Jefferson House Nursing Home

National Labor Relations Board - Board Decisions

Jun 24, 1969

176 N.L.R.B. 989 (N.L.R.B. 1969)

MOOREHAVENS, INC.
Moorehavens, Inc. d /b/a Jefferson House Nursing
Home and Service Employees ' International Union,
Local 38, AFL-CIO. Case 19-CA-4069
June 24, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On February 27, 1969, Trial Examiner Martin S.
Bennett issued his Decision in this proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also
found that Respondent had not engaged in certain
other unfair labor practices and recommended that
the allegations of the complaint pertaining thereto
be dismissed. Thereafter, Respondent and the
General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs, and
Respondent filed a brief in opposition to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Rursul nt to Section 10(c) of the National
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Moorehavens, Inc.
d/b/a Jefferson House Nursing Home, Tacoma,
Washington, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT , Trial Examiner : This matter was
heard at Tacoma , Washington, on December 3, 1968. The
complaint , issued October 4 and based upon a charge filed
June 28, 1968, by Service Employees' International
Union, Local 38, AFL-CIO, herein called the Union,
alleges that Respondent , Moorehavens , Inc. d/b/a
Jefferson House Nursing Home , had engaged in unfair
989
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act. Briefs have been submitted by the General
Counsel and Respondent .' Upon the entire record in the
case, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Moorehavens, Inc. d/b/a Jefferson House Nursing
Home is a Washington corporation engaged in the
operation of four proprietary nursing homes in that state.
One of these is Jefferson House Nursing Home at
Tacoma, Washington , and is the only ho zo involved in
this proceeding . Respondent enjoys a gross volume of
business in excess of $500,000 and purchases goods and
supplies which originate outside the State of Washington
in excess of $5,000 per annum . I find that the operations
of Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Service Employees' International Union, Local 38,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the Issues
The Union commenced an organizational campaign
among the 35 to 40 employees at this installation on April
26, 1968, after being contacted by employee Margaret
Hales. The General Counsel alleges that Respondent
engaged in various acts of interference, restraint, and
coercion during May and June and that it discriminatorily
discharged Hales, Josephine Mitchell, and Arnold
Christensen, three out of five card signers , during June
because of their union activities.
William Moore is president and general manager of
Respondent. Duane McCormies is executive vice president
and maintains his office at this installation. McCormies
had also managed this home until some time in June when
John Gregory, the assistant manager, assumed that post.
Fronia Barlindahl is the head nurse and the evidence
demonstrates that she is a supervisor. The head
housekeeper is Mary Lopez whose supervisory status is
not clear, although she did participate in one decision to
terminate employees. In any event, she is privy to
management decisions. Moore and McCormies admitted
that they learned of the union activities in late May or
early June.
B. The Discharge of Arnold Christensen
Christensen entered the employ of Respondent in May
of 1968 in a general maintenance capacity . One week
later, he was placed in charge of maintenance with two
subordinates and given an increase of $25 per month. I
'After the close of the hearing , the General Counsel moved , without
opposition , for the correction of certain minor errors in the transcript. The
motion is hereby granted.
'These findings are based in part upon testunony herein which, in effect,
adopts stipulations entered into by Respondent in Cases 19-RC-4726 and
19-RC-4712 involving two other nursing homes operated by Respondent.
176 NLRB No. 135
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that this post was at best that of job leader and that
he was not a supervisor . This was 2 months sooner than
was customary . His work was complimented on many
occasions by McCormies and he received no criticism
thereof.
Christensen became interested in the Union, signed a
card on June 17 and distributed 8 to 10 cards, as he
testified , after June 14 or 16; one of these was given to
Head Housekeeper Mary Lopez.'
McCormies singled out Christensen for a talk on a date
specifically placed by McCormies as the morning of June
18; Christensen placed it I week before his discharge, but
conceded that he might be "totally incorrect" as to the
time . I find that it was June 18. Here, as elsewhere, there
is conflict in the testimony.
