Baton Rouge General Hospital

192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Baton Rouge General Hospital and Service Employ- ees' International Union Local 275, AFL-CIO. Cases 15-CA-8016, 15-CA-8050, 15-CA- 8050-2, and 15-RC-6750 12 March 1987 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 9 July 1982 Administrative Law Judge J. Pargen Robertson issued the attached decision. The Respondent and the General Counsel filed excep- tions and supporting briefs, and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings,2 and conclusions3 and to adopt the recommended Order.4 i We deny as lacking in merit the Respondent's motion to dismiss or to remand the petition in Case 15-RC-6750 We assert jurisdiction over the Respondent because we find that it was not, as alleged by the Respondent, a political subdivision of the State of Louisiana See NLRB v. Natural Gas Utility District of Hawkins County, 402 U S 600 (1971) We note that jurisdictional concerns raised in Na- tional Transportation Service, 240 NLRB 565 (1979), recently reiterated in Res-Care, Inc., 280 NLRB 670 (1986), are not present here given the record evidence and the nature of the Respondent's jurisdictional argu- ments. 2 The judge erroneously stated that Charles Hamilton had occasionally written up employees for disciplinary action We find the error to be nonprejudicial because Hamilton's duties were otherwise sufficient to es- tablish his supervisory status The Respondent and the General Counsel have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Or. 1951). We have carefully examined the record and find no basis for reversing the findings 3 In adopting the judge's findings of 8(a)(1) interrogations, we rely on the standard set forth in Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), and Rossmore House, 269 NLRB 1176 (1984), enfd. 760 F 2d 1006 (9th Cir. 1985) Chairman Dotson disagrees with his colleagues' adoption of the judge's 8(a)(1) interrogation findings with respect to employees Jacqueline Jones, Bertha Smith, and Yolanda Scott In accord with the principles of Sunny- vale and Rossmore, he would find that none of the three supervisor-em- ployee conversations at issue took place in coercive circumstances. Inasmuch as we agree with the judge's conclusions that the Respond- ent engaged in objectionable conduct when the Respondent threatened employees with the loss of benefits and coerced employees against the Union during the critical period, we find it unnecessary to pass on whether the Respondent's director of material management's comments about replacing employees if they went on strike were objectionable In adopting the judge's conclusion that the Respondent violated Sec 8(a)(1) by threatening employees with loss of jobs if they joined or assist- ed the Union, Member Babson relies only on the remarks by Supervisors Alexander and Betz to employee Wilson on 12 February and in mid-Feb- ruary 1981, respectively. 4 In response to the General Counsel's exceptions, we shall modify the notice to include a provision remedying the Respondent's unlawful as- ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Baton Rouge General Hospital, Baton Rouge, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice shall be substituted for the one recommended by the judge. [Direction of Second Election omitted from pub- lication.] 5 signment of more difficult jobs to employee Susan Quiett because she en- gaged in union activities 5 We agree with the judge that the Respondent committed objection- able conduct during the critical period that warrants settmg'aside the first election and directing a new election. In reaching that conclusion, we note that this case is distinguishable from Clark Equipment Co., 278 NLRB 498 (1986), in which the Board found that certain isolated 8(a)(1) violations in a unit of more than 800 did not warrant setting aside the election Here the violations included two violations of Sec. 8(a)(3)-the layoff of employee Warner Wilson because of his extensive union activi- ties and the imposition of more onerous work assignments on employee Susan Quiett after she was seen handbilling in support of the Union Such violations are, by their nature, not fleeting in their effects, and they are unlikely to escape the notice of fellow employees. This is thus not a case in which "it is virtually impossible to conclude that the misconduct could have affected the election results" (Clark Equipment Co., supra, 278 NLRB at 505), and therefore not a case in which we may properly depart from our usual policy, set out in Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962), of directing-a new election when an unfair labor prac- tice has been committed during the critical period APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT interrogate you about your union sentiments. WE WILL NOT threaten you with loss of jobs if you join or assist Service Employees' International Union Local 275, AFL-CIO or any other labor or- ganization. WE WILL NOT threaten you that you will not be allowed to discuss work scheduling problems if the Union is selected as your representative. WE WILL NOT threaten you that, if the Union is selected as your bargaining representative, you will not be able to work overtime, adjust work sched- ules, or come to supervision with your problems or complaints. WE WILL NOT assign you more difficult work as- signments because or your union activities. 