Birch View Manor

BIRCH VIEW MANOR Birch Tree Number One, Incorporated, d/b/a Birch View Manor and Service Employees Union Local No. 50 of the Service Employees International Union, AFL-CIO-CLC Birch Tree Number One, Incorporated, d/b/a Birch View Manor and Daniel L. Moody, Petitioner, and Service Employees Union Local No. 50 of the Ser- vice Employees International Union, AFL-CIO- CLC. Cases 14-CA- 11490 and 14-UD 108 July 17, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JNKINS AND MURPHY On March 29, 1979, Administrative Law Judge J. Pargen Robertson issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and Respondent filed cross-exceptions and a support- ing brief. 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 and briefs and has decided to affirm the rulings, findings,' and conclusions' of the Administrative Law Judge and to adopt his recommended Order,' as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Birch Tree Number One, Incorporated, d/b/a Birch View I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dr 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. 2 In adopting the Administrative Law Judge's conclusion that Respondent did not violate Sec. 8(a)43) and (I) of the Act by discharging strikers Moore and Sechrest and suspending striker Bradford. we rely on his findings that Respondent's actions were motivated by the strikers' misconduct. and that the misconduct was sufficiently senrious to justify denial of reinstatement. I In par. I of his recommended Order the Administrative Law Judge inad- vertently omitted the cease-and-desist provision against Respondent's violat- ing the Act "in any like or related manner." which the Board traditionally provides in cases involving 8(aX)1) violations. Accordingly. we shall modify the recommended Order and notice. Manor. Birchtree, Missouri, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph I: "1. Cease and desist from: "(a) Interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act, in violation of Section 8(a)( I) of the Act, by telling its employees that its supervisor had been instructed to ride strikers. "(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. APPENDIX NoTI(F. To ENPI.OYlES POS[El) BY ORDER ()F TIlt- NAIIO()NA LABOR REIAO()NS BOARD An Agency of the United States Government Wit. wii. NO I interfere with, restrain, or coerce our employees in the exercise of the rights guar- anteed them in Section 7 of the Act, by telling our employees that our supervisors have been in- structed to ride employees who have participated in the strike. Wt: Wil I NI in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. BIRCHII TRI I NMBIR ONE, INCORPORArED, I)/B/A BIR( I1 VIFlW MANOR DECISION SIAIIMI-NI OF 1t11 CASI J. PARGEN ROBERISON, Administrative Law Judge: This case was heard on November 28, 29. and 30, 1978, at Emi- nence, Missouri. The complaint, which issued o July 7 1978, and was amended on September 15. 1978, is based upon a charge filed May 24, 1978. by Service Employees Union No. 50 of the Service Employees International Union, AFL CIO-CLC (Union). The complaint, as amended. alleges Birch Tree Number One, Incorporated, d/b/a Birch View Manor (Respondent), violated Section 8(a)(I) and (3) of the National labor Relations Act, as amended (Act). Pursuant to a petition filed b Daniel L. Moody an election was conducted on May I I,. 1978. Subse- quently, the Regional Director determined that the results of that election were inconclusive inasmuch as the chal- lenged ballots of two of the alleged discriminatees in Case 243 NLRB No. 87 495 DECISIONS OF NATIONAl. LABOR RELATIONS BOARD 14-CA- 11490 were determinative, and he ordered consoli- dation of these two cases for hearing before an administra- tive law judge. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. Briefs, which have been care- fully considered, were filed on behalf of the General Coun- sel, Respondent, and the Union. Upon the entire record' and from my observation of the witnesses and their demeanor, I make the following: third alleged discriminatee, Denise Bradford,' was denied reinstatement from September 2, 1978. and suspended by letter dated September 7, 1978, due to alleged "acts against an employee of Birch View Manor at the time you were on strike." The complaint also alleges that Respondent, through its administrator, threatened an employee that it had advised its supervisor to "ride" the employees that had participated in the strike.4 IV. (ON('I.USI()NS FINDINGS AND CO)N('I.!SIO(NS I. COMMERCE Respondent is, and at all times material herein has been, a corporation doing business at Birchtree, Missouri, where it is engaged in the operation of a nursing care facility. During the year ending June 30, 1978, which period is representative of all times material herein. Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $250,000. It purchased and caused to be transported and delivered at its Birchtree, Mis- souri, place of business goods and materials valued in ex- cess of $5,000, of which goods and materials valued in ex- cess of $5,000 were transported and delivered to its place of business at Birchtree, Missouri. directly from points located outside the State of Missouri. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR OR(IANIZAI()N Service Employees Union Local No. 50 of the Service Employees International 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. III. THE ALLEGED UNFAIR l.ABOR PRA('It('ES On December 9, 1977, certain employees of Respondent represented by the Union engaged in an economic strike.2 That strike continued until February 21, 1978, when the Union unconditionally offered to return the employees to work. All the striking employees with the exception of the three alleged discriminatees were eventually reinstated or offered reinstatement by Respondent. Two of the alleged discriminatees, Leota Schrest and Barbara Kay Moore, were discharged by letters dated March 8, 1978, for alleged "Striker misconduct during the term of the strike." The I Respondent's motion to correct the transcript, made in its brief, is granted. 2 On December 11, 1977, a restraining order was issued against the Union and certain striking employees including Leota Sechrest and Kay Moore by the Shannon County Circuit Court. That order was amended by the court on December 20, 1977, to prohibit picketing in a manner to prevent ingress and egress, parking vehicles in a manner to obstruct traffic, and picketing by more than two persons. A. The 8(a)(3) Allegalions The issue presented is whether Respondent, by terminat- ing two employees and failing to reinstate a third fobr activi- ties allegedly committed during an economic strike, vio- lated the Act. An employer who refuses to reinstate a striker on the basis of misconduct occurring at or even away from the picket line need only show evidence of its good-faith belief that the employees engaged in such misconduct. Upon such showing, the General Counsel then has the burden of show- ing that the striking employees did not, in fact, engage in the alleged misconduct.' Respondent admitted that its employees, including the alleged discriminatees engaged in an economic strike. Em- ployees involved in an economic strike are engaged in pro- tected concerted activity and, absent a showing of some nonviolative motivation such as employee misconduct, ac- tions by an employer against those employees would be inherently destructive of Section 7 rights. See N.L.R.B. v. Great Dane Trailers, Inc.. 388 U.S. 26 (1967); N.L.R.B. v. Fleet wood Trader (o., 389 U.S. 375 11967). 1. he "good-faith" question Therefore. my analysis must start with a determination of whether Respondent acted in "good faith" in discharging and suspending the alleged discriminatees. In considering that issue, I have considered whether the allegations, as reported, were worthy of belief and whether they rose to the level which would justify the disciplinary actions taken by Respondent. I am convinced, on the basis of the record, that the var- ious allegations against Moore, Sechrest, and Bradford were worthy of belief. The evidence reflects that all the relevant incidents' were promptly reported to Respondent. Also, all of the incidents resulted in charges in state courts 'Although Denise Bradford was not specifically alleged as an 8(aK31 dis- criminalee in the charge. Respondent has not objected to her inclusion in the complaint. and the allegations regarding Bradford were fully litigated at the hearing. ' Another 8(aX I) allegation was dismissed at the beginning of the hearing pursuant to motion of Respondent after counsel foIbr General Counsel an- nounced that he would not submit evidence as to that particular allegation. Rubin Brothers Footwear, Inc., 99 NLRB 610, 611 (19521; NL.R.B. v. Burnup & Sims. 379 U.S. 21 (1964): Associated Grocers of New England, Inc., 227 NLRB 1200 (1977). 6 Moore was discharged because of a December 9. 1977. incident; Sechrest was discharged because of a December 25. 1977. incident: and Bradford was denied reinstatement and suspended because of a February 2, 1978, incident. 