Mead Nursing Home, Inc.

National Labor Relations Board - Board Decisions

May 12, 1977

229 N.L.R.B. 620 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mead Nursing Home, Inc. and Service Employees'
International Union, Local 227, AFL-CIO. Cases
6-CA-8670, 6-CA-8787, and 6-RC-7203'
May 12, 1977
DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On September 30, 1976, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the Petitioner
filed with the Board its brief that it submitted to the
Administrative Law Judge in support of the Union's
position with respect to the challenged ballots in
Case 6-RC-7203.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Mead Nursing
Home, Inc., Meadville, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice shall be substituted for the
Administrative Law Judge's notice.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Service Employees'
International Union, Local 227, AFL-CIO, and that,
pursuant to Section 9(a) of the National Labor
Relations Act, as amended, the said labor organiza-
tion is the exclusive representative of all the
employees in the unit found appropriate herein for
the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, or other
conditions of employment:
All housekeeping employees including the head
housekeeper, all laundry employees including the
229 NLRB No. 98
head laundress, all dietary employees including
the kitchen head, all maintenance employees
including the painter, all nurses aides, licensed
practical nurses, the ward clerk, the arts/crafts
employee, and the beautician; excluding all office
clerical employees, registered nurses, the pharma-
cist, the administrator, the director of nursing,
and guards, other professional employees, and
other supervisors as defined in the Act.
By order dated March 22, 1976, the Regional Director ordered a
hearing with respect to objections and challenged ballots in Case 6-RC-
7203 and consolidated the unfair labor practice and representation cases for
the purposes of hearing, ruling, and decision by an Administrative Law
Judge. The Regional Director also ordered that, after decision by an
Administrative Law Judge, the representation case be transferred and
continued before the Board.
2 We agree with the Administrative Law Judge, that the persons
challenged at the election as casual employees were casual employees, as the
facts show that each of these employees worked infrequently and
sporadically, on no regular basis, with varying hours of work on various
shifts. Their earnings during the relevant period were minimal. As these
persons were casual employees, it is proper that the challenges to their
ballots be sustained.
I As recommended by the Administrative Law Judge we shall issue a
Certification of Representative as a majority of the valid ballots in the
election have been cast for the Union.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the
opportunity to present their evidence, it has been
decided that we violated the law, and we have been
ordered to post this notice. We intend to carry out
the Order of the Board and abide by the following:
WE WILL NOT discharge or otherwise punish
employees because they have engaged in union
activities or concerted activities for their mutual
aid or protection, and/or because they assisted
the Board in the investigation of matters pending
before it under the Act.
WE WILL NOT coercively question employees
about their union membership, sympathies, activ-
ities, and desires, nor will we create an impression
that their union activities are under surveillance.
WE WILL NOT maintain an invalid no-solicita-
tion/no-distribution rule, nor will we enforce or
threaten to enforce such a rule by any means,
including issuance of written warnings.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights.
WE WILL offer Diana (Keisel) Shaffer and
Jeanette Peterson immediate and full reinstate-
ment to their former positions or, if such positions
no longer exist, to substantially equivalent posi-
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MEAD NURSING HOME
tions, without prejudice to their seniority or other
rights and privileges, and give them backpay for
any loss of earnings.
WE WILL rescind the written warning issued to
Diana (Keisel) Shaffer on August 13 and delete
any reference to that warning from her personnel
file.
All our employees are free to engage in union
activities on behalf of Service Employees' Interna-
tional Union, Local 227, AFL-CIO, or any other
labor organization, to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid and protection. Our employees are also
free to refrain from any or all such activities except
to the extent that such right may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in
Section 8(a)(3) of the Act.
MEAD NURSING HOME,
INC.
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge: This
consolidated proceeding was heard before me on May 10
and 11, 1976, at Meadville, Pennsylvania. The charges in
Cases 6-CA-8670 and 6-CA-8787 were filed on October 8
and November 13, 1975,' respectively, by Service Employ-
ees' International Union, Local 227, AFL-CIO.2 The
consolidated complaint, issued January 30, 1976, alleges
that Mead Nursing Home, Inc., hereafter referred to as
Respondent, violated Section 8(a)(l) of the Act by (a)
maintaining and threatening to enforce an invalid no-
solicitation and no-distribution rule, (b) interrogating
employees and creating the impression that their union
activities were under surveillance, and violated Section
8(a)(1), (3), and (4) of the Act by (c) discriminatorily
reducing the hours of Diana (Keisel) Shaffer and Jeanette
Peterson and by terminating them on November 11.3
A petition for certification of representative in Case 6-
RC-7203 was filed on July 21 by the Petitioner and,
pursuant to a Stipulation for Certification Upon Consent
Election approved August 13, an election was held on
September 19 in the following unit of employees:
All housekeeping employees including the head house-
keeper, all laundry employees including the head
laundress, all dietary employees including the kitchen
head, all maintenance employees including the painter,
all nurses aides, licensed practical nurses, the ward
clerk, the arts/crafts employee and the beautician;
excluding all office clerical employees, registered
nurses, the pharmacist, the administrator, the director
All dates are in 1975 unless otherwise specified.
2 Hereafter referred to as Petitioner.
of nursing and guards, other professional employees
and other supervisors as defined in the Act.
