Care Inn, Collierville

'CARE INN, COLLIERVILLE 1065 Mississippi Extended Care Center, Inc., d/b/a Care were made in a context indicating that what was Inn, Collierville and d/b/a Care Inn, Memphis and contemplated was an economic strike, and that the Service Employees International Union, Local talk of permanent replacement was a legitimate 150T, AFL-CIO. Cases 26-CA-4341.26-RC-4159, prediction in light of the nursing home's moral and 26-CA-4377 obligation lto keep the facility adequately staffed, found no violation of Section 8(a)(1). For the reasons he gives, we agree.3 For the same reasons, we April 11, 1973 DECISION, ORDER, AND DIRECTION .OF SECOND ELECTION BY MEMBERS KENNEDY, JENKINS, AND PENELLO On November 30, 1972, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs, and Respondent filed a reply brief. Respondent also filed a motion to remand the proceeding to the Adminis- trative Law Judge and the General Counsel filed an opposition thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended order as modified herein. It was alleged as a violation of Section 8(a)(1) of the Act, and as a basis for setting aside the representation election at the Employer's Collierville nursing home, that Respondent caused speeches to be made to employees in which the employees were told that if they struck they could be permanently replaced, but were not told about their reinstatement rights under Fleetwood Trailer and Laidlaw,2 nor about the special status of unfair labor practice strikers, after the putative strike was over. The Administrative Law Judge, finding that such remarks r The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. 2 N.L.R.B. v. Fleetwood Trailer' Inc., 389 U.S. 375; Laidlaw Corp., 171 NLRB 1366. 3 See Buddies Supermarkets, Inc., 192 NLRB No. 143. But cf . Hicks- Ponder Co., A Division of Blue Bell, Inc., 186 NLRB 712, in which an employer expressly told its employees that in case of a strike their jobs would be filled and when the strike ended those whose jobs were filled would automatically lose their right -to get their jobs back; and Dayton Food Fair Stores, Inc., 165 NLRB 14, enfd . 399 F.2d 153 (C.A. 6, 1968), in which disagree with his conclusion that these remarks constituted objectionable conduct which interfered with employees' right to a free election. Although the threshold of interference for purposes of objections to the conduct of an election, may, in a particular case, be lower than that for establishing a violation of Section 8(a)(1), we do not think a material misrepre- sentation or an impermissible threat occurred simply because the warning about possible "permanent" replacement was not coupled with an explanation of employees' poststrike rights.4 We therefore overrule Petitioner's Objection 1. We adopt the Administrative Law Judge's recom- mendation, however, that the Collierville election be set aside on the basis of the evidence presented in support of Petitioner's Objection 4. This evidence, as credited by the Administrative Law Judge, was that during the critical preelection period Administrator Coats asked employee Dean how he was going to vote and Vice President Bordeaux asked individual employees how they felt about the subjects he had just discussed in an antiunion speech to a group of employees. We agree with the Administrative Law Judge that Bordeaux's questions, in the circum- stances in which they were asked, amounted to interrogations of employees as to how they felt about the Union, in violation of Section 8(a)(1) of the Act,5 and interfered with their free choice in the elections Our dissenting colleague characterizes our finding that Bordeaux's questions were coercive as a per se rule that an employer may not invite comments on the subjects mentioned in a lawful speech. Surely the finding does not admit of such an interpretation. The subject of the lawful speech involved here was the Respondent's opposition to the Union. Employee Allen responded to Bordeaux's question by telling him that she was not saying that she was for the the employer advised its employees that under the law economic strikers "can be fired at once and permanently replaced." 4 Buddies Supermarkets, Inc.,supra. 5 In finding an unlawful interrogation here , we do not rely on the fact that in the preceding speech Bordeaux referred to the Employer's right to permanently replace strikers while failing to explain the poststrike rights of economic strikers and the special status of unfair labor practice strikers. We find it unnecessary to rely, moreover, on the Administrative Law Judge's finding that the interrogations by Bordeaux were part of an overall design to question employees in the series of "small group" meetings at which the Employer presented its antiunion views. 6 Although only three employees were shown to have been interrogated, two of them were interrogated in the presence of a captive group of employees assembled to hear Bordeaux 's antiunion speech. 202 NLRB No. 139 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union or against it. That the question was calculated to elicit a response concerning the employee's feeling toward the Union, even though the word "union" was not used in the question, is strongly suggested by Allen's answer in itself. Furthermore, although it is not clear to our dissenting colleague whether any employees were questioned individually, the Admin- istrative Law, Judge credited the testimony of Allen that two employees in her group were. Bordeaux admitted that he asked employees how they felt about the subjects discussed, not whether they had any questions. An individual employee who was asked how she felt could hardly'have responded by saying that she had no questions, as our colleague suggests. And it is simply not the law that an interrogation is harmless because the employee answers that she has nothing to say, as one of the employees questioned by Bordeaux did here. Our colleague falls into the same error, we think, in concluding that the interrogation of employee Dean by Administrator Coats was harmless because Dean gave a noncommittal answer. And, given the avowedly antiunion posture of the Respondent and the interrogation of employees by Vice President Bordeaux, it is difficult to understand our colleague's characterization of Dean's interrogation as "isolat- ed," or his suggestion that we are again using a per se approach. In the cases he cites in which questions about union feelings were held not to have been coercive, the impact of the questioning was found to have been negligible for some such specific reason, not present here, as that the employees involved were avowed union supporters, that the question was taken as a joke, or that there was no evidence of employer hostility to the union. - We deny Respondent's motion to remand the issue of interrogations by Bordeaux to the Administrative Law Judge on the ground that the Administrative Law Judge made findings not included in the complaint. The complaint specifically alleges interro- gation by Bordeaux and the issue was fully litigated. Moreover, the same interrogation was treated in the Regional Director's Report on Objections in Case 26-RC-4149, in which report Petitioner's evidence was summarized and the Respondent was plainly put on notice that the issue raised by that allegation would be litigated at the hearing.. The evidence presented at the hearing was substantially as stated in the Report on Objections. I The vote was 12 for the Union, 32 against, and 7 challenged. S Blue Flash Express, Inc., 109 NLRB 591. 9 N. L. R.B. v. Ralph Printing and Lithographing Company, 379 F.2d 687; 690 (C.A. 8). to The Administrative Law Judge found a few incidents of unlawful interrogation of employees at the Memphis facility . Respondent has not ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, -the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Mississippi Extended Care Center, Inc., d/b/a Care Inn, Collierville, and d/b/a Care Inn, Memphis, Collierville and Mem- phis, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order of the - Administrative Law Judge. IT IS FURTHER ORDERED that the election conducted on April 14, 1972, in Case 26-RC-4159 be, and it hereby is, set aside, and that Case 26-RC-4159 be, and it hereby is, remanded to the Regional Director for the purpose of conducting a new election. [Direction of Second Election and Excelsior foot- note omitted from publication.] MEMBER KENNEDY, dissenting in part: I do not agree with the majority's adoption of the Administrative Law Judge's findings of unlawful interrogation in two incidents which preceded the election in the Collierville facility. Accordingly, I would not set aside the election in this facility which the Union lost, but would certify the results.7 The first incident involved Administrator Coats and employee Decatur Dean. Sometime in March or April 1972, but before the election held on April 14, Coats spoke to Dean in the kitchen asking him how he was going to vote. Dean replied: "I haven't got no comment." Nothing else was said. Interrogation of employees as to union matters is not unlawful per se.8 It is unlawful only when it is "conducted against a background of employer hostility and discrimination- towards unionization as would induce in its employ- ees a fear of reprisal for lawfully pursuing their union activities.. ."9 Coats' question itself contains no coercive overtones. It was not part of an employer plan of systematic intimidation of employees, but was isolated and casual in nature. Nor was the background against which the question was asked such as to give it coercive impact.10 In fact, Dean's noncommital answer would seem to indicate that he was not coerced. Finally, the Board has found similar casual queries as to an employee's voting intention not violative of Section 8(a)(1).11 The second incident involved questions which followed speeches by Vice President Bordeaux to small groups of employees in March 1972. My filed exceptions to these findings. They are accordingly adopted pro forma. However, there is no evidence that Dean was aware of these incidents. They also occurred after the election at the Collierville facility. 11 B. F. Goodrich Footwear Company, 201 NLRB No. 46; G & S Metals Company, Inc., 198 NLRB No. 65; Knafel Pontiac, Inc., 195 NLRB No. 149; Olin Conductors, 185 NLRB 467; Trojan Steel Corp., 180 NLRB 704. CARE INN, COLLIERVILLE 1067 colleagues have found, and 'I agree, that Bordeaux's speech, although antiunion, was not unlawful. At the close of the speech, Bordeaux asked his audience for questions concerning any points covered in his talk, any points of confusion or unanswered questions that might have arisen, The Administrative Law Judge credited Bordeaux's denial that he had asked employees how they felt about the Union.12 Never- theless he concluded that asking employees about the topics he had discussed in his talk was the equivalent of asking them how they felt about the Union and the questions were therefore unlawful. It seems to me illogical to say that an employer can lawfully discuss certain topics in a talk to employees, but if he invites comment on the subjects mentioned, he is per se guilty of unlawful conduct. It is not clear whether Bordeaux questioned members of his audience individually or in groups. Only employee Allen testified as to individual questioning. If the questions were addressed to employees as a group, the individual employee could protect the privacy of his view as to the Union simply by not volunteering any questions. If asked individually as to any questions he might have, he could similarly conceal his opinion about the Union from the employer by simply answering that he had none. It seems to me unreasonable therefore to conclude, as did the Administrative Law Judge, that Bordeaux's ques- tions legitimate on their face were actually intended to elicit the attitude of employees toward the Union. For the foregoing reasons I dissent from the majority's finding of unlawful interrogation during the period preceding the election at the Collierville facility.13 As these findings are the sole basis for the order setting aside the results of the Collierville election, I would instead certify the results of the election. 12 According to Bordeaux, he asked such questions as, "How do you feel about the information we have presented? How do you feel about the topics we have discussed?" 13 One other trivial incident of unlawful interrogation was found by the Administrative Law Judge at the Collierville facility, but this occurred after the election and therefore could not have had any impact on the election. DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This proceeding, under Section 10(b) and Section 9 of the National Labor Relations Act, as amended, was tried pursuant to due notice on August 28, 29, and 30 and October 19, 1972, at Memphis, Tennessee. The original charge in Case 26-CA-4341 was filed on May 5, 1972. The first amended charge in Case 26-CA-4341 was filed on June 16, 1972. The complaint in Case 26-CA-4341 was issued on June 16, 1972. The original charge in Case 26-CA-4377 was filed on June 9, 1972. The first amended charge in Case 26-CA-4377 was filed on July 17, 1972. The complaint in Case 26-CA-4377 was issued on July 19, 1972. The first order consolidating Cases 26-CA-4341 and 26-CA-4377 was issued on July 19, 1972. A second order consolidating Cases 26-CA-4341, 26-CA-4377 and 26-RC-4159 was issued on August 4, 1972. The petition in Case 26-RC-4 159 was filed on February 3, 1972. A Stipulation for Certification Upon Consent Election was approved by the Regional Director for Region 26 on February 29, 1972. An NLRB-supervised election by secret ballot was held on April 14, 1972, among the employees in an approved stipulated appropriate bargaining unit. Timely objections to the election were filed by the. Union on April 21, 1972. The Regional Director for Region 26 conducted an investigation of such objections and issued a Report on Objections,on June 6, 1972. Thereafter, the Board, on August 2, 1972, issued its Decision and Order, adopting the Regional Director's report. The issues concern whether Respondent engaged in various acts violative of Section 8(a)(1) and (3). The 8(a)(1) issues, issues of conduct of interference, restraint, and coercion as to employee Section 7 rights concern interroga- tion as to union activities or desires, creation of impression of surveillance of employee union activities, threats of discharge because, of employee union activities, futility in selection of a nion because Respondent would not negotiate, threats of bodily harm if an employee voted for a union, and promises of benefits to dissuade union organization. The 8(a)(3) issues concern whether Respon- dent discriminatorily discharged Vera M. Walker on May 3, 1972, and Barbara Smith on June 1, 1972, because of their union activities. The objection issues in Case 26-RC-4159 concern the issues raised by Objections 1, 4, and 5, a question of a defaced sample ballot and of certain small group meetings held by the Employer at Collierville, Tennessee. Objection 1, concerns whether the Employer engaged in conduct of threatening employees with loss of jobs and benefits if they should join a union or vote and with Employer conduct in certain meetings. Objection 4 concerns whether the Employer engaged in conduct of questioning employees about their union activities or membership in such circumstances as would tend to restrain or coerce employees, and whether the Employer questioned a number of employees about their union activity and attendance at union meetings. Objection 5 concerns whether the Employer spied upon union meetings and so told employees. The unnumbered objections, presented by the Regional Director's investigation, concern (1) whether the Employer used a defaced sample ballot in its electioneering, and (2) the holding by the Employer of small group meetings. The unnumbered objection concern- ing whether the Employer-held small group meetings with employees which interfered with the election is essentially a rephrasing of part of the Union's Objection I to the same point. All parties were afforded full opportunity to participate in the proceeding. Briefs were filed by the General Counsel and the Respondent and have been considered. 