Manor Care of Decatur

National Labor Relations Board - Board Decisions

Mar 24, 1999

327 N.L.R.B. 980 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 980
Decca Limited Partnership d/b/a Manor Care of De-
catur and United Food and Commercial Work-
ers, Local Union 1996. Cases 10–CA–28546, 10–
CA–28558, 10–CA–28601, 10–CA–28805, and
10–CA–28920
March 24, 1999
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND
BRAME
On March 6, 1998, Administrative Law Judge Bruce
D. Rosenstein issued the attached decision. The Respon-
dent and the General Counsel filed exceptions and sup-
porting briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2 as
modified and to adopt the recommended Order as modi-
fied.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
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.
We agree with the judge at sec. I,B,3 of his decision that the allega-
tions of par. 10 of the complaint have been established. We shall mod-
ify his conclusion of law, recommended Order, and notice to conform
to the complaint and his findings of fact.
2 Contrary to our dissenting colleague, we agree with the judge that
the Respondent violated Sec. 8(a)(1) by photographing employees
handbilling outside its facility. As set forth in F. W. Woolworth Co.,
310 NLRB 1197 (1993), on which the judge properly relied, “the Board
has long held that absent proper justification, the photographing of
employees engaged in protected concerted activities violates the Act
because it has a tendency to intimidate.” Here, the judge found, and
our dissenting colleague does not dispute, that “the Respondent did not
present any credible evidence to establish the necessity for its taking
pictures of its employees while they were engaged in protected con-
certed activity.” In F. W. Woolworth, supra, the Board also stated that
it disagreed with United States Steel Corp. v. NLRB, 682 F.2d 98 (3d
Cir. 1982), denying enf. to 255 NLRB 1338 (1981), cited by our dis-
senting colleague, and that it continued to adhere to the Board’s United
States Steel decision. Significantly, in three cases decided after Wool-
worth with approval and followed its sound principles. Clock Electric
v. NLRB, 162 F.3d 907 (6th Cir. 1998); California Acrylic Industries v.
NLRB, 150 F.3d 1095 (9th Cir. 1998).
Contrary to his colleagues and the judge, Member Brame would not
find that the Respondent violated Sec. 8(a)(1) of the Act by photo-
graphing employees engaged in handbilling at the Respondent’s facil-
ity. The handbilling was conducted in the open, and the photographing
was unaccompanied by threats or other conduct that would suggest
coercion. Member Brame believes that whether employer photograph-
ing violates the Act depends, as with other alleged 8(a)(1) conduct, on
whether, under the particular circumstances, the conduct would rea-
sonably tend to “interfere with, restrain, or coerce employees” in the
exerciser of protected rights. See United States Steel Corp. v. NLRB,
682 F.2d 98, 101–104 (3d Cir. 1982). Given the open and public char-
acter of the handbilling, as well as the absence of other factors objec-
tively indicating coercion, Member Brame is unable to conclude that
the employer’s photography violated the Act.
1. We agree with the judge’s finding that the Respon-
dent violated Section 8(a)(1) of the Act by including in
employee Ida Minter’s evaluation a negative comment
about her wearing of large buttons, which were union
buttons.3 The judge’s conclusion of law characterized the
overall rating of the job evaluation as “poor.” However,
the undisputed facts are that the Respondent included the
unfavorable comment in an evaluation with an overall
rating of “good.” We shall modify the conclusion of law
to reflect the facts more accurately. The judge inadver-
tently omitted reference to this violation in the recom-
mended Order and notice. We shall modify the recom-
mended Order and notice accordingly.
However, we do not agree with the judge that by the
same action the Respondent also created the impression
of surveillance in violation of Section 8(a)(1).
Minter was hired on November 27, 1993. She actively
supported the Union and frequently wore union hats and
numerous union buttons on her work uniform. Minter
did not receive her first evaluation until February 15,
1995. While the overall rating was good, her supervisor,
Carolyn Aaron, wrote in the “Guest Relations Perform-
ance Standard” section, “Minter needs to review the
dress code, wears large buttons on her tops, socks instead
of stockings and short pants.” Aaron admitted that the
comment referred to Minter’s wearing of union buttons.
The Board’s test for determining whether an employer
has created an impression of surveillance is whether em-
ployees would reasonably assume from the statement in
question that their union activities had been placed under
surveillance. Schrementi Bros., Inc., 179 NLRB 853
(1969). Here, it is undisputed that Minter was an active
and open supporter of the Union who frequently wore
union insignia while working. Because Minter’s wearing
of union buttons was public and a matter of common
knowledge, she could not reasonably assume from her
supervisor’s comment that her union activities were un-
der surveillance. Accordingly, we find that the Respon-
dent did not create the impression of surveillance by
commenting in Ida Minter’s evaluation on her wearing of
union buttons.
2. We agree with the judge that the Respondent’s ter-
mination of employee Rose Harvey for abandoning her
job was lawful. Pursuant to the Respondent’s employee
handbook, Harvey was not eligible for a leave of absence
(when she sought leave to attend a funeral) because she
had not been employed for a year at the time she took
leave. None of the Respondent’s managers gave her
permission to take a leave of absence. In fact, Assistant
Director of Nursing Linda DeSue told Harvey that the
3 It is unnecessary to pass on the issue whether the Respondent’s
conduct also violated Sec. 8(a)(3). The finding of such an additional
violation would not affect the Order.
327 NLRB No. 173
MANOR CARE OF DECATUR 981
Respondent could not guarantee her a job on her return.
Because Harvey’s leave of absence was not authorized,
the Respondent properly terminated her for job aban-
donment under the “critical offense” policy in the em-
ployee handbook.
We do not agree with our dissenting colleague that
Harvey was disparately treated as compared to employee
Sharon Edwards. Neither employee was entitled to take
a leave of absence. Neither employee was returned to the
position they left when they came back from their unau-
thorized leaves. We agree with the judge that this evi-
dences a uniform application of the leave policy.
Our dissenting colleague asserts that Harvey was
treated differently than employee Edwards. The asserted
difference is that Harvey was formally discharged, and
Edwards was not. However, the distinction is without a
substantive difference. Neither was allowed to return to
her position after taking an unauthorized leave of ab-
sence. In Harvey’s case, she was formally discharged
and then not permitted to return.4 In Edwards’ case, she
was simply not permitted to return. However, as noted,
the ultimate result was the same—neither was allowed to
return. In practical effect, both were terminated.
Our colleague’s emphasis on the fact that the Respon-
dent formally terminated Harvey also fails to take into
account all of the circumstances. Neither employee was
guaranteed a job on her return from unauthorized leave.
Edwards, when she returned from her unauthorized leave
requested a different job, i.e., to be called on an as
needed basis. Harvey, on the other hand, made no such
request. That the Respondent agreed to Edwards’ re-
quest, but did not offer the same opportunity to Harvey,
who made no such request, does not, in our view, consti-
tute disparate treatment.5
Finally, there have been other employees who were
terminated for abandoning their jobs. Our colleague as-
serts that Harvey was unlike these other employees. That
is, according to the dissent, she announced in advance

ion election.”

4 Our dissenting colleague ignores the fact that Edwards was no
longer a full-time employee following her leave of absence. Edwards
then worked only as an on-call employee, and there is no showing that
Harvey ever sought this status on her termination as a full-time em-
ployee.
5 “An essential ingredient of a disparate treatment finding is that
other employees in similar circumstances were treated more leniently
than the alleged discriminatee was treated.” Thorgren Tool & Molding,
312 NLRB 628 fn. 4 (1993) (Emphasis added). Here, as explained
above, the circumstances of the two employees are not “similar” be-
cause Edwards requested PRN status, while Harvey did not.
Our dissenting colleague also appears to rely on Harvey’s testimony
that upon her return from her unauthorized leave, the Respondent re-
fused to consider her for a certified nursing assistant that was adver-
tised in a newspaper. The judge, however, credited Director of Nursing
Jill Conley’s testimony that employees who took unauthorized leaves
of absence and abandoned their jobs were not eligible for full-time
reemployment. The Respondent’s treatment of Harvey was consistent
with this policy. Further, the Respondent’s treatment of Edwards was
likewise consistent with this policy because Edwards only sought “on
call” status, not a full-time job.
her desire to take leave, consulted with two managers
about the request, did what they said, and sought to re-
turn to work. Of course, this omits the fact that no one
granted her request to take a leave of absence, inasmuch
as such leave would be contrary to the employee hand-
book. Indeed, for that reason, the assistant director told
her that the Respondent could not guarantee her a job
upon her return.6
Thus, assuming arguendo, without deciding, the Gen-
eral Counsel met its initial burden to show Harvey’s un-
ion activity was a motivating factor in her discharge, the
Respondent established that it would have taken the same
action notwithstanding her protected activity. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U. S. 989 (1982).
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the present Conclusion
of Law 3:
“3. The Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by
creating the impression among its employees that their
union activities and sympathies had been discussed in
management meetings and that they would not be called
in to work because of their union activities, by
instructing employees not to show their job evaluations
to other employees or to discuss their wages with other
employees, and by threatening employees that the
Respondent only had one or two employees to get rid of
and the Respondent would win the un
2. Substitute the following for the present Conclusion
of Law 4.
“4. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act by suspending and discharging its employee Herbert
Green and by commenting unfavorably in the “Guest
Relations Performance Standard” section in Ida Minter’s
job evaluation because she wore Union buttons.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Decca
Limited Partnership d/b/a Manor Care of Decatur, Deca-
tur, Georgia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a):
“(a) Creating the impression among its employees that
their union activities and sympathies had been discussed
in management meetings and that they would not be
called in to work because of their union activities.”
2. Insert the following as new paragraph 1(f) and
reletter the present paragraph 1(f) as 1(g).
6 Contrary to our dissenting colleague, we find that Harvey did
effectively abandon her job by taking a leave of absence for which she
had no approval.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 982
“(f) Commenting unfavorably in employee job evalua-
tions because employees wear Union buttons.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER LIEBMAN, dissenting in part.
I dissent from my colleagues’ adoption of the adminis-
trative law judge’s finding that employee Rose Harvey
was lawfully discharged. Contrary to the judge and my
colleagues, I would find that she was disparately treated
by the Respondent because of her union activity and dis-
charged in violation of Section 8(a)(3) and (1) of the
Act.1
There is no dispute that Rose Harvey was an active un-
ion supporter and that the Respondent was aware of her
union activity. It is also clear that the Respondent exhib-
ited strong antiunion animus, as demonstrated by its
unlawful discharge of the leading organizer, Herbert
Green, and it’s other unfair practices in violation of Sec-
tion 8(a)(1).
On Friday, November 10, 1995,2 Harvey informed Di-
rector of Nursing Jill Conley that Harvey’s grandmother
in New York had died and that she needed time off to
attend the funeral. Conley said to let her know how
much time Harvey needed as soon as the arrangements
were final.
On Saturday, November 11, Harvey received an urgent
call from relatives requesting that she come to New York
as soon as possible. Conley was not at work, so Harvey
contacted Assistant Director of Nursing Linda DeSue.
Harvey stated that her grandmother had died and that she
needed to go to New York. Harvey said that she had
spoken to Conley the day before about a leave of ab-
sence.
DeSue replied that, because the office was closed, she
would not be able to process the paperwork for a leave of
absence; that Harvey should write a letter requesting time
off and put it in her office; and that her job was not guar-
anteed upon her return from leave. Harvey prepared a
request for leave from November 12 through 21 and
placed it under the office door.
On November 14, Conley and DeSue reviewed Har-
vey’s request for a leave of absence and determined that
because she had been employed for less than 1 year,3 she
was not eligible to take a leave of absence. Additionally,
they noted that she was scheduled to work November 11
and 12 and that the handbook provides for 1 day of paid
leave for an employee scheduled to work on the day of
the funeral of a grandparent. Thus, according to Conley
and DeSue, because Harvey was not entitled to take a
leave of absence and was entitled to only 1 day of paid