At the conclusion of the election the tally of ballots
showed: 122 approximate number of eligible voters; no
void ballots; 55 votes cast for petitioner; 41 votes cast
against participating labor organization; 96 valid votes
counted; 26 challenged ballots; 122 valid votes counted
plus challenged ballots.
Following the timely filing of objections to conduct
affecting the results of the election by the Petitioner, the
Regional Director for Region 6 directed a hearing on
certain matters relating to the objections, involving the
alleged (I) interrogation of employees, (2) (3) maintenance
and threatened enforcement of an invalid no-solicitation
and no-distribution rule, (4) refusal to permit an employee
to return to work from a leave of absence, and (5)
discriminatory issuance of a disciplinary warning notice.
Since the number of challenged ballots is sufficient to
affect the results of the election, the Regional Director also
ordered that a consolidated hearing be held including
issues concerning the eligibility of the employees whose
ballots were challenged. Because of the interrelationship of
the issues raised in case 6-RC-7203 with those in cases 6-
CA-8670 and 6-CA-8787, these cases were consolidated
for hearing.
All parties were afforded a full opportunity to participate
in the hearing. Counsel for General Counsel argued orally.
The Petitioner and the Respondent filed briefs. All briefs
and arguments have been carefully considered. Upon the
entire record in the case and from my observation of the
witnesses, I hereby make the following:
FINDINGS OF FACT
I. JURISDICTION
As admitted in the answer, Respondent is a Pennsylvania
corporation engaged in the business of operating a
proprietary nursing home in Meadville, Pennsylvania.
During the 12-month period immediately preceding Janu-
ary 30, 1976, Respondent in the course and conduct of its
business operations, received gross revenue in excess of
$100,000 and purchased and received at its Meadville
facility goods valued in excess of $50,000 from other
enterprises located in the Commonwealth of Pennsylvania,
which other enterprises had received the said goods
directly from suppliers located in States other than the
Commonwealth of Pennsylvania. As admitted, I find that
Respondent is now and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
1. LABOR ORGANIZATION
The Petitioner is now and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
I One further allegation, par. 7(a), relating to an employee named Ursula
Herring, was withdrawn at the end of the General Counsel's case.
621
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Supervisory Status and Agency
At the hearing Respondent amended its answer to admit
that the following named persons were at all times material
herein agents and supervisors within the meaning of
Section 2(1 1) of the Act, and I so find:
William McBride
W. James McBride
Lois Briggs
Ruth Ann Pethel
Gladys Dubal
M. S. Conaway
Administrator
Personnel Director
Director of Nursing
Nursing Supervisor
Nursing Supervisor
Nursing Supervisor
B. The Alleged Unlawful Interrogation and Creation
of the Impression of Surveillance
According to undisputed and credited testimony by
Peter A. Wydra, organizer and business representative for
Petitioner, he was first contacted by employees of Respon-
dent on June 30. The first union meeting was held on July 9
followed by numerous "minor committee meetings" and
two further "general meetings" on July 31 and August 27.
Wydra testified that the July 9 meeting was attended by
Supervisors Conaway and Pethel who were registered
nurses since at the outset of the campaign, prior to the
withdrawal of its petition in case 6-RC-7203 on August I1I,
Petitioner was also seeking to represent a unit of registered
nurses.
Azita Dearborn testified that near the beginning of July
prior to the July 9 meeting which she attended, she had a
brief conversation with Wydra who was standing at the end
of the nursing home driveway. Dearborn asked him what
he thought he could do for her, and Wydra gave her a card
and invited her to attend the meeting. A short time later
she saw Personnel Director James McBride, informed him
about the incident, and announced her intention to go to
the meeting. On July 11, Dearborn was approached by
Nursing Supervisor Ruth Ann Pethel who said she had
heard that Dearborn had been to the union meeting and
asked if she minded discussing what went on there.
Dearborn said no, and proceeded to describe what had
been discussed, including such topics as insurance and
wages. Then Pethel asked if Dearborn knew any of the girls
who were there, and Dearborn replied she did not because
she knew very few girls on the first shift. Pethel responded
that they already knew who was at the meeting and that
Mrs. Briggs, the head of the nursing staff, had asked her to
talk to Dearborn.
Diana Parker testified that she signed a union card and
attended the July 9 and 31 meetings. Around the middle of
August, during a conversation between Nursing Supervisor
Gladys Dubal, Parker and others at the nurses station
about 2:30 in the afternoon, Dubal brought up the subject
of the Union by asking what they thought about the Union.
Parker responded that she was for it, and Dubal remarked
she was neither for it nor against it. Parker elaborated that
she thought it would be good because there would be more
benefits and set rules and regulations at the home and that
they would have nothing to lose by trying to get it in.
In her testimony, Pethel admitted saying to Dearborn, "I
hear you went to the meeting." Upon receiving an
affirmative response, she asked if there were many there
from the second shift. Dubal denied asking Parker what
she thought about the Union during a conversation with a
group of employees in August at the nursing station, but
admitted she talked with employees about the Union, "but
not very much." At another point in her testimony she
stated that she did not recall talking to Parker about the
Union in August but did remember having a conversation
in which someone said they might choose the Union
because it would help them. Considering these admissions,
I credit the testimony of Dearborn and Parker and find
that Dubal and Pethel unlawfully interrogated them as
alleged in the complaint, and further that Pethel's July 11
remarks to Dearborn tended to create the impression that
the employees' union activities were under surveillance.
