Highview, Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1977

231 N.L.R.B. 1251 (N.L.R.B. 1977)

HIGHVIEW, INCORPORATED
Highview, Incorporated and American Federation of
State, County and Municipal Employees, AFL-
CIO. Cases 10-CA- 11174, 10-CA-11941, and
10-RC-10256
September 8, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On April 5, 1977, Administrative Law Judge Peter
E. Donnelly issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge, to modify his remedy, 3 and to adopt his
recommended Order, 4 as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Highview, Incorporated, Atlanta, Georgia, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
i. Substitute "Region 10" for "Region 23" in
paragraph B of the Order.
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
hlii.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In his decision the Administrative Law Judge found that Respondent's
folrmer administrator. Eugene D. Meyers. did not violate the Act as a result
of questions and statements made to Ann Jenkins, whom he found to be a
supervisor within the meaning of the Act. Jenkins testified she informed
Meyers she had been active in the February 1975 organizing drive, and that
he requested the names of union adherents, threatening to fire anybody who
joined the Union. In the absence of exceptions to the Administrative Law
Judge's findings and conclusions regarding this incident we find it
unnecessary to decide whether such conduct violates the Act without an
independent showing of employee knowledge of this event. See Elm Hill
Meats of OentsJoro Inc., 205 NLRB 285 (1973); Cannon Electric Companv,
151 NLRB 1465,. 1468 (1965).
231 NLRB No. 138
We find it unnecessary to consider the Administrative Law Judge's
rationale for not issuing a bargaining order in this case.
I In accordance with our decision in Florida Steel Corporation. 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25. 1977. in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
I The General Counsel excepted to the Administrative Law Judge's
Order remanding Case 10 RC- 10256 to the Regional Director for "Region
23" as opposed to "Region 10," and to the absence of any reference to the
order of reinstatement for Mamie Lee Fullens in the notice to employees.
We find merit in the General Counsel's exceptions and we shall modify the
recommended Order and notice accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our employees, thereby
discriminating in regard to their hire and tenure
of employment in order to discourage member-
ship in American Federation of State, County and
Municipal Employees, AFL-CIO, or any other
labor organization.
WE WILL NOT threaten to withhold benefits
from employees in reprisal for engaging in union
activity.
WE WILL NOT threaten employees with dis-
charge for engaging in union activity.
WE WILL NOT interrogate employees concern-
ing their union membership and activities.
WE WILL NOT interrogate employees concern-
ing the union membership and activities of other
employees.
WE WILL NOT create impressions of surveillance
of our employees' union activities in order to
discourage membership in, and activities on
behalf of, a labor organization.
WE WILL NOT order employees to remove union
buttons from their clothing.
WE WILL NOT promise employees a wage
increase if they reject a union as their collective-
bargaining representative.
WE WILL NOT grant paid holidays to employees
for the purpose of causing said employees to
reject the Union as their collective-bargaining
representative.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL offer to Mamie Lee Fullens immedi-
ate and full reinstatement to her former job or, if
it no longer exists, to a substantially equivalent
position without prejudice to her seniority and
other rights and privileges, and we will make her
whole, with interest, for any loss of pay she may
1251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have suffered by reasons of our unlawful discrimi-
nation against her.
HIGHVIEW,
INCORPORATED
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge: The
charge in 10-CA-11174 was filed by American Federation
of State, County and Municipal Employees, AFL-CIO,
herein called Charging Party or Union on March 24, 1975.
The charge in 10-CA-11941 was filed by the Charging
Party on May 5, 1976. The cases were consolidated and a
complaint was issued on July 29, 1976, alleging that
Highview, Incorporated, herein called the Employer or
Respondent, violated Section 8(a)(l) and (3) of the Act. An
answer to the complaint was timely filed by Respondent.
The petition in Case 10-RC-10256 was filed on February
10, 1975. Pursuant to a Decision on Review and Direction
of Election an election was held on May 6, 1976.
Challenged ballots were cast in that election, as well as
objections which were timely filed by the Union. In order
to resolve the challenged ballots and objections which are
coextensive with certain other misconduct alleged in the
complaint, the cases were consolidated for hearing with the
unfair labor practices by Order dated August 13, 1976.
Pursuant to notice, the hearing was held before the
Administrative Law Judge at Atlanta, Georgia, on Septem-
ber 14, 15, 16, 17, and 30 and October 1, 1976.
FINDINGS OF FACT
2
I. THE EMPLOYER'S BUSINESS
The Employer is and has been at all times material
herein a private, nonprofit Georgia corporation with an
office and place of business located in Fulton County,
Georgia, where it is engaged in the operation of a nursing
home. The Employer, during the past calendar year,
received gross revenues in excess of $100,000 for services
rendered and in addition purchased and received goods
valued in excess of $50,000 directly from suppliers located
outside the State of Georgia.
While conceding the above jurisdictional facts, the
Employer contends that the Board is without jurisdiction
in view of the decree of control exercised by the county
over the operations of the Employer. However, since this
matter was specifically resolved by the Board in the
companion representation case,3 that precedent is control-
ling as to the issue of jurisdiction in the instant case.
Accordingly, I conclude that the Employer is an employer
Highview, Incorporated, 223 NLRB 646 (1976).
2 There is conflicting testimony regarding some of the 8(aXI) allegations
of the complaint and relevant incidents surrounding the unlawful discharge
allegation. In resolving these conflicts, I have taken into consideration the
apparent interests of the witnesses. In this connection, in crediting the
testimony of several of the General Counsel's employee witnesses, the fact
that they were still employed by Respondent against whom they testified
was a factor supporting their credibility particularly when weighed against
the obvious interests of the Employer. In addition, I have considered the
inherent probabilities; the probabilities in light of other events; corrobora-
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges and the parties stipulated at the
hearing that the Union is a labor organization within the
meaning of Section 2(5) of the Act. Accordingly, I so find.
