
makes no difference that Messenger later became involved in
the Union’s organizing campaign. The test is not whether an
employee is coerced but whether the questioning tended to
be coercive. I find that it did.
I find that the interrogations of Irene Berus by Dennis
Lyons and Robin Messer violated the Act. The credible and
uncontradicted testimony of Berus establishes that Lyons
asked her how she was going to vote in the election while
giving her antiunion literature and soliciting grievances.
Lyons was the highest ranking management official at the fa-
cility and his inquiry had no legitimate purpose. Messer’s
testimony corroborated that of Berus that she was asked
about her feelings concerning the Union by her supervisor,
Messer, in the context of distribution of antiunion literature
and solicitation of grievances. Messer admitted that she made
her inquiries pursuant to the instructions of Shuey, the con-
sultant who was orchestrating the Respondent’s antiunion
campaign, to feel out the employees and report back who the
union supporters were. I find that the interrogations of Berus
by Lyons and Messer were violations under the Board’s cri-
teria in Rossmore House, supra, but that the evidence fails
to establish that Alvarez unlawfully interrogated Berus.
The credible and uncontradicted testimony of Berus estab-
lishes that Messer, Lyons, and Alvarez all solicited griev-
ances by telling Berus she could bring any problems or com-
plaints she had to them. Similarly, Messer, on instructions
from Shuey, in February, also solicited grievances from sev-
eral employees while they were feeding patients by telling
then they could bring any problems to their supervisor. Dur-
ing a series of small group meetings with employees,
Possanza asked employees about their ‘‘gripes,’’ ‘‘com-
plaints,’’ and ‘‘things they didn’t like’’ or ‘‘were mad
about’’ and wrote down their replies.
There is no evidence that the Respondent had a practice
of soliciting employees’ grievances and complaints before
the Union’s organizing drive began. On the contrary,
Messer’s testimony was that it began to do so pursuant to
Shuey’s instructions as a part of its antiunion efforts. This
creates ‘‘a compelling inference’’ that the employer is im-
plicitly promising to correct the problems its inquiries turn
up. Reliance Electric Co., 191 NLRB 44, 46 (1971). In
Uarco, Inc., 216 NLRB 1 (1974), the Board held that it is
not necessary for an employer that has solicited grievances
to have committed itself to specific corrective action in order
for there to be unlawful interference with employees’ rights
because ‘‘employees would tend to anticipate improved con-
ditions of employment that would make union representation
unnecessary.’’ Id. at 2. However, because it is not the solici-
tation of grievances but the promise to correct them that is
coercive, the employer can rebut the inference that it has
made such a promise. In the instances involving Lyons, Al-
varez, and Messer, there was nothing to rebut their implied
promises to correct the problems the employees were being
asked to bring them. There is evidence that in some but not
all of the small group meetings in which Possanza solicited
grievances he said that he could not make any promises. De-
spite these statements, Possanza or his colleague wrote down
the employees’ complaints and assured them that ‘‘it
wouldn’t just stop there,’’ that they would be looking into
and talking about the problems the employees had raised and
that they would ‘‘get back to them.’’ In similar cir-
cumstances, such additional remarks were found to imply a
promise to remedy employees’ grievances notwithstanding a
‘‘no promises’’ disclaimer. Windsor Industries, 265 NLRB
1009, 1016 (1982). I find that the Respondent violated Sec-
tion 8(a)(1) of the Act in each of the instances discussed.
2. Threats, surveillance, and futility of union support
Raelynn Susi testified that on February 26 she signed a
union authorization card. On the same day, she informed her
supervisor, Activity Director Sandra Malone, that she had de-
cided to support the Union. Malone responded that she
wished that Susi had not ‘‘come out with it’’ and that Susi
had ruined her chances for a job in management not only
with the Respondent but she would be unable to get a job
‘‘throughout the Valley’’ because when a prospective em-
ployer called for a reference they would have to let them
know that she was a strong union supporter. Malone showed
Susi some newspaper clippings about the Union, said it had
struck other nursing homes, that it was ‘‘inevitable’’ that it
would strike her nursing home, and when it did Susi would
be out of a job because she would be replaced and her re-
placement would not leave as activity jobs were hard to find.
Malone also told Susi that the Union couldn’t and wouldn’t
do anything for her or the other employees, that they would
start at ground zero, that everything would be negotiated and
that they should never expect that the Respondent would
ever give more to a union facility than a nonunion facility.
Susi testified that in March Malone told her that the total
number of hours of the activity staff (Malone and Susi) was
going to be cut back from 160 to 155 every 2 weeks and
that the entire 5-hour reduction would be taken out of Susi’s
hours. Susi told Malone that if they tried to do that she
would go to Doug Krampert, the union organizer. About 2
weeks later, Malone told Susi that she had discussed the mat-
ter with Lyons and they had decided that Susi never should
have been working 40 hours a week, but since she had been
doing so for the past 2 years it would not be taken away
from her.
Susi testified that in March, about a week after she told
Malone she was supporting the Union, they had a conversa-
tion in the activity office where Robin Messer was also
present. Malone gave Susi some antiunion literature and re-
peated her previous comments about Susi’s being unable to
find work in the Valley and about the Union, saying, that it
was noted for striking, that it was inevitable that it would
take the employees out on strike, and that when it did Susi
would be replaced and her replacement would not leave. Ma-
lone also told Susi that she did not want her to consider them
friends, that she wanted nothing to do with her, and that Susi
should speak to her only about work and not discuss any per-
sonal matters with her. On one occasion after Malone gave
her literature and told her she was going to lose a lot because
of her prounion stand, she told Susi if she went to the people
with whom she had campaigned for the Union and told them
she had made a mistake, the Respondent would not hold her
brief period of union support against her since she had been
a good employee for 9 years.
Robin Messer testified that at one of the meetings she and
other supervisors attended concerning the union campaign
157HEARTLAND OF LANSING NURSING HOME
3 In its answer the Respondent denied that Sharp was a supervisor
within the meaning of Sec. 2(11) of the Act. The testimony of Lyons
that Sharp was the housekeeping and laundry supervisor who had
authority to hire and fire and who scheduled and directed eight or
nine employees in his department establishes that Sharp possessed
one or more of the criteria in Sec. 2(11). I find that Sharp was a
statutory supervisor at all times material. Gurabo Lace Mills, 249
NLRB 658 (1980).
4 The following excerpt from Malone’s testimony is but one exam-
ple of the difficulty encountered in trying to get a straightforward
answer from her:
BY MS. BELFIGLIO:
Q. Now, it’s true that you were instructed by Mr. Shuey to
report to him employees that were pro-union?
A. I had no idea of knowing who was pro-union.
Q. But you were instructed to report to him employees who
were pro-union if you were aware of that?
A. If I was aware, but I don’t, no one actually ever said to
me, except Raelynn, that she was pro-union.
JUDGE SCULLY: The question was what you were instructed by
Mr. Shuey.
THE WITNESS: I think he was trying to gather, yes, the facts.
Who was . . . .
BY MS. BELFIGLIO:
Q. The question was, did Mr. Shuey instruct you to report to
him employees that were pro-union?
Continued
prior to the election, Shuey told them that he wanted ‘‘to
get’’ Susi. He told them that he wanted them to ignore her,
to not speak to her or socialize with her, as that would
‘‘make her break down.’’ Messer testified to being in the ac-
tivity office, where she often worked updating patients’ die-
tary charts, on March 8 and heard Malone tell Susi that the
Union would not do the employees any good, that if it got
in all benefits and wages would be ‘‘up for grabs’’ and that
they would have to start over.
Malone testified that Susi worked for her for nearly 3
years and that they were friendly coworkers. When Susi told
her of her support for the Union, Malone told her that was
her right, that she hoped they would keep a pleasant working
relationship, and that she would respect Susi’s right to do
what ever she wanted. Malone denied that Shuey ever said
to ignore Susi in an effort to break her down. However, he
did say that Susi possibly was supporting the Union to derive
a lot of attention and that while they should continue to work
with her in a professional relationship, ‘‘maybe we shouldn’t
be as sociable with her.’’ Malone said that she gave Susi lit-
erature concerning the Union which the Company had pre-
pared, that she told her the Company would bargain in good
faith, but that everything would be negotiable and that you
could end up with more, the same, or less. Malone said she
did not recall telling Susi that there was no way that the
Union would get the employees more than they already had
and did not say that benefits would not increase because of
the Union.
Jane Reed was actively involved in the Union’s organizing
campaign, serving on the organizing committee, soliciting
authorization cards from employees and handbilling near the
facility. She testified that she was a good friend of Super-
visor Robin Messer. During February, she and Messer had a
conversation about the Union in the presence of employee
Eva Neff in which Messer asked Reed why they wanted a
union in the facility and if she thought they could work
things out without a union. Messer also told Reed that she
could see that their friendship was being torn apart over this.
Messer testified that at a meeting of supervisors with Shuey
he asked who was closest to Reed and Messer volunteered
that she was. Shuey told Messer to go to Reed and tell her
that their friendship would be threatened if the Union got in.
Messer said that she did so in a conversation at which an-
other aide was present. She also asked Reed what she would
get if a union got in.
Virginia Messenger attended a meeting with Lyons, Wag-
ner, and assistant director of nursing, Samra Mazzulli, on
April 23 to discuss her return to work following an edu-
cational leave of absence. Messenger testified that during the
course of the meeting Lyons asked Messenger if she had a
tape recorder in her purse. She said no and offered to let
Lyons inspect her purse. At one point, Lyons showed her ‘‘a
paper concerning charges of the Union’’ and asked her if she
was aware of them. When she said no, Lyons said that he
wanted to make her quite aware of them. Lyons told Mes-
senger that they would no longer work around her class
schedule as had always been done previously, that he could
not authorize her to return to either full- or part-time work,
that it was not fair to the person who filled her position
while she was on leave to take her out of that position and
give it back to Messenger, and that the handbook did not re-
quire that she be given her job back upon return. When Mes-
senger said that the handbook was never followed before,
Lyons said from now on he was dotting his i’s and crossing
his t’s and ‘‘things would be followed.’’ Lyons did testify
about certain aspects of the meeting on April 23 but was not
specifically asked about the statements described by Mes-
senger. Wagner and Mazzulli denied seeing Lyons show
charges by the Union to Messenger and did not recall him
saying anything about dotting i’s and crossing t’s.
