Opportunity Homes, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1994

315 N.L.R.B. 1210 (N.L.R.B. 1994)

1210
315 NLRB No. 156
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent asserts in its exceptions that the judge’s rulings,
findings, and conclusions demonstrate bias and prejudice. On careful
examination of the judge’s decision and the entire record, we are sat-
isfied that these contentions are without merit.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We correct, in sec. III,G of the judge’s decision, the judge’s inad-
vertent reference to Director of Nursing Richardson’s interrogation
of employee Milhoan as Milhoan’s interrogation by Fithian.
The judge found that the Respondent violated both Sec. 8(a)(3)
and (4) of the Act by harassing employee Gayle Milhoan. We find
it unnecessary to pass on the question of whether the harassment
violated Sec. 8(a)(4) because the finding of such a violation would
not affect the Order, as recommended by the judge.
3 We find no merit to the Respondent’s contention that its prohibi-
tion of union pins was legitimately enacted in response to safety
concerns, because Administrator Jones admittedly continued to wear
a decorative pin in the Respondent’s facility.
4 The General Counsel filed an opposition to the Respondent’s mo-
tion and moved to strike the affidavits the Respondent attached to
the motion. Although we agree with the General Counsel that the
Respondent cannot now submit additional evidence by way of affi-
davits, we find it unnecessary to strike the attachments in view of
our disposition of the Respondent’s motion. Accordingly, the Gen-
eral Counsel’s motion is also denied.
5 It is well established that the Board need not reopen the record
unless the moving party has demonstrated that the new evidence
would require a different result. NLRB v. Johnson’s Industrial Cater-
ers, 478 F.2d 1208, 1209 (6th Cir. 1973); Sec. 102.48(d)(1) of the
Board’s Rules.
6 The General Counsel filed oppositions to the Respondent’s mo-
tions and also filed motions to strike. We agree with the General
Counsel that the Respondent’s answering brief should not have ref-
erenced to an affidavit not in evidence. We strike that reference, but
deny the General Counsel’s motions in all other respects.
Opportunity Homes, Inc. and Service Employees
International Union, Local 627, AFL–CIO.
Cases 8–CA–24610 and 8–CA–25211
December 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On December 29, 1993, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions, a brief in support of
exceptions, a reply brief to the answering brief of the
General Counsel, and an answering brief to the cross-
exception of the General Counsel. The General Coun-
sel filed a cross-exception and an answering brief to
the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions and to adopt3 the recommended Order as
modified.
1. The judge found that the Respondent violated
Section 8(a)(3) of the Act by terminating its licensed
practical nurses (LPNs). The Respondent excepts to
this finding and moves to withdraw its stipulation that
the LPNs are employees within the scope of the Act,
to amend its answer concerning the supervisory status
of the LPNs, and to reopen the record to admit evi-
dence concerning the supervisory status of the LPNs.
In its motion, the Respondent contends that it should
be permitted to raise a new defense, i.e., that its LPNs
are supervisors, because the Supreme Court, in NLRB
v. Health Care & Retirement Corp., 146 LRRM 2321
(May 23, 1994), articulated a new standard for deter-
mining supervisory status in the health care industry.
We find no merit to the Respondent’s contention
and accordingly deny the motion. The Respondent
chose not to raise the supervisory issue before the
judge, and indeed stipulated that its LPNs were em-
ployees, even though the Sixth Circuit—where our de-
cision in this case could be appealed—had previously
disagreed with the Board’s standard for determining
supervisory status in the health care industry. See
Health Care & Retirement Corp. v. NLRB, 987 F.2d
1256 (6th Cir. 1993), and Beverly California Corp. v.
NLRB, 970 F.2d 1548 (6th Cir. 1992). Thus, by stipu-
lating that its LPNs are employees under the Act, the
Respondent declined to preserve the supervisory issue
for appeal and, in effect, conceded that its LPNs are
not supervisors under any applicable standard.4
2. The Respondent has also moved for leave to in-
troduce evidence concerning bargaining that occurred
subsequent to the judge’s decision, and has further
moved for leave to introduce evidence concerning an
inspection of the Respondent’s facility subsequent to
the judge’s decision. We deny these motions on the
ground that, in both instances, the evidence the Re-
spondent seeks to introduce is not relevant to whether
the Respondent engaged in the unfair labor practices
the judge found.5 We leave to compliance the issue of
whether evidence concerning bargaining that occurred
subsequent to the judge’s decision is relevant to the
issue of mitigation of the Respondent’s remedial obli-
gations.6
3. The Respondent excepts to the judge’s finding
that the Respondent violated Section 8(a)(3) of the Act
by terminating employee Donna Yeager for her union
activities. The Respondent contends that it lawfully ter-
minated Yeager for insubordination. We find no merit
to this contention. In agreeing with the judge, we em-
phasize that, in deciding to terminate, the Respondent
admitted it relied on an earlier suspension of Yeager,
which the judge found was an unfair labor practice.
1211OPPORTUNITY HOMES, INC.
7 The General Counsel excepts to the judge’s failure to provide,
in the alternative, for a bargaining order in accordance with NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969). We find it unnecessary
to pass on the issue his exception raises. Under par. 2(c) of the
judge’s recommended Order, which we adopt, the Respondent is ob-
ligated to bargain in order to remedy its withdrawal of recognition
and refusal to bargain violation. Therefore, issuing a Gissel bargain-
ing order would not affect the remedy.
We do not rely on Mar-Jac Poultry Co., 136 NLRB 785 (1962),
cited by the judge in the remedy section of his decision, because the
instant case does not involve a certified union.
The Respondent has not shown that Yeager would
have been terminated absent its consideration of this
prior incident.
4. We shall modify the judge’s recommended Order
to include the Board’s traditional make-whole language
for any loss of wages and benefits resulting from the
Respondent’s violations of Section 8(a)(5) of the Act,
and to correct the language concerning the Respond-
ent’s unlawful surveillance to correspond with the
judge’s conclusions of law. In addition, because of the
Respondent’s widespread misconduct, demonstrating a
general disregard for the employees’ fundamental
rights, we find it necessary to issue a broad order, re-
quiring the Respondent to cease and desist from in-
fringing in any other manner with rights guaranteed
employees by Section 7 of the Act. Hickmott Foods,
242 NLRB 1357 (1979).7
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Op-
portunity Homes, Inc., Lisbon, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Interfering with, restraining, or coercing its em-
ployees in the exercise of rights guaranteed in Section
7 of the Act by interrogating an employee about union
support or union activities, by engaging in unlawful
surveillance, by threatening to enforce policy and work
rules, and threatening unspecified reprisal or discharge
because of, or if employees engaged in, union or pro-
tected concerted activities.’’
2. Substitute the following for paragraph 1(f).
‘‘(f) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed them by Section 7 of the Act.’’
3. Insert the following as paragraph 2(d) and reletter
the subsequent paragraphs.
‘‘(d) Make whole unit employees for any loss of
earnings and other benefits suffered as a result of the
unilateral changes, in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).’’
4. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act by interrogating employees about
their union support or union activities, by engaging in
unlawful surveillance of employees, by threatening to
enforce policy and work rules, and threatening unspec-
ified reprisal or discharge because of, or if employees
engaged in, union or protected concerted activities.
WE WILL NOT interfere with, restrain or coerce em-
ployees, or discriminate against employees because
they joined or supported a union or unilaterally and
without bargaining affect changes in terms and condi-
tions of employment by discontinuing our early check
distribution policy; by removing the pay telephone; by
discontinuing nurses access to the copy machine; by
changing our policy regarding signing of in-service
memos; by maintaining a list of employees who de-
cline to work as fill-ins; by discontinuing our cash ad-
vance policy; by prohibiting employees from wearing
pins; by requiring nurses to find their own replace-
ments; by requiring nurses to provide a doctor’s excuse
for any absence; by changing our practice regarding
overtime for nurses; by creating and thereafter failing
to post the position of habilitation specialist; by reduc-
ing the hourly rate of pay; and by eliminating the posi-
tion of physical therapy aide.
WE WILL NOT suspend, terminate, issue disciplinary
warnings, harass, or otherwise discriminate against any
employee because of, or in retaliation for, engaging in
union activities or other protected concerted activity.
WE WILL NOT unilaterally withdraw recognition of
Service Employees International Union, Local 627,
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All following dates will be in 1992 unless otherwise indicated.
AFL–CIO, and fail and refuse to bargain with the
Union as the exclusive bargaining agent of our em-
ployees in the following appropriate unit:
All full time and regular part-time licensed prac-
tical nurses, habilitation, activity, therapy, and
psyche aides, dietary, social service, housekeeping
and maintenance employees, and seamstresses em-
ployed at our Lisbon, Ohio facility, but excluding
the administrator, program director, director of
nursing, dietary manager, social services director,
registered nurses and all professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT unilaterally implement changes in
terms and conditions of employment without first noti-
fying or bargaining in good faith with the Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed them by Section 7 of the Act.
WE WILL offer Kathy Byers, Carol Redmond, Blaine
Ritchie, and Jim Tharp immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and make them, as well as
Eleanor Bilsky, Brad Martin, Gayle Milhoan, Lorena
Howell, and Donna Yeager, whole for the losses they
incurred as a result of the discrimination against them.
WE WILL expunge from our files any reference to
the warnings, suspensions, and discharges of these em-
ployees as well as of Linda Joy and notify them in
writing that this has been done and that evidence of
the unlawful discharge and warning will not be used
as a basis for future personnel actions against them.
WE WILL on request, rescind all or part of the uni-
laterally made changes in terms and conditions of em-
ployment, retroactively restore preexisting terms and
conditions of employment, and bargain in good faith
with the Union as the exclusive bargaining agent of
employees in the above appropriate unit of employees
with respect to their wages, hours, and other terms and
conditions of employment and embody any under-
standing reached in a signed agreement.
WE WILL make whole unit employees, with interest,
for any loss of earnings and other benefits suffered as
a result of the unilaterally made changes.
OPPORTUNITY HOMES, INC.
Paul C. Lund, Esq., for the General Counsel.
Roger W. Strassburg Jr., Esq., of Akron, Ohio, for the Re-
spondent.
Robert S. Moore, Esq., of Youngstown, Ohio, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in East Liverpool, Ohio, February 2–5,
March 9–12, and April 7 and 8, 1993. Subsequent to re-
quested extensions in the filing date, briefs were filed by
General Counsel and the Respondent. The proceeding is
based on a charge filed May 26, 1992,1 as amended, by
Service Employees International Union, Local 627, AFL–
CIO. After the first week of hearing Case 8–CA–25211
(based on a charge filed February 9, 1993, by the same
party), was consolidated with the title case in response to a
motion by the General Counsel filed March 2, 1993.
The Regional Director’s complaint dated September 15,
1992, alleges that Respondent violated Section 8(a)(1), (3),
(4), and (5) of the National Labor Relations Act by unlaw-
fully withdrawing recognition from the Union; by threatening
to enforce its policy and work rules, engaging in unlawful
surveillance, interrogating employees, threatening employees
with unspecified reprisals and threatening employees with
discharge because they engaged and/or if they engaged in
union or protected concerted activities; by issuing discipli-
nary warnings to employees including Lorena Howell, Linda
K. Joy, and Blaine Ritchie; by suspending in May and there-
after terminating its entire nursing department in June, in-
cluding Kathy Byers, Lorena Howell, Gayle Milhoan, and
Carol Redmond; by terminating the employment of Blaine
Ritchie and by suspending on May 29, and thereafter termi-
nating the employment of Donna Yeager on June 10, all be-
cause of their union or protected concerted activities; by en-
gaging in an unlawful course of conduct directed at Gayle
Milhoan after her return to work in October, and by unilater-
ally, without bargaining with the Union, changing wages,
hours, and working conditions, and by conduct including
discountinuing its early check distribution policy; removing
the pay telephone; discontinuing nurses’ access to the copy
machine; changing the starting times and hours or work for
various employees; changing its policy regarding signing
‘‘in-service’’ memos; maintaining lists of employees who de-
clined to work as fill-ins; discontinuing its cash advance pol-
icy; prohibiting employees from wearing pins; requiring
nurses to find their own replacements; requiring nurses to
provide a doctor’s excuse for any absence; changing its prac-
tice regarding overtime pay for nurses; creating and there-
after failing to post the position of habilitation specialist;
changing its policy and removing PRNs from the LPN on-
call list; reducing the hourly rate of pay for Brad Martin; and
by eliminating the position of PT aide occupied by John
Tharp.