496 BIRCH VIEW MANOR against each of the alleged discriminatees prior to Respon- dent taking its actions against them. There is nothing in the record with demonstrates that Respondent should have concluded that any of the reported incidents were without foundation in fact. General Counsel contends that because of an alleged 8(aX 1) violation Respondent was not acting in good faith. As shown hereafter. I find that Respondent did indeed violate Section 8(a)( I) during August 1978. How- ever. I specifically reject General Counsel's argument that that violation demonstrates Respondent was not acting in good faith in its actions against the alleged discriminatees. Respondent's 8(a)(I) activity establishes, at least to some degree. its union animus. The question must remain. how- ever, does this demonstration of animus establish that Re- spondent was not acting in good faith when it disciplined Moore, Sechrest, and Bradford. At the time of its disciplin- ary actions the strike had ended. Nevertheless, Respondent was aware when it disciplined Moore and Sechrest that each had been found guilty of traffic violations stemming from their alleged actions against nonstriking employees. Since the evidence does not reflect any disparity in treat- ment against nonstrikers, or that the evidence against Moore and Sechrest was fabricated or exaggerated with Re- spondent's knowledge, I am unable to find that Respondent altered its planned course of action because of antiunion motivation. Also, as to Bradford, the evidence does not reflect that Respondent, by acting on its information regarding the al- leged February 2 incident, permitted its union animus to alter action it would have otherwise taken. In that regard. I do consider that the action against Bradford preceded any findings in state court. However. I am influenced by the fact that the allegations regarding the February 2, matter reflect far more serious activity than those earlier allegations re- garding Moore and Sechrest. Nevertheless, due to the fact that no court had reached a decision on the charges stem- ming from that incident, the disciplinary action against Bradford was not as permanent as those taken against Moore and Sechrest. Therefore, I find that the evidence upon which Respondent based its discipline of Moore. Sechrest, and Bradford, was worthy of belief and was not the result of union animus. The next question is whether, upon the evidence pre- sented against the alleged discriminatees, Respondent was justified in discharging and refusing to reinstate them. 2. The December 9, 1977. incident On the first day of the strike, Opal Bryan (Rothwell). a supervisor. and Janice Miller, a nonstriking employee, left work at 3 p.m., the end of their shift. As they drove away they were followed by a car driven by striking employee Barbara Kay Moore and containing strikers Denise Brad- ford and Leota Sechrest. Rothwell testified that she was driving with Janice Miller, her passenger. As she drove out of the nursing home parking area Rothwell noticed Moore. Sechrest, and Bradford getting into a car. Rothwell waited at the exit of the parking area for Moore to proceed ahead, but Moore waited until Rothwell pulled out and then she followed behind Rothwell down the service road toward Highway 60. When Rothwell turned west on Highway 60./ the Moore car followed. Rothwell testified that Moore pulled her vehicle up to a point where she felt that Moore was going to ram her car before they reached the intersec- tion of the service road and Highway 60. Thereafter. Moore followed closely behind Rothwell's car for approximately 4 miles at speeds of 50 to 55 miles per hour until Rothwell pulled off at Searcy's store On two or three occasions Moore pulled up to what seemed to Rothwell to be "a loot or maybe closer" to Rothwell's rear bumper. On two occa- sions Moore pulled out into the passing lane and up along- side Rothwell's car. On those occasions Moore pulled over partly into Rothwell's lane and. on one occasion, forced Rothwell onto the shoulder of the road. On the other occa- sion Moore had to pull back behind Rothwell's car as an oncoming car approached. Upon arriving at Searcy's store Rothwell pulled off and called over Vivian Mason who was parked there. told Mason what had happened, and asked her to call the nursing home and tell Helen Hickinbotham or Mr. Jackson that they needed help. When Rothwell pulled off at Searcy's Moore also pulled off and parked immediately behind Rothwell. No one got out of either car. Subsequently, Rothwell pulled away from Searcy's and continued to the town of Mountain View. Moore also pulled away but did not follow Rothwell. Instead, Moore pulled off down the old Highway 60 also in the direction of Mountain View. When Rothwell arrived at "Berner-Banks corner" in Mountain View, a 4-way stop, she again met Moore. Thereafter. Moore pulled in behind Rothwell and followed her some 5 or 10 minutes through Mountain View. Rothwell tried and succeeded in losing Moore occasionally, but Moore would pick her up again. Rothwell pulled into the Mountain View police station upon seeing a police car and reported the incident. Janice Miller, who is no longer employed by Respondent, also testified. Miller testified that she was a member of the Union until the day before the strike when she mailed her resignation. Miller testified that she was one of only two employees that refused to honor the December 9 picket line. Miller's account of the December 9 incident involving Moore. Sechrest, and Bradford was substantially in accord with Rothwell's testimony. 