The Methodist Home

National Labor Relations Board - Board Decisions

Nov 21, 1980

253 N.L.R.B. 458 (N.L.R.B. 1980)

DECISIONS OF NATIONAL. LABOR REI.ATIONS BOARD
The Methodist ome ad Service Employees Inter-
national Union, Local 579, AFL-CIO, C,C.
Case 1 1-CA--7134
November 21, 1980
SUPPLEMENIAL DECISION AND
ORI)ER
BH CItAIRMAN FNNIN(; ANI) MI:MBItRS
J NKINS NI) TRtIISl)AI.. i
On April 15, 1980, Administrative Law Judge J.
Pargen Robertson, pursuant to an order of the
United States Court of Appeals for the Fourth Cir-
cuit' remanding the Board's Decision and Order
issued on January 27, 1978, in the instant proceed-
ing,2 issued the attached Decision. Thereafter, Re-
spondent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations 13oard has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, a'
and cl(nclusions 4 of the Administrative Law Judge
and to adopt his Recommendations.
5't, F 2d 11'73 IlTe1 l
- 234 NlIRH 535
:R p lldellt c itllcenliis tat nlany i1i te Ad Itll istrali c I al Jitdge's
filidilg ad CloTIclnsl areit 1ased upon "arbilrary rejectilons If Ltltli'pii-
Cd e idce IIC sglisel .1 reihility dclirinlillnaii" Upon calrful exannl-
naloi of the Adnillisiratic law: Judge's )ccision and the enltire recor d,
v., fdl( 1iii) iTierit itO a i ticrilion tli tI he AdniitStraitie Is Judges
ilterpretaltilon of evidence illnd his credihility findings show hiasand pii P
udice I urther, we lotle thalt t is the Board's eslahlished phlics I to,
o1 Clil uC LII adillil;ll. law juIdge rlIUltIiOn1 ItIh respectI t r(li
hilit uess t1le cleir jprepondtierianie it a.ll of the relcvanl c,,idc riirliI cI)
inccs us thail Ith restlutilon are ilclorrecl .Slundard air 'aJl 'Pnu/ s/.
Inc.. 91 NRII 544 (195(), calnd 18K :.2d
3
(12 13d Cir. 1951) 11 ligilt I0t
Respoletlleil' clilcnliiOlln, we have carlll y cxnamillned te Ic ,d til 1f11i
no basis f reversing he Admilistrailve Ilaw Judges credihilit r u
lions adlitii. e find io ierit t Respondenit's Ciiteltiloll that Ihe
Admin itrlatl e I Judge, i eaching his credibility resolhins, il l-
properly relied upon l it' aIlidalil itf employee Karin Ulmer takenll urinig
tile iseStigaltiln f ihttiiit011 II ie tinderlyinig repreenialiionI plocttced
illg l/vin J B/arl inl ('i, t.l 23h NIRB 242 (197K)
4 Respondetll ccep t the Administrative aw Judge's reliance oin
the testimonly of cllpl see C arlc Brtlwn in reaching his faclual lilditgs
concerning anll April 28, 1977, ellersalon which Resplonden assel,
connect the alleged objecclionahle "knife incident" to the Uion or the
election Relyinrg oll Broln's testim ony Ihat she had no recollectionl ol
the clronversalion, the Adnl tistratie Law Judge fiound that lro vtn iwas
not present during tile conllersation at which a picket line was discussed
and he concluded, inter aita. that there is insufficient es idence to ronnect
the kife incident Ilo the Union or the election r to finld that tihe incident
cast a cloud ,f fear or apprehensioti over the election sufficient for it ti
be said that it might have influenced the result Even if Brown's testimo-
nv is conlsrued as a failure to recall the conltent of the April 28 convl ersa-
titon rather than a denlial of her presence, we agree with the cnclusilons
tif the Adrnirlistratie Law Judge. The fact tat Brotwn had 1it rco llcc-
lioln f the suhject matter discussed during the cnversation make, it ull
likely that as a result thereof she connecled the knife icidenll wilh the
Union or the election Further. ias notel hy he Adtlinitrlti c Ila,
Judge, BrFirn to ld eniplsec Ardie ( rtr about Ihe knife intcidifrt hiut
said olhing to arl whitch t otld camile t that cidentlet t Ih l iiOll or
the eleclion
253 NLRI No. 55
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board reaffirms its Decision and Order
issued in this proceeding on January 27, 1978 (re-
ported at 234 NLRB 535), and hereby orders that
the Respondent, The Methodist Home, Orange-
burg, South Carolina, its officers, agents, succes-
sors, and assigns, shall take the action set forth
therein.
I)ECISION
SI A I1MI NI 0) 11 tIl. CAS
J. PAR,ILN ROH RISON. Administrative Law Judge:
Ilhis matter was heard in Orangehurg, South Carolina,
1on Januar 8 1980. The charge as filed by the Union
nilt Augusi 2, 177. A colplaint issucd on September 20,
1)77, alleging that Respondent iolated the Act by refus-
ing to bargain with the Unioni followinlg the Union's cer-
tification as bargaining agent of Respondent's emplosees.
Pursuant to the General Counsel's Nlotion for Summary
JudgIllent the Board, by Decision and Order, dated Jan-
uary 27, 1978,, granted the General Counsel's motiol
and found that Respondlent had unlawfl'ully refused to
recoglize and bargain ith the Union i violation of
Section 8(a)(1 and (5) of the Act. Subsequently, on Peti-
tion for Review and Cross-Application for Enforcement
of a D)ecision and Order of the National Labor Relations
Board. the United States Court of Appeals for the
Fourth Circuit, it an April 19, 1979, decision, 2 denied
enforcement of the Board's Order, and remanded the
case to the Board. On September 19, 1979, the Board
issued an Order reopenlinig the record and remanding the
proceeding to the Regional l)irector for hearing, in
which it directed these proceedings reopened and that a
full hearing be held on Rcspondent's objections to the
election, consistent ith the opiniton of the circuit court's
opiion, ad that such hearing be held before an adminis-
Irative law judge. On October 23, 1979, the Regional Di-
recttr for Region 11 issued an order reopening case, re-
voking certification, order consolidating cases, and
notice of hearing.