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The facts herein are based upon the pleadings and admissions therein. Mississippi Extended Care Center, Inc., d/b/a Care Inn, Collierville, and d/b/a Care Inn, Memphis, the Respon- dent, is now, and has been at all times material herein, a corporation with nursing homes located in Collierville and Memphis, Tennessee, where it is engaged in the medical aid and care of patients. During the past 12 months, Respondent, in the course and conduct of its business operations, received gross revenues in excess of $100,000. During the same period, Respondent purchased and received directly from points outside the State of Tennessee products valued in excess of $10,000. As conceded by Respondent and based upon the foregoing, it is concluded and found that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The facts are based upon the pleadings and admissions therein . Service Employees International Union, Local 150T, AFL-CIO, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. It is so concluded and found. III. THE UNFAIR LABOR PRACTICE OBJECTIONS TO THE ELECTION A. The Unfair Labor Practices Memphis (Case 26-CA-4377) 1. Supervisory status The facts are based upon the pleadings and admissions therein. At all times material herein, the following persons occupied the positions set opposite their names, and have been, and are now, agents of Respondent and are supervisors within the meaning of Section 2(11) of the Act. Tollie Bordeaux Assistant to the President E. H. Overstreet Regional Supervisor T. Eavenson Director of Nursing Elsie Card Licensed Practical Nurse 2. The conduct of Licensed Practical Nurse Card The General Counsel alleges and Respondent denies that Supervisor Card, on or about April 20, 1972, (a) interrogat- ed employees concerning their union membership, activi- ties, and desires and (b) created the impression of surveillance of its employees' union activities by telling employees that she knew that an employee was going to vote for the Union. The only witness to the above issues was Barbara Smith. Smith testified credibly that she had a conversation with Supervisor Card about 2 weeks before the election (held on May 3, 1972). What occurred in the conversation between Card and Smith is revealed by the following credited excerpts of Smith's testimony. A. Mrs. Card asked me was I going to vote for the union and I told her that I didn't know and she said if she was me, she wouldn't vote for the union. Then I asked her why and she said we was going to get a raise anyway. She told me that she could look at me and tell I was going to vote for the union. Q. Was there anything else said in this conversa- tion? A. Well, Mrs. Wilhite didn't say anything, not that I know of. I don't know what she said. I told her she couldn't look at me and tell what I was going to do and she started to laughing and said she could. Considering the foregoing, I conclude and find that Respondent, by Supervisor Card, on or about April 20, 1972, interrogated an employee concerning the employee's union sympathies and voting desires in a manner constitut- ing interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. Considering the foregoing, I conclude and find that the General Counsel has not established that Respondent, by Supervisor Card, on or about April 20, 1972, created the impression of surveillance of its employees' union activities by telling employees that she knew that an employee was going to vote for the Union. 3. The conduct of Director of Nursing Eavenson The General Counsel alleges and the Respondent denies that Supervisor Eavenson, on or about April 24, 1972, interrogated employees concerning their union activities, membership, and desires. The witnesses to this issue were Barbara Smith, Perlie E. Chapman, and Tommie.Lucas Eavenson. I found Perlie E. Chapman to appear to be a more frank, objective, and truthful witness to this issue than either Smith or Eavenson. I credit Chapman's testimony. I discredit Smith's testimony to the effect that Eavenson during the conversation involved asked if Smith and Chapman were going to buy marching shoes. I discredit Eavenson's denial that she interrogated the employees as to how they were going to vote. What occurred is revealed by the following credited excerpts of Chapman's testimony. Q. Mrs. Chapman, were you ever questioned by a supervisor or administrator or managing official about the union? A. Yes, I was. Q. Tell us when? A. It was prior to the election of the union. A. Mrs. Eavenson came to the third floor about fifteen to seven. She spoke to Mrs. Smith and I and she asked how was we feeling and we told her that we was CARE INN, COLLIERVILLE 1069 doing fine . Then she asked us, she asked two questions in, one. She asked what we thought about the union and how was we going to vote. I looked at her and smiled and told her "No comment." Considering the foregoing, I conclude and find that Respondent, by Supervisor Eavenson, on or about April 24, 1972, interrogated employees concerning their union sympathies and voting desires in a manner constituting interference, restraint, and coercion within the meaning of the Act. Such conduct is violative of Section 8(a)(1) of the Act. It is so concluded and found. 4. The conduct of Regional Supervisor Overstreet The General Counsel alleges and the Respondent denies that Supervisor Overstreet, on or about May 1, 1972, (a) interrogated employees concerning their union activities and desires, and (b) created the impression of surveillance of employees' union activities by informing employees that he knew certain of the employees had been selected as shop stewards for the Union. Witnesses to these issues were Smith , Bowers, Kendricks, Brittenum , and Overstreet . I found Kendricks to be a more frank, objective, truthful, and reliable witness to these issues than the other witnesses . I credit her version of what occurred over the testimony of other witnesses where in conflict. What occurred is revealed by the following credited excerpts from Kendricks' testimony. Q. Mrs. Kendricks, were you ever present in any conversation with a supervisor or administrator or managing official where the union was discussed? A. Yes. Q. Can you tell us when? A. About a couple of nights prior to the election of the union in the dining room of the first floor. Q. Can you tell us who was present, please? A. Mr. Overstreet, Mrs. Brown, Mrs. Marilyn Bolden, Mrs. Barbara Smith , Mrs. Laura Smith, Mrs. Mayme Brittenum and I think that 's about-and myself. A. Well, he says, "You all are going to vote the union in and I think they have already got the stewardesses here." Someone asked "Well, who are they?" He said, "Well, that one right there, she looks like she might be one." They said, "Who, Mrs. Bolden?" And he said, "Yeah, and that one right there"-Mrs. Barbara Smith-"She, looks like she might be one, but I am not sure , she just looks like the one that might be a stewardess." Q. During this conversation did Mr . Overstreet give any descriptions? A. Well, he said that the lady that he recollected was stewardess was one that dressed -neatly, wore glasses and kind of medium height, but he didn't know her name. Considering all of the foregoing, I conclude and find that the Respondent, by Overstreet, on or about May 1, 1972, interrogated employees concerning their union sympathies and desires . Overstreet did not directly ask employees whether they were stewardesses . Overstreet's remarks as a whole, however, were reasonably calculated to evoke a response as to whether the . employees pointed out by him were designated stewardesses or not . Such conduct constitutes interrogation of employees concerning their union activities, sympathies and desires in a manner constituting interference , restraint, and coercion within the meaning of Section 8(a)(1) of the Act. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. Considering all of the foregoing, I conclude and find that the facts do not reveal that Respondent , by Overstreet, on or about May 1, 1972, created the impression of surveil- lance of employees' union activities by informing employ- ees that he knew certain of the employees had been selected as shop stewards for the Union. 5. The alleged discriminatory discharge of ' Barbara Smith on June 1, 1972 a. Introduction The General Counsel alleges in effect and the Respon- dent denies that Respondent discharged Barbara Smith on June 1 , 1972, because of her union or protected concerted activities. The issues as to whether Respondent discriminatorily discharged Smith, as litigated, devolves into a question as to whether Respondent discriminatorily constructively discharged Smith on June 1, 1972. Smith commenced working for Respondent on July 7, 1970. At such time, Smith indicated to Respondent that she was available for work on any shift . Smith worked from July 7, 1970, until June 1, 1972, for the Respondent. Prior to May 26, 1972, Smith had been assigned to work for Respondent on the shift beginning at 11 p.m . and ending at 7 a.m. However, on May 26, 1972, Respondent posted a new schedule whereby, as of June 1, 1972, Smith was assigned to a shift beginning at 3 p.m. and ending at 11 p.m. Smith did not report to work for the Respondent on June 1 , 1972, for the shift of work to which she was then assigned (3 p.m. to I l p.m.). t The only reprimand that Smith received during her work tenure was a written reprimand given her on May 22, 1972: Such reprimand was for habitually missing work. As to this, it is noted that during Smith's tenure of employment (July 7, 1970 to June 1, 1972), Smith was absent 37 times. b. Union activity At some point of time prior to February 3, 1972, the Union commenced organizational activity among Respon- dent's employees at Collierville, Tennessee . Thereafter, on February 3, 1972, the Union filed a representation petition concerning such employees at Collierville in Case 26-RC-4159. At some point of time prior to February 29, 1972, the Union commenced organizational activity among Respondent's employees at Memphis , Tennessee. Thereaf- ter, on February 29, 1972, the Union filed a representation petition concerning such employees at Memphis in Case 26-RC-4188. On February 29, 1972, the Regional Director 1070. DECISIONS OF NATIONAL LABOR RELATIONS BOARD for Region 26, approved a "Stipulation for Certification Upon Consent Election" in Case 26-RC-4159. Such stipulation provided for a representation election to be held on April 14, 1972, among the Collierville employees. The facts otherwise relating to union activity and company knowledge thereof respecting Respondent's Memphis employees may be summarized as follows: 1. Barbara Smith was questioned as to her union activity and testified concerning (a) a discussion with and persuasion of Memphis employees to sign union cards, (b) a meeting with Union Agent Kelly and during such meeting making telephone calls to Collierville employees, and (c) acting as a union observer of the election on May 3, 1972, at Memphis. Smith, although presented an opportu- nity to tell of all her union activity, did not testify to the effect that she signed a union card. I conclude and find therefore that Smith did not sign a union card during the Memphis campaign. 2. There is no evidence to reveal that Smith was involved in any union activity prior to April 1, 1972. Smith testified credibly that she, Bolden, and Chapman met with Union Agent Kelly at a place called Loeb. Smith testified that she did not know the date, that the meeting occurred on a Saturday, and that it occurred before the election (on May 3, 1972, in Case 26-RC-4188). Smith's testimony as to calling Collierville employees revealed in logical effect that this Saturday meeting occurred after February 29, 1972, and prior to April 14, 1972 (the date of the Collierville election). Accordingly, I fix the date of this meeting as being on a Saturday, after February 29 and prior to April 14, 1972. The facts reveal that on Saturday, after February 29 and prior to April 14, 1972, Smith, Bolden, and Chapman met with Union Agent Kelly at Loeb's. It is clear that Kelly spoke to these Memphis employees about the upcoming election among the Collierville employees on April 14, 1972. It is clear that Kelly solicited help from these employees in an attempt to persuade the Collierville employees to vote for the Union. It is also clear, at least, that Smith responded to Kelly's request for help and telephoned four Collierville employees and asked such employees to vote for the Union in the election on April 14, 1972. 3. As previously indicated, Supervisor Card interrogat- ed Smith, on or about April 20, 1972, as to whether Smith was going to vote for the Union. Smith told Card in effect that she didn't know whether she was going to vote for the Union. 4. During the period of time preceding the election on May 3, 1972, the Union gave the employees on the third shift (Barbara Smith, Kendricks, Wilhite, Brittenum, Chapman, Laura Smith, Bowers, and Brown) union buttons. The evidence as to who wore union buttons and who didn't wear union buttons was loosely presented. Considering the total facts, I am persuaded that Barbara Smith did not wear a union button at any time while at work.. Brown credibly testified to the effect that she put on her union button and wore it thereafter on her uniform I The facts are based upon the credited aspects of the testimony of Overstreet, Eavenson, Bowers, Smith, other witnesses, and exhibits. 