Christensen testified that on this occasion, in the
presence of Assistant Manager Gregory and David Peuse,4
McCormies said that he understood Christensen had been
engaging in union activities . Christensen admitted that this
was the fact. McCormies replied that "there would be no
union activity going on on the premises" and that if there
was a repetition thereof, he "would run me out of there so
fast it would make my head swim."
McCormies admitted that he had heard of
Christensen ' s union activities and testified that he spoke
with Christensen and Peuse in the presence of Gregory,
commented on the union activities and asked them to
restrict it to "off-duty hours" and not to waste "duty
time ." He admitted that his nephew had previously
advised him that paid time was being wasted and denied
forbidding Christensen to engage in union activity on
company time or on company property. He was shown his
affidavit wherein he deposed that he forbade Christensen
on penalty of discharge to "conduct any union activities
on our time or premises ." McCormies testified further
that at the time he gave this statement he told his
interrogator , counsel herein , that he objected to the use of
the word "premises" on the ground that he had not used
it. He was under the impression that it had been stricken
as was done with five other corrections he had requested.
He claimed that his interviewer said that he saw nothing
wrong with the use of the term . This latter claim is
unrefuted. It would seem that company counsel was not
present on this occasion . Gregory was not questioned
concerning the incident and the testimony of Peuse° is
similarly silent.
McCormies testified further that Respondent had
previously encountered this problem at its other homes,
that it had received advice as to its rights and restrictions
and that he was aware of the significance of restricting
union activities on company premises as such . He pointed
further to a speech read by him to employees that
afternoon which is a one-page document wherein he, inter
alia, commented on the union campaign , stated that they
had a free choice, made several statements of a
non-coercive nature and invited their questions in the
future. Therein, at the close, he requested that they not
use "your scheduled work time in this manner ," i.e., in
effect contending that he followed a consistent course in
his talk that morning with Christensen. In this posture of
the matter , I credit McCormies and find that he did not
-TITTis-testimony is viewed literally , he may have signed his own card
after at least part , if not all, of this distribution.
'?use was Christensen 's helper and the nephew of McCormos.
'As reflected only in his pretrial affidavit , the parties having stipulated
that it be thus received because of his unavailability . This was also done
for the same reason in the cases of David Walters and Vivian Everett.
impose an undue restriction upon Christensen on this
occasion . Stoddard-Quirk Mfg. Co., 138 NLRB 615.
Christensen 's employment terminated on June 19 or 20,
1968, under the following circumstances , and here as well
there is considerable conflict.
Early in the morning , according to Christensen, he
visited the office and spoke with Gregory and McCormies.
He variously and successively testified that he spoke to
them "regarding union activities "; that the pressure upon
him "because of my union activity was intolerable"; that
"if I wanted to be in the Union , I couldn 't live in that
place. I couldn 't work in the place"; that "there was an
area of harassment"; that "They were harassing me
regarding my union activities"; that it had become
intolerable"; and that "Under these circumstances, I
would prefer to quit."
He later denied , in effect, that he had quit on this
occasion. I note that there is no evidence of "harassment"
of Christensen other than the respective versions of his
conversation with McCormies on June 18 , set forth above.
On the other hand, Gregory testified that Christensen
came to the office and announced " I quit ." When asked
for the reason , he explained that he resented Gregory
coming to him from time to time with instructions how to
do his work . Gregory replied that his resignation was
accepted and asked him to put it in writing . Christensen
responded that he would do so during his lunch hour and
left.
McCormies basically agreed with Gregory. Christensen
entered the office, referred to a major fence project on
which he was engaged , and mentioned other "mundane"
and. "superfluous assignments ." He then stated that he
.,was going to quit." Gregory accepted the resignation and
asked him to put it in writing . Christensen responded that
he would do so on his coffeebreak . I find, on their
versions , that Christensen contemplated working for at
only a portion of the day and turning in his resignation
later.