Uncontradicted evidence establishes that during the course
of the Union’s organizing drive on several occasions
prounion employees passed out handbills at a location in
front of the Respondent’s facility known as ‘‘the dip.’’ It
was a common practice for management personnel including
Lyons, Wagner, Mazzulli, Messer, Lucy Mickelwicz, and
Ray Sharp3 to stand in the room of one of the nursing home
residents, overlooking the dip, and view the activity going on
there through the window. Jane Reed testified that she passed
out handbills at the dip on four occasions, including once in
late March. She saw Lyons observing her while walking out-
side the building and saw Wagner watching her from the
window of the resident’s room. She also saw Messer,
Mazzulli, and Wagner drive by while she was handbilling.
Virginia Messenger testified that she passed out handbills at
the dip and saw Lyons observing her from the resident’s
room. She also saw Sharp, Messer, and Mickelwicz drive by
while she was there. Messer testified that the Respondent’s
supervisors were directed by Shuey to observe employees’
activities at the dip from the resident’s room on a rotating
basis between the hours of 2 and 3 p.m. and that they did
so. Wagner also admitted observing activities at the dip from
the resident’s room.
Analysis and Conclusions
Susi was a credible and impressive witness while Malone
was just the opposite. On direct, her testimony was
unspecific and appeared rehearsed; on cross, she was argu-
mentative and evasive.4 Her insistence that when she passed
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. That would have been a matter of my opinion. I had no
idea of what employees were pro-union.
Q. Did he tell you to report to him employees who were pro-
union?
A. If I knew any that were, yes.
Q. Those were his instructions?
A. Yes.
5 Messenger testified that Lyons showed her a paper concerning
charges by the Union. In all likelihood the paper referred to the
Union’s election objections as the Unions’s first charge was not filed
and served until April 23. I do not find that this detracts from her
credibility as she was apparently repeating Lyons’ characterization of
what the paper was.
out the Respondent’s literature to employees and discussed
the Union with Susi and other employees she was not trying
to convince them to vote against the Union, that she never
urged them to vote against the Union and that she didn’t re-
call that the literature she passed out asked the employees to
vote against the Union, bordered on the ridiculous, as did her
testimony that the Company didn’t oppose the Union, but
wanted the employees to have the facts on both sides so they
could make an educated vote. Messer’s credible testimony
concerning Shuey’s instructions to Malone and other super-
visors to isolate Susi and break her down puts Susi’s testi-
mony about Malone’s statements and actions in context and
enhances its credibility. Her testimony also corroborates
Susi’s concerning the conversation with Malone that Messer
witnessed. I find that Malone made the statements as de-
scribed by Susi and Messer.
Contrary to the Respondent’s contentions, the fact that nei-
ther Susi nor Reed curtailed their prounion activity following
the threatening statements made to them by supervisors is
not determinative. The Board uses an objective standard in
evaluating such statements and the employees’ subjective re-
actions are irrelevant. Maremont Corp., 294 NLRB 11
(1989); Emerson Electric Co., 247 NLRB 1365 (1980).
Malone’s statements to Susi that she had ruined her chances
for a job in management by choosing to support the Union
would reasonably tend to coerce and interfere with employee
rights and violated Section 8(a)(1). Fort Wayne Foundry
Corp., 296 NLRB 127 (1989); Southwire Co., 282 NLRB
916, 918 (1987). The same is true of Malone’s statements
that Susi would be unable to get a job elsewhere because the
Respondent would inform prospective employees of her
Union support. EDP Medical Computer Systems, 284 NLRB
1232, 1264 (1987). The Respondent also violated Section
8(a)(1) when Malone told Susi that she would ‘‘lose out on
a lot’’ by supporting the Union and told her she could ‘‘re-
deem’’ herself and the Respondent would not hold her
Union-support against her if she agreed to campaign against
the Union. The former threatened loss of benefits because of
her support for the Union and the latter implied she could
avoid reprisals by renouncing that support. Southwire Co.,
supra at 918.
On two different occasions when Malone gave her lit-
erature to read, she told Susi that if the Union got in a strike
was ‘‘inevitable,’’ that she would be replaced because she
could not cross the picket line, that all the Respondent had
to do was put her on a preferential hiring list and that she
would not get her job back because her replacement would
not leave. The Respondent argues that there was no violation
of Susi’s rights because the literature contained a lawful
statement concerning striking, replacement and reinstatement
rights which Susi could have read. I do not agree. Malone
was not content to let the literature speak but sought to em-
bellish it with her own comments that a strike was inevitable,
that Susi would have to participate in it and that she would
lose her job. These statements violated Section 8(a)(1) be-
cause Malone made it clear that if the Union won the elec-
tion there would be a strike. The Board found similar state-
ments unlawful in Devon Gables Nursing Home, 237 NLRB
775, 776 (1978):
The speakers stated flatly, without qualification, that, if
the Union won, a strike would occur. The logical infer-
ence from these statements is that no matter how nego-
tiations progressed and no matter what the Union
sought from Respondent the employees would neverthe-
less have to strike to obtain a contract. It is clear that
the statements about the inevitability of strike contained
a threat that the Respondent would refuse to bargain in
good faith in order to insure a strike.
Further, while playing lip-service to Susi’s right to reemploy-
ment in the event of replacement during a strike, Malone told
her that she would never get her job back.
Malone’s comments to Susi paraphrasing the Respondent’s
literature concerning bargaining also violated the Act. By
telling Susi that the Union could not do anything for the em-
ployees, that they would start from ‘‘ground zero’’ and that
the Respondent would never give more to a union facility
than a nonunion facility, Malone went beyond merely ex-
plaining the mechanics of bargaining and indicated that it
was futile for the employees to choose the Union as their
bargaining representative because they would end up no bet-
ter off than without such representation, E. I. du Pont & Co.,
263 NLRB 159, 165 (1982); Electric Hose Co., 262 NLRB
186, 214 (1982).
I find that the Respondent violated Section 8(a)(1) when
it threatened to reduce Susi’s hours. The timing of an em-
ployer’s action can be persuasive evidence of its motivation.
Limestone Apparel Corp., 255 NLRB 722, 736 (1981). Susi
had been working 40 hours per week for 2 years prior to the
threatened cutback, which was announced only after Susi in-
formed Malone of her intention to support the Union and
was apparently a part of the Respondent’s strategy to break
her down. The Respondent offered no evidence to establish
that the threatened cutback in activity hours had any purpose
other than to attempt to deter Susi’s support for the Union.
I find that the Respondent violated Section 8(a)(1) by co-
ercing and interfering with employees’ rights when Messer
questioned Reed about what the Union could do for her,
while at the same time threatening that Reed’s support for
the Union would ruin their friendship. Messer’s testimony
shows that this was not a spontaneous, casual conversation
between friends or a naturally developing estrangement aris-
ing from the two women’s opposing views about unioniza-
tion, but was a deliberate ploy to undermine Reed’s support
for the Union conceived and orchestrated by Shuey.
As for the allegations concerning the meeting between Vir-
ginia Messenger and administrator Lyons on April 23, I ac-
cept the testimony of Messenger as to what occurred.5 I
found Messenger to be more credible than Wagner and
Mazzulli. Lyons, whose actions and comments are in issue,
159HEARTLAND OF LANSING NURSING HOME
did not specifically deny them. I find that Lyons made the
comment about dotting i’s and crossing t’s and that, coupled
with his comments to Messenger, that the Respondent would
no longer work around her class schedule and would not au-
thorize her to return to her former position because the hand-
book did not require it, amounted to an unlawful threat of
stricter enforcement of its rules because of the employees’
support for the Union. Any ambiguity in Lyons’ remarks was
removed on June 10 when he personally invoked a non-
existent rule in order to set Messenger up for discipline, as
is discussed below. In addition to Lyons, Wagner and
Mazzulli are alleged in the consolidated complaint to have
made threats on April 23; however, none have been estab-
lished. I shall recommend that these allegations be dismissed.
On several occasions employees who were handbilling at
the dip in front of the facility were observed by supervisors
from a resident’s room and from cars as they drove by. In
order to be unlawful, surveillance of employees’ activities
carried on in a public place must be shown to be something
other than the result of ‘‘fortuitous’’ circumstances and to in-
volve suspicious behavior or untoward conduct. Hoyt Water
Heater Co., 282 NLRB 1348, 1357 (1987); Gossen Co., 254
NLRB 339, 353 (1981). I find that it has not been estab-
lished that on those occasions when supervisors drove by
employees who were handbilling at the dip at the time of a
shift-change it was anything other than fortuitous and that it
did not violate the Act. The same is true of Lyons’ one-time
observation while walking outside the building. This is not
the case with the systematic observation of employee activity
at the dip which necessitated invading the privacy of a resi-
dent’s room in order to use it as an observation post. The
evidence establishes that supervisors were assigned on a ro-
tating basis to regularly observe the employees’ activity at
the dip at specific times and to report these observations to
Shuey. The observers were visible to the employees at the
dip and there is no evidence that anything improper or dis-
ruptive had occurred there which might, in appropriate cir-
cumstances, justify conducting surveillance. See Halo Light-
ing, 259 NLRB 702, 716 (1981). On the contrary, it appears
that the sole reason for the continuous, systematic surveil-
lance of employees’ activity at the dip was to intimidate and
coerce them and to provide the Respondent’s labor consult-
ant with information concerning who was involved in
prounion activity. I find that the Respondent violated Section
8(a)(1) by engaging in this systematic surveillance. Impact
Industries, 285 NLRB 5, 19–21 (1987).
3. No solicitation/distribution rules and related matters
During the Union’s organizing campaign the following
statement of policy was contained in the Respondent’s em-
ployee handbook:
No Solicitation
Solicitation by an employee of other employees is pro-
hibited while either person is on working time. Work-
ing time is all time when an employee’s duties require
that he or she be engaged in work tasks, but does not
include meal periods, scheduled breaks, or time before
or after a shift. In addition, solicitation is prohibited at
all times in immediate patient care areas.
In addition, the following was contained in a booklet entitled
‘‘HCR Rules For Your Protection’’ applicable to the employ-
ees:
TYPE B (SERIOUS)
. . . .
II. Soliciting or distributing written materials during
working time or in any work area or resident care area
is not permitted.
The rules booklet indicates that a type B offense is consid-
ered very serious and may result in discipline or discharge.
Alice Rogers, who is employed as a nursing aide, testified
that on four or five occasions during the organizing cam-
paign when she was speaking to other employees in the hall-
ways of the facility, Dennis Lyons told them that he did not
want any talk about the Union up and down the hallways.