2 Considering the testimony of all of the witnesses and especially the while at work. It is clear that Brown had her union button on her uniform on May 1, 1972, on the occasion that Supervisor Overstreet met with some of the employees. Smith credibly testified to the effect that Brown and Chapman were two employees who wore union buttons at work, and that Chapman did not wear her union button every night. Chapman testified to the effect that she did not wear a union button. I discredit Chapman's testimony to such effect. I am persuaded from Smith's and Brown's testimony that at least one other employee besides Brown on the third shift wore a union button at work and that Chapman wore a union button at work at least on one occasion. 5. As previously indicated, Supervisor Overstreet, on May 1, 1972, in a group meeting interrogated Smith and other employees concerning their union activities or desires. The facts as to such interrogation do not reveal that Smith indicated that she was for the Union. 6. Smith served as a union observer in the May 3, 1972, election (Case 26-RC-4188). The Union won the election by a vote of 33 to 4. c. Decision to transfer a nurses aide 1 In May 1972, Respondent's Memphis Care Inn had three shifts of nurses aides. There were eight nurses aides on the 7 a.m. to 3 p.m. shift, seven nurses aides on the 3 p.m. to 11 p.m. shift, and six nurses aides on the 11 p.m. to 7 a.m. shift. Barbara Smith was a nurses aide on the 11 p.m. to 7 a.m. shift. In May 1972, Overstreet was serving Respondent in two functions. Thus, Overstreet was Respondent's regional supervisor and also acting administrator of Respondent's Memphis Care Inn. In May 1972 (around May 18) 2 Overstreet and Director of Nursing Eavenson discussed the number of employees needed on the second and third shifts. Overstreet considered that an additional nurses aide was needed on the second shift, at least in part caused by the necessity 'to serve a meal to patients on such shift. Eavenson indicated to Overstreet that an employee could be taken from,the third shift, based upon reports that there were too many nurses aides on the third shift. Thereupon, Overstreet decided that a nurses aide should be transferred from the third shift to the second shift. The selection of such employee was left up to Director of Nursing Eavenson. After receiving instructions from Overstreet about transferring a nurses aide from the 11 p.m. to 7 a.m. shift to the 3 p.m. to 11 p.m. shift, Eavenson attempted to effectuate such transfer in a voluntary manner. The nurses aides on the 11 p.m. to 7 a.m. shift in May 1972 were Kendricks, Bowers, Barbara Smith, Laura Smith, Brown, Wilhite, Brittenum, and Chapman. Thus, around May 18, 1972, Eavenson spoke to Bowers. Bowers indicated that she would make the transfer at such time. Two or three days later, Bowers told Eavenson that she would not be able to transfer because of transportation problems. Either around the same time that she had spoken to Bowers, when Bowers later indicated that she testimony of Bowers and Smith as to their conversations with Eavenson about the transfer, and a logical consistency of the facts, f fix the timing as indicated. CARE INN, COLLIERVILLE 1071 could not transfer, or between May 22 and May 25, Eavenson spoke to nurses aides Kendricks, Brown, and Wilhite about a voluntary transfer to the 3 p.m. to 11 p.m. shift. Kendricks told Eavenson in effect that she could not transfer because she had a full-time job in addition to her job with Respondent. Brown told Eavenson in effect that she (Brown) was a widow and did not want to be at home at night by herself. Wilhite indicated that she did not want to transfer, that Eavenson should get the one who was slipping out at night.3 Nursing Supervisor Eavenson did not ask Laura Smith about a transfer. because Eavenson preferred to leave her on the 11 p.m. to 7 a.m. shift because Laura Smith was the one nurses aide who did not object to working a floor by herself and such need existed on the 11 p.m. to 7 a.m. shift. Eavenson did not approach Brittenum and Chapman about transferring to the 3 p.m. to 11 p.m. shift because she considered them stable employees and considered that it was best to leave them on the 11 p.m. to 7 a.m. shift and to move an employee who needed more supervision to the 3 p.m. to 11 p.m. shift.4 As has been indicated, Nursing Director Eavenson gave Barbara Smith a written reprimand on May 22, 1972, because of excessive absenteeism (habitually missing work). At the end of the conversation, Eavenson asked Smith if she would like to transfer to the 3 p.m. to 11 p.m. shift, or if she would like to work relief. Smith told Eavenson that she could not work the 3 p.m. to 11 p.m. shift because she had no one to keep her baby, and that she would like to stay on the 11 p.m. to 7 a.m. shift. Eavenson, indicated that this was "okay." On May 25, 1972, Barbara Smith learned that Eavenson had tried to telephone her. Barbara Smith telephoned Eavenson. Eavenson told Smith that she was going to put Smith on the 3 p.ni. to 11 p.m. shift. Smith again told Eavenson that she could only work the 11 p.m. to 7 a.m. shift because she did'not have anyone to look after her baby. Eavenson told Smith to try to find someone to look after, her baby. Smith told Eavenson that she would do so and let Eavenson know before the first of the month. Apparently, on May 26, 1972, Respondent posted a new, schedule for the week beginning on June 1, 1972. On such schedule Respondent scheduled Barbara Smith for work on the 3 p.m. to 11 p.m. shift. On May 26, 1972,.employee Bowers telephoned Barbara Smith and told Smith that Smith was scheduled for work on the 3 p.m. to 11 p.m. shift beginning on June 1, 1972. On May 28, 1972, Barbara Smith and Bowers stopped Supervisor Eavenson. Smith spoke to Eavenson about the shift change. Smith told Eavenson that she could not change shifts, that she had not been able to find a babysitter. Eavenson told Smith to see if Bowers would change with her. Smith told Eavenson that she had tried, but Bowers didn't want to change her schedule. Smith asked Eavenson in 'effect if it weren't her job to see about the changes. Eavenson told Smith that someone had to 3 I note that the facts reveal that the only nurses aides who had indicated their unavailability for work at other hours at time of hire were Kendricks and Brown. Apparently, Eavenson did not recall this at the time of requesting transfers or believed that circumstances might have changed. 4 General Counsel, in his brief, appears to argue that Chapman's absenteeism record was poorer than that of Barbara Smith. As of the time of change, that she had to cut down on the help on the II p.m. to 7 a.m. shift. Eavenson told Smith that when she hired her she had not indicated need for a special shift. Smith told Eavenson that this was true, that she could have worked any shift, that she had someone then to keep her child, but that she no longer had someone to look after her child, and that she couldn't work the new shift. Barbara Smith did not report to work on June 1, 1972, on the 3 p.m. to 11 p.m. shift. Smith next saw. Supervisor Eavenson on June 7, 1972. On this occasion, Smith picked up her check. On this occasion, Nursing Director Eavenson asked Smith when. she was going to come in for the 3 p.m. to 11 p.m. shift. Smith told Eavenson that she did not have a babysitter. Smith asked Eavenson when Eavenson was going to change and put her back on the 11 p.m. to 7 a.m. shift. Eavenson told Smith that she would call her when there was an opening.5 In addition to the foregoing, it is noted that the' facts reveal, as regards initial dates of hearing, that among the 11 p.m. to 7 a.m. nurses aides, Kendricks was the oldest employee and Barbara Smith the second oldest employee. Eavenson was questioned as to the basis of selection of Barbara Smith for the transfer from the 11 p.m. to ,7 a.m. shift to the 3 p.m. to 11 p.m. shift. Eavenson's credited testimony reveals that Smith was selected because the transfer, could not be effectuated on a voluntary basis since other employees, when asked to transfer, had declined for various reasons. Eavenson also testified, and I so credit, that Barbara Smith was selected because of her poor attendance record. Eavenson also testified in a contradic- tory manner concerning whether reports that Smith was slipping.out at night had a bearing on the decision to select Smith for transfer. It suffices to say that I credit Eavenson's testimony to the effect that she did not receive such reports until after the schedule change had been made. I discredit Eavenson's testimony to the effect that the reports of Smith's slipping out at night had a bearing on the decision to transfer Smith. I am persuaded, however, that such reports have been considered by Eavenson with respect to calling Smith for work on the 11 p.m. to 7 a.m. shift as new , openings have occurred. Sometime after the schedule change of one employee from the 11 p.m. to 7 a.m. shift to the 3 p.m. to 11 p.m. shift, there occurred openings on the 11 p.m. to 7 a.m. On one occasion, Eavenson attempted unsuccessfully to get in touch with Barbara Smith. Since June 1, 1972, several new employees have been hired for the openings that have occurred on the 11 p.m. to 7 a.m. shift. Considering all of the foregoing, I conclude and find that the preponderance of the facts do not reveal that Respondent discriminatorily discharged Barbara Smith on June 1, 1972. The facts do not reveal that Respondent transferred Smith from the 11 p.m. to 7 a.m. shift to the 3 p.m. to 11 p.m. shift for the purpose of causing Smith to quit..Rather, the facts reveal that Respondent had need to ,transfer an employee from the I I p.m. to 7 a.m. shift to the the June 1, 1972, transfer, this was not the case. 5 Eavenson denied that the referred to conversation occurred on June 7, 1972. I discredit Eavenson 's denial and credit Smith's testimony as to such conversation . There is not a great dispute as to the facts otherwise. I discredit all testimony, however, inconsistent with the facts found. 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 p.m. to 11 p.m. shift , attempted to effectuate such transfer on a voluntary basis, and had a valid reason for the selection of Barbara Smith for transfer. I have considered the fact that Eavenson attempted to add to her reasons for selection of Smith •a reason which did not exist. While I do not believe Eavenson's testimony that reports of Smith's slipping out constituted part of her reasons for selection of Smith, I am not persuaded that such inconsistent testimony reveals the selection of Smith for transfer to be discriminatorily motivated. Respondent's employees voted 33 to 4 for the Union in the, May 3, 1972, NLRB representation election. Other than Smith's serving as a union observer, there are no facts to reveal that Respondent knew of Smith 's union activities or beliefs. Smith did not sign a union card but did engage in union activities . In general, however, Smith's union activities appeared on the same level as that of other employees. In sum, I conclude and find that the facts do not reveal that Respondent discriminatorily discharged Barbara Smith on June 1, 1972. B.. The Unfair Labor Practices (Collierville) (Case 26-CA-4341) 1. The conduct of Administrator Coats (a) The General Counsel alleges and the Respondent denies that Administrator Coats, on or about March 14, 1972, interrogated an employee concerning his union membership, activities, and desires. The only witness to this issue was Decatur Dean.6 Dean credibly testified to the effect that on an occasion in March or April 1972, and before the April 14, 1972, election that Administrator Coats spoke to him in the kitchen about the Union. Coats said to Dean, "Decatur, how are you going to cast your vote." Dean told Coats, "I haven't got no comment." Considering the above, I conclude and find that Respondent, by Coats, in March or in April 1972, before the April 14, 1972, representation election, interrogated an employee about his voting desires in a manner constituting interference, restraint, and coercion, within the meaning of Section 8(a)(1) of the Act. Such conduct is violative of Section 8(a)(1) of the Act. It is so concluded and found. (b) The General Counsel alleges and the Respondent denies that Coats, on or about April 12, 1972, interrogated an employee concerning his membership, activities, and desires. The General Counsel presented Hunt as a witness in support of this issue. It is sufficient to say that Hunt's testimony did not allude to an incident concerning interrogation. The General Counsel does not refer to this evidence or lack thereof in his brief, nor does he indicate abandonment of this issue. The facts as presented clearly fail to support the General Counsel's allegation as to this issue. Accordingly, it will be recommended that the complaint allegation of unlawful conduct by Coats, on or about April 12, 1972, as to interrogation of an employee concerning his union membership, activities, and desires, be dismissed. (c) The General Counsel alleges and the Respondent denies that Coats, on or about June 1 , 1972, interrogated an employee concerning his union membership, activities, and desires. The only witness presented with respect to this issue was Dorothy Jackson. Jackson testified to the effect that on May 4, 1972, she gave a statement to Union Representative Kelly concerning the incident involving her, Walker, and a patient named Mrs. Cowan on May 3 , 1972. Jackson testified that she had a conversation on May 4, 1972, with Administrator Coats. Jackson's testimony as to such conversation is revealed by the following excerpts from her testimony. Q. Did you ever have any occasion to have any conversation with any management official or supervi- sor about the union? A. I talked to Mr. Kelly and I gave Mr. Kelly a statement about what happened on third floor. So the next day Mr. Coats asked me what-what did I sign for Kelly and I told him I signed what happened on the third floor and he said what Kelly had to do with it and I told him I didn't know. He asked me did I sign was I out of the room when it happened and I told him yes. Considering the foregoing, I conclude and find that Respondent, by Coats, violated Section 8(a)(1) of the Act by interrogation of Jackson on May 4, 1972, concerning what she had signed for Union Representative Kelly, what Kelly had to do with the "May 3" incident, and the contents of such statement given to Kelly. I note that no assurances against reprisals were given to Jackson by Coats. Under such circumstances, the questions directed to Jackson were coercive in nature. 