New Fern Restorium Co.

National Labor Relations Board - Board Decisions

Jan 9, 1970

180 N.L.R.B. 618 (N.L.R.B. 1970)

618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New Fern Restorium Co. and Bay Area Local Union
1010.' Case 12-CA-4464
January 9, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On September 4, 1969, Trial Examiner Ramey
Donovan issued his Decision in the above -entitled
proceeding , finding that Respondent had engaged in
certain unfair labor practices alleged in the
complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision . He also found that the Respondent had
not engaged in other unfair labor practices alleged
in the amended complaint . The General Counsel
filed timely exceptions to the Trial Examiner's
Decision , Respondent filed timely exceptions and a
brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner 's Decision , the exceptions and briefs, and
the entire record in this case , and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER'
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, New Fern
Restorium Co., St . Petersburg , Florida, its officers,
agents, successors , and assigns, shall take the action
set forth in the Trial Examiner ' s Recommended
Order, with the following modifications:
1. Insert the following new paragraphs 1(g) and
1(h) and renumber the present paragraph 1(g) as
1(i ): 3
'The Trial Examiner inadvertently referred to Respondent in the caption
of his Decision as "Bay Area Local Union 1010, Retail , Wholesale and
Department Store Union , AFL-CIO." The caption is modified as above in
accordance with the Charging Party' s granted motion to amend.
'In adopting fn. 17 of the Trial Examiner 's Recommended Order, the
word "judgment" is substituted for the word "decree" in the second
sentence thereof.
'In accordance with the General Counsel' s exceptions , the added
paragraphs are intended to provide a remedy for specific unfair labor
practices found by the Trial Examiner , but for which are apparently
inadvertently omitted remedial provision I.
"(g) Telling employees that it would eventually
terminate employees who were in sympathy with the
Union.
"(h) Strictly enforcing because of employees'
union activities its rule limiting coffee breaks to 10
minutes."
2. In the Appendix insert the following
paragraphs after the present fifth indented
paragraph:4
WE WILL NOT threaten to terminate employees
who are in sympathy with the Union.
WE WILL NOT more strictly enforce because of
employees' union activities, our rule limiting
coffee breaks to 10 minutes,
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor
organizations, to join or assist the aforesaid
union, or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain
from any or all such activities.
IT IS HEREBY FURTHER ORDERED that the
complaint herein be, and it hereby is, dismissed
insofar as it alleges violations of the Act not found
herein.
'In addition, delete the incorrect reference, in the Appendix, to the
Christmas bonus for the year " 1965" and insert in its place the correct
year "1968 "
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner : The charge and an
amended charge in this case were filed by Bay Area Local
Union 1010, Retail , Wholesale and Department Store
Union , AFL-CIO , herein the Union , on February 27 and
April 21, 1969, respectively. Under date of April 22, 1969,
the General Counsel of the Board , through the Regional
Director for Region 12, issued a complaint against New
Fern Restorium Co., the Respondent herein. The
complaint set forth various acts and conduct by
Respondent that allegedly constituted violations of Section
8(a)(1) and (3) of the Act. Respondent in its answer
denied the commission of the alleged unfair labor
practices . The case was tried in Tampa, Florida, on June
3 and 4, 1969.
1. JURISDICTION
Respondent is a Florida corporation with its principal
office and facilities in St. Petersburg, Florida, where it is
engaged in the operation of a 135 bed proprietary nursing
home providing skilled nursing and related care to
patients.
During the past calendar year, Respondent, in the
course and conduct of its business operations, derived
revenues in excess of $100,000 and purchased goods
valued in excess of $10,000 from suppliers who had
received the goods directly from outside the State of
Florida.
180 NLRB No. 95
NEW FERN RESTORIUM CO.
Respondent is an employer engaged in commerce
within the meaning of the Act. The Union is a labor
organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Union commenced organizational activities among
Respondent's employees in the latter part of August 1968.
Haywood, the union organizer, at various times in
succeeding weeks distributed leaflets in Respondent's
parking lot and established contact with employees; and
union meetings were held periodically in the union hall.
The activity of Haywood in the parking lot was observed
by Respondent. On October 3, 1968, the Union wrote to
Respondent claiming that it represented a majority of the
employees in an appropriate unit. Union representatives
met with Respondent on October 9, 1968, with respect to
the union claim. A petition for certification was filed by
the Union with the Board on October 3, 1968. A hearing
in the petition was held on October 26, 1968. On
November 21, 1968, the Regional Director of the Board
issued his Decision and Direction of Election. An election
was thereafter scheduled but, on request for review of the
aforementioned Decision, the Board granted the request
for review and stayed the election. The Board's decision
issued on May 6, 1969. The unit found appropriate was all
employees at Respondent ' s New Fern nursing home,
including ward clerical employees , aides , orderlies,
licensed practical nurses, and regular part-time employees
but excluding all office clerical, professional employees,
watchmen, guards and supervisors.'