David Walters corroborated Gregory and McCormies.
He deposed that at 9:30 that morning he entered the
storage room and encountered Christensen, who stated "I
just quit your establishment ." Walters expressed surprise
and Christensen then advised him to contact the Union,
presumably for more desirable employment . David Peuse
deposed only that he observed Christensen and Walters
conversing in a low voice on this occasion and that he
then heard Christensen advise Walters how to obtain a job
through a union.
To sum up, the theory of the General Counsel is that
inasmuch as Christensen worked a short additional period
that day, he did not quit . The mutually corroborative
evidence by Respondent preponderates otherwise. And,
Christensen in large measure supports this evidence
because he admittedly introduced the topic of quitting.
Respondent was willing to accept an immediate letter of
resignation , but Christensen chose to submit the letter
later; this is not inconsistent with a quit that morning. A
request for such a letter by an employer in an
organizational context would appear entirely
understandable . I find , therefore , that Christensen quit his
employment that morning and his letter of resignation was
to be turned in by him an hour or two later at the most,
with the apparent aim to work until then.
About 1 hour later, Christensen and employee David
Peuse were in the pantry during their coffeebreak. A
kitchen helper named David Walters was also in the area
on an errand.
MOOREHAVENS, INC. 991
Christensen testified that Moore passed by and, visibly
agitated, stated that there would be "no union activities
going on here ." Christensen did not reply . Moore told him
to collect his pay and leave the premises . He went to the
office and Moore instructed McCormies to pay off
Christensen because he was fired . Moore was not
questioned concerning the incident and the record does not
disclose whether he was aware of the Christensen quit
earlier that morning.
As found, Walters was previously told by Christensen
that he had quit. Walters deposed only that Moore spoke
on this occasion , but was not asked as to the content
except to state that "Mr . Moore did not want anyone
unionizing on company time . Mr. Christensen knew this."
Peuse deposed that Moore stated that if they were
"talking Union on the job," this was not agreeable and
that he, Moore, "would accept your time as of that
moment." Christensen was the only one of the three who
responded and he stated that there was no need to "run
me out because I'll just walk out." He proceeded from the
scene with Moore to the office and it is undenied that
McCormies handed him a document to sign . This stated
that he was terminating his employment by mutual
agreement with Respondent . McCormies and Christensen
differed as to whether Christensen read this.
The depositions of Peuse and Walters have been
previously relied upon rather than the version of
Christensen and are again relied upon herein. The
affidavit of Peuse discloses, and I find, that Moore offered
to accept the resignation of the three if they were talking
about the Union on company time. No one pointed out
that, in fact, two of the three were on a coffeebreak. To
the contrary, only Christensen spoke up and he, in effect,
quit again . In view of the foregoing considerations, I find
that Christensen quit his employment on this date and
that Respondent has not engaged in conduct violative of
the Act in this respect.'
C. Josephine Mitchell
Mitchell entered the employ of Respondent on
December 1 , 1967, as a laundress and was the only one in
the home . While at work on a Friday morning near
Christmas, she telephoned Head Housekeeper Lopez at
the latter ' s home and informed her that she was leaving
the employ of Respondent at the end of the day to accept
other employment; she did finish the day. Mitchell
uncontrovertedly testified , and I find , that during that day
McCormies visited her and told her that if her new
employment did not work out, she could return to
Respondent with a 25-cent raise to $1.50 per hour.
After 1 day at her new position, Mitchell changed her
mind and telephoned McCormies who promptly rehired
her, stating that he would terminate her replacement at
the end of the week and that Mitchell should return on
the following week. She did return to work for
Respondent around January 1 at the higher rate of pay.
This raise , it may be noted , was generous, because
Respondent then customarily - gave employees a 5-cent
raise every 6 months.
