St. Mary's Infant Home

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1024 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Mary's Home, Inc. t/a St. Mary's Infant Home
and Professional and Health Care Division,
Retail Store Employees Union, Local 233, Char-
tered by the United Food and Commercial
Workers International Union, AFL-CIO-CLC.
Cases 5-CA-11924, 5-CA-12023, 5-CA-
12108, and 5-CA-12276
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JNKINS, AND
ZIMMERMAN
On June 5, 1981, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this
proceeding. Thereafter, Respondent and the Gener-
al Counsel filed exceptions and supporting briefs,'
and each filed briefs in opposition to the exceptions
of the other party. Finally, the General Counsel
filed a motion to strike a portion of Respondent's
brief in opposition to the General Counsel's excep-
tions. 2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board 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, briefs,
and motion to strike, and has decided to affirm the
rulings, 3 findings, 4 and conclusions 5 of the Adminis-
' Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties
2 On August 19. 1981, counsel for the General Counsel filed a motion
to strike, in which he moved that the following portion of Respondent's
response to the General Counsel's exceptions be stricken:
lMoreover, General Counsel has already shoswnl its willingness to
pursue unfair labor Complaints when St. Mary's contacted state au-
thorities about employee misbehavior (5-CA-12784). Again. Geineral
Counsel takes the inconsistent position of arguing that St. Mary's
demonistrates ati-uilion bias by going to state authorities ad also by
not going to state authorities.
Counsel for the General Counsel argues, in sum. that the "facts advert-
ed it by Respondent in these sentences" are not based on record evi-
dence anld. as such. must be ievved as all attempt b Rcesponden to
"thrust its 'evidence' before the Board e·x parle.. Upoll due consideration,
we hereby deny counsel for the (jencral Counsel's motion, iasmuch as it
is our view that such language is imore properly characterized as argu-
ment. and thus [lot bound by the strictures applicable to post-hearinlg sub-
missill Orf evidence.
' 7The consolidated complaint herein which issued on April 9. 1980. al-
leges that Respondent maintained all unlawfully broad no-solicitation
rule. On the first day of hearing, counsel for the General Counsel moved,
and the Administrative Laws Judge allowed, an amendment alleging that
the rule in question had been unla fully promulgated "oil or about
August 16, 1979.' Thereafter. and as part of his brief to the Administra-
tive l.aw Judge, counsel for the General Counsel moved that the allega-
tion regarding "promulgation" of the no-solicitation rule be withdrawn
In denying that motioln. and ultimately finding that Respondenlt had un-
lawfully promulgated and maintained a unlawfully broad no-solicitaion
rule. the Administrative Law Judge noted that "the interference aitih em-
ployc rights highlighted in the ["promulgation"] allegation bears a suffi-
trative Law Judge and to adopt his remedy6 and
recommended Order, as modified herein. 7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
cient relationship to the matters raised and the charge filed on February
13, 1980 . . to neutralize argument that Section 1O(b) of the Act bars a
claim of 'promulgation."' (See the Decision of the Administrative Law
Judge at fn. 10.) Although we agree with the Administrative Law Judge
that counsel for the General Counsel's motion to withdraw the "promul-
gation" allegation should be denied, we note that the Administrative Law
Judge did not squarely meet the 10(b) issue raised by the record evi-
dence. Thus, the charge in Case 5-CA-11924 was filed on February 13,
1980: and although counsel for the General Counsel's amendment alleged
that promulgation of the rule occurred "on or about August 16, 1979,"
the record reflects only that promulgation took place sometime during
the month of August 1979, raising the possibility that the rule took effect
prior to August 13, 1979, and outside the 6-month limitation period pre-
scribed by Sec. 10(b) of the Act. In Knapp Foods. Inc. d/b/a Hi-Lo Foods,
247 NLRB 1079 (1980), that Administrative Law Judge, faced with a sit-
uation identical to the one we now consider, reasoned that, since Sec.
10(b) is an ordinary statute of limitations, it is an affirmative defense
which must be asserted in a timely manner by anyone wishing to rely
upon it. He then stated, with Board approval, that:
Because the statute of limitations contained in Section 10(b) is an af-
firmative defense, the burden of proving the facts which support the
defense necessarily rests upon a respondent who pleads it. If a re-
spondent fails in that burden, the consequence of such failure is a
finding that a violation has occurred, if General Counsel has met his
burden of establishing facts sufficient to prove a violation. [Knapp
Foods, supra ALJD, sec. I,C,I, par. 3.]
Thus, in order to have established a 10(b) defense herein, Respondent
had the burden of proving that the rule was promulgated prior to August
13, 1979 Respondent, however, came forth with no such evidence, nor is
there otherwise such record evidence. Accordingly, we hold that Re-
spondent herein has not met its burden of proof, and did not, therefore,
establish a 10(h) defense. On that basis, we conclude that the substantive
violation of unlawful promulgation has been proved and must be allowed
to stand.
4 Respondent and the General Counsel have excepted to certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolu-
tions 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, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings. We do not, however, rely on the Admin-
istrative Law Judge's analysis insofar as he appears to take administrative
notice of the potency of the hot sauce in question. (See ALJD at fn. 33.)
In addition, in adopting the Administrative Laws Judge's Decision, we do
not pass upon his comments as set out in fii. 2 of his Decision.
We also find totally without merit Respondent's allegations of bias and
prejudice on the part of the Administrative Law Judge, since we do not
perceive any evidence that the Administrative Law Judge prejudged the
case, made prejudicial rulings, or demonstrated a bias against Respondent
in his analysis or discussion of the evidence.
Finally, the Administrative Law Judge's Decision contained several in-
advertent errors which we corrected.
s The Administrative Law Judge's Conclusions of Law are hereby
amended to reflect his finding that Respondent unlawfully promulgated
the unlawfully broad no-solicitation rule under consideration herein.
, In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980). Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
We shall modify the recommended Order and notice of the Adminis-
trative Law Judge to conform with his unfair labor practice findings.
258 NLRB No. 134
1024
ST. MARY'S INFANT HOME
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
St. Mary's Home, Inc. t/a St. Mary's Infant Home,
Norfolk, Virginia, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Promulgating and maintaining any rule
which precludes employees from engaging in union
solicitation on their own time, in nonworking, non-
patient care areas."
2. Substitute the following for paragraph (f):
"(f) Soliciting grievances from employees under
conditions calculated to influence them to with-
draw their support from the Union, and threatening
employees with reprisals if they fail to cooperate
with management's efforts to solicit their griev-
ances.
3. Insert the following as paragraph 2(b) and re-
letter subsequent paragraphs accordingly:
"(b) Expunge from its files any reference to the
discharge of Sheila Mitchell, and notify her in writ-
ing that this has been done and that evidence of
this unlawful disciplinary action will not be used as
a basis for future discipline against her."
4. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein be, and they
hereby are, dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT promulgate or maintain any
rule which forbids you from engaging in union
solicitation on your own time, in nonworking,
nonpatient care areas of St. Mary's Infant
Home.
WE WILI. NOT question you as to your own
union activities or the union activities of your
coworkers.
WE WII.L NOT threaten you with reprisals,
including blacklisting, discharge, loss of bene-
fits, or closure of St. Mary's Infant Home, be-
cause of your involvement in union activity.
WE WILL NOT tell you that union authoriza-
tion cards will be shown to management or
that those who cooperate with the National
Labor Relations Board by giving statements or
testifying will suffer an uncomfortable experi-
ence.
WE WIll.l. NOT instruct you to engage in sur-
veillance of, and to report on the union acti'/i-
ty of, coworkers; nor will we tell you that
your union activities are known and subject to
surveillance.
WE WII.L NOT solicit your grievances and
complaints in order to dissuade you from sup-
porting the Union.
WE WIl.l. NOT threaten you with reprisals if
you fail to cooperate with our efforts to solicit
your grievances.
WE WIl.L. NOT tell you that you can be sued
because of your involvement in union activity.
WE WILL NOT refuse to bargain with Profes-
sional and Health Care Division, Retail Store
Employees Union, Local 233, chartered by the
United Food and Commercial Workers Inter-
national Union, AFL-CIO-CLC, by dealing
directly with employees concerning wages,
hours, and terms and conditions of employ-
ment in the appropriate unit, consisting of:
All regular full-time and regular part-time
nurse's aides, housekeeping employees, laun-
dry employees, maintenance employees,
food service employees, sewing employees,
and classroom aides employed by St. Mary's
Home, Inc. t/a St. Mary's Infant Home at
its Norfolk, Virginia, facility; excluding all
other employees, office and clerical employ-
ees, medical record clerks, professional and
technical employees, guards and supervisors
as defined in the Act.
WE WILI. NOT discharge, or in any other
manner discriminate against you because you
have engaged in activity on behalf of the
above-named Union, or any other labor orga-
nization.
WE WII.L NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to self-organization to form, join, or
assist the above-named Union, or any other
labor organization, to bargain through repre-
sentatives of your own choice, and to engage
in any other concerted activities for the pur-
pose of collective bargaining or other mutual
aid or protection, or to refrain from any or all
such activities.
Wi: WIl. offer Sheila Mitchell immediate
and full reinstatement to her former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to her
1025
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seniority or other rights and privileges, and
WE WILL make her whole, with interest, for
any loss of pay she may have suffered as a
result of our unlawful discrimination against
her.
WE WIt.i expunge from our files any refer-
ences to the discharge of Sheila Mitchell, and
WE WILL notify her in writing that this has
been done and that evidence of this unlawful
disciplinary action will not be used as a basis
for future discipline against her.
ST. MARY'S HOME, INC. T/A ST.
MARY'S INFANT HOME
DECISION
STATEMENT OF THE CASE
JOE. A. HARMATZ, Administrative Law Judge: This
proceeding was heard by me on October 21, 22, and 23,
1980, and January 21, 1981, upon an original unfair labor
practice charge filed on February 13, 1980, and four sep-
arate complaints issued on April 9 (5-CA-11924), on
April 30 (5-CA-12023), on May 20 (5-CA-12108), and
July 31 (5-CA-12276). The complaints as amended
charge St. Mary's Home, Inc. t/a St. Mary's Infant
Home, herein called Respondent or the Home, with a
variety of independent 8(a)(1) violations, and also allege
that Respondent discriminated in violation of Section
8(a)(3) and (1) by discharging Sheila Mitchell and Odessa
M. Johnson, and by giving a written reprimand to
Sharon Akers, all in reprisal for union activity. The com-
plaints further allege that Respondent violated Section
8(a)(5) and (1) of the Act by bypassing Professional and
Health Care Division, Retail Store Employees Union,
Local 233, Chartered by The United Food and Commer-
cial Workers International Union, AFL-CIO-CLC,' the
Union, as certified representative, and bargaining directly
with employees concerning the establishment of a new
employee handbook and a procedure for investigating al-
leged work infractions. In its duly filed answer, Re-
spondent denied that any unfair labor practices were
committed. At the close of the hearing, briefs were filed
on behalf of the General Counsel and Respondent.
Upon the foregoing, and the entire record in this pro-
ceeding, 2 including consideration of the post-hearing
Name appears as corrected at the hearing.
2 Judgment by those responsible for shaping the course of litigation
under this Act may be of greater urgency than innovative efforts of "pipe
line" and "special task force" committees if casehandling processes are to
he rendered more efficient and less taxing of private and public resources.