2. The conduct of Director of Nursing Rose (a) The General Counsel alleges and Respondent denies that Respondent, by Rose, on or about March 31, 1972, threatened an employee with discharge if the Union were selected as the employees' collective-bargaining representa- tive. The witnesses to this issue were Genevia Garrison and Malene Rose. Garrison's testimony on direct examination was to the effect that she had a conversation with Supervisors Rose and McGuire about 2 weeks before the April 14 representation election, that Rose told her (Garrison) that if she voted for the Union, she would be the first laid off because the employer would not be able to pay all of the employees. On cross-examination, Garrison testified that she was told by Rose in the conversation that she would be laid off first because she was the last one hired. Rose in her testimony denied having the conversa- tion alluded to by Garrison . Rose testified, however, that she had several conversations with Garrison about the Union. It is not necessary to set forth the details of such conversations. It is sufficient to say that they were innocuous in nature. The facts reveal that Garrison was 6 Coats was present for most of the , trial in this proceeding . It appeared his failure to testify as to the issues for which he appeared to be involved. that he left'the trial because of illness. No adverse inference is drawn from CARE INN, COLLIERVILLE 1073 working at the time as a housekeeper. Garrison was senior of the four housekeeping employees. Rose, as a witness, appeared to be a more truthful, forthright, 'and honest witness as compared to Garrison. Considering this and the logical consistency of facts, and the fact that Garrison was not the last employee hired, I find Rose's testimony on this issue more credible than Garrison's. I credit Rose's -denial that she told Garrison that, if she voted for the Union, she would be the first laid off because the employer would not be able to pay all of the employees and because she was the last one hired. Accordingly, it will be recommended that the allegation of unlawful conduct by Rose as to a threat of discharge on or about March 31, 1972, be dismissed. (b) The General Counsel alleges and the Respondent denies that Rose, on or about April 7, 1972, interrogated an .employee concerning his union membership, activities, and desires. The witnesses to this issue were Moore and Rose. As to this and a number of other issues, Moore and Rose were the only witnesses . Moore was not an impressive witness. The hearing was temporarily moved from the trial site to Moore's'home for the purpose of taking Moore's testimony because of Moore's illness or injury. Moore's testimonial demeanor as she testified to the issues was that of a confused witness, and she did not appear to be an objective and reliable witness. Moore's affidavit of May 5, 1972, was presented to reveal inconsistencies between her testimony and her affidavit. Moore's testimony and affidavit when considered together present a confused picture of when events occurred, who participated in such events, and who said what in such events. There are clear inconsistencies between Moore's testimony and. her affidavit. Moore's affidavit revealed that she had not read the affidavit at time of signing such affidavit but had had the affidavit read to her. Moore was afforded the opportunity to read her affidavit at the hearing and to explain any inconsisten- cies between the affidavit and her testimony. Moore indicated at the hearing that she was unable to read said affidavit because she did not have her glasses. Moore's affidavit was read to her by Counsel. Moore indicated that she did not wish to change or explain any statements in her affidavit. Rose was an impressive witness. Rose' s demean- or was frank, forthright, truthful, and objective. I credit Rose's testimony over Moore's where such testimony is in conflict. A consideration of General Counsel's statements as to what issues Moore was presented in support of, Moore's testimony, and Moore's pretrial affidavit, reveals that Moore failed to testify in support of some of said issues and that her testimony departs from and conflicts with her affidavit. As to the issue whether Rose interrogated Moore on April 7, 1972, I note that Moore's testimony which comes closest to suggesting interrogation of Moore by Rose is that concerning remarks made by Rose to her on or about April 11, 1972. Moore testified about this as is revealed by the following excerpts from Moore's testimony. A. Mrs. Rose, Mr. Coats about three days before the election, they came around with ballot sheets and they was showing us how to vote and that they would like for us to vote where the box said, "No," and she asked everyone if they understood and they said, "Yes." I didn't say anything and they picked the ballot sheet up to walk away and she stopped and turned and looked at me and asked me, "Mary, are you sure you understand how to vote?" And I said, "Yeah," and they walked away. Considering the foregoing, I do not find such testimony to reveal unlawful interrogation. It is doubtful that this evidence was offered in support of the interrogation issue. Moore's affidavit of May 5, 1972, introduced to reveal inconsistencies between said affidavit and her testimony, reveals statements concerning a conversation .with Rose and McGuire that occurred 2 days after April 5, 1972. Such affidavit was to the effect that Rose asked Moore "why was I still attending the Union meetings." Moore's testimony as to a conversation with Rose on April 7, 1972, does not reveal evidence of interrogation: I so conclude and find. Accordingly, it is recommended . that ' the allegation of unlawful conduct in such regard be dismissed. (c) The General Counsel alleges and the Respondent denies that Rose, on or about April 7, 1972, created the impression of surveillance of an employee's union activities by informing the employee that she knew the employee had been selected as a shop steward and that the Union had paid the employee $20 for going to the Labor Board. The General Counsel alleges and the Respondent denies that Rose, on or about May 8, 1972, created the impression of surveillance of an employee's union activity by informing the employee that the employee should talk to other employees who were going down to the Labor Board giving statements and signing their names, that there was not anything going on that the Respondent did not know about. Moore's testimony in support of these issues concerns an incident which allegedly occurred on May 8, 1972. According to Moore, what occurred on May 8, 1972, is revealed by the following excerpts from her testimony. A. And I returned to work at the right time on Monday morning, about 7:00 and about 10:00 Mrs. Rose met me and she told me, said, "Mary, you was sick, I see on your time card where you were sick, but you wasn't too sick to stay in bed Sunday," and I said, "No, ma'm, I went to see my mother," and she paused for a moment and said, "Mary, I know you is no fool' and the union has already elected you for shop steward." She said, "Why don't you talk to these girls that are running down to the Labor Board and giving statements and signing their names on papers that is something that they don't know what they are doing because if they have to go into a court of law, that will be sworn by the Bible." She told me also that the union bought me a car and they knowed I had been elected for shop steward because the union had paid me $20. Q. All. of this conversation took place on May 8th? A. Yeah. Rose testified to the effect-that she had a conversation with Moore around April 7, and one after the election. Rose's testimony essentially as to what occurred is revealed by the following excerpts from her testimony. 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. One was on third floor at few-a week or ten days before the election and I was making rounds and she said she wanted to talk with me. Q. Just a minute. About what time of day was it? A. It was in the morning. * * A. She wanted to know if they were still telling that she was pushing the union and I said, "Yes, I hear that," and she said, "Have you heard that the union bought me a car?" And I said, "I have heard that rumor, too, Mary." She said, "I am sick to death of the union. I Wish I had never heard the word," and said, "I am not for it." I said, "Mary, you don't have to tell me all this," I said, "Nobody but you and the Lord will know how you vote when you go in that booth." * * * * * A. , ' No, I did not have any until after the election she did not come in to work, did not call in, did not report in. The next day I asked her'why and she said she had been to Whiteville to see her mother that was sick and I said, "Well, you could have called in so we could have replaced you." I said, "Why didn't you?" She said, "Because I didn't have to." So I turned and walked away and didn't say anything else to her. Q. Was there any discussion about the union on that occasion? A. No discussion at all. Mrs. Adair, the dietician, was standing there when I talked to her, when I asked her why she didn't call in. Q. Do you recall any other discussions with her during the course of the campaign? A. No, I believe that was all the discussions I had with her. Q. Specifically I will ask you if during any conversation with Mary Moore you asked her about her membership or activities or desires in connection with the union? A. No, I did not. Q. Did you ever ask her if she were attending meetings? A. I did not. Q. Did you ever ask her how she was going to vote? A. I did not. Q. Did you ever tell her that you knew she had been selected as a shop steward? A. No. Q. Did you ever tell her that you knew that the union had paid her $20 for going to the Labor Board? A. No. Q. Did the subject of shop steward ever come up in a conversation between you and Mary Moore? A. No. Q. Did the subject of $20 and going to the Labor Board come up? A. Well, back at this conversation we had about the union buying her car and all this, and that she was pushing the union, she said she only went to the hearing because she was subpoenaed and thought she had to go. That was all the discussion that was mentioned about that. Q. How did the subject of the hearing come up? A. She said that she had to attend, but she was subpoenaed and thought she had to go. Q. Had you made reference to that hearing? A. No, not at all. She said she thought she had to go. As indicated previously, I found Rose a more credible witness than Moore. I credit Rose's testimony over Moore's where in conflict. Considering all of the foregoing, I conclude and find that the General Counsel has not established (1) that Rose, on or about April 7, 1972, created the impression of surveillance of an employee's union activity by informing the employee that she knew the employee had been selected as a- shop steward and that the Union had paid the employee $20 for going to the Labor Board, or (2) that Rose, on or about May.8, 1972, created the impression of surveillance of an employee's union activity by informing the employee that the employee should talk to other employees who were going down to the Labor Board giving statements and signing their names, that there was not anything going on that the Respondent did not know about. Accordingly, it is recommended that the allegation of unlawful conduct in such regards be dismissed. (d) The General Counsel alleges and the Respondent denies that Rose, on or about April 7, 1972, told an employee that if the employees selected the Union as their collective-bargaining representative, the Union would take a blank piece of paper and draw up what she wanted, then it was up to the Company to negotiate, which the Company did not have to do. - The witnesses to this issue were Moore and Rose. Moore's testimony to this issue is revealed by the following excerpts from her testimony. A. At the time, well, it may be the same date, but I can't recall. She approached me at the nurse's station on the first floor, her and Mrs. McGuire, and she also had a blank piece of paper and she drew about that Joe Kelly would draw up his contract on one side and Bordeaux would draw up his and Kelly couldn't make Bordeaux give him one red penny and that if the union did come in here, that they didn't have to negotiate and wasn't no need of us trying to vote for the union because Kelly couldn't make Bordeaux negotiate anything. I would all start off on a blank piece of paper. Rose's testimony to this issue is revealed by the following excerpts from her testimony. Q. Did you ever have a conversation with Mrs. Moore in which you used a blank piece of paper? A. I did not. Q. Did you ever specifically take a blank piece of paper and draw a line and tell her "This is a union contract"? A. No. Q. Or "This is the way a union contract works"? A. I think she is getting that-well, that was mentioned in a meeting, but I did not make that statement, that they told that a union contract would CARE INN, COLLIERVILLE 1075 start out and be a blank sheet of paper and everybody had to negotiate on the terms, but I did not make that statement. Q. Did you ever tell her that the company did not have to negotiate? A. No, I did not. As indicated previously, I found Rose to appear to be a more credible witness than Moore. I credit Rose's testimony over Moore's where there is testimonial conflict. Considering the foregoing, I conclude and find that the facts do not establish that Rose, on or about April 7, 1972, told an employee that if the employees selected the Union as their collective-bargaining representative, the Union would take a blank piece of paper and draw up what they wanted, then it was up to the Company to negotiate, which the Company did not have to do. Accordingly, it is recommended that the allegation of unlawful conduct in such regard be dismissed. (e) The General Counsel alleges and the Respondent denies that Rose, on or about April 13, 1972, created the impression of surveillance of an employee's union activity by informing the employee that Respondent had spies in the union meetings. The witnesses to this issue were Moore and Rose. Moore's testimony as to this issue is revealed by the following excerpts from her testimony. A. Yeah. I went one evening to pick up my sister from work and Mrs. Rose and Virginia McGuire met me at the elevator and she said, "Well, hello, Mary. I thought you wasn't going to attend the union meeting anymore," and I said, "I didn't tell you I wasn't going to the meetings anymore." She said, "Well, I know you were there yesterday," and I told her "Well, for you