1 In all other respects I agree with my colleagues’ decision.
2 All dates hereafter are in 1995.
3 The employee handbook states that a leave of absence may be
granted to full-time and part-time employees who have completed 1
year of service and who have worked a specified minimum number of
hours.
leave, her failure to return to work on November 12 war-
ranted discharging her based on job abandonment.
On November 21, Harvey called Conley. Harvey
stated that she needed another day to finish with her
grandmother’s estate. Conley advised Harvey that they
needed to meet when Harvey returned to work.
When Harvey returned home the next day, she found a
letter of termination for unauthorized leave of absence.
Harvey called Conley and was advised that Conley could
not hold Harvey’s certified nursing assistant position and
that the job had been filled.
The Sunday after her discharge, Harvey saw an adver-
tisement in the newspaper stating that the Respondent
needed certified nursing assistants to work both day and
evening shifts. Harvey called and asked Human Re-
sources Manager Margaret Williams why the Respondent
had placed the ad, yet told Harvey that her job had been
filled. Williams responded that she was busy and did not
have time to talk to Harvey.
The judge found that the Respondent would have ter-
minated Harvey even in the absence of her union activ-
ity. In reaching this conclusion, the judge relied on the
following findings: (a) Harvey was not treated differ-
ently than employee Sharon Edwards and (b) the Re-
spondent followed its leave of absence policy in termi-
nating Harvey for abandoning her job.
I would find that Harvey was treated differently than
Edwards. Edwards was employed for less than 1 year
when she requested a leave of absence from June 9 to
August 28 for personal reasons. When Edwards returned
to work, she requested to be place in PRN status, “which
means that she would be called on as needed basis.” The
Respondent granted Edwards request.4
According to the judge, the two employees, who were
not eligible to take a leave of absence, were treated simi-
larly in that neither was permitted to return to a full-time
position. I believe the judge has focused on the wrong
event. Although both employees were ineligible for a
leave of absence, only Harvey was discharged. Edwards
was never terminated, counseled, reprimanded, warned,
or otherwise disciplined for taking an unauthorized leave
eight times longer than Harvey’s absence.
The judge’s answer to this seemingly blatant disparate
treatment is that when Edwards returned, she “independ-
ently initiated a request to go on PRN status.” But, in
fact, this ignores the same critical event. Both employ-
ees took unauthorized leaves of absence. Harvey’s rela-
tively short absence had barely begun before she was
4 The record is silent as to what immediately preceded Edwards’ re-
turn to work. My colleagues state that she “was not permitted to re-
turn” to her former full-time job, which they assert is tantamount to
termination. Given the state of the record on this point, I could as
easily assert that her return to employment makes it apparent the Re-
spondent granted her leave of absence request. In any event, the one
thing that is clear is the record does not support that Edwards was ter-
minated.
MANOR CARE OF DECATUR 983
discharged. Edwards was never terminated, despite a
lengthy absence.
Further, I cannot agree with the judge that Harvey’s
situation is similar to other employees discharged for
abandoning their jobs. Harvey announced in advance her
desire to take leave, consulted with two managers about
the request, did what the managers requested, and sought
to return to work at all. In contrast, all other employees
terminated for job abandonment left their jobs without
warning and failed to return to work at all.5 The em-
ployee whose circumstances most closely parallel Har-
vey’s situation was Edwards, who was also ineligible for
a leave of absence under the handbook. Yet, Harvey was
discharged, while Edwards continued to be employed by
Respondent.
In sum, I would find the General Counsel has estab-
lished that the Respondent’s animus against Harvey’s
support for the Union was a motivating factor in the de-
cision to discharge her.6 Contrary to the judge, I would
find the Respondent has failed to show that it would have
discharged Harvey absent her union activity. Rather, the
record shows disparate treatment in the handling of Har-
vey’s case compared with Edwards, and there is no evi-
dence of any other similarly situated employee who re-
ceived the same treatment as Harvey. Thus, I would find
that the Respondent discharged Harvey in violation of
Section 8(a)(3). See Aratex Services, 300 NLRB 115,
116 (1990) (employer failed to sustain its Wright Line bur-
den in light of evidence of disparate treatment).

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

5 My colleagues assert that Harvey’s discharge is comparable to that
of other employees who were terminated after they disappeared without
a word and never returned. To the extent that they are relying on the
grounds for discharge spelled out in the handbook’s termination provi-
sions, their argument is unavailing. In defining offenses warranting
discharge, the handbook lists job abandonment. While this provision
may have applied to the discharge of those employees who disappeared
without a word and never returned, it is wholly inapplicable to Har-
vey’s situation. Given her diligent efforts to preserve the employment
relationship, her conduct cannot reasonably be labeled as job abandon-
ment.
6 Wright Line, 251 NLRB 1083 (1990), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT create the impression that your union
activities and sympathies have been discussed in man-
agement meetings and that you would not be called in to
work because of your union activities, instruct you not to
show your job evaluations to other employees or to dis-
cuss your wages with other employees, and threaten you
that we only have one or two employees to get rid of to
win the union election.
WE WILL NOT discharge or otherwise discriminate
against any employee for supporting the United Food and
Commercial Workers, Local Union 1996 or any other
union.
WE WILL NOT not comment unfavorably in employee
job evaluations because employees wear union buttons.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Herbert Green full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make whole Herbert Green for any loss of
earnings and other benefits resulting from his suspension
and discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension and discharge of Herbert Green and will
remove from Ida Minter’s February 15, 1995 job evalua-
tion any reference to the wearing of union buttons on her
tops, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the dis-
charge and the reference to the wearing of union buttons
will not be used against them in any way.

DECCA LIMITED PARTNERSHIP D/B/A
MANOR CARE OF DECATUR

Lisa Y. Henderson, Esq., for the General Counsel.
Clifford H. Nelson Jr,. Esq. and Kathleen J. Van Detta, Esq., of
Atlanta, Georgia, for the Respondent-Employer.
James D. Fagan Jr., Esq., of Atlanta, Georgia, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This
case was tried before me in Atlanta, Georgia, on November 3,
4, 5, and 6, 1997, pursuant to a second amended consolidated
complaint and notice of hearing (the complaint) issued by the
Regional Director for Region 10 of the National Labor Rela-
tions Board (the Board) on July 15, 1997. In addition, on July
16, 1997, the Regional Director ordered consolidated certain
issues arising from the representation election in Case 10–RC–
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 984
14525. The complaint, based upon an original charge in Case
10–CA–28546 filed on June 21, 1995,1 and an amended charge
filed on April 2, 1997, an original charge in Case 10–CA–
28558 filed on June 26, and an amended charge filed on April
2, 1997, a charge in Case 10–CA–28601 filed on July 11, a
charge in Case 10–CA–28505 filed on October 3, and a charge
in Case 10–CA–28920 filed on November 28, by United Food
and Commercial Workers, Local Union 1996 (the Charging
Party or Union), alleges that Decca Limited Partnership d/b/a
Manor Care of Decatur (the Respondent or Manor Care) has
engaged in certain violations of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act).
The Union’s petition in Case 10–RC–14525 was filed on
June 21, 1994. Thereafter, pursuant to a Decision and Direc-
tion of Election, issued on August 16, 1994, an election by
secret ballot was conducted on September 15, 1994, among the
employees in the appropriate unit to determine the question
concerning representation.2 Upon conclusion of the balloting,
the parties were furnished a tally of ballots which showed that
of approximately 86 eligible voters, 35 cast valid votes for and
40 cast votes against the Petitioner. There were no void ballots,
and there were 7 challenged ballots. The challenged ballots
were sufficient in number to affect the results of the election.
On September 22, 1994, the Petitioner-Union filed timely ob-
jections to the election.
Pursuant to a Decision and Direction of Second Election is-
sued by the Board on July 14, a second election by secret ballot
was conducted on August 18, among the employees in the ap-
propriate unit. Upon conclusion of the balloting, the parties
were furnished a tally of ballots which showed that of approxi-
mately 64 eligible voters, 23 cast valid votes for and 34 cast
valid votes against the Petitioner-Union. There were no void
ballots, and there were 12 challenged ballots. The challenged
ballots were sufficient in number to affect the results of the
election. On August 24, Manor Care filed timely objections to
the election and on August 25, the Petitioner-Union filed timely
objections to the election.
Thereafter, as noted on July 16, 1997, the Regional Director
concluded that the allegations for certain objections to the elec-
tion in Case 10–RC–14525 parallel issues with the allegations
in the complaint and ordered the consolidation of those cases
for hearing before an administrative law judge. Before the
opening of the hearing in this matter, the Petitioner-Union
withdrew the underlying representation case and its August 25
objections to the election, which was approved by the Regional
Director for Region 10 on November 4, 1997. Accordingly, the
subject decision will only address the issues raised in the above
noted unfair labor practice cases.
The Respondent filed an answer to the complaint on July 28,
1997, denying that it had committed any violations of the Act.