3. The December 25. 1977, incident Barbara Reed testified that she was employed by Re- spondent as a nurse's aid from December 22, 1977. during the strike until May 22, 1978. At the time of the hearing Reed was no longer employed by Respondent. She now lives approximately 110 miles from Birchtree. Reed testified that as she was leaving the nursing home after work at 3 p.m. on December 25 she was followed by a brown Plymouth as she proceeded east on Highway 60 from Birchtree. Reed later identified the driver of the brown Plymouth as Leota Sechrest. As she approached a caution light on Highway 60 at the edge of Birchtree. Sechrest passed her in a no-passing zone and pulled back sharply in I personally observed that Highway 60 is a rural paved highway trans- versing a sparsel 5 populated area fior several miles. both east and west of Birchtree. Misslurl. 497 DECISIONS ()1 NATIONAL. LABOR RELATIONS BOARI) front of Reed. forcing Reed to hit her brakes. hereafter, Sechrest pulled off the road and allowed Reed to pass. Sechrest then pulled back in behind Reed. After following Reed for a while, Sechrest pulled into the passing lane alongside Reed's car. Sechrest proceeded alongside Reed's car for "a mile or a mile and a fourth" and on three or four occasions pulled over the dividing line toward Reed's car. Sechrest then pulled back behind Reed. followed her for another I to 1-1/2 miles. and she pulled off. Two other witnesses, T'Ferry Lawson and Robert Smother- man, who were not employees of Respondent, testified that they followed Sechrest as she left the nursing home behind Reed's car. Smotherman testified that they followed Sech- rest because "we figured they would do something." While Lawson's testimony substantially corroborated Reed's, there were some differences in their testimonies. Lawson recalled Sechrest trying to pass Reed more than once. He observed Sechrest pulling over toward Reed on several occasions while driving alongside Reed, but he was not sure whether Sechrest crossed the dividing line into Reed's lane on those occasions. Smotherman's testimony also corroborated Reed's. Smotherman testified that Sechrest did "weave over a little" toward Reed on several occasions, but that action did not cause Reed to swerve away. 4. The February 2, 1978. incident Janice Miller testified that before daylight on February 2, as she was leaving her rural home to go to work, she was attacked by three women. Miller identified two of the women as Barbara Kay Moore and Denise Bradford. Miller testified that she was beaten on the face and kicked in the ribs after being knocked to the ground. Sheriff Chester Hawkins testified that Miller's face was noticably damaged when he interviewed her on the morning of Feb- ruary 2. Miller's automobile was also damaged by the three women. The windshield and a headlight were broken. Barbara Kay Moore and Leota Sechrest were subse- quently convicted in magistrate court for traffic offenses arising out of the December 9 and 25 incidents, respec- tively. They have appealed those convictions and are await- ing trial de novo, in circuit court. Both Moore and Denise Bradford have been charged with offenses arising out of the February 2 incident and are awaiting trial. Respondent discharged Moore and Sechrest immediately upon learning of their March 7, 1978, convictions in magis- trate court.8 Respondent conceded that it would have re- hired Bradford on September 2, 1978, but for its informa- tion that she was involved in the alleged February 2 incident. Shortly thereafter, on September 7, it notified Bradford of her suspension pending the outcome of pro- ceedings against her in circuit court. The Board, in deciding question of misconducts, has con- sidered whether the conduct in question was so flagrant or I In determining whether the alleged conduct of Moore, Sechrest. and Bradford justified disciplinary actions, I have placed no reliance on state court findings or proceedings. W. C McQuaide, In(., 220 NIRB 593, 594 (1975). egregious as to require subordination of the employees' pro- tected rights in order to vindicate the broader interest of society as a whole. See W ('. McQuaide, Inc., 220 NLRB 593. 