C. The No-Solicitation/No-Distribution Rule
It is undisputed that during all times material herein,
from April 1, 1974, through November 1975, Respondent
maintained in its personnel policies manual a rule which
read: "There shall be no distribution of materials of any
kind, other than those directly related to normal work
assignments, and there shall be no solicitation of any kind,
during working hours, and in any work area." The manual
then proceeds further to provide for the following disci-
pline for infractions of the rule: "The first offense-written
warning, second offense-termination of employment."
Diana (Keisel) Shaffer began her employment with
Respondent as a nurses aide in August 1974. Her first
contact with the Union occurred at the end of June when
she received literature from Union Representatives Peter
Wydra and Gerry Henchey at the end of the nursing home
driveway. She filled out and mailed in the union authoriza-
tion card they had given her at that time and following her
2 weeks' vacation in July became active in union affairs.
She collected names and addresses of employees for the
Union's use, attended union meetings, was present with the
Union at the scheduled representation hearing which
resulted in the signing of a stipulated consent agreement,
and served as a union observer at the September 19
election. Following the August 11 election conference
(Keisel) Shaffer attempted to post a one-page document,
containing Petitioner's letterhead, at the nursing home. The
document captioned "Election Notice" summarized the
substance of the stipulated consent election agreement
arrived at between the Company and the Union at the
conference. Shaffer was called to the office of Director of
Nursing Briggs and handed a written warning about
violating the Company's no-solicitation/no-distribution
rule, which she refused to sign. Briggs ended the interview
with the remark that she would have to talk to Mr.
McBride about what they were going to do. Very shortly
thereafter Shaffer received a letter from Personnel Director
McBride which embodied the substance of the written
warning and cautioned her that further infractions of
Respondent's rules would result in her termination. The
text of the letter read:
622
MEAD NURSING HOME
It has been brought to my attention that you have
willfully disregarded the rules and regulations of the
Mead Nursing Home. On August I , 1975, you were
observed with posters that you were told could not be
placed on the bulletin boards and you were later
observed hanging them on the bulletin boards.
As you are well aware this is a violation of the No
Distribution/No Solicitation Rule which states that the
distribution of materials not directly related to normal
work assignment is prohibited as well as solicitation of
any kind in any work area. The first offense of this rule
results in a written warning and the second offense will
result in termination of employment.
You may consider this letter as your only written
warning. If I receive any more information concerning
your disregard for the rules of this Home, your
employment will be terminated.
One final incident relating to Respondent's enforcement
of its no-solicitation/no-distribution rule occurred on or
about September 2. According to Shaffer, on that day she
brought some union newspapers into the nursing home in a
brown paper bag and left them, still in the bag, beside her
purse at the nurses station. Later, about lunchtime, Shaffer
noticed that the bag containing the newspapers was
missing. After questioning Sandy Huff, another employee
who also had brought in union newspapers, about their
whereabouts, it was decided they would ask Mrs. Briggs
what happened to them. Upon discovering that Briggs was
not in her office, the two employees sought out James
McBride. When they asked about their newspapers he
pointed to his waste basket. In answer to the two
employees' question concerning why he had taken their
newspapers, McBride answered that they were not allowed
in the home. When Shaffer and Huff protested that they
were their own personal property and they had not been
passing them out, McBride repeated that they were not
allowed in the home and then remarked that since Huff
was quitting in 2 weeks it didn't matter to her but that he
had already warned Shaffer once and was telling her now
that the next time she would be fired.
Shaffer also testified that she had read Respondent's
policy manual but did not know that employee notices
were supposed to be posted on a bulletin board near the
lounge in the basement of the home rather than on the
bulletin boards at the nurses stations. She agreed that she
and Huff had left the packets of newspapers at each nurses
station in order that other employees could pick them up
and read them if they so desired. On cross-examination,
Shaffer insisted that McBride specifically said that the
newspapers were not to be distributed in the home at all.
Lois Briggs testified that, on other occasions prior to the
newspaper incident testified to by Shaffer, she had
discovered union newspapers in the home and had picked
them up and thrown them away. Concerning the newspa-
per incident related by Shaffer in her testimony, Briggs
testified that it was she who discovered the newspapers
laying in the open at the nurses station around September
2, and that she took them to the office. She insisted that she
had never permitted any type of literature to be distributed
to employees at the nurses stations, including religious
materials and advertisements for Avon products. W. James
McBride, Respondent's personnel director, testified con-
cerning the September 2 newspaper incident that the
newspapers were in his office when he arrived at work, that
he told Shaffer that they were not to be received at her
work station and thus violated the no-solicitation/no-
distribution rule, and that if she continued to break the
rules of the nursing home she would be subject to
dismissal. McBride also testified that on a third occasion,
on August 7, Shaffer was verbally reprimanded for
distributing union newspapers. He stated that while
employees are not permitted to post notices on the bulletin
boards at the nurses stations, such posting is permitted on
the bulletin board in the employee lounge.
To the extent their testimonies differ, I credit the
testimony of Shaffer over that of Briggs and James
McBride who were very evasive on cross-examination and
exhibited a distinct tendency to fence with counsel about
these incidents. I also do not credit James McBride's
testimony that he verbally warned Shaffer about distrib-
uting union newspapers on August 7, since there is no
reference in the August 13 warning letter to any previous
alleged infraction of the no-solicitation/no-distribution
rule, but it specifically states that a written warning
constitutes the specified discipline for a first offense.