Nursing director Carol Wagner testified that during the cam-
paign she talked to employees about the Union, giving them
the Respondent’s views, in hallways and at the nursing sta-
tions.
Nursing aide Jane Reed testified that on February 20 she
was seated in the breakroom reading a prounion pamphlet
during her morning break. Another employee was also
present. Supervisor Robin Messer came into the breakroom
and took the pamphlet away from Reed. Reed asked for the
pamphlet back but Messer refused, said it was a ‘‘company
property’’ and took it with her. When she left Messer also
picked up and took away other union literature that was on
a table. Nursing aide Debra Lyle testified that on February
21, while she and other employees were in the breakroom,
Messer came in and removed three pieces of prounion lit-
erature that Lyle had placed on a table in the room. Raelynn
Susi testified that in early April she observed Messer enter
the breakroom and remove from the bulletin board a poster
urging employees to vote for the Union. Lyle and Susi testi-
fied that it had been a common practice for employees to put
information in the breakroom and to post information on the
bulletin board located in the room without having to ask for
permission.
Robin Messer’s testimony confirmed that she had taken
prounion leaflet from Jane Reed. When she did so Messer
told Reed if she had any problems to go see the adminis-
trator. She also confirmed the testimony of Lyle and Susi
concerning her removal of union literature from the
breakroom on February 21 and in early April. Messer testi-
fied that she acted pursuant to the instructions of Shuey to
the Respondent’s supervisors to remove all union literature
whenever they found it and to bring it to him at the adminis-
trator’s office.
Analysis and Conclusions
Counsel for the General Counsel contends that the Re-
spondent’s rule prohibiting solicitation is overly broad and
violates the Act. The Respondent argues that its limitation on
solicitations meets the criteria established by the Board in
Our Way, Inc., 268 NLRB 394 (1983). Although the state-
ment of policy in the employee handbook prohibits solicita-
tions during working time and in immediate patient care
areas, the rules booklet prohibits solicitations ‘‘in any work
area or resident care area.’’
The Board has established a specific policy covering
health care facilities. Springfield Hospital, 281 NLRB 643,
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
665 (1986). This policy requires that such an employer’s
‘‘ban on employee solicitation be limited to immediate pa-
tient care areas.’’ Eastern Maine Medical Center, 253 NLRB
224, 226 (1980). The Respondent’s rule is not so limited and
is presumptively invalid. There has been no showing that
union solicitation in working areas of the Respondent’s facil-
ity which are not immediate patient care areas would either
disrupt care or disturb residents. Accordingly, I find that the
Respondent’s no solicitation rule is overly broad and violates
Section 8(a)(1). Ibid.
Alice Rogers’ testimony concerning Lyons’ prohibiting
employees from discussing the Union in the hallways was
credible and was uncontradicted. At the same time, Wagner’s
testimony established that supervisors were free to speak
against the Union in the same areas of the Respondent’s fa-
cility. The Respondent violated Section 8(a)(1) by applying
its no-soliciting rule in a discriminatory manner whereby it
prohibited prounion employees from discussing it in the hall-
way while permitting antiunion campaigning in the same
areas. Blue Bird Body Co., 251 NLRB 1481, 1485 (1980).
The Respondent also violated Section 8(a)(1) by removing
union literature from the tables and bulletin board in the
breakroom where employees had previously been allowed to
post information without restrictions. Jennings & Webb, Inc.,
288 NLRB 682, 690–692 (1988); Honeywell, Inc., 262
NLRB 1402 (1982).
4. Harassment of union supporters
Debra Lyle testified that before work on March 20 Carol
Wagner came into the breakroom where several employees
were present, handed Lyle a resident’s chart and insisted that
she read it. Wagner said that someone had started a rumor
that there was scabies, a highly contagious condition, in the
facility and that it was not true. Later in the day, Lyle was
called into Lyons’ office where Business Manager Sherry
Shaw was also present. Lyons told Lyle that there was a
rumor of scabies going around and that he had heard that she
had started it. Lyle denied that she was responsible for the
rumor. Lyons said that he was not going to put up with it
and if Lyle didn’t like it ‘‘there was the door’’ and she could
‘‘hit it.’’
Wagner testified that she had heard that Lyle was spread-
ing the story that there was scabies in the facility which
caused a panic. In order to alleviate this panic, she went to
the breakroom to assure the staff that the resident in question
‘‘did not have scabies, only a probable case.’’ She showed
the resident’s chart to Lyle and asked her to read it, then
showed it to another aide. Wagner informed the other em-
ployees of the need to keep the matter confidential.
Alice Rogers testified that she was present in the
breakroom that morning when Wagner came in looking for
Lyle. When Lyle arrived Wagner showed her a chart and
asked her if it said ‘‘scabies.’’ Lyle said she did not say it
and walked away. Wagner said she did not want people talk-
ing about it and left the room.
Lyle also testified that just after the election she was
called to Lyons’ office where Wagner and Mazzulli were
also present. Lyons did most of the talking and accused Lyle
of telling nursing aide Michelle Jako that if Jako did not vote
for the Union Lyle was going to untie the restraints on one
of Jako’s patients so that the patient would fall and Jako
would get fired. Lyle denied making any such threat to Jako
and said that she had a witness to her conversation with Jako
which occurred at Jako’s home the night before the election.
Lyons asked Lyle to write out her version of what had oc-
curred with Jako. Lyle said she refused because she was on
her own time and it did not happen as Lyons alleged. Lyons
told her that he was going to stand for it, that he was going
to have an investigation and that if she didn’t like it, there
was the door, hit it. He also told her that their conversation
should go no further than the people who were present in his
office.
Lyons did not testify concerning this incident. Wagner tes-
tified that she spoke to Lyle about making a threat ‘‘to set
someone up.’’ According to Wagner, she took this to mean
that Jako was going to be set up by loosening the restraints
on a patient.
Raelynn Susi credibly testified that about a week and a
half before the election, her supervisor, Sandra Malone, told
her that she had to come into work on her day off because
she had received three accusations the previous day that Susi
had been harassing employees on company time about the
Union. Susi denied the accusations and Malone said she had
no reason to disbelieve the people who told her. Later in the
day, Susi was called into Lyons’ office where Malone was
also present. Lyons told Susi that he had heard that she had
called some of their employees ‘‘liars.’’ Susi responded that
she couldn’t call someone a liar when she didn’t know who
had made the accusations or what they involved. Lyons
asked if she had used the word ‘‘liar’’ and when Susi said
she had, he said that he ‘‘would not have it,’’ that there was
enough hard feeling going on over the union matter and if
she wanted to put her accusations in writing he had lawyers
who would handle it. Lyons also told her if she ‘‘didn’t like
it, there was the door and the sidewalk continued on.’’
Susi credibly testified that on another occasion when a
rumor about scabies was going around she was called into
Lyons’ office. Lyons mentioned the scabies rumor and said
he wasn’t going to have it, that he did not want to look bad
to the surveyors and again said if she didn’t like it there was
the door and the sidewalk. Lyons did not testify about either
of these incidents involving Susi.
Jane Reed testified that during the 4 years of her employ-
ment by the Respondent she had participated in several April
Fools’ Day pranks, which were a common practice among
the employees, without being spoken to or disciplined prior
to 1990. On April Fools’ Day in 1990, Reed and two other
employees, Alice Rogers and Jo Rae Blanchard, participated
in a prank in which Reed and Blanchard called in to a nurs-
ing supervisor pretending to be afternoon shift employees
who would not be coming to work that day. Rogers, who
was at the nurse’s station where the calls were taken, yelled
‘‘April Fool’’ after the second call as Reed and Blanchard
came up the hall. The supervisor, Betty Lou Roth, laughed
about the prank with them and told them that she recognized
Reed’s voice and knew it was not Joanne Luedy, the aide
whom Reed had impersonated. On April 7, prior to the end
of her shift, Reed was called into Wagner’s office where
Mazzulli was also present. Wagner told Reed that Luedy was
upset about the prank and had gone to the administrator to
complain about it. She asked Reed to describe exactly what
had happened step by step. To Reed’s knowledge neither
Blanchard nor Rogers was questioned about the incident.
Reed also testified that on the day of the prank she had told
161HEARTLAND OF LANSING NURSING HOME
6 Jako’s pertinent testimony was:
By Mr. Bixler:
Q. Did Ms. Lyle say anything to you about what could happen
to you if you didn’t support the union?
A. Yes, she said that there was a possibility that I could be
set up.
Q. Okay, and did she say what she meant by that?
A. No, she just said there was a possibility that I could be
set up. She didn’t say that she would do it, or who would do.
She just said there was a possibility.
By Mr. Reehl:
Q. Ms. Jako, you did not understand what they were talking
about with regard to a set-up, I take it. Is that accurate?
A. Not quite. I mean, I know that she threatened me. I know
that. I mean, I definitely know that she threatened that I could
be set up.
Q. She threatened you?
A. Well, she didn’t say she was going to do it, but she said
it.
Q. That it could happen?
A. Yes.
Q. Did she indicate that maybe it could be by the company?
A. I don’t know. She just said that I could be set up. That’s
what I’m saying. She didn’t say that she would do it, or who
would do it. She didn’t mention any names.
7 Counsel for the General Counsel contends that in both of these
incidents Susi was issued a verbal warning which also violated Sec.
8(a)(3). The evidence does not establish that Susi received a verbal
warning that was part of the Respondent’s disciplinary procedure in
either case.
Luedy what she had done and Luedy had laughed and said
if she had known she wouldn’t have came in to work. Wag-
ner testified that she learned of the incident on April 2, when
Luedy and Supervisor Hazel Lodmell told her about it. She
said the employees who were called off were very upset
about the prank and that she had counseled Reed that it had
caused a lot of hard feelings and unrest and cautioned her
not to do it again, but that Reed was not given any form of
discipline for the incident.