On September 16, 1976, the Union filed its petition in
Case I 1-RC-4251. The parties' Stipulation for Certifica-
tionl Upon Consent Election was approved by the Acting
Regional Director on October 10, 1976. Subsequently
Respondent withdrew its agreement to the Stipulation
for Certification Upon Consent Election, and, on No-
vember 2, 1976, the Regional Director issued an order
withdrawing approval of the Stipulation for Certification
Upon Consent Election and car liing election, and
notice of hearing. Following a h, lnig, the Regional Di-
rector issued a Decision and Direction of Election on
December 23, 1976.: On April 28, 177, a secret-ballot
214 NI RIH 535
-2'}{- t Id 1171
D u)u ring lie hertilg, tIl prile.s sili l.'lei 11; tlie hbargining ulnitl C,-
hlahlst'd h~ thc I)ecionil, and Di r )lrck'ln(1 (t' f .iletin "a.% l 11 ap iiprolprialte
tIl [ hal lllll is
( o'ltrtu'd
45X
ME IFH()ISI IH()M4
election was held, with the result: there were approxi-
mately 164 eligible voters, there were no void ballots, 77
votes were cast for the Union, 74 votes were cast against
the Union, and there were 4 challenged ballots. he
challenged ballots vere sufficient in number to be deter-
minative. On May 5 Respondent filed timely objections
to the election. By a Supplemental Decision and Certifi-
cation of Representative, which issued on June 9., 1977.
the Regional Director, overruled Respondent's objec-
tions, sustained the challenges as to three of the four
challenged ballots. found that the fourth challenged
ballot was no longer determinative, and certified the
Union as exclusive representative of all the employees in
the above-mentioned unit. On June 18, 1977, Respondent
filed with the Board, the Employer's request for revies
of the Regional Director's Supplemental Decision and
Certification of Representative. The Board, b tele-
graphic order dated July 1, 1977, denied the request of
Respondent on the ground it raised no substantial issue
warranting review. Subsequently. Respondent tested the
Union's certification by refusing to bargain. Respondent
contended, in part, that the Regional Director, and the
Board, erred by not directing a hearing on Respondent's
objections to the election. By its above-mentioned opin-
ion, the Court of Appeals for the Fourth Circuit agreed
that Respondent was entitled to a hearing o its objec-
tions. Therefore, the instant hearing was directed.
During the hearing herein Respondent offered e\ idence
in support of its Objections 1, 3, and 4.4
All licensed practical rllrses, harge nllrses nur se, aides, ordcrhli,.
hostesse , activities aid,. he.'keeping. dictars lilldr 1 and r1aIlll,-
nance enploees at tihe employr', ()Orangebhiurg. South ('arolina. -
ciit), hut excluding all office clerical emplisees. guards and su Iper I-
sor a defi ned in the Act
4 Those ohiecliolln, read
I Approximately tvlo hours before the first ,otilig period, an r
ployce knlowin ito be ery actlc t)11 behalf f Ihe Ptitiolnel tliellit-
ened another employee to he against llnloniatlion for thie nmploer's
employees the threat involed pointillng a large knife at the second
employee's throat and lower abdomen accompanied b a threaltening
statement The threat instilled a great fear in the employc to . hich
it was diretied as well as mI the mans other unit emploees i ho
either witnessed the incident or learned of it shortly thereafter
This threa: was intended Ito and did eriously disrupt at a critical
time. the conditions necessary for a valid election and anilIunled to
coercioi and intimidation of anti-union employees
l I)uring the first oting period between 215 pm. and 3:45 prni
two agents of the Petitionor positiolned themselves on the -mploy-
er's property near the outside entrance to the voting area and am-
paigned throughout the voting period These agents stopped and
talked with employees who were on their way to sle The Pelilltion-
er's agents were positioned in such a manner that they could not he
observed from the administrative area of the Employer's facility and
the Employer was not in fact aware of their presence until hortly
before the irst voting period ended Their position as also uch
that all off dulty employees coming to vote would be required t pass
closely by them on their way to the oting area
4. Two agents of Petitioner conducted a campaign of haralss, mnt
and coercion toward a fellow' employee after learning of this em-
ployee's anti-ulioin sentiments The two
(
agents of Petitioner ere
present when this emploee openly stated her antl-liniln polnri
Prior to that time there had been no difficulties betv een this eilplo -
eec and the lPetitioner', agents How ever, upon learning f the rti-
plosee's antl-uirliti feelings, etitoner's agent hbegan to harass aid
cierce tier in her dails ai,iti s At onlle point, olter tf Petit tllor'
agents grabbed this emlployee and threatened hlr, releasing hicl r nl
when Ihec heard ,omelente approaching
Upon the entire record ad from my observations of
the witnesses, and after due consideration of the brief
filed by Respondent and a statement filed hy the Union.
I hereby make the following:
FINDIN(S ANDI CONCI SIONS
The Evidencet
Although the unfair labor practice fiictual allegations
are not in dispute, Respondent contends it has no duty to
bargain. Respondetnt, in ad ancing that argument, relies
on its contention that the April 28, 1977, election should
have beenl set aside due to the Unioni's objectionable con-
d tic t.
Therefore, pursuant to the Board's "Order Reopenting
Record and Remanding Proceeding to Regional D)irector
for leariig," the sole factual issue to he conlsidered in
these proceedings is hether the evidence jusltfies sus-
taininig Respondent t s objection to the elect ion.
(a) Ohje'('o r 1: In reviewing the Regional )irector's
refusal to accord Responldent a hearing on its objectios.
the Court determined that ()bjection 1 raised serious fac-
tUal issueS. TIhe alleged ()hbjectionable conduct arose out
of anl incident wvhich occurred o the day of the electio.