1 All dates are in 1995 unless otherwise indicated.
2 The appropriate unit is: All employees including housekeeping
employees, dietary aides, cooks, nurses’ aides, restorative aides, reha-
bilitation aides, laundry aides, the nursing administrative assistant,
secretary/receptionists, medical records/ancillary clerk, assistant book-
keeper employed by Manor Care at its Decatur, Georgia facility, but
excluding all guards, all charge nurses, nursing aide team leaders, de-
partment heads, managers and other supervisors as defined in the Act.
Issues
The complaint alleges that the Respondent discharged seven
employees,3 and engaged in independent violations of Section
8(a)(1) of the Act including creating the impression among its
employees that their union activities were under surveillance,
instructing employees not to show their job evaluations to other
employees or to discuss wages, promising a wage increase to
employees if they voted against the Union, threatening its em-
ployees with job loss if the Union was elected, implementing a
more restrictive charting policy for certified nursing assistants
(CNAs) and informing its employees that it would be futile for
them to select the Union as their bargaining representative by
telling employees that it would not bargain in good faith if the
employees selected the Union as their bargaining representa-
tive.4
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in operating a
long-term nursing care facility in Decatur, Georgia, where it
annually purchased and received goods and materials at its
facility in excess of $50,000 directly from points outside the
State of Georgia. 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 and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
I. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Manor Care is a 140-bed facility licensed by the State of
Georgia to provide skilled and intermediate care to residents.
Approximately 75 percent of its population are private pay
residents who are cared for by 145-full- and part-time employ-
ees, 50 of whom are CNAs. The CNAs, who are principally
involved in this case, assist the residents with personal groom-
ing, bathing, feeding, and providing nourishment’s during the
course of the day.
After the first representation election was held on September
15, 1994, and the Petitioner-Union filed timely objections to the
election on September 22, 1994, the Respondent and the Union
continued their individual campaigns to convince employees
about the pros and cons of union representation. During the
period between the first and second election, the Union regu-
larly engaged in handbilling in front of Manor Care and a num-
ber of employees wore union insignia and buttons on their uni-
forms while at work.
The principal supervisory hierarchy since January 1995, in-
clude Administrator Will Blackwell, Director of Nursing
(DON) Jill Conley, Assistant Director of Nursing (ADON)
Linda DeSue, and Licensed Practical Nurse Supervisor Carolyn
3 The General Counsel withdrew par.17(e) of the complaint which
alleges that the Respondent about July 7 suspended, discharged, and
refused to reinstate its employees Diane Hines and Andril Seldon.
Thus, the decision in this matter will not involve those employees.
4 In regard to this last allegation, which is alleged in par. 8 of the
complaint, the General Counsel withdrew it during the course of the
hearing. Thus, it will not be addressed in the decision.
MANOR CARE OF DECATUR 985
Aaron. Additionally, admitted agent David Jones, coordinated
the first and second union organizational campaigns for Re-
spondent.
B. The 8(a)(1) Violations
1. Allegations concerning Carolyn Aaron
The General Counsel alleges in paragraph 7 of the complaint
that about February 15, Carolyn Aaron created the impression
among its employees that their union activities were under sur-
veillance and instructed employees not to show their job
evaluations to other employees.
Employee Ida Minter was hired by Respondent on Novem-
ber 27, 1993, as a CNA. She actively supported the Union
during the first and second organizational campaigns, fre-
quently handbilled in front of Manor Care, wore union hats and
numerous union buttons on her work uniform and openly con-
tacted employees to support the Union and sign authorization
cards.
In accordance with the employee handbook (R. Exh. 21), an
employees performance will be evaluated 90 days after hire and
annually thereafter. Despite this requirement, Minter did not
receive her first appraisal until February 15, covering the entire
period of her employment (G.C. Exh. 2). While the overall
rating for the appraisal was good, Aaron commented in the
guest relations performance standard section that, “Minter
needs to review the dress code, wears large buttons on her tops,
socks instead of stockings and short pants.” Minter became
upset about the evaluation, primarily to the remarks in the quest
relations section, and showed it to a number of other CNAs
while in the breakroom. According to Minter, Aaron told her
not to show her evaluation to other employees. Minter also
asked Aaron why she got a poor evaluation. Aaron told Minter
that it was due to her clothes and the wearing of numerous but-
tons on her uniform. On cross-examination, Aaron admitted
that the comments about buttons in the appraisal were referring
to the numerous union buttons that Minter wore on her work
uniform.
Minter reviewed the performance appraisal on February 22,
and in the employee comments section stated that this is unfair
to me because Aaron does not like me and I do not care for her
and she should not care what I wear on my clothes. I conclude
that Aaron told Minter not to show her appraisal to other em-
ployees because of the employee comments contained therein
and her belief that a performance appraisal is an assessment of
one person’s performance and should not be shared with others.
Whatever her reason, Aaron’s directive to Minter not to show
her appraisal to other employees, nevertheless infringes on
employee rights under Section 7 of the Act. See Waco, Inc.,
273 NLRB 746 (1984). Accordingly, I find that by telling
Minter not to show her performance appraisal to other employ-
ees, Aaron violated Section 8(a)(1) of the Act. In regard to the
surveillance allegations in paragraph 7 of the complaint, I find
that Aaron’s comments about Minter wearing union buttons on
her clothing created the impression among employees that their
Union activities were under surveillance, and therefore violates
Section 8(a)(1) of the Act.
With respect to paragraph 15 of the complaint, the General
Counsel alleges that on June 29, Respondent implemented a
more restrictive charting policy for the CNAs which provides
disciplinary action for employees who fail to chart in their des-
ignated area.
In a unit meeting held on April 7, 1994, Aaron told the
CNAs in attendance that charting should not be done in the
television room.5 CNAs were specifically told that charting
should be performed at the nurses’ station desk as frequently as
possible because the residents’ call lights could only be ob-
served from that location and it was necessary to have coverage
to respond to residents needs. Unfortunately, this policy was
not strictly enforced and a number of CNAs continued to do
their charting in the television room. Although a number of
CNAs defied the rule, no one was written up for charting in an
improper location. In June 1995, a number of residents and
some family members complained to DON Conley that the call
lights were not being responded to in a timely manner. Accord-
ingly, it was decided to convene a mandatory meeting on June
29, to discuss a number of pressing issues including the chart-
ing policy. Aaron convened the meeting and instructed the
CNAs that effective immediately, half of them were to chart at
the nurses’ station if they were passing trays for lunch in that
area, and half were to chart in the dining room if their assign-
ment was proximate to that location. While several CNAs testi-
fied that after the June 29 meeting, they continued to chart in
the television room without incurring discipline, that is not the
issue raised in the complaint. Rather, the General Counsel
alleges that on June 29, the Respondent implemented a more
restrictive charting policy for CNAs because the employees
engaged in union and concerted activities. Contrary to this
position, I find that the implementation of the charting policy
was a reaffirmation of the prior instructions given to the CNAs
in April 1994, which were not strictly adhered to, and had noth-
ing to do with union activities. The Respondent addressed a
legitimate concern of having sufficient staff available to answer
residents’ call lights and implemented a nondiscriminatory
policy responsive to those needs. Under these circumstances, it
cannot be established that the charting policy was implemented
for discriminatory reasons, and I recommend that paragraph 15
of the complaint be dismissed. Thus, I conclude that the Re-
spondent did not violate either Section 8(a)(1) or (3) of the Act
as alleged by the General Counsel regarding the charting pol-
icy.
2. Allegations concerning Will Blackwell
The General Counsel alleges in paragraph 9 of the complaint
that in June 1995, Will Blackwell promised its employees that
they would receive a pay increase if they voted against the Un-
ion.
Ida Minter testified that in June 1995, just before she went
on PRN status,6 Blackwell called her into his office with DON
Conley present and offered her a raise to $7 an hour if she
voted no for the Union. Both Blackwell and Conley testified
that they did attend a meeting with Minter to determine whether
she fully understood the ramifications of going on PRN status
but did not offer her $7 an hour to vote no for the Union and