By motion dated July 29, 1993, the Respondent seeks to
reopen the hearing (a related motion to correct the case num-
ber is hereby granted), to receive the results of a survey of
theirs by the Ohio Department of Health and Plan of Correc-
tion dated June 1993. In response, the General Counsel
points out that the survey, which was completed on June 11,
1993, is more than 14 months from the previous survey and
over a year from the time the nurses were suspended. Under
1213OPPORTUNITY HOMES, INC.
2 Employee Linda Joy took a picture (G.C. Exh. 5) of Timko pre-
senting the petition to Jones. While Jones denied that the petition
was open, it is clear from the testimony of those in attendance and
from the picture, that the petition was open and unfolded when pre-
sented to Jones.
these circumstances I find that it has no clear relevance to
any of the allegations in the involved cases and, accordingly,
the motion is denied.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation engaged in providing care and
therapy for disabled or retarded residents of its Lisbon, Ohio
facility. Annually, in the course and conduct of its oper-
ations, Respondent received $250,000 in gross revenues from
state and Federal sources and purchases and receives goods
valued in excess of $5000 directly from points outside the
State of Ohio. It admits that at all times material it has been
an employer engaged in operations affecting commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act. It
also admits that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent’s facility provides full-time residential
care and therapy for approximately 22 mentally and/or phys-
ically handicapped residents who can function independently
only on very limited bases. The home has a staff of 44 (unit)
employees (as of January 24), which is supplemented by
both temporary and part-time employees. Employees were
supervised by Director of Nursing Judy Manning, Dietary
Manager Terry Buckly, Habitation Coordinator Kathryn
Fristik, and Program Director (and, in effect, assistant admin-
istrator) Richard Fithian, all under the overall day to day
management of Administrator Mary Jane Jones. Respond-
ent’s operations receive funds from governmental sources
and, in turn, are regulated by several state agencies, includ-
ing the Ohio Department of Health (ODH), the Ohio Depart-
ment of Human Services (ODHS), and the Ohio Department
of Mental Retardation and Developmental Disabilities
(ODMR).
It was stipulated that the following described employees of
Respondent, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time licensed practical
nurses, habilitation, activity, therapy, and psyche aides,
dietary, social service, housekeeping and maintenance
employees, and seamstresses employed at the Employ-
er’s Lisbon, Ohio facility, but excluding the adminis-
trator, program director, director of nursing, dietary
manager, social services director, registered nurses and
all professional employees, guards and supervisors as
defined in the Act.
This unit was recognized formally by Respondent on October
12, 1992, following a hiatus of over 9 months after its al-
leged initial recognition of the Union on January 24, and the
intervening mass suspension and subsequent firing of all of
its licensed practical nurses (LPNs) on May 18, and the oc-
currence of a number of other events, set forth in more detail
in the discussion, below, which precipitated the charges and
allegations in the complaint.
In October 1991, Donna Yeager a member of the direct
care staff who then was acting as an assistant supervisor, was
given a 5-day suspension for apparently trivial reasons
(which she considered to be unjustified), and she thereafter
discussed the possibility of seeking a union to represent the
employees of the Respondent with LPN Kathy Byers. Byers
then contacted the Union, set up meetings and then gave au-
thorization cards to Yeager and Carol Redmond, another
LPN, and all three then distributed the authorization cards
among Respondent’s employees.
On January 22, a meeting was held at the Lisbon City Hall
at which Debra Timko, the organizer for the Union, an-
nounced that the Union was going public with its support,
that they were going to seek recognition, and would present
a signed petition to the Respondent on January 24. Forty-one
employees signed the petition, which stated: ‘‘We the under-
signed have organized a union with Local 627, S.E.I.U. We
demand that you recognized our Union. We know what our
rights are and we will do whatever it takes to win recogni-
tion or our Union and the respect we deserve.’’
As noted, there were 44 employees in the unit described
above and 42 had signed valid authorization cards as of Jan-
uary 24. At noon on Friday, January 24, Timko, closely ac-
companied by Redmond and Byers and approximately 40
employees and family members, presented the petition to Ad-
ministrator Jones in a hallway at Respondent’s facility.
Timko gave Jones a letter and the unfolded petition and
demanded that Respondent recognize the Union as the bar-
gaining representative of its employees. Jones reviewed the
petition briefly2 and responded that ‘‘yes,’’ she would recog-
nize the Union as ‘‘they had been thinking of starting a
union for some time.’’ Timko then inquired of Jones as to
whether or not she understood that she was recognizing the
Union and that they would begin bargaining in the near fu-
ture. Jones acknowledged that she understood. Timko then
told the group they had their Union, and they responded with
a cheer.
In her testimony Jones disputed or embellished on this de-
scription of events, however, as discussed in footnote 2 and
below, I do not find her testimony credible in these in-
stances.
Jones further testified that during the afternoon she felt
that there was a change in attitude with a lot of employees
(for example, unidentified persons were avoiding eye contact
or smirking), and that a feeling of anger built up then and
during the weekend and that she ‘‘just got real upset.’’
Inexplicitly, she asserts she didn’t open the envelop from the
Union until 4 p.m. and that she then called Respondent’s
legal counsel. She was instructed ‘‘just don’t sign anything’’
and that the board of directors would be contacted and a
meeting set up to discuss the situation.
On Monday morning an article appeared in the local
paper. Jones testified she read the article but she could not
recall what the article said. When shown her affidavit, she
recalled that it indicated that Respondent was now unionized.
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
She also said that she was contacted by the board of direc-
tors shortly after each had seen the article and that they met
thereafter.
Also on Monday, Jones posted a notice to the employees
entitled ‘‘Request for Unionization’’ in which she bitterly ex-
pressed her disappointment with the employees and, among
other things stated that:
anything I have to say to the employees will come via
an official memo or other similar form. Legal counsel
has advised me to close my open door policy. I will ad-
dress employee problems, but only through a third per-
son, the union representative. . . . We will now be
forced to follow the policy manual to the letter.
Otherwise, the notice makes no reference to any election.
Also, on January 27, Union Representative Timko sent a
letter to Jones which acknowledged her pleasure over Jones’
recognition of the Union on Friday and requesting and sug-
gesting negotiation dates.
The newspaper article reported that the Union had been
recognized on Friday. Jones testified that she really had
thought they had merely requested to form a union and that
she merely acknowledged that request rather than actually
recognizing the Union itself. Otherwise, however, Jones ac-
knowledged that even after receiving a letter from the Union
asking for bargaining dates, she never responded to the
Union, never asked the newspaper to print a retraction, never
told the Union to contact Respondent’s legal counsel, and
never posted another memo to Respondent’s employees in-
forming them that Respondent had not recognized the Union.
She acknowledged receiving calls from Timko and agreed
that she never returned them. Timko, however, testified that
on one occasion, on February 4, she did talk to Jones, who
indicated they were still preparing for negotiations.
On February 4, the Union posted a list of the negotiating
committee at several locations in the facility. Jones denies
that she saw it. Redmond testified that it was printed on red
paper and one was observed on Assistant Administrator
Fithian’s desk. As pertinent, the list was headed by the name
of Kathy Byers. It listed Redmond as alternate for the LPN’s
and included the names of Donna Yeager, Blaini Ritchie, El-
eanor Bilsky, Linda Joy, Linda Ketchum, Vickie Howells,
John Tharp, and Brad Martin, among others.
The Respondent otherwise admits that it did not bargain
with the Union on any matters and did not begin any nego-
tiations with the Union until it specifically acknowledged
recognition in October 1992.
Jones testified that she spoke to the board members ‘‘very
briefly’’ about the newspaper article, but said she saved a
full discussion for a board meeting held on February 12.
Meanwhile, within a few days after January 24, the locks
were changed on the doors to Respondent’s main offices, the
pay telephone was removed and unlimited access to the copi-
er by the LPNs was eliminated because of the change in
locks. After January 24 Respondent also changed its policy
in distributing checks whereby employees who worked the
afternoon and evening shifts were no longer allowed to re-
ceive their checks early. Respondent also admitted that it dis-
continued its policy of allowing employees to receive cash
advances on their checks which allowed employees to re-
ceive advances for hours worked 2 to 4 days early.
On January 23, activity aide Linda Joy, lost her programs
for the month (copies of which were needed so that the facil-
ity could be reimbursed by the State). On January 30, she
was given a written warning by Fithian, which stated that
any repeat of lost documentation would result in her suspen-
sion and any further disciplinary problems within the next 90
days would result in progressive disciplinary procedures.
Byers, at Joy’s request, accompanied her to the disciplinary
meeting, defended her and advised Joy not to sign the warn-
ing. After the meeting, Fithian told Joy in private that he
could have brought the programs up on the computer but
since the Union had been brought in, he had to follow proce-
dure. Subsequently, Fithian himself was cited in a survey by
the State (ODH) for missing plans and minutes, but he was
never disciplined for this by the Respondent.
Milhoan testified that after January 24, management began
to treat employees as if they were invisible, ‘‘if you passed
them in the hall they wouldn’t speak,’’ ‘‘communications ef-
fectively ceased.’’ Numerous other actions occurred, as dis-
cussed below, which are either alleged as violations of the
employee’s Section 7 rights or which otherwise tend to show
management’s animosity and disregard for its employees and
the Union.
On February 12 Respondent’s board of directors met and
its notes indicate that a discussion was held about the union-
ization attempt. Notes from another board meeting held
March 3, at which a labor relations attorney also was present,
recognized the filing of union charges with the Labor Board,
that a discussion was held on that subject, and that the board
voted unanimously to not recognize the Union and ‘‘to pro-
ceed with whatever measures that were necessary in this
matter.’’
On no occasion prior to October did Respondent’s board
of directors communicate to the Union any repudiation of
Jones’ actions on behalf of the Respondent. Also, several at-
tempts by union member Byers and others to communicate
with the board and some of its members were rebuffed.
On January 28, Redmond served as a witness to a writeup
given to LPN Lorena Howell for an alleged medication re-
port error that had occurred 2 months earlier, in November
1991. When Howell asked time to think about what had hap-
pened before signing the writeups, Nursing Supervisor Man-
ning yelled at Howell that prior to the Union coming she
would have just signed to all of her mistakes. Redmond ob-
jected to Fithian, who also was present, that Manning sees
the medication orders just as the LPNs do and that if an
order was missing (from the records) it was partially
Manning’s fault also. Manning responded by standing up and
shaking the writeup in Howell’s face and saying that she had
to sign it then.
This type of confrontational tone by Manning persisted
from that point on and Manning also regressed to a total
hands-off approach regarding the supervision of her staff.
Manning testified that she knew her four LPNs all supported
the Union, that they had a big change in attitude after the
petition was presented and that problems thereafter occurred.
Manning issued no writeups for asserted refusals to follow
orders and she held no meetings to help resolve problems be-
cause she said it was hard to do so when they don’t commu-
nicate with you. She said she had a daily, short ‘‘exchange
of words’’ with individuals but never spoke to them about
problems. Manning also made generalized, blanket com-
1215OPPORTUNITY HOMES, INC.
plaints about the LPNs, such as alleging that when a nurse
would call off, others were no longer willing to come in and
work. She could not recall, however, if Redmond or Byers
ever missed any assigned days by calling off (they had not).
Manning went on to testify that ‘‘our communication had
broken down’’ and that ‘‘they’’ were not doing the kind of
job and ‘‘it’’ was affecting the facility. She then was asked:
Q. They refused to do it and this would have a direct
impact on patient care; isn’t that correct?
A. Yes, it would.
Q. And you never felt it necessary to confront them
on that, even though this affected the patients?
A. No, they were good nurses and they knew what
kind of care was needed for the patients and they had
provided that in the past.
Q. So even though now it was your belief that they
were not providing this care, you didn’t feel it was your
job to go and talk to them and tell them, hey, you’ve
got to provide the appropriate patient care?