to know that I was at the meeting, the person who seen me to tell you, she had to be there herself." She said, "Well, Mary, it's not anything that goes on up there that we don't know about because you all have spies in our meetings," and she said, "We all have spies in your meetings. At that time the elevator opened up and I got on the elevator. Q. Who was this doing the talking now? A. Mrs. Rose. Q. Did Mrs. McGuire say anything? A. Yes. She said that "We should beat her up, she has been attending the union meetings." Rose's testimony as to this issue is revealed by the following excerpts from her testimony. Q. Did you ever tell Mary Moore that the company had spies in the union meetings? A. No. Q. Did you ever say, "We know you have spies in our meetings"? A. Well, the only thing I have heard about that is Mrs. McGuire said Mr. Kelly called her at home. This was back at the beginning before the election, I would say a month before, and told her that he knew we had spies at the meeting and she asked him "Well, didn't everybody have spies?" That is the only- Q. That is what was reported to you? A. That is what she reported to me. Q. This was reported to you by Mrs. McGuire? A. By Mrs. McGuire. Q. Of a conversation that she had- A. With Joe Kelly. Q. -with Joe Kelly, the union representative? Did you discuss this conversation that Mrs. McGuire had with Mr. Kelly with Mary Moore? A. No. As indicated previously, I found Rose to appear to be a more credible witness than Moore to the issues. I credit Rose's testimony over Moore's where the testimony is in dispute. Considering the foregoing, I conclude and find that the facts do not establish that Rose, on or about April 13, 1972, created the impression of informing the employee that Respondent had spies in the union meetings. Accord- ingly, it will be recommended that the allegation of unlawful conduct in such regards be dismissed. (f) The General Counsel contends and Respondent denies that Rose, in the last part of March 1972, the exact date being unknown, threatened an employee with bodily harm if the employee voted for the Union. The witnesses to this issue were Walker, Rose, and McGuire. Walker testified to the effect that she had a conversation with Rose in March 1972. Walker's testimony as to what occurred in the conversation is revealed by the following excerpts from her testimony. A. She asked me if-was I going to vote for the union and I didn't say anything and she told me, she said, "Dowdy, if you vote for the union, I am going to whip your ass," and she smiled. Rose testified to the effect that she had a conversation with Walker a week or 10 days before April 14, 1972. Rose's testimony as to what occurred in the conversation is revealed by the following excerpts from her testimony. A. Mrs. McGuire was there with me at the first floor nurse's station. Q. Mrs. McGuire, what is her position? A. She is charge nurse on the first floor seven to three. Q. What took place there, Mrs. Rose? A. Mrs. Dowdy or Vera Walker Dowdy told me that the other employees were accusing her of pushing the union, that she was not for the union and she was tired of being accused and said she was not going to vote for the union and I said, "I'm glad to hear that, Dowdy, that anybody that would want a union in a place like this deserves to have their rear kicked," and I laughed when I said it. Rose's version of what occurred is corroborated by McGuire's testimony. I credit the testimony of Rose and McGuire as to this issue and discredit Walker's testimony. Rose was a very impressive and believable witness. I found Rose to appear to be a more truthful and objective witness than Walker. Although McGuire was not as impressive as a witness as Rose, I found her testimony and the logical consistency of the facts, including Rose's credible testimo- ny, to be similarly persuasive of the truth. As indicated, I credit the testimony of Rose and McGuire to this issue over the testimony of Walker. Considering the credited testimony of Rose and McGuire, I conclude and find that the facts do not reveal 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Respondent, by Rose, threatened an employee with bodily harm if the employee voted for the Union. (g) The General Counsel alleges and the Respondent denies that Rose, in April 1972, the exact date being unknown, interrogated an employee concerning the em- ployee's union membership, activities, and desires. The General Counsel alleges and the Respondent denies that Rose, in April 1972, the exact date being unknown, promised an employee a wage increase if the employees would abandon their support for the Union. The witnesses to these issues were Walker, Rose, and McGuire. Walker testified as to these issues that she had a conversation with Rose and McGuire in March 1972. Walker's testimony as to what occurred is revealed by the following excerpts from her testimony. Q. Where did this conversation take place? A. The nurse's station, first floor. Q. What was said in this conversation? A. She asked me was I still for the union and I didn't say anything and she asked me was I still going to the union meetings and I told her yes and she asked me why and I told her for the same reason that I was going to the company meetings, because I wanted to hear both sides of it. Q. Was anything else said? A. No. Q. Did Mrs. McGuire say anything? A. Yeah, she told Mrs. Rose to look at my face, she said to look at my face, she could tell whether or not I was going to vote for the. union because my face blushed a little. Both Rose and McGuire testified to the effect that such a conversation as described by Walker did not occur. I found Rose's and McGuire's testimonial demeanor to appear to be more credible and truthful than that of Walker. I credit their testimonial denial of the unlawful conduct complained of in this issue. Accordingly, it will be recommended that the complaint allegations in such regards be dismissed. 3. The conduct of Vice President Tollie Bordeaux? (a) The General Counsel alleges and the Respondent denies that Bordeaux, in the last of March 1972, the exact date being unknown, interrogated an employee concerning his union membership, activities, and desires. This issue and the other issues relating to Bordeaux's conduct concern Bordeaux's conduct during the presenta- tion of Respondent's antiunion campaign in certain meetings by management official with small groups of Respondent's employees at Collierville. The testimonial facts presented by Respondent's witness- es Bordeaux, Rose, and Overstreet with respect to such meetings and one meeting at Collierville with a large group of Collierville employees may be said to be somewhat confused. The testimony of General Counsel's witness, Moore, as to such meetings may also be said to be confused. Allen's testimony was clear and believable, and I credit her testimony to the effect that she attended a meeting wherein Respondent's officials spoke to a large number of Collierville employees in March 1972 and presented strong opposition to the Union, and that later in March she attended a meeting where Respondent's officials spoke to a small group of Collierville employees, six in number, again gave talks about the Union, and questioned her and others as to their " feelings." It is also clear from Moore's testimony that another presentation was made by Respondent's officials in early April 1972 to a small group of Respondent's Collierville employees. Overstreet clearly testified to the effect that there were two series of meetings with small groups of employees. The overall facts reveal that in each series the same basic text was used and that each series consisted of seven or eight meetings where the same basic text for such series was used. Considering the foregoing, the credited aspects of the composite of the testimony of the witnesses, and the logical consistency of the facts, I find the facts as follows. Respondent commenced its antiunion . campaign at Collierville by the presentation of its viewpoint to a large group of its Collierville employees in March 1972. Respondent's officials in general effect followed a prepared text in their presentation of Respondent's antiunion views. The prepared text was not presented in evidence in this proceeding.8 Allen testified in conclusionary terms as to what occurred at one presentation. Such testimony may have been intended, to convey her recollection as to what occurred at Respondent's presentation to. a large group of Collierville employees. It is conceivable that Respondent's presentation of its message to the large group of Collierville employees could be similar in effect to one of its presentations to the Collierville employees congregated in small groups. I am persuaded, however, that Allen has confused the "large group" presentation by Respondent with the "small group" presentation. What Allen testified to as having occurred at the " large group" presentation is revealed by the following excerpts from Allen' s testimo- ny:9 A. Mr. Coats introduced Mr. Bardo and Mr. Overstreet. Mr. Overstreet had a few words. He told us that the union was using us for guinea pigs and he didn't think it would be good for us and it would cause strikes and employees would be without jobs and he said if we went on strike, while we was out walking the picket that if they hired other employees and employees of Care Inn, they would work while we were out walking picket and then after the strike had ended and started back to work-was ready to come back to work, then they would not have to be forced to take the strikers back. Mr. Bardo said some of the same things that Mr. Overstreet said. He said the union dues would be four or five dollars and that we would not be able to speak for ourselves, that one person would have to talk for us, speak for us. In the last of March 1972, Respondent presented the first 7 The pleadings establish that Bordeaux was "Assistant to the President ." to the Regional Director's June 6, 1972, Report on Objections-Case The testimony establishes that he was a vice president . 26-RC-4159. 8 What may have been a part of such proposed text is Exhibit I attached 9 Bardo in the record is in reference to Tollie Bordeaux. CARE INN, COLLIERVILLE 1077 of two series of presentations to a small group of its Collierville employees. Respondent has approximately 50 employees at its Collierville operation. This first series of its presentation to small groups of Collierville employees was made by a presentation in effect of the same basic text to groups of employees, 6 to 10 in number, in 7 to 8 separate meetings. It appears that each meeting in the first series followed shortly in time the completion of the prior meeting. Employee Allen attended one of the meetings in the first series. Thus Allen was present at Respondent's small group meeting presentation in late March 1972. Employee Moore also attended one, of the meetings in the first series held in late March 1972. I am persuaded from the overall facts that Moore has confused the late March 1972 small group meeting with another small group meeting that occurred during the week of April 5, 1972. The Respondent's basic presentation at the small group meeting in late March 1972 is revealed in effect by the basic prepared texts used and indicated prepared for use during the week of March 20, 1972. The prepared text in evidence reveals that Respondent was advising its employ- ees of how it felt about the Union and why it felt the way it did. The prepared text revealed that Respondent would negotiate with the Union in good faith but that Respon- dent would not agree to union demands or proposals that would endanger the nursing home or hurt Respondent's legal and economic rights, that Respondent could in good faith refuse to make economic concessions, that the Union could not make Respondent do "this or that." The prepared text set forth statements about union promises, that the only way the Union could try to force its demands was by strikes, and that the "Company has the absolute legal right to permanently replace each and every striker." The basic text also refers to the Union's manner of operations concerning bargaining and the calling of strikes, about union fines, that another Company was able to hire 300 striker replacements, and that Respondent only had to hire 50 employees if everyone went on strike. The basic text discussed union finances and union rules, the Union's constitution, union dues, fines and assessments, lawsuits to collect union fines, union financial reports, and union expenditures. The basic text ends with statements to the effect that Respondent has presented the facts and documented truth about the Union and a solicitation for questions from the employees. Bordeaux and Overstreet testified to the composite effect that the prepared texts were used and followed verbatim. I credit their testimony to such effect. Bordeaux's testimony, however, reveals that management officials solicited questions, that employees asked questions, and that the officials answered such questions. I am convinced that the evidence reveals that the dialogue as to such questions and answers is not revealed in the written prepared texts. Allen testified to the effect that Bordeaux questioned her as is revealed by the following credited excerpts from her testimony.' He asked Mrs. Jamison how did she feel and Mrs. Jamison said she didn't have anything to say. He asked me how did I feel and I told him that I was not saying that I was for the union or against the union, but some of the things that the union had said had sounded good and some of the things the company said sounded good. He asked me to tell him what was some of the things that Kelly had said and I told him that we stood a better chance of losing our jobs if the union didn't get in than we did if the union would get in. Considering the foregoing and the basic text format for soliciting questions from employees, I am persuaded that Bordeaux questioned Allen at the end of the use of the prepared text.10 Allen at points in her testimony described the question as being a direct question as to how she felt about, the union. I am persuaded from her total testimony that Bordeaux did not use the word "Union" in his question. I credit his denial that he "directly" asked her as to how she felt about the Union. Bordeaux's testimony as to his use of questions is re- vealed by the following excerpts from his testimony: Q. Do you recall a group meeting in the storage room in which Mrs. Allen was present? A. I do. Q. Would you state as best you can what went on in the meeting that she attended? A. Just in general terms? Well, the meeting, as I mentioned in earlier testimony, was conducted with the outline, the information that was provided me. As stated earlier, we went through the document verbatim and followed it to the word. There were some questions, as there always is, at the end of our meeting. We did make an express point to ask for questions concerning any points that we did cover, any points of confusion, just any unanswered questions that might have arisen as a result of this meeting or other meetings, or any other conversations, both inside and outside the facility. During the meeting that we are talking about here, Viola Allen was a member of that group. During that meeting questions were asked-as to any other questions. Q. Did you ask anyone how they felt about the union? A. No, no specific or direct questions were asked on a direct basis saying, "How do you feel about the union?" There were questions asked as relative to "How do you feel about the information we have presented? How do you feel about the topics we have 'discussed?" that type of situation. But to my knowledge, and I can say this without qualification, that I did not ask a direct question because obviously I had been told by Counsel that direct questions are not permitted. Considering the foregoing, I am persuaded and conclude and find that Bordeaux in effect asked employees how they felt about the Union. It is not necessary to use a direct question as to how he feels about a union to in effect question an employee as to how he feels about a Union. In 1O Allen's testimony as to what occurred at the late March 1972 presentation concerns the dialogue of what occurred during the question and answer period. I am persuaded to this conclusion from the overall consistency of facts. 