The formal papers introduced by the General Counsel in this proceeding
consist of no less than 43 separate documents, plus attachments. Within
those documents are four separate complaints as well as an amendment to
the complaint. At the hearing, counsel for the General Counsel amended
three of the four complaints to add additional unfair labor practice allega-
tions. Although the separate cases and complaints were consolidated, the
Regional Director, as plainly is within his discretion, elected not to incor-
porate all unfair labor practice allegations into a single consolidated com-
plaint. Nonethless, on this state of the pleadings, one is required to rum-
mage through a miscellany of documents in order to determine precisely
what was alleged, when, and against whom. The drafting of pleadings in
this fashion leads to confusion, is insensitive to the time of others, and
briefs, and direct observation of the witnesses while testi-
fying and their demeanor, I hereby make the following:
FINDINGS 01 FACI
I. THE BUSINESS OF RI-SPONDI)NT
Respondent is a Virginia corporation engaged in the
operation, on a nonprofit basis, of a medical and residen-
tial care facility at its Norfolk, Virginia, location. During
the calendar year ending December 31, 1979, Respond-
ent derived gross revenues in excess of $250,000 from
said operation. In 1979, a representative period, the Em-
ployer purchased goods and services valued in excess of
$80,000 from suppliers located within the State of Vir-
ginia which, in turn, purchased those goods and services
from firms located outside the State of Virginia. 3
As an affiliate of the Roman Catholic Church, Re-
spondent functions as a constituent of the Catholic Dio-
cese of Richmond, Virginia. Accordingly, Respondent
resists the assertion of jurisdiction herein on grounds that
the Home is operated by a religious order for religious
purposes and hence, "the exercise of ... jurisdiction is
in violation of the First Amendment of the Constitution
of the United States of America and the interpretation of
that amendment by the United States Supreme Court in
N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490
(1979), and other cited cases."
However, this precise question was raised and previ-
ously considered in Case 5-RC-11096. In that connec-
tion, the Board in both a request for review from the Re-
gional Director's Decision and Direction of Election as
well as the Regional Director's "Supplemental Decision
and Certification of Representative," rejected such a
claim and asserted jurisdiction. 4
Based on the foregoing, I find that Respondent is, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent at the hearing stip-
ulated, and I find that Professional and Health Care Di-
vision, Retail Store Employees Union, Local 233, Char-
tered by the United Food and Commercial Workers In-
ternational Union, AFL-CIO-CLC, is and at all times
material herein, has been, a labor organization within the
meaning of Section 2(5) of the Act.
increases the risk of errors of omission. It has been my experience that
most NLRB Regions have the foresight, sensitivity, and concern for ex-
pedition to avoid such consequences by reasserting all operative unfair
labor practice allegations in the most current complaint. Unfortunately. as
the formal papers in this proceeding acknowledge, this small step for
clarity and expedition has not been adopted by the General Counsel
throughout Regions on a uniform basis. In this instance, pursuant to
instructions by me at the hearing, counsel for the General Counsel
herein, through a "cut and paste" technique, provided a single reproduc-
tion of all allegations. That document has been admitted into evidence as
ALJ Exh I.
: See G.C. Exh. 2(e), p. 5, and G.C. Exh. 2(g).
See G.C. Exh. 2(g) and (i). See also Si. M.urv' Ilome. Inc., 255 NLRB
1139 (1981).
1026
ST. MARY'S INFANT HOME
tll. THE Al I.EG(i) UNFAIR I AROR PRACTICES
A. Background and the Issues
The issues in this case arise in the context of an initial
organizational campaign which began in December 1979,
among employees in a resident care home operated for
the extension of treatment, training, counseling, and
health care to physically and mentally handicapped chil-
dren. Thus, the Union filed an election petition on Janu-
ary 21, 1980,5 and pursuant thereto an election was con-
ducted on April 2, in a service unit consisting of nurses
aides, housekeeping employees, laundry employees.
maintenance employees, food service employees, sewing
employees, and classroom aides. The tally of ballots
shows that of approximately 89 eligible employees, 46
cast votes for and 39 against representation by the
Union, with 4 challenged ballots which were insufficient
to affect the results. Prior to the instant hearing, the
Union was certified on May 20. and the Board denied
Respondent's request for a review therefrom on July 9.
Thereafter, on April 21, 1981, the Board found that Re-
spondent had violated Section 8(a)(5) and (1) by refusing
to recognize and bargain with the Union in the aforesaid
unit. 6
The separate complaints in this proceeding include in-
dependent 8(a)(1) allegations imputing various acts of in-
terference to no less than 7 alleged supervisors or agents
of Respondent, accounting for some 26 incidents, includ-
ing 7 acts of interrogation. Beyond this effort to afford
an exhaustively comprehensive remedial notice in the
face of an extant certification, more serious issues emerge
from the discharges of Sheila Mitchell and Odessa John-
son and an alleged disciplinary citation issued to Sharon
Akers. Finally, based on conduct occurring during the
interim between the election and certification, an 8(a)(5)
allegation challenges direct dealing between Respondent
and employees concerning changes in working condi-
tions.
The various allegations of the complaint, in the main,
give rise to comprehensive and determinative issues of
credibility, which are resolved as set forth below.
B. Interference, Restraint, and Coercion and the
Refusal To Bargain
I. The no-solicitation rule
It is alleged that Respondent since on or about August
16, 1979, unlawfully promulgated and maintained an un-
lawfully broad no-solicitation rule. William M. Jolly, Re-
spondent's administrator, testified that he prepared a per-
sonnel handbook, which has been in effect since August
1980, and which included the following:
Soliciting of any kind and for any purposes is strict-
ly prohibited at St. Mary's Infant Home. If any em-
ployee learns that such activity is being conducted
they should report it to their supervisor or the di-
rector of nurses.
5 Unless otherwise indicated, all dates refer to 198o
'See 255 NLRB 1139
After development of the handbook, it was distributed
to all employees. The rule in question, on its face, ap-
prises employees that any and all forms of solicitation are
covered. Employee activity would violate the rule even
if conducted on nonworking time or in nonworking areas
having no influence on the quality of patient care.7 The
rule as published is not supported by a showing of spe-
cial circumstances, founded upon discipline or efficiency,
warranting so broad a restraint on employee activity. In-
stead, Respondent by way of defense urges that no viola-
tion be found as the evidence does not disclose that the
rule has ever been enforced, intended to apply to union
activity, or discriminatorily promulgated. The test of in-
terference, restraint, and coercion under Section 8(a)(l) is
whether conduct may reasonably be said to have a tend-
ency to interfere with the free exercise of employee
rights and does not depend on either motive or success-
ful restraining effect.9 Accordingly, as the rule on its face
not only bans union solicitation on nonworking time, in
nonpatient care areas, but also encourages employees to
report on those engaged in protected union activity, it
tended to impede employees in the exercise of their
rights guaranteed by the Act, and hence violated Section
8(a)(1).
2. By William Jolly and Sybill Judd
The instigator of union activity at the Home was
Sheila Mitchell. She was a relatively long-term employ-
'See Beth Israel Hospital v. N:.. R.B., 437 U.S. 483 (1978).
Al the hearing. I precluded Respondent from affording testimony
through Jolly as to "the purpose" underlying the provision in question.
Though said line as excluded. I expressly informed counsel for the Re-
spondent that he s.ould he permitted to examine the witness" . with
respect to any purpose that was communicated to the employees." In ad-
dition. an objectionl to Respondent's effort to elicit proof that the provi-
sion in question had not been enforced was sustained. Respondent made
no offers to the effect that employees were expressly informed as to limi-
tations on the rule as published In regard to these rulings. Respondent's
brief asserts that I precluded the introduction of extrinsic evidence that
the rule "was applied in such a manner to convey a clear intent to permit
union solicitation when legally allowed." Contrary to Respondent. this
constitutes an inaccurate portrayal of the basis for the rulings. their
scope, and the fact that they by n means impeded proof as to matters
communicated to employees. Clearly, neither nonenforcement of the rule
nor the fact that Respondent held an uncommunicated intent not to en-
force such a rule as against union activity overcomes the restraint on the
ability of employees to engage in union solicitation clearly conveyed on
the face of the rule. Nor would such private intentions discourage em-
ployees from reporting on coworkers engaged in union solicitation on
nonworking time in areas having no impact on patient care.
' See, e.g., N.oron Concrete Companv of Longwew. Inc.. 249 NLRB 1369
(1980).
'° In his brief. counsel for the General Counsel moved that the allega-
tions in the complaint in Case 5-CA-11924 regarding "promulgation" of
the no-solicitation rule he withdrawn The basis for this request is un-
clear. In my opinion, the interference with employee rights highlighted in
that allegation bears a sufficient relationship to the matters raised and the
charge filed on February 13, 1980. in Case 5-CA-11924 to neutralize ar-
gument that Sec. IO(b) of the Act bars a claim of "promulgation." While
the task of sifting through the esidence and examining the precedent with
respect to the plethora of 8(a)(1) conduct enunciated in the instant com-
plaints ",as such as to elcome the General Counsel's hand at jewelry
work on more complex matters. the issue of promulgation has beenl fully
litigated, it pses no substantial issues different from that of maintenance.
which remains siable, and on the record. constitutes a violation of the
Act Absent cause being shown. and based on the record made. it ill
not ffectuate the policies of the Act to delete this limited allegation from
the proceedinig

1027
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ee, and held the position of LPN on the 11 p.m. to 7
a.m. shift. Apparently, Mitchell's involvement in union
activity became known to management representatives in
January. William Jolly, the administrator of the Home,
and Sybil I. Judd, the then director of nursing, admitted-
ly, attempted to dissuade Mitchell from engaging in ac-
tivity on behalf of the Union in late January. These ef-
forts are the subject of independent 8(a)(1) allegations."
Mitchell was terminated on January 30, and her dis-
charge is the subject of an 8(a)(3) allegation. Respondent
defends with respect to the entirety of the aforesaid alle-
gations on grounds that Mitchell was a supervisor. The
alleged acts of interrogation and coercive interference
charged to Judd and Jolly present issues interwoven
with the question of discrimination, and shall be treated
in the section of this Decision dealing with the discharge
of Mitchell. Other independent 8(a)(l) allegations attrib-
utable to Jolly are considered immediately below.
Complaints herein include assertions that Respondent
violated Section 8(a)(l) through Jolly's alleged interroga-
tion of employees; his allegedly coercive statement per-
taining to the adverse consequences befalling those who
furnished affidavits to the National Labor Relations
Board; his telling employees to spy on the union activity
of others; and his threatening employees with closure of
the Home in the event that they did not agree to person-
nel policies.
With respect to the foregoing, the sworn affidavit fur-
nished by Jolly to a Board investigator prior to the hear-
ing includes an admission that he asked several nurses
aides if Mitchell had approached them to sign a union
card and that they responded in the affirmative. Al-
though Jolly testified that this occurred when employees
came to him inquiring about the cards, even if that were
the case, it does not appear that the inquiries were for
legitimate objectives or accompanied by assurances
against coercion. Accordingly, I find such interrogation
to have violated Section 8(a)(1) of the Act. 2
In a further incident, Sharon Akers, a nurses aide, tes-
tified that in February 1980 she initiated a conversation
with Jolly concerning a personal problem. Jolly referred
Akers elsewhere, stating that he had to go to court to
testify about the Union, going on to question Akers as to
her feelings about the Union. The foregoing was unden-
ied, and I find that Respondent violated Section 8(a)(1)
by this further act of coercive interrogation.
Laura Edwards, who was formerly employed by Re-
spondent as an LPN but was terminated in July 1980 for
taking an unauthorized leave of absence, testified that
Jolly instructed that she go around and find out as much
as she could about who was for the Union, to report
" The General Counsel argues that threats to discipline Mitchell were
unlawful even if Mitchell were a supervisor, because overheard by em-
ployee Pretlow. The General Counsel cited Avon Convalescent Center, 200
NLRB 702 (1972), in support. Although he neglected to spot cite the per-
tinent segment of that opus, he presumably refers to testimony of Annette
Gibbs as recited by the administrative law judge in that case, 200 NLRB
at 708. If so. the reasoning therein hardly stands for the proposition that a
threat to discipline a supervisor for engaging in union activity violates
Sec. 8(a)() because it as overheard by a rank-and-file employee. The
threat in that case was as follows: "there will be a lot of terminations
before a union gets in," a remark whose coercive scope was calculated to
reach employees generally.