Analysis and Conclusions
Each of the employees involved in these incidents was an
open and avowed union supporter whose views were known
to the Respondent’s supervisors. While the incident in which
Wagner confronted Lyle concerning a scabies rumor, taken
alone, might appear to be simply an attempt by Wagner to
allay the fears of Lyle and other employees concerning the
possible presence of scabies in the facility, the second con-
frontation involving Lyons makes it clear Lyle was being ac-
cused of spreading the rumor. The Respondent offered no
evidence to support this accusation beyond the testimony of
Wagner, whom, as I have already indicated, I found to be
a less than credible witness, that she had ‘‘heard’’ that Lyle
was spreading the scabies story. I find that by singling out
Lyle as the source of the scabies rumor and by suggesting
that if she did not like it she should leave the Respondent’s
employ was intended to harass her because of her union sup-
port and violated Section 8(a)(1). The Board considers state-
ments which imply that a union supporter is unhappy on the
job and should seek work elsewhere to be threatening and
coercive. Intertherm, Inc., 235 NLRB 22 (1978). This is also
the case with the Respondent’s accusing Lyle of threatening
to ‘‘set up’’ Michelle Jako by loosening the restraints on a
patient for whom Jako was responsible. There is no evidence
whatsoever that Lyle made such a threat to Jako or even
mentioned the possibility of restraints being loosened. The
testimony of Lyle and Jako was that Lyle did mention the
possibility of Jako being ‘‘set up,’’ but that she did not say
how or by whom this might be done. Jako’s testimony con-
cerning being set up is equally susceptible to the interpreta-
tion that she was being warned by Lyle that she could be
set up by antiunion advocates as it is to the interpretation
that she was being threatened that prounion advocates would
do so.6 Despite the ambiguity of Lyle’s comments to Jako,
the Respondent interpreted them as a threat that Lyle would
set up Jako and, in an apparent attempt to remove the ambi-
guity and make the alleged threat more credible, conjured up
that it involved loosening the restraints on a resident so that
he or she would fall and be injured. The Respondent through
Lyons and Wagner, confronted Lyle with its version of her
alleged threat to Jako, told her that it was going to have an
investigation and that if she didn’t like it she could hit the
door. Again, I find the Respondent’s actions, accusing Lyle
of a serious offense, an accusation which had little, if any,
validity and suggesting that if she didn’t like it she leave its
employ were threatening and coercive and meant to harass
her for her union support in violation of Section 8(a)(1).
As discussed above, during the Union’s organizing cam-
paign Raelynn Susi had been targeted by Shuey to be ‘‘bro-
ken down’’ because of her support for the Union. It appears
that as a part of this strategy Malone confronted Susi with
allegations from unnamed employees that she had been solic-
iting for the Union during working time. When, according to
Susi’s uncontradicted testimony, she denied the allegations
she was called before Lyons, who further accused her of
calling his employees ‘‘liars,’’ threatened her with a lawsuit
and suggested that she consider leaving the Respondent’s
employ. Lyons made a similar comment when talking to Susi
about the scabies rumor. The Respondent offered no expla-
nation as to why Lyons confronted Susi about the scabies
rumor. I find both incidents involved coercive attempts by
the Respondent to harass Susi because of her open support
for the Union and violated Section 8(a)(1).7
I believed Jane Reed’s testimony concerning the April
Fools’ Day prank. The only contrary evidence was the testi-
mony of Wagner, whom I do not credit. Neither Joanne
Luedy who Wagner claimed was upset by the prank nor
Hazel Lodmell the supervisor to whom Luedy had allegedly
first complained was called as a witness. According to the
credible testimony of Reed, she had told Luedy about the
prank and Luedy had laughed about it. Wagner offered no
explanation as to why it took 5 days after she learned of the
prank to speak to Reed about it if it had caused the ‘‘hard
feeling’’ and ‘‘unrest’’ she described. She also did not ex-
plain why only Reed was ‘‘counseled’’ about the incident
when two other employees were equally involved in it. When
the reason given for the Respondent’s action is false, another
reason may be inferred from the facts in the record as a
whole. Shattuck Denn Mining Corp. v. NLRB, 363 F.2d 466,
470 (9th Cir. 1966). I find that the facts indicate that Wagner
seized upon Reed’s involvement in a harmless prank, of a
type that had been engaged in by employees during previous
years without action by the Respondent, in order to harass
a known union supporter in violation of Section 8(a)(1).
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The warning form indicates these incidents occurred on April 18
and 19. The discrepancy is not significant.
C. Alleged Violations of Section 8(a)(3)
1. Jane Reed and Raelynn Susi
Jane Reed was an active union supporter from the start of
the organizing campaign. She had advised Supervisor Robin
Messer of her prounion position in mid-February. It was the
practice at the facility that if a resident did not want the food
offered to them at a meal they were offered a substitute.
Nursing aides such as Reed would go to the kitchen, knock
on the door, enter, and get what they needed. Reed testified
that near the end of February she was working in the dining
room and had to get a carton of milk for a resident. She
went to the kitchen, knocked and entered and asked a worker
for the milk. At that point, Robin Messer came up to her and
yelled at her to get out of the kitchen. Messer said that Reed
was not allowed in there anymore and thereafter she should
knock at the door and stand outside and wait for what she
needed. After this incident, Reed mentioned the occurrence
to two other aides, Candy Frye and Diana Hayes, and asked
them to go into the kitchen and see what happened. Both
aides went into the kitchen and got what they needed without
incident. Robin Messer testified that during a management
meeting with Shuey, he told her to keep nondietary employ-
ees who were prounion out of the kitchen to prevent them
from campaigning there. In accordance with Shuey’s instruc-
tions, she ordered Reed to stay out of the kitchen during late
February. On the same day, she allowed Frye and Hayes to
enter the kitchen because she did not know what their senti-
ments were about the Union.
Jane Reed testified that April 12, the day of the election,
she was not originally scheduled to work. However, she was
called to come in to work a 2-hour shift from 6 to 8 a.m.
that day, something she had never done before. Reed and
Eva Neff were assigned to give showers that morning. Al-
though their usual practice was to work together giving the
showers because of the danger a resident might fall, Super-
visor Lucy Mickelwicz, in the presence of Mazzulli, told
them to work separately and that if they needed help to call
her. Mickelwicz also pulled a chair out into the hall where
Reed and Neff were working and sat there observing them,
something that she did not normally do. Reed said that
Mazzulli and Supervisor Ray Sharp were also present in the
area observing them that morning. Although Reed would not
normally have been given a break while working a 2-hour
shift, at 7 a.m., Mickelwicz told Reed and Neff to leave the
floor and to take a 15-minute break. The normal breaks for
the day-shift aides did not begin until 8:15 a.m.
Reed testified that around April 20,8 at the end of her
shift, she was given a writeup ‘‘for too many call offs’’ by
Samra Mazzulli, who told her she was allowed 6 days in a
year and Reed had taken 9 and was being given a verbal
warning. Reed objected that some of the days Mazzulli had
included were days she had been off as the result of an in-
jury at work. Mazzulli said she would check on it and get
back to her on the following day. The next day Mazzulli tore
up the warning because it did include days when Reed was
off due to a work-related injury. However, as Reed began to
leave the room, Mazzulli called her back and gave a second
writeup based on days other than those she missed because
of the injury.
Robin Messer, the former supervisor of the dietary depart-
ment, testified that the policy calling for warnings for exces-
sive absences was not regularly enforced prior to the Union’s
organizing campaign. However, after the campaign, Messer
was told by Dennis Lyons to pull out the attendance records
of known prounion employees. She was to check those
records to see if any of the prounion employees ‘‘were in
any kind of writeup situations.’’
Samra Mazzulli testified that the absence policy calls for
a verbal warning for more than two absences within 60 days
or more than six within a 12-month period. She said that en-
forcement of this policy was not one of her priorities, but
that she had time available after the election in April to at-
tend to absenteeism problems. She said that she issued sev-
eral similar warnings at that time and that their proximity to
the election was coincidental. She testified that Lyons did not
tell her to go through the attendance records and write up
those who were in violation of the policy.
Raelynn Susi testified that immediately after she informed
her Supervisor Sandra Malone of her support for the Union,
Malone changed Susi’s work schedule. Susi had previously
alternated between a day-shift from 8 a.m. to 4:30 p.m. and
an afternoon shift from 11 a.m. to 7 p.m. She began being
scheduled to begin working later and to be required to stay
later in the evening, sometimes until 8:30 p.m., even though
there were no activities to be conducted later than 7 p.m.
When Susi asked about the change, Malone told her that one
of the reasons was that because Malone had to be out cam-
paigning on behalf of the employer and could only do so on
company time, Susi would have to do some of the activities
documentation that had previously been Malone’s responsi-
bility but which she no longer had time for. Susi also testi-
fied that as a result of Malone’s need to be out campaigning
against the Union, Susi had to run three-fourths of the activi-
ties and had to work 2 or 3 hours of unpaid overtime in
order to get Malone’s documentation caught up.
Susi testified that shortly after deciding to support the
Union in late February she asked Malone to give her a
schedule indicating when she was to take her lunch and
break periods because she was going to be working on a
weekend when Malone would not be present. Malone re-
sponded that Susi had never had scheduled breaks before,
that she was a responsible person who knew when the activi-
ties were going on, and that it was not necessary for her
breaks to be scheduled. Near the end of March, Malone in-
formed Susi that after discussions with Lyons they had de-
cided that Susi should have her lunch and break periods at
specific times. From that point on, the times of her breaks
were designated by Malone and her lunch periods were
scheduled for times when no other employees were taking
lunch.
Robin Messer testified that during March one of her die-
tary employees complained to her that she had been tele-
phoned by Susi to campaign for the Union at 8 or 8:30 the
previous night. Messer informed Malone of the complaint
and Malone said that Susi had been working at the time of
the call. Together they reported the matter to Shuey who said
Susi could not campaign on company time and proposed that
the telephone be removed from the activities office. Messer
was present in the activities office on March 22 when Lyons
163HEARTLAND OF LANSING NURSING HOME
9 The complaint alleges that this incident occurred on or about
April 16 while the evidence establishes that it was on April 13. This
difference is not significant and I find that the Respondent could not
have been misled by it.
10 I do not find that the Respondent’s actions with respect to Reed
on the day of the election constitute separate and independent acts
of unlawful surveillance and harassment.
called Malone on the telephone and said that he could not
hear her and that there was something wrong with the tele-
phone. The telephone was removed from the office and was
not returned until immediately following the election when
Lyons brought the telephone into the office and said it had
been fixed. Messer testified she had used the same telephone
a few minutes before Lyons’ call to Malone and there was
nothing wrong with it.
Raelynn Susi testified that the day following the election
she was summoned to Lyons office where Malone was also
present.9 Lyons accused Susi of making a telephone call to
an unidentified employee to campaign for the Union around
8:15 or 8:30 the night before the election while she was at
work. Susi told them that she had not made any calls from
work, but that she had made several calls immediately after
arriving at her house that night. Lyons response was to ask
Susi why the person who was called would lie about it. Susi
again denied making the call. Lyons told her that an inves-
tigation was going on, that she should consider herself ‘‘seri-
ously talked to’’ and that formal discipline would follow.