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the context of a prepared presentation as to how the employer feels about a union and why and a discussion of the Union in many of its operational procedures and practices, a question of how an employee feels about the topics discussed is a question of how the employee feels about the Union. An examination of the basic text used reveals strong opposition to the Union. While in major part the prepared text appears within the protection of Section 8(c) of the Act, I note that the statement about the absolute right to permanently replace employees is inaccurate under current case law and is not absolutely clear as to the difference between economic strikers' and unfair labor practice strikers' rights. Considering all of the foregoing, I conclude and find that the General Counsel has estab- lished that Respondent, by Bordeaux, unlawfully interro- gated' employees about their union feelings or beliefs. Such interrogation, under the circumstances, without legitimate basis therefor, and without assurance against reprisals, constitutes interrogation as to employees' union feelings or beliefs in a manner constituting interference, restraint, and coercion, within the meaning of Section 8(a)(1) of the Act. It is so concluded and found. (b) The General Counsel alleges and Respondent denies that Bordeaux, on or about April 5, 1972, told employees that Respondent was not going to negotiate with the Union and give them one red cent if the employees selected the Union as their collective-bargaining representative. General Counsel's witness to this issue was Moore. As previously indicated, I found Moore to be an extremely confused witness. Moore's testimony was to the effect that on April 5, 1972, Respondent officials Bordeaux and Overstreet made statements to a small group in the presentation of Respondent's antiunion campaign. Moore's initial testimony was of _ such a nature that it appeared that she attributed remarks of refusal to negotiate to Overstreet. Later her testimony makes it clear that she attributed such remarks to Overstreet as occurring on April 5, 1972, that Bordeaux did not make such remarks on April 5, 1972, and that Bordeaux had made remarks about Respondent's refusal to negotiate at other presentations. Bordeaux denied that he ever made statements to the effect that Respondent would not negotiate and give the employees one red cent. Considering all of the facts, as indicated previously, I am persuaded that Moore has confused Respondent's late March 1972 presentation of its antiunion campaign with its April antiunion presentation. Considering all of the evidence, I credit Bordeaux's denial that he made state- ments that Respondent would not negotiate with the Union and give them one red cent. I discredit Moore's testimony that Bordeaux and Overstreet made remarks that Respondent would not negotiate with the Union and give them one red cent. I am persuaded that Respondent officials made remarks (concerning the topics covered in its basic prepared text utilized for the main portion of its presentation in late March 1972) during the question and answer period at the end of its presentation which are not revealed in writing. However, I am persuaded that such remarks were consistent with the remarks contained in the basic text and not as indicated by Moore. Accordingly, I recommend that the allegation of unlaw- ful conduct concerning a threat to refuse to negotiate be dismissed. (c) The General Counsel alleges and Respondent denies that Respondent, by Bordeaux, on or about April 5, 1972, threatened employees that, if they selected the Union as their collective-bargaining representative and went on strike, the very next day the Respondent would have three shifts there to replace them. The General Counsel principal witness to this issue was Moore. Her testimony was to the effect that Overstreet made the following remarks on April 5, 1972. Q. Now, tell me everything that you remember Mr. Overstreet saying. A. Well, he come in and we was talking about the union, about them drawing up their negotiation and start off on a blank piece of paper. Kelly has to draw up his and they draw up theirs and they were not going to negotiate. If we did vote the union in and went on strike; we would be replaced because those old people was going to be taken care of, they was paying to live out there and they was going to be taken care of no matter what. As indicated previously, I am persuaded that Moore has confused Respondent's late March 1972 antiunion presen- tation with its April antiunion presentation. Allen testified to the effect that at Respondent's late March 1972 presentation of its antiunion views, Bordeaux made remarks as revealed by the following excerpts from her testimony. A. Bardo did the talking. He told us that he had promised the patients' families that they would have to be cared for and that he was going to see to it that it was done and that nobody could tell him-tell them how to spend their money. As indicated previously, Respondent's officials followed a basic text in the main part of the late March 1972 presentation. of its opposition to the Union. The prepared text indicates various remarks for delivery by indicated officials. Bordeaux's credited testimony revealed however that on occasion remarks prepared for one official were delivered by other officials. As indicated previously, other remarks about topics were made during the question and answer period. Bordeaux denied making the statements about replace- ments attributed to him by Moore. Bordeaux, however, testified as follows: Q. Did you at that. meeting or any other meeting tell the employees that if they selected the union as their collective bargaining representative and went on strike that the very next day the Respondent would, have three shifts there to replace them? A. No, sir, I did not make that statement. Q. Did you make statements like those that I have asked you about? A. Statements relative to replacement of employees would reveal itself in the agenda or the information we had. Q. You are talking about Respondent's Exhibit 4? A. Right, sir. It was related to the statement that we, the company, and I at that particular time represented that, felt the responsibility to the families CARE INN, COLLIERVILLE 1079 of the patients that we had in the home that we would do everything within our power to see that these patients received the proper nursing care., Q. Did you make reference to that in connection with strikes? A. In connection with strikes? Q. Yes. A. Yes, sir. Q. What did you say? How does that relate to strikes as you said it? A. I beg your pardon? Q. What did you say about that in connection with strikes? A. As I remember the text of the speech that was read, there was a mention in there of potential strikes. Now, there was also a specific point mentioned that under law striking employees may be replaced in the performance of their duties and that you are not compelled by law to. rehire the striking employees pursuant to a settlement or withdrawal or whatever the solution might be. Considering all of the foregoing, I find Moore's testimony on this issue more credible than I do the testimony of Bordeaux.' I found her testimony in the context of all the facts to have the ring of truth on this issue. I did not find Bordeaux's testimony on this issue to appear forthright. It is clear that remarks other than the prepared text were used. I am persuaded that such remarks were made in the dialogue during the question and answer period. The General Counsel argues in effect that the telling of employees that they will be replaced if they strike, without the further explication of all the legal rights of economic and unfair labor practice strikes, constitutes a violative threat.11 Considering all of the facts, I do not find the remarks made by Bordeaux to be coercive. Respondent operates a nursing facility and had a high moral obligation to furnish the necessary nursing care to patients at such facility. Public policy would dictate that such services be furnished. Statements concerning replacements to furnish such necessary services accompanied by explanation of the need for such services fall within the purview of Section 8(c). Accordingly, I recommend that the allegation of unlawful conduct in such regard be dismissed.12 4. The conduct of McGuire The General Counsel alleges and the Respondent denies that Respondent, by McGuire, on or about April 13, 1972, created the impression of surveillance of an employee's union activity by informing the employee that she knew that the employee had been at a union meeting the day before. The witnesses to this issue were Moore and McGuire. As indicated previously, Moore was a confused witness. Her testimony was to the effect that on or about April 7, 1972, McGuire was present when Rose was having a conversa- 11 See Hicks-Ponder Co., 186 NLRB 712, and a discussion of Fleetwood Trailer (N.L.R.B. v. Fleetwood Trailer Co.), 389 U.S. 375 (1967); N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26(1967),iand Laidlaw Corp., 171 NLRB 1366 (1968) cases. 12 The remarks in the prepared text concerning the absolute right to tion with her, that McGuire said "Rose, we should beat her up because she has been attending union meetings." Rose and McGuire testified in effect that this incident did not occur. McGuire testified in effect that she had a conversa- tion with Moore, initiated by Moore, about the Union. McGuire testified in denial that she told Moore that she knew that Moore had been attending union meetings. As indicated, I found Moore to be a confused and unreliable witness. I discredit her testimony on this issue. I credit Rose's and McGuire's testimony to this issue. Accordingly, it will be recommended that the allegation of creation of impression of surveillance by McGuire be dismissed. 5. The discharge of Vera M. Walker . May 3, 1972 Vera M. Walker was hired as a nurses aide at Respondent's Collierville facility in November 1969, and worked thereafter until she was discharged on May 3, 1972.' During the first part of 1972, the Union commenced organizational activity at' Respondent's Memphis and Collierville facilities. Representation petitions were filed for separate bargaining units at both facilities. A represen- tation election was conducted by the National Labor Relations Board at the Collierville facility on April 14, 1972. A representation election was also conducted by the National Labor Relations Board at the Memphis facility on May 3, 1972. The. Union lost the vote count at the Collierville facility and filed timely objections to the election. Certain of, those objections are in issue in this proceeding. The Union won the vote count at the Memphis facility. The facts reveal that Respondent' engaged in three separate incidents of unlawful interrogation as to their union beliefs or desires of its Memphis employees prior to the May 3, 1972, election at Memphis. The facts also reveal that Respondent, by Coats, engaged in an incident of unlawful interrogation of a Collierville employee, after the filing of the representation petition and prior to the April 14, 1972, election. The facts reveal that Respondent, at Collierville, engaged in presentation of an antiunion campaign designed in effect to constitute. unlawful interrogation of its employees as to their union feelings or beliefs. This presentation commenced in March and concluded in April 1972, before the April 14, 1972, representation election at Collierville. This presentation consisted of one presentation of Respon- dent's opposition to the Union to a large group of Collierville employees and two series of small group meetings (6 to 10 in number) designed to present each series to all employees. The presentations included a question and answer period. Respondent, on or about June 1, 1972, transferred one of its Memphis employees, Barbara Smith, from one shift to another shift. Smith was one of the union observers for the representation election held at the Memphis facility on permanently replace each and every striker were in the context of remarks indicating as a whole that such strikes as would occur would be economic strikes . As indicated later herein, I find such remarks to constitute improper conduct with respect to the holding of a free representation election. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 3, 1972. The facts reveal this transfer to be nonviolative of the Act. The facts also reveal that Respondent, by Coats, on or about May 4, 1972, unlawfully questioned employee Jackson, at the Collierville facility about a statement she gave the union representative concerning the discharge of Walker. Walker, as indicated, worked as a nurses aide for Respondent at the Collierville facility from November 1969 to May 3, 1972. Walker engaged in union, activity during the union organizational campaign. Walker's union activity essentially was that of attending two union meetings, talking about the Union to several of the other nurses aides, and serving as a union observer at the representation election at Collierville on April 14, 1972. Walker had several conversations with supervisors about the Union. The credited facts do not reveal, however, that such conversations revealed her interest in support of the Union. The evidence as to Walker' s serving as a union observer on April 14, 1972, is the only evidence to reveal company knowledge of her union activities or beliefs. The evidence, as indicated, reveals a planned presenta- tion of the Company's antiunion views in such a manner as to constitute unlawful questioning of employees. Although the overall facts would indicate that Walker was present at these presentations, there was no direct evidence as to Walker's presence at such presentations. Thus, there was no evidence presented to reveal that Walker was ques- tioned at such meetings or in any manner at such meetings revealed her inclinations as to the union issues. The events leading to Walker's discharge occurred on May 3, 1972. The facts as to such events are based upon a composite of the credited aspects of the testimony of witnesses Walker, Jackson, Lindsey, and Rose and the logical consistency of all the evidence.13 1. Respondent had a patient at its Collierville facility named Mrs. Cowan. Mrs. Cowan was an elderly patient who appeared to be essentially confined to being a bed patient or in a wheelchair. Because of her condition, Mrs. Cowan wore a catheter (a.urine aid). The catheter, tubing, and catheter bag necessitated care in the movement of the patient in order to avoid discomfort to the patient, especially if the catheter bag were full of fluid. Mrs. Cowan was able to move from her bed to her 13 Testimony of any witness inconsistent with the facts found is discredited. 14 The real issue in this case is Respondent's motivation: Whether Walker slapped Mrs. Cowan or not is not an essential issue . The essential issue is whether Respondent believe she slapped Mrs. Cowan and because of such belief discharged her for nondiscriminatory reasons. Whether Walker slapped Mrs. Cowan after Jackson had left would not change the ultimate findings herein . Only Walker and Jackson testified as to what occurred at the time in Mrs. Cowan's room. It is clear that the incident of the slapping or believed slapping is not fabricated. It is clear from Rose's and Lindsey's credited testimony that there was evidence of marks on Mrs. Cowan's face indicative that she had been slapped. It is also clear that virtually as a part of the incident, immediately following the event, Mrs. Cowan told both Lindsey and Rose that she had been slapped and described in effect that Walker was the one who slapped her. Walker's testimony indicates that there was a discussion between Cowan and Jackson and her as to what was wrong. Considering all of this, I find the facts as indicated based upon a composite of the credited aspects of the testimony of the witnesses and a logical consistency of the evidence . I discredit Walker's and Jackson's testimony inconsistent with the facts found. 15 Jackson testified essentially as indicated in the facts above. Since wheelchair and vice versa with supporting help from two aides. On May, 3, 1972, after Mrs. Cowan's luncheon period, nurses aides Walker and Jackson helped Mrs'. Cowan to return to her room and from her wheelchair to her bed. 2. While the nurses aides were helping Mrs. Cowan into bed, Mrs. Cowan was complaining about the way she was being handled and was crying. Mrs. Cowan asked the aides not to be so rough. Nurses aide Walker slapped Mrs. Cowan and told her to shut up. Nurses aide Jackson left the room to go to another patient. Nurses aide Walker remained in the room to put the bed rails up and then followed nurses aide Jackson out.14 3. Apparently almost immediately following the above incident, LPN Lindsey heard Mrs. Cowan crying and went to Mrs. Cowan's room to ascertain what was wrong. Mrs. Cowan was crying and her face was red and reflected what appeared to be the imprint of fingers thereon. Mrs. Cowan told Lindsey that one of the aides had slapped her. Lindsey asked Mrs. Cowan which aide had slapped her. Cowan told Lindsey that "the little one" had slapped her. It is noted that both Walker and Jackson are Blacks, that Walker is a light-skinned person, and that Jackson is a dark-skinned person. Walker is 5 foot 5 inches in height and weighs in excess of 150 pounds. 4. LPN Lindsey immediately went out into the hall, located Jackson, asked who had put Mrs. Cowan in her bed. Jackson told Lindsey that she and Walker had put Mrs. Cowan in her bed. Lindsey asked Jackson in effect to tell her who had hit Mrs. Cowan. Jackson told Lindsey that no-one had hit Mrs. Cowan. Jackson called Walker over and Lindsey asked Walker in effect to tell her who had hit Mrs. Cowan. Walker told Lindsey that no one had hit Mrs. Cowan.15 5. Lindsey took Walker and Jackson into Mrs. Cowan's room. Lindsey asked Mrs. Cowan to tell her which of the nurses aides had slapped her. Mrs. Cowan was crying, talking about the catheter, and about her family. Lindsey asked Mrs. Cowan again to tell her which of the nurses aides had hit her. Mrs. Cowan pointed to Walker.16 Lindsey told Mrs. Cowan that she would take care of the matter. The aides started to say something to Lindsey. Lindsey told the aides that they would not discuss the matter in the patient's room. The aides and Lindsey left the Jackson knew she had left Walker in the room with Mrs. Cowan, I am persuaded that absent her knowledge that the slapping incident had occurred in her presence that she would have told Lindsey that no one had slapped Mrs. Cowan while she was present but that she had left Walker in the room alone with Mrs. Cowan for a short period oftime. 16 Both Walker and Jackson testified to the effect that Cowan pointed to Jackson. Lindsey testified to the effect that Cowan pointed to Walker. I have carefully considered Lindsey's testimony at one point wherein her testimony reflected she started to say Dorothy (Jackson ) was the one pointed to by Cowan . I am persuaded that this was an inadvertant mistake and that it was not a slip of the tongue revealing that Jackson was actually pointed to by Cowan. All credibility resolutions have been made with a consideration of the logical consistency of all the evidence. Of all witnesses, Rose was the more impressive witness and tilted the consideration of the logical consistency of facts as indicated. I discredit Walker's and Jackson's testimony to the effect that Cowan pointed to Jackson. I discredit Walker's testimony to the effect that Jackson asked her if she (Jackson) had hit Mrs. Cowan and that she told Jackson that she had not. I credit Lindsey's testimony to the effect that Cowan pointed to Walker as the aide who had slapped her. CARE INN, COLLIERVILLE 1081 patient's room. Lindsey told the aides that she would take care of the matter. 6. Nursing Supervisor Rose was making her rounds about the time that Lindsey, Walker, and Jackson left Mrs. Cowan's room. Apparently almost immediately after Lindsey, Walker, and Jackson left Cowan's room, Rose heard Mrs. Cowan crying. Rose went into Cowan's room to see what the problem was. Rose observed that Mrs. Cowan's face had red marks on the side and that her eye was red in the corner. Rose asked Mrs. Cowan in effect to tell her why she was crying. What Mrs. Cowan replied is revealed by the following credited excerpts from Rose's testimony. A. I asked her why she was crying and she said that "They handled me so roughly when they put me in the bed and they were pulling my catheter and tubing so I complained and asked them not to be so rough," and said, "The little light-skinned one slapped me and told me to shut up." I said, "Well, it was two in here, Mrs. Cowan, which one did it?" And she said, "The little light-skinned one." 7. Following the above, Rose went to the nursing station. Lindsey, in the meantime, had proceeded to the nursing station to call Rose about the slapping incident. It is clear that these events all occurred in a short period of time. What occurred at the nursing station is essentially revealed by the following credited excerpts from Rose's testimony. So I went to the nurse's station and asked Mrs. Lindsey "Who were the aids in there?" And she said, "Well, I was just going to call you," she said, "There was Vera Walker and Dorthory Jackson," and said, "I carried them in The room and I asked Mrs. Cowan to point out the one that slapped her." She said, "She pointed to Vera Walker." I am also persuaded that a fair inference can be drawn that Rose related to Lindsey and Lindsey related to Rose each of their conversations with Mrs. Cowan. 8. Following the foregoing events, Rose went to Administrator Coats' office and related the facts that she had ascertained as to the slapping incident. Coats and Rose called LPN Lindsey down and Lindsey related what she knew about the incident and that Cowan had pointed Walker out as the one who had slapped her. 9. Following the above, Rose went to where Jackson was having lunch and asked Jackson to come to Rose's office after lunch. Jackson, after lunch, went to Rose's office and spoke with Rose and Administrator Coats. Coats asked Jackson to tell them what had happened in Mrs. Cowan's room. Jackson told Rose and Coats that she and Walker had been putting Mrs. Cowan in her bed and that Mrs. Cowan was crying. Jackson told Rose and Coats in effect that she had left the room with Walker still being with Mrs. Cowan, and that Walker later had come to help her with another patient. Jackson told Rose and Coats that Lindsey had later asked her and Walker to tell her who had hit Mrs. Cowan, that she had told Lindsey that no one had hit Mrs. Cowan, that Lindsey, Walker, and she had gone into Mrs. Cowan's room, and that Mrs. Cowan had pointed to Walker as the one who had hit her.17 Rose and Coats discussed with Jackson what Lindsey had related to them about Mrs. Cowan's pointing to Walker. Rose and Coats also related the fact that they had had other complaints about Walker 's mistreating patients. Rose told Jackson that Mrs. Cowan had told her that "the little colored girl had jumped on her and beat her and pulled her water pipe (catheter)." Jackson told Rose and Coats that Walker had not hit Mrs. Cowan while she was in the room.18 10. After the foregoing, Jackson returned to work and spoke to Walker. Jackson related in summary fashion what Rose and Coats had told her, that Rose and Coats were saying that Walker had hit Mrs. Cowan, and that Rose and Coats had told her that Lindsey had said that Cowan had pointed Walker out as the one who had hit her. 11. After the foregoing, Walker went to LPN Lindsey and asked Lindsey if she had told Rose that she (Walker) had hit Mrs. Cowan. Lindsey told Walker that she had told Rose that Mrs. Cowan had pointed to Walker as the one who had hit her. Walker told Lindsey that Mrs. Cowan had not pointed to her.19 12. After the foregoing, Lindsey received a telephone call from Rose. Lindsey told Walker to get all of her belongings and go to Coats' office. Walker went to Coats' office. After a short wait, Rose and Coats came to the office and had a discussion with Walker. Rose told Walker that Walker had hit Mrs. Cowan. Walker told Rose that she had not hit Mrs. Cowan. Rose told Walker that she (Walker) had hit Mrs. Cowan, that Lindsey had told her that Mrs. Cowan had pointed Walker out as the one who had hit Mrs. Cowan. Walker and Rose disputed whether Mrs. Cowan had pointed Walker out as the one who had hit Mrs. Cowan. Rose told Walker that Jackson had also stated that Mrs. Cowan had pointed Walker out. Rose and Coats told Walker that she could leave for the day, that they would let her know when to come back if she were to come back.20 The next day, Walker telephoned Rose. Nursing Supervi- sor Rose told Walker that she, Coats, and Overstreet had discussed the )incident and had decided that Walker was not to come back to work. 13. In addition to the foregoing facts, the facts also reveal that Walker had had an incident with a patient named Jackson involving patient Jackson's complaint of rough handling by Walker. Considering all of the foregoing, I conclude and find that the preponderance of the facts reveal that-Respondent did not discharge Walker, on or about May 3, 1972, for discriminatory reasons. The evidence reveals strong union animus on Respondent's part, however, evidence as to a propensity to engage in illegal conduct is limited essentially 'r I credit Rost's testimony to the effect that Jackson told her and Coats that Cowan had pointed to Walker as the aide who had hit her. 18 Testimony of any witness inconsistent with the findings herein is discredited. As in many cases, evidence was presented which was fragmentary and incomplete in nature. Considering all of the evidence and the logical consistency thereof and a fair inference therefrom , the facts are found as indicated. 19 I do not credit Jackson's testimony to the effect that she told Lindsey at the time that Mrs. Cowan had pointed to her (Jackson). 20 1 discredit Walker's version of the conversation inconsistent with the facts found. 