5 CNAs must chart everyday on a data sheet to keep track of the
residents current activities of daily living including grooming, bathing,
and bathroom activities.
6 Minter decided to give up her full-time status when a Manor Care
resident requested that she care full time for her outside the facility.
PRN refers to working at Manor Care on an as needed basis. Employ-
ees are placed on a list and can either call on a weekly basis to inquire
if work is available or the Respondent will go through the list to deter-
mine if an individual is available to work when the need arises to cover
for unavailable employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 986
did not discuss the Union during the meeting. In this regard,
they wanted to make sure that Minter understood that employ-
ees who transfer from full time to PRN status do not receive
benefits such as health insurance or evening and shift differen-
tials.
I do not credit Minter’s testimony for the following reasons.
First, regardless if Minter voted for or against the Union, the
standard wage rate for PRN employees is $7 an hour and she
would receive that rate of pay regardless of her union sympa-
thies. Second, at the time of the June 1995 meeting in Black-
well’s office, the Board had not yet issued its July 14, Decision
and Direction of Second Election which scheduled the election
for August 18. Thus, at the time of the June 1995 meeting,
Blackwell had no knowledge of whether there would be a sec-
ond election and certainly did not know the exact date. There-
fore, I find that Blackwell did not offer Minter during the June
1995 meeting in his office, a raise to $7 an hour, if she voted no
in the election.
Under these circumstances, I recommend that the allegations
in paragraph 9 of the complaint be dismissed.
3. Allegations concerning Annie Boyd
The General Counsel alleges in paragraph 10 of the com-
plaint that about June 22, Annie Boyd created the impression
among Respondent’s employees that their union activities were
discussed in management meetings and that employees would
not be called in to work because of their union activities and
that Respondent only had one or two employees to get rid of
before it would win the union election.
Ida Minter testified that on June 21, while in the dietary pan-
try near the break area, Supervisor Annie Boyd asked to speak
to her in private. Boyd told Minter that she just attended a
lunch at the Olive Garden restaurant with a number of the other
department heads and some of the conversation included that
they had just got rid of one head ringleader, Herbert Green, and
the next one was Minter. Boyd also told Minter that DON
Conley said during the lunch that Minter is going on PRN and
she will never be called for work. Minter also testified that
since she went on PRN status in June 1995, she has never been
called to work at Manor Care.
Blackwell and Conley acknowledged that a department head
lunch was held at the Olive Garden Restaurant on June 21, and
that Boyd was present, but each of them denied that any discus-
sion about the Union occurred and no one mentioned the name
of Herbert Green or Ida Minter during the lunch. ADON
DeSue testified that while she often attended department head
lunches, she had no recollection of attending the June 21 Olive
Garden lunch. While Blackwell testified that he was not in a
position at the table to hear Conley’s conversations, Conley
denied that she ever made a statement that Minter is going on
PRN and she will never call her for work.
Despite Blackwell and Conley’s denials that any discussion
about the Union or the names of individual employees were
mentioned at the lunch, I am inclined to credit Minter’s testi-
mony. First, it is highly significant that the Respondent did not
call Boyd as a witness to rebut Minter’s testimony. Accord-
ingly, Minter’s testimony concerning what Boyd told her is
unrebutted. It is noted that while Conley is no longer employed
at Manor Care, she was subpoenaed by Respondent to testify at
the hearing. Thus, I find it telling that Boyd, although no
longer employed at Manor Care, was not called as a witness in
this matter. Second, I find it suspect that DeSue has no recol-
lection of attending the June 21 lunch, especially in light of
Conley’s testimony that she was present and sat next to her. In
all other respects, I found DeSue to be a very forthright and
credible witness but I believe that she did not want to testify
about this particular matter because her testimony would have
been adverse to the Respondent’s interests. Third, I find it
significant that the conversation with Boyd occurred around the
same time that both Blackwell and Conley acknowledge that
they had a meeting with Minter to discuss the ramifications
about her going on PRN status and the Boyd conversation men-
tioned this matter. Lastly, it is noted that Herbert Green was
suspended for excessive absenteeism on the same day that the
lunch took place at the Olive Garden.
Considering the forgoing, and particularly noting that the
Respondent did not call Boyd as a witness to rebut the conver-
sation that she had with Minter, I find that the General Counsel
has sustained the allegations alleged in paragraph 10 of the
complaint. Accordingly, by discussing the union activities of
employees at management meetings, creating the impression
among its employees that they would not be called to work and
threatening employees that it only had one or two employees to
get rid of to win the election, I conclude that the Respondent
violated Section 8(a)(1) of the Act. Portsmouth Ambulance
Service, 323 NLRB 311 (1997).
4. Allegations concerning Jill Conley and John Deardorff
In paragraph 11 of the complaint, the General Counsel al-
leges that Jill Conley and John Deardorff created the impres-
sion among its employees that their union activities were under
surveillance.
On June 30, Danielle Murray finished work around 3 p.m.,
and went to the basement to clock out. As she was walking up
the stairs to the first floor to exit the facility and wait for her
ride home, Murray observed administrator in training John
Deardorff taking pictures with a camera while standing in front
of the window along with several other Manor Care employees
including Conley. Murray walked over to the window, looked
out, and observed a number of employees handbilling including
Herbert Green and Ida Minter.
The Respondent did not call Deardorff to testify in this mat-
ter nor did it have Conley testify about her presence while pic-
tures were being taken of employees handbilling in front of the
facility. Rather, the Respondent proffered the testimony of
Blackwell who stated that he instructed Deardorff to take pic-
tures of Minter handbilling because she injured her knee while
lifting a resident and filed a workers compensation claim.
Thus, the pictures were to be used to rebut Minter’s claim.
I am suspect of this affirmative defense. In this regard, the
record evidence establishes that Minter did not injure her knee
until a week before the second election which places it in Au-
gust 1995. Therefore, I reject Blackwell’s testimony and credit
Murray who testified that the pictures were taken in June 1995,
and note that she was terminated by Respondent on July 8,
making it impossible that she was at the facility in August
1995. Additionally, her testimony is unrebutted as Respondent
did not present any witnesses who were present on the date that
the pictures were taken.
Under these circumstances, I conclude that the Respondent
did not present any credible evidence to establish the necessity
for taking pictures of its employees while they were engaged in
protected concerted activity. Therefore, I find that by taking
pictures of employees handbilling outside the Manor Care facil-
MANOR CARE OF DECATUR 987
ity, the Respondent violated Section 8(a)(1) of the Act. See F.
W. Woolworth Co. 310 NLRB 1197 (1993).
5. Allegations concerning David Jones
The General Counsel alleges in paragraphs 12 and 13 of the
complaint that David Jones about July 1 and August 15 created
the impression that Respondent had discharged employees be-
cause they engaged in union activities, informed employees that
Respondent intended to win the union election by any means
necessary and threatened its employees with job loss if the
Union was elected to represent the employees.
David Jones is presently the president of Labor Management
Training Corporation and previously was assistant vice presi-
dent of human relations for Manor Care from 1982 to 1985. In
1985, Jones resumed his ministry as a Baptist preacher and has
worked part time as a consultant to Manor Care for labor rela-
tions matters. He has a rich background in labor relations, hav-
ing previously served as a business agent and director of orga-
nizing for two national labor organizations and as an independ-
ent contractor for a labor relations law firm in addition to his
labor relations duties while employed at Manor Care on a full-
time basis. He estimated that he has been involved in excess of
640 Board election campaigns including the September 1994
and August 1995 campaigns at the Respondent. In this regard,
he coordinated those campaigns and trained the supervisors on
the rights of employees using Section 7 of the Act as a guide.
Jones knew many of the employees at the Respondent, having
visited the facility on a number of occasions over the years
when dealing with union election campaigns lodged by other
unions than the subject Charging Party.
Jones testified that he knew that Herbert Green, Melvin
Strong, and Ida Minter supported the Union and they independ-
ently had a number of discussions about the pros and cons of
the Union with each side trying to convince the other of the
wisdom of their respective positions. Likewise, Jones knew
Brenda Hemsley as a long-term employee of Manor Care who
transferred to the Decatur facility from one of its Maryland
nursing homes.
Ida Minter testified that on June 21, the day that Herbert
Green was suspended, Jones approached her and employee
Cecilia Toby while they were standing in the hall. Minter told
Jones that they just fired Green and according to Minter, Jones
said that we are going to do whatever is necessary to keep the
Union out.
Jones testified that while he did not independently remember
the June 21 conversation, if he said anything to Minter about
keeping the Union out he would have said that we will do
whatever is necessary under the guidelines of the Act to keep
the Union out.
I am inclined to credit Jones testimony concerning this con-
versation. First, Jones has a long background in dealing with
Board election campaigns and is well versed in what may or
may not be said within the guidelines of the Act. Even if Jones
made the statement testified to by Minter, which I doubt, it does
not contravene the Act without the presence of any nexus or
reference to Green’s union activities. Rather, I am of the opin-
ion that if Jones made such a statement he would have included
as he testified “under the guidelines of the Act” when discuss-
ing a termination of one employee with another employee.
Likewise, I am not troubled by Jones inability to remember the
specific conversation as he testified that he had numerous con-
versations with Minter about the Union and the ongoing elec-
tion campaign. Lastly, it is noted that the General Counsel did
not call Toby to testify about the June 21 conversation.
For all of the above reasons, I find that the General Counsel
did not establish the allegations in paragraph 12 of the com-
plaint and recommend that it be dismissed.
In regard to paragraph 13 of the complaint, Melvin Strong
testified that on August 15, he was asked to attend a meeting on
the first floor of the resident’s dining room by ADON DeSue.
He arrived at the meeting around 2:30 p.m., and listened
along with six other employees to Jones talk about the disad-
vantages of the Union and the obligation to pay union dues.
During the meeting Strong asked Jones, “[W]hether after the
election, as for a Union, or not having a Union, will I still have
a job after August the 15th?” Strong testified that Jones did not
respond to his question. Strong then asked Jones if he could be
excused because although Manor Care was probably paying
him to hear this rhetoric, they also hired him to take care of
their residents. Since it was a voluntary meeting, Jones told
Strong he could leave. While Strong was standing in the corri-
dor, that separated the meeting space from the rest of the dining