April 28. 1977.
1hi1. ,hlt 1' 11lls hlIils1niellt an1d11 cIctrl1111 xtas clearly to iilu-
encc this ertiploe c'. solc And it l sersc is iian ca;irliplt to oilhers
w l} lppscd P'cinililIe A sluch 1I antiliue t Illegail ad rllpropcl
itlnrilldlatiorl ald rciralll s Illtch .affei ld tue rcsulis it' lI- tlction
Respondenrt, in its brieft ihleted Ct'uiicl flr ( llenral (Iounsel's
coiduct dliring the hering I hreh! i.eriule that ihbl'ciiol I oh,ered
CItiisel itlo (ie nerai (i'lIlsel' Ihrllihout [t hea ring lie conllltctil hlltl-
,self i full aclrd \itlih a.il ,.table st.rdalardls anrid lli applicabhc rules land
ti l ithe hIearing, ad iagin il Its rief, Respondlt qL ul.thImed us tl
risdiction In Its cnitCnitun til this mattiler did nt pruierlts nvs an
tllir labor prictict pr i.dil i Rcrtllsponden ionllndled lIhat i his lter
illnx ls r's itl ils ohbectiOn I,, liet' lection ill the lrersenlalltil Ca,,' p"'
At hlle hearing. s)iie Ctlnfusion deI cliped ils a restillt if Ith Recglt.iJ
Director's "Order Reipenilng Case, Riking Certificalin. Order Coitn-
stlidating Cases anti Notice of Hearing " It appears the Regional I)ire
Itr erred in issuinrig that Order The Regional Director also erred i re
eoking the certlficatilon
The Hoard's IDecisil iln d ()rder, ,,hlch is ced illt 234 NI.RH 53s i
olxcd only Case 11 CA 7134 Therefre, the action of Ihe U'nitell Sltes
Court of Appeals for thi Fourtlh Circuit, alxor involed nil y one Icas. I
CA 7134. and it was Inly that ase which was remanded to the Hoard hs
the circuit court Consequently, the subsequent Order of the Hoard,
which reopened he record. involled only one case, II CA-7114 and
that as the onI caste ihich was cited by the Boa.lrd in the caption of
that Order t'hiatl rder relpenrilng r-c rd and remanding proceeding tg
the Regional Director fior hearing limited the scope of the Regional I)i
rector's responsihility to Ilie fiilltiri g.
IS It HtRIttR (Il)t RHit) that this prioceeding be. and it hrebs s.
remanded to the Regionlal D)irector for Region II for the purpose of
arrallging such heatring, and hlti the s;id Regional Direclor hbe. and
he hereby ix. authorized to issue ntice thereof
Therefore, it appefirs that the Regiirnal Director exceeded the scipe it
his authority in several respects. Hioecver, it is clear that his errorr h e
ilnt[ prejudiced a ne's rightls r Illportultlie H is errors were proc-
dulral onil and the eff'ect of hi' toalrtd's ()rdtr. v hllch a is fir a isritliu
tralse l.a, jludg t tconduct full hearing oi Respoldeit's bltuti.ion to
the t' cttiul il Case I1 R 42' 1, i, a lphlished hrecfore R-
spoindr1's coneivilion in this rgard is lacking I eri til id herths
oserrtlde (Sce '/ii'l ... itlnu fi tlitlurin' -eroipie / ljolimn f J/ - ih /,toidi
trl'. Irnc, 21() NI RHI 715 (il977)) I'riediirailly, Ih' only mailer Insolndl
is he illite iabilr pi.n llt '(.teldlig
45 Q
DECISIONS OF NATIONAL IABOR RATIONS OARD
At approximately 11 or 11:30 a.m. on April 28, 1977,
employee Betty Welfare approached employees Louise
Phillips (Louise Prince at the time of the incident) and
Carole Brown with a kitchen knife. The knife was ap-
proximately 12-14 inches long, with a white handle and
a serrated blade. Welfare pointed the knife toward Phil-
lips' throat and said something to the effect, "Prince said
nobody around here can cut her a-; what are you going
to do, I've got you now." Carole Brown said, "Why
don't you just split her from the split up." The employ-
ees laughed or smiled, Welfare told Phillips that Phillips
did not have to worry about Welfare using a knife be-
cause she had never harmed anyone in her life. No em-
ployees witnessed the incident other than Welfare,
Brown, and Phillips. 7
Although the above-mentioned incident occurred on
the day of the election, the evidence is clear that there
was nothing said or done during the incident, which
would connect the incident to the election or to the
Union. However, Respondent contends that the incident
was connected to the election and it points to an April
28 conversation which, it argues, supports that conten-
tion.
The particular conversation which Respondent con-
tends connects the knife incident to the Union was
touched upon during the testimony of several witnesses.
None of the witnesses agreed on what occurred during
that conversation.
Louise Phillips, who was the object of the knife inci-
dent, briefly touched on an earlier conversation during
her direct testimony. Phillips was asked by Respondent's
attorney, if, on April 28, she had a conversation with any
other employees regarding the union. Phillips replied
that she had a conversation at the desk at the nursing sta-
tion in the Clinksdale Building. Phillips testimony re-
garding the conversation continued:
Q. [By Respondent's Attorney] Do you recall
who was present for that conversation?
A. [Louise Phillips] There were a few aides that
were working that day plus Ms. Brown.
Q. And do you recall who the aides were?
A. Barbara Glenn, Pearly Hall, Karin Ulmer. I
don't remember if anyone else was there.
MR. FAVORS [counsel for General Counsel]:
Excuse me, could I get the names again.
MR. ScHwturzER [Respondent's Attorney]:
Pearly Hall, Barbara Glenn, Karin Ulmer and
Carole Brown.
Q. [By Mr. Schweitzer]: Do you recall if Mrs.
Betty Welfare was there?
A. Yes sir, she was there too.
Q. Ms. Phillips to the best of your recollection
what was said in this conversation?