The General Counsel argues that Respondent's mainte-
nance, since April 1974 and throughout the union cam-
paign, of the no-solicitation/no-distribution rule as worded
above constitutes a violation of Section 8(aX I) of the Act in
that the wording of the rule itself is invalid, since it
prohibits solicitation and distribution during working
hours and in all work areas.
In support of his argument, the General Counsel cites
Essex International, Inc., 211 NLRB 749 (1974); and
Summit Nursing and Convalescent Home, Inc., 196 NLRB
769 (1972), as controlling precedents. In Essex the Board
held that it would consider a no-solicitation/no-distribu-
tion rule restricting such activities during "working hours"
invalid since the term "working hours" is prima facie
susceptible of the interpretation that the restriction is
applicable during all business hours. Thus, a rule utilizing
the term "working hours" would be valid only if it were
shown by extrinsic evidence that the rule was explained or
applied so as to convey clear intent that solicitation and
distribution during breaktimes or other periods when
employees are not actively at work is permitted. On the
other hand, the use of the term "working time" was held to
clearly convey an intent that the restriction of solicitation
or distribution of union literature was limited only to "the
period of time that is spent in the performance of actual job
duties, which would not include time allotted for lunch and
break periods." In Summit the Board held invalid a rule
which prohibited union solicitation at any place in the
nursing home, even on employees' nonworking time and in
nonworking areas. In addition, the Board applied the test
enunciated in Stoddard-Quirk Manufacturing Co., 4 and
found the no-distribution rule invalid as prohibiting
4 138 NLRB 615, 618 (1962).
623
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distribution in the nursing home during employees'
nonworking time. The General Counsel also urges that
Respondent's enforcement of the rule by McBride's
September 2 oral threat that Shaffer would be terminated if
she repeated the infraction also violated Section 8(a)(1),
and that the issuance of the August 13 warning letter to
Shaffer also violated the Act.
Respondent argues, on the other hand, that its no-
solicitation/no-distribution rule is validly worded and was
properly and uniformly enforced. It cites the recent
decision of the Board in St. John's Hospital and School of
Nursing, Inc., 222 NLRB 1150 (1976), as the controlling
precedent which it is contended supports Respondent's
position. Generally, no-solicitation rules are presumptively
valid if applicable only to solicitation during working time,
but are presumptively unlawful if they extend to solicita-
tion during nonworking time regardless of whether the
solicitation occurs in a work or nonwork area. Rules
prohibiting the distribution of literature are presumptively
valid unless they extend to activities during nonworking
time and in nonworking areas. The existence of a rule
which is presumptively unlawful must be justified by
evidence to show some special circumstances which
warrant a further restriction of employee rights. In St.
John's the Board acknowledged the existence of special
circumstances in hospitals, arising from the fact that a
hospital's primary function is patient care, an essential
element of which is a tranquil atmosphere. Thus the Board
held that a hospital may be warranted in banning
solicitation on nonworking time in strictly patient care
areas, such as patients rooms, operating rooms, and places
where patients receive treatment such as X-ray and therapy
areas. The Board further noted that broad restrictions were
not justified by these considerations insofar as they apply
to visitor access areas other than those involved in patient
care and patient access areas such as cafeterias and
lounges.
The Board's decisions issued since St. John's, involving
no-solicitation and no-distribution rules as applied to
nursing homes, do not specify whether or not the Board
intended the St. John's rule to apply to nursing homes.
Obviously there are distinct physical and functional
differences between a hospital and a nursing home where
some of the facilities and services performed relate directly
to health care and some do not. At least one case, National
Nursing Home Consultants, Inc., d/b/a Clermont Nursing
and Convalescent Home, 223 NLRB 13 (1976), wherein the
Board subsequent to its St. John's decision adopted the
Administrative Law Judge's finding of an invalid no-
solicitation rule based on the Summit case, suggests that
Summit provides the controlling rule relating to no-solicita-
tion/no-distribution rules in nursing home cases. However,
I find it unnecessary to pass upon this question since an
analysis of both Summit and St. John's reveals that a
justification for the existence of a broad no-solicitation/no-
distribution rule further restricting employee rights in this
area is dependent on a showing of the existence of special
circumstances. In the instant case no evidence seeking to
show such special circumstances has been offered. Respon-
5 Likewise it would seem even if the rule in St. John's were applied the
rule would he invalid for the additional reason that the prohibition
encompasses all work areas.
dent simply contends that St. John's is controlling and that
its rule is presumptively valid as worded and enforced. I do
not agree. Respondent's rule as worded in its personnel
policies manual prohibits solicitation of any kind during
working hours and, consequently, is clearly invalid under
the Board's Essex decision. In addition, the rule is also too
broad in that its prohibition against solicitation "in any
work area" also transcends the Board's pronouncement in
Stoddard-Quirk,". . . to effectuate organizational rights
through the medium of oral solicitation, the right of
employees to solicit on plant premises must be afforded
subject only to the restriction that it be on nonworking
time."