283 NLRB No. 37 BATON ROUGE HOSPITAL 193 WE WILL NOT layoff or refuse to reinstate you because of your union activities. WE WILL. NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Warner Wilson immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges. WE WILL make Warner Wilson whole for any loss of earnings , he may have suffered by reason of our discrimination against him, with interest.' WE WILL expunge from,our records any refer- ence to the layoff of Warner Wilson and WE WILL notify him in writing of our action in that regard. BATON ROUGE GENERAL HOSPITAL Charlotte N. White, Esq., for the General Counsel. James D. Carriere, Esq., for the Respondent. Michael J. Meyers, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. This case was heard in Baton Rouge, Louisiana, on Feb- ruary 8 through 11 and March 1 through 3, 1982. The charge in Case 15-CA-8016 was filed on January 27, 1981. A complaint in that case issued on March 3, 1981. The charge in Case 15-CA-8050 was filed on February 18, 1981, and amended on February 26, 1981. The charge in Case 15-CA-8050-2 ' was filed on March 29, 1981. The complaint in those two cases ;issued on April 10, 1981. An order consolidating the three above unfair labor practice cases issued on April 10, 1981. On June 19, 1981, a Supplemental Decision and Order directing hear- ing on objections issued in Case 15-RC-6750. On June 22, 1981, an order issued consolidating the three above unfair labor practice cases and Case 15-RC-6750. On January 27, 1981, the Regional Office issued amendments to the above-mentioned complaints. The Supplemental Decision and Order directed a hear- ing on the following "objection to conduct of election" filed by the Union following a May 7, 1981 secret-ballot election conducted by Region 15 of the National Labor Relations Board: (1) Management, it officers, agents and representa- tives threatened employees with the loss of bene- fits and possible loss of jobs if they voted for SEIU, Local 275. (3) Employees were threatened with loss of previ- ously enjoyed benefits for engaging in protected, concerted'and/or union activities. (9) Agents of management continue to coerce work- ers against the union from about February 9, 1981, through May 7, 1981, reference: Consolidated Complaint No. 15-CA- 8050 and 15-CA-8050-2 issued by the Regional Director, Fifteenth Region dated April 10, 1981. The complaint alleged numerous independent 8(a)(1) violations and 8(a)(3) allegations including denying an employee a merit wage increase, laying off eight employ ees, changing work assignments of one employee, and terminating another employee. FINDINGS OF FACT' During the hearing the parties stipulated that the fol- lowing individuals were, at material times, supervisors and agents: David Frank Robertson2-(Housekeeping) Gayle Caillouet-(Nursing Services) Tom Alexander-(Vice President) Gerald Colston-(General Stores) Tom Webb-(Vice President of Employee Relations) Claude Kilpatrick-(President-until January 11982) Joann Lappin-(Nursing Services) George Munn-(Director of Material Management) Tom Sawyer-(Vice President) Shelia Jacobs-(Public Relations Director) Tom Hagen-(Vice President) James Walters-(Administrative Director of Radiolo- gy)Joyce Burkeen-(Director of Nursing) William Snider-(Director of Environmental Services) Dorothy Jones-(Director of Housekeeping) Gladys Couraville-(Housekeeping) i Through its answer as amended and through stipulations, Respondent admitted the commerce allegations in the complaint The complaint al- leges, Respondent admits, and I find that, at all times material, Respond- ent, a Louisiana corporation with a hospital facility located in Baton Rouge, Louisiana, provided nursing and health care services and, during the past 12 months, a representative period, Respondent purchased and received goods and materials valued in excess of $50,000 from points lo- cated directly outside the State of Louisiana. At the hearing, Respondent also admitted, and I find, that the Charg- ing Party (the Union) is, and has been at all times material, a labor orga- nization within the meaning of Sec 2(5) of the Act. Despite the above, Respondent contends the Board lacks jurisdiction on the ground that it is a political subdivision of the State. Respondent offered evidence showing it benefited from a $20 million bond issue from the East Baton Rouge Parish Hospital Service District No. 2 and that an- thority, which is composed of five commissioners, was