The president of Respondent corporation is Mosher,
and Rhodes is vice president. Mosher's wife is
secretary-treasurer. The three officers also constitute the
board of directors. Rhodes, formerly assistant
administrator, succeeded Mosher as administrator of New
Fern in 1968. Under the administration at New Fern are
various classifications of personnel. The Director of
Nursing at New Fern is Polski, a registered nurse, who is
a supervisor responsible to the administrator. The most
relevant classifications to the matters in the instant case
are the registered nurses, supervisors , referred to as
R.N.'s; the licensed practical nurses , non-supervisors,
referred to as L.P.N's; and the nurse's aides, referred to
as aides.
The duties of the aides embrace care of the patient with
respect to body functions, including bathing, bathroom
functions, taking temperatures and blood pressure , making
beds and also housekeeping care of the room and seeing
that the patients' clothing goes to the laundry and so
forth. The Board in its decision in the representation case
gives the following description which is pertinent to
understanding the general setting in which events in the
instant case occurred:'
The nursing home has 135 beds situated on 2 floors,
each with 2 duty stations, and operates on 3 shifts.'
Patient care , both medical and personal , emanates from
the duty stations, to each of which are assigned - on
'We refer to the unit only for the purpose of describing briefly the
categories of employees at Respondent 's nursing home.
'The Board noted that under the director of nursing , a R.N., there were
5 other R.N.'s; 14 L.P.N.'s; 59 aides and orderlies.
'In the instant case there were various references to aides assigned to 2
South , the latter being the second floor , south wing of the building.
619
all shifts - either an R.N. or an L.P.N., and 3 to 6
aides and orderlies. The R.N. or L.P.N assigned to the
duty station performs most of the station's medical care
herself. . . . She alone administers medication to
patients.... While the L.P.N.'s assign work to aides
and orderlies... there is no indication in the record that
they do so in a manner requiring the exercise of
independent judgment. . . . Finally, although the
L.P.N.'s have the authority to reprimand the aides and
orderlies, L.P.N.'s do not have the authority to
discipline them. The disciplining of the aides and
orderlies as well as releasing them from work,
scheduling their overtime, and transferring them among
the duty stations, are all matters which are handled by
the director of nursing or the R.N. in charge.
With the foregoing background in mind, we come to
the events alleged in the complaint. Since there are a large
number of separate allegations we have found it
appropriate to take them up individually after describing
the particular conduct alleged. The conduct of Respondent
set forth in the complaint is alleged to have been engaged
in because of the union activities of the employees.
(1) That in September 1968, Rhodes told an employee
that Respondent would curtail the number of its
employees in the event that a majority chose
representation by the Union. Pearson, an aide, testified
credibly that, in the latter part of August, she spoke to
Rhodes about some deductions that had been made in her
vacation check. Rhodes explained the deductions and went
on to say that when the Union came in there would be
another deduction for union dues and he also said that
Respondent did not have the money to pay more wages
and if the Union did come in, some of the aides would
have to be let go.' In the Examiner's opinion the
allegation is sustained by the evidence and a violation of
Section 8(a)(1) is found.
(2) That in November 1968, Rhodes informed an
employee that Respondent was going to make changes in
terms and conditions of employment because of the
employees' union activities. We do not find that Rhodes
made a statement of the foregoing nature in so many
words. However, Simpson, an aide , testified that in this
general period after October 1968, Rhodes told a group of
employees that "things were going to get stricter," that
the Union was going to have its policy and the Company
would have its own policy. Rhodes admitted that he told
employees that with the advent of the Union "the
company rules would be stricter." Rhodes testified that he
had referred to lateness of employees in reporting for
work and not calling in on absences when he told the
employees that company rules would be stricter when a
union came in. Employee Morrell, an aide, had occasion
to ask Rhodes about some deduction in her pay check.
Rhodes invited her to his office the next day and
explained various matters about the pay. Rhodes
remarked to the employee that after the Union came in
she would not be able to come to his office like that to
have things explained. Rhodes testified that he probably
told employees that if the Union came in the employees
would no longer be able to use the "open door" policy.'
He states that he told the employees that instead of
having the open door policy they would have to go to the
union steward if the Union came in.
'Rhodes did not testify regarding this incident.
'Heretofore , Respondent had what it termed an "open door" policy
which meant that an employee could come to Rhodes' office and ask him a
question about some problem or matter of employment or make a request
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the Examiner's opinion, Rhodes' statement about
stricter enforcement of rules if the Union came was a
statement of change in conditions of employment to the
employees' detriment. The direct tie-in of such a change
with the advent of the Union, regardless of whether the
rules would be enforced because of violations of the rules,
constituted a predicated change of employment conditions
because of the Union. The same observation is applicable
to the predicated change in the open door policy because
of the advent of the Union. Unless the Company changed
its policy, as Rhodes said it would, the advent of a union
would not have prevented an employee coming to Rhodes
with questions or problems. The presence of a steward
usually arises when there is a contract between the
employer and the Union but even under substantially all
contracts employees may and, indeed are required to, first
take up potential grievances with the supervisor before
filing a formal grievance. Further, aside from potential
grievances, contact between employee and management,
particularly if the latter has an open door policy, is not
proscribed unless, as here, management decides to or
states that it will, discontinue the open door policy
because the employees have selected a union. We find
these predicated or threatened changes in employment
conditions to constitute violations of Section 8(a)(l) of the
Act.