A. They knew for years what appropriate patient care
was, they knew. I didn’t have to tell them what it was.
Q. You never went and talked to them; isn’t that cor-
rect?
A. I am stating that orally I had mentioned things off
and on to the nurses during whatever conversation we
had during the day. If you are asking me if I sat them
down at my table and said this is the way it is, no, I
did not.
In April the facility was subject to an annual ‘‘survey’’ by
the ODH and Jones indicated that she believed someone was
trying to sabotage the survey but that she had no idea who
and that she didn’t know who was beginning to file charges
with various state agencies.
Shortly after the state survey, Jones gave a speech to the
employees and accused the LPNs of sabotaging the records,
going behind her back, and betraying her. She further stated
that a couple of people were leading the employees down the
wrong path. By letter dated May 14, which was sent to be-
tween 10 and 15 local doctors, she stated that a group of em-
ployees were trying to bring a union in, and that their actions
bordered on lawlessness. She wrote that these employees sent
letters to families and guardians of the residents, issued false
press releases, filed complaints with every state and Federal
agency that regulates the Respondent; attempted to sabotage
the recent state survey, and she characterized their actions as
reprehensible. When questioned, she maintained that she had
no idea who these employees were even though the employ-
ee’s complaints and letters to guardians and family was
signed by many employees, including the alleged
discriminatees.
Although the facility received over 50 citations in the
ODH survey, the LPNs were never shown the survey results
and Manning admitted that she never discussed the citations
with the nursing staff and said she never inquired about their
conduct because she believed their actions were intentional.
Jones testified that after she reviewed the citations she deter-
mined that the nursing staff was directly responsible for 35
percent of the citations, but admitted that her assessment was
purely speculation.
Jones hired a ‘‘quality assurance nurse’’ to look into the
nursing department and review the citations and audit all the
nursing documents and charts in order to assess blame.
Marilyn Robb, who had been Respondent’s director of nurs-
ing prior to Manning, was hired for this purpose on May 4.
By her own admission, Robb never interviewed or talked to
any of the LPNs, never gave them the opportunity to explain
any of their documentation and never talked to any of the
doctors involved. Of the 22 residents, she eventually re-
viewed the charts of only 6 and it appears that she had only
reviewed the documentation for 2 residents by May 18. She
also testified that she made no recommendation that the
LPNs should be suspended.
On May 18, the LPNs were notified to attend a mandatory
meeting and on arriving were handed letters by Jones and
told they all were suspended. Jones also said that the Ohio
Department of Health was tired of their phone calls, and they
were escorted off the premises. Redmond passed Vicki How-
ells and told her that they were suspended and Howells testi-
fied that immediately after their departure she observed Man-
ning singing ‘‘We did it, we did it, we got rid of them.’’
In a letter dated May 23 submitted to the State by Re-
spondent, Jones devoted three pages to a section entitled
‘‘The Impact of Unionization,’’ stating that union employees
had decided to place pressure on the administration and that
their tactics had a devastating effect on the facility, that the
facility records had been sabotaged, and that the nursing de-
partment had been deliberately making errors. She also indi-
cated that even though managers attempted to spend all
available time working with the staff to improve active treat-
ment and supervise nursing activities, the employees were
not going to support management as ‘‘the organizers used,
and continue to use, every tactic possible to discredit the ad-
ministration and Board of Directors.’’
Jones further indicated that the nursing staff was placed on
suspension and concluded by saying:
All employees have been given the chance to make an
informed decision. Any employee who does not support
the program, complete their job responsibilities as as-
signed and make the resident the priority issue on their
mind will be disciplined, up to termination. Up until
last week, the management made an attempt to operate
the program without repercussion from the National
Labor Relations Board. Management has now made an
informed decision of its own. There is nothing that the
NLRB could do to us that could be anywhere as dev-
astating as the residents losing their home.
After the LPNs were suspended they established a picket
line. Robb continued her audit and orally gave her conclu-
sions to Jones on approximately June 10. The handwritten re-
port was then typed and given to Jones on June. The report
states on the first page:
The attached information is a compiled report of the
nursing documentation including February through
some of April and May. This report includes the most
serious documentation errors made by the nurses as list-
ed below and serves as the back up documentation
needed to support their suspension from this facility
and subsequent termination. This information applies to
the following nurses: (Byers, Redmond, Milhoan, How-
ell, and Carnes, who was a part time employee).
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On May 18, Blaine Ritchie attended a rally and the infor-
mational picket line established by the Union. Ritchie was
interviewed by a local television station and appeared on
both the 6 and 11 o’clock news and was pictured stating that
Mary Jane Jones had recognized the Union on January 24
but had reneged on that promise. He also was shown saying
that they had organized because they loved the residents and
wanted to make sure they were being taken care of in the
way they deserved.
As noted above, on February 4, Ritchie, was listed as a
union alternate representative for the habilitation aides.
Ritchie also designed union T-shirts (these T-shirts duplicate
the union petition for recognition and show all the employee
signatures), and distributed them on February 20, at manda-
tory meetings that was attended by supervisors, including
Fithian, who was observed writing as each employee took a
shirt from Ritchie.
Ritchie also presented another employees’ petition to Jones
in person on March 13.
On May 24, 6 days after he appeared on television, Ritchie
was preparing to give resident ‘‘Donald’’ a shower and
shampoo as he had done hundreds of times. As he turned on
the shower, he ‘‘felt’’ Donald falling because of the manner
in which Donald was holding Ritchie’s arm. Donald fell to
the floor and hit his head. Ritchie called for help and sub-
stitute LPN Aaron Rowe came to the room.
Rowe stated he was in the hall about 30 feet from
Donald’s room, making his ‘‘med’’ rounds, when he heard
Ritchie’s call. He pushed his ‘‘med’’ cart into the room but
could not estimate how long it took him to get there. He said
he found Ritchie with Donald in his arms and the Donald
had a head injury ‘‘a pretty good cut, skin tear. I can’t really
recall.’’ Rowe said he charted the incident and Donald was
taken to the hospital (because it was standard procedure for
some one in Donald’s status).
Ritchie testified that when Rowe came in he told Rowe
that he ‘‘didn’t know what happened.’’ Rowe filled out the
incident report by indicating that there was an ‘‘abrasion’’ on
the forehead and also wrote ‘‘unattended at time of fall.’’
Ritchie went with Donald to the hospital and returned near
the end of his shift. When he returned the next day he made
his own incident report and latter was questioned by his su-
pervisor for more details. Ritchie then described how Donald
(who is epileptic and subject to seizures, walks with minimal
assistance and wears braces and a helmet when not in bed
or the shower), fell in the shower as he was turning the
water on, that Donald was not alone but that he didn’t know
if he had a seizure or had slipped on the wet floor, that the
LPN had responded to his call in 1-1/2 to 2 minutes and was
told the resident had fallen, that the LPN briefly checked the
resident and asked what had happened and that he had said
he didn’t know whether it was a seizure or slip on the wet
floor. Ritchie also said he observed Donald was ‘‘chewing’’
at the hospital and that this behavior for him was a common
activity after he had had a ‘‘grand malle’’ or ‘‘petite malle’’
seizure.
On Wednesday, May 27, Fithian called Ritchie to his of-
fice and was asked to redescribe what had happened on May
24 and was told what the LPN had put in his notes. Ritchie
denied that he had left Donald unattended. Fithian called
Rowe and then told Ritchie he believed Rowe because he
was a professional, that he found Ritchie negligent and that
negligence was ground for termination. He then told Ritchie
to turn in his key.
After the LPNs were suspended, the Respondent used the
services of a temporary agency to obtain nurses (including
Rowe) at a cost of $20 per hour (the suspended LPNs were
paid approximately $11 an hour). In June, prior to the LPN’s
terminations, it began advertising for LPNs.
Jones, after viewing Robb’s report, received an endorse-
ment from Manning and terminated all the suspended LPNs
by letter mailed June 18 which stated the reason was because
they ‘‘exhibited complete disregard for the duties of your
job.’’
On May 29 Donna Yeager (day-shift union representative
for habilitation aids) was suspended for 5 days by Fithian.
On June 10 she was again suspended and then discharged by
Habilitation Coordinator Fristic.
As noted above, other events occurred during 1992 which
also are alleged to constitute unlawful labor practices and to
be part of the Respondent’s overall pattern of response to its
employee’s exercise of their Section 7 rights to form, join,
and assist a union and they will be discussed below.
III. DISCUSSION
The issues in this case arose when the Respondent sud-
denly cut off its past, open communication practices between
top supervisors and its staff in an apparent reaction to the
employees’ overwhelming selection of a union to act as their
representative for collective bargaining. The Respondent,
after its administrator appeared to have voluntarily recog-
nized the Union, then refused all communication with the
Union and embarked on a campaign to avoid such recogni-
tion, to force an election process and, as shown below, to
interfere with or retaliate against those who most actively
supported the Union.
A. Recognition of the Union on January 24
On brief, the Respondent makes the specious argument
that the bargaining unit described in the Union’s January 24
recognition demand consist of ‘‘LPNs, Habilitation Aides,
Therapy Aides, Dietary Employees, Housekeeping Employ-
ees, Maintenance Employees, and the Seamstress,’’ whereas
the unit described in the complaint consist of:
All full-time and regular part-time licensed practical
nurses, habilitation, activity, therapy, and psyche aides,
dietary, social service, housekeeping and maintenance
employees, and seamstresses employed at the Employ-
er’s Lisbon, Ohio Facility, but excluding the adminis-
trator, program director, director of nursing, dietary
manager, social services director, registered nurses and
all professional employees, guards and supervisors as
defined in the Act.
and that therefor the ‘‘unit’’ alleged in the complaint dated
September 15 is not proven by the General Counsel. The lat-
ter unit, however, is the unit actually recognized by the Re-
spondent on October 12. I find that it does not add any new
employees but merely clarifies the inclusion of activity and
psyche aid positions that otherwise were broadly within the
habilitation and therapy aids first described and it reflects the
apparent unit anticipated in the mutually agreed upon elec-
tion proceeding that was canceled prior to the October letter
1217OPPORTUNITY HOMES, INC.
of recognition. Moreover, the Respondent stipulated at the
beginning of the hearing that there were 42 valid authoriza-
tion cards signed in the unit as of January 24 and, as these
42 cards included all but 2 of the Respondents 44 employees
I find that the proof at trial and evidence of record properly
correspond to the allegation of the complaint.
Respondent also argues that Administrator Jones did not
have the authority to act on behalf of the board of directors
in the matter of union recognition, an argument that seems
strangely out of place in view of Respondent’s stipulated
submission of Joint Exhibit 1, Respondent’s letter to Union
Representative Timko on Respondent’s letterhead, which of-
fers Respondent’s recognition of the Union and the described
unit of employees, a letter that is signed solely by Jones, as
administrator, and a letter that makes no mention of other-
wise being authorized or done at the direction of the board.
The self-serving notes of the board indicates that they dis-
cussed that Jones did not have authority to recognize the
Union’s demand, however, at no subsequent time prior to its
recognition of the Union on October 12 did the board or any-
one on its behalf communicate to the Union or the employ-
ees any disavowal of Jones act of apparent authority. More-
over, during 1992 the board and its individual members
rebuffed the attempt of employees to discuss the matter with
them and hid behind the skirt of their administrator.
Respondent’s board of directors cannot have it both ways,
if it alone had the authority, it had the responsibility to meet
the employee representative, to communicate some formal
disavowal of Jones’ action and to make the second and for-
mal offer of recognition. It did not do so and I find that
Jones had both the actual and apparent authority to act in this
regard on behalf of the Respondent.
Otherwise, it is well established that an employer is bound
by the acts of those of its officials who are in charge of the
day-to-day operations at its facility and who possess actual
authority, or at the very least, apparent authority, with re-
spect to labor relations matters, see Richmond Toyota, 287
NLRB 130 (1987), and Nemacolin Country Club, 291 NLRB
456 (1988). Here the credible testimony of record shows that
Jones verbally agreed to recognize the Union when the de-
mand and petition were presented to her on January 24.