Mitchell uncontrovertedly testified , and I find , that on
several occasions she told Lopez that she was eager to
have a union in the home , that she wanted the home "to
'While it is possible to construe Moore's conditional statement as
imposing an invalid rule, I do not believe that the evidence is sufficiently
clear and substantial to warrant a finding that this was an-attempt to
curtail union activity during nonworking time.
go Union" and that if an organizer appeared on the scene,
she wanted her name to be first on his list. It would
appear that this took place after the commencement of
the Union campaign in April. On one of these occasions,
late in her employment, Lopez told her that this talk
could "run you into trouble" and to keep her voice
"down."
About 2 weeks .before her termination on June 11,
1968, Mitchell filed an application to take a Civil Service
examination as a dental assistant and so informed Lopez
at the time. She told Lopez that if and when she received
a notice to take the examination she would advise Lopez
thereof and, further, that if she were offered other
employment she would give 2 weeks' notice because she
had "done wrong" in leaving without adequate notice the
previous December.'
On June 10, Mitchell visited the union hall and signed a
card. On June 11, Head Nurse Barlindahl asked Mitchell,
as. the latter testified, if it was true that she had applied
for a Civil Service test. Mitchell said that this was the
fact. Barlindahl then gave her 2 weeks' notice, stating that
Respondent needed someone permanent on the job; no
other reason was given.
Barlindahl was asked why Mitchell and Margaret
Hales, who also received 2 weeks' notice on June 11, were
terminated. She replied generally that "they" were not
cooperating with other people in the home and that their
work was sloppy and unsatisfactory. She further testified
that she did not know "for sure" whether they had signed
cards as of June 11. Lopez, while citing instances of
improper laundering, gave the Civil Service application as
the reason.
On June 18, McCormies held a general meeting of
employees , discussed the union campaign, and made a
reference to two employees who had been laid off, but
assigned no reasons. Mitchell, who was serving out her 2
weeks' notice, uncontrovertedly testified, and I find, that
she telephoned McCormies that evening and asked why
she had been terminated. He replied that this was because
she had looked for work elsewhere; Mitchell denied this.
He then stated that "maybe" it resulted from the
shrinkage of clothes in the laundry. After this statement
from McCormies, Mitchell left Respondent's employ
before her notice expired.
Lopez testified also that the decision to terminate the
two women was made at a meeting late in May attended
by Barlindahl, Lopez, and McCormies at which Lopez
informed the others of the Civil Service application by
Mitchell; Gregory apparently was also present.
There are a number of reasons why Respondent's
contentions herein do not stand up.
(1) Respondent has shifted its defenses in Mitchell's
case. While originally relying on her !Civil Service
application, it, later in the day, raised her alleged
deficiencies as a laundress.
(2) Barlindahl, when asked why Mitchell was not
discharged until June 11 when the decision had been made
back in May, replied that Lopez had hired Mitchell, that
she and Lopez worked different shifts, and that they
planned to be together and announce this decision to
Mitchell. Yet, the record discloses that Barlindahl alone
confronted ' Mitchell with the bad news on June 11.
'This finding is based on the testimony of Mitchell , a clear and articulate
witness . Lopez testified that Mitchell told her that she might hear about
this opportunity in a day, weeks or a month , but that as soon as she did
she would have to leave . Lopez was a vague and unsatisfactory witness in a
number of respects, as will appear below.
992 DECISIONS OF NATIONAL
Moreover, Barlindahl is contradicted by Lopez, who
testified that at the May meeting it was decided that
Barlindahl would hand out the notice. This, therefore, is
indicative of a hastily arrived at decision in June to
eliminate an outspoken union advocate.
(3) Despite attempting to portray Mitchell as an
unsatisfactory worker, the fact is that Respondent gave
her a raise in excess of its normal wage policy after
observing her work for 3 or 4 weeks, in an effort to
procure her return and indeed terminated her replacement.
This appears to be a more objective indication of her true
ability.