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to that of unlawful interrogation. Walker engaged in union activities, but the only union activity or related concerted activity by Walker established to be known by Respondent is that of her service as a union observer at the April 14, 1972, representation election. It is clear that the incident of the slapping, or believed slapping, of Mrs. Cowan is not a pretextuous incident. Considering all of the facts, it is clear that Respondent had a reasonable basis to believe that Walker was at fault in this incident. Under such circum- stances, the facts preponderate for a finding that Respon- dent's discharge of Walker was for nondiscriminatory , reasons.2t C. The Objections to the Election (Case 26-RC-4159) The objection issues concern conduct by Respondent between February 3, 1972, the date the petition in Case 26-RC-4159 was filed, and April 14, 1972, the date of the NLRB representation election in such case. The objection issues involved herein are: (I) Threatening employees with loss of jobs and benefits if they should join a union or and vote also- Care Inn held one mass meeting with all employees and promised overtime pay, held several small meeting [sic] after that, up until the election; they were also tole [sic] the only means of attempting to obtain an agreement is by stricking [sic] and employees would lose there [sic] ' jobs and more employees would be hired. There was a number of mis-leading [sic] statements tole [sic ] to employees, some of which I'am [sic] just finding out about. The evidence relating to this issue essentially concerns (1) the testimony of witness Garrison and Supervisor Rose with reference to a threat of discharge and (2) testimony concerning speech presentation by Bordeaux, Coats, and Overstreet, and exhibits of prepared material used in such speeches. As indicated previously in connection with unfair labor practice issues, I found Rose's denial that she threatened Garrison with job reprisal because of her or others' union activity more credible than Garrison's testimony to the effect that such a threat was made. As indicated previously in connection with unfair labor practice issues, I discredited Moore's testimony that Respondent officials threatened to refuse to negotiate with the Union and not give them one red cent. In such regards, I found in effect the facts to reveal that Respondent had not threatened to refuse to negotiate with the Union if the Union were selected as the employees' collective-bargain- ing representative. The facts reveal that in late March, the Respondent made a series of presentations of speeches. One of the series of speeches made 6 to 10 times to groups of employees 6 to 8 in number contained much reference to strikes and to the Employer's right to replace employees in such strikes. The prepared texts for use in such presentations were clearly and admittedly used by the Employer's officials. Thus, it is clear that in the context of discussions about strikes the Employer, by high supervisory officials, in March 1972, told employees "As I told you in our first meeting, in a strike you don't get paid you can't draw unemployment money, and the Company had the absolute legal right to permanently replace each and every striker." The prepared presentations are obviously skillfully designed . A careful reading thereof would reveal references to economic reasons as the basis of such strikes as referred to. The above statement is, however, of such a nature that it would be difficult for employees to distinguish in their minds between economic and unfair labor practice strikes rights. Further, under the current law the statement is incorrect. Such statement is of the type which would interfere with employees' exercise of a free decision as to whether they would select or vote for a union or not.22 Accordingly, I find that Respondent, by such statements, interfered with employees' right to a free election. As indicated later, the Regional Director, in his Report on Objections dated June 6, 1972, set forth one unnum- bered objection relating to small group meetings. Such unnumbered objection, in my opinion, comes within the purview of Objection 1. The facts reveal that the Employer presented its opposition to the Union by use of a presentation of its views to employees in one meeting with a large number of Collierville employees, and by two series of meetings in number to small groups of employees with 6 to 10 employees in number being present. The facts reveal such meetings to have been designed to present the Employer's feelings about the Union and designed by use of a question and answer period to elicit employee feelings about the Union. Thus, such meetings with inaccurate statements concerning the absolute right to permanently replace employees who went on strike, and with such unlawful questioning of employees about their union feelings or beliefs, clearly constituted improper interference with employees' right to exercise a free choice as to a union representative or vote. As to the "small group" meetings, it appears that the Regional Director's report made an issue of interference because of the locale of the meetings . Were the issue simply this, I would not find the "small group" meetings to constitute improper election conduct by the Employer.23 However, the statements about the absolute right to permanently replace strikers and the total design of unlawful questioning of employees involved therein render such "small group" meetings sponsored by the Employer to be objectionable conduct. Accordingly, it will be recommended that Objection 1 be sustained. 21 The issue as to the facts is essentially one of credibility. I found Rose Trailer (N.L.R.B. v. Fleetwood Trailer Co.), 389 U.S. 375 (1967); N.LR.B. v. to be a most impressive witness and easily the most credible of all witnesses Great Dane Trailers, Inc., 388 U.S. 26(1967),and Laidlaw Corp., 171 NLRB in this proceeding . This, coupled with the logical consistency of the evidence 1366 (1968) cases. otherwise, contributed essentially to the findings herein . 23 The meetings were held in a supply room and not in a "locale" of 22 See Hicks-Ponder Co., 186 NLRB 712,and a discussion of Fleetwood management authority. See Three Oaks, Inc., 178 NLRB 534. CARE INN, COLLIERVILLE 1083 2. (4) Questioning employees about their union activities or membership in such circumstances as will tend to restrain or coerce employees- A number of employees was questioned about their union activity and whether they attended meetings. The facts previously set forth in the section dealing with Respondent's unfair labor practices at Collierville, Tennes- see, reveal (1) that Administrator Coats engaged in unlawful interrogation of employee Dean concerning his union activities circa March or April 1972 and before April 14, 1972, and that Bordeaux and other officials engaged in the presentation of series of small group meetings in March and April and before April 14, 1972, with employees, ending with a question and answer period, and that such presentations and question and answer periods were designed to present Employer's feelings about the Union and to question employees' feelings about the Union. Considering the foregoing, I conclude and find that the facts establish that the Employer engaged in the conduct objected to by Objection 4. Such conduct interfered with employees' exercise of a free choice as to whether they wanted to select or vote for a union or not. Accordingly, it will be recommended that Objection 4 be sustained. (5) Spying on union gatherings- A number of employees feels very strongly that there [sic] spying on the union meeting and reported to the company. The evidence relating to this issue was litigated with respect to the unfair labor practice issues concerning the Collierville employees. It is sufficient to say that I found no facts to support a finding that Respondent spied on union meetings. It is also sufficient to say that I found the evidence insufficient to establish that Respondent's super- visors made statements of an admission type or designed to create the impression of surveillance of employee union activity. Accordingly, it will be recommended that Objection 5 be overruled. In addition to the foregoing objections, there are objection issues concerning (1) a defaced sample ballot and (2) the holding of small group meetings by the Employer. Such objections are set forth as follows: (1) The Regional Director in his report on June 6, 1972, set forth an unnumbered objection to the effect that there is an issue as to whether the Employer utilized a defaced sample ballot indicative of official National Labor Rela- tions Board sanction for a vote no against the Union. The evidence pertaining to, this issue consists of the testimony of Hunt, Allen, Moore and Rose, an exhibit consisting of the NLRB's Notice of Election containing a sample ballot, and a sample ballot not purporting to be an official sample ballot. The "sample ballot," which on its face does not purport to be an official sample ballot was mailed to employees during the election campaign. Hunt testified to the effect that Coats showed him a sample ballot with the "no" section already marked in red. Hunt's, Allen's, and Moore's testimony was of such a nature that it did not establish that the "sample ballot" shown to them was an official "sample ballot." Rose's testimony was to the effect that she and Coats showed employees the "sample ballot" which was a part of the official notice of election. Rose's testimony was also to the effect that the "sample ballot" used was not marked or defaced. Considering the foregoing, as to Hunt's testimony, I am persuaded that the facts preponderate for a finding that a defaced or marked official sample ballot was not shown him. I am persuaded that Coats either showed Hunt a sample ballot not purporting to be an official sample ballot or that Hunt has confused the unofficial sample ballot with the official sample ballot. As to Allen's and Moore's testimony to the effect that a defaced and marked "sample ballot" with blue writing thereon was shown them, I find Rose's testimony to the effect that the "official sample ballot" shown employees was not marked or defaced to be more credible.24 I credit Rose's testimony and conclude and find that a defaced and marked (in the "no" box) official sample ballot was not shown employees at Collierville. Accordingly, the objec- tion that a defaced and marked official sample ballot was used by the Employer in preelection (April 14, 1972) campaigning is found without merit. It is recommended that such objection be overruled. (2) The Regional Director's Report on Objections, dated June 6, 1972, sets up as an unnumbered objection the question of whether the Employer's holding of "small group meetings" with employees is improper election conduct. The Employer's conduct in such meetings has been litigated in the unfair labor practice issue and with respect to Objections 1 and 4 and has been found to constitute objectionable conduct therein. This unnumbered objection is a duplicating of issues already determined. It is therefore recommended that it be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: 24 As indicated, Rose's testimonial demeanor in this proceeding was more impressive of the truth than that of any other witness. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Mississippi Extended Care Center, Inc., d/b/a Care Inn, Collierville, and d/b/a Care Inn, Memphis, the Respondent, is an employer engaged in commerce within the meaning of'Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local 150T, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees at Memphis and at Collierville, Tennessee, in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The facts establish, as alleged in Objections 1 and 4, that the Employer has interfered with the holding of a free election on April 14, 1972, in Case 26-RC-4159 (Collier- ville, Tennessee). 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. First in Case 26-CA-4341, I issue the following recom- mended: ORDER25 A. Respondent, Mississippi Extended Care Center, Inc., d/b/a Care Inn, Collierville, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their and other employees' union activities and desires in a manner constituting interference with, restraint, and coercion of employees within the meaning of Section 8(a)(1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at Respondent's facility at Collierville, Tennes- see, copies of the attached notice marked "Appendix A." 26 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representatives, shall be posted by it immedi- ately upon receipt thereof, and be maintained by Respon- dent 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. IT IS FURTHER ORDERED that the allegations of unlawful 25 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. 26 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant conduct in Case 26-CA-4341 not specifically found to be violative herein be dismissed. B. Respondent, Mississippi Extended Care Center, d/b/a Care Inn, Memphis, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their and other employees' union activities and desires in a manner constituting interference with restraint and coercion of employees within the meaning of Section 8 (a)(1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of, their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at Respondent's facility at Memphis, Tennessee, copies of the attached notice marked "Appendix 'B."27 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representatives, shall be posted by it immedi- ately upon receipt thereof, and be maintained by Respon- dent 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. (b) Notify the Regional Director for Region 26, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply' herewith. IT IS FURTHER ORDERED that the allegations of unlawful conduct not specifically found to be violative in Case 26-CA-4377 herein be dismissed. IT IS FURTHER RECOMMENDED in Case 26-RC-4159 (Collierville, Tennessee) ( 1) that Objection 5, the unnum- bered objection relating to the question of a defaced sample official ballot , and the unnumbered objection relating to the Employer's holding small group meetings, be overruled , and (2) that Objections 1 and 4 be sustained. It is also further recommended that the NLRB representa- tion election in Case 26-RC-4159, held'on April 14, 1972, be set aside. IT IS FURTHER RECOMMENDED that the Board direct in Case 26-RC-4159 that a second election by secret ballot be conducted among the employees in the appropriate unit, at such time as the Regional Director for Region 26 deems appropriate and under his direction and supervision and pursuant to the National Labor Relations Board Rules and Regulations , Series 8, as amended . It is recommended that the eligibility of voters shall be in accord with the eligibility of voters' requirements set forth in J. P. Stevens & Co., Inc., 167 NLRB 266.28 IT IS FURTHER RECOMMENDED that the Employer shall be to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 27 See fn . 26, supra. 28 The appropriate bargaining unit in Case 26-RC-4159 is "All full-time and regular part-time nonprofessional employees , including nurses aides, clerk-aides, housekeeping employees. dietary employees and kitchen head, excluding the administrative assistant . guards and supervisors (including licensed practical nurses) within the meaning of the Act." CARE INN, COLLIERVILLE 1085 required to file an election eligibility list with the Regional Director in accord with and for the purposes set forth in Excelsior Underwear Inc., 156 NLRB 1236. APPENDIX A .NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees concerning their and other employees' union activities and desires in a manner constituting interference with , restraint, and coercion of employees within , the meaning of Section 8(a)(1) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. MISsIssIPPI EXTENDED CARE CENTER, INC. D/B/A CARE INN, COLLIERVILLE (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees concerning their and other employees' union activities and desires in a manner constituting interference with restraint, and coercion of employees within the meaning of Section 8(a)(1) of the Act. WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. MISSISSIPPI EXTENDED CARE CENTER, INC. D/B/A CARE INN, MEMPHIS (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161.