II1. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(aX)(1) of the Act by engaging in certain unlawful
misconduct towards employees, including threats, interro-
gations, promises, the granting of a wage increase, creating
an impression of surveillance, and ordering employees to
remove union insignia from their clothing. The complaint
was amended at the hearing to allege the promulgation and
enforcement of an invalid rule prohibiting distribution of
union literature. The complaint was further amended at the
hearing to alleged unlawful interrogation of employees by
Respondent's attorney. In addition, the complaint alleges
that Respondent violated Section 8(a)(3) of the Act by
discharging Mamie Lee Fullens for her union activity.
A. Supervisor Issues
Respondent denied the supervisor allegations of the
complaint. However, at the hearing the matter was resolved
by stipulations between the parties to the effect that the
individuals named in paragraph 6 of the complaint are
supervisors within the meaning of Section 2(11) of the Act.
There remains, however, for determination, the supervisory
status of Marguerite Martineau. Martineau was the food
service director at Respondent's nursing home from July
1975 until she left in July 1976.
Respondent had contracted with S & S Cafeterias for the
food service operation at the nursing home. Martineau, an
S & S employee, was in charge of the food service
operation. She was responsible for the production of food
at the nursing home and the serving of it to the patients.
Martineau testified that she supervised about 28 employees
engaged in this function and that she directed their
activities in the performance of this work. Despite the fact
that Martineau was paid by S & S and may not have
exercised all of the indicia of supervisory authority set out
in Section 2(11) of the Act, there is ample evidence to
conclude, as I do, that she exercised supervisory functions
on behalf of Respondent and that she is an agent of
Respondent within the meaning of the Act.
tion or lack of it; and consistencies or inconsistencies within the testimony
of each witness, and between the testimony of each and that of other
witnesses with similar apparent interests. In evaluating the testimony of each
witness, I rely specifically upon his or her demeanor, and have made my
findings accordingly. And while apart from considerations of demeanor, I
have taken into account the above-noted credibility considerations, my
failure to detail each of these is not to be deemed a failure on my part to
have fully considered it. Bishop and Malco, Inc., d/J/a Walker's 159 NLRB
1159, 1161 (1966).
3 Highview, Incorporated, supra.
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HIGHVIEW, INCORPORATED
B. Facts, Discussion, and Analysis
I. Background
Fullens led an abortive organizing drive on behalf of the
Service Employees International Union, AFL-CIO-CLC,
herein called Service Employees, in mid-1974. Becoming
dissatisfied with the Service Employees, she thereafter
contacted the Union and acquired some 250 authorization
cards. Fullen distributed authorization cards to nursing
home employees, obtaining signed authorization cards
from about one-third of the employees, and gave them to
Ron Reliford, International Representative of the Union.
By letter dated January 29, 1975, Reliford wrote to Eugene
Myers who was at that time the Administrator of the
nursing home,4 as follows:
This is to advise you that our Union, the American
Federation of State, County and Municipal Employees,
AFL-CIO, is conducting an organizing campaign for
certain employees of Highview Nursing Home as
provided under the National Labor Relations Act.
Attached is a list of Highview employees who are
members of our organizing committee.
If you have any questions regarding this information
you may contact us through our attorney, Morgan
Stanford. His mailing address and phone number are:
[Mailing address and telephone number omitted.]
This correspondence included a two-page attachment
listing the names and addresses of 24 employees, including
Fullens, as the union organizing committee (G.C. Exh. 9).
On February 10, 1975, the petition in 10-RC-10256 was
filed. On April 3, 1975, the Regional Director for Region 10
issued a Decision and Order declining to assert jurisdiction
which was reversed by the Board on review by Decision
dated April 6, 1976, as noted above. An election was
thereafter conducted on May 6, 1976.
2. 8(a)(1) allegations
a. Eugene Myers
Ann Jenkins was employed by Respondent as a licensed
practical nurse (LPN) until she left in January 1976. She
testified that she was called into Myers' office in February
1975, and asked if she had the names of people who had
joined the Union. Jenkins testified that she had been
working with Fullens on the authorization cards and had a
list of between 25 and 30 names that Mamie Fullens had
given to her. Jenkins gave the list to Myers who retained it.
Myers remarked that he was going to fire anybody who
joined the Union. The record also disclosed that Jenkins
was a Charge Nurse, supervising the activities of the nurses
aides and orderlies on her ward. The parties stipulated at
the hearing that Jenkins was a supervisor within the
meaning of the Act. Since Jenkins is a supervisor, I cannot
conclude that Myers violated the Act by either threatening
employees with discharge or interrogating employees as
alleged in the complaint.
b. Marguerite Martineau
Sarah Ann Dozier was employed in the food service
department until her discharge in July 1975. Dozier
testified that sometime around early January or the first of
February 1975, Martineau spoke to a small group of
employees in the kitchen of the nursing. According to
Dozier Martineau said that "she asked for everybody a 25-
cent raise, but she couldn't give it to us because we had
messed up everything by bringing the union in." Thereaf-
ter, in another conversation in the kitchen, Martineau told
some employees "that he had a lot of things planned for us,
but that-her and the company had a lot of things planned
for us, but she couldn't give it to us because we were
bringing the union in." Again in March, Martineau told
service department employees, according to Dozier, "that
he [sic] had asked again for a 25- to 30-cent raise, but she
said that we wasn't going to get it because we had the
union coming in and she wouldn't give it to us." Dozier's
testimony to the effect that bringing the Union in was
blocking a raise was corroborated by Maxine Dozier,
another food service department employee.