(4) Respondent ' s contention concerning the Civil
Service examination is predicated upon much speculation.
For example, the test might not be given; if it were given,
Mitchell might not take it; if she took it, she might fail; if
she passed , she might not be offered employment; if she
ultimately were offered employment, she might reject it.
This is hardly a logical predicate on which to terminate
one whose return it had sought.
(5) The evidence of garments allegedly mistreated by
Mitchell is not impressive. Respondent brought to the
hearing a sweater coat allegedly shrunk to the size of a
sweater by improper washing and a dress faded by the use
of excessive bleach. These were cited as examples of her
negligence and allegedly there were unspecified others.
Lopez testified that Mitchell's work was originally
satisfactory but had deteriorated. As for the sweater,
Mitchell allegedly washed it in the washing machine with
hot water instead of doing it in a stationary tub by hand
as advised by Lopez. As for the dress, it was colored and
should have been done with a diluted rather than full
strength bleach. Lopez claimed that Mitchell admitted
using the wrong bottle of bleach on this occasion by error.
She claimed that she had told Mitchell to be more careful
with the clothes of the patients.
Mitchell testified that some of the clothes, such as
wools or mohairs, should properly be cleaned, but that
drycleaning establishments would not accept them because
of the nature of their soiling by patients. A month or 6
weeks before June, as she uncontrovertedly testified, she
took up the problem with Moore and proposed that they
install their own drycleaning equipment to avoid
shrinkage . Moore replied that he was not operating a
drycleaning establishment and that Mitchell should do the
best she could.
Mitchell also testified that upon entering the employ of
Respondent Lopez showed her the machinery. Thereafter,
on several occasions, woolen blankets and linen pants had
shrunk. She spoke to both Lopez and Barlindahl about
this and was told only to try to avoid a repetition, to try
to figure out another method and also to do the best she
could. She was never reprimanded or told that her job was
in jeopardy. Here, too, Lopez was unimpressively vague as
a witness . She had not seen the garments prior to
laundering and could not place the occasions except as
prior to the departure of Mitchell in June.
Considering that Mitchell worked there some 6 or 7
months, if Respondent ' s premise has merit, it would
follow that the establishment would have been in sore
straits for blankets and clothes , inasmuch as Mitchell was
the only laundress.
This reinforces the previous finding that this was
strictly an afterthought in an effort to buttress
Respondent 's position because its primary reason from
which it shifted lacked true substance. I have, therefore,
credited Mitchell where her testimony is in conflict with
LABOR RELATIONS BOARD
that of Lopez.
To sum up, Mitchell was an employee of 6 to 7
months' tenure from December 1, 1967, whose return was
solicited by Respondent following her quit after several
weeks of work. On that occasion, her replacement was
terminated and Mitchell was given an unprecedented raise.
She was an open advocate of the Union and Lopez was
aware of this. Mitchell was discharged the day after she
visited the union hall and signed a card. The decision to
terminate her was allegedly made in the previous month
but delayed for a reason not supported by the record. The
reasons for her discharge were shifting and not
substantially supported. I find, therefore, that the evidence
preponderates in favor of the position of the General
Counsel. I further find that Respondent has discriminated
with respect to the employment of Josephine Mitchell
within the meaning of Section 8(aX3) of the Act and has
thereby also engaged in unfair labor practices within the
meaning of Section 8(axl) of the Act.
D. Margaret Hales
Hales entered the employ of Respondent as a
housekeeper on December 1, 1967, and was given 2 weeks'
notice of her discharge on June 11, 1968; as noted,
Mitchell was similarly terminated. Hales made the initial
contact of the Union on April 26 and signed a card on
that date. Executive Vice President McCormies in effect
admitted that he learned Hales had signed a card shortly
after her employment began. Hales uncontrovertedly
testified that about 1-1/2 months after signing a card, and
prior to being told of her discharge, she informed Head
Housekeeper Lopez that she had joined the Union.