(3) That in November 1968, Rhodes interrogated an
employee about her union affiliation.
(4) That in December 1968, Rhodes informed an
employee that he had a list of Respondent's employees
who were supporting the Union.
(5) That in December 1968, in the presence of an
employee, Rhodes instructed L.P.N. Hasty to inform him
of the names of employees who were wearing "vote yes"
union buttons.
(6) That in December 1968, Rhodes informed an
employee that Respondent was eventually going to
terminate the employees who were in sympathy with the
Union.
(7) That in December 1968, Rhodes interrogated an
employee concerning her union sympathies and desires.
Employee Simpson testified credibly that in December
1968, shortly after a notice of an election scheduled for
December 17 was posted in the nursing home she was
looking at the notice. Rhodes was present and in the
course of explaining or saying something about the notice
he asked Simpson if she had signed a card for the Union.
She said yes. Either on this occasion or on another
occasion around the same period in December, Rhodes
told Simpson that he knew who the people were that were
in the Union and who the organizers were and that the
Union was not going to work and eventually they would
get rid of the girls in the Union. Rhodes said that the
Union had mailed him a list of names of the girls in the
Union. On another occasion, after the representation
hearing on October 26, 1968, Rhodes remarked to
Simpson that they were going to get rid of the girls "that
went over their head" and started and tried to organize
the Union at New Fern.
Confirmatory of Rhodes' interest in, and awareness of,
the identity of girls who were in the Union is the
testimony of L.P.N. Christie. In the course of
conversations with Christie about personnel and that
Christie should report any personnel who were not
performing their duties, Rhodes mentioned the names of
girls who he said had signed up in the Union. He
and generally have access to the management.
admonished Christie to report any of these girls or anyone
else who was not performing her duties.6 In another
conversation with Christie in the New Fern office after the
representation hearing and before the scheduled election
Rhodes told Christie that he wanted her to observe which
employees were union members so that he might have
some idea of who and how many would be voting for the
Union or against the Union in the election.
During this same general period, Simpson testified that
one day, when Rhodes was passing down the hall of the
home, he asked her where her union button was. At the
time, some of the other girls were wearing union buttons
but Simpson was not. Although Simpson states that the
foregoing had been said in a joking manner, she testified
that Rhodes then walked over to the duty station desk to
the L.P.N. on duty, Hastings. Simpson was still present,
about 4 or 5 feet from the desk, and she heard Rhodes
say to Hastings that she, Hastings, should report to him
on those of the girls who were wearing union buttons.
The extent of Rhodes' testimony regarding the various
aforementioned incidents was that he had never made a
statement to the employees that the Union had given him
a list of those who had joined the Union and that he was
going to get rid of them. Rhodes testified that he had no
such list but that he was aware of who the officers were
since such information had been publicized in a local
paper. He also states that he assumed that employees who
had attended the representation hearing were sympathetic
to the Union. Rhodes was asked by Respondent's counsel
if he had ever said that he was going to get rid of those
who had gone over his head to organize the Union. The
witness answered, "No, sir, because I do not have any
knowledge of who had joined the Union."
It is the Examiner's opinion that no list of union
adherents had been sent to Rhodes by the Union. It is
also probably true that Rhodes did not know as to each
employee whether or not she had joined the Union.
However, the evidence persuades us that Rhodes was
considerably interested in the identity of union adherents
and had taken steps to be informed on the subject and
that he was aware in many instances of the identity of the
union adherents. We credit the testimony of Simpson and
Christie and in context we find that the evidence
establishes illegal interrogation, threats, surveillance and
the creation of the impression of surveillance, all in
violation of Section 8(a)(1) of the Act.
(8) That in December 1968, Rhodes informed an
employee that Respondent would discontinue its practice
of making loans to employees if the Union was successful
in securing bargaining rights for Respondent's employees.
In the past Respondent had a practice of making small
loans to employees upon request. Apparently this practice
was a matter of accommodation on Respondent's part
toward the employees. In December 1968, according to
her credible testimony, employee Pearson at New Fern
told Rhodes that she would like to borrow some money.
He told her that he would give her the loan but after the
Union came in she would have to go to the union
president about such matters.
At the hearing Rhodes was asked whether, after the
Union appeared on the scene, he had not told employees
who asked for an advance of pay or a loan that he would
'Obviously all employees are obligated to perform their duties as
employees and an employer may properly require reports as to derelictions
Our interest is simply in the evidence as an indication of Rhodes'
knowledge of the union adherents and his pinpointing of them in the
context of his conversations with Christie.