room, he heard Supervisor Jean Flesch state, go ahead and let
him go, he is going to vote for the Union anyway.
Brenda Hemsley testified that just before the election, Jones
told her that she had nine years in the Company, and Hemsley
told him that she did not have anything to lose. The General
Counsel asked Hemsley whether Jones mentioned the Union
during their discussion, and Hemsley replied, that Jones did not
use the word “Union.” Jones recalls a conversation with Hem-
sley one morning in the lunchroom when a number of employ-
ees got on him because he had bought lunch for the night-shift
employees and had not volunteered to buy lunch for the day
shift employees. Jones asked Hemsley, how long have you
known me, and she responded about 9 years. Jones replied,
then you know my motto is I never volunteer, but I never re-
fuse. Since the day-shift employees then asked him to buy
lunch, he went ahead and purchased lunch for those employees.
Considering the testimony of Strong, it cannot be established
that the Act has been violated. Strong admitted that Jones did
not respond to his question and there is no evidence that Jones
even heard what Strong asked. Indeed, Jones credibly testified
that he is hard of hearing. Standing alone, the question is just
that and in the absence of a response or some type of threat
made by Jones, the Act cannot be violated. Thus, I recommend
that this aspect of paragraph 13 of the complaint be dismissed.
Likewise, I do not find the statement that Hemsley imputed to
Jones to be violative of the Act. In the absence of any linkage
to Hemsley’s union activities, the statement cannot be consid-
ered to be a threat of job loss if the Union was elected to repre-
sent the employees. Moreover, I tend to credit Jones version of
the conversation and how the issue of Hemsley’s length of
employment with Manor Care arose. I also note that on the eve
of the August 1995 election, it would have been impossible for
Jones to have threatened Hemsley with the loss of her job espe-
cially since she was previously terminated on March 30. Ac-
cordingly, based on the forgoing, I recommend that this aspect
of paragraph 13 of the complaint also be dismissed.
6. Allegations concerning Margaret Williams
The General Counsel alleges in paragraph 14 of the com-
plaint that about August 20, Margaret Williams instructed em-
ployees to cease discussing their wages with other employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 988
Rose Harvey testified that around August 20, a number of
coworkers were discussing the topic of wages in the downstairs
lunchroom. Later that day, Harvey was approached by Human
Resources Manager Margaret Williams who wanted to see
Harvey in her office. Harvey told Williams that after she fin-
ished with a patient, she would go to her office. Harvey went
to the office and in a one on one conversation, Williams told
Harvey that several employees told her that Harvey was com-
plaining about wages and she did not want Harvey to complain
about wages because she was trying to hire new people and did
not want those individuals to hear Harvey speak about wages.
Harvey asked Williams why she picked her to talk about this
issue, since there were a bunch of people that were discussing
salary. Williams did not respond.
The Respondent did not proffer Williams as a witness at the
hearing. Accordingly, the statements attributed to Williams are
unrebutted. Under these circumstances, I find that Williams
promulgation or statement that employees should not complain
about or discuss wages among themselves to be unlawful, since
it interferes with employees Section 7 rights. Therefore, I find
that such prohibition violates Section 8(a)(1) of the Act. See
Hilton’s Environmental, Inc., 320 NLRB 437 (1995).
C. The 8(a)(1) and (3) Violations
1. The job evaluation of Ida Minter
The General Counsel alleges in paragraph 17(a) of the com-
plaint that the Respondent issued a poor job evaluation to its
employee Ida Minter.
Minter was hired by Respondent on November 27, 1993, as a
CNA. She actively supported the Union during the first and
second organizational campaigns, testified in the 1994 Repre-
sentation Case Objections Hearing, frequently handbilled in
front of Manor Care, wore union hats and numerous union but-
tons on her work uniform and openly contacted employees to
support the Union and sign authorization cards. Indeed, the
Respondent does not dispute that Minter was a known sup-
porter of the Union.
In accordance with the employee handbook (R. Exh. 21), an
employees performance will be evaluated 90 days after hire and
annually thereafter. Despite this requirement, Minter did not
receive her first appraisal until February 15, covering the entire
period of her employment (G.C. Exh. 2). While the overall
rating for the appraisal, that was prepared by Supervisor Aaron
was good, Aaron commented in the guest relations perform-
ance standard section that, “Minter needs to review the dress
code, wears large buttons on her tops, socks instead of stock-
ings and short pants.” Minter became upset about the evalua-
tion, primarily to the remarks in the guest relations section, and
showed it to a number of other CNAs while in the breakroom.
According to Minter, Aaron told her not to show her evaluation
to other employees. Minter also asked Aaron why she got a
poor evaluation. Aaron told Minter that it was due to her
clothes and the wearing of numerous buttons on her uniform.
On cross-examination, Aaron admitted that the comments about
buttons in the appraisal were referring to the numerous union
buttons that Minter wore on her work uniform.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer’s decision. On such a showing, the burden shifts to
the employer to demonstrate that the same action would have
taken place even in the absence of the protected conduct. The
United States Supreme Court approved and adopted the
Board’s Wright Line test in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 399–403 (1993). In Manno Electric,
321 NLRB 278 fn. 12 (1996), the Board restated the test as
follows. The General Counsel has the burden to persuade that
antiunion sentiment was a substantial or motivating factor in
the challenged employer decision. The burden of persuasion
then shifts to the employer to prove its affirmative defense that
it would have taken the same action even if the employee had
not engaged in protected activity.
I find that the General Counsel has made a strong showing
that the Respondent was motivated by antiunion consideration
by including the comments about Minter wearing “large but-
tons on her tops.” First, Aaron admitted on cross-examination
that the reference to large buttons on Minter’s tops referred to
her wearing union buttons. Second, there was no dispute that
Minter was a vocal union advocate and David Jones admitted
that he had numerous conversations with Minter to discuss the
pros and cons of union representation at the Respondent.
The burden shifts to the Respondent to establish that the
same action would have been taken place in the absence of the
employee’s protected conduct.
Respondent argues that because the overall rating of the job
evaluation was good, it cannot be established that Minter’s
union activities impacted the rating in a negative way and,
therefore the Act was not violated. In my opinion, this argu-
ment misses the point as Aaron admitted that the comments in
the appraisal about Minter wearing large buttons on her tops
referred to “union buttons.” The right to wear union buttons or
insignia while working as a form of expression is protected
under Section 7 of the Act. An employer may, however limit
or ban wearing of union insignia at work if special circum-
stances exist. Here, the Respondent made no arguments that
the wearing of union buttons affected residents or their fami-
lies, employee discipline, or the provision of services. See
Inland Counties Legal Services, 317 NLRB 941 (1995). I fur-
ther note that Minter wore at least five or six union buttons on
her work uniform during the 1994 election campaign and no
adverse consequences were visited upon her. Likewise, prior to
the receipt of the February 15 appraisal, no one at Respondent
ever criticized Minter about her clothes or dress appearance.
For all of the above reasons, and particularly noting that
Aaron admitted the comments in Minter’s job evaluation re-
ferred to the wearing of union buttons, I find that the Respon-
dent has failed to demonstrate that it would have taken the same
action against Minter even in the absence of her engaging in
union activities.
Accordingly, I find that the Respondent violated Section
8(a)(1) and (3) of the Act.
2. The termination of Brenda Hemsley
a. The merits
Brenda Hemsley was an employee for approximately 9 years
having transferred to the Respondent in 1994 from another
Manor Care facility located in Maryland. She was an active
supporter of the Union, participated in handbilling in front of
the facility and wore a union button on her work uniform.
MANOR CARE OF DECATUR 989
There is no dispute that the Respondent knew of Hemsley’s
support for the Union.
Hemsley regularly took care of a resident named Mrs. Ferris.
She was a difficult patient and demanded more attention then
the normal resident, often requiring 35 to 45 minutes to take
care of. Hemsley was not the only CNA to have difficulty
with this patient and because of complaints expressed by Mrs.
Ferris, three other CNAs were no longer assigned to her care.
In order to reduce the stress level associated with the care of
Mrs. Ferris, Respondent instituted a schedule so that the CNAs
now assigned to Mrs. Ferris would not have to work with her
two days in a row. On March 29, Hemsley reviewed the work
schedule and observed that she was assigned to Mrs. Ferris 2
days in a row. She initially complained about the assignment to
her First-Line Supervisor Carolyn Aaron and not satisfied ele-
vated her concerns to ADON Linda DeSue.7 After the meeting,
DeSue promised to raise the issue with Administrator Will
Blackwell.
Later that morning, Hemsley saw Blackwell in the hallway
near the second-floor nurses’ station. He was escorting his
superior, Regional Vice President Jeff Grillo, and several other
individuals on a tour of the facility. Hemsley, in the presence
of the above individuals and several other residents and family
members, asked Blackwell in a loud and emotional voice if
DeSue had talked to him. Blackwell responded that he had not
spoken to DeSue that morning. Hemsley said, she lied to me
because she promised to talk to you. Blackwell said, I cannot
talk to you now and requested that a meeting be convened later
in the day at a different location. Hemsley said, I need to talk
to you now and Blackwell said, not now. Hemsley then pro-
ceeded, in front of the above individuals numbering about 10,
to tell Blackwell about her assignment to care for Mrs. Ferris 2
days in a row and how difficult it was to care for her. Hemsley
stated, that Mrs. Ferris was demanding and it was impossible to
please her, that she was the most difficult patient to care for and
made it difficult to tend to the needs of the other residents, that
we are catering to Mrs. Ferris and we should not do that, that
we should not encourage her to stay in her room, that we should
take Mrs. Ferris to the bathroom and not let her go in her diaper
and she should not continue to receive special treatment includ-
ing two pillows under her legs, constant changing of the air-
conditioning and reheating her coffee. Blackwell told Hemsley
that he would discuss the issue later and left the nurses’ station
to complete the tour.
Blackwell testified that due to the complaints of other CNAs
about Mrs. Ferris, he was aware that she was a difficult patient
and prior to March 29, discussed with Mrs. Ferris how demand-
ing she was of the CNAs and if she needed extra care, she
should consider arranging for a private sitter. Blackwell
strongly objected to Hemsley’s outburst including the breach of
the patients confidentiality, the State of Georgia Statute of
Residents Rights and the fact that family members and other
individuals including residents overheard the conversation.
After discussing the matter with his boss, Blackwell decided to
take disciplinary action and prepared on March 29, the same
day of the incident, the employee disciplinary record (R. Exh.
9). The disciplinary record states that Hemsley should have
discussed the issue in private and should have known better