cieated by the East Baton Rouge city-parish government pursuant to authority created by an Act of the legislature of the State of Louisiana. All the five com- missioners were, at material times, members of Respondent's (the corpo- ration) 45-member board of trustees Moreover, 4 of the 5 commissioners are on the 21-member board of Respondent's hospital (Baton Rouge Gen- eral Hospital). However, there was no showing that District 2, or any other political subdivision, controls, to any extent„ Respondent's employ- ees' terms and conditions of employment. In fact, the record clearly re- vealed, and I find, that Respondent retains sufficient control over its em- ployees' terms and conditions of employment so as to be capable of effec- tively bargaining with a representative of the employees (National Trans- portation Service, 240 NLRB 565 (1979)). I find that Respondent is not a political subdivision but is an employer within the meaning of Sec. 2(6) and (7) of the Act, and subject to the Board's jurisdiction. 2 Throughout the record this particular supervisor is identified as David Robinson. I have referred to him as David Robertson in view of his spelling of the name in conference reports signed by him 194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Loren Beard-(Central Supply) Nella Guilbeau-(Nursing Services) Gloria Cyrus-(Housekeeping) Hilda Dewesse-(Assistant Director of Nursing) Louis-Champagne-(Director of Personnel) Larry Betz-,(Laundry) Robert Mancell-(Chief X-ray Technician) Ernest Peters-(General Stores, Assistant Supervisor) Linda James-(Assistant Director for Food Services) Betty Falgout-(Director of Nursing CDU) Linda Alumbaugh-(Director, of Chemical Dependen- cy Unit) Era McRae-(Supervisor) Melda Pace-(Director of Housekeeping) George Miley-(Director of Laundry) Eva Lewis-(Housekeeping) Betty Ward-(Assistant Director of Nursing Services) 1. THE 8(A) (1) ALLEGATIONS3 The 8(a)(l) allegations are considered below regarding the named supervisors: A. Gerald Colston Former employee Yolanda Scott testified that she had a conversation with Gerald Colston in his office in "Jan- uary 1981 about two or 'three weeks at the beginning of January," and "Mr. Colston asked me if I knew about the union and I said to Mr. Colston that I did, but I hadn't participated in the union activities because of the illness I had in my family." Scott also testified about Col- ston, "He also asked'me if I knew Susan Quiett; and I told him that I did know Susan Quiett, personally I didn't; I knew her sister real well." She went on to testi- fy Colston "asked me if I was for the union; and I told him that I hadn't made a decision yet, whether I was going to, you-know, vote yes or no on that." Scott stated, "After [Colston] asked me if I knew Susan Quiett and I said that I didn't know her personal- ly, that I knew her sister-he said that some black people be going around talking about things they didn't know what they were talking about." Scott asked Colston, "What did he mean," and' "He said when he worked at the Uniroyal plant that the black people, you know, black guys that he was working with were striking and didn't know what they were striking for." "And he said 3 Numerous 8(a)(1) allegations were also alleged by the Union to con- stitute objectionable conduct. Those include allegations considered below regarding Supervisors Tom Sawyer, Betty Falgout, Hilda Dewesse, Tom Alexander, Tom Webb, Louis Champagne, Claude Kilpatrick, Larry Betz, David Frank Robertson, Loren Beard, Gayle Caillouet, Nella Guil- beau, and Shelia Jacobs Additionally, it, was alleged that Respondent committed objectionable conduct by changing its policy to provide free parking to its employees, by denying an employee a merit wage increase (also alleged as an 8(a)(3) violation), and by laying off eight employees (8(a)(3) allegations). Note: Re Shelia Jacobs: The complaint allegations refer to Alexander Jacobs. However, the, supervisory stipulation shows only Shelia Jacobs The evidence demonstrates that two supervisors, Alexander and Jacobs, conducted one of the group meetings As shown below, my findings herein reveal that the speakers at the group meetings whether Jacobs or other supervisors, used prepared text. Therefore, the confusion regarding Jacobs name neither adds nor detracts from my overall finding. My find- ings as to Jacobs are included within the section dealing with the allega- tions referring to Tom Alexander. black people nowadays.go around talking about a lot of things they don't know what they are talking about. And he said Susan going pushing the union and she doesn't know anything about the union or she doesn't know any- thing about what she is talking about." On cross-exami- nation, Scott testified that Colston "Asked me if I had been to any of the union meetings and if I were for the union." "I told him that I hadn't been to any of the union meetings because I had illness in .the