In addition, Vivian Everett deposed that Head Nurse
Barlindahl had told her that Hales was behind the union
campaign and proceeded to question Everett as to what
Hales had told her. As found, Barlindahl testified that she
did not know "for sure" whether Hales had signed a card
prior to her discharge.
The decision to terminate Hales was made at a meeting
late in May of McCormies, Barlindahl , and Lopez with
Gregory present. On June 11, Barlindahl summoned Hales
to her office and, in the presence of Lopez, told Hales, as
the latter testified, that she, Hales, was unhappy with her
job and that Respondent was giving her 2 weeks' notice so
that she could find other employment.
There is evidence of bad feeling between Hales and a
coworker, Leatrice Calvin, but Hales testified that she was
never told that her difficulties with Calvin or any other
employee could result in the loss of her job. Calvin
entered the employ of Respondent as a housekeeper on
March 26, 1968, and replaced Mitchell in the laundry
after June 18. She testified that she and Hales worked
together, although not daily. Hales at one point became
angry with Calvin because of her disapproval of the
treatment of a friend of Hales by Calvin. Calvin also
claimed that Hales resented her because she, Calvin, was
colored. This became a matter of discussion among
Barlindahl , Lopez and Calvin. Barlindahl testified that
Hales was a competent worker when she worked alone,
but became quarrelsome when paired with other
employees. This ties in with her testimony that Hales was
not cooperative with other employees.
Lopez agreed, testifying that Hales came to her on
several occasions during a 2-month period and complained
that she could not work with the other girls as they were
either too slow or too fast and that she could not get
MOOREHAVENS, INC.
along with them . According to Gregory , Hales came to
him, immediately after receiving her notice from
Barlindahl , and complained that she had been terminated
because Lopez was favoring colored persons and disliked
her because she was white . She also admitted in this
conversation that there had been some quarrels and
mentioned Calvin.
Respondent also adduced the testimony of Fumiko
Bercier, who is Japanese and has a limited command of
English . Bercier worked for Respondent as a housekeeper
until January 6 or 7, 1968 , when she quit , and returned to
work approximately November 1. She testified that Hales
did not like her and liked to argue and fight but also
admitted , however , that she never mentioned this to Lopez
or Barlindahl ; she also testified generally that she quit
because of fights and arguing and that her health was
involved . Hales testified that she was advised that Bercier
quit because of her and asked Lopez if this was true.
Lopez replied that this was not the case and that she had
left because of her health . As is readily apparent , the two
concepts are not mutually exclusive.
Hales admitted that she did have difficulty getting
along with Calvin because Calvin tended to give her
orders . She complained to Lopez about this and then told
Calvin , who entered the scene , that they had been talking
about her . Calvin responded "if you call me a colored I
will floor you on the ground ." This took place in May
and followed an incident in April when Calvin criticized
Hales because , in cleaning a patient 's room , Hales had
removed his beer bottles . Calvin , it may be noted, is
substantially larger than Hales.
Hales further admitted that she told Lopez on several
occasions that Lopez favored colored persons, that Lopez
made "us" do the work and that she permitted the ones
she favored to "do nothing ." Hales also admitted telling
Lopez that there were four people Lopez so favored and
testified that when she "couldn't stand it any more when
they bullied me" she complained to Lopez , but that Lopez
took no action in the matter.
The timing of the discharge and its coupling with that
of Mitchell is indeed suspicious . But the fact is that Hales
encountered problems with Bercier in January and with
Calvin in April and again in May. Although there is
evidence that Barlindahl was hostile to Hales, the evidence
preponderates in favor of the position of Respondent that
Hales was discharged for cause . Stated otherwise, the
evidence does not preponderate in favor of a finding that
Respondent would not have terminated Hales but for her
union activities . I shall therefore recommend that this
allegation be dismissed.