7 Hemsley, along with several other CNAs, previously complained
on three or four separate occasions about the difficulty in caring for
Mrs. Ferris to Aaron and DeSue.
then to publicly attack the administrator in front of guests and
families. The conduct was detrimental to company operations
that results in negative public relations and customer service.
The offense committed is listed in the employee handbook as
critical and is classified as a dischargeable offense (R. Exh. 21,
p. 36).
On March 30, Blackwell and DON Conley met with Hem-
sley to inform her of his decision to terminate her. Hemsley,
unbeknown to Blackwell and Conley, brought a tape recorder
to the meeting and taped the conversation (R. Exh. 19). Al-
though Hemsley denied that Blackwell discussed Respondent’s
Exhibit 9 with her, the document indicates that Hemsley re-
fused to sign it on March 30. Hemsley did acknowledge , how-
ever, that Blackwell told her during the March 30 meeting, that
she was being discharged for being insubordinate in front of his
colleagues.
In applying the guidelines of Wright Line, I find that the
General Counsel established that Hemsley was a union sup-
porter and the Respondent had knowledge of her activity. The
burden shifts to the Respondent to establish that the same ac-
tion would have taken place in the absence of the employee’s
protected conduct.
I conclude that the Respondent terminated Hemsley not be-
cause of her union activities but rather because of her outburst
in front of guests, residents and family members. In this re-
gard, the above noted conduct is classified as a critical offense
in the employee handbook with a penalty of discharge. Al-
though I am aware that Hemsley participated in handbilling and
wore a union button on her work uniform, the record indicates
that numerous other Manor Care employees also engaged in
this conduct but were not discharged. Moreover, the Respon-
dent established by record evidence, that other employees who
engaged in similar critical offenses listed in the employee
handbook, were also summarily terminated. Thus, it cannot be
established that Hemsley was treated in a disparate manner.
Considering the forgoing, I do not find that the Respondent
violated Section 8(a)(1) and (3) of the Act when it terminated
Hemsley on March 30, and recommend that paragraph 17(b) of
the complaint be dismissed.
b. The motion to dismiss
The Respondent made several motions during the course of
the hearing primarily based on the fact that the General Counsel
did not disclose that it possessed the tape recording of the
March 30 meeting until after Hemsley testified to its existence
during cross-examination, and after the Respondent finished
reviewing the Board affidavit provided by the General Counsel
in preparation for its cross-examination of Hemsley.8
Respondent first moved to dismiss all of the allegations in
the complaint based on the mishandling of evidence critical to
an important aspect of the case. Since Respondent’s counsel
acknowledges that the thrust of the motion concerns the mis-
handling of the investigation solely dealing with the March 30
tape recording and only deals with one employee, I am not
inclined to dismiss the entire case based on this incident.
8 Sec. 10394.7 of the Board’s Unfair Labor Practice Casehandling
Manual states in pertinent part: that the General Counsel must produce
a statement of a witness he/she has called, where such a statement is in
his/her possession in order that respondent’s counsel may use the
statement for purposes of cross-examination. The rule is patterned after
the Jencks’ Act, 18 U.S.C. § 3500
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 990
In regard to the second portion of Respondent’s motion to
dismiss the allegations of the complaint dealing with Hemsley,
that matter is moot in light of my recommendation to dismiss
that aspect of the case. Likewise, in light of this ruling, it is not
necessary to strike the testimony of Hemsley.
Respondent has also requested that I conduct further pro-
ceedings to determine how the tape recording came to be in its
present condition. In this regard, Hemsley testified that after
she left the March 30 meeting she did not listen to the tape
recording nor did she listen to it at any subsequent time but did
provide it to the Board agent investigating the case when she
gave her affidavit on July 21. Somehow, the tape recording
which was played during the course of the hearing and is part
of the record, contains missing portions of the initial part of the
March 30 meeting and also contains a portion of a telephone
conversation that the investigating Board agent had with an
employer unrelated to the subject case. While it is unfortunate
that this occurred, I am not inclined to order further proceed-
ings to determine how the tape came to be in its present condi-
tion. This is an administrative matter which should be pursued
with the Office of the General Counsel or Region 10. Further,
in light of my recommendation to dismiss the portions of the
complaint involving Hemsley, the motion to dismiss appears to
be moot.
Contrary to the Respondent’s portion of the motion to award
attorney’s fees for the defense of these cases due to the flagrant
and improper conduct of the General Counsel, I am not inclined
to grant such a request. In this regard, the General Counsel’s
case was professionally presented, involves numerous credibil-
ity resolutions and a number of the complaint allegations were
found to be meritorious.
While not dispositive of this case, the Respondent objected
to the General Counsel’s failure to turn over the tape recording
at the completion of Hemsley’s direct examination at the same
time that the General Counsel provided her affidavit in prepara-
tion for cross-examination. I am of the opinion that the Jencks’
Act does not encompass such a requirement. Reference to 18
U.S.C. § 3500(e) states in pertinent part: that the term “state-
ment,” as used in relation to any witness called by the United
States means:

(1) a written statement made by said witness and
signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other re-
cording, or a transcription thereof, which is a substantially
verbatim recital of an oral statement made by said witness
and recorded contemporaneously with the making of such
oral statement; or
(3) a statement, however taken or recorded, or a tran-
scription thereof, if any, by said witness to a grand jury.

In light of the above, I conclude that the tape recording of the
March 30 meeting does not fall within the meaning of the term
“statement” under the Jencks’ Act and, therefore, did not have
to be turned over to Respondent at the completion of Hemsley’s
direct examination when her affidavit was provided to counsel
in preparation for cross-examination. See Delta Mechanical
Inc., 323 NLRB 76 (1997) (contemporaneous statements cap-
tured on a tape recording at a substantive event are not Jencks
statements because they are not descriptions of past events).
Moreover, I note that the March 30 tape recording involves the
Respondent’s final action to terminate Hemsley, the actual
decision to do so and the reasons therefor, having been memo-
rialized on March 29. Thus, the tape recording of the March 30
meeting is not dispositive in resolving the issue of Hemsley’s
termination.
3. The termination of Herbert Green
The General Counsel alleges in paragraph 17(c) of the com-
plaint that about June 21, the Respondent suspended and there-
after discharged its employee Herbert Green.
Green was hired as a CNA in September 1993, and was sub-
sequently promoted to the position of nursing administrative
assistant. During the hiring process, Green apprised Respon-
dent that he suffered from hypertension and provided his Veter-
ans Administration Disability Certificate to substantiate those
assertions. Throughout his tenure, he found it necessary several
times a month to leave work during the workday, because of
elevated blood pressure. Respondent was aware of this situa-
tion, often taking his blood pressure, and directing Green to
leave work until his blood pressure returned to safer levels.
Green was the leading union organizer and assumed the un-
official title of head of the organizing committee. Respondent
knew of his active leadership role in the Union, frequently ob-
served his handbilling activities and often discussed with Green
the pros and cons of electing the Union at Respondent.
The employee handbook provides that two absences within
30 days constitutes unsatisfactory attendance and is classified
as a minor offense. The first accumulation of two absences
within 30 days warrants an oral warning while a second infrac-
tion subjects an employee to a written warning and the third
offense results in discharge. Linda DeSue credibly testified
that the 30 days are calculated on a rolling basis and all unex-
cused absences are included. For example, even if an employee
calls in sick and provides a doctors excuse, that is counted as an
unexcused absence.
On February 8, an ice storm took place in the Atlanta area
and Green was unable to get to work because the bus he nor-
mally took could not navigate his rural neighborhood. Since
the majority of employees did come to work despite the in-
clement weather, Green was assessed an absence for missing
work that day. On March 1, Green called in sick due to his
hypertension and on March 2, was given a written warning for
accumulating two absences in a 30-day period. Green was
again absent on June 5 and 15, due to hypertension, and when
he returned to work was told by Jill Conley and DeSue on June
21, that he was suspended for 3 days pending an investigation,
because of having accumulated a second infraction of two ab-
sences in a 30-day period (R. Exh. 11).
On June 26, while still on suspension, Conley telephoned
Green at home and asked him to come to the facility to go over
his termination paperwork. Immediately after informing her
that he could not come to the facility due to a scheduled doctors
appointment, Green telephoned Blackwell who told him that he
was being terminated for excessive absenteeism. On June 26,
the Respondent prepared the termination disciplinary record
noting that Green was being discharged for excessive absentee-
ism and that he refused to sign the employee record (R. Exh.
12).
Under Wright Line, I find that the General Counsel has made
a strong showing that the Respondent was motivated by anti-
union considerations in suspending and terminating Green.
First, the evidence establishes that the Respondent was aware
of Green’s leadership role in organizing the employees and
serving as spokesperson for the employees on behalf of the
MANOR CARE OF DECATUR 991
Union. Second, I find that Annie Boyd told Ida Minter that the
Respondent got rid of one head ringleader and that was Herbert
Green.
The burden shifts to the Respondent to establish that the
same action would have taken place even in the absence of the
employee’s protected conduct.
In regard to the Respondent’s reason for Green’s termina-
tion, I note that while the disciplinary record of June 26 reflects
that he incurred a written work performance warning on July
25, 1994, the sole reason enunciated for the termination was
because of Green’s excessive absenteeism. This is confirmed
by DeSue’s testimony that Blackwell told her to terminate
Green for excessive absenteeism because he incurred two sepa-
rate infractions for absences in a 30-day period. Moreover, by
notice dated June 21, to the State of Georgia, the Respondent
noted that the reason for separation was for “excessive absen-
teeism” (C.P. Exh. 1).
In comparing other employee records for discharges due to
excessive absenteeism, I find that Green was not treated in a
similar fashion to employees that did not engage in protected
activities. It is noted that unsatisfactory attendance (two ab-
sences within 30 days) is classified as a minor offense in the
employee handbook. The first offense warrants an oral warn-
ing while the second offense is subject to a written warning and
a third offense results in discharge. This was the progression
that employees Beverly Stephens, Brenda Mayo, and Janie
Strozier (R. Exhs. 25, 29, and 33), were afforded before termi-
nation took place after the third offense. Green, however, only
incurred two separate infractions for excessive absenteeism
during a 30-day period, yet he was terminated immediately
after the second offense. Significantly, the separation notice to
the State of Georgia, contradicts the June 26 employee termina-
tion record and shows that the Respondent actually terminated
Green on June 21, the same day that he was suspended pending
investigation of the absences. LastIy, I find that the Respon-
dent included the July 1994 work performance infraction in the
June 26 disciplinary record, to buttress its position that Green
was terminated in accordance with its three offense progressive
discipline policy. This attempt does not withstand scrutiny as
the Respondent testified and provided records to the State of
Georgia that Green was terminated solely for excessive absen-
teeism. As the evidence shows, Green only incurred two sepa-
rate infractions of excessive absenteeism and should not have
been terminated on that basis. I conclude that the Respondent
hastily went forward with its predesigned plan to terminate
Green, did not intend to make any meaningful investigation of
his absences during the 72-hour period, and did not follow its
preexisting progressive discipline plan when terminating Green.
The evidence of disparate treatment together with the unrebut-
ted testimony of what Boyd told Minter leads me to conclude
that the real reason for Green’s termination was due to his ag-
gressive role as the leading union adherent at the Respondent.
Moreover, I fully credit Green’s rebuttal testimony that in 1993
and 1994, he regularly incurred more than two absences in a
30-day period due to his hypertension, but was never given
either an oral or written reprimand for these unauthorized ab-
sences. Rather, it was only after the union campaign started to
accelerate in March 1995, that he was written up for unauthor-
ized absences. While the Respondent argues that the manage-
ment team of Blackwell, Conley, and DeSue was not employed
at the facility in 1993 and 1994, having started in January 1995,
it is noted that the same employee handbook, containing the
provisions for excessive absenteeism, was in effect for the
years of 1993, 1994, and 1995.
Accordingly, I find that the Respondent has failed to demon-
strate that it would have taken the same action against Green
even in the absence of his engaging in union activities, and
conclude that his suspension and termination violated Section
8(a)(1) and (3) of the Act.
4. The termination of Danielle Murray
The General Counsel alleges in paragraph 17(d) of the com-
plaint that about July 7, the Respondent discharged its em-
ployee Danielle Murray.
Murray was hired as a CNA in August 1994, but did not vote
in the September 1994 election because her date of hire was
after the eligibility period. Nevertheless, she handbilled in
front of the facility and wore a union button on her work uni-
form prior to the election. Likewise, before her termination,
she was active in the organizing campaign for the second elec-
tion and continued to wear a union button on her work uniform.
On June 19, Murray attended a meeting wherein Supervisor
Carolyn Aaron told the CNAs that it would be necessary for
them to take over additional duties. These duties included mak-
ing their own assignment sheets, bringing diapers upstairs, and
performing the former team leaders’ responsibilities. Murray
told Aaron that this was not fair and that team leaders were paid
extra for completing special assignments. Aaron also informed
the CNAs that because they continued to perform their charting
in the television room, contrary to outstanding instructions,
they must now chart at the nurses’ station. After the meeting,
Murray saw Conley and DeSue in the hallway and asked that a
meeting be scheduled to discuss the team leaders’ responsibili-
ties. The meeting was held later that day and a number of is-
sues including taking over the team leaders’ responsibilities and
charting were discussed. Murray told Conley and DeSue that
Aaron wanted all the CNAs to chart at the nurses’ station.
DeSue told the CNAs that they could also chart in the dinning
room but the television room was off limits because it was for
residents and family members.
On June 29, Aaron convened a meeting of the CNAs and ad-
dressed a number of issues from a prepared agenda (R. Exh. 5).
In particular, Aaron told the CNAs that when they pass food
trays in the halls, they should chart at the nurses’ desk and
when they pass trays in the dining room, they should chart in
that location. Although Murray denies that she made several
derogatory statements regarding the instructions, I find that she
told Aaron during the course of the meeting that the rule was
stupid, that their was no way she was going to chart at the desk
and she was not going to do it, “shit.”9 Aaron told Murray that
she would be written up for not following orders. Murray re-
plied, that she did not care and she was going to do what she
wanted to do. Aaron credibly testified and the assignment sheet
for June 29 confirms, that Murray was scheduled to pass trays
in the hall, and therefore, her charting was to be done at the
nurses’ desk. At the end of the workday, Aaron checked the
charting records and determined that Murray did her charting in
the dinning room rather then in her assigned location at the
nurses’ station. Accordingly, Aaron consulted with Conley and
DeSue, and it was decided to terminate Murray for the critical
offense of insubordination and the willful failure to carry out

9 I fully credit the testimony of employee Beverly Spencer to this ef-
fect and also note the signed statement of employee Veronique Ed-
munds (R. Exh. 24) of what Murray said during the June 29 meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992
orders. The employee disciplinary record was immediately
prepared on June 29, but was not presented to or discussed with
Murray until she returned to work from approved leave on July
8.
The General Counsel takes the position that Murray’s dis-
charge was undertaken due to her engaging in union activities
or because of her protected concerted activities and statements
made to Aaron during the June 29 meeting. I fully agree with
the Board’s holding in Mike Yurosek & Sons, Inc., 306 NLRB
1037, 1038 (1992), that “individual action is concerted where
the evidence supports a finding that the concerns expressed by
the individual are [sic] logical outgrowth of the concerns ex-
pressed by the group.” In this case I find that Murray’s com-
plaints, about the new rule that half of the CNAs should chart at
the nurses station and the other half in the dinning room, fall
within protected concerted activity. Moreover, I find that
Murray’s use of the words “stupid rule” and “shit” when de-
scribing the new charting rules is not outrageous conduct which
would render Murray unfit for employment if that was the sole
reason for her discharge. In this regard, and in accordance with
the principles of Wright Line, I do not find that Murray was
terminated either because of her union activities or for engaging
in protected concerted activity during the course of the June 29
meeting. Rather, I find that the Respondent would have taken
the same action even in the absence of Murray’s protected con-
duct. The evidence reveals that Murray’s June 29 work as-
signment was to pass trays in the hall, and correspondingly, her
charting was to be undertaken at the nurses’ station. Indeed,
Murray told Aaron during the meeting that she was not going to
chart at the nurses’ station, that she was going to do what she
wanted to do, and to write her up because she did not care. I
find that the termination was based on Murray’s direct refusal
to follow the June 29 work assignment and her failure to com-
plete the charting at the nurses’ station, rather then for her pro-
tected complaints about the rule or her use of ill advised lan-
guage during the course of the meeting. As the Respondent has
consistently done with other employees for violating the critical
offense of Insubordination, Murray was terminated for her will-
ful failure to carry out orders (R. Exh. 40). In regard to
Murray’s union activities, I note that numerous other employ-
ees handbilled, wore union buttons on their work uniforms and
that the Respondent was aware of those activities, yet they were
not disciplined or discharged. Here, I find that the Respondent
affirmatively supported its reason for Murray’s termination and
also note that it took place during her probationary year.
Accordingly, based on the forgoing, I find that the Respon-
dent did not violate Section 8(a)(1) and (3) of the Act when it
terminated Danielle Murray on July 8, and recommend that
paragraph 17(d) of the complaint be dismissed.
5. The termination of Melvin Strong
The General Counsel alleges in paragraph 17(f) of the com-
plaint that about September 15, the Respondent suspended and
thereafter discharged its employee Melvin Strong.
Melvin Strong was hired at Manor Care in September 1991,
as a CNA. He was active in the September 1994 and August
1995 union campaigns, frequently handbilled in front of the
Manor Care facility and testified in the Representation Case
hearing. There is no dispute that the Respondent was aware of
Strong’s active involvement and support for the Union.
On September 9, Sharon Foote the daughter of resident Mrs.
Foote requested assistance of Manor Care personnel to assist in
getting her mother into the family car in order to take her on an
outing to the shopping mall. Mrs. Foote has Alzheimer’s dis-
ease and it was necessary to obtain assistance when transport-
ing her from the facility to the vehicle. Strong was designated
to assist Mrs. Foote and approached Sharon Foote (Foote).
Foote credibly testified that when she asked Strong for assis-
tance in getting her mother to the family car, he was very rude
and initially said that he did not have time to assist the resident
in getting to the vehicle. Foote made an additional request for
assistance and Strong complied placing Mrs. Foote in a wheel-
chair and wheeling her to the car. Foote requested that her
Mother be placed in the back seat, informing Strong that they
always placed her in the back, because it was easier to keep an
eye on her and as a means of not interfering with the driver.
Additionally, due to a hip operation, it was easier to put Mrs.
Foote in the back seat and swivel her over. Strong refused to
put Mrs. Foote in the back seat and said he would only place
Mrs. Foote in the front seat because it was safer. He also took
off Mrs. Foote’s sun glasses when he put her in the front seat.
Foote told Strong that no one has done that before. Strong
replied, that you are used to getting things done your own way.
Foote replied, that she was used to getting proper cafe for her
Mother.
Foote testified that she was so upset about what happened
that she immediately called Blackwell at home on Saturday and
related the above facts to him.10 She requested that Strong not
be assigned to care for her Mother during her stay at Manor
Care. Blackwell informed Conley of his conversation with
Foote and alerted her that Foote would discuss the matter with
her when visiting her Mother at the facility on Monday. Foote
met with Conley on Monday and Conley memorialized their
conversation and the facts surrounding the incident (R. Exh.
20).
The meeting with Foote was the first step in Respondent’s
internal investigation process whenever allegations of abusive
treatment are raised against an employee by the family of a
resident. DeSue credibly testified that on September 13, around
2:50 p.m., she approached Strong at the timeclock and re-
quested that he come to a meeting in Conley’s office. Strong
refused and left for the day. Conley, on September 13, pre-
pared and sent a letter to Strong enclosing the employee disci-
plinary record that shows that he refused to meet with her and
informed him that he was being suspended for 3 days pending
the final investigation of the patient care matter (R. Exh. 3).
After the completion of the investigation and Strong’s 3-day
suspension on September 19, it was determined to terminate
him for conduct detrimental to company operations that results
in negative public relations and patient care (R. Exh. 23).
In addressing the termination under the guidelines of Wright
Line, I find that the Respondent was aware of Strong’s active
involvement in the Union and his efforts in trying to organize
Manor Care employees.
The burden shifts to the Respondent to establish that the
same action would have taken place even in the absence of the
employee’s protected conduct. I find that while Strong denied
that he engaged in any inappropriate behavior or used rude
language in dealing with Foote, the overwhelming evidence is
to the contrary. Thus, I fully credit the testimony of Foote,