NEW FERN RESTORIUM CO.
not be able to do such things if the Union came in.
Rhodes testified that "I don't believe I phrased it this
way." He went on to say that, after the Union came in,
the employer would probably not make such loans any
more and , when approached about loans, he asked
employee borrowers, "would the union do this for you."
In the Examiner's opinion the evidence shows that
Respondent made it reasonably clear that its existing
practice of lending money to employees would cease if the
Union was successful in organizing the employees. This
manifestation that an existing employee benefit would be
lost upon the advent of the Union constituted a violation
of Section 8(a)(l) of the Act.
(9) That in December 1968, Respondent's Director of
Nursing, Polski, issued and served upon an employee a
written "Employee Warning Notice" because the
employee had suggested to her fellow employees that they
cease work concertedly and go on strike.
Employee Pearson, an aide, testified credibly that about
December 2, 1968, around 7:15 a.m., shortly after she and
other aides had started their shift, a nurse undertook to
transfer one of the aides, Boone, who was working at the
same duty station and wing of the building as Pearson and
other aides, to another duty station in a different wing.
According to Pearson, Boone objected to being transferred
because her own station was short of help. At the time,
Pearson, Boone and some other aides were standing
around the desk in the hall at the nursing station talking.
Pearson said to the other aides, "we should make signs
and march." Hastings, an LPN, was present at the desk
when the foregoing remark was made. As far as appears
the foregoing was the extent of the incident itself. Later,
in the day, however, Pearson was summoned to
Respondent's office to report to Polski. When Pearson
reported to Polski the latter asked her what had happened
and Pearson described the aforementioned incident.
Pearson also advised Polski that she and the other aides
were just talking when she made the remark
aforementioned and that actually they did not have
anything large enough to make a sign or placard. Polski
gave Pearson a written warning notice on a pink slip on
which under various printed forms of misconduct, such as
"absence," "lateness," "conduct," "attitude," and so
forth, Polski checked the box alongside "attitude." Under
"Remarks" on the pink slip, Polski wrote "Said why
don't we make signs and start marching."'
Polski testified that Hastings had reported to her that
Pearson had said to the other aides at the nursing station
that, we should make signs and start marching. Polski
testified that she did not think it was proper for Pearson
to make such a remark at the nursing station because
there were patients ' rooms near the nursing station and
patients did use the hall where the nursing station was.,
The context and circumstances in which the remark was
made indicate, in our opinion, that it was protected union
or concerted activity regarding a possible protest in the
form of marching with a placard, a traditional form of
union or concerted activity, about the transfer of Boone to
another duty station and the shortage of help at Pearson
and Boone's station. The fact that the matter never got
beyond the stage of a passing remark does not alter its
protected nature nor does Polski's testimony that she did
not know precisely what Pearson had intended by her
'The pink slip is Resp . Exh. 10
'There is no evidence or contention that any patient heard the remark,
even assuming , arguendo , that such aspect is material . The remark was
addressed to fellow employees.
621
remark. We find that the written reprimand for a remark
protected by Section 7 of the Act constituted a violation
of Section 8(a)(1) of the Act.
(10) That in November 1968, Respondent, through
Director of Nursing Polski, contrary to past practice,
commenced strict enforcement of a rule limiting employee
coffee breaks to 10 minutes' duration.
Employee Simpson, an aide in Respondent's employ for
14 months, testified that since she started working for
Respondent she and other aides customarily took at least
20 minutes on their coffeebreak.' No supervisor ever
admonished or warned them that they were taking too
much time for the coffeebreaks. According to Simpson,
not long after the union activities started among the
employees, notices were posted at all the nursing stations
that employees had 10 minutes for coffee from the time
they left their duty stations to the time that they returned
to the station from the dining room."
Another aide, Williams, testified that, when she was
hired by Polski the latter told her that the employees had
a 15 minute coffeebreak. Williams states that, after the
Union appeared on the scene, notices were posted to the
effect that the coffee break was limited to 10 minutes.
Polski testified that during the 5 years that she has
been director of nursing services at New Fern she has
done the interviewing and hiring of employees. Her
testimony does not controvert the foregoing testimony of
Simpson and Williams regarding coffeebreaks. Polski
states that after she had been at New Fern for 1 month
she posted a notice to the effect that the employees had 15
minutes for a coffeebreak every morning. Polski explained
that although the "book" said 10 minutes for a
coffeebreak every morning she realized that the employees
used the elevator to get to the dining room and that
sometimes the elevator was in use and this required
waiting and hence more time to get down and back."