A. Well, it was mainly about the union and what
it would make happen if a picket line, if the union
made a picket line.
Q. Did you participate in this conversation?
However, employee Karin Ulmer testified that as she was coming
out of a room she saw Welfare standing at the nurses desk hetween
Brown and Phillips with a knife and she saw Welfare turn around and go
toward the kitchen
A. Well, I did. But I do not recollect all the con-
versation because I was working at the time and I
had my mind on my work.
Q. [General Counsel]: What was discussed about
the union?
A. Like I said before, about what if there was a
picket line and it was discussed-Betty made it
clear she was for the Union.
Q. Ms. Welfare was there talking about it at that
time?
A. That's right.
Q. What did she say about the picket line?
A. I do not recall what she said.
Q. All right, what did Ms. Glenn have to say
about the Union?
A. They made it clear that they were for it and
that they were going to vote for it because they had
on Union buttons.
Q. Okay, do you remember what Ms. Hall said?
A. No I do not.
Q. What about Ms. Ulmer? Did she say anything
about the Union?
A. I'm not real sure.
Q. What about Ms. Brown? Ms. Carole Brown?
A. I don't recall.
Q. [General Counsel]: What did you discuss
about the Union in the conversation?
A. What did I discuss?
Q. Yes, what did you say about the Union, about
the picket line; crossing it and so forth?
A. I don't recall anything about crossing it. I
recall saying that I was not for the Union and that I
was not going to vote or it.
Q. Wasn't it Ms. Ulmer that brought up the con-
versation about the picket line and what would
happen if she had to cross it?
A. I don't recall who brought the subject up.
Q. Do you remember saying in that conversation
that you were not afraid and that no one could cut
your a-?
A. No, I do not.
Q. You did not say that?
A. Not to my remembrance.
Q. Did you say that you had a pair of brass
knuckles and that you would use on anyone who
tried to interfere with you crossing the picket line?
A. No I did not.
Q. You don't rememher saying that'?
A. No I do not.
Q. What about Ms. Welfare, do you remember
her saying anything in response to the picket line
and the union?
A. No. I only remember her saying that she was
for the Union and that she was going to vote for it.
Q. Do you remember her asking you if you were
afraid of your husband?
A. Yes, I do.
Q. I see. And how did that come up?
46(
METHODIST HOME
A. I don't know. I was going from the desk
down the hall and she was in the kitchen then.
That's when she asked me if I was afraid of my hus-
band.
Q. Do you remember saying that you didn't be-
lieve that your husband could cut your a-?
A. Yes, I do.
Q. You said that?
A. I certainly did. I have no reason to be afraid
of him.
Q. Why had you said that you didn't think that
your husband could cut your a-? What prompted
you to say that?
A. She asked me a direct question. She asked.
"Do you think your husband could cut your a-?"
Q. Had you said something about having your
a- cut before that?
A. No I had not.
Q. So you're saying that Ms. Welfare was the
first one to bring up the conversation about your
a- being cut?
A. That's right.
In addition to Louise Phillips, Respondent called two
other witnesses whose testimony touched on the above
conversation. The first of those witnesses was Karin
Ulmer. Ulmer was present in the courtroom during Phil-
lips' testimony. Ulmer's testimony during the hearing in-
cluded the following:
Q. [Respondent's attorney]: To the best of your
recollection would you tell us who was present or
who was involved in the conversation?
A. Ms. Prince or Ms. Phillips, Ms. Brown, Ms.
Welfare and I saw some housekeeping staff, but I
can't recall who they were.
Q. Would you, to the best of your knowledge,
tell us what was said by the various people?
A. Well, somehow it came into the conversation
about what we would do it there was a picket line,
if the Union were elected and I remember stating
that if there were a picket line I would turn around
and go back home.
Q. Do you remember anything anyone else said?
A. Yes. Somebody said, as far as I can remember
it was Ms. Prince [Phillips], saying why would you
turn around? I'm not scared of anyone. No one can
cut my a-.
Q. Ms. Phillips said that?
A. Yes, as far as I remember it.
Q. Did anyone else say anything?
A. Well, we just passed it off as a joke because
the next thing was that someone asked her if she
wasn't even afraid of her husband and she said no.
Q. Do you recall who asked her that?
A. That was Ms. Welfare as well as I can remem-
ber. 8
However. Ulmer's testimony aboul this conersaion. and in other
areas as shown below. differed from her earlier esimony On Ma, 19
Carole Brown, a nurse in Respondent's ICF unit, was
also called by Respondent. In large measure Respondent
relied on the testimony of Brown, which like that of
Louise Phillips, Karin Ulmer, and others, was generally
favorable to Respondent's position. Brown was not ques-
tioned on the April 28 conversation on direct. When
asked about the conversation on cross, Brown, who was
present in the courtroom throughout the testimony of
Phillips and Ulmer, testified that she was aware that she
had been identified as being present during that conver-
sation but that she had no recollection of such a conver-
sation.
Respondent did not call any of the other employees
that were alleged to have been present during the con-
versation.
Betty Welfare was called by the Union. Welfare testi-
fied that she was not involved in the April 28 conversa-
tion. Welfare did testify that she overheard Louise Phil-
lips comment that no one around there could cut her a-
According to Welfare, she was in a patient's room
working when she heard the comment from Phillips.
Welfare heard nothing else of the alleged conversation.
All the above-mentioned testimony, with the exception
of that of Carole Brown, regarding the conversation con-
tained elements of suspicion. Phillips' testimony was
structured to cast Betty Welfare in the most unfavorable
image while retaining for herself the image of someono
who said nothing improper. Her testimony conflicts with
that of other of Respondent's witnesses, Carole Brown
and Karin Ulmer. Even Respondent's attorney, in his
brief, does not rely on Phillips' testimony regarding the
alleged conversation.