Sarah Ann Dozier further testified that in February 1975,
in the kitchen of the food service department, Latrelle
Hatchett, an employee, was showing Miss Graham, an
assistant supervisor, how to do a dance called the "bump."
Upon inquiry, Martineau was told this and she said, 'If
you're going to do the bump, go the Bonanza and do the
bump.' " The Bonanza is a restaurant where the Union
usually held employee meetings. During the same incident
Martineau also told those present that she had a "little
black girl" coming back and telling her everything that
went on at the union meetings.
Martineau, when asked if she ever expressed her views
about the Union around employees, testified, "I don't
think so." She later denied talking to employees about the
Union. But after being examined about certain statements
in her affidavit, (G.C. Exh. 11) she testified, "I never
discussed it. We kidded - they kidded me I think, but we
never discussed the union with anybody." In evaluating her
testimony, I find it to be less credible than the testimony of
Maxine Dozier and Sarah Ann Dozier and I credit them. I
further conclude these statements by Martineau were
essentially threats to withhold a pay raise because of the
union organizing effort. Further, that Martineau's state-
ments about her informant created an impression of
surveillance in violation of Section 8(aX )) of the Act.
c. Berta Zuffall
Bobbie Russell, a nurse's aide and a 6-year employee,
testified that at the end of May or first of June 1975, while
she was working on her floor, Zuffall came to her and
asked her about the Union. Russell testified, "she asked me
about the Union. She asked me why that I was wearing a
union pin; she asked me was I for the union, and I told her
yes. She asked me was I going to vote for the Union, and I
told her yes, so she walked away." Zuffall does not recall
ever discussing the Union with Russell. She denies ever
questioning anyone about wearing a union button or
I Myers was succeeded by J. W. Stephenson in February 1976.
1253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instructing any employee to remove a union button.
However, based on the credibility criteria set forth above, I
credit Russell and conclude not only that these statements
were made, but that they constitute unlawful interrogation
within the meaning of Section 8(a)(1) of the Act.
d. Dianne Brown and Norva Griggs
Mamie Fullens testified that on February 20, 1976, her
last day at work, as she returned to work from her lunch
break, she met Brown in the hallway. Fullens was wearing
a union button. According to Fullens, Brown ordered her
to remove it, "because it don't look right on you all's
uniforms, she said, and it is a literature and you can be
fired for wearing it." Fullens replied that, "if the union pin
was going to get me fired, then Highview have a fight,
because I wasn't going to remove the pin, and I didn't."
On the same day, some 20 minutes later, Fullens testified
that as she was walking up the hall to her ward, Norva
Griggs, a supervisor said, "You're still wearing this union
pin, she said, I order you to take it off right now she said
because it don't look good on you all's uniforms and it is
literature on the job, and if you keep wearing it you can be
fired." Fullens replied, "If this pin, union pin get me fired,
then Highview got to fire me, because I'm wearing a pin,
they would just have to fire me because I'm not going to
take it off and I didn't."
Brown and Griggs both denied that they had ever
discussed with Fullens the matter of wearing any union
button. However, based on the criteria noted above, I
credit Fullens as to the incident. In evaluating the
credibility of Brown's testimony, I have noted certain
inconsistencies and evasive statements which were a
negative factor in evaluating her testimony. For example,
at one point Brown testified that she had seen Fullens'
written doctor's excuse in her file before the decision to
discharge her was made and later testified that she had not.
Brown also testified that she did not know why Fullens was
absent at the time she reviewed Fullens' file and at another
point on recross-examination testified that she was aware
at that time that Fullens had advised personnel that she
was out with the flu.
I further conclude that the remarks were coercive within
the meaning of Section 8(a)(l) of the Act.
e. Laura Hart
Ezell Colbert, a nurse's aide, testified that shortly before
the election on May 6, 1975, Laura Hart, assistant director
of nursing, called Colbert into her office and asked her how
things were and if Colbert thought the Union would get in.
Colbert told her that if it took her vote, it would. Hart also
said that if the Union were voted in, it would call a strike,
"whether the employees had any say-so or not, and she
said that we wouldn't get the raise that was promised to us
in June or July." Also, "If we voted the - if the employees
at Highview voted the union in, that we wouldn't get the
raise that was promised to us in June or July."
Hart testified that she recalled having two conversations
with Colbert in her office but that these conversations were
' While it is true that the complaint contains no specific 8(aXI)
allegations as to this incident, it was fully litigated at the hearing and,
accordingly. a proper 8(a)(I) finding is based thereon.
of a personal nature and that the Union was not discussed.
I credit Colbert's testimony over the general denials of
Hart as to this incident and further conclude that the
remarks constitute an unlawful threat to withhold benefits
if the Union were voted in.
June Head, another nurse's aide, testified that some 2
weeks before the election, she was called into Hart's office.
No one else was present. Head testified, "She asked me
what was happening around there, she said she had heard
people talking about the Union, and I told her yes, we was
trying to get a union. Then she wanted to know why we
was trying to get a union. I told her because we didn't have
any type of benefits such as retirement, hospitalization, and
we would like to have more money. And then she asked us
did we know what we was getting into, and I told her we
did."
Hart denied meeting with Head except as one of a group
of employees with whom she spoke sometime in or about
April 1976. Hart testified that she called the employee
meeting because patient service had begun to deteriorate
and she wanted to know what was causing it. Hart further
testified: "And Mrs. Head, June, if I may call her that,
acted as spokesman for the group, and she told me that
they were trying to get a union, or they were talking about
getting a union into Highview, that they did not feel that
they were getting adequate benefits at that time, insurance
or salary, and that they all - this is what had them all so
uptight. I told Mrs. Head that I did not know anything
about a union because I have never had any dealings with
union personnel whatsoever. I did ask Mrs. Head, 'Do you
know what you're doing, you all,' she said 'yes' and I said
'fine.'"