594 (1975): cf. Associaled (rocerv o/ Ne'w England, 227 NLRB 1200. The Board, in McQuide, vupra. held that mere verbal abusive language and threats not accompanied by any physical acts or gestures that would provide added empha- sis or meaning to the words are not a sufficient basis to deny reinstatement after a strike. However, physical assault and conduct that gives threats a sense of immediacy and cre- dence would justify a refusal to reinstate. I am convinced that Respondent's discipline of Moore, Sechrest. and Bradford was justified on the basis of the reports it received. Although the December incidents in- volving Moore and Sechrest did not result in injury or prop- erty damage, the evidence presented in Respondent's case clearly reflects that those actions were calculated to have and did have the effect of placing nonstriking employees and others in fear of imminent injury to themselves. Fur- thermore, the manner in which Moore and Sechrest alleg- edly operated their automobile on those occasions placed everyone involved in a situation where serious injury could have easily resulted. 'The evidence demonstrates that Re- spondent received reports that the alleged February 2 inci- dent resulted in personal injury and property damage to nonstriking employee Miller. Therefore, the evidence demonstrates that Respondent was acting in good faith when it discharged Moore and Sechrest and refused to rehire Bradford. 5. The General Counsel's evidence Remaining is the question of whether the General Coun- sel proved that the alleged discriminatees did not actually engage in misconduct.9 Moore admitted that she followed Opal Bryan (Roth- well) on December 9. and that Janice Miller was with Roth- well. Leota Sechrest and Denise Bradford were riding with Moore. However. Moore contended that she got no closer than four or five car lengths behind Rothwell's car, and she never pulled out to pass. Moore also contended that she did not follow Rothwell and Miller through Mountain View. Moore admitted pulling off at Searcy's behind Rothwell. but contended that she did so 15 feet away. When asked why she pulled off at Searcy's behind Rothwell, Moore re- plied, "because she was acting very strange." Moore admit- ted that no one got out of her car at Searcy's. She remained parked at Searcy's until Rothwell left. Then Moore left, taking a different route into Mountain View. Leota Sechrest and Denise Bradford testified about this same incident. Their testimonies were similar to Moore's. Leota Sechrest admitted that she drove to the nursing home at about 3 p.m. on December 25, did not get out of the car, but immediately turned and drove away toward Bartlett. Sechrest testified that she started to Bartlett to take her niece to see a boyfriend. It was not until she was "down ' Since the General Counsel's evidence did not include a denial by Brad- ford or Moore of Miller's allegation that they attacked her on February 2 I find General Counsel failed to disprove that instance of alleged misconduct. 498 BIRCH VIEW MANOR the road a ways" that Sechrest noticed Barbara Reed ahead. Sechrest also noticed a pickup containing Robert Smotherman and Terry Lawson behind her. Sechrest tried to pass Reed on two occasions, but Reed pulled over across the center line and prevented her passing. Sechrest denied pulling alongside Reed or that she tried to run Reed off the road. Sechrest's passengers, lSeona Sechrest. Julie Sechrest. and Tammy Sechrest also testified regarding the December 25 incident. Neither Bradford nor Moore denied the testimony of Ja- nice Miller regarding the alleged incident of February 2. 1978. After observing the demeanor of General Counsel's wit- nesses and considering their testimonies. I conclude that General Counsel has not proved that Moore. Sechrest, and Bradford did not engage in the alleged misconduct. Leota Sechrest was admittedly involved in both the De- cember incidents. Although she did not admit any intent to follow nonstriking employees, her testimony and common logic would suggest otherwise. On direct examination Sech- rest testified that she did not notice Barbara Reed ahead of her on December 25 until they were down the road. How- ever, on cross-examination Sechrest admitted that she met Reed when she was coming down the hill near the nursing home, and she had to turn around to follow Reed down the service road. Also Sechrest testified that her only reason for being on the road behind Reed was to take her niece to a boyfriend's home in Bartlett. When confronted with the fact that she passed the Bartlett turnoff without turning, Sechrest could offer no explanation of why she continued to follow Reed. When asked why she was following one car length behind Reed at a high rate of speed, Sechrest's was able to respond simply, "I don't know really. We just got in behind her." I found that Leota Sechrest's testimony also failed to square with logic regarding the December 9 incident. She admitted that she, Bradford, and Moore left the picket line on the first day of the strike and recognized that one of only two bargaining unit employees that had crossed the picket line that day was riding in the car immediately in front of them. Sechrest noticed Miller and Rothwell when Rothwell started slowing down and then speeding up. Nevertheless, according to Sechrest's testimony, there was no discussion of Miller working during the strike. Furthermore, according to Sechrest, there was no discussion as they pulled off at Searcy's as to why they were stopping there. Bradford and Moore, who were present throughout Sech- rest's testimony,.