E. Interference Restraint , and Coercion
There are several items for consideration herein, one of
which, the alleged warning to Christensen by McCormies
on June 18, has already been disposed of.
In the same vein, the General Counsel relies upon a
speech made by McCormies to the employees on the
afternoon of June 18. A former employee, Vivian Everett,
stated in her pretrial affidavit received in evidence in lieu
of testimony that McCormies told them not to discuss
unions "on the job or on the place" on penalty of layoff.
However, immediately prior to this statement, she deposed
that Head Nurse Barlindahl told her and allegedly each
girl separately that "if we discussed unions on the job we
would get fired. Duane [McCormies] said the same thing
at the meeting." This obviously does not go as far as the
993
portion relied upon by the General Counsel as it does not
go beyond forbidding union activities on working time.
McCormies testified that he told the employees, in
essence, the same thing he told Christensen earlier that
day and placed no restrictions on activities on company
premises as such . He claimed that he told them that union
activities were not to take place on the "employer' s time."
Respondent also introduced in evidence a copy of the
speech he read . It contains a discussion of the
organizational campaign , arguments against organization
and falls entirely within the ambit of Section 8(c) of the
Act. Near the close thereof, McCormies stated that "we
only ask that you do not use your scheduled work time
for this matter ." I credit McCormies and find no violation
herein.
The complaint further alleges that Respondent ordered
an employee to return and destroy her previously executed
authorization card under penalty of losing her job. Sherry
Gertsch, currently a nurse's aide , signed a card on June
17. Gertsch, a highly nervous witness , testified herein that
she thought it was for insurance and that she changed her
mind . She had received the card from Christensen and
had no idea it was connected with joining the Union. She
spoke with Head Nurse Barlindahl and asked her advice.
Barlindahl told her that it was her choice to sign or not.
Gertsch then went to the union organizer and asked for
and obtained her card . Thereafter, her husband directed
her to sign another card and she did so, contrary to her
wishes . Gertsch also testified that christensen gave her a
second card, told her it was a union card and she signed it
despite her reluctance to do so.
Mary Bruce, an organizer for the Union until October
1, 1968, testified that it was the second card that Gertsch
retrieved. She claimed that Gertsch came to the job in
tears and asked for the return of her card because Mrs.
Barlindahl had told Gertsch she would be discharged if
she did not turn the card back to Barlindahl ; there was no
discussion of insurance. It appears that Gertsch did
retrieve this card. Barlindahl was not questioned
concerning the episode. While the testimony of Gertsch is
somewhat difficult to accept, the fact is that there is only
uncorroborated hearsay evidence to support the General
Counsel herein . I shall therefore recommend that this
allegation of the complaint be dismissed.
The record also contains one other matter. In her
statement , as noted , Vivian Everett deposed that prior to
the layoff, Mrs. Barlindahl asked if she was interested in
the Union, who else was interested and whether Everett
attended meetings . She also questioned her concerning the
identity of the leadership in the organizational campaign,
attributed this leadership to Margaret Hales and asked
what Hales had told her; this was undenied . I find that by
this repetitive and intensive questioning concerning the
union activities not only of Everett but of other employees
and by naming a specific person as the leader of the
campaign , Respondent has gone beyond the bounds of
free speech, has conveyed the impression of surveillance of
union activities and has restrained and coerced employees
in the exercise of their rights under Section 7 of the Act,
thereby violating Section 8(a)(l) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICIES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, and occurring in connection with its operations set
forth in section I , above , have a close, intimate, and
substantial relation to trade , traffic, and commerce among
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that Respondent has discriminated
with respect to the tenure of employment of Josephine
Mitchell . I shall therefore recommend that Respondent
offer her immediate and full reinstatement to her former
or substantially equivalent position without prejudice to
seniority or other rights and privileges . See The Chase
National Bank of the City of New York, San Juan,
Puerto Rico Branch , 65 NLRB 827. I shall further
recommend that Respondent make her whole for any loss
of pay suffered by reason of the discrimination against
her. Said loss of pay, based upon earnings which she
normally would have earned from the date of thq
discrimination to the date of the offer of reinstatement,
shall be computed in the manner established in F. W.