Based on the credibility criteria set forth above, I credit
Head that she had an individual conversation with Hart
and that the conversation constituted unlawful interroga-
tion within the meaning of Section 8(a)(1) of the Act.5
f. J. W. Stephenson
On or about April 26, 1976, over a period of about 3
days, Myers' successor, J. W. Stephenson, chief executive
officer of Respondent, called employees in groups of 10 to
20 to attend some II or 12 meetings. These meetings were
held in the chapel of the nursing home. As the meetings
began, Stephenson introduced himself to the employees
and told them he had something to show them which he
felt was beneficial in deciding what course of action to take
as to the organizational effort at the nursing home. He then
gave a slide presentation dealing with a union organizing
effort. After the slides were shown Stephenson again spoke
to the employees, telling them about his background,
including his service to the community in politics and in
the building of certain low income housing in the area.
Stephenson also testified, "I did plead with them, I said I
have been here a short time, and I'm asking you to give me
a chance to show you that I can do something for you."
With reference to the housing projects Stephenson said "I
was trying to build up the confidence in myself that I
would do what I could to help in any way I could to better
1254
HIGHVIEW, INCORPORATED
working conditions." Also, "This is one of the opportuni-
ties I had, and I told them at that time that the door was
open, the front and the back door, to come and see me at
any time and talk with me."
Shirley Colbert, a nurse's aide, testified that at the
meeting she attended, Stephenson told the employees, after
the slides were shown, that if the Union did not come in,
they would get a raise and if it did come in, they would not.
June Head testified:
Well, Mr. Stephenson asked the employees to give
them a chance, he had only been there two months, and
he also said to give him a chance, and if he didn't make
things better, he would - then we could vote the union
in. And he also said that the union representatives only
wanted our money so they could live high on the hog,
and that the union couldn't do anything for the
employees there, because there was a union up the
street at another nursing home, Springdale Nursing
Home and they wasn't doing anything for them there,
and the union couldn't do anything for us. He also
stated that we were supposed to have got a raise on
June the first, and that the union was there now and he
couldn't give us the raise because the union was trying
to get in, and that was out. He also stated that he had
made up a package already for the employees, and if
the union got in, he would present that package to the
union.
Lila Hurley, another nurse's aide testified that Stevenson
told them that "he was going to give us a raise in June, but
now he can't do it on account of the union."
Another nurse's aide, Bobbie Russell, testified that after
the slide presentation, Stephenson spoke to the assembled
employees.
Q. What did he say?
A. He said to give him a chance, not to vote for the
union, to give him a chance and he will make things
better.
Q. Can you explain?
A. He would give us a raise if we did not vote for
the union.
Q. Now did he give you any example at that time
or any other time as to how he was going to make
things better or had already made things better?
A. No, he just said to give him a chance for a year
and he would make things better, that he would give us
a raise.
Catherine Brown, another nurse's aide testified that after
the slide presentation, Stephenson told them "that if we
gave him a year without the union that he would make
things better and give us a pay raise and insurance and
better benefits, and that his door was always open, you
know, to those who had any problems."
Harriet Scott, another nurse's aide, testified that Steph-
enson told the employees "that if we voted the union in,
that we would have to pay union dues, he said all the union
wanted was our money. He also told us that if we kept the
union out he had plans for us for which he couldn't tell us
about and if he said if we gave him one year to make things
better and he didn't, that we could vote for the union next
year."
The corroborated testimony of these employee witnesses
satisfies me that their versions are more credible and I
conclude that these statements alleged to have been made
by Stephenson at the chapel meetings were in fact made,
and that they constitute unlawful threats to withhold
benefits from employees, including a pay raise, as well as
unlawful promises of economic benefits including a wage
increase.
Lila Mae Hurley testified that after the chapel meeting of
employees she attended on or about April 26, 1976, she was
asked by Stephenson to go to his office. No one else was
present. Hurley testified that Stephenson asked her if she
was on the union committee. Hurley responded affirma-
tively, whereupon Stephenson said, "You mean all these
many years you've been here, you're going to jeopardize
your job for the union?" Hurley responded "Yes."
Stephenson denies ever having met with Hurley or that
he had ever seen her before. However, based on the
credibility factors set out above, I credit Hurley and
conclude that the conversation did take place and that
Stephenson made the statements attributed to him. Fur-
ther, I find these statements constitute unlawful interroga-
tion and a clearly implied threat of discharge within the
meaning of Section 8(aX I) of the Act.
On or about May 4, 1976, Stephenson conducted another
series of meetings with small groups of employees in the
conference room at the nursing home. Shirley Colbert
testified that at the meeting she attended, Stephenson told
the group, "all the union men was going to do - if it was
him, he would keep his money in his pocket, all the union
men wanted to do was ride around in their Cadillacs and
buy booze, and said if it be a strike it would go for twenty-
four hours to forty-eight hours, a strike, and if we walk out
we won't get our job back, and saying that if you be late,
like riding the bus or car trouble, you get two warnings and
the third warning is terminated." Further, "He said if the
union come in we can't come to him no more. But at first
he had said, you know, his door is always open, but the
May 4th meeting he said if you have a problem you can't
come to him, you know, if the union come in."
Linda Niles, a nurse's aide, testified that at the meetings
in May, Stephenson said, "if we vote the union in, that if
we have any problem that we wouldn't be able to come to
him with our problems because he had to obey the union
contract, and he want us to keep our money in our pocket."