Analysis and Conclusions
The credible and uncontradicted testimony of Reed and
Messer establishes that the Respondent discriminated against
Reed by denying her access to the kitchen while other em-
ployees not known to support the Union were allowed to
enter. Although Reed identified Frye and Hayes as prounion,
Messer credibly testified that she did not know what their
sentiments were and that was the reason they were allowed
to enter the kitchen while Reed was not. The Respondent of-
fered no justification for changing its practice and excluding
Reed from the kitchen while she was engaged in performing
her usual duties and the testimony of Messer makes it clear
the Respondent’s motivation for doing so was to retaliate
against Reed because of her support for the Union and pre-
vent her from having contact with dietary employees she
might talk to about the Union. The Respondent violated Sec-
tion 8(a)(3) of the Act by discriminatorily prohibiting Reed
from entering the kitchen. Animal Humane Society, 287
NLRB 50, 59 (1987).
Counsel for the General Counsel contends that the Re-
spondent called Reed into work for 2 hours on the day of
the election, required her to work alone doing a task that two
aides usually did together, kept her under close observation
by supervisors, ordered her to leave the floor for an unsched-
uled break at the time the day-shift aides were coming onto
the floor to start their shifts and ended her shift before the
other aides started taking their normally scheduled breaks in
order to isolate Reed, a known prounion activist, and to pre-
vent her from contact with other employees on the day of
the election. The Respondent contends that there is no evi-
dence linking its treatment of Reed that morning to her union
support.
The credible and uncontradicted testimony of Reed estab-
lishes that her treatment on the morning of the election was
highly unusual and deviated from normal practice in each of
the respects cited by the General Counsel. The evidence is
clear that Reed’s prounion sentiments were known to the Re-
spondent and she had been subjected to other incidents of
unlawful harassment and discriminatory treatment because of
her union support. The Respondent offered no explanation
for its unusual treatment of Reed on April 12. The fact that
all this occurred on the morning of the election cannot be ig-
nored. In the absence of any reasonable explanation for its
actions, I infer that the Respondent brought Reed into work
for a limited time on the morning of the election in order
to be able to monitor and restrict her whereabouts and move-
ments that morning and to limit her opportunities to have
contact with other employees who would be voting in the
election that day. I find that the Respondent violated Section
8(a)(3) by its imposition of discriminatory working condi-
tions on Reed on the day of the election because of her sup-
port for the Union.10 St. Agnes Medical Center, 287 NLRB
242, 254 (1987); EDP Medical Computer Systems, supra at
1295–1296.
Although Reed said she did not agree with the dates listed
on the warning she received for excessive absences, there is
no specific evidence casting doubt on the correctness of these
dates. Consequently, it appears that Reed was in violation of
the Respondent’s policy and subject to receiving a verbal
warning. Under these circumstances, where the lawfulness of
issuing the warning to Reed depends upon the Respondent’s
motivation in doing so, the Board requires an analysis pursu-
ant to Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
800 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). Under Wright Line, the General Counsel
must make a prima facie showing sufficient to support the
inference that protected conduct was a motivating factor in
the Respondent’s decision to issue this warning to Reed.
Once this has been done, the burden shifts to the Respondent
to demonstrate that it would have taken the same action even
in the absence of protected activity on Reed’s part.
There is ample evidence of Reed’s open involvement in
the Union’s organizing campaign, the Respondent’s knowl-
edge of her prounion sentiments and activities and that she
had been subjected to other acts of harassment and discrimi-
nation by the Respondent because of her support for the
Union. There is also ample evidence of union animus on the
part of the Respondent given its opposition to the Union’s
organizing campaign and the numerous violations of Section
8(a)(1) and (3) of the Act discussed herein. There is also
Messer’s credible and uncontradicted testimony that Admin-
istrator Lyons directed her to look through the attendance
records of the employees she supervised and to single out
prounion employees for disciplinary action for violations of
the attendance policy. I find that the General Counsel has es-
tablished a prima facie case that the warning given to Reed
was motivated by antiunion considerations.
Mazzulli’s testimony and the documentary evidence pre-
sented by the Respondent establishes that she issued similar
warnings to other employees under her supervision at about
the same time this warning was issued to Reed, including
one to employee Delores Persiani, who had served as the
Company’s observer at the election. While it is a close ques-
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion, I find the Respondent has not established that it would
have taken the same action absent the protected activity on
the part of its employees. The timing of an employer’s action
can be persuasive evidence of its motivation. Limestone Ap-
parel Corp., supra at 736. I find that to be the decisive factor
here. In Reed’s case, according to the information on the
warning form, she had been in violation of the absenteeism
policy on a regular and continuing basis since as early as Oc-
tober 19, 1989, yet no action was taken until shortly after the
election. In the case of Persiani, who presumably was not a
union supporter, although she was in rather flagrant violation
of the policy with more than two absences in 60 days as of
May 22, 1989, and with more than six absences in 12
months as of July 18, 1989, her warning was not issued until
April 30, 1990, a matter of days after the filing and service
of the Union’s first charge in this matter, which alleged, inter
alia, that the issuance of certain verbal warnings to employ-
ees violated the Act. I infer that Persiani was given the warn-
ing at that time in order to mask its unlawful actions against
Reed. While Mazzulli seemed to imply that the Union’s or-
ganizing campaign kept her so busy that she couldn’t catch
up with attendance problems until after the election, both
Reed and Persiani were subject to receiving warnings long
before the organizing campaign even began. I find that the
Respondent violated Section 8(a)(3) of the Act by issuing a
verbal warning to Jane Reed on April 19.
Counsel for the General Counsel contends that the Re-
spondent discriminated against Raelynn Susi by changing her
work schedule, requiring her to work unpaid overtime, re-
quiring her to take her lunch and breaks at times it des-
ignated, by removing the telephone from the activities office
and by giving her an unwarranted verbal warning, all be-
cause of her activities in support of the Union. The Respond-
ent contends that Susi’s schedule did not change, that her
lunch and break periods were scheduled by Malone at Susi’s
request, that she worked only a minimal amount of unpaid
overtime, and that the verbal warning Susi allegedly received
was not documented and did not constitute a form of dis-
cipline.
Susi was an open and acknowledged union supporter and
the Respondent was aware of her sentiments. I find the Gen-
eral Counsel has established a prima facie case under Wright
Line, supra, with respect to each of the incidents involving
Susi except changing her work schedule. The evidence the
Respondent offered, consisting of Susi’s work schedules be-
fore, during, and after the Unions’s organizing drive, con-
firms Susi’s testimony that her schedule was changed to in-
clude more later starting and ending work tours than she had
before she informed Malone of her support for the Union and
contradicts Malone’s testimony to the contrary. However, I
find there is insufficient evidence to establish that this
change in Susi’s working hours was in and of itself discrimi-
natory. It is possible that it was done as a part of what I have
found was a plan or strategy on the Respondent’s part to iso-
late Susi and break her down, by requiring her to be at work
when there would be fewer employees present to influence
in favor of the Union, but that is too speculative to warrant
finding a violation. However, that is not the case with respect
to the change in her working conditions resulting from her
being required to work overtime in order to do some of
Malone’s work or her being required to take her lunch and
break periods at times designated by Malone.
Susi’s credible and uncontradicted testimony was that she
was given extra work to do by Malone involving the docu-
mentation of activities that had previously been Malone’s re-
sponsibility to perform. To add insult to injury, Malone in-
formed Susi that she was being given the extra work because
Malone had to spend her time campaigning against the Union
and she could only do it on company time. The Respondent
argues that Susi never turned in a request for overtime pay.
While her testimony indicates that may have been true, it
also indicates that overtime pay had to be approved by her
supervisor, Malone, who did not authorize it. Whether it was
turned in or not is beside the point, the fact is that Susi’s
working conditions were adversely impacted by being re-
quired to do what had been her supervisor’s work so that the
supervisor could campaign against the Union. This was coer-
cive and interfered with Susi’s rights as an employee and re-
sulted directly from the Respondent’s opposition to the
Union’s organizing campaign. I find that the Respondent vio-
lated Section 8(a)(3) by requiring Susi to perform additional
work during the period of the Union’s campaign.
Malone’s testimony that Susi requested that Malone des-
ignate the times for her lunch and break periods amounts to
a cynical distortion of the truth. Susi’s credible testimony es-
tablishes that shortly after she informed Malone of her sup-
port for the Union, she requested that Malone designate spe-
cific times for her lunches and breaks on one weekend dur-
ing which she would be working and Malone would not. In
all likelihood, Susi was seeking to protect herself from the
kind of harassment and coercion the Respondent would sub-
ject her to later on. Notwithstanding Susi’s request, Malone
declined, telling Susi that her responsible conduct in sched-
uling her own breaks during the past 2 years made it unnec-
essary. Nearly a month later, after consultation with Lyons,
Malone imposed a schedule of lunch and break periods on
Susi, which significantly limited her nonworking time contact
with other employees by requiring her to take most of her
breaks when no other employees were doing so. The Re-
spondent offered no reason for imposing the scheduled
breaks on Susi apart from Malone’s testimony that it was
done at Susi’s request, which I find is a pretext. Given the
evidence that Susi had been targeted by the Respondent to
be isolated and broken down because of her support for the
Union, I find that this scheduling was done in furtherance of
that effort and violated Section 8(a)(3) of the Act.
I find that the removal of the telephone from the activities
office did not violate the Act notwithstanding the suspicions
generated by the Respondent’s conduct in pretending the
telephone was defective and needed to be removed in order
to be repaired. The limited evidence concerning this matter
in the record indicates that the Respondent had reason to be-
lieve that Susi had made a call campaigning for the Union
from the telephone in the activities office during working
time and that it removed the telephone in order to prevent
her from doing so. While it may have used a more straight-
forward approach to accomplish a lawful objective, the evi-
dence fails to establish that removal of the telephone was
discriminatory or that it violated Section 8(a)(3) of the Act.
Unlike the matter leading to the removal of the telephone
which resulted from a credible report from an identified em-
ployee that Susi had called her about the Union while on
working time, there is no evidence in the record to support
the Respondent’s accusations that Susi had made such calls
165HEARTLAND OF LANSING NURSING HOME
during working time on the night before the election. Susi
credibly denied making the alleged calls while at work, but
said she did make some calls immediately after arriving
home. It is noteworthy that on the day Susi was accused of
having made the calls, the telephone which had been re-
moved from the activities office had not been returned. Nei-
ther Lyons nor Malone testified about this incident. The Re-
spondent apparently does not deny it, but argues that since
there is no documentation evidencing the fact that Susi had
received a warning, it did not amount to disciplinary action
against her. Susi credibly testified that Lyons, the principal
management official at the facility, told her that she should
consider herself ‘‘seriously talked to’’ and that ‘‘formal dis-
cipline’’ would follow. Under the circumstances, I find that
Susi was subjected to a verbal warning notwithstanding the
Respondent’s failure to document it in writing. Is is clear
that Susi considered it to be disciplinary action against her.