Although Jones and the Respondent thereafter attempted to
minimize or twist the import of what she said, I find her tes-
timony in this regard to be evasive, argumentative and mis-
leading, and I specifically credit the employees’ descriptions
of the event and find that after Union Representative Timko
identified herself and the recognition request, Jones agreed to
recognize the Union. I also find that Timko then specifically
questioned Jones’ understanding regarding recognition and
that Jones acknowledged her affirmative understanding.
Jones’ followup letter of January 26 uses a few phrases
that Respondent seizes on to argue that Jones’ words and let-
ter merely recognized that the employees wanted a union and
an election and not that she recognized the Union.
Although Jones’ bitterly worded letter may have some am-
biguous phrasiology, it manifest itself most clearly with re-
peated reference to dealing with the employees’ union rep-
resentative. Most specifically, Jones acknowledged her
‘‘positive reaction to your request to form a union’’ and fur-
ther wrote:
I have only one piece of advice to pass on. Choose
your inhouse union representatives carefully. Legal
Counsel has advised me to close my open door policy.
I will address employee problems, but only through a
third person, the Union representative. I am not scared
of your union or threatened by it in any way. If I was,
I definitely would not have so graciously recognized
your position. Good Luck. I will do my best to work
with your representatives to correct the deplorable
working conditions present at the facility.
Under these circumstances, I find that the Union dem-
onstrated majority status and that the record persuasively
shows that Respondent recognized the Union on January 24,
that the Union and its employees clearly understood that this
had happened, that Jones’ memo of January 26 acknowl-
edged that she has recognized and intended to bargain with
the Union, and that the Respondent did nothing to commu-
nicate a disavowal of this recognition except to refuse to en-
gage in further discourse or negotiations with the Union.
Inasmuch as an original commitment was made, the Re-
spondent cannot unilaterally withdraw its recognition and
refuse to bargain with the Union and by doing so it has vio-
lated Section 8(a)(1) and (5) of the Act as alleged, see Nan-
tucket Fish Co., 309 NLRB 794 (1992).
B. Discharge of Blaine Ritchie
The record clearly shows that Ritchie’s name was posted
on February 4 identifying him as an alternate union rep-
resentative. He openly distributed union T-shirts to employ-
ees at a meeting at Respondent’s facility in the presence of
supervision, he presented Jones with union petitions involv-
ing health concerns and, most significantly, on May 18, just
days before his discharge on May 28, he was shown on tele-
vision at a union demonstration, questioning the good faith
of Respondent.
In a discharge case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
sufficient evidence to support an inference that the employ-
ee’s union or other protected, concerted activities were a mo-
tivating factor in the employer’s decision to terminate him.
The evidence otherwise establishes a clear record of
antiunion animus on the part of the Respondent which is
demonstrated in Jones’ bitter letter to employees and in the
overall extreme level of noncooperative conduct engaged in
by several supervisors after it became apparent that Respond-
ent’s board of directors wished to avoid dealing with the
Union. This finding of animus is also reinforced by Respond-
ent’s prolonged withdrawal of recognition and its refusal to
bargain (especially where the Union had demonstrated such
an overwhelming level of support), and its demonstrated dis-
regard for employees’ Section 7 rights by its repeated partici-
pation in independent and numerous violations of Section
8(a)(1) and (3) of the Act, as discussed below.
Here, the factors set forth, as well as the showing dis-
cussed below that Respondent’s reasons for Ritchie’s termi-
nation was pretextual, all demonstrate unlawful motivation,
see Dorothy Shamrock Coal Co., 279 NLRB 1298 (1986).
Under these circumstances, I find that General Counsel has
met his initial burden by presenting a strong prima facie
showing, sufficient to support an inference that Ritchie’s
union activities were a motivating factor in Respondent’s de-
cision to terminate him on May 28.
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Once the General Counsel establishes a prima facie case,
the burden shifts to the Respondent to show that it would
have taken the same action even in the absence of union con-
siderations. See Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). In light of the General Coun-
sel’s strong prima facie showing, the Respondent’s burden
here is substantial. Accordingly, the testimony will be dis-
cussed and the record evaluated to consider Respondent’s de-
fense and, in the light thereof, whether the General Counsel
has carried his overall burden.
Respondent contends that the discharge took place because
its policy is that ‘‘resident neglect won’t be tolerated and is
grounds for termination’’ (its written policy states that ‘‘in-
tentional physical resident abuse or neglect’’ would be
grounds for termination. It also maintains that its progressive
discipline system is only a ‘‘guideline’’ which can be sus-
pended in serious cases and that Ritchie was terminated
under its policy because Ritchie ‘‘intentionally’’ had left a
resident unattended in the shower.
Supervisor and Assistant Administrator Fithian testified
that he discharged Ritchie because he didn’t believe Ritchie’s
explanation of what occurred saying that ‘‘based on his past
history’’ both before and after the start of union activity,
‘‘his word was not extremely reliable,’’ and that he believed
LPN Rowe because he would take the word of a professional
‘‘as being more responsible.’’
Ritchie had been employed as an aid by the Respondent
for over a year and had cared for and given Donald (who
is physically larger than Ritchie), showers on over 100 occa-
sions. His ‘‘past history’’ included two brief suspensions for
carelessness in April and May 1991 (under Respondent’s
policy, prior discipline remains current for 180 days for con-
sideration of progressive discipline). Ritchie has only 65 per-
cent usage of his right arm, however, this has not appeared
to have been a handicap that has affected his duties and the
record shows that he otherwise had developed a strong rap-
port with Donald, who was considered to be one of the more
difficult residents to care for.
In addition to Donald, Ritchie normally was assigned to
aid three other residents on the same shift. His prior dis-
cipline was for hopping the curb when he drove a vehicle
into the facility’s driveway and for leaving out a hair dryer
in a resident’s room. There is no indication that either inci-
dent involved a question of veracity. He received an evalua-
tion from Fithian in November 1991 and was rated high
enough to receive a pay raise. Otherwise, I find that he testi-
fied in a sincere and believable manner and I find that he
was a highly credible witness.
LPN Rowe testified in basic support of the incident report
he had prepared, however, his testimony was initially eva-
sive, especially in relation to his ‘‘professional’’ background
and he often was hesitant or inconsistent or unsure. For ex-
ample, on direct he first testified about Donald’s injury that:
‘‘It was a pretty good cut, skin tear. I can’t really recall.’’
He then testified that he accurately filled out an incident re-
port indicating Donald had a ‘‘laceration’’ on his head, how-
ever, the report notes an ‘‘abrasion,’’ a description consistent
with Ritchie’s testimony. Also, in answering a question about
how long it took to respond to Ritchie’s request for help he
said he ‘‘couldn’t say’’ and, when asked if it was less than
a minute, he again responded he ‘‘couldn’t say.’’
Significantly, when Rowe was asked when he graduated
from LPN school, he said he couldn’t ‘‘remember the date.’’
He then reluctantly admitted that the nursing employment
agency he worked for was his first job he received after
graduation (which apparently had just occurred), that his first
assignment to a home or hospital was to Respondent’s facil-
ity and that the incident occurred on his first day of work.
Rowe also indicated Ritchie said something about getting the
shampoo, but then qualified his statement and said that he
wasn’t sure and that perhaps he said that (he also admitted
that the shower stalls have the shampoo in them).
Ritchie was highly experienced in caring for Donald and
had no prior record of ever leaving anyone ‘‘unattended’’ es-
pecially while bathing them, yet Fithian chose to give full
credit to the assumptions of Rowe, a nonwitness, who did
not see Donald unattended and who had just started as an in-
experienced replacement for the suspended LPNs.
Here, it is highly likely that Rowe made several hasty as-
sumptions and jumped to conclusions that he was reluctant
to back down from due to his almost total inexperience and,
in effect, he incorrectly assumed Ritchie left Donald unat-
tended because Ritchie said he didn’t know what happened
and may have said something about getting shampoo.
Fithian rejected the more likely explanation given by
Ritchie and I find that Fithian’s reason, that it was because
Rowe was ‘‘a professional’’ is pretextual in light of Rowe’s
extreme lack of professional experience. The other reason
Fithian asserted was that he didn’t believe Ritchie was be-
cause Ritchie’s ‘‘word was not extremely reliable’’ based
upon unspecified ‘‘past history’’ both before and after the
start of union activity.
Here, one glaring aspect of Ritchie’s ‘‘past history’’ was
his statements on local television that Jones had recognized
the Union but reneged and that the employees had organized
because they loved the residents and wanted to make sure
they were cared for properly. This statement was made just
10 days before the discharge and I infer that management’s
and Fithian’s disagreement with the reliability of Ritchie’s
‘‘word’’ was based on his televised statements and was a
significant factor in the decision to discredit Ritchie’s expla-
nation.
Moreover, Fithian did not chose to classify the alleged in-
cident as ‘‘carelessness’’ as provided for in the policy guide-
lines or to effectuate the progressive discipline system. Re-
spondent’s disciplinary outline list:
Carelessness which could endanger the resident or other
staff. Examples: Leaving a resident unattended in any
area. Leaving out a straight edged razor.
Instead, the alleged offense was escalated into ‘‘intentional
neglect of a resident’’ and the most severe penalty possible,
termination, was immediately put into effect. Significantly,
on June 24, 1 month after Ritchie’s incident, Christa Viets,
one of the few employees who did not support the Union,
received a warning involving the same resident, when he
tipped over in his wheelchair after Viets failed to make sure
that another employee was watching. She was charged with
carelessness which would endanger the resident and given a
3-day suspension. Respondent’s records show that they cred-
1219OPPORTUNITY HOMES, INC.
ited her explanation that she had told other employees that
she was leaving, but no one had heard her.
Also, one of Respondent’s exhibits reflect that Twylla
DeBray was only warned in May 1990 for using excessive
force and roughness with residents and was not discharged
until she had a second occurrence for excessive force in a
2-week period.
Under these circumstances, I find that the Respondent’s
stated reasons for discharging Ritchie are not supported by
persuasive, credible evidence, and otherwise are pretextual.
Ritchie’s alleged ‘‘unreliable word’’ is not based on any ob-
jective criteria and I find that the Respondent seized on an
opportunity to elevate an accidental fall into the category of
a dischargeable offense because of Ritchie’s union activities,
activities emphasized by Ritchie’s television appearance a
few days earlier. The Respondent otherwise has failed to
show that Ritchie would have been discharged under these
circumstances absent his and the other employees’ union ac-
tivities. The General Counsel has met its overall burden of
proof and I further conclude that Respondent’s discharge of
this employee is shown to have been in violation of Section
8(a)(1) and (3) of the Act, as alleged.
C. Suspensions and Discharges of the LPNs
The Respondent suspended its entire staff of LPNs on May
18 and it appears that this action served as a prelude to an
apparent change from its outwardly passive, do nothing overt
against the employees attitude (except to formalize and in-
crease warnings), to a direct, confrontational approach
against union activist, as exemplified by Respondent’s deal-
ings with Ritchie.
Shortly after the Respondent’s apparent internal decision
to disavow Jones’ recognition of the Union, Jones requested
that Fithian make an investigation of the old personnel files
to review the past disciplinary actions against employees
prior to 1992. In February, Fithian began his investigation
and prepared a chart of all the disciplinary action taken on
all employees between 1989 and 1992. The chart showed
two persons terminated in 1989, eight persons in 1990, and
five in 1991. On April 22, 1991, one LPN, was terminated,
for ‘‘unprofessional behavior, and failure to follow policy’’
(smoking in the nursing station). She was the only LPN to
be fired because, as stated by the Respondent, the work
records of the other nurses were uniformly excellent prior to
January 24, 1992.
The Respondent claims that its record of discipline (in-
cluding its subsequent issuance of some warning to a few
persons it considered to be procompany), is ‘‘evidence of a
total lack of Union animus’’ and throughout Jones’ testi-
mony, she continually maintained that she had no idea who
the union organizers were. She further stated that she had no
idea who tried to sabotage the state survey, and didn’t have
the faintest idea which employees had filed charges with the
various state agencies. She also stated that she never equated
that the alleged sabotage and the Union’s attempt to organize
were related and she stated that when she used the term ‘‘or-
ganizers’’ or ‘‘pushers’’ in correspondence she had no names
in mind.