Stephenson testified that he read a speech to eight groups
of employees at these early May meetings. According to
Stephenson this speech had been reviewed and cleared by
his attorney before he delivered it. Stephenson testified that
he made exactly the same presentation to each group and
that at each meeting an employee followed the speech as it
was being read. The testimony of Niles and other
Respondent witnesses appears to support Stephenson's
contention that he read the speech (G.C. Exh. 7)
It is my opinion, based on the entire record, that
Stephenson did read the speech as it appears in the record.
Further, that the recollections of the General Counsel's
witnesses as to the reading was not totally accurate which
accounts for the discrepancies between what Stephenson
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actually read to the employees and the various versions
advanced by the General Counsel's witnesses. Accordingly,
I conclude that the unfair labor practice allegations based
on the early May speeches of Stephenson have not been
established and I shall recommend that these allegations be
dismissed. 6
It is undisputed that when Stephenson came to the
nursing home he granted employees an additional holiday
in February 1976. This was designated a birthday holiday
but could be taken by the employee at any time of the year.
Stephenson testified that he was unaware at the time he
gave the holiday that there was any union activity going on
at the nursing home. According to Stephenson, the holiday
was designed to provide an incentive for the employees to
do a better job. However, I do not believe that Stephenson
was unaware of the Union's pending organizational effort
at the nursifig home when he gave this holiday.
At the time Stephenson took over the operation of the
nursing home in January 1976, the representation matter
was pending, as noted above, pursuant to the Charging
Party's appeal from the Regional Director's dismissal of
the petition. The Regional Director was reversed on April
6, 1976, and an election was held on May 6, 1976.
Stephenson testified that he was interviewed for the
position by a Mr. Steakly, president of the board of
directors of Respondent, at Stephenson's home on or about
January 15, 1976, where they discussed the general
operating conditions at the nursing home, but, according to
Stephenson, did not discuss the Union. Stephenson did
concede that he heard talk about the Union after he came
to the nursing home but that it was just a general
discussion with some staff members. In later testimony,
Stephenson appears to contradict his earlier testimony that
the Union was not mentioned in his discussions with
Steakly. Thus, he testified concerning his conversation with
Steakly:
A. I knew there had been activity there prior to
that.
Q. Didn't you inquire as to what the status of it was
at this time?
A. From the knowledge that I was given or
assumed at the time that there was a waiting period
before another election would be held.
Q. Right, so you and Mr. Steakly discussed that,
that this matter was in limbo at this time because it was
pending an appeal with the Board in Washington?
A. That I didn't know, that there was an appeal in
Washington.
Q. But you knew it was pending?
A. No I didn't.
JUDGE DONNELLY: Wait a minute. Did you know
that there was a possibility that another election would
be conducted out there?
WITNESS: I knew there was a possibility another
election would be conducted, right.
Shortly thereafter, the following exchange took place:
6 This finding is limited to those allegations contained in the complaint
and should not be interpreted as passing on the legality of the speech in its
entirety.
Q. (By Mr. Stanford) Am I to understand - I want
to get this straight that this is your testimony - that
Mr. Steakly, the Chairman of the Board, in his talk in
interviewing you at the time you were to be the highest
operating officer at Highview Nursing Home, that he
didn't say anything to you about union activity out
there?
A. Nothing more than that they had had union
activity the year before.
Q. Did you ask him what it was or discuss it with
him?
A. To be perfectly frank with you I didn't go into
any details with him at all.
I am satisfied despite the somewhat conflicting testimony
of Stephenson, that he was aware at the time that he gave
the additional holiday in February 1975 that the possibility
of a representation election among Respondent's employ-
ees existed as a viable pending matter. As to the
motivation, Ezel Colbert and Bobby Russell testified that
Stephenson alluded in the April meetings to the granting of
this holiday as an example of what had been done for the
employees without the union. Such remarks in context with
the other coercive remarks made at the time of these
meetings support the conclusion that the granting of the
holiday, particularly the timing thereof, was designed to
influence the outcome of election. This conclusion is
further supported by the other extensive and substantial
8(a)(1) violations noted above which predated the raise. As
noted by the Supreme Court in the Exchange Parts case,7
"Other unlawful conduct may often be an indication of the
motive behind a grant benefit while an election is pending,
and to that extent it is relevant to the legality of the grant
g. No-distribution rule
As noted above the General Counsel amended the
complaint to allege the promulgation and enforcement of
an invalid no-distribution rule. In support of the existence
of such a rule, Ezel Colbert testified that Stephenson, at the
meeting of employees attended by her on April 26, stated
that the employees were not to pass out union literature
anywhere in the hospital at any time. Stephenson denies
having made such a statement and the evidence discloses
that the Union did in fact distribute union literature
thereafter on the premises. There is no probative evidence
to show that employees were restricted or limited in their
distribution of union literature. In these circumstances, I
find that General Counsel has not met its burden of
establishing that there existed any invalid no-distribution
rule and I shall recommend dismissal of that allegation.
h. Employee interrogation 5y Respondent's counsel
As noted above the complaint was amended to allege
that Respondent's labor attorney, Claud L. McIver III,
unlawfully interrogated employee Opel Davis. Davis
testified that on September 13, 1976, the director of
nursing, Mr. Wheeler, took her to an office where McIver
I N.LR.B. v. Exchange Parts Company, 375 U.S. 405 (1964).
1256
HIGHVIEW, INCORPORATED
interrogated her about the contents of an affidavit that she
had given to a National Labor Relations Board agent,
specifically statements about the meetings on or about
April 26, 1976. McIver admits that upon being advised that
Davis had been subpenaed, he arranged the interview with
her. McIver further testified that at the beginning of the
interview he read to her a one-paragraph statement
providing, inter alia, that the interview was being conduct-
ed for the purpose of securing information necessary to
defend against the unfair labor practice allegations. (Resp.