° also testified that there was no discussion of Janice Miller as they followed Miller and Rothwell. Both Bradford and Moore appeared to change their testi- monies from that in their affidavits as to when they first recognized Rothwell and Miller on December 9. In her affi- davit Bradford stated that Sechrest got in the car with her and Moore just about the time Bryan (Rothwell) and Miller were getting into their car. Moore stated in her affidavit that nonstriking employees Opal Bryan (Rothwell) and Ja- nice Miller pulled out of the nursing home parking lot in Bryan's car as Sechrest was getting in her car. However, after hearing Leota Sechrest's testimony regarding when HO No motion was made to place witnesses under he rule of sequestration. she recognized Rothwell and Miller, Bradford and Moore appeared to alter their testimonies to more closely support Sechrest. Bradford's and Moore's explanation that their af- fidavits reflected what they assumed to be correct lends fur- ther support to the inference that they were collectively ad- justing their testimonies to support each other. Leota Sechrest's sister Leona testified regarding the De- cember 25 incident. Leona Sechrest testified in full support of the earlier testimony of Leota. Although she admitted following one car length behind Barbara Reed at 50 to 55 miles per hour and that they were blocked from passing by Reed, she contended there was no discussion of why Leota was trying to pass Reed. Leona Sechrest also testified that there was no discussion as to whether they should return to Bartlett after they passed the Bartlett turnoff. Julie Sechrest, Leona's daughter, also testified about the December 25 incident, as did Leota's daughter Tammy. Leota. Leona, and three of their daughters were all in Leo- ta's car that day. Julie testified that they followed Barbara Reed for about 2 or 3 miles, one to two car lengths behind and tried twice to pass Reed. Although they were blocked from passing by Reed moving to cut them off, Julie recalled no discussion of what was occurring other than Leona and Leota commenting that Barbara Reed was driving the car. Julie admitted stating in her affidavit that they were along- side Reed's car when Reed pulled over into their lane. However, at trial she testified that she really meant they were getting close. maybe 3 or 4 feet behind Reed. Julie admitted testifying in her affidavit that they were in the passing lane on one occasion for one-half of a mile to I mile. Tammy Sechrest, a striking employee, testified in full support of her mother. Tammy testified that they were past the Bartlett turnoff on the second occasion they' tried to pass Barbara Reed. No explanation was ever given as to why Leota Seclrest was in such a rush after passing the turnoff to her intended destination. Tammy testified in her affidavit that the statement that they were in the passing lane for I-1/2 miles, was incorrect, because she did not know how far I mile was. At the time of the hearing, Tam- my was 18 years old, possessed a drivers license, and was employed. In comparing the versions of the two December inci- dents, I note that neither Janice Miller nor Barbara Reed is now employed by Respondent. Much of Mil!er's testimony stands undenied. Both Miller and Reed appeared straight- forward and candid in their testimonies. On the other hand, I find the testimonies of General Counsel's witnesses noted above demonstrate a common effort to adjust their testimo- nies to suit the situation. I do not credit the testimonies of Moore, Bradford, or any of the Sechrests to the extent they conflict with the testimonies of Miller and Reed. Therefore, I have determined that the evidence does not satisfy the burden required of General Counsel. The General Counsel has failed to prove that the alleged discriminatees did not engage in misconduct. I shall recommend that the 8(a)(3) allegations of the complaint be dismissed" and the chal- " In view of my finding, I do not reach Respondent's alternate argument that Moore. by engaging in the February 2 attack on Janice Miller. forfeited any right to reinstatement, However, I credit the undenied testimony of Miller that Moore and Bradford were two of her attackers. 499 I)E('ISIONS OF NATIONAI LABOR RATIONS BOARI) lenges to the ballots of Leota Sechrest and Barbara Kay Moore be sustained. 