The evidence satisfies us that the operating policy of the
home in the 5 years that Polski was director of nursing
service was to allow a 15 minute coffeebreak and the
indication is that at least that much time was customarily
used. We also believe that the evidence shows that after
the advent of the Union, Respondent posted notices to the
effect that coffeebreaks were limited to 10 minutes.': This
timing in the change of an operating rule of 5 years
duration, geared to the advent of the Union, and to the
detriment of employees constitutes a violation of Section
8(a)(1) and (3) of the Act."
'The coffee was provided by Respondent in the dining room in the
basement of the home . The dining room was reached by the use of an
elevator. There was one coffeebreak period and that was in the morning
"The coffee was consumed in the dining room , not at the nursing
station.
"The "book" is a 6 page document captioned "Personnel Policy." As
the name indicates it sets forth personnel policies, including working hours,
eg., "Normal tours of duty are 7 1/2 hours plus 1/2 hour for meal." In
this detailed document there is nothing about coffee breaks. However,
there is a I page document captioned "General Policies" which states,
inter alia, that "A 10 minute coffee break is allowed after breakfast is over
and all trays are collected " When an employee is hired she signs a
certificate which , among other references , acknowledges that the employee
has "received a copy of the personnel policies of the Nursing Home "
"In the period following the advent of the Union, Polski testified that
Rhodes gave an employee a pink warning slip for excess time on coffee
breaks.
"This conclusion is not altered by the fact that throughout the 5 years
Respondent had had a written "Personnel Policy" document which said
nothing about coffeebreaks ; or by the fact that another document in
existence during the same period specified a 10-minute coffeebreak
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(11) That in February 1968, Respondent discontinued
its past practice of allowing employees to use the
telephones without special permission and substituted
therefor a rule prohibiting employees using Respondent's
telephones except in emergencies.
Respondent's written "Personnel Policy" document,
previously mentioned, has been in existence since prior to
the advent of the Union in August or September 1968.
The evidence indicates that this document was made
available to employees , and applicants for employment
signed receipts acknowledging that they had received
copies thereof. One of the provisions of the "Personnel
Policy" was that "Telephones are for Nursing Home
business on/v. Telephone messages , unless of a very urgent
nature, will not be delivered."
There is some limited evidence that in the past
employees made some use of the telephones for
nonnursing home business . Employee Pearson testified
that prior to September 1968, she had made personal calls
in the afternoons when the telephones were not busy. This
was not done in the presence of a supervisor but the
LPN's, who were not supervisors, were evidently aware
that aides such as Pearson were using the telephones for
personal calls.
Rhodes testified credibly that in the past it was not the
practice to allow employees to use the telephones for
personal business and that from time to time, when such
use was made of the telephones, management would
"crack down" when the situation came to its attention.
Rhodes states that around November 1968, there was very
heavy usage of the telephones and they were constantly
busy. Doctors had complained to him that they were
unable to reach New Fern by telephone on various
occasions because the telephones were busy. He himself
had observed that the buttons on the telephones were lit
almost continuously during this period , indicating
abnormal usage . Mosher had complained to Rhodes on
several occasions about being unable to reach him by
telephone because of the busy condition. Rhodes therefore
at staff meetings told all employees that the excess usage
of the telephones would not be tolerated. His instruction
was that the telephones were to be used for non-business
purposes only in an emergency.
Polski testified credibly that for the past 5 years she
had periodically posted notices that the telephones were
only for nursing home business and emergencies. She
stated that persons unknown would tear down these
notices or write some disparaging remarks thereon . Polski
states that around September there were a great many
incoming calls for the aides. In this connection we note
the testimony of Haywood, the union organizer, that she
made telephone calls to employees at the nursing home at
various times.
Considering all the circumstances we do not sustain the
above complaint allegation about the restriction on the use
of the telephones. In essence , Respondent was enforcing a
long standing legitimate rule under circumstances that
appear to have warranted its enforcement.
(12) That in March 1969, Respondent, contrary to past
practice, instituted a rule prohibiting employees from
going into the beauty salon for any reason.
On the second floor south of the nursing home and
opposite the nursing station on the floor there is a room
commonly referred to as the beauty shop or beauty parlor.
This room is used one day a week for "doing" the hair of
various patients. The room contains closets where supplies
such as powder , body lotion and related materials are
kept. Employees also leave their coats, sweaters and
pocketbooks in the room. Off the rear of this room there
is a part known as the sterilization room where the RN's
go from time to time to write up reports and so forth.
Employee Simpson testified that before September 1968
she would often go to the beauty shop and sit and talk
there with the other girls . She states that this was done by
the girls when there was a slack period in their work. In
the period prior to September Simpson states that she and
others had been told to leave the beauty shop at various
times by the nurse, the latter reminding the girls that they
were not supposed to sit in there and talk. In this same
pre-September period before the advent of the union
organizing , Rhodes had also chased Simpson and other
girls out of the beauty shop. After the union activities
started, Simpson states that various nurses on duty at the
nursing station had told Simpson and other girls to leave
the beauty shop when they found them there.