Exh. 4) McIver then questioned her about the allegations
of the complaint including the April 26 meetings. Upon
concluding the interview, McIver asked her to initial and
date the written one-paragraph statement, which Davis did.
Upon request Wheeler did likewise as did Mclver. Davis
does not dispute this version except to the extent that she
testified that she was read and asked to initial and date the
document after the interview. To the extent that Mclver
and Davis offer conflicting accounts of this incident and
based upon the credibility criterion noted above, I credit
Mclver. Accordingly, I conclude that this interview was
legitimate pretrial preparation for the unfair labor practice
hearing and that this portion of the complaint should be
dismissed.8
3. The 8(a)(3) allegation
a. Fullens' discharge
The record discloses that Mamie Fullens was the primary
moving force behind the Union's effort to organize
Respondent's nursing home. Respondent was made aware
that Fullens was involved in the organizational effort by
letter from Ron Reliford, dated January 29, 1975. It
contained a list of the employees on the Union's organizing
committee, which list included Fullens. Fullens does not
appear to have attempted to conceal her prounion
sentiments. For example, she wore a union button
beginning in January 1976 and, as noted above, was
ordered to remove it by both Brown and Griggs on her last
day of work for Respondent.
With respect to the events leading to her discharge,
Fullens testified that she had been ill for some 2 months
prior to February 20, 1976, but had worked anyway. She
became ill with the flu over the weekend to the extent that
she was unable to report to work on Monday, February 23,
1976. She called the office prior to 8 a.m., but got no
answer until 8 a.m., when she spoke to Mary Wakem, the
personnel director. She told Wakem that she was ill and
was going to see the doctor. On the same day, at or about
8:30 a.m., Fullens saw Dr. P. Q. Yancey who advised her
that she had the flu and "near had pneumonia," and
recommended 2 weeks of bed rest telling her to check back
with him in 2 weeks. She got a written excuse from Dr.
Yancey which she sent to work via another employee.
Fullens testified that she remained out of work with the flu
8 Respondent contends that this allegation of the complaint should be
dismissed because General Counsel failed to follow its own regulations by
amending the complaint to allege the commission of an unfair labor practice
by an attorney without prior approval of the Division of Operations
Management. citing sec. 11751.3 of the National Labor Relations Board's
Casehandling Manual on Unfair Labor Practice Proceedings, Part I. First,
until Monday, March 8. During the interim she called
Wakem every morning to report her physical condition and
would advise Wakem that she had been told by her doctor
to stay in bed for 2 weeks. Wakem replied that she was
sorry that she was sick and would be glad when she was
well and able to return to work.
Fullens saw Dr. Yancey again on Friday, March 5, and
he released her to go to work giving her a note to take with
her. On this same day, she called Wakem who told her that
she (Wakem) had been told by Brown to dismiss her but
that she should come to work and bring "your last doctor's
slip from the doctor."
On Monday, March 8, Fullens clocked in at 6:45 a.m.,
and performed her normal duties until about 8 a.m., when
the office opened and Wakem arrived. At this time she
went to Wakem's office with the doctor's slip. Wakem told
her that she did not know what to do about it and to wait
until Brown came in about 8:30 a.m. Fullens returned to
work until she was paged over the intercom system shortly
after 8:30 a.m. to report to Brown's office, where Brown
told her that she had been warned about "laying off the
job" and being late saying "I can't use you no more."
When Fullens remonstrated, Brown told her that she was
absent too much because of her own illness and illness in
her family. Fullens protested that the family illness had
been occasioned by accidents to her son while she was at
work and she had been told by her supervisor, Norva
Griggs, to go home each time. Fullens did not prevail and
she was discharged.
Dianne Brown was director of nursing at the nursing
home from June 1975 until May 1976, when she left the
employ of Respondent. Brown testified that upon review-
ing certain absenteeism and lateness reports for the first
weeks in February 1976 furnished to her by Personnel
Director Mary Wakem, she noticed Fullens' absences and
asked Mary Wakem on about February 18, 1976, to do an
analysis of Fullens' absenteeism. Wakem did an analysis
which, according to Brown, disclosed that Fullens had
been absent for 20 days and late 15 days from January 1
through February 18, 1976.9 Based upon these figures
Brown decided to discharge Fullens. According to Brown,
she made the decision on about February 27 at which time
she notified Wakem that Fullens was to be terminated
when she came back. She also told the charge nurse, Mrs.
Washington, to the same effect and asked Washington to
tell her when Fullens came back so that she could
terminate her. Brown also testified that discharges are
made by the administrator and that she did not have such
authority herself. In Fullens' case she spoke to Stephenson
twice shortly before notifying Wakem and Brown on
February 27 of the decision and Stephenson approved of
Brown's discharge recommendation.
According to Brown, when Fullens returned to work on
March 8, they reviewed her record of absenteeism and
according to Brown she told Fullens, "I have to maintain
patient care, and this shows that you have been out quite a
these are internal guidelines which the Respondent has no standing to
invoke. Second, even as written, they apply to the issuance of complaints
rather than to the amendment of complaints after issuance.
9 Apart from the timecards. Respondent introduced no documents to
support these figures.
1257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bit of time, and I am going to have to terminate you
because of this." Thereafter, she took Fullens to personnel
to be processed through termination.
Brown concedes that she was aware that Fullens was
absent for a bona fide reason i.e., the flu at the time the
decision to discharge her was made.
Mary Wakem, personnel director, testified that she made
an analysis of Fullens' record of absenteeism at Brown's
request which, according to Wakem, disclosed that Fullens
was absent 20 days and late 15 times during the review
period which was January I through February 25, 1976.
Upon inquiry by Stephenson, she confirmed that the
figures had been documented. Wakem testified that all
absent days, except holidays, were reported to Brown
whether excused or unexcused.