Respondent's attorney relies instead on the testimony
of Karin Ulmer. However, as shown above, there are se-
rious conflicts between Ulmer's testimony at the hearing
trial and her pre-trial affidavit. Additionally, her testimo-
ny at the hearing conflicts with that of Carole Brown.
Betty Welfare's testimony would, at first blush, appear
too unusual to be true. Although she contends that she
was not involved in the conversation, she admittedly
overheard the one critical remark uttered by Louise
Phillips (i.e., the comment regarding someone cutting
her).
After examining all the evidence and considering my
observation of the witnesses' demeanor, I am convinced
that both Carole Brown's and Betty Welfare's testimony
about the April 28 conversation were truthful. However,
I am also convinced that portions of the testimony of
Ulmer and Phillips probably indicate what actually oc-
1977. Ulmer gave an affidasit in which she identified only Carole Brown.
Louise Prince (Phillips). and herself being involved in the April 2 con-
versation In the affidavit. Ulmer testified:
"On he morning of the 28th I asked Brown if the Union was
going to picket on Friday if it won. She said she didn't know. I said
I was afraid that I knew that the union was nothing hut suppressed
communism and was going to get my husband to take me and if I
couldn't get in I would call the home and have them come get me.
Louise Prince [Phillips] said she wasn't cared that she had a pair of
brass knuckles and would take hem I asked Prince if she was even
,cared of her husband She said no that she asn't scared of any-
thing that no onre could cut her a
Addilionall, LUlmcr testified in her afidavit that "Bett? Welfare did nt
talk to me habout the Union "
46h
I t)'ISIONS ()I NATIONAL .A3()R REI.ATIONS 3()ARD
curred. I am convinced that Ulmer did, as she testified inher affidavit, indicate in Phillips' presence that she would
not cross a picket line. I am also convinced that Phillips
was not being truthful when she denied saying that she
was not afraid and that no one could "cut her a-."
However, Phillips' testimony that she was "going from
the desk down the hall" when the matter of "cutting her
a-" arose, squares with Betty Welfare's testimony that
she overheard Phillips make that remark while she (Wel-
fare) was working in a patient's room.
I credit Betty Welfare's testimony that she was not in-
volved in the conversation but that she overheard Phil-
lips say no one could cut her a-. Even though, as
shown below, I found Ulmer's testimony to be largely
incredible, I have credited her affidavit testimony re-
garding the comments between her and Louise Phillips.
That particular testimony squares with what Betty Wel-
fare overheard while working in a patient's room.
The above-mentioned "knife incident" prompted a
series of questions from the Fourth Circuit Court of Ap-
peals.10 In regard to Objection 1, I shall consider those
questions in light of the record evidence.
(1) The incident was or was not in earnest but was in-tended as a joke: Despite the obvious incongruity of her
actions, I am convinced that Betty Welfare intended her
knife threat to be nothing more than a practical joke.
Louise Phillips admitted that during the knife incident,
Betty Welfare told her that Phillips did not have any-
thing to worry about, that Welfare was afraid of knives.
Ray Masneri, who, at the time of the above incident
was Respondent's administrator, testified that Phillips
came in and told him about the incident at approximately
11:30 a.m. on April 28. Masneri admitted on cross-exami-
nation that Phillips told him that she thought Betty Wel-
fare may have been kidding.
The testimony of both Masneri and Betty Welfare
demonstrates that Welfare told Masneri that she was
only joking.
Moreover, there was simply no evidence introduced
which demonstrated that Welfare had any motive other
than to joke, when she approached Phillips with the
knife.
Additionally, other evidence and my observations of
Betty Welfare convince me that she was joking. Welfare
impressed me as a person that would not engage in any
action designed to physically harm anyone. She de-
scribed herself as being very happy when she came in to
work on April 28. Maseri testified that he knew of no
disciplinary problems with Welfare and there was no evi-
dence that she ever presented any disciplinary problems
to any of Respondent' supervisors.
(2) The incident was or was not entirely unrelated to the
Union organization campaign or the pending election: As
shown above, nothing was said during the knife incident,
which would tend to connect the incident to the Union
or the election. Moreover, the testimony of former Ad-
ministrator Masneri indicates the reports he received re-
garding the incident contained nothing which would
connect the incident to the Union or the election.
Fd. R Evil , Rule O1(d( I)(A
HI 596 F2d 1173, upru.
The evidence does reflect that Welfare favored the
Union and that Phillips opposed the Union. However,
there is no evidence that the two clashed in their views
or that they had arguments regarding the Union. Louise
Phillips admitted that she and Betty Welfare never had
hard words and always got along well together. Welfare
testified without contradiction, that Phillips gave her a
"Vote No" sticker on April 28, and that Welfare wore
the sticker along with a prounion sticker during her
work that morning.
As found above, the evidence reflected that Welfare
was unaware of any connection between Phillips' com-
ment that no one could cut her, and the Union.
Furthermore, in view of Brown's testimony, she was
aware of nothing which would cause her to connect the
knife incident with the Union or the election. Brown,
like Welfare, was not present during the conversation in
which Louise Phillips said no one would cut her. The
evidence reflected that Brown told employee Ardie Carn
about the knife incident, but Carn's testimony demon-
strated that Brown said nothing to her which would con-
nect that incident with the Union or the election.
Therefore, I find, on the basis of the evidence, that the
only person that could have possessed any information
which would result in some likelihood of her connecting
the knife incident with the Union or the election was
Louise Phillips. Phillips was, of course, aware that the
early morning conversation during which she said that
no one could cut her dealt with a "picket line." Phillips
testified that she did not discuss the knife incident with
anyone other than her supervisors on the day of the elec-
tion. ' Moreover, Phillips' comments to her supervisors,
Masneri and Reeves, reflect that she was not connecting
the incident with the election or the Union.
Phillips testified that she continued working on April
28 until the end of her shift and that she voted in the
election.