" PPG Induries. Inc., Lexingtoin Plait, etr.. 251 NRH 1146 1190).
back to him, and to try to persuade union supporters not
to vote for the Union. Jolly afforded general testimony,
which implied a denial, but did not squarely refute the
testimony of Edwards. 3 Although I have reservations
concerning the overall credulity of Edwards, as she re-
ceived some corroboration in this respect from the testi-
mony of Joda Ballord, and indirectly from Zenobia Pret-
low and Gladys Jones, I credit Edwards to this limited
extent. Based thereon, and noting that the evidence does
not establish that at times material, Edwards, though an
LPN, was a supervisor," I find that Respondent violated
Section 8(a)(1) of the Act by instructing that she spy and
report back the union activity of her coworkers.
The complaints further allege that Respondent violat-
ed Section 8(a)(l) through statements made by Jolly dis-
couraging employees from giving affidavits to National
Labor Relations Board investigators. Francis Jackson,
Amelia Bensen, and Lillan McKenzie, all aides, were of-
fered to substantiate this allegation. Jolly admits to ex-
pressing the opinion to employees that those who gave
written affidavits to investigators of the National Labor
Relations Board would probably have to testify in court.
He does not dispute the testimony of the General Coun-
sel's witnesses that he indicated at the time that by ap-
pearing in court those who gave affidavits would have
"knots in their stomachs," but testified that he did not
recall describing this as in consequence of "the grilling
of lawyers." Based on the credited testimony of the Gen-
eral Counsel's witnesses, I find that he did. Consistent
with the position of the General Counsel, I find that
such statements by the chief operating management func-
tionary of the Home would tend to inhibit employees
from pursuing statutory remedies and to impede the
processes of the National Labor Relations Board, and, as
such, violated Section 8(a)(l) of the Act.
Finally, the complaints allege that Jolly threatened to
close Respondent's operation if the employees did not
agree to new personnel policies. There is no evidence
substantiating the precise terms of this allegation. How-
ever, Amelia Bensen, an aide at the Home, testified that,
at a group meeting held after the election, Jolly stated
that, if he could not develop communication with the
employees, "the only thing he see fit to do was to shut
down the place." Though it is fair to presume that the
meeting in question would have been attended by several
aides on the day shift, Bensen's testimony in this respect
a3 The colloquy in question between Respondent's counsel and Jolly is
set forth below:
Mr. Ryan: .. What instructions . . .did you give your staff as to
seeking information from employees with regard to union interests?
Mr. Jolly: I told my staff what they were allowed to do under law
and what they were not allowed to do under law, interrogation was
one of the things that was not allowed under law and I told them
that. I gave them . . . a hand out of things of do's and don'ts of a
supervisor.
Note that Jolly himself admittedly questioned employees concerning
union activity.
'4 Prior to her termination, Edwards worked primarily on the 7 a.m. to
3 p.m. shift. There is no evidence as to her duties, responsibilities, or au-
thority. The fact that Edwards may have been told that she was a super-
isor affords no foundation fior a finding that she held such status under
the Act. As shall be seen. infra. fn. 48. other portions of Edwards' testi-
mony concering Jolly's instructions seemed exaggerated and incredible.
1028
ST. MARY'S INFANT HOME
was left to stand uncorroborated. On the entire record,
though Jolly was not examined as to this aspect of Ben-
sen's testimony, I did not believe that Jolly made the
statement which Bensen attributes to him. The 8(a)(1) al-
legation based thereon shall be dismissed.
3. Georgia Patillo
The complaints as amended allege that Respondent
violated Section 8(a)(l) of the Act through Patillo's coer-
cive interrogation of employees concerning union activi-
ty, by telling them that the administrator was seeking to
ascertain the extent of employee support for the Union
on her shift, and by telling employees that, if the Union
were designated, employees would be fired and salaries
cut.
In support, counsel for the General Counsel afforded
testimony through Zenobia Pretlow, Gladys Jones, and
Margaret Johnson, all of whom were nurses aides on the
II p.m. to 7 a.m. shift. Patillo was a registered nurse and
an admitted supervisor on that shift. Pretlow testified
that in March, prior to the election, as she, Johnson,
Deborah Coleman, and Gladys Jones were on break, Pa-
tillo entered the dining room, stating, "You-all better
hope that no union don't come in here, because if you
do, we will be in a lot of trouble." According to Pret-
low, Patillo went on to state that she had been called to
a meeting by Jolly, and told that if the Union got in
there would be a loss of benefits and "we wouldn't be
able to get a raise." Pretlow further testified that later
that same evening, at the nurses station, in the presence
of Gladys Jones and Eleanor Holt, Patillo stated that she
would have to quit if the Union came in because of the
treatment the children would receive at the hands of
strange people that the Union would bring in. Finally,
Pretlow, with corroboration from Jones, testified to a
conversation in March in which Patillo stated that Ad-
ministrator Jolly had asked her "if she knew how many
on the night shift was for the Union." According to
Pretlow, Patillo went on to indicate that she told Jolly
that she did not know the number of prounion aides, but
that she "thought that all . . . were except for two."
The foregoing assertedly occurred in the presence of
nurses aides White, Hughes, Jones, Holt, and Scott.
Counsel for the General Counsel also elicited testimo-
ny from Gladys Jones concerning remarks made by Pa-
tillo in the dining room in March in the presence of her-
self, Pretlow, Margaret Johnson, and Holt. According to
Jones, Patillo referred to the fact that management had
held a meeting and "she wanted to know, why did we
need this union, why did we want it here." According to
Jones, Patillo said that "it was coming in here to hurt the
children and herself." Jones went on to testify that Pa-
tillo indicated that "Mr. Jolly wants to know why do we
need this union here, we can do without one." '5
is This testimony is viewed as inadequate to substantiate coercive inter-
rogation. It is noted in this connection that Jones was not corroborated il
this respect by any of the other aides who were identified as present or
who testified Furthermore. her testimony is vague and susceptible to in-
terpretation that Patillo, if she did use the phrase "why do we need this
union" may have been speaking rhetorically, and in a fashion not seeking
information, or response, but as an expression of dismay. As no other esi-
dence exists that Patillo questioned employees concerning the Union. that
pertaining o interrogation is dismissed as unisubstantialed by credible
Another aide, Margaret Johnson, testified that in
March, while the aides were having dinner in the dining
room, Patillo indicated that Jolly had told her that there
would be trouble at St. Mary's in the form of violence
and property damage at the hands of the strikers if the
Union were to come in.
Patillo, a thoroughly unbelievable witness, denied in-
volvement in any such conversations. She at first denied
that in the months of January, February, and March,
1980, that she was even aware that the Union was trying
to come in at St. Mary's. She also unbelievably and in
contradictory fashion testified first that she talked to no
one about the Union, explaining, "I don't know' anything
about union activity and I can't talk about something I
don't know about." Later she admitted, however, that
aides, including Margaret Johnson, questioned her about
the Union. Finally, although she denied knowledge of
Pretlow's union sympathy, she admittedly prepared an
evaluation on the latter in which she inscribed "Mrs.
Pretlow's attitude has changed lately, it is the union busi-
ness . . . I wish there were communication . . . She is
very good to the fellow workers." On balance, Pretlow's
testimony, though uncorroborated, is credited insofar as
she asserts that Patillo informed her that she had heard
at a management meeting that salary increases would be
unavailable if the Union were designated. I also credit
the testimony of Pretlow and Jones that Pretlow an-
nounced that she had received instructions from Jolly to
find out how many employees in the night shift were
union supporters. As the former constituted a coercive
threat of reprisal, and the latter tended to create the im-
pression that union sympathy was an object of manage-
ment scrutiny and surveillance, I find that Respondent
on each count violated Section 8(a)(1) of the Act.
4. By Sister Mary June Morin
Sister Mary June is a Catholic nun affiliated with the
Daughters of Wisdom, a religious order situated in
Rome, Italy. At times material, she was Respondent's di-
rector of activities and an admitted supervisor. Nurses
aide Margaret Johnson testified that in March Sister
Mary June came into a nursery and told her "if the
union come in, she would have to leave, all the nuns
would leave, the children would be sent to different in-
stitutions, they wouldn't have a job, and St. Mary's
Infant Home would be closed down." Close examination
of Sister Mary June's testimony discloses the absence of
a clear and direct denial of Johnson's account. Although
an implication to this effect arises, testimony offered by
Sister Mary June does not rise to the level of a sworn
repudiation of the threat. Accordingly, Johnson is cred-
ited and, based thereon, I find that Respondent violated
Section 8(a)(1).
5. By Janis Goodmundsen
Goodmundsen, during the campaign, was the assistant
director of nurses and an admitted supervisor. It is al-
proof 1I was also ni) impression that the phrase imputed It Pa;lillo ma)
isell hase been a personl I mode of expressionll on the part of Jone, con-
vcving her o wn assumptlions is to t'alillo's interest or curiosity
1029
DECISIONS OF NATIONAL LAB()OR RELATIONS BO()ARI)
leged that Respondent violated Section 8(a)(I) through
an instance of coercive interrogation attributed to Good-
mundsen in June, well after the election. In this regard.
Diane Powell, testified that Goodmundsen asked Powell
and another aide why they thought they needed a union.
According to Powell, she responded by asking Good-
mundsen why she thought they did not need a union.
Goodmundsen then queried as to whether the aides
thought "management was that bad to us." Finally, the
employees expressed their need for outside representa-
tion. Goodmundsen testified to a lack of recall concern-
ing such inquiries, claiming only to remember an instance
in which she was asked by one of the aides why some of
the other employees felt that a union was necessary. In
any event, I did not regard Goodmundsen as a reliable
witness. Further, I do not believe that Powell created
the encounter from her imagination. I credit her and
based thereon find that Respondent violated Section
8(a)(1) in this respect.
6. The postelection effort to improve
communication at the Home
Following the election in which the Union was desig-
nated as exclusive representative of Respondent's service
employees, according to Jolly and Assistant Administra-
tor William Bowser, tense conditions existed in the
Home reflecting a lack of cooperation caused by division
and conflict among the employees. It was feared that be-
cause of these deteriorating conditions, patient care
would suffer. Jolly claims that something had to be done
to reestablish communication and to bring people togeth-
er again. It was decided that Dr. Elaine Shouse, an inde-
pendent consultant, would be retained to conduct an "in-
service training program" to cure these alleged prob-
lems. A complaint, over Respondent's denial, alleges that
Shouse in carrying out this program was an agent of Re-
spondent, and that, in the course thereof, she indepen-
dently violated Section 8(a)(1) of the Act by soliciting
grievances, by threatening employees with reprisals, and
by threatening to sue employees for engaging in protect-
ed activity. It is further alleged that, in the course of this
program, Respondent violated Section 8(a)(5) and (1) of
the Act by bypassing the Union as the exclusive repre-
sentative and bargaining directly with employees regard-
ing the establishment of a new employee handbook and a
procedure for investigating alleged work infractions.
Shouse was on the professional staff at CBN Universi-
ty, but had also conducted programs in the past in the
area of employee-management relations. According to
Jolly, he met initially with Shouse, expressing that he
wanted Shouse to "restore harmony in the home in gen-
eral." He claimed to have afforded no instructions as to
how the program would be conducted and denied that
any control over the program was retained; evidence
failed to disclose that this was not the case. However,
Jolly admits to telling Shouse that "the Union's presence
was not to be a part of the program or be even ad-
dressed by the program."
Shouse opened the in-service program on April 16,
only 2 weeks after the election and while Respondent's
objections were then pending. On May 19, the day
before the Union's certification, the program came to
what appears to have been an abrupt halt. In the interim,
various meetings were held, both with management and
rank-and-file employees. Mandatory attendance on the
part of employees was demanded at several such meet-
ings and those who attended were always compensated
for the time involved.