Rhodes testified that he had had complaints from
patients that they were not receiving the attention required
from the aides. He states that he did spend more time
walking through the building after the union organizing
started than previously. He admits that he gave
instructions to nurses to tell employees to leave the beauty
shop and that he himself had told an employee that the
employees were not allowed to use the beauty shop as a
place to take rest periods.
Polski testified that the aides would go in the beauty
shop and sit around talking or smoking and that she
would chase them out and orally admonish them when she
was aware of the situation. According to Polski, the
employees are supposed to confine their smoking to the
dining room during the break or at lunch time or in the
bathroom. Employees had used the beauty parlor as a
place to rest or smoke both before and after the advent of
the Union and in both periods had been told to leave by
supervisors when discovered. Due to the fact that Rhodes,
for instance , spent more time walking through the nursing
home after the union organizing began than previously,
there were probably more instances discovered of
employees spending time in the beauty shop but, both
before and after the advent of the Union, supervision had
sought to discourage such use of that room.
In the Examiner's opinion the evidence does not sustain
the complaint allegation, above, regarding the beauty
shop.
(13) That commencing in November 1968, Respondent
changed its prior practice of reprimanding employees by
initiating and implementing a system of serving written
reprimands titled "Employee Warning Notice."
(14) That in November 1968, Polski informed an
employee that she was receiving a reprimand in written
form because of the activities of Respondent's employees
on behalf of the Union.
Mosher testified that in October or November 1968, he
instituted a "pink slip" policy at New Fern. It contained
various items of employee derelictions or misconduct with
boxes for checking next to each item. There was a space
for "Remarks" for use by the supervisor in explicating the
particular misconduct . The form stated that one copy of
the form was to be placed in the employee's file in the
office. One copy was given to the employee by the
supervisor. Mosher stated that he instituted the pink slip
policy because Respondent had been informed that there
was a union and union activity among the employees." He
states that in his younger years he had been a member of
various unions and that it was standard operating
"On October 3 and 9, 1968, the Union had requested recognition from
NEW FERN RESTORIUM CO.
procedure for employers that had a union, and especially
where there was a closed shop, to use pink slips. Mosher
states that when he worked in such establishments a
reprimand by a supervisor could be ignored unless it was
in written form. Another reason why he instituted the pink
slips, according to Mosher, was to have written records to
support anything Respondent did or said with respect to
particular employees.
Following the institution of the pink slip policy,
Respondent's supervisors, instead of the previous oral
reprimands, gave employees a written pink slip warning
notice for derelictions, with a copy in the employee's file
in the office. Polski, for instance, admittedly implemented
the pink slip policy after it was instituted. At the hearing,
she was asked, ". . . do you recall what you told the
employees as to why there was a pink slipT"
A. Yes, because of the union activity we have to have a
record.. .
Employee Williams, who received a pink slip from
Polski because of misconduct, testified that, when Polski
gave her the slip, "She [Polski] said because of the union
that she had to give us those pink slips.. ." Employee
Simpson testified that Rhodes told her that the union
activities were the reason for the new pink slip policy. At
a meeting Simpson states that Rhodes explained the
reason for the new policy as being due to the fact that
they had to have records of what they did and the other
companies were also using pink slips.
It is the Examiner's opinion that employees normally
regard a written warning notice from their employer as a
more serious form of disciplinary action than an oral
admonition and reprimand. Both the formality of a
printed "Employee Warning Notice" and the
record-building aspect of the written notice, revealing as it
did on the instant form, that a copy of the notice was to
be kept in the employee's file by the employer, support
the conclusion that the new procedure was a change in
employment conditions to the detriment of the employee.
When the reason for the institution and use of such a
procedure is the fact that a union is engaged in
organizational activities among the employees and the
employees are so advised by the employer, it is apparent
that the manifest equation is clear, namely, union activity
has brought about a detriment to employees in a condition
of their employment. We therefore sustain the complaint
allegations above as violations of Section 8(a)(1) and (3)
of the Act.
We do not regard Mosher's explanation of his
experience in other establishments where there were
unions having contractual relations with the employers as
a defense in the instant case, particularly since contracts
may spell out particular forms of disciplinary action and
the respective rights of the parties in relation thereto.
Clearly our conclusion in the instant case is confined to
the particular facts and circumstances herein. Nor is there
an attempt to interdict any particular method of employee
reprimand or employer record keeping as a general
proposition.
(15) That in December 1968, Respondent failed to give
the employees of New Fern a monetary Christmas bonus
which was given to employees of Respondent's
neighboring two facilities in St. Petersburg.
(16) That in December 1968, Respondent informed
employees that Respondent was not giving them a
Respondent , claiming that it represented a majority of the employees. A
petition for certification pursuant to an election was also filed with the
Board . Respondent has not recognized the Union as collective-bargaining
agent.
623
monetary Christmas bonus because of the Union.
(17) That in December 1968, Respondent informed an
employee that Respondent had discontinued its past
practice of granting merit wages to its employees because
of the Union.