The restrictions concerning that portion of Respondent's
rule relating to distribution are susceptible to two reason-
able interpretations, both of which are invalid. If the
prohibition against "distribution of materials of any kind"
is read in conjunction with the final clauses in the sentence
"during working hours, and in any work area," it is invalid
under Essex because it includes breaks and lunch periods.5
Secondly, an employer's no-distribution rule may reason-
ably be interpreted as prohibiting the distribution of
materials of any kind, other than those directly related to
normal work assignments. Indeed, this is the precise
interpretation given by Personnel Director McBride both
in his August 13 warning letter and his September 2
statement to Shaffer, according to her credited testimony,
in which he stated that her union newspapers were not
allowed in the home and threatened to discharge her if she
brought them in again. Such a total prohibition of the
distribution of union literature on Respondent's premises is
clearly invalid. Therefore, under all the circumstances
discussed above, I find that Respondent violated Section
8(a)(1) of the Act by maintaining an invalid no-solicita-
tion/no-distribution rule, and by enforcing that rule
through its August 13 warning letter and September 2
threat to (Keisel) Shaffer.
D. The Alleged Reduction of Diana (Keisel)
Shaffer's and Jeanette Peterson's Working Hours
Between October 1 and November 11
In the immediately preceding portion of this decision I
have described how in August and again in early
September Diana Shaffer's union activities came to the
attention of Briggs and McBride in connection with her
infractions of the home's no-solicitation and no-distribu-
tion rule. Shaffer was first hired as a full-time nurses aide in
August 1974. Her full-time status continued until the end
of June when, pursuant to her request to have weekends
off, Briggs told her the only way she could be free on
weekends was to request to go on part-time status.
Thereafter Shaffer's request to be placed on part-time
status 4 days a week in July was granted. Shaffer spent the
first 2 weeks in July on vacation. Thereafter she worked 4
days a week and, with the exception of one weekend, had
the weekends off. During August and September, however,
she worked 4 days a week, in her words "mostly
weekends." When the October schedule was posted, her
624
MEAD NURSING HOME
hours were reduced to 2 days a week for the entire month
of October. The posted November schedule allocated to
her 7 days of work for the entire month. In October when
Shaffer asked Briggs why her hours had been reduced and
why she was scheduled to work mostly weekends, Briggs
answered "because that's when we need you, and if you
don't like it, quit." On November 4, Briggs told Shaffer that
she would return to a 4-day workweek.
Jeanette Peterson began working for Mead Nursing
Home in 1969, but quit after a year and a half of
employment. She was reemployed as a nurses aide in
February 1973, at which time she expressed the desire to
Mrs. Briggs to work about 30 or 32 hours a week with no
work on weekends. After some discussion between them, it
was agreed that Peterson would have the amount of hours
requested, but that she would work one weekend a month.
Peterson first came into contact with the Union through
Peter Wydra's passing out union literature around the end
of June near the entrance to the home's driveway.
Thereafter she talked to other employees about the Union
and attended all of the union meetings except one. Her
union sympathies became known to Respondent in early
July sometime after the first union meeting had taken
place, when she told Nursing Supervisor Conaway at the
north wing nurses station that she was really for the Union
because it would benefit the part-time workers.6
For approximately the last year preceding the end of
September 1975, Peterson had worked 4 days a week which
included one weekend per month. In October her hours
were reduced to 3 days a week with only one weekend per
month free. Upon being rescheduled, Peterson went to see
James McBride, and inquired about the change. McBride
answered that the reduction had occurred because he did
not need her. Peterson responded that she could not
understand why she was not needed when they were
working short at the time. McBride concluded the
conversation by saying that the next month her hours
might be cut even more.7 When the November schedule
was posted, Peterson's hours were reduced further to 2
days a week including work on every other weekend.
However, on November 4 she was called to the office by
Mrs. Briggs who increased her work schedule by adding 5
days to it.
Mrs. Briggs, who prepares the monthly work schedules,
did not testify concerning the reduction in Shaffer's and
Peterson's hours. According to Personnel Director W.
James McBride, beginning in January the management at
the nursing home began planning a change in its operations
to utilize "a team nursing approach" which he described as
putting more licensed people on the floor for closer
supervision of nursing care. The change resulted in an
increase of staff at the nursing home. Thus, as of May there
were 23 full-time and 7 part-time employees employed at
the home, whereas by August Respondent had a comple-
ment of 30 full-time and 13 part-time employees. As the
result of a surge in employment applications in May and
June, the home was able to fulfill its needs very quickly
thereafter. Thus, it appears from the record that there were
; This testimony is undenied and credited.
I McBride did not deny having this conversation with Peterson.
8 Diana Parker. who testified for the ,General Counsel concerning other
10 part-time nurses aides hired by Respondent during July
and early August. By the end of September, however,
McBride concluded that, because of the increase in
personnel, the home was rendering far in excess of the
required 2 hours per day of nursing care per patient.
Consequently, in order to accommodate the complement
of full-time workers, the number of hours worked by all
part-time employees was reduced. This testimony provided
by McBride is for the most part unrefuted by the testimony
of the General Counsel's witnesses. Moreover, a portion of
Peterson's testimony, that the work schedules of Diana
Parker and Janet Work were also cut, partly corroborates
McBride's assertion that all part-time employees' hours
were reduced during this period.s It is the burden of the
General Counsel to show that Respondent's action in
reducing Shaffer's and Peterson's hours was prompted by a
discriminatory purpose. He has proved that both Shaffer
and Peterson were active advocates of the Union's cause. It
has also been clearly shown, as discussed earlier, that
Respondent knew of Peterson's union sympathies by mid-
July and about Shaffer's distributing union literature by
mid-August. It is also evident that Respondent displayed
some animosity toward Shaffer's attempts to make union
literature available in the home to her fellow workers.