Therefore, as to everyone except posibly Phillips,
there was no relationship between the knife incident and
the Union or the election. Although the possibility exists
as to Phillips, the evidence indicates that she did not
make such a connection and, in any event, she proceeded
to vote in the election. There was no testimony or evi-
dence that the incident affected the way Phillips voted.
(3) Welfare, the agressor in the incident, was or was not
an agent of the Union: In regard to the issue of what was
Welfare's connection with the Union, the evidence' 2 is
' I do not credit Karin Ulmer's testlimny that Louise Phillips iid
her of the knife incident on April 28. Phillips testified that she told no
one. lithe r ihan Supervisors Masneri and Reeees, about he i nciden on
thai day Moreover, although Ulmer discussed April 28 at length in her
May 1 I, 77, affidavit. she made no mention of learning of the knife in-
cident on0 that day As shown t hroughout this Decision I found Ulmer to
be an incredible witness
12 Karin Ulmer testified that Betty Welfare ad Barbara Glenn (both
emplosees), asked her how she stood n the Union lmer contended
that Welfare anl Glen n harassed her at work b ecause she opposed he
U nion As in licated above I do not credit Ulmer's testimony I will con-
sider tiher contention of harassment under Ohjection 4, injru Mreo,er I
specifical ly discredit Uthner'e, teilnii: y that ell Welfar e asked h tier how
she io l ibohtl tib e tt ion. in , icL. if Ulmer's testlliony In her pre-trial
aftida vi , h I ich . as direcil co ntrar ii, t r e arintg testimon i, haIregard In tier pre-trial affidaviw, Ulmer estified. Belly Welfare did nt
talk to me about th e Uniot."
462
.1 1TH()t)1DIS H()ME
as follows: Louise Phillips testified that Welfare "made it
well known that she was for the Union."
Carole Brown's only testimon? regarding WVelfare's
connection with the Union was that Welfare had said
that she was for the Union and, if the Union came in. she
and "Barbara" were going to he the shop stewards.
Employee Ardie Cam testified that Welfare had "let it
be known that she was for the Union."
Betty Welfare testified that she served as union ob-
server throughout the election. Welfare was paid b the
Union for her services as election observer. Welfare at-
tended union meetings prior to the election and, on occa-
sion, she asked questions at those meetings. However.
Welfare did not conduct the meetings, nor did she speak
at those meetings.
The cases, both before the courts and the Board.
show, with uniformity, that under circumstances similar
to the instant case of Betty Welfare, the employee would
not be the Union's agent.: In the case of Certain-feed
Products Corporation . N.L.R.B.. 562 F.2d 5(00), 509-510
(7th Cir. 1977), cited by the court hercin, the Seventh
Circuit held that employees on the in-plant organizing
committee of the union, who made representations to
other employees regarding what effect the signing of
union authorization cards would have on the employees
not having to pay a union initiation fee, did not thereby
become agents of the union. In so holding, that court dis-
tinguished the case of N.L.R.B. v. Urban Telephone Cor-
poration, 499 F.2d 239 (7th Cir. 1974), pointing out that
the employee in question in Urban Telephone was the em-
ployee that initiated the original contact with the union;
was one of three contact men selected by the union
whose function was to relay information between the
union and employees; and, although the union organizers
heard that the employee had, on a number of occasions,
threatened antiunion employees, the union organizers
never repudiated the threats.
The court also cited the case of Collins & 4Ailman Cor-
poration v. .NL.R.B., 383 F.2d 722, 729 (7th Cir. 1967).
The question in Collins & Aikman, was whether the
Union, by paying its employee election observer a fee
which was seven times what the employee would have
been paid for working during that time, had engaged in
objectionable conduct. The court there found that such a
high fee had a tendency to influence employees' votes
and was, therefore, objectionable. In the instant case, Re-
spondent does not contend that the Union engaged in ob-
jectionable conduct by paying the observers, including
Welfare, an "unusually" high fee. Furthermore, the
record does not support such an allegation. Welfare re-
ceived a fee of $20. However, the election lasted from
2:30 to 3:30 p.m. and from 10:30 to 11:45 p.m. Welfare
was required to be present throughout the voting times
plus the time required for the preelection conference and
the time required to count the votes. There was no
l3 See also ilreone Steel Prnduct Ci, 235 NIRH 548 (1978) .uli//l',
v. NL.R.B., 571 2d 1292 4th Cir 19781: as regard empl,yee Paircllo
The court agreed 'ith the Board that Parello as, ni,, an agent of thc
Union even hough he ails on the union's clonference hboard and the ,
gotiating committee Ho'eer, as to the acilng slesard, he coca fund
the Board erred in finding he union as not responsible fr hi. aitlios
Compare. .4Ahho,, .)ahoruratore N .R. . 544) tI 2d1 hh2 (41h ir 1,i76,
showing what her , age scale was, or that the $20() fee
was out of line v, ith her normal su ages for a similar
period of tinle.
T'he court also inquired as to whether Welfare's con-
duct was attributahble to the Union even though she ma!
not qualify as the Union's agent. However, Respondent
presented no evidence during the hearing herein which
s,kould justify my making such findinig. O()n the basis of
the rcord et.idence, Welfairc did nothing more than indi-
cate that she favored the Union, tell Carole Brown that
she and "Barbara"'' ould he ste, ards if the Union canme
in, and serve as one of the union election observers. As
indicated above, nothing sas said during the knife inci-
denit which would tend to attribute that action by Wel-
fare to the Union. Moreover, there 'sas no evidence that
Welfare, either through direct statement or implication.
ever expressed that she uvas acting on the Union's behalf
in ally capacity.