As discussed in section B, above, the overall record here
supports a basic showing of antiunion animus on the part of
the Respondent, a showing that is further tied in to a consist-
ent pattern of actions taken against many of those employees
who were publicly identified as union representatives (or
their alternates), of various departments. Most of the in-
volved LPNs were involved in specifically identified notori-
ous union activity. Briefly, Byers was the first named com-
mittee member and her name was often in the newspaper as
a union spokesperson, Redmond’s name was next to Byers
as alternate representative, both were standing next to Union
Representative Timko when Jones was presented with the pe-
tition and demand for recognition, and both thereafter contin-
ued to publicly act on behalf of the Union in seeking rec-
ognition. Milhoan’s home was openly known as the location
for union meetings. Lorena Howell was not called to testify
(she was recalled by Respondent in October 1992 and there-
after voluntarily resigned), however, the record shows that
she signed the petition and an authorization card, and was
given a warning by Nursing Supervisor Manning on January
28 at which she insisted that Redmond (the union representa-
tive for her shift) be present in the meeting. Otherwise, there
is ample evidence to support an inference that this mass lay-
off of all regular LPN staff was for the unlawful purpose of
discouraging union membership and, under such cir-
cumstamces, it is not necessary for the General Counsel to
prove the employer’s knowledge of specific employee activ-
ism, see Federal Screw Works, 310 NLRB 1131 (1983), and
also Alliance Rubber Co., 286 NLRB 645, 647 (1987), and
Superior Coal Co., 295 NLRB 439, 455–458 (1989).
Here, the evidence shows that the Respondent converted
the May 18 suspensions of the LPNs to discharges 30 days
latter, that none of the LPNs were given the opportunity to
defend themselves against any asserted deficiencies, and that
the Respondent used the services of costly temporary agency
LPNs in early June prior to the terminations. The timing of
these suspensions and terminations and the contemporaneous
terminations of union activists Ritchie and Yeager (discussed
below), at a time when the Respondent was seeking to avoid
acknowledgement of Jones’ recognition of the union and was
seeking the direction of an election, also tend to show that
Respondent’s actions towards the LPNs was motivated by
their strong union involvement and a desire to undermine the
Union’s efforts at the facility.
I find that these factors persuasively show that antiunion
animus was a motivating factor in the Respondent’s decision
to suspend and terminate these nurses and I further find that
the absence of a plausible and nonpretextual explanation for
its actions, as discussed below, further confirm the inference
of unlawful motivation and combine to support a conclusion
that the General Counsel has established a strong prima facia
showing that the employees’ union activity was a motivating
factor behind Respondent’s actions. As noted above and in
Wright Line, supra, the burden now shifts to Respondent to
show that it would have taken the same action even in the
absence of union considerations.
Here, Respondent’s defense is based on an elaborate at-
tempt to show that it validly relied on the findings of the
Ohio Department of Health’s (ODH) annual review and its
own investigation to conclude that the LPN had engaged in
willful misconduct that jeopardized both the well being of
the residents and the Respondent’s state certification and that
this misconduct justified their terminations.
I am aware that some (courts) have expressed a skepticism
regarding the extent to which an employer is willing to suffer
loss of business or other operational or economic losses in
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
order to delay or avoid the feared effects of employee union-
ization. While it may make little sense in an objective, after-
the-fact viewing, employers can be obstinate to the extreme
when faced with the challenge of unionization and they can
be willing to suffer preceived temporary losses or inconven-
iences in order to delay or avoid the perceived long-term ef-
fects that formal certification of a union might bring.
As unlikely as it might appear at first glance, I find the
record here supports the General Counsel’s contentions and
shows that the Respondent engaged in ‘‘indifferent’’ behav-
ior that intentionally or inadvertently ‘‘set up’’ circumstances
that created an apparent opportunity for it to seize on the re-
port of a state agency to justify significant retaliatory actions
against its LPNs that it otherwise had refrained from taking
(upon the admitted advice of its initial counsel), after its ini-
tial discriminatory reaction in issuing a series of employee
warnings.
Unfortunately, I also agree with the General Counsel’s as-
sessment that Administrator Jones ‘‘became upset, outraged
and paranoid over what had transpired,’’ and that, those feel-
ings were shared by Nursing Director Manning and ulti-
mately pervaded the entire organization.
Jones’ behavior is exemplified by her bitter letter of Janu-
ary 27 in which she reacts to the overheard unkind remark
of a single employee and to her perception that other em-
ployees were now avoiding eye contact with her. Manning’s
testimony shows that she also became so sensitive about the
employee’s perceived failure to initiate communication with
her that after the issuance of some early warnings in late Jan-
uary and March, she issued no further writeups and initiated
no meetings or discussions with her LPNs even though she
alleges generally that these employees were creating prob-
lems and refusing to follow orders. Manning testified that
she heard the LPNs were ‘‘out to get her’’ and discussed this
rumor with Jones. Incredibly, Manning took no actions to
correct any perceived operational problems and took a com-
pleted ‘‘hands off’’ attitude to any significant supervisory
function, apparently even refusing to review normal reports
and paperwork, stating that they ‘‘knew what they were sup-
posed to do’’ and that she ‘‘didn’t have to tell them.’’
While Manning admitted they all the LPNs previously had
been ‘‘good nurses’’ she also admitted she knew they were
all union supporters. Jones, however, continuously main-
tained that she had no idea they were behind the union orga-
nization, an assertation that clearly is at odds with nurse
Byer’s notorious behavior and with Manning’s testimony that
she had discussed this (as well as her observations that the
nurses were not doing their jobs), with Jones and Fithian.
It is clear that the LPNs as a group engaged in protected
concerted activities and, as a group, attempted to meet with
the administration about working conditions. Their request
were denied and thereafter they sought redress through com-
munication to various state agencies. Some of these com-
plaints were reflected in some of the citations in the ODH
survey.
During April 1992, the State conducted its annual survey
of the entire facility, a survey that had historically been con-
ducted around the same time each year. During past surveys,
the nursing department had gone through extensive prepara-
tions for the survey, which included meetings and reviewing
cue cards. Likewise, Milhoan had always reviewed the
records for documentation errors. However, prior to the 1992
survey, nothing was done in preparation.
After the survey, in which the facility received over 50 ci-
tations, Jones held a mandatory meeting of employees and
blamed nursing for sabotaging the records. The LPNs were
never shown the survey results and Manning admitted that
she never discussed the citations with the nursing staff and
never inquired of them about their conduct, testifying that
she did not do so because she believed their actions were in-
tentional.
Jones testified that she had reviewed the citations, and
speculated that the nursing staff was directly responsible for
35 percent of the citations. Byers, who received a copy of
the citations after the nurses were suspended, consulted with
various state representatives, reviewed the citations, com-
pared them with the Rules and Regulations which she had
received and prepared a summary (G.C. Exh. 63) which was
utilized by the LPNs in their successful presentation before
the State Bureau of Employment Services which bureau de-
cided the claimants were placed on disciplinary layoff not for
misconduct (based on a factual conclusion that the claimants
were not guilty of willful negligence nor misconduct in the
performance of their work). Byers’ summary indicates that
approximately 7 of 60 citations were attributable to nursing
services plus 2 with mixed responsibility.
In May, Jones hired Robb (who had previously been the
director of nursing prior to Manning) as quality assurance
nurse to look into the nursing department, review the cita-
tions, and audit all the nursing documents and charts ‘‘to as-
sess the blame.’’ Robb never talked to any of the LPNs,
never gave them the opportunity to explain any of their doc-
umentation, and never talked to any of the doctors involved.
Although there were 22 residents, she reviewed the charts of
only 6 residents. By May 18 when the LPNs were sus-
pended, it appears that she had only reviewed the docu-
mentation for two residents and she did not submit her sec-
ond report until May 19. She also testified that she made no
recommendation that the nurses should be suspended, but
continued her audit and then orally gave a report to Jones
on June 10. She turned in a typed report on June 17 which
began with this preface:
The attached information is a compiled report of the
nursing documentation including February through
some of April and May. This report includes the most
serious documentation errors made by the nurses as list-
ed below and serves as the back up documentation
needed to support their suspension from this facility
and subsequent termination.
Robb also testified that at some later date she reviewed the
charts of the remaining 16 clients after she had completed
her final audit. She testified that she found no problems with
their records and that they were up to standard.
Jones testified that no action was taken against any other
employees because of the citations and none were even given
warnings even though the psyche aide, according to Jones,
was responsible for 13 percent of the citations. Fithian admit-
ted that the surveyors expressed no more concern about nurs-
ing than they did about active treatment, however Jones testi-
fied that termination of the LPNs was her decision, based on
the quality assurance report, and that her decision had noth-
ing to do with any warnings the nurses had been given pre-
1221OPPORTUNITY HOMES, INC.
3 For example, one ODH citation involved followup care on an
abdomenal stoma on Donald which was a concern of the inspector
because it was red and irritated and they couldn’t find on the chart
where the doctor had been notified or the followup care. LPNs
Byers, Redmond, and Milhoan were all faulted for their participation
in charting Donald’s stoma care by not notifying the director of
nursing or a doctor. Byers credibly testified about ‘‘in service’’
training they had received concerning Donald’s stoma care (an ongo-
ing condition for drainage of his bowels), that her charting was con-
sistent with this training, that redness and drainage was a regular oc-
currence, known to the director of nursing and reviewed monthly by
the physician in his regular visit. Redmond confirmed her observa-
tion that the doctor visiting Donald twice during this time period,
and Respondent’s management knew of the regular physician visits
and had its own knowledge of residents. The Respondent, however,
insist, on brief, that this fact is ‘‘contradicted’’ by the survey report
that the stoma was not evaluated over a 3-month period. Then, rather
than explain the care record to the State or accept supervisory re-
sponsibility, it seized on this and other explainable items including
a syringing order, a diet order, and the appearance of a medication
error, and chose to assert intentional malfeasance on the part of the
LPNs without seeking or allowing any explanation.
viously. She also testified that she did not follow progressive
discipline, because the audit was ‘‘so monumental’’ that she
considered what the nurses did was intentional physical
abuse or neglect to the residents (even though, to her knowl-
edge, nothing serious happened to any resident).
Otherwise, Respondent’s ‘‘investigation’’ did not include
any input or opportunity for the LPNs to explain the citation
items to Respondent prior to their suspension, and although
Jones characterized the LPNs’ behavior in terms of ‘‘sabo-
tage’’ and ‘‘intentional abuse’’ and ‘‘neglect,’’ she showed
no similar concern for any responsibility at any supervisory
level, including Manning and herself.
The record shows that the nurses, as a group, were upset
with the practices in the nursing department and such things
as orders being altered, workloads, the unavailability of Man-
ning, and the belief that Manning had asked Redmond to lie
for her on several occasions. They had met and discussed
these problems and Redmond approached Fithian about them
but he exhibited no interest in the problems in the nursing
department (Fithian acknowledged that Redmond had talked
to him about Manning in January and said that Manning has
asked Redmond to lie for her, but he admitted he was not
concerned).
On January 29 Byers and Redmond met and wrote two let-
ters to Fithian and Jones, requesting that they meet with the
nurses to discuss the problems in the nursing department.
Redmond, who working that night, taped the letters to the
door of the main office and when she left that morning, she
observed the letters still taped to the door. Shortly thereafter,
Fithian approached Milhoan at the copy machine and indi-
cated that he had received communications from a couple of
nurses but that he didn’t know who to believe. Milhoan re-
sponded that there were problems in the nursing department
but she did not feel comfortable discussing it with him alone.
She further stated that since it was a group problem, they
should discuss it as a group. Fithian acknowledged having
some conversation with Milhoan at that time at the copy ma-
chine and that he had asked her what Manning had ever done
to make her so upset and why she felt they needed a union.
Fithian said he believed a union would hurt the facility, but
Milhoan stated that she had a different opinion. Fithian ad-
mitted he had asked the question about Manning because he
had heard rumors around the facility as to how the nurses
were treating and reacting to Manning and, under these cir-
cumstances, I find that Fithian had also seen the letters be-
fore he then confronted Milhoan.
Byers, Redmond, and Milhoan all testified that after they
got no response from the Respondent, they filed charges with
the Ohio Department of Health because of their concern for
their license and the welfare and safety of the residents and
because the Union had told the employees as to their rights,
including their right to act concertedly and to raise concerns
with various state agencies.