From this point on, however, the General Counsel, in
essence, seeks to have discounted McBride's undisputed
testimony concerning his intervening July and August
hiring program and concluded, without further evidentiary
support, that the reduction in Shaffer's and Peterson's
hours occurred because of their union activities. I do not
agree that the General Counsel has proved this aspect of
his case. Although Respondent's conduct in this respect,
particularly the abrupt rejoinder of Briggs to Peterson that
if she didn't like the change she could quit, raises some
suspicions concerning Respondent's motive, the lack of
any evidence concerning a different motive other than that
provided by the reasons given by McBride, coupled with
the time gap between Respondent's first knowledge of
these employees' union sympathies and the time of the
reduction in hours, destroys the evidentiary link which the
General Counsel seeks to demonstrate. I therefore find that
the General Counsel has failed to prove Respondent
violated Section 8(a)(1) and (3) of the Act by reducing the
hours of Shaffer and Peterson, as alleged in the complaint.
E. The Discharge of Shaffer and Peterson
On page 3 of Respondent's personnel policies manual,
the following rule appears:
If an employee finds that she must be absent from
work for any reason, it is her responsibility to inform
her supervisor, as soon in advance as possible.
It is mandatory that the employee report he;
absence, and the reason, at least 3 hours prior to her
scheduled shift. Such notification must be given
directly to the supervisor, and not to the switchboard
operator, or to any other employee. An employee must
explain to her supervisor, the reason for reporting late
aspects of this case, and who thereafter remained available, was not recalled
to rebut this portion of McBride's testimony.
625
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for work, and must have the supervisor's permission to
leave early.
Any full-time employee who reports off, for 2 or
more days, in addition to her regularly scheduled days
off, during a 4-week period, will be subject to being
placed on part-time status.
On November 6 Diana Shaffer approached Mrs. Briggs
in her office and asked to be off the 12th in order to go to
Pittsburgh to talk with the NLRB. Briggs asked why she
had to go since the election was already over. Shaffer
answered that she did not have all of the information, but
believed it concerned the "harassment charges." Shaffer
added that Jeanette Peterson and Diana Parker had to go
also and that if they were scheduled for work that day they
too would need time off. Briggs responded that Peterson
and Parker would have to come and tell her, unless they
did not know anything about the matter. Shaffer said they
knew about it. Then Briggs asked if she had received a
letter from the National Labor Relations Board. Shaffer
replied no, and Briggs said if she received one to bring it in.
Shaffer agreed. On the following day Briggs again asked if
Shaffer had received a letter. Shaffer said no, and Briggs
said if she got one to bring it in Monday. According to
Shaffer, at no time did Briggs say she could not attend the
Pittsburgh meeting. On Monday, November 10, Briggs
asked about the letter from the Board again. When Shaffer
answered that she still had not received the letter, Briggs
asked if it was not a common practice for the Board to send
the letter. Shaffer responded that she did not know,
because she had never done anything like this before.
Briggs ended the conversation by saying that she would
call and find out. According to Shaffer, Briggs gave no
indication that she could not go to Pittsburgh on Novem-
ber 11. On cross-examination Shaffer explained that she
did not fill out a written request slip, as she had done at
times then in the past, because on other occasions Briggs
had asked her to fill one out and on this occasion she did
not. Shaffer went on to explain that in actual practice if the
schedule was posted one simply asked for time off, if it was
not yet posted a written request was submitted, and if an
employee was sick, they simply called in. This was not a
policy, however, and on some occasions a written request
slip was filled out whenever Briggs asked for one.
Jeanette Peterson had a similar interview with Mrs.
Briggs on November 7. Peterson did not mention the
NLRB but said that she had to go to a hearing in
Pittsburgh on November I I and wanted off for the day.9
As she had done with Shaffer, Briggs asked if Peterson had
a "paper." At first Peterson said no, but after thinking that
perhaps Briggs was referring to the copy of the charge form
she had received, replied yes. Briggs asked her to bring it
in. Peterson agreed. Then Briggs said, "Okay, Jeanette,"
and wrote something down on a pad of paper. Peterson
had no further conversation with Briggs until November
12. According to Peterson, in the past when she had
requested time off, Briggs would circle the day she wanted
off on the calendar, but she did not fill out a slip. Peterson
testified that there was no hard and fast rule at the home
9 On cross-examination Peterson agreed that her affidavit given to the
Board agent was correct in that it omitted any specific reference to the
about obtaining permission for time off, but that she had
always received permission orally.