family. My grandmother was real sick in the hospital at the time-" "But I was communicating with the people that had been at the meetings every week. And he asked me if I was for the union. And I also told" him that I hadn't made my decision yet, or whether I was for the union but I was best for whatever best for me." I - Former employee Susan Quiett testified that she at- tended a meeting conducted by Gerald Colston and "also Donald from pharmacy" around the-end of January or the beginning of February. Quiett testified that an assist- ant supervisor, Lawson, was also present along with five employees from housekeeping, and nursing services. Quiett testified that Colston: Told us that he was involved in a chemical plant that had a union and that they were trying to get a union, but then things didn't go the way the union wanted. And he said that the union took the em- ployees out on strike. He said the union could do all sort of things and some bad things. He told us that if the union comes in-if the union is voted in we would start out with zero-and he held up a blank sheet of paper. And he also told us that different companies that had unions or that was trying to get a union that the benefits we had now we won't have if the union is voted in. And that they will have people to replace us. He said people they would hire to replace us, they would be by the experience' they had,- would decide who would get our jobs. ' Susan Quiett also testified she had a conversation with Gerald Colston about 2 weeks before she was laid off on February 20, 1981, that Colston approached her as she was coming out of the cafeteria. Quiett testified that Col- ston said to her: Susan, I would like to talk to you. So he brought me to the side and he asked me if I knew what I was doing. And I said yes. And he said, what do you think the union can,do for you? And I said the union can do great things for me. And he said, well, why do you feel that the union can do good things for you? And I said, because the union can give me better working conditions. And he went on to say that the union can also take your job and he said when we go out on strike we will not get paid while we are on strike. He said that they will have people to replace us. In regard to alleged conversations which Colston had with Yolanda Scott, Colston testified that he had conver- BATON ROUGE HOSPITAL 195 sations with Scott "But the same conversation I had with all the other employees I spoke to. So, if you're asking if whether or not Ms. Scott had a special conversation with me about the union, no." Colston was asked if he ever asked Scott "if she was for the union?" Colston re- plied that he had not. He testified that Scott would only say that "my husband does not want me to get involved with the union." Colston testified" he did not ever recall asking Scott if she knew Susan Quiett and he testified that to the best of his knowledge that he never told Yo- landa Scott that Susan Quiett does not know anything about the Union or does not know anything that she is talking about. Colston admitted giving group talks to employees at the hospitalbut he testified that he simply read the mate- rial from the prepared text. Colston denied having a conversation with Susan Quiett as she was leaving the cafeteria. He admitted that on one occasion he saw Susan Quiett on the elevator and that she was crying. Colston testified that he inquired of Susan Quiett about what was wrong and her answer was "That's why we need the union in this damn place. And that is as much as she would say." Colston asked Quiett if she felt like talking about it and she said no. According to Colston, that was the extent of this conversation with Susan Quiett. Colston was asked if he questioned Susan Quiett, "Why do you feel that the union can do good things for you?" He replied, "Not that I recall." Colston denied telling Susan Quiett in his conversation with her that the Union can take your job and that when you go out on strike you will not get paid and that they will have people to replace you. Discussion 1. The group meetings4 Susan Quiett testified regarding a meeting she attended and conducted by Colston, which she referred to as the 4 The unfair labor practice allegation apparently involved only the first of several addresses to employees. Although different groups were ad- dressed at various times, the same address was used for each of these groups Subsequently the same process was repeated with different speeches. A consensus of the testimony from witnesses of all three parties convinces me that in each of the first group of meetings several employ- ees were addressed by two representatives of Respondent, and those rep- resentatives received from Respondent prepared texts for their addresses to the employees Respondent's 'witnesses, identified as speakers in those meetings, indicated that they spoke from a prepared text which, on its face, dictated which of the,two