(4) In any evcnt the incident did or did not cast a cloud
rof fear or apprehension over the election ufficient fi)r it to
bc .saut that it tmiht have influenced its result: In its opin-
ion, the Fourth Circuit expressed concern with evidence
that could have demonstrated an atmosphere of fear and
apprehension among Respondent's employees as a result
of the knife incident. In that regard, the court referred to
testify that, "cold feeling came over the floor after it [the
incident] happened" and everything became "very
quiet." In that regard the court cited the case of
.VL.R.B. v. Gulf States Canners, Inc., 585 F.2d 757
(1978) In GulfStates the Fifth Circuit Court of Appeals
criticized the Board fior applying the wrong test in con-
sidering objections to an election. The court found that
the Board appeared to be concerned with the union's
intent regarding the union's payment of fees to employ-
ees during an election canipaign. The Fifth Circuit indi-
cated that the "intent test" ,was inconsistenit with the
proper test which should hare been, whether the unlaw-
ful acts "interfered with the employees' exercise of free
choice to such an extent that they materially affected the
results of an election." The court in Gulf States, stated,
"an unintentional act may have such a deleterious effect
on the conduct of an election that the result does riot re-
flect the voters free will." That Court held that, in at-
tempting to determine the effects of a particular act, "the
assay should seek to find whether the questioned action
by an election candidate had a tendency to influence the
outcome of the voting."
The Gulf States test is applicable here.4 If the evi-
dence demonstrates that Welfare's actions had "such a
deleterious effect on the conduct of [the] election that
the result does not reflect the voters free will," then the
election should be set aside, even though Welfare had no
such intention.
However, Respondent, during the hearing herein. did
nothing more than repeat the evidence that bothered the
Fourth Circuit. Several witnesscs for Respondent testi-
fied to the effect that employees were quiet after the
" Set' alsoI l/cte, n i c (olrnpur n Cnl ( or \ . R 1K 54h F 2d lOSS.
1)2 4th ir lu7h)
463
DECISIONS 01F NATIONAL LAB()R RELATIONS BO()AkD
knife incident. "s However, the credited evidence, did
not follow up on the possibilities presented by that testi-
mony.
On the basis of the credited evidence only employees
Phillips, Brown, Welfare, and Carnm knew of the knife
incident at the time of the election. However, of that
group only Phillips had any, reason to suspect that the
knife incident could have had any relationship to the
Union. 7 Nevertheless, according to her own testimony,
Phillips completed her days work and voted in the elec-
tion.
Of course Respondent has enjoyed continued access to
its employees and it had the right to question its employ-
ees regarding its objections. 8 Nevertheless, Respondent
offered no further evidence which would tend to support
a finding under the Gulf States test.
In the absence of evidence illustrating more than a sus-
picion that the knife incident and its possible connection
with the Union, were known to more unit employees. I
have determined that "the incident did not cast a cloud
of fear or apprehension over the election sufficient for it
to be said that it might have influenced the result."
(b) Objection 3: In support of this objection Respond-
ent offered the testimony of employee Willie Mae
Owens. Owens testified that at the time of the election
she saw an unidentified woman, who she knew to be a
union agent, stop five or six, or more, cars out near the
intersection of the highway and Respondent's driveway.
Owens testified that she could see that the woman was
talking to the occupants of the cars. Owens identified
one of the cars' occupants as employee Lucille Green.
However, Lucille Green did not testify. Owens testified
that she reported what she had observed to Administra-
tor Masneri. She told Masneri that "they [are] campaign-
ing right there on the grounds." Owens testified that
Masneri went out and talked to the woman and, thereaf-
ter, the woman moved across the highway and stood
there. Masneri, who testified on other matters before
Owens was called, did not testify about this particular in-
cident.
The testimony indicated that the woman, who Owens
identified only as being a union representative, was
always out of sight of the voting area.
It is clear, and I find, that even by placing the most
favorable consideration on Owens' testimony from the
standpoint of Respondent, the evidence is insufficient to
support an objection. Nor would Owens testimony con-
tribute toward a finding of objectionable conduct when
considered alongside the evidence offered in support of
15 Those witnesses included employee Ardie Cam who testified there
was just a "cold, dull. I don't know, a feeling over the building." Howe-
er, another of Respondent's witnesses, Carole Brown, testified that "ev-
erybody was tense [on April 28], from the beginning of that workday up
until the end of the workday." Therefore, the record does little more
than show that the employees were quieter than usual n April 28, along
with the inference that perhaps the election or the knife incident conitrib-
uted to that situation
' Cam testified that she was told of the incident by Carole Brown on
the afternoon of the election.
17 rown's testimony demonstratcd that she was not present during
the earlier conversation where Phillips mentioned no one could cut hei
None of the witnesses that testified about the earlier conversation placed
Carn at the cinversation
1i Johnnie'i Poultrv (o., 146 NL.Rtl 770 (1964).
the other objections. Respondent contended that Owens'
testimony proved that the Union was electioneering near
the polls during the voting period, and was, therefore,
objectionable. Those contentions are not supported by
the evidence. The evidence does not demonstrate that
the unidentified woman was electioneering. Owens ad-
mitted that she could not tell what the woman was
saying or doing, other than stopping cars. The one em-
ployee identified as being stopped, Lucille Green, was
not called by Respondent. Nor did Respondent show
why Green was not called. Masneri, who allegedly
talked to the unidentified woman, was not questioned
about his knowledge of the incident. Furthermore, the
evidence indicated that the woman was not near the
polls. Therefore, I find that this objection is not support-
ed by the evidence.
(c) Objection 4: In support of this objection Respond-
ent offered the testimony of Karin Ulmer. According to
Ulmer's testimony at the hearing, her relationship with
two employees, Betty Welfare and Barbara Glenn,
changed after Welfare and Glenn asked her how she
stood about the Union. Ulmer testified that she told Wel-
fare and Glenn that she was against the Union. From
that point, according to Ulmer, her relationship with
Welfare and Glenn was not friendly anymore. Ulmer
was asked about specific examples and she replied,
"They wouldn't help at work like they always had. They
blocked my path when I had my hands full, and you
know, things like that." She testified that they also in-
spected her work and that inspecting her work was not
part of Welfare's and Glenn's job. Ulmer did not place a
date on the above matters.