On November 11 Shaffer and Peterson went to Pitts-
burgh where they gave affidavits to a Board agent
concerning other aspects of this case. Upon reporting for
work on November 12, both employees discovered that
their timecards were not at the clock, but in place of the
cards they found letters dated November 11, signed by
Briggs as director of nursing service, terminating their
employment. Shaffer's letter referred to the August 13
warning letter concerning her violation of the no-solicita-
tion/no-distribution rule and the statement therein that she
would be terminated for any further violations of the rules
of the home. The letter Peterson received referred to the
discipline rules and regulations for the home, and that
since she had failed to conform to the policies, the first
offense was termination of employment. After conferring
with one another, Shaffer and Peterson decided to confront
Briggs about their discharges and demand an explanation
for their discharges. Later that day they went to the home
accompanied by Randy Shaffer, Diana's husband. At the
home, Mrs. Briggs took them to see William McBride,
where Peterson and Shaffer asked Briggs about the
dismissal letter and why they were fired, noting that they
had reported to her on Friday the necessity for being
absent Monday. Briggs' only response was to repeatedly
claim that she was not Peterson's and Shaffer's supervisor.
McBride insisted that they had not "reported off'" properly
to Briggs, and told Briggs she didn't have to answer any of
their questions because they didn't work there any more.
Briggs testified that she did not give Peterson and Shaffer
permission to be absent from work on Monday and that
requests for time off were made in writing. I do not credit
her testimony in this regard. On cross-examination Briggs
was extremely nervous and displayed considerable hostili-
ty. In addition, when pressed, she conceded that at times
employees did obtain time off without filling out the
prescribed form, that Shaffer had mentioned a "hearing,"
and that she could have responded that she "thought this
stuff with the union was all over with." Briggs agreed that
she had asked if it was common practice for a letter to be
sent to those whose presence was required. I credit the
testimony of Peterson and Shaffer. I find that Briggs
recognized that Peterson and Shaffer were requesting time
off on November I for the purpose of pursuing a matter
relating to a Board proceeding, and that her actions in
connection with the events preceding Peterson's and
Shaffer's November II appointment with the Board agent
were intended to lead the employees to believe they had
received permission to absent themselves from work that
day. Under these circumstances, I conclude that the
discharges of Peterson and Shaffer were unlawful. This
conclusion is further confirmed by the testimony of both
Briggs and Administrator J. William McBride who testified
that other employees, who had been terminated for not
reporting for work, had been discharged only after
repeated failures to report for work, and after having
received the warnings required by the policy manual.
Indeed, when Mrs. Briggs was confronted on cross-exami-
NLRB and simply stated that she told Briggs she had to go to a hearing in
Pittsburgh that day.
626
MEAD NURSING HOME
nation by this discrepancy between the manner in which
Peterson and Shaffer were summarily discharged, and the
warning requirements of the policy manual, she paused
and finally answered, "I don't have an answer for that
question." I find that Respondent violated Section 8(a)(X),
(3), and (4) of the Act by discharging Peterson and Shaffer
on November 11, as alleged in the complaint.
IV. THE CHALLENGED BALLOTS
The Board agent challenged the ballot of David
Monteforte because his name did not appear on the list of
eligible voters. Petitioner challenged the ballots of part-
time nurses aides Kay Joanne Plocica, Virginia Thayer,
Anita Hans, Diane Gray, Virginia Lee, Joanne (Barth)
Kaminski, Susan Lambert, Marion New, Karen Orr, David
Williams, Lois Kelley, Nancy Bloomstrand, Louise Kelley,
Jo-Ella Kelley, and Margaret Kindervater, and part-time
maintenance employees Charles Hans, Elver Bollard, John
Phelps, and Edward Rush on the basis that they were
casual employees; challenged the ballots of Rouene Smith,
Ray Smith, J. P. Mattera, and Sandy Shull on the basis that
they were not employees of the Employer at the time of the
election; and challenged the ballots of Stanley Peterson
and Larry Kelley on the basis that they were outside the
unit.
At the hearing it was stipulated that David Monteforte
was not employed as of the eligibility date, that Stanley
Peterson, a barber who services the home, is an indepen-
dent contractor, and that Rouene Smith and Ray Smith
have been and continue to be on sick leave with no
reasonable expectancy of returning to work.' 0 Thus, it was
further stipulated that these employees were ineligible to
vote in the election. I recommend that the challenges to
their ballots be sustained.
It was also stipulated, based on Respondent's records,
that Joanne (Barth) Kaminski, Larry Kelley, Karen Orr,
Sandy Shull, and David Williams are full-time employees
eligible to vote.
The ballot of J. P. Mattera was challenged solely on the
basis that he was not an employee at the time of the
election. Mattera was hired, prior to the eligibility date, as
a full-time maintenance employee. The Employer's records
show he worked 62 hours during the period July 17 through
25, and 40 hours the week of September 26 through
October 3. W. J. McBride testified without dispute that
during the interim period Mattera did not report for work,
was not paid anything, but was not removed from the roll
and was not required to reapply for employment. Since
there is no evidence concerning Mattera's status in the
record, I find that Petitioner has failed to sustain its burden
of proof that Mattera was not an employee at the time of
the election.
Concerning the remaining persons who were challenged
on the basis that they were casual employees, it is
unnecessary to indulge in a repetitious accounting of each
item of the evidence, relating to each of these employees,
since each of their circumstances falls within the same
general pattern. It is clear, as shown by Respondent's
'o The payroll eligibility date was August 9.
'A In making this finding I find it unnecessary to rely on Petitioner's
records and the testimony of Briggs and W. J. McBride,
that each of these employees worked infrequently and
sporadically, on no regular basis, with varying hours of
work on various shifts. Their earnings during the relevant
period were minimal. I find that they are all casual
employees, and consequently I shall recommend that the
challenges to their ballots be sustained, and, in addition,
since under these circumstances the remaining challenges
are insufficient in number to affect the results of the
election, I shall recommend that Petitioner be certified as
the exclusive collective-bargaining representative of the
employees in the appropriate unit."