Jones testified that she did not know who had filed com-
plaints with the Ohio Department of Health, but inconsist-
ently also said she was pretty sure they came from nursing
because of the nature of the complaints.
Despite the Respondent’s elaborate effort to find fault with
the LPNs, both as a group and individually, I find it unneces-
sary to analyze each instance cited because it otherwise is
shown that these ‘‘reasons’’ were essentially documented
after the fact (Robb’s so called ‘‘investigation’’ was after the
suspension and the stated purpose of the ‘‘investigation’’ was
to justify a preordained conclusion). Moreover, the LPNs
were not given any opportunity to explain or defend against
the alleged deficiencies and the alleged deficiencies were
substantially explainable and not of a character that reason-
ably would be chargeable only to the LPNs or so significant
that they could be elevated to a level of ‘‘misconduct.’’ Oth-
erwise, I find that the nurses’ explanations, given at the hear-
ing where they finally had an opportunity, basically tend to
establish that they in fact had used prudent nursing care that
was not substandard or indicative of misconduct.3
Respondent’s reasons for finding misconduct and its over-
all reasons are not shown to be valid in the absence of any
meaningful investigation and it otherwise is clear that the
Respondent disregarded its own managerial responsibilities
by changing from its past practices of providing routine su-
pervision and preparation for the annual state surveys. It is
clear that the Respondent could have expended some effort
in responding to the ODH citations with probable valid ex-
planations (just as it could have reviewed and updated its
records even if this was no longer required by one of the
state agencies). It did not do so and instead accepted each
citation even remotely connected with the LPNs, placed the
blame almost entirely on the LPNs (not on other departments
or supervisors), and then selected a purge of all of its LPNs
as the remedy to satisfy the State’s desire for corrective ac-
tion.
Thus, in order to ‘‘improve’’ its service to its resident, it
replaced all of its regular LPNs, all acknowledged to be good
nurses and all mature and experienced with the individual
residents of the home, and replaced all of them with ‘‘tem-
porary’’ nurses, including those of the caliber of LPN Rowe
who was totally inexperienced as an LPN, let alone experi-
enced with the individual residents. I find that the Respond-
ent has failed to persuasively show that it relied on valid,
plausible reasons for its actions in suspending and terminat-
ing all of its LPNs. The Respondent’s reliance on the cita-
tions of the state survey and its own apportionment of blame
to the LPNs is not plausible in light of the overall cir-
cumstances discussed above and I find that the Respondent
has failed to rebut the General Counsel’s strong showing that
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it was motivated by antiunion considerations (as well as by
their concerted protected activity in filing complaints with
various state agencies), see Mapleview Nursing Home, 302
NLRB 211 (1991).
The General Counsel otherwise has met his overall burden
of proof and has shown that Respondent would not have
purged its entire staff of LPNs absent their strong leadership
roll in the ongoing union activities at the home and, accord-
ingly, I conclude that the Respondent’s suspension and dis-
charge of these employees violated Section 8(a)(1) and (3)
of the Act, as alleged.
D. Discharge of Donna Yeager
Donna Yeager, an employee since 1986, was named as the
day representative for the habilitation aides, on the posted
February 4 notice that listed the bargaining committee and
was observed on Fithian’s desk. Yeager also was involved in
the initial organizing campaign and obtained authorization
cards from other employees. As noted, in October 1991, she
held a position as an assistant supervisor. Fithian stated that
before 1992, Yeager’s work with residents was excellent, but
he alleged that after the Union appeared, he experienced
problems with her job performance.
On May 28 (after the regular nurses had been suspended)
the staff experienced problems with the resident involving
the med pass and loading residents on the bus, when the
ODH survey team was again in the facility. Yeager was
heard to say to another staff member that if the replacement
nurses had been trained properly, this would not have hap-
pened. When Yeager followed a troublesome resident to find
out whether or not he would be able to be placed back on
the bus. Robb, the quality assurance nurse, slammed the door
in Yeager’s face. Yeager wrote up the incident, which was
signed by three witnesses, and gave it to Fithian. Fithian read
it but said that it did not coincide with the account submitted
by Robb. He said that under the circumstances, he would
have to side with Robb. Yeager testified she answered:
‘‘Union,’’ and he said ‘‘yes,’’ and that he further said that
he was tired of the ODH survey team being in the facility
and that he was aware of an 800 number (for complaints),
being posted in the facility. Yeager admitted that she had
posted the number in the facility and had given the number
to other employees.
On the following day, Fithian gave Yeager a 5-day sus-
pension in the presence of the new habilitation coordinator,
Kathryn Fristic. Yeager returned to work after her suspen-
sion, and on June 10, was assigned six residents, including
Jimmy, a troublesome resident generally assigned one on
one. (Fithian testified that Jimmy was assigned one on one
many times because of his violent ‘‘behaviors’’ and subse-
quently was sent to another facility because of his behav-
iors.) While Yeager was on the couch with Joey (who was
having a behavior problem and was biting his nails), attempt-
ing to redirect his behavior by getting him to play a game,
Jimmy began to bang his head on the door and Yeager at-
tempted to verbally redirect him. At this point Fristic and
Richard Carrigan, the county case manager, came down the
hall and observed what was happening. Fristic told her to do
something. Yeager responded that she was attempting to ver-
bally redirect Jimmy and if Fristic would sit with Joey, she
would walk Jimmy. Fristic did nothing and eventually other
staff members helped Yeager.
Fristic approached Yeager and told her ‘‘don’t do that
again,’’ ‘‘don’t ask me for help in front of a case manager.’’
When Yeager started to walk away, believing Fristic was fin-
ished, Fristic called her back, said she was not finished and
told Yeager she was suspended.
Fristic testified that she observed Yeager for several sec-
onds and agreed that she, herself, took no action to help out.
She also agreed on cross-examination that she told Yeager to
get up to attend to Jimmy and that Yeager did so within sev-
eral seconds of being told. She also testified that she fired
Yeager because ‘‘she ticked me off’’ by challenging her au-
thority and because of Yeager’s insubordinate attitude by
asking Fristic to take care of a resident while Yeager was
taking care of another. Carrigan testified that he observed
Yeager say something to Fristic to the effect of ‘‘who was
going to take care of the patient she was sitting with.’’
Fristic was a newly hired supervisor who lacked formal
education beyond high school but had 11 years’ experience
working with the mentally retarded. She was hired by Fithian
in May and had only worked with Yeager on three occasions
prior to June 10 but asserted that Yeager was ‘‘just nasty in
her comment’’ and ‘‘tried to intimidate me.’’ Fristic also tes-
tified she was aware of Yeager’s previous suspension and
that she was told by Fithian it was because of her attitude,
for not cooperating, for being disrespectful. She then testified
that she did not know if she would have fired Yeager if
Yeager had not received the previous suspension.
Fristic spoke with Manning who prepared a typed memo
detailing reasons for termination which included the accusa-
tion that Yeager had ‘‘also failed to follow policy and proce-
dure pertaining to the welfare of a client that eventually lead
to a crisis situation for the resident’’ (this memo was given
to Yeager at her request).
Fristic testified that the staff just ‘‘blew me off’’ from the
very beginning of her tenure and was uncooperative and that
Yeager was that way more so than the rest. She said she
didn’t know and couldn’t recall if any of them were written
up for their actions, that she couldn’t recall any insubordina-
tion by Yeager that occurred prior to the discharge event,
and that she knew that on Yeager’s return from suspension
Yeager had guidelines to follow and ‘‘had to be cooperative
and change her attitude.’’
Fristic’s demeanor as a witness was crude and abrasive
and she herself testified that:
At first nobody was coming to me. I mean I was just
brand new. They didn’t know—you know, they didn’t
know my personality. They didn’t know how to take
me and then they started coming.
She also testified that she was hired by Fithian to make sure
the direct care staff was implementing ‘‘active’’ treatment in
response to items in the ODH citations and that she believed
that noncooperation from the staff was a result of those peo-
ple being for the Union.
As discussed in sections B and C above, the General
Counsel here also has established a strong prima facie show-
ing of antiunion motivation and the burden rest on Respond-
ent to show that it would have taken the same action even
in the absence of union considerations.
Here, I find that Respondent’s perception of ‘‘non-
cooperation’’ by the staff because of their union involve-
ment, influenced and preconditioned Fristic to act and re-
1223OPPORTUNITY HOMES, INC.
spond to her staff in an overly harsh manner which provoked
a response that was most likely one of caution or fear, be-
cause in Fristic’s own words, ‘‘they didn’t know my person-
ality. They didn’t know how to take me.’’ Yeager then was
discharged for having an attitude of uncooperation and this
‘‘attitude’’ was projected by management on all the em-
ployee union adherents, especially the activist. This per-
ceived ‘‘attitude,’’ however, was engendered, at least in part,
by Respondent’s own attitude of hostility and its policy of
noncommunication with employees. In Yeager’s case this
management attitude was further projected in a provocative
manner by Supervisor Fristic and I find that Yeager’s re-
sponse thereto was nonphysical, did not reflect any refusal
to cooperate, and did not rise to a level that could be consid-
ered to be insubordinate or so egregious that would have jus-
tified discharge under the circumstances. See Wilson Trophy
Co. v. NLRB, 989 F.2d 1502 (1993), affg. Wilson Trophy
Co., 307 NLRB 509 (1992).
Fristic, with apparent knowledge of Yeager’s union back-
ground and recent suspension, challenged Yeager over an in-
nocuous situation and became ‘‘ticked off’’ in a few seconds.
She immediately overreacted and suspended Yeager without
further reflection because Yeager allegedly had failed to be
cooperative and to change her attitude. That same day, with
little additional reflection, the suspension became a written
termination, which was prepared by Manning and endorsed
by Fithian and which pretextually added grossly exaggerated
conclusion that Yeager had failed to follow policy and proce-
dure that led to a ‘‘crisis’’ situation for the resident.
These circumstances fail to show a valid, plausible reason
for Yeager’s termination of even for her earlier suspension
by Fithian. And, as that suspension was not shown by Re-
spondent to be justified, it should not have been on her
record and it could not properly be an element to justify ter-
mination, rather than some lesser discipline, for the alleged
disrespect and lack of cooperation in the second incident.
In summation, I find that the Respondent has not shown
that it relied on valid and plausible reasons in its discipline
of Yeager and it otherwise has failed to show that she would
have received such discipline under these circumstances ab-
sent her and the other employees’ union activities. The Gen-
eral Counsel otherwise has met its overall burden of proof
and I further conclude that Respondent’s suspension and dis-
charge of this employee is shown to have been in violation
of Section 8(a)(1) and (3) of the Act, as alleged.
E. Allegations Involving John Tharp and the Position of
Habilitation Specialist
John Tharp was selected as the representative for the ther-
apy aides and was so listed on the notice posted in the facil-
ity and observed in management’s possession. He also fre-
quently wore the union petition T-shirt at work. Tharp started
with Respondent in January 1986 on the direct care staff, he
then became a rehabilitation specialist and was latter de-
scribed as a therapy aid in the physical therapy department.
In mid March Tharp, as well as several other employees, re-
ceived a written warning for failing to sign ‘‘in services’’ in
a timely manner. Several employees testified that in the past
there had been no time limitation placed on employees as to
when they had to sign in services. Tharp checked and af-
firmed that he had signed all the inservices on March 5 and
6, and then questioned Fithian because the warning was
dated March 9. Fithian became argumentative and began to
yell. Tharp left and Fithian later apologized.
Prior to April Tharp regularly worked 12:30 p.m. to 9 p.m.
providing residents with special therapy programs, but in
April Fithian told Tharp that he was implementing a plan to
dissolve the existing therapy department and to give Tharp’s
programs to a rehabilitation specialist. Tharp was offered the
option of working some programs on a split shift (apparently
not full time), or of going back to the direct care staff on
the 8 p.m. to midnight or the latter night shift. After a dis-
cussion with his wife he took the shift from 12 midnight to
8 a.m., however, his hours were reduced from 40 to 37.5
(subsequent to objections by the employees minutes were
added to each day’s shift to restore their normal hours to 40).