Inasmuch as there is no evidence in the record to support a
finding that Susi made the alleged telephone calls while at
work and Susi credibly denied doing so, I find this warning
was based on a pretextual allegation of misconduct and vio-
lated Section 8(a)(3) and of the Act.
2. Virginia Messenger
As noted above, after being interrogated by Wagner con-
cerning the Union’s organizing campaign in early February,
Virginia Messenger got actively involved, soliciting union
authorization cards, handbilling at the dip, passing out
prounion literature, including a letter to employees describing
her experience at another of the Respondent’s facilities, and
serving as the Union’s election observer. Messenger had also
been active in a previous union campaign at the Lansing fa-
cility. She had been enrolled in a part-time college program
in respiratory therapy while working for the Respondent. She
worked on the day shift and her schedule was set up so that
she had 2 days off during the week to go to school. Since
October 1989, she had a part-time job related to her res-
piratory therapy program at a nearby hospital which she
worked on her weekends off from Lansing. Messenger
credibly testified that Wagner was aware of her school pro-
gram and hospital job. Each semester she submitted her class
schedule and Wagner arranged Messenger’s work schedule to
accommodate it. She had also informed Wagner when she
got the job at the hospital on her off weekends. Wagner told
Messenger she was happy for her and had given the hospital
a good reference for her.
In January, because of her heavy course schedule, Mes-
senger sought an educational leave of absence from Lansing.
She asked Wagner about it and was told to go to the admin-
istrator. Messenger spoke to Acting Administrator Lucy
Rodenhauser and Regional Manager Eleanor Alvarez and
submitted a written request for a 3-month leave of absence,
which was approved. Messenger testified that Alvarez told
her she saw no problem with Messenger returning to her
day-shift position, but that she would have to work it out
with Wagner and Mazzulli. Messenger began her leave of
absence on February 12. On April 13, the day following the
representation election, she was telephoned by Mazzulli who
asked if she would be returning to her job in May. Mes-
senger said that she would and Mazzulli said she would be
working the day shift as she had before. Sometime later,
Messenger telephoned Wagner and asked if she was on the
schedule in May. Wagner said that she was not and a meet-
ing was set up for April 23. At the meeting, which Wagner,
Mazzulli, and Lyons attended, Messenger was told that she
had not been put on the schedule because she had not sub-
mitted a written request to return to work. Lyons said that
he could not authorize her either full- or part-time, that it
would not be fair to her replacement to take her out of the
position and give it to Messenger and that the handbook did
not require it. When Messenger said if he could not authorize
her for a full- or part-time position she would have to resign,
Lyons told her to put it in writing. Messenger said that she
did not want to quit and was told that they would put her
wherever they could. On May 1, she submitted a written re-
quest to return to work 2 weeks from that date. After Wag-
ner and Mazzulli told her they could not give her full-time
work they required her to put in writing that she would ac-
cept part-time, which she did on May 14. Messenger was put
on the schedule to work from 11 p.m. to 7 a.m. although she
had told Mazzulli, who makes out the schedules, that she
could not work that shift because of school. Mazzulli told
her to work out a trade with someone on another shift. Mes-
senger also mentioned to Mazzulli that she was working
every other weekend at the hospital. Messenger said she was
scheduled for an average of 14.5 hours per week compared
to 37.5 she had worked prior to her leave of absence, mainly
on afternoon and midnight shifts.
Messenger testified that on the weekend of June 9 and 10,
she was scheduled to work at Lansing on what normally
would have been her weekend off. This happened because on
the previous weekend she had taken 1 day off due to illness
and it was the practice at Lansing that if you took off one
of the days of a weekend, you were scheduled to work the
following weekend. As a result, Messenger was scheduled to
work from 7 a.m. to 3 p.m. at Lansing and 3 to 11 p.m. at
the hospital on both days. Although she attempted to trade
shifts at Lansing those days, she was unable to do so. On
Saturday morning, Messenger spoke to Nursing Supervisor
Jackie Briggs and told her about the conflict in jobs, that
Wagner was aware of her other job, and asked if she could
leave at 2:30 p.m. if she had all of her work done. Briggs
said it was okay with her but that she would have to call
Wagner. Messenger testified that in her experience the prac-
tice was that if someone had a legitimate reason for leaving
early and all her work was done, the nursing supervisor
would authorize it and that she had done so herself on at
least one other occasion. On June 9, she had all of her work
done and left at 2:30 with Briggs’ permission.
On Sunday June 10, Messenger spoke to Nursing Super-
visor Beverly Tisko, told her of her need to leave early to
work at the hospital and that she had been allowed to do so
the previous day. Tisko gave her permission to leave early.
At 2 p.m. Lyons came to Tisko’s station while Messenger
was nearby and asked if she was fully staffed. Tisko said
yes, but that Messenger was leaving at 2:30. Lyons asked her
if Messenger had written permission from Wagner to leave
early. Tisko said she did not know and asked Messenger,
who said she did not and did not know it was necessary.
When Tisko told Lyons she did not have it, he said that
Messenger could not leave early without a note from Wag-
ner. Tisko told Messenger what Lyons had said and that she
had to follow what he told her. Messenger asked Tisko what
would happen if she left and Tisko said she would probably
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be written up. Messenger told her she was going to leave and
did so at 2:37 p.m.
On Tuesday, June 12, Wagner called Messenger at home
and told her they needed to talk about what had happened
on the weekend and scheduled a meeting for that morning.
Messenger met with Wagner, Mazzulli, and Lyons. Wagner
asked her what had happened and Messenger said that she
had permission to leave until Lyons got there. Wagner told
her that the three of them had thought it over and had de-
cided to terminate her. Messenger asked why the punishment
was so severe and was told it was because she had walked
off the job and was insubordinate. Lyons handed her a termi-
nation notice.
Samra Mazzulli testified that the meeting on April 23 was
held to discuss Messenger’s return from her leave of absence
and when she was available to work. Messenger did not have
her schedule for the next semester and was unable to say
when she would be available. Messenger was told that she
could come back on full-time status but that it could not be
on the day shift as her position there had been filled and that
she would have to be available at the Respondent’s conven-
ience. According to Mazzulli, Messenger responded that she
couldn’t work days because she would have to leave for
school too early, she couldn’t work afternoons because she
would come in too late and couldn’t work midnights either.
Messenger was to get back to her with her school schedule
within the next few days but did not do so. Mazzulli then
sent her a letter telling her she was not on the current sched-
ule which ran until May 24 and asking her to give 2 weeks’
notice of the date she would be returning to work. Messenger
was on the schedule beginning on May 25 and was sched-
uled for seven shifts during the 2-week period. Messenger
actually returned to work on May 17 as a substitute for an-
other aide and also substituted on May 19 and 20. On the
3 following days, May 21 through 23, Messenger declined
requests that she substitute for someone.
Carol Wagner testified that prior to Messenger’s leaving
on her leave of absence she had worked 37-1/2 hours a week
on the day shift. Each semester Messenger brought in her
school schedule and Wagner worked out a schedule which
accommodated the class schedule and allowed her to work
full time. Wagner never scheduled Messenger to work when
she knew it would conflict with her class schedule. Wagner
did not have to make any accommodations for Messenger’s
weekend job at the hospital as it was routine for her to have
every other weekend off and Messenger scheduled her hos-
pital job so that it did not conflict with her job at Lansing.
According to Wagner, when Messenger came in on April 23
she brought her then-current school schedule and she could
not work days because it conflicted with her classes and she
couldn’t work afternoons because she couldn’t get there at 3
p.m., so it was not possible to give her 37-1/2 hours.
Wagner testified that she was informed by Tisko that Mes-
senger had left her shift early on the night it happened. She
discussed the matter with Mazzulli, Lyons, and Alvarez. She
and Lyons made the decision ‘‘that to be fair and consistent’’
Messenger should be terminated. This decision was made be-
fore she heard from Messenger, but she had the opportunity
to give her input during the meeting at which she was termi-
nated.
Beverly Tisko testified that she was first approached by
Messenger about leaving early on the morning of Saturday,
June 9. Messenger told her about her hospital job and said
it was ‘‘okay through the office.’’ Tisko referred her to
Briggs who was the supervisor in the area Messenger was
working that day. On Sunday, when Messenger was working
under her, she reminded Tisko that she would be leaving
early and said ‘‘the office was aware of it.’’ Tisko said okay
and to check with her before she left. When Lyons came into
the facility and asked about staffing, she told him that Mes-
senger was leaving early. Lyons asked if Messenger had ap-
proval from Wagner or Mazzulli and Tisko told him Mes-
senger said ‘‘the office had given her approval.’’ Lyons told
her if Messenger did not have written approval from Wagner
or Mazzulli she could not leave and she so informed Mes-
senger.
Analysis and Conclusions
The General Counsel contends that the Respondent vio-
lated Section 8(a)(3) of the Act by discriminatorily delaying
Messenger’s return from her leave of absence, by reducing
the hours she was scheduled to work upon return and by ter-
minating her. The Respondent contends that any delay in
Messenger’s return was caused by her failure to advise it
when she was available to work, that her failure to get more
hours on her return was the result of her inability to work
the shifts that were available for her and that she was termi-
nated for cause.
I find that the General Counsel has made out a prima facie
case under Wright Line sufficient to support the inference
that the adverse actions taken against Messenger were moti-
vated by antiunion considerations. There is ample evidence
that the Respondent was aware that Messenger was active in
the Union’s organizing campaign, even though much of it
was conducted while she was on her educational leave of ab-
sence, as well as in a previous organizing campaign by an-
other union. There is also substantial evidence of union ani-
mus on the Respondent’s part, including its opposition to the
Union’s campaign and the numerous other violations of Sec-
tion 8(a)(1) and (3) found herein.