With respect to the timecards, Wakem testified that
beginning January 1, 1976, the shift hours were changed
from 7 a.m. to 3 p.m., to 6:45 a.m. to 3:15 p.m., thus adding
1/2 hour per work shift. This was done on the other shifts
giving a 1/2 hour overlap on the shifts. Employees were
given a 7-minute leeway at the beginning of each shift, i.e.,
they could be 7 minutes late without being considered
tardy, at which time they would have been docked one
quarter hour pay. Timecards in evidence do not reflect any
tardiness by Fullens. Wakem also concedes that she has no
evidence that any of Fullens' tardiness or absences were
not legitimate.
b. Discussion and analysis
It is clear that Mamie Fullens was the instigator of the
Union's organizational effort. She was primarily responsi-
ble for contacting union representatives of both the Union
and the Service Employees. She also secured authorization
cards for the Union from about one-third of the employees.
It is equally clear in my opinion that Respondent was
aware that she was an active union adherent. Myers, the
prior administrator, was aware of it through correspon-
dence from the Union listing the members of the Union's
organizing committee, which included Fullens. Indeed,
Anne F. Jenkins, a former charge nurse and a supervisor,
assisted Fullens in the matter of obtaining authorization
cards from employees. Also, it appears that buttons were
worn by many employees at work including Fullens. This is
apparent from the incident noted above wherein Brown
and Griggs ordered Fullens to remove the union button.
Obviously the wearing of the button was a disclosure of
Fullens' prounion sentiments. It is also significant that
after having ordered Fullens to remove the union button
and predicting discharge for those who did not, that
Fullens persisted in continuing to wear her button; told
both Brown and Griggs that she would continue to wear it;
and was discharged when she next returned to work after
her illness.
Respondent contends that Fullens was discharged
because of excessive absenteeism. In my opinion this
explanation is not substantiated by the record. Respondent
witnesses Brown and Wakem testified that Fullens was
absent 20 times and late 15 times; however, neither testified
"' The evidentiary reliability of the timecards is suspect in my opinion.
There appear to be erasures substituting numbers of hours on certain of the
with any precision as to the time period reviewed, nor did
they agree with each other as to that matter. Stephenson,
who testified both that he did and did not participate in the
decision to discharge Fullens, did not agree with Brown
and Wakem as to the extent of Fullens' absences and
latenesses since he testified to 46 instances of tardiness by
Brown in addition to numerous absences. Certain person-
nel documents which were alluded to in the testimony of
Respondent's witnesses which would appear to support
Respondent's position were not introduced into evidence.
The above conflicting accounts cast considerable doubt
that any sort of full review was given by Respondent to
Fullens' record of absenteeism. Certainly the timecards,
which were introduced, do not support Respondent's
position that Fullens was late 15 times,' ° particularly since
employees were not regarded as late until 7 minutes past
their starting time. In the case of Fullens, this would have
been 6:52 a.m.
The record does appear to support the conclusion that
Fullens had several absences during the review period;
however, this was not, in my opinion, the motivation for
discharge. First, none of these absences were unexcused
and, insofar as Respondent was aware, they were all
legitimate. The record may not be exhaustive, but it
appears that many of these absences were due to a
persistent bout that Fullens had with the flu. Other
absences were caused by accidents to her son. Wakem
alluded to jury duty as explaining other absences. Clearly
she was ill with the flu and absent with a doctor's excuse
during the latter part of the review period when Brown and
Stephenson decided to terminate her. Respondent argues
that excessive absenteeism for any reason justifies dis-
charge. It is undoubtedly true that discharge for any reason
except union or concerted activity vindicates insofar as any
8(a)(3) allegation is concerned, but in evaluating the
proffered justification, that is, in determining whether or
not Respondent's explanation is or is not a pretext, the
reasonableness of the action must be judged. In my
opinion, it does not withstand that scrutiny.
Brown testified that as director of nursing she did not
normally initiate the termination procedure. She testified
that this was normally done through a chain of command
beginning with the immediate supervisor until it reached
her. In Fullens' case, no supervisors except Brown and
Stephenson participated in the decision to discharge her.
The normal progression was short circuited. Brown
explained that she initiated the action in Fullens' case
because Fullens' immediate supervisors were not doing
their jobs. However, this explanation does not satisfy,
particularly where the record does not disclose any record
of unauthorized absences which would have alerted
Fullens' immediate supervisors.
Respondent also contends that it had a policy that
required discharge of an employee upon a third warning.
Brown testified she saw two prior warnings in Fullens'
personnel folder; however, only one was produced at the
hearing (Resp. Exh. 5). Apart from Brown's testimony that
the other dealt with absenteeism, we are left to pure
speculation about it. Even as to whether it was a written
timecards which were not adequately explained by Wakem, the custodian of
the cards and the person responsible for the erasures.
1258
HIGHVIEW, INCORPORATED
warning or simply oral with a notation in the file. The date
of the warning is also undisclosed. Despite the fact that the
written warning alluded to a prior warning, it is passing
strange that Respondent should introduce one such written
warning and not the other, if it in fact exists. The only prior
written warning in evidence was unrelated to the matter of
absenteeism and thus is not evidence of any history of
absenteeism in Fullens' work record. It is significant to
note that while Respondent takes the position that
discharge upon a third warning is mandatory, this position
is not supported by Respondent's personnel director,
Wakem, who testified that an employee could receive as
many as five warnings and still not be terminated,
depending on the offense. In these circumstances, it
appears to me that the precipitous discharge of Fullens,
without consultation or warning indicates that her absen-
teeism was a mask for Respondent's illegal motive in
discharging her.