In addition to New Fern, Mosher is the president of the
Gode Corporation which does business as the William and
Mary Nursing Home, which is about two streets away
from New Fern. Mosher is also president of Lakeview
Management Corporation which does business as
Lakeview Manor Nursing Home located about seventeen
streets from New Fern Mosher, his wife, and Rhodes
constitute the officers and board of directors at all three
establishments and Mosher can be described as the owner
of all three nursing homes. New Fern was acquired in
1959; William and Mary in 1963; and Lakeview in 1964.
Separate financial books are maintained for each home.
In 1964 Mosher testified that he gave a monetary
Christmas bonus to employees at New Fern and William
and Mary." In 1965 and 1966 a Christmas bonus was
given to employees at the three nursing homes. No bonus
was given in 1967. In 1968, bonuses of $5, $10, and $15
were given at William and Mary and bonuses of $10 and
$ 15 were given at Lakeview. No bonus was given at New
Fern.
At the instant hearing Rhodes testified that he had been
asked by employees at New Fern about the Christmas
bonus for 1968 at that establishment. He states that he
told them that they would not receive a bonus that
Christmas because of the presence of the Union. Rhodes
testified that he was so informed by Mosher who said that
giving the bonus would constitute an unfair labor practice
because of the pending Board election.
Employee Simpson testified that in the Fall of 1968
Rhodes had told her at New Fern that the employees in
the three nursing homes would receive Christmas bonuses.
Shortly before Christmas in 1965, Rhodes expressed
doubts to Simpson and other employees about a bonus
being given "because of the union activities." He went on
to say that the bonuses would not be given because the
Union would say the Company was bribing the employees.
LPN Christie testified that she had a conversation with
Rhodes about the Christmas bonus He told her the bonus
would not be given that year, 1968, because of the union
activities and a bonus would be considered an unfair labor
practice.
Mosher testified that in Respondent's view the Federal
rules and law forbade Respondent to give any bonuses or
raises that might be construed as an attempt to bribe
employees or to influence their vote in an election.
In the period shortly before the scheduled December
1968 election Rhodes told employee Simpson that after a
girl had been with the home for sometime she would
receive a merit increase in wages but he said there would
be no more merit increases "because of the union
activities ." When asked at the hearing on
cross-examination by Respondent whether Rhodes had not
said that there would be no more merit increases "because
they [Respondent ] couldn't under the law because there
was an election pending ," Simpson replied,
A. No, he didn't tell me that.
Q. Well, he dust said because of the union activities?
A. That's what he said.
Employee Morrell, who had been at New Fern over 2
years, testified on direct examination that Chittenden, one
"When acquired by Mosher in 1964 Lakeview was in a bankrupt
condition.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the nurses had told her that she was going to
recommend a merit raise for Morrell . Later , when Rhodes
was passing through the hall sometime in the Fall of 1968,
he said to Morrell that she would not be able to get a
raise "until after the union leaves ." On cross-examination
by Respondent , the following colloquy with Morrell took
place:
Q. You said that Mr. Rhodes said he couldn't give
you a raise , and why did you say he said he couldn't
give you a raise?
A. He said he couldn ' t give me a raise until after the
union leaves.
Q. You sure he didn't say after the union election?
A. No, he said after the union leaves.
Q. Until after the union leaves?
A. That' s right.
Aside from the fact that we are satisfied that
Respondent did not give the employees the explanation for
not giving merit increases that Mosher gave at the
hearing , as described above , we are not persuaded of the
legal validity of Mosher 's explanation.
As we understand the law , an employer ' s legal
obligation in deciding to grant benefits such as a bonus or
wage increases while a union organizational campaign is
going on or while an election is pending is to determine
and to act on the matter precisely as he would if a union
was not in the picture . If the employer would have
granted the benefits because of past practice or
circumstances unrelated to union activity or a pending
election , the grant of such benefits will not violate the
Act. But if the employer's course is altered by virtue of
the union ' s presence , then the employer has violated the
Act and this is true whether he confers benefits because of
the union or withholds them because of the Union . If, for
instance , as in the instant case, it appears that but for the
presence of the Union and the pendency of an election,
the employer would have granted merit increases and
Christmas bonuses , the failure or refusal to give such
benefits because of the union presence and the pending
election , and the informing the employees that union
activity was the reason for the failure and refusal to
confer the bonus and raises , constitutes a violation of
Section 8(a)(l) of the Act and we so find.' f
CONCLUSIONS OF LAW
As found and concluded hereinabove Respondent by
certain specified conduct engaged in violations of Section
8(a)(1) and (3) of the Act and by other specified conduct
Respondent did not violate the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that
Respondent cease and desist from such conduct. With
respect to 1968 Christmas bonuses which Respondent did
not pay to employees because it asserts that the presence
of union organizational activity and the pendency of an
election proscribed such payment, it will be recommended
that the bonuses be paid to the employees who did not
"In Dorms Transportation Company , Inc.. 168 NLRB No. 68, the
Board stated that "By withholding salary increases , which it would have
granted had there been no organizing campaign and so advising its
employees, the Respondent restrained and coerced its employees and
thereby violated Section 8 (axl) of the Act This is do despite the fact that
the Respondent may have believed that it could not grant any raises
because of a pending election petition " (citation omitted).
receive bonuses because of Respondent's erroneous view
and its consequent illegal withholding of the bonuses.