Fithian testified that in early March he determined on his
own to conduct a timestudy on Tharp. He did not tell Tharp
and he never told the Union. After his informal study, he
concluded that Tharp was not busy enough and on March 19,
he wrote a recommendation to himself to remove Tharp from
his position. (The record shows that Tharp worked with four-
five residents in the early afternoon when others were away
at school on other programs and that he then worked with
other residents after their return to the facility.)
Subsequently, Tharp was asked to train a ‘‘hab’’ specialist
who was unable to do the particular program Tharp had
done. After an apparent consultation with Fithian, nothing
further was done. It also appears that several of the special
programs done with specific residents (such as stretching var-
ious parts of the body that helped the physically retarded)
were thereafter discontinued.
Here, I find that the Respondent changed its past practices
concerning what constituted the timely signing of ‘‘in serv-
ices’’ (in effect, training or informational releases), without
notice to employees or the Union. I also find that because
of the timing and numbers of warnings issued, its action was
retaliatory in nature because of the Union’s recognition de-
mand. These warnings had a coercive effect on the employ-
ees’ Section 7 rights, especially those of employee Tharp, in-
asmuch as Fithian did not rescind Tharp’s warning even
though Tharp demonstrated that he had signed the inservices
previous to the warning date.
I also find no persuasive reason, other than Fithian’s self-
serving memo to himself, that would justify his decision to
effectively take away some therapy programs from the resi-
dents by eliminating Tharp’s previous position.
Under theses circumstances, I infer that Respondent deter-
mined to issue warnings to employees and to retaliate against
Tharp by removing him from his therapy position (Tharp de-
scribed his new direct care position as that of a babysitter,
diaper changer), because of his support of the Union and I
find that Respondent violated Section 8(a)(1), (3), and (5) of
the Act in this respect, as alleged.
The record also reflects that, after the survey, the Re-
spondent established the position of habilitation specialist.
Fithian established the criteria for the position (part time, de-
gree preferred, with courses in special education), assertedly
to correct a survey citation regarding a ‘‘lack of quality inter-
action between staff and residents. The first time the Union
was told of this position was when they were at the city hall
in Lisbon on April 15 to discuss an agreement for an elec-
tion.
1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The positions were never posted, although there were staff
members, including Tharp, who would have been interested,
as the habilitation specialists performed work that substan-
tially had been performed by other unit members. Although
Jones assumed that none were qualified for the new position
‘‘three of the four hired had a degree), Fithian admitted that
there were employees who probably would have been quali-
fied but he determined that they wouldn’t be interested and
he never asked them or opened the position for bidding.
As concluded above, the record otherwise supports an in-
ference that this action disregarded employee rights and
would not have been taken in this manner were it not for the
union activity. Respondent ignored its duty to deal with the
Union as the employees’ representative and, accordingly, I
find that it violated Section 8(a)(1), (3), and (5) of the Act,
as alleged.
F. Allegations Involving Gail Milhoan
LPNs Gail Milhoan and Loren Howell (who subsequently
resigned) were recalled to work in October 1992. Nursing
Director Manning testified that she disagreed with manage-
ment’s decision to bring them back and she also rejected
Milhoan’s request that she be given a reorientation.
On October 22 Milhoan closed the nursing station door, as
was the practice to ensure resident confidentiality, to give her
shift change report to Howell. She later learned that Super-
visor Fristic was outside the door as she did this. The next
day Manning issued an inservice directing that the door was
never to be shut.
On October 30, Milhoan was given a critical ‘‘letter’’ by
Jones which mistated the circumstances of Milhoan’s declin-
ing to drive Respondent’s large van (because of eyesight
problems). Respondent issued the critical letter without talk-
ing to Milhoan or otherwise investigating the circumstances.
On December 1, Milhoan was given an evaluation of 82
for the period from October 19 to November 19. Manning
stated she gave an evaluation only 1 month after Milhoan
was recalled because she thought it was appropriate.
Milhoan’s last annual evaluation prior to her discharge was
98. Milhoan asked Manning for specifics regarding her low
evaluation but Manning could not give her any. Milhoan also
was given a warning for not getting Manning’s permission
to trade schedules (which had never been the practice), even
though Manning approved the change afterwards. She also
was given a medication error report for an incident that oc-
curred on November 14, and which had been another nurses’
error.
On December 23, she was told that she would need a doc-
tor’s excuse for a 1-day absence (a change in policy).
On January 5, 1993, Milhoan called off work because she
was suffering from stress. She was unable to see her doctor
until January 7, who put her on leave. At this time, Manning
had resigned, and Milhoan called the new director of nursing,
Tammie Richardson, who said nothing. Richardson testified
she had been told about the Union and about Milhoan’s prior
discharge and the circumstances, by both Manning and Ad-
ministrator Jones. Richardson testified that she discussed
every step taken involving Milhoan with Jones and that she
thereafter wrote Milhoan a letter informing her that they
were unable to honor her calloff request for January 5, and
she was given a written warning. Also enclosed in the letter
was a warning for her report off work on December 5, 1992,
and for not completing her end-of-December reports.
Thereafter, Milhoan, her doctor, and Respondent began an
exchange of correspondence in which Respondent generally
refused to accept what was explained and progressively re-
quested more information.
When Milhoan called to return to work after 3 weeks off
due to her doctor’s orders, Respondent told her that ‘‘pol-
icy’’ required 5 days’ notice before she could return. After
returning she then was informed that she would have to have
a final letter from her doctor by the next Monday, or she
would not be allowed to continue to work. Milhoan worked
a 12-hour shift on the Friday before the Monday deadline.
Her husband was to review the letter at the doctor’s office
that Friday and call her for authorization of its release. When
her husband called the facility, Respondent refused to let him
talk to Milhoan. On Monday she explained the circumstances
to Jones and inquired whether it would be okay to have her
doctor mail the letter, which would cause it to arrive 1 day
after the deadline. Jones insisted that she pick up the letter
and hand deliver it that same day. Richardson stated that
even though Milhoan had finally provided doctor’s excuses,
the warnings remained in her file as she did not believe that
Milhoan’s reporting off for stress was an emergency.
Milhoan testified that in the past she had taken three peri-
ods of leave for stress or major surgery and had never been
required to bring in a doctor’s excuse or provide the docu-
mentation that Respondent demanded in January. At work on
February 25 (after the hearing had started and with Milhoan
in attendance), Richardson asked her what she found stressful
on the job and Milhoan explained it was all written in the
NLRB charges. After discussing some of the charges Rich-
ardson asked her ‘‘why we felt we needed a Union, why we
couldn’t solve problems in house.’’ Although Richardson de-
nied ‘‘interrogating’’ Milhoan, I find that her questions had
that effect.
Under these circumstances, including Respondent’s record
of animus and the fact that Milhoan previously was interro-
gated by Fithian about the Union, and for the related reasons
also discussed below, I find that the Respondent has not
shown plausible reasons for its dealings with Milhoan and I
find that the General Counsel has shown that the Respondent
has engaged in a pattern of retaliatory harassment and inter-
rogation that has interfered with her Section 7 rights and has
violated Section 8(1)(1), (3), and (4) of the Act, as alleged.
G. Alleged Violation of Employee’s Section 7 Rights
It is well established tht Section 8(a)(1) of the Act pro-
hibits interference with, and restraint or coercion of, employ-
ees in the exercise of their right to self-organization and that
an employer’s actions or threats of reprisals against employ-
ees if they select a union as their collective-bargaining rep-
resentative or related actions are classic examples of behavior
that interferes with employee’s Section 7 rights.
Here, the record shows that Ellen Price, a direct care staff
employee, attended a meeting in August in which Supervisor
Fristic told the employees that they were to go through the
chain of command with any problems and warned employees
that if they went to an outside source, they would be termi-
nated. On cross-examination Price stated that Fristic never
qualified that above statement to only situations that involved
patient confidentiality.
1225OPPORTUNITY HOMES, INC.
Fithian, who was at that meeting, said that Fristic told em-
ployees that they were expected to follow the chain of com-
mand and if they went outside the facility (with complaints),
they would be disciplined. He stated he and Fristic had dis-
cussed this prior to the meeting because of statements he had
heard were being said about clients within the community
and that Fristic latter clarified her remark, however, Fithian
could recall no specific statements. Fristic testified she stated
to the employees that if any confidential information about
residents left the facility, they would be terminated.
Susan Smith, who was employed as direct care staff, testi-
fied that on or about August 5, 1992, prior to a voluntary
staff meeting, she heard Fristic tell three night-shift employ-
ees, that if anybody went outside the facility with complaints
about the facility they would be terminated and that she was
going to tell this to the employees at the 9 a.m. day-shift
meeting.
Here, I find that the testimony of Smith and Price, who
are still employed by Respondent, is credible, that Fristic’s
remark was not clearly qualified and that the prohibition was
so broad that the remarks constitute a threat of reprisal
against any employee who exercise his or her right to go to
any agency, including the NLRB, to explain their concerns.
Acordingly, I find that this constitutes a violation of Section
8(a)(1) of the Act, as alleged.
Some of the remaining incidents discussed below might
appear to be marginal in their coercive effect if they stood
alone, however, that is not the case here and I find that be-
cause of the Respondent’s overall hostile, noncommunicative,
antiunion attitude towards its employees after the union rec-
ognition demand and because of its wide ranging, numerous,
and contemporaneous other violations of the Act, the inci-
dents discussed below are inherently coercive and restrictive
of employee Section 7 rights.
On February 11, in the same conversation in which she
gave Bilsky a warning for missing an ‘‘in service’’ meeting
Supervisor Buckley asked Bilsky if and why, she had signed
a union card. Here, the fact that the question was asked in
a disciplinary context demonstrates the coercive effect of the
question and I find that it constitutes unlawful interrogation
in violation of Section 8(a)(1) of the Act, as alleged.
As noted, several other employees received warnings
shortly after the January 24 demand for recognition and
Jones’ caustic letter of January 27. These include warnings
to Linda Joy as well as Howell and Richie. Although Re-
spondent gave some explanation for the warnings, because of
the timing of these warning (Howell’s was 2 months after
this event), I am not persuaded that the Respondent would
have resorted to formal warnings were it not for Adminis-
trator Jones’ strong reaction (which apparently arose after
she consulted with Respondent’s attorney or board of direc-
tors), and I conclude that these warnings were designed to
interfere with the employees’ newly expressed demand for
the right to bargain collectively.
Within a day or so after January 24, the Respondent
changed the locks on the doors to the main offices, the pay
telephone was removed and unlimited access to the copier by
the nurses was eliminated because of the change in locks.
Although Jones testified that the phone was removed because
of a renovation, Respondent did not contact Ohio Bell until
March or April to replace the phone and Jones acknowledged
that they then placed the phone on a wall that was not part
of the renovation. Respondent also prohibited employees
from wearing pins (they previously had worn pins such as
those for the Special Olympics), changed its policy in distrib-
uting checks whereby employees who worked the afternoon
and evening shifts were no longer allowed to receive their
checks early, and it also discontinued its policy of allowing
employees to receive cash advances on their checks (which
allowed employees to receive advances for hours already
worked 2 to 4 days early). Under all these circumstances, I
infer that such actions were in retaliation for the union activi-
ties engaged in by the employees.
On April 4, the LPN nurses received a clarification of
policies for the way in which they received overtime pay.
Prior to this time they received overtime pay for all hours
worked beyond their scheduled 36 hours. Under the clarifica-
tion they received overtime pay only after they worked 40
hours. Their calloff procedures were also changed to require
each nurse to find her own replacement. In the past, the
nurse on duty or the director of nursing would find a replace-
ment. Also, they were no longer permitted to use personal
days at their own discretion and were required to provide
doctor’s excuses if they missed 1 day. In the past, they, as
other staff members, only had to provide a doctor’s excuse
after a 3-day absence. Fithian testified that the direct care
staff only had to provide a doctor’s excuse upon returning
to work if they missed more than 2 days, and that this had
always been the policy, yet Respondent only changed the
policy to effect LPNs, persons medically trained and in the
best position to self-evaluate the need for a medical absence.
In February, Supervisor Buckley told the cooks that those
who refused to come in when called on a day off would have
a note placed in their file, a practice not previously followed.