In these circumstances, including particularly the direct
evidence of motivation furnished by threats of discharge to
her for wearing a union button, and the extensive 8(aX)()
misconduct herein, I conclude that Fullens was discharged
for her activity on behalf of the Union.
IV. OBJECTIONS TO THE ELECTION
The objections herein are coextensive with the allega-
tions of the complaint. Accordingly, and to the extent that
I have found merit to the unfair labor practice allegations, I
also conclude that the objections based on such miscon-
duct are sufficient to warrant setting aside the May 6, 1976,
election. It is therefore recommended that the Board set
aside the May 6, 1976, election and remand Case 10-RC-
10256 to the Regional Director for Region 10 for the
purpose of conducting a new election at such time as he
deems the circumstances permit the free choice of bargain-
ing representative.
V. CHALLENGED BALLOTS
At the election on May 6, 1976, the ballots of Betty
Butler, Emma Lou Dozier and Girleen Chappel were
challenged by the Board agent pursuant to the Board's
Decision on Review and Direction of Election, since they
represented unresolved supervisory issues. The petitioner
challenged the ballots of Rebecca Stevens and Carolyn
Strickland as office clericals. The Board challenged the
ballot of Johnnie Mae Dozier as a supervisor. The Board
also challenged the ballots of Curtis Nelson, Thomas
Johnson, Rosa Adams, Corine Whiteside, Gino Williams,
Darryl Hawkins, Mamie Lee Fullens, and Wreather Nell
Sears since their names did not appear on the eligibility list.
Even assuming that the petitioner received all 14 of the
challenged ballots, the results of the May 6, 1976, election
would not be affected. Obviously, the same is true if all 14
ballots were added to the totals of either the Service
Employees or against the participating labor organizations.
In these circumstances, I shall leave unresolved the
challenged ballots since no useful purpose will be served by
i" The General Counsel and Charging Party urged that remedial relief
should include a bargaining order under the Gissel line of cases (N.LR.B. v.
Gicse/ Packing Co., Inc., 395 U.S. 575 (1969)). Such relief is deemed
resolving them in view of the fact that direction of a new
election is being recommended.
However, I note, solely for the purposes of the record,
that the parties resolved 9 of the 14 challenges by
stipulation at the hearing. It was stipulated that Betty
Butler, Emma Lou Dozier, Girleen Chappel, and Johnnie
Mae Dozier are not supervisors and therefore are eligible
voters. It was also stipulated that Rosa Adams, Corine
Whiteside, Gino Williams, Darryl Hawkins, and Wreather
Nell Sears are eligible voters whose names had been
inadvertently left off the eligibility list submitted by the
Employer.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tion described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
VII. REMEDY
1 1
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that Respondent discharged Mamie Lee
Fullens for reasons which offended the provisions of
Section 8(a)(3) and (1) of the Act. I shall therefore
recommend that Respondent make her whole for any loss
of pay which she may have suffered as a result of the
discrimination practiced against her. The backpay provid-
ed herein shall be computed in accordance with the
Board's formula set forth in F: W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon at the rate of 6
percent per annum computed in the manner prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Nothing in the Order shall be construed as requiring
Respondents to withdraw from employees the additional
holiday granted to them.
Upon the basis of the foregoing findings of fact and
conclusions, and upon the entire record in this case, I
hereby make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Marguerite Martineau is a supervisor and an agent
of Respondent within the meaning of Section 2(11) and
(13) of the Act.
unwarranted where, inter alia, there has been no showing of majority
representation by the Union among Respondent's employees, as in the
instant case.
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, Respondent has engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
5. By discharging Mamie Lee Fullens thereby discrimi-
nating in regard to her hire and tenure of employment in
order to discourage membership in the Union, Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
National Labor Relations Act as amended, I hereby issue
the following recommended:
ORDER 12
Respondent, Highview, Incorporated, its officers, agents,
successors and assigns shall:
1. Cease and desist from:
(a) Threatening to withhold benefits from employees in
reprisal for engaging in union activity.
(b) Threatening employees with discharge for engaging
in union activity.
(c) Interrogating employees concerning their union
membership and activities.
(d) Interrogating employees concerning the union mem-
bership and activities of other employees.
(e) Creating the impression of surveillance of its
employees' union activity in order to discourage member-
ship in and activities on behalf of a labor organization.
(f) Ordering employees to remove union buttons from
their clothing.
(g) Promising employees a wage increase if they rejected
a union as their collective-bargaining representative.
(h) Granting employees paid holidays for the purpose of
causing said employees to reject a union as their collective-
bargaining representative.
(i) Discharging employees, thereby discriminating in
regard to their hire and tenure of employment in order to
discourage membership in American Federation of State,
12 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order, herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes.
County and Municipal Employees, AFL-CIO, or any
other labor organization.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Offer to Mamie Lee Fullens immediate and full
reinstatement to her former job or, if it no longer exists, to
substantially equivalent employment and make her whole
for any loss of pay which she may have suffered as a result
of the discrimination practiced against her in the manner
set forth in the Section of this Decision entitled the
"Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records and reports, and all
other records necessary to analyze the amounts of backpay
due herein.
(c) Post at its nursing home facilities in Fulton County,
Georgia, copies of the attached notice marked "Appen-
dix."'3 Copies of the notice on forms provided by the
Regional Director for Region 10 after being duly signed by
Respondent's authorized representatives, shall be posted
by it immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced or covered
by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the election held on May 6,
1976, in Case 10-RC-10256 is hereby set aside and said
case remanded to the Regional Director for Region 23 to
conduct a new election when he deems that the circum-
stances permit the free choice of a bargaining representa-
tive.
IT IS FURTHER ORDERED that the complaint herein be
dismissed insofar as it alleges violations of Section 8(a)(1)
of the Act other than as specifically found herein.
13 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
1260