Since the evidence reveals that Respondent had also taken
the position that merit wage increases could not and
would not be given for the same reason that the bonus
could not and would not be given, it will be recommended
that Respondent pay any employee or employees, if there
be such, the merit increases that she would have received
in the period beginning with the advent of the union and
the pendency of the election and make her whole for the
difference between her pay and her pay plus the merit
increase for the period during which she did not receive
the increase due to Respondent's erroneous and illegal
position concerning merit increases.
RECOMMENDED ORDER
Upon the basis of the above findings and conclusions
and upon the entire record in the case, it is recommended
that Respondent its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Telling employees that it would make stricter the
terms and conditions of employees because of union
activity.
(b) Telling employees that it would reduce the number
of employees if a union became the collective bargaining
representative of the employees.
(c) Illegally interrogating employees regarding union
affiliation or activity.
(d) Surveillance or giving employees the impression that
it was engaged in surveillance of employee union activity.
(e) Instituting and placing in effect stricter personnel
policies such as pink slip warning notices because of, and
telling employees that it was because of, union activities
or a pending election.
(f) Failing and refusing to grant normal merit wage
increases or Christmas bonuses to employees because of
union activities or a pending election and telling
employees that the failure and refusal to give such benefits
was because of union activities or a pending election.
(g) In any like or related manner interfering with,
restraining or coercing employees in the exercise of rights
guaranteed under Section 7 of the NLRA.
2. Take the following affirmative action necessary to
remedy the unfair labor practices and to effectuate the
policy of the Act.
(a) Pay the employees the Christmas bonus that they
normally would have received in 1968 but for
Respondent's failure and refusal to pay such bonuses
because of union activity and the pendency of an election.
(b) In the event that any employees would have
normally received merit wage increases in the period when
union activity was taking place and an election was
pending, beginning in the latter part of 1968, pay them
such merit increases that they normally would have
received and make them whole for any loss of merit
increases that were not paid because of union activity and
the pendency of an election.
(c) Post at its New Fern, St. Petersburg, Florida,
nursing home copies of the attached notice marked
"Appendix."" Copies of said notice, on forms provided by
the Regional Director for Region 12, after being signed by
a representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof and be
"In the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
NEW FERN RESTORIUM CO. 625
maintained for 60 consecutive days thereafter, in
conspicuous places , including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by other material.
(d) Notify the aforesaid Regional Director, in writing,
within 20 days of receipt of this Decision, what steps the
Respondent has taken to comply herewith."
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board ' s Order be enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read : " Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National -Labor
Relations Act, as amended, we hereby notify our
employees that:
After a trial in which the General Counsel of the
National Labor Relations Board and New Fern
Restorium Company were represented by their attorneys,
a Trial Examiner of the National Labor Relations Board,
who heard the witnesses and the evidence, has found that
we have violated the law in certain respects and has made
a recommended order that we post this notice and comply
with its requirements.
WE WILL NOT tell employees that we will make
stricter the rules, terms, and conditions of employees
because of union activities.
WE WILL NOT tell employees that we will reduce the
number of employees if a union becomes the
collective-bargaining representative of the employees.
WE WILL NOT illegally question employees regarding
their union affiliation or activity.
WE WILL NOT institute and place in effect stricter
personnel policies such as pink slip warning notices
because of, and telling employees that it was because
of, union activities or a pending election.
WE WILL NOT fail or refuse to pay, because of union
activities or a pending election, merit wage increases or
Christmas bonuses that we would normally pay.
WE WILL pay our employees the 1965 Christmas
bonus that they normally would have received but for
our failure and refusal to pay the bonus because of
union activity and the pending election.
WE WILL pay our employees the merit wage
increases that they normally would have received in the
period from the latter part of 1968 and which were not
paid because of the union activity and pending election.
WE WILL also pay any such employees any loss that
they suffered in the form of merit wage increases by
reason of our failure and refusal to pay such increases
because of union activity and the pending election from
the date when such increases would normally have been
paid to the date when the merit increase was eventually
paid if such be the case.
All our employees are free to engage in union activity
as provided in the National Labor Relations Act and to
join and assist Bay Area Local Union 1010 or any other
union to refrain from union activity or membership in any
union.
Dated By
NEW FERN RESTORIUM
COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, Federal Office
Building , Room 706, 500 Zack Street, Tampa, Florida
33602, Telephone 813-228-7711.