Woolworth Co., 90 NLRB 289. See N. L. R. B. v.
Seven- Up Bottling Co., 344 U.S. 344. Interest thereon at
the rate of 6 percent per annum shall be added, as
provided in Isis Plumbing & Heating Co., 138 NLRB
716.
The unfair labor practicies committed by Respondent
involve a pretextuous discharge calculated to restrain and
coerce employees in the exercise of their rights under the
Act and disclose a disposition to impinge upon such
rights . I shall therefore recommend that Respondent be
ordered to cease and desist from infringing in any manner
upon the rights guaranteed under Section 7 of the Act.
On the basis of the foregoing findings of fact, and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Moorehavens , Inc. d/b/a Jefferson House Nursing
Home is an employer within the meaning of Section 2(2)
of the Act.
2. Service Employees ' International Union, Local 38,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminating in regard to the tenure of
employment of Josephine Mitchell, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By the foregoing , by coercively interrogating
employees concerning union activities and by creating the
impression of surveillance of union activities, Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
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. Respondent has not otherwise engaged in unfair
labor practices.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that Respondent
Moorehavens, Inc. d/b/a Jefferson House Nursing Home,
Tacoma, Washington, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Service Employees'
International Union, Local 38, AFL-CIO, or in any other
labor organization of its employees, by discriminating in
regard to hire or tenure of employment, or any term or
condition thereof.
(b) Coercively interrogating employees concerning their
union activities or creating the impression of surveillance
of union activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist the above-named or any other labor organization, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
and to refrain from any or all such activities, except to the
extent • such right may be affected by an agreement
requiring membership in a labor organization, as
authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to Josephine Mitchell immediate and full
reinstatement to her former or substantially equivalent
position without prejudice to seniority or other rights aud
privileges and make her whole for any loss of earnings
suffered by reason of the discrimination against her in the
manner set forth in the section above entitled "The
Remedy."
(b) Preserve and make available to the Board or its
agents , upon request, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to determine the amount of backpay
due under the terms of this recommended order.
(c) Post at its home at Tacoma, Washington, copies of
the attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for
Region 19, shall, after being signed by Respondent, be
posted by it immediately upon receipt thereof and
maintained for 60 consecutive days thereafter, in.
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith.'
'In the event this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
.In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read - "Notify the said Regional Director, in
writing , within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith. "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
MOOREHAVENS , INC. 995
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT discourage membership in or activity
in behalf of Service Employees ' International Union,
Local 38, AFL-CIO , or any other labor organization of
our employees , by discriminating in any manner in
regard to hire or tenure of employment , or any term or
condition thereof, except to the extent authorized under
Section 8 (a)(3) of the Act.
WE WILL offer Josephine Mitchell immediate and
full reinstatement to her former or substantially
equivalent position , without prejudice to seniority or
other rights and privileges , and we will make her whole
for any loss of pay suffered as a result of our
discrimination against her.
WE WILL NOT coercively interrogate employees
concerning their union activities and we will not create
the impression that we are engaging in surveillance of
union activities.
WE WILL NOT interfere with , restrain , or coerce our
employees in the exercise of their right to
self-organization , to form labor organizations, to join
or assist the above-named or any other labor
organization , to bargain collectively through
representatives of their own choosing , to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to
refrain from any or all such activities, except to the
extent such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment , as authorized in Section
8(a)(3) of the Act.
Dated By
MOOREHAVENS, INC.
D/B/A
JEFFERSON HOUSE
NURSING HOME
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, Republic Bldg.,
10th Floor, 1511 Third Avenue, Seattle , Washington
98101, Telephone 583-7473.