These actions, as well as Respondent’s changing the hours
of certain employees and changing its policy regarding when
‘‘in service’’ memos should be signed are shown by the
General Counsel to have been done in an apparent spirit of
retaliation and otherwise are shown to have occurred without
serious justification at a time that closely links their occur-
rence with the Respondent’s policy and practice of avoiding
communication with the Union and the employees. These ac-
tions are therefore strongly coercive in nature and reasonably
tended to interfere with the employees’ Section 7, rights, and
they occurred at a time when the possibility of holding a
union election was pending and a time when the Respondent
had rejected its obligation to bargain with the Union that had
been recognized by its administrator. Accordingly, in each
such instance set forth above, I find that the General Counsel
has shown that the Respondent violated Section 8(a)(1) of
the Act, as alleged.
Although the complaint alleges certain instances of em-
ployee surveillance on the part of the Respondent (Jones
drove by Milhoan’s home when employees were having a
meeting and Fithian took notes when employees were wear-
ing or getting union T-shirts), each had an explanation for
the actions and the General Counsel’s evidence is too conjec-
tural to prove a violation of the Act in these instances.
Milhoan, however, credibly testified regarding circumstances
in which Supervisor Fristic was reported to have been listen-
ing at a door behind which Milhoan and Howell were talk-
ing, an action which resulted in a memo from Manning pro-
hibiting the closing of the nurses’ station door and I find that
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this constitutes surveillance in violation of Section 8(a)(1) of
the Act, as alleged.
H. Unilateral Changes in Terms and Conditions
of Employment
As discussed above in section A, the Respondent became
obligated to bargain with the Union on January 24, upon its
recognition of the Union as the representative of its employ-
ees. Moreover, even though it ultimately acknowledge a rec-
ognition of the Union on October 12, Union Representative
Timko credibly testified that prior to a first bargaining meet-
ing in December 1992, the Respondent discussed none of the
modifications or changes that it had made since January
1992 with the Union. Byers, who is on the negotiating com-
mittee and who has attended all the negotiations, also con-
firmed that none of the unilateral changes alleged in the
charges were ever discussed in negotiations and Fithian ad-
mitted that he had never talked to the Union about any of
the changes he made and Jones also admitted that the
changes that were made were never discussed with the Union
prior to October 1992.
The section immediately above sets forth numerous
changes in terms and conditions of employment that inter-
fered with employee rights. These changes were appropriate
subjects for bargaining that the Respondent never bargained
over with the Union and I find that its failure to do so was
a violation of Section 8(a)(1) and (5) of the Act, as alleged.
The record shows that Brad Martin, the maintenance rep-
resentative on the bargaining committee, had his pay cut
from $9.25 to $7.35. Inasmuch as he supervised no employ-
ees and he was stipulated to be in the unit, he is an em-
ployee within the meaning of the Act. The reduction of his
pay was unilateral and was not subjected to bargaining and
I find that it is shown to be a violation of Section 8(a)(1)
and (5) of the Act, as alleged.
In addition to the changes involving Tharp, discussed
above, the record also shows that cook Bilsky (who retired
in September and was a regular part-time employee every
other weekend and also was a vacation replacement) was
subjected to unilateral reduction in days worked. She never
was told or asked about any change but went in and saw that
a man was on the schedule for one of her regular days in
August. Buckley, her supervisor, admitted that she had re-
duced Bilsky’s hours and also testified that she never bar-
gained with the Union over this. Buckley also admitted that
she dealt directly with her entire staff (and not the Union),
in September 1992 when she sought their opinion on altering
their hours. The latter action is, as alleged by the General
Counsel, a separate violation of the Act and, accordingly, I
find that the General Counsel has shown the Respondent has
engaged in direct dealing with employees and otherwise has
unilaterally changed terms and conditions of employment
without bargaining with the Union, all in violation of Section
8(a)(5) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union, Service Employees International Union,
Local 627, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act and the following em-
ployees of Respondent, the unit, have, since January 24,
1992, constituted a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time licensed practical
nurses, habilitation, activity, therapy, and psyche aides,
dietary, social service, housekeeping and maintenance
employees and seamstresses employed at the employ-
er’s Lisbon, Ohio facility, but excluding the adminis-
trator, program director, director of nursing, dietary
manager, social services director, registered nurses and
all professional employees, guards and supervisors as
defined in the Act.
3. On January 24, 1992, Administrator Mary Jane Jones,
for the Respondent, recognized the Union as the employees’
collective-bargaining agent.
4. Subsequent to January 27, 1992, the Respondent unilat-
erally withdrew recognition and thereafter failed and refused
to recognize and bargain collectively with the Union until
October 12, 1992, and thereby violated Section 8(a)(1) and
(5) of the Act.
5. By unilaterally implementing changes in terms and con-
ditions of employment after January 24, 1992, including
disocntinuing its early check distribution policy; removing
the pay telephone; discontinuing nurses’ access to the copy
machine; changing the starting times and hours of work for
various employees; changing its policy regarding signing
‘‘in-service’’ memos; maintaining lists of employees who de-
clined to work as fill-ins; discontinuing its cash advance pol-
icy; prohibiting employees from wearing pins; requiring
nurses (LPNs) to find their own replacements; requiring
nurses to provide a doctor’s excuse for any absence; chang-
ing its practice regarding overtime pay for nurses; creating
and thereafter failing to post the position of habilitation spe-
cialist; reducing the hourly rate of pay for Brad Martin;
eliminating the position of physical therapy aide occupied by
John Tharp, and changing the hours of cook Eleanor Bilsky,
while failing to notify the Union or bargain over these
changes, Respondent has interfered with employees’ Section
7 rights, and discriminated against employees because of
their selection of the Union as their collective-bargaining rep-
resentative, and thereby violated Section 8(a)(1), (3), and (5)
of the Act.
6. By threatening to enforce policy and work rules, engag-
ing in unlawful surveillance, interrogating employees, threat-
ening employeees with discharge because and/or if they en-
gaged in union or protected concerted activities, Respondent
violated Section 8(a)(1) and (3) of the Act.
7. By suspending Kathy Byers, Lorena Howell, Gayle
Milhoan, and Carol Redmond on May 18 and thereafter ter-
minating them on June 12, 1992, because of their union or
protected concerted activities, Respondent violated Section
8(a)(1) and (3) of the Act.
8. By terminating the employment of Blaine Ritchie on
May 28, 1992, Respondent violated Section 8(a)(1) and (3)
of the Act.
9. By suspending on May 29, 1992, and thereafter termi-
nating the employment of Donna Yeager on June 10, 1992,
Respondent violated Section 8(a)(1) and (3) of the Act.
1227OPPORTUNITY HOMES, INC.
4 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusion, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them be deemed waived
for all purposes.
10. By issuing disciplinary warnings to employees Lorena
Howell, Linda K. Joy, and Blaine Ritchie, Respondent vio-
lated Section 8(a)(1) and (3) of the Act.
11. By engaging in harassment directed at Gayle Milhoan
after her return to work in October 1992, Respondent vio-
lated Section 8(a)(1), (3), and (4) of the Act.
12. The Respondent otherwise is not shown to have en-
gaged in conduct violative of the Act as alleged in the com-
plaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
With respect to the necessary affirmative actions, it is rec-
ommended that Respondent be ordered to offer Kathy Byers,
Carol Redmond, Blaine Ritchie, and Jim Tharp reinstatement
to their former jobs or substantially equivalent positions, dis-
missing, if necessary, any temporary employees or employ-
ees hired subsequently, without prejudice to their seniority or
other rights and privilieges previously enjoyed, and make
them as well as Eleanor Bilsky, Brad Martin, Gayle Milhoan,
Lorena Howell, and Donna Yeager whole for any loss of
earnings they may have suffered because of the discrimina-
tion practiced against them by payment to them of a sum of
money equal to that which they normally would have earned
from the date of the discrimination to the date of reinstate-
ment in accordance with the method set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).4
The Respondent also shall be ordered to expunge from its
files any reference to the suspensions, terminations and ille-
gal warnings given and notify the employees in writing that
this has been done and that evidence of the unlawful warning
will not be used as a basis for future personnel action against
them.
Respondent also shall be ordered to bargain in good faith
with the Union for the period required by Mar-Jac Poultry
Co., 136 NLRB 785 (1962), to ensure that the Union and the
employees derive the benefit of the Union’s 9(a) status under
the Act.
Having found that Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally withdrawing recognition and
thereafter failing and refusing to recognize and bargain and
by failing to bargain in good faith by unilaterally implement-
ing changes in terms and conditions of employment, it is rec-
ommended that on request of the Union, Respondent be or-
dered to rescind all or part of any implemented changes and
to bargain in good faith with the Union as the exclusive bar-
gaining agent of the above appropriate unit of its employees
with respect to their wages, hours, and other terms and con-
ditions of employment and embody any understanding
reached in a signed agreement.
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Opportunity Homes, Inc., Lisbon, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act
by interrogating an employee about union support or union
activities, by creating the impression employees’ union ac-
tivities are under surveillance, by threatening to enforce pol-
icy and work rules and threatening unspecified reprisal or
discharge because of or if employees engaged in union or
protected concerted activities.
(b) Interfering with, restraining, or coercing its employees,
discriminating against employees because they joined or sup-
ported a union or unilaterally and without bargaining effect-
ing changes in terms and conditions of employment by dis-
continuing its early check distribution policy; removing the
pay telephone; discontinuing nurses’ access to the copy ma-
chine; changing the starting times and hours or work for
some employees; changing its policy regarding signing ‘‘in-
service’’ memos; maintaining list of employees who declined
to work as fill-ins; discontinuing its cash advance policy;
prohibiting employees from wearing pins; requiring nurses
(LPNs) to find their own replacements; requiring nurses to
provide a doctor’s excuse for any absence; changing its prac-
tice regarding overtime pay for nurses; creating and there-
after failing to post the position of habilitation specialist; re-
ducing the hourly rate of pay; and eliminating the position
of physical therapy aide.
(c) Suspending, terminating, or issuing disciplinary warn-
ings harassing, or otherwise discriminating against any em-
ployee because of or in retaliation for their engaging in union
activities or other protected concerted activity.
(d) Unilaterally withdrawing recognition of Service Em-
ployees International Union, Local 627, AFL–CIO and fail-
ing and refusing to recognize and bargain in good faith with
the Union as the exclusive bargaining agent of its employees
in the following appropriate unit:
All full-time and regular part-time licensed practical
nurses, habilitation, activity, therapy, and psyche aides,
dietary, social service, housekeeping and maintenance
employees, and seamstresses employed at the Employ-
er’s Lisbon, Ohio facility, but excluding the adminis-
trator, program director, director of nursing, dietary
manager, social services director, registered nurses and
all professional employees, guards and supervisors as
defined in the Act.
(e) Unilaterally implementing changed in terms and condi-
tions of employment without first notifying or bargaining in
good faith with the Union.
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(f) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action neccessary to ef-
fectuate the policies of the Act.
(a) Offer Kathy Byers, Carol Redmond, Blaine Ritchie,
and Jim Tharp immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, and make
them, as well as Eleanor Bilsky, Brad Martin, Gayle
Milhoan, Lorena Howell, and Donna Yeager whole for the
losses they incurred as a result of the discrimination against
them in the manner specified in the remedy section of this
decision.
(b) Expunge from its files any reference to the warnings,
suspensions, and discharges of these employees as well as
Linda Joy and notify them in writing that this has been done
and that evidence of the unlawful discharge and warning will
not be used as a basis for future personnel actions against
them.
(c) On request, rescind all or part of the unilaterally made
changes in terms and conditions of employment and retro-
actively restore preexisting terms and conditions of employ-
ment and, on request, bargain in good faith with the Union
as the exclusive bargaining agent of the above appropriate
unit of its employees with respect to their wages, hours, and
other terms and conditions of employment and embody any
understanding reached in a signed agreement.
(d) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all records,
reports, and other documents necessary to analyze the
amount of backpay due under the terms of this decision.
(e) Post at its Lisbon, Ohio facility copies of the attached
notice marked ‘‘Appendix.’’6 Copies of the notice, of forms
provided by the Regional Director for Region 8, after being
signed by Respondent’s authorized representative shall be
posted by Respondent immediately on receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.