Additionally, Ulmer testified that, as she was coming
into work, a couple days before the April 28 election,
Barbara Glenn was out at the timeclock. Ulmer testified
that, as she punched in and was turning around, Glenn
"held my arm and it was quite a pressure and I asked her
to please turn loose. She said, 'Well what are you going
to do about the election,' I said that it didn't make any
difference to me because as far as I was concerned that I
wasn't eligible to vote anyway, and she said, 'Well, what
are you going to do?' I told her I was going to vote no,
and she said that I'd better think about it and vote yes
because 'I think everybody is going to ask for trouble."'
Again, as in other incidents mentioned above, Ulmer's
testimony at the hearing differs materially from her prior
affidavit testimony.
In her affadavit, Ulmer testified as follows:
Sometime in February . . . when I came to the
timeclock she was getting there. [Barbara] Glenn
asked me at the timeclock if I ever thought about
the union. She held my arm as if she wanted me to
be aware that she wanted to stop me and talk to
me. I told her I hadn't thought about it one way or
the other. (I had not thought that I would be eligi-
ble to vote since I had just started.) Glenn said I
better think about it. I told her to turn me lose. She
dropped my arm. At that time someone was coming
up the hall. She didn't say anything more about it.
In late February I had to work late one afternoon
and came in early. Reeves asked me if I was sched-
464
METHODIST HOME
uled the day of the election. She told me I was eli-
gible. Reeves told me that I should come in even if
I was going to vote no. I said I was planning on
voting no. Barbara Glenn and Betty Welfare were
present when I said this. Glenn and Welfare did not
say anything.
The only time Barbara talked to me about the
union was at the timeclock mentioned above. Betty
Welfare did not talk to me about the union.
After I made this statement to Reeves I believe
that Welfare and Glenn began to harass me. It start-
ed a couple of days afterwards about the Ist Satur-
day in March.
On about Sunday March 6-1 am not sure of the
date Hughes asked who was helping me with the
trays. I said Willie Mae Ritter. The other girls Wel-
fare, Glenn, Pearlie Mae Hall and Eloise were
taking a long lunch break and weren't helping me. I
believe they were doing this to get even with me.
The next time about a week later some cards
were messed up on the trays. I told Brown that I
thought that it was intentional. I did not see Glenn
mess up the trays. She however was the only one
who had access to it. This made all of us nervous
and jumpy so we couldn't work everyone was on
edge.
On about Sunday March 6, 1 tried to pull the
trays out the door on the lunch carts. I tried to get
the trays out and Glenn and Welfare closed the
doors. I did not say anything to them except excuse
me I would like to get in their [sic]. I then started
ignoring them and not bothering with them any-
more. This happened on about every day for a
week.
Sometimes Glenn and Welfare would go down
the hall and would ask me why I made the bed this
way.
This kind of thing stopped after about 3 weeks. I
did not report this to Masnari or any supervisor be-
cause I didn't want them to bother about it.
In view of the continuous conflicts between her testi-
mony at the hearing and her prior affidavit testimony, I
place little trust in Karin Ulmer's testimony. However,
of the two, it has consistently appeared that her affidavit
testimony is more reliable than her testimony at the hear-
ing. I note in that regard that, in every material instant,
Ulmer, at the hearing, tended to exaggerate her previous
testimony in order to favor Respondent's position on its
objections. For example, regarding her alleged harass-
ment at work, Ulmer placed the "timeclock incident"
with employee Barbara Glenn only a couple days before
the election. However, when she testified less than a
month after the election, on May 19, 1977, she recalled
that the "timeclock incident" occurred during February.
Additionally, at the hearing, she testified that during the
"timeclock incident," Glenn placed "quite a pressure" on
her arm and threatened that "everybody is going to ask
for trouble." In her affidavit, Ulmer testified that Glenn
held her "arm as if she wanted me to be aware that she
wanted to stop me and talk to me." In her affidavit she
said nothing about Glenn threatening that everybody is
going to ask for trouble. Instead, Glenn told her that she
had better think about it.
Even ignoring my reservations about Ulmer's testimo-
ny, there appears to be nothing in the incidents men-
tioned in her affidavit which would justify overturning
the election. Ulmer's objective testimony regarding the
alleged harassment includes only a suspicion that on one
occasion Barbara Glenn "messed" up some cards on a
tray; that several "girls" took a long lunch break in
order to avoid helping Ulmer; that Glenn and Welfare
closed a door as Ulmer tried to pull trays out the door;
and that "sometimes Glenn and Welfare would ask me
why I made the bed this way." Furthermore, Ulmer tes-
tified that all those incidents stopped after about 3 weeks
and that she did not report them to a supervisor because
"I didn't want them to bother about it."
Under the circumstances, I find that Ulmer's testimony
at the hearing regarding the alleged harassment and the
alleged "timeclock incident" are not worthy of belief.
Furthermore, her affidavit testimony, which I credit only
to the extent it reflects specific events which are other-
wise not rebutted, falls short of proving objectionable
conduct.
In the first place, there is insufficient evidence to show
that Barbara Glenn was an agent of the Union. Although
Respondent argues that she had apparent authority suffi-
cient to warrant my finding that she was an agent, I dis-
agree. If anything the evidence regarding Glenn's alleged
agency status, is no stronger than the evidence regarding
Welfare's alleged agency status. Therefore, I find that
Respondent failed to prove that Glenn (or Welfare) was
an agent of the Union.
Moreover, Ulmer's testimony fails to support a finding
of harassment sufficient to support my finding the con-
duct objectionable, even when that evidence is consid-
ered in light of all the evidence presented in favor of
other objections. Additionally, Ulmer's testimony dem-
onstrates that the alleged harassment stopped long before
the April 28 election. Therefore, I recommend that Ob-
jection 4 be overruled.
In view of the above findings and conclusions, I make
the following:
RECOMMENDATIONS
It is recommend that the Board find that the objec-
tions to the election filed by Respondent have not been
sustained, and that it affirm its Order in the instant pro-
ceeding (as reported in 234 NLRB 535).
465