At the first meeting for employees, Shouse was intro-
duced to the employees by Jolly. She informed the em-
ployees that she had been retained because of a break-
down in communications, and requested that employees
afford "feedback" so that she might "... in turn, take
. . problems concerning our job back to Mr. Jolly and
see if we can get it straightened out."' 6 At the sessions,
Shouse explained to the employees that she was not
there to discuss the Union, to persuade them in any way,
but was there solely because management had difficulty
communicating with them. 17 Credited, uncontradicted
testimony afforded through witnesses for the General
Counsel established that during the course of the various
in-training service sessions, Shouse attempted to alert the
employee participants to the urgency in her mission by
declaring that she would suggest a closure of the facility
and replacement of incumbent employees with new hires
if she did not succeed, and also attempted to bring reali-
ty to this possibility by claiming to have actually ob-
served applications held by Jolly for replacements, all of
whom were blonde, blue-eyed, and 20 years of age and
under. H
Other uncontradicted testimony reveals that Shouse
utilized the powers of the proverbial "carrot" as well as
the fist. Thus, in discussing her past experiences, Shouse
indicated that she had devised a program in a local hos-
pital that had led to higher salaries and better working
conditions for aides, while suggesting that similar bene-
fits might be available to the aides at St. Mary's if they
cooperated. With more immediate reference to employ-
ees of Respondent, according to aides McKenzie and
Bensen, Shouse indicated that she would suggest that
schedules be arranged so aides who wished to return to
school could do so.
On May 15, Shouse prepared what appears to be an
interim report on the status of the in-service communica-
tion program.20 That document was distributed to those
attending sessions conducted by Shouse with representa-
tives of management and nurses aides in attendance.
While the views expressed therein signify that the com-
munications problem "can not be placed squarely at the
door of any one segment of personnel," it does point out
that "... participating personnel had demonstrated an
individual commitment to self-awareness, self-improve-
ment, and sensitivity to the inner personal needs of their
"' Btased on the credited. ullcotradicled testinions f Zenobia rello,;.
swho vwas ll employe a the lime of the hearinig
' See the lestlnily (of ide, Anmelia Hten',en, Francis Jackson, and Zen-
obhia Pretlou.
' See thesi monl off Zenobia I'rctlo,w and Anlelia ellen Shouse
did not appear as a witness. Respondecn's evidence hat is emnployment
applicalions do not indicate the color rof hair and c,,es is rejected as nei-
ther meeting nor arousing impriohabilily i the lesimiony alffirded by
t'retlows See also Ihe testimony of Francis Jackson. i.ida Corurn, and
Lillan McKenie
" See the testirn) of Francis Jackson.
See G.C. Exh. 7(d)
103)
ST. MARY'S INFANT H()ME
co-workers." While the document fails to exact further
commitments from the rank-and-file, it does raise certain
questions as to Administrator Jolly's willingness to con-
tribute in certain areas, including whether he is "willing
to 'bury the hatchet."' and whether he would be "open
to receive recommended changes for improvements." At
this meeting, there was also an exchange of views con-
cerning Respondent's personnel handbook T as well as a
somevwhat abstract reference by Goodmundsen to fair
methods of investigating employees' complaints about
one another's performance.22
Insofar as this record discloses, Shouse was able to
avoid direct reference to union activity until her final
sessions held on May 19. Prior thereto, the Union had
published a newsletter which was described as an official
publication of the St. Mary's Infant Care Organizing
Committee. The document included the names of Sheila
Mitchell and 17 other individuals, a number of whom
testified in this proceeding, as members of the organizing
committee. The document accused Shouse and her assist-
ant as having been engaged in an attempt to brainwash
employees and propagandized that "communication ex-
perts will not solve the problems that now exist in St.
Mary's" while urging that Respondent "stop delaying
progress and let's go to the bargaining table!" A cartoon
on the first page of the document depicts Shouse, ad-
dressing several women, as a puppet dangling on strings
controlled by a figure resembling Jolly. 2 Apparently,
Shouse reacted to the matter in a disturbed state. At the
May 19 session, according to statements appearing in
Jolly's sworn prehearing affidavit, with support from tes-
timony of three employees who attended those sessions.
Shouse informed the employees that "she had shown the
paper to the CBN lawyer and he had recommended that
she press suit, but that she wasn't going to do it . . .
they oughta be careful in the future to be familar about
what they put their names on, because they could be
liable in some cases." 24
The General Counsel's allegations with respect to ille-
galities attributed to Shouse are for the most part sub-
stantiated. Respondent's defenses based on assertions that
Shouse was not an agent, or that her efforts to develop
communication failed to tread upon statutory obligations
are lacking in merit. Shouse was retained by Respondent
against a background of discord within the work force at
the Home which had existed prior to the advent of union
activity. Strained relations between management and the
rank-and-file had given initial impetus to union activity. 2
21 According to Francis Jackson Shouse stated that he could compile
a handhook frontm what he had learned w. hich S Mar.'s could "bhest he
runrncd by." The estimony of Amelia BIenscn , ho %.vorked the sanme shift
as Jackson. ho',ecer. reflects tha;it %hct Shouse Indlcated that the hand-
book hould he r iscd hbtcalus too comnplex for the aides to understand.
Jolly tated that he w:ould rei se the handbook
: See testimony of Fralnci Jackson aInd Amelia ttensen
See G.C. Exh. 14
' See testilmoly of Francis JacksoI). Amelia Itelltsen, and illa.l
McKenzie
:; Meetings conduclted in No emhter 179 hb Jolly furnished immniediale
provocation for organization actis it Joll conlceded tihat his tone at ll oe
such meeting as ufficiently improper as Io ilpel hinl to call aoitlher to
apologice to the work fi rc
Prior to the retention of Shouse, an election was con-
ducted in which a majority designated the Union.
During the period contemporaneous with the retention
of Shouse, Respondent elected to pursue its legal posi-
tion as to the impropriety of the election, rather than
recognize the choice made by the employees.
On the issue of agency, Shouse in conducting her pro-
gram was introduced to employees by Administrator
Jolly, who told employees that she had been hired be-
cause of a breakdown in communications. It does not
appear that any management representative communicat-
ed to employees the limitations on Shouse's authority.
Respondent, not Shouse, had the capacity to impose
mandatory attendance requirements and to pay employ-
ees for time consumed in the sessions. There can be no
question that in interacting with employees, Shouse was
attempting to further Respondent's interest in resolving
personnel problems. Although Shouse informed employ-
ees that she was not interested in discussing the Union or
to persuade employees one way or the other, it is diffi-
cult to imagine that Jolly and Shouse held a belief that
they could even begin to allay division within the work
force and restore harmony without some response to
problems generating union activity and a concomitant in-
trusion upon the area reserved exclusively to the em-
ployees' chosen representative. In such a context, and as
the impression was clearly conveyed to employees that
the program was endorsed fully by management and that
Shouse was Respondent's instrumentality for correcting
conditions at the Home, Respondent is deemed responsi-
ble vicariously for the violations properly ascribed to
Shouse.
With respect to the solicitation of grievances, it is
clear from uncontradicted testimony that Shouse sought
input from employees as to their problems, encouraged
such input by pointing out that if problems in the home
were not resolved she would recommend that the facility
be closed down; that existing employees be replaced and
even went so far as to lend an appearance of credibility
to her claims in this regard by observations that applica-
tions had been filed and were being considered by Jolly
as replacements for members of the work force. At the
same time as Shouse attempted to induce employee co-
operation by such coercive references, she held out the
possibility of improved working conditions as feedback
from employees would be taken back to management, al-
luded to her past successes in such endeavors, while al-
luding to the possibility of improved promotional oppor-
tunities for employees.
This effort to solicit employees to express their prob-
lems occurred under conditions offering "compelling in-
ference" that the grievances exacted would be correct-
ed, 2' as well as the threats and promises to facilitate the
objectives of the program, violated Section 8(a)(1) of the
Act.' 27 The entire program reflected a responsiveness on
-"'See. c. . Raol' Inc1.. 231t NLRB 071 1107)
` \While. as RCspoidettl ciains. the threats and pronises illade h
Shous to illduc emploee participaion ill the progr;nl tould not he a
\iol:lioll Ill other circumlrtallnccs. coerci\ participP ioll Ill a program
l.ho, exer. Ilhrldll i' illcgl is equal1;i 1unlas fll
1031
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the part of management, the earlier absence of which
may well have contributed to organizational activity in
the first instance. As a question concerning representa-
tion was being contested at the time, the possibility of a
second election loomed, and the Shouse program might
well have influenced employees to reject the Union and
take their chances with alternatives to collective bargain-
ing. 28
Furthermore, the remark by Shouse, to the effect that
employees who lend their names to permissable union
propaganda might well be vulnerable to a law suit
served as a clear restraint on statutory rights and tended
to impede employees in the exercise thereof. According-
ly, I find that in this regard, Respondent further violated
Section 8(a)(1) of the Act.
Finally, the obligation to bargain in good faith with
the "true representative," being exclusive under the Act
"imposed the negative duty to treat with no other."
N.L.R.B. v. Jones & Laughlin Steel Corp., 305 U.S. 1, 44
(1936). As the Union had been designated by a majority
of employees in the appropriate unit during the period
contemporaneous with the Shouse program, the effort to
allay grievances by direct dealing with employees con-
cerning their conditions of work, bypassed the statutory
representative and constituted a refusal to bargain viola-
tive of Section 8(a)(5) and (1) of the Act.29
C. The Alleged Discrimination
I. The warning to Sharon Akers
The complaint alleges that Akers was given a warning
notice for proscribed reasons. Akers was a nurses aide at
times material on the 7 a.m. to 4 p.m. shift. She claims to
have signed a union authorization card in January, to
have worn a union button on the day of the election, and
to have attended a number of union meetings as well as
the hearing in the representation proceeding.
On April 4, 2 days after the election, Akers was sum-
moned to Goodmundsen's office30 and given a written
warning concerning the accusation that she had mistreat-
ed a patient.3 '
The patient in question was Andrea Bell. The latter, to
either gain attention or for purpose of self-stimulation, or
both, historically had engaged in voluntary regurgitation,
at times, exceeding 200 times daily. Control of Bell's
problem was sought through a behavioral modification
program devised by individuals responsible for furnishing
education services to residents of the Home. 32
Thus, Deborah Holley, a special education teacher
with the Norfolk public school system, ultimately ar-
ranged that Bell be administered an eighth of a teaspoon
of hot sauce through a dropper, when she attempted to
throw up. The use of hot sauce was successful to the
point of reducing regurgitations on the part of Bell from
2 See. eg., S. Joneph % hloipilu/ of cthe ranctican Silc'rs oJ ;ilhIwauke.
Inc.. 247 NRt. 869 (1980);- Arrow Molded Plvticri Inc.. 243 NL RB 1211
{ 1979).
' St. Joseph' llopital of the Irancican, Sislers J1' ,Milw uAee(. supra.
:"'In late July. Goodmundsen replaced Judd as director of nursing.
"See G.C. Exh. 12.
WD Under an arrangement swith the city of Norfolk classroom areas are
leased b the Home to the school board. sshich in turn, furnishes teachers
to) educate residents of the Home.
200 occurrences daily to 20. Prior to the Akers incident,
it does not appear that aides who were not involved in
the teaching program were ever afforded training or per-
mission to administer hot sauce to Andrea Bell nor does
it appear that any attempted to do so. On the contrary,
the evidence is to the effect that the behavioral modifica-
tion program was implemented exclusively by the teach-
ers, and aides assigned to them, subject to supervision by
the former.
Akers was aware that teachers had given hot sauce to
Andrea Bell. On Saturday, March 29, a nonschool day,
when teachers were not at the Home, Akers explained
that the aides were busy and that Andrea wanted atten-
tion, which Akers could not afford to give. Akers admit-
tedly obtained two I ounce standard-size medicine cups,
and went to the kitchen where she allegedly obtained
one full cup of hot sauce, claiming to have left the other
empty. She claims to have placed two drops in the
empty cup, which she then administered to Andrea, who
is claimed to have promptly spit them out. Akers testi-
fied that she then left to attend another child, but that
upon her return found that the balance of the hot sauce
had disappeared.