The Respondent’s policy on leaves of absence provided no
guarantee that Messenger could return to her same shift or
even that a job would be available. I find that Alvarez’s
comment that she saw ‘‘no problem’’ with Messenger’s re-
turning to the day shift did not amount to a guarantee that
her day-shift position would be available. However, Mes-
senger credibly testified that on April 13 Mazzulli contacted
her by telephone, asked if she would be returning at the end
of her scheduled leave of absence, May 12, and when Mes-
senger said she would, told her she would be returning to the
day shift. Mazzulli did not deny making this telephone call
or telling Messenger she would return to the day shift. The
evidence establishes that prior to her leave of absence the
Respondent had always accommodated Messenger’s class
schedule by scheduling her work shifts so that they did not
conflict. Notwithstanding Mazzulli’s call and assurance to
Messenger that she would return to her old shift, by the time
of the April 23 meeting, the Respondent’s position had
changed. At this meeting, ostensibly arranged to set up Mes-
senger’s return to work, she was accosted by Lyons who
asked her if she was aware of the Union’s charges against
the Respondent and if she had a tape recorder in her purse.
Lyons also told Messenger he could not authorize either a
full- or part-time position for her and that the Respondent
167HEARTLAND OF LANSING NURSING HOME
11 Tisko attempted to portray her authority to grant such requests
as limited to situations involving health problems or emergency situ-
ations and said she would not have been able to permit an employee
to leave early to go to another job without approval from higher au-
thority. I do not credit that testimony. It is, in fact, exactly what she
did and what Briggs did on the previous day.
would no longer work around her school schedule. It was at
this meeting that Lyons made his comment about dotting i’s
and crossing t’s and Messenger was informed that she had
to give 2 weeks’ notice in writing that she wanted her job
back. The Respondent’s policy concerning returning to work
after a leave of absence does require 2 weeks’ notice, but
does not require that it be in writing or specify how it is to
be given. Messenger had given Mazzulli the required notice
in their telephone conversation on April 13. The Respond-
ent’s refusal to accept that and its insistence on a written no-
tice even after the April 23 meeting indicates to me that it
was attempting to harass her and impede her return to work.
The Respondent makes much of the fact that Messenger did
not have her school schedule for the upcoming semester at
the April 23 meeting or provide it thereafter. This appears
to be nothing but a smokescreen and a further attempt to put
the burden on Messenger for its failure to schedule her for
work after May 12. At the time of the meeting, Messenger
was attending classes and obviously aware of the schedule
that she was already following. Wagner’s testimony admitted
that Messenger had her then-current schedule with her at the
meeting and that it was the basis for Messenger’s being un-
able to work certain shifts and the reason why, in Wagner’s
words, ‘‘we didn’t have 37 1/2 hours to give her.’’ It appears
that the only reason Messenger could not be given 37-1/2
hours was that the Respondent had decided that it would not
work around her schedule as it had always done before, but
she would have to work around the Respondent’s, something
that was impractical if not impossible given that she was al-
ready enrolled in classes. The Respondent offered no reason
for this change in its practice and considering the evidence
as a whole, I infer that it was because of the Union’s orga-
nizing campaign and Messenger’s activities in support of it.
Nor was there any evidence, beyond the management rep-
resentatives’ self-serving assertions to Messenger, that her
position on the day shift was not available. It was apparently
available on April 13 when Messenger spoke with Mazzulli
about it.
I find that the Respondent has not established that it would
have taken the same action in the absence of protected activ-
ity on Messenger’s part. I find that its failure to put Mes-
senger back on the day shift as of May 13 and to accommo-
date her class schedule in the same manner it had previously
done and its failure thereafter to schedule her for 37-1/2
hours per week was motivated by its desire to retaliate
against her for engaging in protected activity and violated
Section 8(a)(3) of the Act.
For the reasons stated above, I find that the General Coun-
sel has made a prima facie case that Messenger’s termination
was motivated by antiunion considerations. The evidence es-
tablishes that Messenger found herself in a position where
she had to work at Lansing on her off weekend, when she
was also scheduled to work at the hospital, because illness
caused her to miss a day of work on the previous weekend.
After being unable to switch her hours at Lansing, on both
days Messenger made a request to her supervisor that she be
allowed to leave about 30 minutes early if all her assigned
work was finished. On Saturday, her request was granted and
she left 30 minutes early without incident. On Sunday, the
permission her immediate supervisor had granted was coun-
termanded by Lyons and because she left early anyway she
was terminated.
On both days, Messenger’s supervisors had granted her re-
quests to leave early and it was within their authority to do
so.11 The Respondent apparently concedes this but contends
that because Lyons revoked that permission on Sunday, Mes-
senger’s leaving early that day constituted abandonment of
her job and insubordination. Consequently, the lawfulness of
Messenger’s discharge turns on Lyons’ motivation in revok-
ing her permission to leave early. There is nothing in the
record to establish that Lyons was in a better position to
judge the staffing needs that afternoon than the supervisor
who granted Messenger’s request to leave early or that any
emergency or other situation existed that required Mes-
senger’s presence during the last half-hour of the shift. In its
brief, the Respondent seems to suggest that Tisko was misled
into granting Messenger’s request because she thought she
had ‘‘office approval.’’ The evidence does not support this.
Messenger’s credible testimony was that when she made her
requests to Tisko and Briggs for permission to leave early
she did not say that she had approval to do so. She told them
only that Wagner was aware of her job at the hospital.
Briggs was not called as a witness. I do not credit Tisko’s
shifting testimony that Messenger told her she had approval
to leave ‘‘from the office.’’ At first, Tisko’s testimony cor-
roborated that of Messenger that she had said that Wagner
was ‘‘aware’’ of her job at the hospital. Tisko next testified
that she told Lyons that Messenger told her ‘‘the office had
given her approval,’’ but immediately recanted, saying:
‘‘they didn’t give her approval, they just knew about it, and
was [sic] going to work around her schedule.’’ Still later,
when she was asked if she had given Messenger permission
to leave early, she testified: ‘‘with the knowing, and knowl-
edge that she told me that she had, had the office approval.’’
However, in a detailed report Tisko prepared immediately
following the incident and which the Respondent apparently
used as the basis for its decision to terminate Messenger,
Tisko made no mention of Messenger’s having said she had
approval from the office or anyone else. On the contrary, on
the report Tisko wrote that she told Lyons: ‘‘I approved her
leaving at 2:30 and Jackie did on Saturday.’’ According to
the report, after Tisko talked to Lyons and at his direction
asked Messenger if she had written approval from Wagner
or Mazzulli, Messenger said she did not, but ‘‘they were
aware of her schedule and were willing to work around it.’’
In any event, Lyons never testified that he revoked Mes-
senger’s permission to leave early because she had misled
Tisko. He testified that he did so because at their meeting
on April 23, concerning Messenger’s return to work and
scheduling, he told Messenger that ‘‘she’d have to work the
schedule that was provided to her unless she was given some
specific written permission by Samra or Carol, the sched-
ulers, to alter it.’’ According to Lyons, this was in accord-
ance with a provision in the Respondent’s employee hand-
book. However, what the pertinent portion of the employee
handbook referred to by Lyons states is: ‘‘Employees are not
permitted to . . . change the work schedule before getting
permission from their Supervisor.’’ There is no requirement
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Wagner, Mazzulli, and Messenger all testified in detail about the
April 23 meeting and none of them referred to any such requirement
being imposed on Messenger at the meeting.
13 The consolidated complaint alleges that Messenger’s discharge
also violated Sec. 8(a)(4) of the Act inasmuch as it occurred only
a matter of days after the Union filed an amended charge naming
Messenger as a discriminatee and the issuance of the original com-
plaint in Case 8–CA–22647, which alleged that the Respondent had
violated Sec. 8(a)(3) and (1) by denying Messenger’s request to re-
turn to full-time work. While the timing of the Respondent’s action
is suspicious, there is insufficient evidence to establish that these oc-
currences prompted the Respondent to discharge her. In any event,
the remedy would be the same.
that permission to leave early be in writing or that it come
from Mazzulli or Wagner. Messenger did all that was re-
quired when she obtained permission to leave early from
Tisko. If, in fact, Lyons had imposed a requirement on Mes-
senger on April 23 that she get written permission from
Mazzulli or Wagner before making any alteration in her as-
signed schedule, something that none of the three other per-
sons who were at the meeting mentioned in their testi-
mony,12 it would have subjected Messenger to disparate and
discriminatory treatment since there is no evidence any other
employee was subject to the same requirement. Since it ap-
pears, and I find, that Lyons did not impose such a require-
ment on Messenger on April 23, his action on June 10 had
no justification, was pretextual and amounted to desperate
treatment and harassment of Messenger because of her sup-
port for the Union. Because Lyons’ actions in revoking Mes-
senger’s permission to leave early and requiring her to stay
until the end of her shift were unlawful, the Respondent can-
not premise its discharge of Messenger on her failure to ac-
quiesce in this discriminatory treatment. See Joe’s Plastics,
287 NLRB 210, 211 (1987); Crestfield Convalescent Home,
287 NLRB 328 (1987).
In summary, I find that the Respondent has not established
that it would have discharged Messenger in the absence of
protected activity on her part. After Messenger had obtained
permission to leave her shift early on June 10 in order to go
to a second job, something that she was also permitted to do
on June 9, Dennis Lyons learned of it and revoked that per-
mission on the pretextual basis that Messenger had not ob-
tained written permission from Wagner or Mazzulli. There
was no evidence that the Respondent had a policy requiring
such permission or that any other employee was required to
get it in order to leave early. There was no evidence that
Messenger’s presence was needed or that Lyons had any rea-
son for denying her permission to leave other than to harass
and penalize her for her activities in support of the Union.
I find the Respondent violated Section 8(a)(3) of the Act by
discharging Virginia Messenger on June 12.13
IV. THE OBJECTIONS TO THE ELECTION IN
CASE 8–RC–14289
The Union filed timely objections to the election con-
ducted on April 12, 1990. In view of my findings in Cases
8–CA–22647 and 22792 that the Respondent committed nu-
merous violations of Section 8(a)(1) of the Act in the manner
described herein, most of which occurred during the period
between the date of the filing of the Union’s representation
petition and the date of the election, I conclude that those
unfair labor practices are sufficient to warrant setting aside
the election. Likewise, I find that the Union’s objections are
meritorious to the extent they are consistent with the unfair
labor practices found herein to have occurred during the crit-
ical period before the election.
CONCLUSIONS OF LAW
1. The Respondent, Health Care and Retirement Corp. of
America, doing business as, Heartland of Lansing Nursing
Home, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by:
(a) Coercively interrogating employees concerning their
union sympathies and activities.