speakers presented pertinent parts of the address. Resppndent's witnesses admitted answering employee questions during those meetings and one witness for the General Counsel, Warner Wilson, indicated in his testimony that he questioned the speakers during the course of the address However, with the exception of Wilson, none of the witnesses for the Union or the General Counsel demonstrated by their testimony that the allegedly unlawful comments during the meeting arose in response to employee questions. In considering the credibility of the group's meetings testimony, I must and do consider that the evidence establishes that all the speakers were presented with prepared texts for those meetings Obviously, in the ab- sence of other factors, a witness that has available for pretrial examina- tion the text of the speech that he had before his speech and that he used during, the speech would have a broader basis for accurate recall of the events during the speech than someone attempting to recall what he heard on the one occasion of the speech I shall fully consider that point in determining the probability of the accuracy of the witnesses' recall Due to consideration of the written text, I will be more reluctant to first of Respondent's speeches to its employees. The written text that Colston testified he read to the employ- ees is in evidence. Quiett's testimony, although remark- ably similar to the written text, contains comments by Colston that would constitute predictions of disadvan- tages which would result from unionization. According to Quiett, Colston indicated that employees would lose benefits and employees would be replaced. On the other hand, the written text states, inter alia, that bargaining begins at the zero point and everything you currently have would go on the bargaining table and be subjected to the give and take of bargaining. The text then points to examples of loss of benefits, including a specific case where employees' pay was reduced through bargaining. The text also points out that the only weapon the Union has to try and force its demands is to strike. It then illustrates that strikers will not be paid nor will they receive other benefits and the employees "could lose your job" because they could be replaced during an eco- nomic strike. I am convinced that Quiett's testimony reflects her recollection of what Colston meant in the group meet- ings. However, in view of Colston's testimony and the entire record, including my observations in footnote 4 above, plus the close similarities between the text and Quiett's recollection, I find that the text was actually fol- lowed by Colston.5 2. Yolanda Scott and Susan Quiett Gerald Colston denied having conversations with Scott and Quiett to the extent of their respective testimo- ny. I am persuaded, on the basis of the demeanor of the witnesses and the entire record, that Scott and Quiett should be credited over the testimony of Colston regard- ing those conversations. In considering this credibility issue, the background of the employees union activity is of particular importance. Susan Quiett was a visible union supporter. Perhaps her most visible activity was her handbilling for the Union across from the hospital by the "new parking lot." Her handbilling, which started on December 7, 1980, and occurred on three or four occa- sions before her February 20, 1981 layoff, was observed by supervisors of Respondent. Against that background, credit evidence that is contrary, but similar, to comments in the text (e.g , evidence that benefits will be lost as opposed to language in the text showing that negotiations may result in loss of certain benefits). Moreover, although I shall consider the evidence in its entirety, I do not find totally determinative of the question of variance from the writ- ten text testimony that the speaker looked up at the audience or that the speaker did not appear to read from notes The evidence did not reveal with precision the dates of the speeches. Those speeches were repeated, often times by the same speakers, to different groups of employees Therefore, it is apparent that depending on how often the particular speaker had given the speech at issue, he may have been so familiar with the text at the time of the speech in question that frequent referrals to the text were no longer necessary 5 Concerning Quiett's testimony, I note that it is not disputed that vari- ous speakers made comments in the nature of answers to questions from employees that were not contained in the written text However, in the case of Quiett's testimony, and on most other situations involving the speeches, the material comments (i.e, alleged illegal comments) are so similar to comments in the written text that I am convinced and find that actual remarks were taken'€rom the text and were not made in response to employee's questions 196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I fmd Yolanda Scott's