V. THE OBJECTIONS
In section III of this Decision I have found that within
the critical period Respondent violated Section 8(a)(1) of
the Act by interrogating employees concerning their union
sympathies and activities, by creating the impression that
their union activities were under surveillance, and by
maintaining an invalid no-solicitation/no-distribution rule
which was enforced by a threat and the issuance of a
disciplinary warning. These violations of the Act are
encompassed by Petitioner's objections, listed as items 1, 2,
3, and 5 in the Regional Director's order directing hearing
on objections and challenged ballots and notice of hearing,
dated March 19, 1976. It is recommended that these
objections be sustained. It is also recommended that the
objection contained in item 4 be overruled, no evidence
having been offered on this objection and the parallel
complaint allegation, 7(a), having been withdrawn.
In the event the findings, conclusions, and recommenda-
tions with respect to the challenges discussed in section IV
of this Decision are adopted, and Petitioner is certified as
the exclusive collective-bargaining agent, dispositive of the
question concerning representation in Case 6-RC-7203,
further action with respect to these objections will be
unnecessary. However, in the event the findings, conclu-
sions, and recommendations of section IV are not adopted
and any other resolution of the challenged ballots results in
Petitioner not receiving a majority in the final tally of
ballots, I recommend that the election be set aside and a
new election ordered.
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. By discharging Diana (Keisel) Shaffer and Jeanette
Peterson on November I 11 because of their union activities
and because they assisted the Board in the investigation of
matters pending before it under the Act, Respondent
violated Section 8(aX1), (3), and (4) of the Act.
4. By interrogating employees concerning their union
sympathies and activities, by giving them the impression
that these activities were under surveillance, and by
maintaining, threatening to enforce, and enforcing an
invalid no-solicitation/no-distribution rule, including the
Exhs. 26 and 27 or to resolve the issue of whether or not each of these
exhibits represents a complete schedule.
627
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issuance of a written warning to Diana (Keisel) Shaffer for
violating the rule, Respondent violated Section 8(a)(l) of
the Act.
5. Respondent has not violated the Act in any other
respect.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order that
Respondent cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
Respondent having discriminatorily discharged Diana
(Keisel) Shaffer and Jeanette Peterson, I find it necessary
to order Respondent to offer them full reinstatement with
backpay computed on a quarterly basis, plus interest at 6
percent per annum as prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), from date of discharge
to date of proper offer of reinstatment.
Having found that Respondent discriminated against
Diana (Keisel) Shaffer by issuing to her a written warning
for violating an invalid no-solicitation/no-distribution rule,
I find it necessary to order Respondent to rescind this
warning and remove any documentation reflecting this
action from her personnel file.
Finally I shall recommend that the challenges to the
ballots of David Monteforte, Kay Joanne Plocica, Virginia
Thayer, Anita Hans, Diane Gray, Virginia Lee, Susan
Lambert, Marion New, Lois Kelley, Nancy Bloomstrand,
Louise Kelley, Jo-Ella Kelley, Margaret Kindervater,
Charles Hans, Elver Bollard, John Phelps, Edward Rush,
Rouene Smith, Ray Smith, and Stanley Peterson be
sustained and that, since the remaining challenges are
insufficient in number to affect the results of the election,
Petitioner be certified as the exclusive collective-bargaining
agent for Respondent's is employees in the appropriate
unit as set forth earlier in this Decision.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 12
The Respondent, Mead Nursing Home, Inc., Meadville,
Pennsylvania, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees because of their union
activities and/or because they assisted the Board in the
investigation of matters pending before it under the Act.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(b) Interrogating employees concerning their union
sympathies and activities, and creating the impression that
their union activities are under surveillance.
(c) Maintaining, threatening to enforce, and enforcing by
any means, including the issuance of written warnings, and
invalid no-solicitation/no-distribtuion rule.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Diana (Keisel) Shaffer and Jeanette Peterson
immediate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of earnings, in the manner set forth in "The Remedy."
(b) Rescind the written warning issued to Diana (Keisel)
Shaffer on August 13 and delete any reference to that
warning from her personnel file.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records, and all other records necessary to
analyze whatever amount of backpay may be due under
the terms of this Order.
(d) Post at its facility in Meadville, Pennsylvania, copies
of the attached notice marked "Appendix."' 3 Copies of
such notice, on forms provided by the Regional Director
for Region 6, after being signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED to the Board that the
challenges to the ballots of David Monteforte, Kay Joanne
Plocica, Virginia Thayer, Anita Hans, Diane Gray, Virgin-
ia Lee, Susan Lambert, Marion New, Lois Kelley, Nancy
Bloomstrand, Louise Kelley, Jo-Ella Kelley, Margaret
Kindervater, Charles Hans, Elver Bollard, John Phelps,
Edward Rush, Rouene Smith, Ray Smith, and Stanley
Peterson be sustained, and that, since the remaining
challenges are insufficient in number to affect the results of
the election, Petitioner be certified as the exclusive
collective-bargaining agent for the Respondent's employ-
ees in the appropriate unit.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
13 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National L.abor Relations Board."
628