10 Before Mrs. Foote became a resident at Respondent, she was a pa-
tient at Manor Care of Marietta for 3 years. In all that time, Foote
never had an occasion to call any Manor Care official at home.
MANOR CARE OF DECATUR 993
Blackwell, Conley, and DeSue involving Strong’s treatment of
Mrs. Foote and conclude that the Respondent terminated him
for legitimate and nondiscriminatory reasons. Moreover, I note
that Strong initially denied that he was previously counseled
about patient care and customer relations but grudgingly admit-
ted same when confronted with his 1994 performance appraisal
on cross-examination. Additionally, I do not credit Strong’s
testimony that neither Conley nor DeSue requested to meet
with him to inquire about his version of the facts concerning the
incident with Mrs. Foote. Rather, I find DeSue’s testimony
regarding this matter and Conley’s letter dated September 13,
to be determinative of this issue. In regard to Strong’s union
activities, he admitted that numerous other employees hand-
billed, wore union insignia and supported the Union but they
were not disciplined or terminated. Lastly, I find that the Re-
spondent treated other similarly situated employees in the same
manner and terminated individuals who engaged in conduct
detrimental to customer relations and patient care (R. Exhs. 41,
42, and 43).
For all of the above reasons, I find that the Respondent did
not violate Section 8(a)(1) and (3) of the Act when it suspended
and terminated Melvin Strong and recommend that paragraph
17(f) of the complaint be dismissed.
6. The termination of Rose Harvey
The General Counsel alleges in paragraph 17(g) of the com-
plaint that about November 11, the Respondent discharged its
employee Rose Harvey.
Rose Harvey was hired at Respondent in May 1995, as a
CNA. Harvey was an active supporter of the Union, handbilled
in front of the Manor Care facility, and served as the Union’s
observer during the August 1995 election and ballot count
along with Respondent officials Blackwell, Jones, Conley, and
DeSue. Thus, there is no dispute that the Respondent was
aware of her conduct on behalf of the Union.
On November 10, Harvey informed Conley that her grand-
mother passed away, and that she would let her know what the
arrangements were as soon as she found out. Harvey further
apprised Conley that she would have to go out of town as the
funeral was scheduled in New York. Conley requested that
Harvey let her know the arrangements as soon as she became
aware of them (G.C. Exh. 9). On November 11 (Saturday),
Harvey became aware of the funeral arrangements and at-
tempted to contact Conley at work. Since Conley was not
scheduled to work that day and ADON DeSue was on call,
Harvey asked that she be paged. DeSue testified that around
9:30 a.m. on November 11, she was paged and informed that
Harvey wanted to speak with her. Harvey told DeSue that her
grandmother had died and she needed to go to New York for
the funeral. DeSue instructed Harvey to put the request in writ-
ing and include when she was leaving and when she would
return to work. During the conversation, DeSue told Harvey
that her job would not be guaranteed because she was taking an
unauthorized leave of absence. Harvey informed DeSue that
she spoke with Conley the preceding day but did not fill out
any “LOA paperwork” because she did not know when the
funeral was scheduled. Harvey also told DeSue that she would
not be able to work the Sunday day shift because she would be
in New York. Immediately after the telephone conversation
with DeSue, Harvey prepared on November 11, a written re-
quest for a leave of absence due to the death of her grand-
mother. She requested that it start on November 12 and end on
November 20, with her return to work on November 21. Har-
vey went to the facility that day and placed the request under
DeSue’s office door.
On November 14, Conley and DeSue reviewed Harvey’s re-
quest for a leave of absence and determined that because she
had been employed for less then 1 year, she was ineligible to
take a leave of absence.11 Additionally, they noted that the
employee handbook provides for 1 day of paid leave if you are
scheduled to work on the day of the funeral of a grandparent.
Conley and DeSue reviewed the work schedule and observed
that Harvey was scheduled to work on November 11 and 12.
Since Harvey was entitled to only 1 day of paid leave to attend
the funeral of a grandparent and was not eligible to be consid-
ered for a leave of absence, the fact that she did not return to
work on November 12 or thereafter, warranted termination
based on job abandonment under the critical offense policy in
the employee handbook. Accordingly, Conley prepared the
necessary paperwork on November 14, to effectuate Harvey’s
termination (G.C. Exh. 8).
The General Counsel takes the position that Harvey was ter-
minated because of her union activities and was not treated in
the same manner as a similarly situated employee who did not
engage in protected conduct. The Respondent opines that Har-
vey was terminated based on job abandonment and was treated
in the same manner as a similarly situated employee.
Harvey returned to the Atlanta area and found her termina-
tion notice in the mail. She also observed an ad in the Sunday
Atlanta newspaper that the Respondent was looking to hire
CNAs on the same shift that she previously worked. Harvey
telephoned Human Relations Manager Margaret Williams
about the newspaper ad but Williams declined to discuss the
issue with her.
Under the guidelines of Wright Line, I find that the General
Counsel has established that the Respondent was aware of Har-
vey’s union activities and protected conduct. I find, however,
that the Respondent would have taken the same action in termi-
nating Harvey even in the absence of her protected conduct. In
this regard, the Respondent’s policy concerning eligibility for a
leave of absence applies to all full-time and part-time employ-
ees regardless of whether they supported the Union and pro-
vides that employees employed for less then a year are not eli-
gible to take leave of absences. Moreover, Harvey admitted
that the handbook provides and DeSue informed her on No-
vember 11, that her job could not be guaranteed because she
was taking an unauthorized leave of absence. In regard to the
General Counsel’s argument that fellow employee Sharon Ed-
wards was treated differently then Harvey, the record evidence
does not support such an assertion. Edwards, like Harvey, was
employed for less then a year when she requested to take a
leave of absence from June 9 to August 28, for personal rea-
sons. Upon returning to the area, Edwards was not reinstated to
her full-time CNA position. Rather Edwards, unlike Harvey,
independently initiated a request to go on PRN status. Since
employment in this status is on an as needed basis, the Re-
spondent granted Edwards request. Under these circumstances,
I find that Harvey and Edwards were treated the same, as both
employees were not eligible to take leave of absences and nei-

11 The employee handbook states in pertinent part: that LOAs may
be granted to full-time and part-time employees who have completed
one (1) year of service and who have worked at least 1250 hours during
the preceding year. We cannot hold or guarantee your position if you
take a LOA for personal or educational reasons.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 994
ther employee was permitted to return to their full-time posi-
tion. With respect to Harvey’s union activities, I find that they
did not differ substantially from other employees who sup-
ported the Union, attended the ballot count, engaged in hand-
billing or wore union insignia, yet those employees were not
terminated because of such conduct. Lastly, I credit Conley’s
testimony that even if there was a newspaper ad recruiting
CNAs about the time of Harvey’s termination, employees who
took an unauthorized leave of absence and abandoned their jobs
were not eligible for full-time reemployment. Accordingly, I
find that Harvey was not terminated because of her protected
conduct nor was she treated in a disparate manner. Therefore,
Respondent’s determination to terminate Harvey on November
14, did not contravene the Act.
Considering the forgoing, I find that the Respondent did not
violate Section 8(a)(1) and (3) of the Act and recommend that
paragraph 17(g) of the complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent 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. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by creating the impres-
sion among its employees that their union activities were under
surveillance, by instructing employees not to show their job
evaluations to other employees or to discuss their wages with
other employees, and threatening employees that they only had
one or two employees to get rid of to win the union election.
4. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act by suspending
and discharging its employee Herbert Green and issuing a poor
job evaluation to its employee Ida Minter.
5. Respondent did not engage in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act by discharg-
ing employees Brenda Hemsley, Danielle Murray, Diane Hines,
Andril Seldon, Melvin Strong, and Rose Harvey.
6. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily suspended and dis-
charged employee Herbert Green, it must offer him reinstate-
ment and make him whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of his suspen-
sion/discharge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12

12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
ORDER
The Respondent, Decca Limited Partnership d/b/a Manor
Care of Decatur, Decatur, Georgia, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Creating the impression among its employees that their
union activities were under surveillance.
(b) Instructing employees not to show their job evaluations
to other employees.
(c) Instructing employees to cease discussing their wages
with other employees.
(d) Threatening employees that they only had one or two
employees to get rid of to win the union election.
(e) Discharging or otherwise discriminating against any em-
ployee for supporting United Food and Commercial Workers,
Local Union 1996.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Herbert
Green full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Herbert Green whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspension/discharge and
notify the employee in writing that this has been done and that
the suspension/discharge will not be used against him in any
way. Also, remove from its files any reference in Ida Minter’s
February 15, 1995 performance appraisal to the wearing of
large buttons on her tops.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Decatur, Georgia, copies of the attached notice marked
“Appendix.”13 Copies of the notice, on forms provided by the
Regional Director for Region 10, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt 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, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
13 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

MANOR CARE OF DECATUR 995
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since February 15, 1995.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.