(b) Soliciting grievances with the implied promise of fa-
vorably adjusting those grievances in order to dissuade em-
ployees from supporting the Union.
(c) Threatening that an employee would lose her chances
for advancement with the employer and ruin her chances for
future employment elsewhere because of her support for the
Union.
(d) Threatening an employee with loss of benefits if the
Union was selected as the collective-bargaining representa-
tive of its employees.
(e) Telling an employee that if the Union got in a strike
was inevitable, thereby leaving the impression that the em-
ployer would not bargain with it in good faith.
(f) Telling an employee that in the event of a strike she
could not cross the picket line and would lose her job be-
cause her replacement would not leave.
(g) Implying that an employee could avoid reprisals by the
employer by renouncing her support for the Union.
(h) Implying that it was futile for the employees to select
the Union as their collective-bargaining representative.
(i) Threatening an employee with reduced working hours
because of her support for the Union.
(j) Threatening an employee that her support for the Union
would ruin her personal friendship with a supervisor.
(k) Threatening an employee with stricter enforcement of
the employer’s work rules because of the employees’ support
for the Union.
(l) Conducting surveillance of its employees’ union activi-
ties in order to coerce and intimidate them.
(m) Maintaining an overbroad rule prohibiting solicitation
in work areas other than immediate patient care areas and by
discriminatorily enforcing a rule prohibiting campaigning for
the Union in hallways while permitting campaigning against
the Union in the same areas.
(n) Removing prounion literature from the breakroom and
from a bulletin board where employees had previously been
permitted to post information without restriction.
(o) Subjecting employees to verbal harassment and abuse
because of their support for the Union.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by:
(a) Discriminatorily changing employee Jane Reed’s work-
ing conditions by prohibiting her from entering the kitchen
during the course of her duties and requiring her to work
under conditions intended to limit and restrict her contact
with other employees because of her support for the Union.
169HEARTLAND OF LANSING NURSING HOME
14 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.
(b) Issuing verbal warnings to Jane Reed and Raelynn Susi
in order to retaliate against them because of their support for
the Union.
(c) Discriminatorily changing employee Raelynn Susi’s
working conditions by requiring her to take her lunch and
break periods at specific times in order to minimize her non-
working time contacts with other employees because of her
support for the Union and requiring her to work uncompen-
sated overtime and to do a supervisor’s work so that the su-
pervisor would have time to campaign against the Union.
(d) Discriminatorily delaying employee Virginia Mes-
senger’s return to work from an educational leave of ab-
sence, failing to return her to her day-shift position, refusing
to arrange her work schedule to accommodate her class
schedule as it had previously done, and reducing her hours
of work because of her support for the Union.
(e) Discriminatorily discharging Virginia Messenger be-
cause of her support for the Union.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. The Respondent did not engage in those unfair labor
practices alleged in the consolidated complaint not specifi-
cally found herein.
7. The Union’s objections have been sustained to the ex-
tent they involve the violations of Section 8(a)(1) found here-
in to have occurred during the critical period prior to the
election and the Respondent has interfered with and illegally
affected the results of the election conducted by the Board
on April 12, 1990.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent violated Section 8(a)(3)
and (1) of the Act by delaying Virginia Messenger’s return
to work following an educational leave of absence, reducing
her hours when she did return to work and discharging her
on June 12, 1990, in order to discourage her from engaging
in protected activities, I shall recommend that the Respond-
ent be required to offer her immediate and full reinstatement
to her former position of employment, or if that position no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges pre-
viously enjoyed, and to make her whole for any loss of earn-
ings she may have suffered as a result of the discrimination
against her. Backpay shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to
be computed in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
I believe a broad cease-and-desist order is appropriate in
this case in view of the Respondent’s numerous, varied and
egregious acts of misconduct which involved most of the top
level of management at the Lansing facility, which continued
on well after the election and which demonstrate a deliberate
disregard of its employees’ Section 7 rights. Clark Manor
Nursing Home Corp., 254 NLRB 455, 459 (1981); Hickmott
Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Health Care and Retirement Corp. of
America d/b/a Heartland of Lansing Nursing Home, Bridge-
port, Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning their
union activities or sympathies.
(b) Soliciting grievances with the implied promise of fa-
vorably adjusting those grievances in order to dissuade em-
ployees from supporting the Union.
(c) Threatening that employees will lose their chances for
advancement or future employment because of their support
for the Union.
(d) Threatening employees will lose benefits, that a strike
is inevitable and that they will not get their jobs back in the
event they select the Union as their collective-bargaining rep-
resentative.
(e) Threatening employees with reduced working hours
and the loss of personal friendship with supervisors because
of their support for the Union.
(f) Telling employees or implying that their support for the
Union is futile because they will not be any better off than
they were without representation by the Union.
(g) Implying that employees can avoid reprisals by re-
nouncing their support for the Union.
(h) Threatening employees with stricter enforcement of
work rules because of their support for the Union.
(i) Conducting surveillance of employees’ union or other
protected activities.
(j) Enforcing rules prohibiting solicitation in its facility
other than in immediate patient care areas and
discriminatorily prohibiting campaigning for the Union in
areas where campaigning against it is permitted.
(k) Removing or prohibiting prounion literature from break
areas or on bulletin boards where other information is rou-
tinely allowed to be posted.
(l) Subjecting employees to verbal harassment or abuse be-
cause of their support for the Union.
(m) Requiring employees to do extra work or work un-
compensated overtime so that supervisors will have time to
campaign against the Union.
(n) Changing employees’ hours and working conditions in
order to retaliate against them for engaging in union or other
protected activity or in order to limit their contact with other
employees during nonworking time.
(o) Issuing verbal warnings to employees in order to retali-
ate against them for engaging in union or other protected ac-
tivity.
(p) Delaying employees’ return to work from leaves of ab-
sence, denying them the right to return to their former posi-
tions and/or reducing their working hours because they en-
gage in union or other protected activities.
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Sterling Sugars, 261 NLRB 472 (1982).
16 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.’’
(q) Discharging employees in retaliation for their support
of the Union.
(r) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of rights guaranteed them
in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Virginia Messenger immediate and full rein-
statement to her former position of employment or, if that
position no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other rights and
privileges previously enjoyed, and make her whole for any
loss of earnings she may have suffered because of the dis-
crimination against her, plus interest. Backpay and interest
due hereunder shall be computed in the manner described in
the remedy section of this decision.
(b) Remove from its records all references to the verbal
warnings issued to Raelynn Susi on April 13, 1990, and to
Jane Reed on April 19, 1990, and the unlawful discharge of
Virginia Messenger on June 12, 1990, and notify them that
this is being done and that such actions will not be used
against them in the future in any way.15
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to deter-
mine the amount of backpay due under the terms of this
order.
(d) Post at its facilities in Bridgeport, Ohio, copies of the
attached notice marked ‘‘Appendix.’’16 Copies of the notice,
on forms provided by the Regional Director for Region 8,
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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the election in Case 8–RC–
14289 be set aside and that said case be severed and re-
manded to the Regional Director for Region 8 for the pur-
pose of conducting a new election. The Notice of Election
shall contain the following paragraph, as provided in Lufkin
Rule Co., 147 NLRB 341 (1964):
NOTICE TO ALL VOTERS
The election on April 12, 1990, was set aside be-
cause the National Labor Relations Board found that
certain conduct of the Employer interfered with the em-
ployees’ exercise of a free and reasoned choice. There-
fore, a new election will be held in accordance with the
terms of this Notice of Election. All eligible voters
should understand that the National Labor Relations
Act gives them the right to cast their ballots as they see
fit, and protects them in the exercise of this right, free
from interference by any of the parties.
IT IS FURTHER ORDERED that the consolidated complaint be
dismissed insofar as it alleges violations not specifically
found herein.
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 vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT interrogate our employees concerning their
union activities or sympathies.
WE WILL NOT solicit grievances from our employees with
the implied promise that those grievances will be favorably
adjusted in order to dissuade them from supporting United
Food and Commercial Workers International Union, Local
Union 23, AFL–CIO–CLC.
WE WILL NOT threaten our employees that they will lose
their chances for advancement or future employment because
of their support for the Union.
WE WILL NOT tell our employees that they will lose bene-
fits and/or that a strike is inevitable and that they will not
get their jobs back in the event they select the Union as their
collective-bargaining representative.
WE WILL NOT threaten our employees with reduced work-
ing hours or the loss of personal friendships with supervisors
because of their support for the Union.
WE WILL NOT tell our employees or imply that their sup-
port for the Union is futile.
WE WILL NOT imply that employees can avoid reprisals by
renouncing their support for the Union.
WE WILL NOT threaten our employees with stricter en-
forcement of work rules because of their support for the
Union.
WE WILL NOT engage in surveillance of our employees’
union or other protected activities.
WE WILL NOT enforce rules prohibiting solicitation in
areas of our facility other than immediate care areas and
WE WILL NOT discriminatorily enforce rules prohibiting
campaigning for the Union in areas where campaigning
against the Union is allowed.
WE WILL NOT remove or prohibit prounion literature in
break areas or on bulletin boards where other information is
routinely allowed to be posted.
171HEARTLAND OF LANSING NURSING HOME
WE WILL NOT subject our employees to verbal harassment
or abuse because of their support for the Union.
WE WILL NOT require our employees to do extra work or
work uncompensated overtime so that supervisors will have
time to campaign against the Union.
WE WILL NOT change our employees’ working hours or
conditions in order to retaliate against them because of their
support for the Union or in order to limit their nonworking
time contacts with other employees.
WE WILL NOT issue verbal warnings to employees in order
to retaliate against them because of their support for the
Union.
WE WILL NOT delay our employees’ return from leaves of
absence, deny them their former positions and/or reduce their
working hours in order to retaliate against them because of
their support for the Union.
WE WILL NOT discharge our employees because they en-
gage in union or other protected activities.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL offer to Virginia Messenger immediate and full
reinstatement to her former position of employment, or if
that position no longer exists, to a substantially equivalent
position, without prejudice to her seniority or the other rights
and privileges she previously enjoyed, and WE WILL make
her whole for any loss of earnings she may have suffered be-
cause of our unlawful discrimination against her, with inter-
est.
WE WILL remove from our records all references to the
discharge of Virginia Messenger and the verbal warnings
given to Raelynn Susi on April 13, 1990, and Jane Reed on
April 19, 1990. WE WILL inform them this is being done and
that they will not be used against them in the future in any
way.
HEALTH CARE AND RETIREMENT CORP. D/B/A
HEARTLAND OF LANSING NURSING HOME