2 B. The 8(a)(I) Allegation Miss (lenna Cafiourek testified that she had an August conversation at the office with Administrator Jackson. ('a- fourek had earlier written a letter of complaint about charge nurse Pat Burris. During the conversation with Jackson she was asked if, when she wrote the letter, she knew that Jackson had told Pat Burris to ride the strikers. When Cafourek replied no, Jackson said, "Well I did. But you're not a striker so you don't have nothing to worry about." Administrator Jackson denied making the above state- ments. I found Miss Cafourek to be a direct and candid witness. Her demeanor and testimony demonstrated that she was not interested in advancing the Union's position. She was employed by Respondent on a part-time basis at the time of the hearing and was first employed during the strike. Her responses to questions during cross-examination indicated a willingness to respond truthfully even though her answer would aid Respondent. I found Mr. Jackson to be too interested in responding in a manner that assisted Respondent's position. He very positively testified that all the striking employees that had not returned, excepting only the alleged discriminatees received more than one offer to return to work. However, when confronted with a spe- cific name, he first responded that her offer may have oc- curred prior to the time he came. Later Jackson admitted that the named person was not given a second offer to re- turn to work. Therefore, I credit the testimony of Miss Ca- fourek and discredit that of Mr. Jackson to the extent they conflict. I find Jackson's statement to Cafourek violates Section 8(a)(I)." V. THE CHttALLENGED BALLO)S For the reasons discussed above. I recommend that the challenges to the ballots of Barbara Moore and Leota Sech- rest be sustained. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Service and Hospital Employees Union Local No. 50 of the Service Employees International Union, AFL-CIO- " The Union argues, over General Counsel's objection, that Respondent condoned the misconduct of the alleged discriminatees. In view of the Gen- eral Counsel's opposition, I am without authority to consider the Union's argument, and I so rule. Winn-Dixie Stores, Inc., 224 NLRB 1418 (1976). However, had I been in position to consider the condonation argument, I would have found no condonation occurred. The "Return to Work" provi- sion of the March 6, 1978, collective-bargaining agreement is clear and un- ambiguous on Respondent's authority to discipline strikers for misconduct and is therefore not subject clarification by oral testimony. That provision states in part: "Any replaced striker determined by the Company to have harassed any economic replacement shall be subject to discipline. up to and including discharge, and the same apply to replacements who harass return- ing strikers." i1 I find a violation even though the evidence indicates that the conversa- tion occurred in August rather than on July 24 as alleged. CIC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By telling its employee that its supervisor had been instructed to ride strikers Respondent has engaged in unfair labor practices within the meaning of Section 8(a)( I ) of the Act. 4. Respondent did not violate Section 8(a)( I ) of the Act by conduct alleged in paragraph 6,B, of the complaint or Section 8(a)( I ) or (3) of the Act by conduct alleged in para- graphs 7 and 9 of the complaint. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. TIl RMEII)Y Having found that Respondent has engaged in unfair la- bor practices in violation of Section 8(a)(1) of the ct, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. I recommend that the allegations of the complaint that were not proved be dismissed. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER' 4 The Respondent. Birch Tree Number One, Incorporated. d/b/a Birch View Manor, Birchtree, Missouri, its officers, agents, successors, and assigns, shall: I. Cease and desist from interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act in violation of Section 8(a)( ) of the Act by telling its employee that its supervisor had been instructed to ride strikers. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Post at its Birchtree. Missouri, operations copies of the attached notice marked "Appendix."' Copies of the at- tached notice, on forms provided by the Regional Director for Region 14, after being duly signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or cov- ered by any other material. (b) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. t1 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. '5 In the event that this Order is enforced by a Judgment of a United Sltates court of appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States C ourt of Appeals Enforcing an Order of the Na- tional abor Relations Board." 500