Akers admitted that no one gave her authority to treat
with Bell's problem and on the face of the testimony it is
inferred that she was never instructed as to the proce-
dures involved in the behavioral modification program.33
Although Respondent's witnesses may have stumbled
as to the sequence of events, it is clear that reports of the
incident came to management's attention during the fol-
lowing week. Deborah Holley, the special-ed teacher, in-
volved in the development of the program testified that
on a Monday in April, it was reported to her by a teach-
er that Andrea had shown no reaction that day to the
behavioral modification program. Later, Holley, herself
confirmed the absence of reaction on Bell's part. Con-
vinced that something "serious" had happened since the
previous Friday, Holley began an investigation. She first
questioned Alice Grimes, an aide who worked with the
teaching program. Grimes reported that she had learned
that Andrea had been administered hot sauce over the
weekend. Holley went to the kitchen and received a
report that Sharon Akers had come to the kitchen and
obtained hot sauce over the weekend, telling kitchen per-
sonnel that she was going to give it to Andrea. After
checking Andrea's first diaper that morning, which was
stained with a little red tint, Holley took the matter to
Jan Goodmundsen, reporting that Andrea had been satu-
rated out of the behavioral modification program by
having been given too much hot sauce. Holley told
Goodmundsen that the program would have to be pulled
and that they would have to wait for at least 2 weeks
before it could be started anew.
" As shall be seen, Akers ras charged by Goodmundscn with having
given an ounce of hot sauce to Bell Akers denied this Though Akers
filled oe cup. she explains that she intended to use the rest for her lunch
My suspicion as to Akers' credulity vas hardly allayed by his aspect of
her testimony Anyone familiar with the type of hot sauce involved
would be quick to' realize that the remaling quantity ould approach
Icsels sufficient to spice a barrel of fish
1032
ST. MARY'S INFANT HOME
Goodmundsen testified that the first information that
she received was on a Wednesday 34 from Alice Grimes
who advised that she had learned from two individuals"
that Akers had forced Bell to drink an ounce of "To-
basco Sauce," indicating that she felt that Goodmundsen
should be aware of the incident because of its serious
nature. Although Goodmundsen placed this on Wednes-
day, she later indicated that Holley had informed her
earlier that there was a difference in the way Andrea
was reacting to the behavioral modification program. In
any event, in the initial report from Grimes, the latter
mentioned to Goodmundsen that Hazel Swett had told
her that she saw two medicine cups sitting on Andrea
Bell's night stand with one empty and the other full of
hot sauce. Grimes further informed Goodmundsen that
Swett dumped the full medicine cup down the commode
and that when she changed Andrea Bell's diaper, it was
red tinged. It was also reported that Andrea Bell was ir-
ritable all day Saturday afternoon and all day on Sunday.
Grimes, according to Goodmundsen, refused to disclose
the identity of the individual who reported having seen
actual dispensation of the hot sauce.
In addition to talking to Grimes and Holley, Good-
mundsen testified that she talked to Patricia Edmonds, a
kitchen worker, who allegedly advised that she had in
fact given Akers two I ounce cups of hot "Tobasco"
sauce, and that when she asked Akers what it was for,
the latter responded "Andrea Bell."36
Goodmundsen further related that, because she had
learned of the hot sauce incident on the day of the elec-
tion and since she had no direct witness to the incident.
she sought guidance from Jolly as to what form disci-
plinary action should be taken. Goodmundsen also notes
that she informed Jolly in discussing the matter, that she
knew that Akers was prounion because she observed her
wearing a union button the day before the election.3 It
was decided at that conference that Akers would not be
terminated.
On Friday, April 4, Akers was called to Goodmund-
sen's office. At the time, Goodmundsen read to Akers a
previously prepared statement indicating that it had been
reported to Goodmundsen that "on Saturday, 3/29/80,
Miss Akers obtained I ounce of Hot Tobasco Sauce for
use on resident Andrea Bell. ... It was stated that
Sharon forced this child to drink the full ounce of hot
sauce." The document proceeded to accuse Akers of a
"serious act of child abuse." It further recites that be-
cause a direct witness was unavailable, disciplinary
action would be limited to a "warning." It concludes
14 Grimes and Holley both testified that the matter was discussed with
Goodmundsen on Monday.
"' Goodmundsen testified that Grimes declined to identify her sources
Grimes related that she told Goodmundsen that Linda Gorum and Hazel
Swett were her informants.
:* The prehearing affidavit afforded by Goodmundsen does not di,-
close that Goodmundsen discussed the matter with Edmonds. Instead
that document discloses that Holley reported to Goodmundsen that she
had learned of the matter set forth in the above text fromn Edmonds. It is
the sense of her affidavit that Goodmundsen elected to proceed wsith dis-
cipline after having talked to Grimes and Holley onl, (See G.C Exh
16.)
17 Testimony of Goodmundsen and Jolly as shifting and contradic-
tory as to their knowledge of Aker's prounion bent It is clear that at the
time of their deliberations bth were mindful of this fact
with the admonition: "This kind of action is viewed as
intolerable and if any such incident should ever occur
again, Miss Akers will face immediate termination."
Goodmundsen testified that after the document was read.
Akers denied administering hot sauce to Andrea. Ac-
cordingly, she refused to sign the document as Good-
mundsen had requested. However, after the following
notation was added by Goodmundsen, Akers signed: "At
2:45, we discussed this with Sharon. She denies this act.
Thus signing the form is not an admission of guilt, it is a
statement that this matter has been discussed with her."
Akers testified that during the counseling session,
Goodmundsen, in reference to the above document,
stated: "It wasn't a reprimand, it wasn't a warning, it
was just a statement saying the matter had been dis-
cussed .... " She claims that she admitted to Bowser
and Goodmundsen that she had given a small quantity of
hot sauce to Andrea, but denied that it was an ounce. In
this respect, Goodmundsen and Bowser, who was also
present at the conference contradicted Akers. Although I
did not regard Goodmundsen as a entirely credible wit-
ness, and have certain reservations with respect to
Bowser, Akers stands in no better stead. In the total cir-
cumstances, including Akers own description on direct
examination of her reaction to the accusation as one of
anger, and as any partial admission afforded by Akers
would seemingly have been documented, the testimony
of Goodmundsen and Bowser seemed the more probable
and is credited. I am convinced that Akers denied the in-
cident totally out of her own sensitivity to the serious-
ness of the accusation.
In assessing the General Counsel's challenge to the va-
lidity of this limited act of discipline, it is noted that the
matter occurred shortly after the election, that testimony
exists on this record to the effect that LPNs were in-
structed to discern who among the aides supported union
activity and to report such matters back to management,
and that Respondent was hostile to organization of its
employees.3a It is also a fact that testimony among Re-
spondent's own witnesses as to their knowledge of
Aker's union sympathy was contradictory and not atypi-
cal of a desire to suppress the real motive for adverse
action. One might also question Goodmundsen's failure
to carry the investigation further than she did. Nonethe-
less, the existence of these strong elements of a prima
facie case do not impel inferences which collide with
commonsense.39 An organization campaign does not neu-
tralize even the most hostile employer's right to maintain
efficiency and discipline within the work force, by taking
action against even the strongest employee proponent of
unionization where misdeeds by the latter cry out for
such action. The discipline afforded Akers herein was re-
strained and limited to what, at worst, appears to be a
warning. On her own testimony and the information
'" As hall he sectn, i/rUr. teslimon, of Joda Ballard that he as Itold
hb management that the', s ere out to get prounion aides. ncluhidirig
Akcrs. %uas niot belieced
3a Goodmundsen had discussed the matter only with Holley and
Grimes and had not confronted Edmonds, Swett. and Gorum None were
direct eyewitnesses Nonetheless. the matters reported to her furnished a
reasonable basis for belief that the incident had occurred and Akers as
the guilty party
1033
DECISIONS OF NATIONAL LABOR RELATIONS B()OARI)
available to Goodmundsen, the seriousness of her offense
ought be obvious. The status and training of a nurses
aide in a health care institution demands constraints upon
any effort on their part to deviate from established pro-
cedures, training, and instructions."' Innovative action on
the part of a nurses aide might well imperil the welfare
of a patient and condonment thereof would establish a
precedent dangerous to the general administration of
health care. It is clear on the face of Akers' own testimo-
ny that she had never been instructed or authorized to
administer hot sauce to Bell. Her conduct was admitted-
ly at odds with what might be described as customary
operating procedure within a health care institution and I
am convinced, would have been the subject of discipline,
even absent organizational activity."' I find that Re-
spondent did not violate Section 8(a)(3) and (I) of the
Act by conducting a counseling session and issuing a
warning based on the hot sauce incident.
2. The discharge of Odessa Johnson
Johnson was a nurses aide who prior to her discharge
on March 12, had been employed by Respondent for a
little more than 7 months.
The discharge was effected by Sister Mary June
Morin. The latter testified that poor attendance was the
primary ground but that Johnson's insubordinate encoun-
ters with Maxine Harper, Respondent's assistant activities
director, to a limited extent, also contributed to the deci-
sion to terminate Johnson.
In this connection, prior to the advent of union activi-
ty, Johnson was evaluated by Sister Mary June in No-
vember 1979. At the time, her overall rating was "aver-
age." Specific reference was made to the need for John-
son to "work on her attendance." In addition, the docu-
ment refers to the need for Johnson to work on her
"temper," signifying that it "flares up easily." 2 The
record attests convincingly to the fact that Johnson re-
gressed in both of these areas during the period immedi-
ately preceding her discharge.
Thus, in February, Johnson had two run-ins with
Harper in reaction to instructions afforded by the latter.
The first involved a hydrosepholic resident, Ann Bryant,
and the second occurred that same day, and involved an
instruction that Johnson provide break relief in a particu-
lar nursery, which according to Johnson's own testimo-
ny, was viewed as a less than favorable assignment. In
consequence of Johnson's conduct on February 20,
Harper made entries in Johnson's personnel file, stating
as follows:
Odessa Johnson refused loudly in front of the
entire evening staff (aides) to take Amy out of her
crib and put her in her chair for feeding, stating
"' ecll Deal. an aide called by the Gieneral Counsel. testified that hec
wal told by Akers that she iltended to) adminisler holt s;llce to Anlillca
Deal related that site herself wold not have dolle Iso Aith lt prlTlisoill
Deal ackilnowledged that i;s a nurses aide it as her responsihilit in
caring for the children to flloss estahlishied routine patterlns. She ac-
knllowlcdged that departures from I thal regilen s could on) he proper it
permissiton s were Ito be obtained first.
" See. e.g.. Wright Line, a Dmiron o/ 'right, Linc, rn., 251 N RBi
1083 (198()1
* Sec (i C. Exh '.
that she had only been here for 8 months, and if she
dropped Amy she would be responsible. Earlier the
same day, she stated when asked to assist for lunch
release in Respite Care, loudly again. I'm going to
be in there tomorrow and I don't want to relieve in
there for even 45 minutes today. :'
Within a matter of days after the above incidents.
Johnson's attendance problem resurfaced. As for her his-
tory of absenteeism, Johnson acknowledged that, during
the first 3 months of her employment, her attendance
was "no good." Although she first testified that no one
mentioned anything about her attendance problems in
1979. she corrected herself, when reminded of the No-
vember evaluation, referred to above. According to
Johnson her attendance improved after October 1979.
being absent only 4-5 times between November 1979 and
late February 1980. In February. she asserts that she
took ill, "suffering" from what she claims to have been
diagnosed as "over exhaustion." She indicated that her
physician had told her to stay home. She claims that
after her doctor released her, she telephoned Sister Mary
June informing her that she was ready to return to work.
Sister Mary June indicated that she had been trying to
contact Johnson and that she was being terminated. 1 and
that the matter would be discussed on March 12. if John-
son would come to the nursing home. Johnson returned
to the nursing home on that date. where she met with
Sister Mary June, Goodmundsen, and Maxine Harper,
where the termination was confirmed, the grounds upon
which it rested were discussed and, consistent with Re-
spondent's 2-week notice policy, Johnson was extended
the opportunity to work 2 more weeks. Johnson was told
to sign a statement reflecting what transpired, but she re-
fused to do so. "
: See Resp Fxh 9t I rejec Johnson' lestinmony that these incidents
occuirred in mid-Jilanlar) Accorlinig to llarper, the conduct, summarized
above. was deemed offensive because Harper had recently beenl hired as
a supervisor in late January. and had Io establish rapport with the aides.
She credibly explained that she tell that Johnlson ,sas "trying her." John-
son did not deny that these incidentls occurred. but her accounlt fc usve
o, t her personal juilfica;ltion for reaclinlg is she did, without admitting
that she spoke loudly or disrespectfi hishir. Thus. Johnson, ai l obvi-
ousl' sturdy individual, explained her refusal to lift Amy Johnsm as
beinlg based o the fact that he had rlot beell trained o do s and feared
a mishap for hi cl she ould be respitlsible. wilh respect t the aslign-
mcnt to the respite rea J hns,' testimlry indicated that the sole resi-
dlen in that area made the work deillandiing .and Ihal 'Alhen she respond-
ed Io Harper's i lsructl ion hs b sking if sIe had t gl. ttarper sinpl indi-
caled Ihat she did nol have to "do, aithing" Fo Ihis Johlln aserltdl3
rcplondd, "des. I ir, if il one else goes, I ill hase to go." alt s hich
pointll anlolher ide ohillteeretd. As indicated. I regard IhC accoutII of
Hlarper ais the miore believs ble and reject l efforts b Jhtson lo mitl-
gate Ier iscondu tai.ird Harper
A suninlary ofr her attlledance ildicates thait during that period she
vas abset n isvc .ccamsioll. alld liate ol tthree
' Accordilg to Johml,,onlll ssieu sl inquired as Ito whs . there as, lo
reference to attcrdallce, bl Sierllr Na;lr Jrite simrnpl relkrrcd i) lit' c. -
coilliter tilh Harper cllcerlitlg asiglnletll It Ithe respile Ilre; Sister
Mars June eslifed hal she did 11 dCtl tlhe ICasllti fr Ie ermilia-
lion il thC phollC cl.rll atlonl 1tcl she preferred Illhal Jolllrorr l clnle
lo the lolnc anld discuLss tlhen tier tcstinlls \asI the llole prolbablh.
alld, ill aily evetill. he iipressed ile ;s beinlg ilore credible Ihalli JllilsOll
" A cc:dlig l Jo i J lhn ili, tSis J llJ l aIteetiig clangeld th11
hisis firr the erttlltlilltlrill expressed ii the tI Icph one COIll rs.ltillol , ildical-
Ig ltilt the dlischtarge C ilts hialsd li chrollltc ihbscllttilce Johnl11ii alleg-
( w)mit6,4d
1034
ST. MARY'S INFANT HOME
Sister Mary June testified that it was her decision to
terminate Johnson. Though she admits to having consult-
ed with Jolly as to the termination, she denies that John-
son's union activity was mentioned in that conversation.
Prior to March 12, an entry was made on February 28
by Sister Mary June in the personnel file of Johnson,
which read as follows:
On Odessa's last evaluation, she was told that she
must improve on her attendance record. Looking
through her records, no improvement has been
shown. It has also been brought to me that Odessa
refuses to do what she is told by her supervisors.
With these in mind I would like at this time to give
Odessa a 2 weeks notice and to let her go.
Sister Mary June testified that Johnson had developed
a pattern of absenteeism, usually timed to correspond
with the day before or after her days off. Johnson failed
to rebut Sister Mary June's testimony that Johnson's
latest string of absences opened with Johnson having
called in sick for I or 2 days, without making further
contact until the telephone call in March."47 Thus, man-
agement had no way of knowing whether Johnson was
"coming back, not coming back, still sick, not sick."
The General Counsel's claim that the reasons assigned
for the termination of Johnson were not genuinely main-
tained suffers somewhat from the fact that Johnson was
not among the most active proponents of the Union.
Indeed, all that appears on this record is that she simply
signed a card in January 1980. Nonetheless, testimony
was adduced tending strongly to suggest that Johnson
was prounion and that this fact was either known or sus-
pected by management. I was not persuaded by this testi-
mony. Johnson, herself, testified that at meetings con-
ducted by Jolly in January 1980, she asked Jolly why he
was "dead set" against the Union. She claims to have in-
dicated at that time that she had worked in places where
unions represented the employees and that they were
"not completely bad," and "did some good things." She
claims that Jolly did not answer. She testified that at a
later meeting in January, Jolly, in apparent reference to
the Union, informed the employees that he was disap-
pointed that they had gone to a stranger rather than
come to him. Johnson at this time claims to have ad-
dressed Jolly to the effect that no one would speak to
him because he walked around looking like a "stone-
face." Jolly, though denying that he could identify
Odessa Johnson prior to the hearing, acknowledged that
it was Johnson that referred to him as "stoneface." How-
ever, he could not recall that Johnson made any other
comment at the meetings, including the inquiry as to
why he was against the Union. In this latter respect,
Johnson was corroborated by Diane Powell. However,
the latter's testimony runs even deeper than Johnson's,
edly was told to frgert about the conlfronlation with Harper. that the
only mailer that Sister Mary June was concerned about was ahsenteeism
Johnson'ls esimony in this regard bore the mark of inherent ilcrediulit
Johnson admitted that la;ler ill the meeting. Sister Mary Junie accuscd her
of heing a "violent Itpe of per so "
' Sister Mary Julne testified that hecause Johnson had relocalted ad
she did not have the tine telephone umhber. she could not get in touch
with Johnsonl
because she indicates that Johnson in the course of the
discussion with Holly stated, "... she thought we
needed somebody to represent us . . . we were getting
the bad ends of the deals." While Jolly has been regard-
ed as untrustworthy and did not squarely deny that
Odessa made the statements, my mistrust of Johnson was
equally compelling. I also did not believe Powell, who
confessedly had a limited capacity for recall. and whose
version, contrary to that of Johnson. unmistakably re-
flected that Johnson was prounion. '
On the other hand, the General Counsel is favored by
Respondent's hostility to union organization as signified
by the variety of statutory violations heretofore found.
Nonetheless, the reasons furnished by Respondent for the
termination of Johnson were credible and convincing.
Johnson admittedly made no effort to provide a doctor's
excuse 9 for her absence as Respondent's policy pre-
scribes and her testimony includes no denial that, during
her extended February-March absence, she did not com-
municate to Respondent whether or when she expected
to return, calling them only when she was ready.
In claiming that Johnson was a victim of disparate
treatment, the General Counsel points to employee Doris
Stenson and Rebecca Riden, who in 1978 and 1979, re-
spectively, were given written warnings due to poor ab-
senteeism and told that they would be fired should their
records fail to improve. It is theorized from this that to
discharge Johnson without disciplinary warning was too
drastic to be compatible with just cause. 5 In addition to
the cases of Stenson and Riden, Sister Mary June ad-
mitted that aides Betty Deal and Linda Gorum had even
worse absenteeism than Odessa Johnson. However, she
explained that Deal had been counseled in this regard
and had improved, and, while Gorum had not improved,
she had been given a warning."' In any event, on this
N Seeral of Responldent's itnesses. I am convinced. afforded false
testimont.y Htlow,er, they held no monopol) on disdain for the oath
herein It was my decided impression that eaggerated or contrived esti-
molny wa, afforded to bolster certain allegations i these consolidated
complains hby witnesses for the General Counsel. In that category w"as
certain testimony by Laura Edwards. a frmer roommale of Sheila
Mitchell. who had heen discharged "for taking unauthorized leave of ab-
sence." and Joda Ballard, also an LPN, who had quit. believed that Ed-
wards was asked by Jolly to go around and find ut as much as she
could about ho was ftor the Union and to try to persuade thenm I, otle
against the Union. ad io report back who was for the Union. who she
thought was for the Union, and who was against. I did nt believe that
this occurred on 5-10" occasions as she related Ballard was a reluctant
witness. who appeared as a wiltess for Respuindent only after the latter
instituted enfoircement proceedings in the United States District Court on
her suhpena Her testimony went even beyond tha;t f Edwa-;rds fir she
testified that tile n ures were tld "who on what shift were union-rien-
taled . . they were after them . we were to watch them. "She
clains that the LPNs were told to "start writing up nurse's aides. espe-
cially the nes that were union-orientated. Ballard named Odessa John-
son and Sharonl Akers as prounion aides singled iout by manageenlct as
prtounioll and hence ,t he watched. allord impressed me as heavili
biased agaitll Respondentt and her effort to impute a discriminator) pro-
penit,: t Jolly anld Gottdmundsen i rejected.
"' Johnsoil is an upersuasic v.itness Although int of direct rel-
ea;lnce Io a.ssessment of the issues, the rcord fails to inclide an docu-
nlClllttin exc'usig his extended absence. and her n somew\hat self-
.erilng tcstinlioy stands as the only plation Ifor iher aIl illg lorked
onll) I dNh e i it 2-cek pasroll period hlich precded ic tterltilrtlltit
Sicrtisetn itnd Riden icrce botlh terminatd heti thes ailed to hto.
im pros enill
.' (iorulnl and 1 I)il were nIemhbeis of the itpllantl Irgatllltg connit-
tee Scc (i C I[xl 14
1035
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meager evidence, I am unwilling to sweep away especial
aspects of Johnson's case and infer that Johnson's con-
duct would have been condoned but for her having
signed a union authorization card. Prior to organization,
Johnson's November 1979 evaluation showed that she
was merely "average" and in need for improved attend-
ance. Later, in February her performance prompted ad-
verse action through notations in her file based on the in-
subordination toward Harper. There is also the fact that
Johnson was discharged on the heels of her absenting
herself from work on consecutive days covering a 2-
week period, without signifying to Respondent the ex-
pected duration of the absence or whether in fact she
would return. The evidence of disparate treatment fails
to reflect that Respondent had condoned such conduct in
others.
In sum, I find that claim of union-related discrimina-
tion on behalf of Odessa Johnson was built on incredible
testimony. On the other hand, Sister Mary June was be-
lieved in essential respects and I conclude on the basis of
her testimony that the discharge of Johnson took place
without knowledge of her union activity, and was
prompted solely by an extended period of absenteeism
which took place against a background of recent insub-
ordination toward a supervisor. Accordingly, the limited
union activity of Johnson is found to have failed to con-
tribute to the reasons for her termination, and the 8(a)(3)
and (I) allegation in her case shall be dismissed.
3. The discharge of Sheila Mitchell
Sheila Mitchell prior to her discharge was an LPN on
the II p.m. to 7 a.m. shift whose employment history
with Respondent dated back to November 1974. Georgia
Patillo, an RN, was the only acknowledged supervisor
permanently scheduled for that shift. Mitchell reported
to Patillo, but in the absence of the latter was responsible
for the shift. Mitchell worked alone twice weekly and
during Patillo's vacation periods.
In November 1979, Jolly conducted staff meetings
which apparently created some consternation within the
Home. In consequence, Mitchell drafted and circulated a
petition to determine the extent of employee dissatisfac-
tion with his remarks on those occasions. Later, she then
contacted the Union, obtaining union authorization
cards, which she, together with others, distributed in De-
cember and January. On January 21, 1980, the Union
filed its petition, seeking a separate unit of LPNs and
service employees."52
In January, Jolly learned that Mitchell had been solic-
iting union authorization cards. On January 16, during
the course of Mitchell's shift, then director of nursing,
Sybil Judd, came to the Home during her off hours and
sought out Mitchell. During their conversation, Judd, ac-
cording to Mitchell, expressed surprise that Mitchell had
organized the employees, going on to ask if Mitchell had
realized that "if you get a union, that you will lose . . .
benefits, such as the Christmas holiday and we would
have to rotate shifts." Mitchell related that Judd also
52 The petition seeking he L.PNs swas withdrawn after Mitchell', dis-
charge
asked why the girls felt they needed a union,5: indicated
that all union cards would be turned over to Jolly, and
stated that Mitchell was a supervisor and hence could
not be a part of the Union.
On January 23, Mitchell was summoned to meet with
Jolly."'4 Jolly at that time told Mitchell that she was a su-
pervisor, part of management, was to back St. Mary's,
while warning: "[Y]ou are to cease and desist in all union
activity or face disciplinary action which would be im-
mediate dismissal or rotation of shifts."" '
In the days that followed, Mitchell was unrelenting.
Having reported the Holley meeting to the union orga-
nizer, at his suggestion. Mitchell by letter dated January
24, protested the position taken by Jolly that she was a
supervisor as follows:
Regarding our conversation of January 23, 1980, in
your office, concerning my supervisory status: I do
not agree I am a supervisor and I think your posi-
tion in this matter is self-serving. I will let the Na-
tional Labor Relations Board resolve that issue in a
representation hearing.
Cordially yours,
Sheila Mitchell
On January 28, a further counseling session was held
at the behest of Jolly. A summary of what transpired on
that occasion appears in General Counsel's Exhibit 5(b),
which is over the signature of Jolly. With a single excep-
tion, 6 there is no substantial dispute with respect to its
content which is as follows:
On Monday, January 28, 1980, at 6:30 a.m., Ms.
Sheila Mitchell, LPN, was counselled a second time
by the Administrator. Also present at this meeting
were Sister Mary June Morin and Zenobia Pretlow,
nurse's aide. Ms. Mitchell was told emphatically
that her attitude, as evidenced by her demeanor
toward administration and a letter dated January 24,
1980 signed by her, was arrogant and totally unac-
ceptable. She was told that St. Mary's Infant Home
considers her a supervisor and that St. Mary's
'' Judd admitted to asking Mitchell why it as felt that a union was
needed to represent them, but could recall ino further mention of the
Union She denied expressing an opinion at that time as to Sheila Mit-
chell's involvement in union activity. To the extent of conflict I credit
Mitchell. Judd impressed me as having a limited capacity for recollection.
and her testimony concerning her reasons for being i the Home that
evening struck as suspect. Mitchell in this instance was the more credible.
" Zenobia Pretlow. all aide. attended the meeting because Mitchell had
requested a witness. Judd xwas also in attendance
"; The above is based on the testimony of Mitchell. See also G.C Exh
5(a) which is an accounting prepared by Jolly as to hat transpired at
the Januar 23. session. I confirms in nlaterial respects with the account
of Mitchell
;" Mitchell. with corroboratlion from 'rello. testified that Jolly
during this session slated that, if Mitchell lost her job, the Union and 1no
one else would be able to get it back and that he ould see tIo it that she
could not get a job in the State of Virginia Jolls denied making such a
statement. Sister Mary Junle ho alittended the sesilon. teslifed that. '"[]l
my ability and kno ledge. I really don't recall that " Despite the exten-
sive nature f the independenlt 8(a)(l) I llegations that are set forth in
these foirir separate complaints lind amendmeits, there as ini reference
toi this threat f blacklisting. Ntetheless. the issue %'as fully litigated.
anlid on bhalance I was illnclined to behle Prcethlo alnd Mitchell
1036
ST. MARY'S INFANT H()ME
Infant Home is the sole authority entitled to define
her status as such. Furthermore, if she does not
radically change her attitude and insubordinate de-
meanor, she was told that she would be terminated
without additional warning. She was also told that
her actions and the counselling that has taken place
as a result were being documented and placed in
her personnel file. Sheila stated that she did not
have any questions and replied that she understood
completely the meaning and significance of this
counselling. Ms. Mitchell returned to her duties at
6:45 a.m.
William Jolly
On January 30, Mitchell was terminated. Respondent's
personnel form evidencing the discharge assigns the fol-
lowing grounds:5 7
1. Failure to support the management of the
Infant Home in her capacity as a Supervisor.
2. Failure to fulfill the duties of her position as
Supervisor by actively undermining the manage-
ment of the Infant Home in direct contradiction of
specific directions.
3. Threatening a fellow supervisor with bodily
harm on two separate occasions [sic].
Sybil Judd
Director of Nursing
Witness
William M. Jolly
Administrator
The foundation for the first two grounds is obvious.
As for the third, Jolly testified that on January 29, an
LPN, Cathy Karnezis reported that another LPN. Joda
Ballard, had been threatened by Mitchell. Ballard later
confirmed this to Jolly, and indicated that she was "very,
very much afraid." After talking to Ballard and Karne-
zis, Jolly considered the matter, and then elected to dis-
charge Mitchell."
"7 See G.C Exh. 5(d).
"" Mitchell admits to a conversation that morning ith Ballard which.
according to Mitchell. pertained to a dispute bet.een Ballard and a-
other employee Mitchell claims to ha'e told Ballard that she had noth-
ing to fear from that other individual since if nothing happened in conse-
quence of an incident occurring some ears earlier, which had lno reper-
cussions. and that since this as il "the perfect neighborhood to be
knifed," Ballard had nothing to w:orry about. Milchell's testimlons i this
connection seemed illogical and c(itrived. Furthermore. R;allrd. a it-
ness called by Respondent. but one who impressed me as hardly un-
friendly to the General Counsel. ackniovledged that statements given at
Jolly's request after the discharge. accurately reflected hal had tran-
spired; namely). that she swas pulled aside h Mitchell n JanuarN 21'. aid
told "to watch myself because if I didn't I ka;s in the right neighborhood
to get knifed " In this respect I accept the testimony f Ballord and her
affirmation that this was the third instance in v hich she had been threalt-
ened hb Mitchell during the campaignl he irst occurrcd when Ballord
was approached by Mitchell Ir sign a dcument for the Unionl When
Mitchell told her that either she ias "fir is oir gainrst us." that Ballaird
was not to go to the administrator or "m as il as grass." allord siglledl
because of the tone in Mitchell's stice The econd threat occurred after
Mitchell had telephoned Ballo rd at home, and t olId her "n'ot to become
friendly v ith adm If I said antihing to henl, thait .:hell I enit biack to
3- I1 shift. arrangements vould he mllade to hase the hit [sic] otn at the
side door lhcn I got ready to lcase ind the door tould be locked
Respondent defends the 8(a)(3) and (I) allegations on
alternative grounds. It is first contended that, based on
the threats called to management's attention, Mitchell
was terminated for good cause. In the alternative. it is
claimed that even if the discharge is viewed as motivated
by union activity, Mitchell was a statutory supervisor
and beyond the protection of the Act.
Concerning the issue of motive, Jolly, on the docu-
mentary proof, asserted grounds for the discharge which
emerged from Mitchell's persistent involvement in union
activity despite instructions to the contrary.5 9 Thus, the
General Counsel has sustained the initial burden by evi-
dence unmistakably demonstrating that protected con-
duct was at least a motivating factor in the discharge de-
cision." ' By virtue of the test laid down in Wright Line. a
Division of Wright Line. Inc., 251 NLRB 1083 (1980), this
having been established "the burden will shift to the em-
ployer to demonstrate that the same action would have
taken place even in the absence of the protected con-
duct." Respondent contends that it has met this burden,
citing testimony of Jolly, that the threats alone were suf-
ficient reason for the discharge.61 However, Jolly was an
incredible witness, and I am unwilling to accept his self-
serving testimony in this regard. Indeed, in the instant
case, "affirmative and persuasive reason[s] [demonstrate]
why the employer rejected the good cause or chose a
bad one . . . and . . . [present] a substantial basis of be-
lievable evidence pointing toward the unlawful one." 62
Thus, in Respondent's own notice of termination, Mit-
chell's union activity was so compelling as to require
that it be phrased in alternative language and expressed
as the first two of the three grounds assigned. Further-
more, Mitchell, prior to her discharge, was a trusted em-
ployee who alone was responsible for the night shift
twice weekly. Her length of service exceeded that of
Jolly, Judd, and Goodmundsen with Sister Mary June
being the only individual who testified in this proceeding
who had been associated with the Home for a greater
term. While as an abstraction, threats between employees
might be regarded fairly as a serious offense, other evi-
dence raises considerable doubt that abrupt termination
would have ensued in the case of Mitchell had it not
been for her union activity. Entirely relevant in this
regard is testimony of the former director of nursing,
Sybil Judd, that 2 weeks before Mitchell's discharge Bal-
lord had requested a transfer from Mitchell's shift be-
cause she had been threatened physically by Mitchell.
Judd related that she told Jolly both of Ballord's request,
and the threat by Mitchell. On that occasion, however,
according to Judd, no discipline of Mitchell was men-
tioned, nor did Jolly suggest discipline. Judd explained
behind me and I could getl he hell heatl out of me'" Mitchell denied Ihese
threats as elt Ballord s credited as to the foregoling
:' See G C Exh 5-D
' Respondent', contetion in its brief that the General Counsel has not
met this burden, ignores JoIIl's expressed reason for acting in her case
anld he fact that against he immediate foreground of the discharge.
J rI',re refrces to Mitchell's failure to support and undermining man-
agemnl,n could o1l> h;lae rlated to her inliolsement in union activill
l JolIh testified that an(i of the three cited grounds would ittdepen-
denlll rcsill ill disharge.
.' fi (la Ir ruckit ( o pati. x . R. B.. 62 1 2d I 69. 11 70 4h
(ir I )S)l

1037
DECISIONS ()F NATIONAL LABOR RELAT'IONS B()ARD
that no further investigation was made of the threats in
the first instance because of a good working relationship
that existed with Mitchell and an unwillingness to disturb
that relationship. Management's limited regard for the
threat is underscored by the fact that despite two or
even three counseling sessions held with Mitchell by
Judd and Jolly thereafter, the Ballord threat was never
raised. Only after Mitchell had been threatened with dis-
charge should she engage in union activity in the future,
and her persistent refusal to abide, did such threats
achieve heightened significance and form a predicate for
discipline, which in turn was communicated to her in the
form of a discharge, without the right to confront accus-
ers, prior counseling, or express solicitation of any expla-
nation she might offer in connection with the accusations
against her. Not only do I find that Respondent has
failed to meet its burden of demonstrating that Mitchell
would have been terminated absent her involvement in
union activity, but the inferences drawn on the total
record support the conclusion that Respondent, as it had
in the past, would have dealt with the threats in a fash-
ion other than termination had it not been for Mitchell's
contumacious refusal to support management's position
in the organization campaign. Accordingly. I find that
Respondent in terminating Mitchell acted on reasons
proscribed by the Act.
There remains for consideration the question of Mit-
chell's supervisory status. At the time of her termination,
she was paid on an hourly basis at a rate of $4.38X. The
supervisory issue turns critically on the fact that Mitch-
ell, on two of her 5 weekly shifts, worked alone and had
ultimate responsibility for her shift.: Her direction of
nurses aides in such a context, and to report work dere-
lictions is crucial.64 She admittedly had no authority to
hire and fire, and it does not appear that she could rec-
ommend effectively such action. Nor does it appear that
she had authority to schedule suspend, layoff, recall, pro-
mote, reward,6" discipline, or adjust grievancess.6 6
Mitchell testified that 95 percent of her working time
is dedicated to nursing duties; consisting of checking the
": The testimony of Judd to the effect that Mitchell's authority ,:as no
different than that of Patillo when she worked alone is construed as limit-
ed to direction of the aides in patient care. Patilli> remained the supervi-
sor in charge of the shift to whom Mitchell was subordinate as cvidenced
by the fact that it was Patillo, not Mitchell. who evaluated the aides and
tol whom Mitchell would report work infractions
51 The fact that an L'N is in sole charge of a shift is not determinative
of supervisory status. Pilecreo Convalecent Home. Inc., 222 NLRB 13
(1979).
"; It appears that Mitchell in 1976 prepared an evaluation oni Preflow. a
nurses aide. See Resp. Exh. 1. It does not appear that she had similarly
evaluated employees since that date. She did instruct RN I'atillo oil the
procedures entailed in completing evaluationrs and consult fwith her con-
cerning the aides. but this was limited to the period shortly after IPatillo's
hire.
""The status of Mitchell was considered in Case 5-RC- 1096 Thus, in
that proceeding. the Employer had objected to the election on grounds
that Mitchell. as a supervisor, had engaged in activity on behalf of the
Union. The Regional Director. on May 2 198(. overruled that ob jec-
lion, without reciting evidence. but simply concluding "the evidence dis-
closed that Mitchell did not possess sufficient indicia of supervisiryS au-
thority within the meaning of Section 2(11) of the Act to support find-
ing that she was a supervisor" fBy telegraphic order dated July I 1, 98).
the Employer's request for review va;ls denied without hearing As he
basis for the Regional Director's conclusion is unsupported by expression
of the facts before him, it is if nil utility in Ihis proceediing
children, charting TPR or vital signs and irregularities,
and administering medication and tube feedings.67 In ad-
dition, Mitchell's responsibility to oversee the 6-8 aides
on her staff is diminished materially as the children,
being asleep, require less attention than on other shifts. If
a child became ill, and if in her judgment, it was serious
or an emergency, she would seek counsel from the head
nurse.
Mitchell did not schedule the aides, and in the event
that an aide failed to report for work, developed illness,
or for some reason or another left work, she would seek
approval by telephone from the director of nursing or
the head nurse, and log that fact in a record book. If the
floors in Mitchell's judgment were not entirely covered,
here to, she would call the director of nursing to obtain
a replacement. Nonetheless, it was Mitchell's primary re-
sponsibility to assure that all areas were covered
throughout the shift. If she felt replacement was unneces-
sary she would not call a superior but simply assign
someone in a related area to cover.
As for nurses' and doctors' orders, Mitchell would
relay those and other instructions from prior shifts to the
aides, and would explain any which were not self-ex-
planatory.
Mitchell also testified that in the event of misconduct
on the part of an aide, she would make no recommenda-
tions with respect to discipline, but would simply report
the incident to Patillo, or the head nurse." The authority
to report misconduct, though perhaps giving rise to an
investigatory process which may result in discipline, is
not the equivalent of effective recommendation. See, e.g.,
Pikeville Investors. Inc.. d/h/u Mountain Manor Nursing
Home, 204 NLRB 425 (1973). Jolly's uncorroborated tes-
timony that LPNs were given authority to "write up"
aides at the November 1979 meetings was not believed.
Respondent Exhibits 5 and 6 are summaries of the No-
vember 1979 meetings conducted by Jolly and/or Judd.
Though they disclose that RNs and LPNs at that time
were informed that they were to report discrepancies
and "recommend disciplinary action," beyond that there
is neither evidence that such recommendations were ever
made by an LPN nor basis for assessing whether such
authority could be implemented by them effectively.
The question of responsible direction is always difficult
to resolve at the lower echelons of control. For the line
of demarcation between lead authority and statutory su-
pervision is thinly drawn, lacking in objective standards,
and too often imposed on vaguely developed facts.
Indeed, the task of resolving the issue becomes particu-
larly onerous when brought to bear upon the highly
skilled or, indeed, upon paraprofessionals whose leader-
' Based on a request of Ihe (eneral Counsecl ad as is cotllisteilt ith
a logical understandiig of the testinmtllS. certain errors ill the transcript
are hereby noted and corrected.
"' Mitchell admits that prior to the adelent of lunion actisits. i Nosem-
her 1979, a nleeting as held of all nurses, ilcludiiig lIPNs atd RNs. ill
which tihe I Ns ere told to "moior" ;lidcs ad report their infrac-
titns. A conflict exists as ll shcther or r not the L t'NS at that meethig
were told hat they Acre supersirsors In this respect. I am willing lo gilve
the bellefit of doubt to the Responldenll Hexer, it is Ihe a;uthorit) held.
rather than i labels bhaldied h the cn ploer ¥which conitrols See Sol
IeldA ild. an Inh diidual dIh/ a (,enpari (r' ( ier jormtril kntolt! amu
1't/loth i hi , Halth Rla'ted ta murIn. 231 N RB 751
1038
ST. MARY'S INFANT HOME
ship status is narrowly circumscribed to work force di-
rection. who themselves engage in manual duties primar-
ily. but who are cast in a position of responsibility by
virtue of special training and/or experience. LPNs are
within that category and have been the focal point of a
perceptible trend in National Labor Relations Board au-
thority, reflecting a reluctance to accord deference to ex-
pansive conceptions of what constitutes independent
judgment. when to do so. would be at the expense of
those "fundamentally limited to providing routine patient
care." 9 Congress was fully mindful of this fact in 1974
when the health care amendments were enacted. Thus,
as stated by the Senate Committee on Labor and Public
Welfare:
The Board has carefully avoided applying a defini-
tion of "Supervisor" to a health care professional
who gives direction to other employees in the exer-
cise of professional judgment, which direction is in-
cidental to the professional's treatment of patients,
and thus is not the exercise of supervisory authority
in the interest of the employer. 7"
Assessment of the record convinces that a like result is
merited here. Mitchell's authority with respect to the
aides on her shift, even when on duty alone, is essentially
limited to the routine, and, beyond that, her exercise of
judgment stems from the training and experience inher-
ent in the position of LPN, and related exclusively to pa-
tient care. It does not appear that beyond the realm of
patient care, Mitchell exercises independent judgment
with respect to Respondent's personnel policy, an area
reserved by Respondent to superiors, including the direc-
tor of nurses who apparently is "on call" when not phys-
ically present at the Home. I find that the record does
not substantiate that Mitchell is a supervisor within the
meaning of Section 2(1 1) of the Act.
Accordingly, it is found that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by terminating Mitchell
because of her union activities. It is further found that
Respondent violated Section 8(a)(1) by Jolly's threats to
Mitchell that she would be discharged and blacklisted
for employment in the State of Virginia if she did not
suspend her union activity, and by Judd's creating the
impression of surveillance by informing Mitchell that it
was known that she was involved in organization activi-
ty, by telling her that authorization cards would be
turned over to Jolly, by interrogating her concerning the
reasons she and others supported the Union, and by tell-
ing her that benefits would be lost if the Union were des-
ignated.
CONCLUSIONS OF LAW
1. The Respondent St. Mary's Home, Inc., t/a St.
Mary's Infant Home, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
s See Shadescrenit liealrh Curc Center. 22 NRB 1011. 10)X2 (1977).
and case, cited therein
'" Coverage 1 .aontproj li t tpcali Uttdcr Ih .burMrlu! Lauhor Rclui,,,
Alt. S. Repl. 93 766. 93d Cong. 2d Ss h (April 2 174)
2. Professional Health Care Division, Retail Store Em-
ployees Union. Local 233. Chartered by United Food
and Commercial Workers International Union. AFL-
CIO-CLC. is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent independently violated Section 8(a)(l)
of the Act by maintaining a rule barring employees from
engaging in union solicitation in nonpatient care areas on
their on time, by threatening employees with discharge
and blacklisting for engaging in union activity. by coer-
cively interrogating employees concerning union activi-
ty, by asking employees to spy on and report back the
union activity of others, by threatening to close the
Home in the event the Union were designated, by creat-
ing the impression that union activities were under sur-
veillance, by telling employees that union authorization
cards would be turned in to management, by telling em-
ployees that benefits would be lost if the Union were
designated, by soliciting grievances of employees, by
threatening employees with reprisal if they failed to co-
operate with the effort to solicit their grievances, by tell-
ing employees they could be sued for supporting legiti-
mate union propaganda, by coercively discouraging em-
ployees from furnishing affidavits to the National Labor
Relations Board or testifying in support of unfair labor
practice charges.
4. Respondent violated Section 8(a)(3) and (1) of the
Act by, on January 30, 1980, discharging Sheila Mitchell
because of her union activity.
5. Respondent violated Section 8(a)(5) and (1) of the
Act by bypassing the Union and dealing directly with
employees regarding matters affecting wages, hours, and
terms and conditions of employment.
6. The unfair labor practices found above are unfair
labor practices having an affect upon commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be ordered to cease and
desist therefrom, and to take certain affirmative action
necessary to effectuate the policies of the Act.
It having been concluded that Respondent discrimina-
torily discharged Sheila Mitchell, it shall be recommend-
ed that Respondent offer her immediate reinstatement to
her former position, or if not available, to a substantially
equivalent position, without loss of seniority or other
privileges and benefits, and make her whole for any loss
earnings sustained by reason of discrimination against her
from the date of her discharge to the date of a bona fide
offer of reinstatement. Backpay shall be reduced by in-
terim earnings and computed on a quarterly basis as pre-
scribed in F W. Woolworth Company, 90 NLRB 289
(1950), and shall include interest as authorized by Florida
Steel Corporation. 231 NLRB 651 (1977).71
As the unfair labor practices found herein include dis-
crimination attributable to Respondent's highest adminis-
trative officials coupled with a host of independent acts
of interference manifested on a repeated basis while
Sec. gr. eerllly Itm Pluthinglr & Irirng Co.. 13I NLRH 71h (1'62)
103g
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meritorious unfair labor practice charges were pending, a
proclivity to violate the Act is shown to a degree war-
ranting a recommendation that Respondent be ordered to
cease and desist from "in any other manner" interfering
with employee rights guaranteed by Section 7 of the
Act. See Hickmort Foods, Inc., 242 NLRB 1357 (1979).
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 72
The Respondent's, St. Mary's Home, Inc., t/a St.
Mary's Infant Home, Norfolk, Virginia, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Maintaining any rule which precludes employees
from engaging in union solicitation on their own time in
nonworking, nonpatient care areas.
(b) Interrogating employees concerning their union ac-
tivity or that of their fellow employees.
(c) Telling employees that their union activity is sub-
ject to surveillance or instructing employees to engage in
surveillance and to report back the results.
(d) Threatening employees that benefits would be lost,
or that the Home would be closed, or that they would
be discharged, or blacklisted if the Union were designat-
ed or if they persisted in union activity.
(e) Telling employees that union authorization cards
signed by them will be turned over to management.
(f) Soliciting grievances from employees under condi-
tions calculated to influence them to withdraw their sup-
port of the Union.
(g) Telling employees that they could be sued because
of their involvement in union activity.
(h) Telling employees that those who gave affidavits
to the Board will be called to testify and will suffer an
uncomfortable experience in consequence.
(i) Discouraging membership in a labor organization
by discharging employees, or any other manner discrimi-
nating with respect to their wages, hours, or other terms
and conditions of employment.
(j) Refusing to bargain with the Union, by dealing di-
rectly with employees concerning wages, hours, and
72 In the event no exceptions are filed as pro'sided by Sec. 102 4b 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, ad Order. and all obhjections hereto
shall be deemed waived for all purposes.
terms and conditions of employment in the appropriate
unit, consisting of:
All regular full-time and regular part-time nurses
aides, housekeeping employees, laundry employees,
maintenance employees, food service employees,
sewing employees and classroom aides employed by
the Respondent in its Norfolk, Virginia, facility; ex-
cluding all other employees, office and clerical em-
ployees, medical record clerks, professional and
technical employees, guards and supervisors as de-
fined in the Act.
(k) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Sheila Mitchell immediate reinstatement to
her former position, and if no such position exists, to a
substantially equivalent position, without prejudice to her
seniority and other rights and privileges, and make her
whole for loss of earnings due to the discrimination
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 payment records, time-
cards, personnel records and reports, and all other re-
cords necessary or appropriate to analyze the amounts
due under the terms of this Order.
(c) Post at its facility in Norfolk, Virginia, copies of
the notice attached hereto marked "Appendix." 73 Copies
of said notice on forms provided by the Regional Direc-
tor for Region 5, after being duly signed by an author-
ized representative of the Respondent, shall be posted
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of Order, what steps
have been taken to comply herewith.
7': In the event that this Order is ienforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Po'ted bh
Order of the National labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National I.ahor Relations Board
1040