testimony that, when Colston questioned her about the Union during 1981, he specifi- cally ' asked about her acquaintance with Susan Quiett, gives a clear appearance of credibility. Scott's testimony in that regard evidenced a clear recollection of com- ments that would logically follow considering Respond- ent's knowledge of -Quiett's activities. On the other hand, in consideration of whether Scott fabricated her version of the Colston conversation, I cannot conclude from the record that she was otherwise aware of Respondent's knowledge of Quiett's union activities. According to Scott's testimony, she had not, at that time, participated in union activities because of her grandmother 's illness. Moreover, regardless of her knowledge of Quiett's ac- tivities, I find it unlikely that Scott could fabricate such a conversation by including references to another employ- ee's union involvement that fits so reasonably into the es- tablished time pattern of Quiett's activities. Additionally, a comparison of Scott's and Quiett's tes- timony showed a continuing pattern of comments by Colston-i.e., when Colston talked to Scott in January, he commented that Susan Quiett was pushing the Union and she does not know anything about "what she is talk- ing about"; when Colston talked to Susan Quiett in Feb- ruary 1981, he asked her if she knew what she was doing; what did she think the Union could do for her. Conclusions The complaint alleges that Respondent's supervisor and agent, Gerald Colston, engaged in 8(a)(1) violations by orally interrogating employees concerning employees union activities on three separate occasions; creating the impression of surveillance of employees union activities; threatening that should the Union successfully organize, bargaining would commence with a blank sheet of paper; threatening loss of benefits if the Union was successful; and threatening that if the Union was successful, employ- ees would be required to strike and would lose jobs'. Apparently the threats noted above allegedly occurred during a group' meeting addressed by Colston. In view of my -findings herein 'that material speakers at those meet- ings followed a written text and the evidence failed to establish that the speakers make arguably violative com- ments not contained in the text, I shall consider below all the allegations which arose during those meetings under a common heading. Therefore, ,as to Colston individually, I shall now con- sider only the allegations of interrogations and impres- sions of surveillance. In essence, the credited evidence demonstrates Colston asked Yolanda Scott in his office during January' 1981 if she knew about the Union, if she had been to any of the union meetings, if she was for the Union, and if she knew Susan Quiett. Colston also told Scott that Quiett was pushing the Union and did not know what she was talking about. Concerning Quiett, the credited evidence demonstrated that Colston talked to her outside Respondent's cafeteria in February 1981 and asked her if she knew what she was doing; what did she think the Union could do for her; and told her the Union could take her job and that she would not get paid although on strike; and people would replace the employees. I see nothing in the above conversations that would support a fmding that `Colston created , an impression of surveillance. He did imply knowledge of Susan Quiett's activities. However, the record clearly proved that Quiett's activities before that conversation, included handbilling for the Union in open view of employees and supervisors alike. Therefore, Colston's comments demon- strated awareness of nothing that was not common knowledge. I fail to see how a supervisor's comments in- dicating that he did nothing beyond observing such open activities could be considered coercive. I fmd that the General Counsel failed to prove- that particular allega- tion. See Regal Tube Co., 245 NLRB 968,'97-3 (1979); Carrick Foodland, 238 NLRB- 568, 569 (1978). On the other hand, I find Colston's questions to Scott and Quiett were coercive. In that regard, I note that Scott was questioned in Colston's office; his questions to Scott were extensive (i.e., if she knew about the Union; had she attended any union meetings; if she was for the Union; and did she know Susan Quiett, a known union advocate); and his comments included an implication that union advocate Quiett was engaged in union activities without being fully knowledgeable of the possible ramifi- cations of that activity. I note that Quiett was queried on what she thought the Union could do for her; and if she knew what she was doing. Additionally, Colston threat- ened Quiett with possible loss of her job because-of the Union. Both the Board and the courts have traditionally found such comments constitute an 8(a)(1) violation espe- cially when, as here, they occur in an atmosphere of other violations. See Agri-Seeds, 237 NLRB 911, 916 (1978); Backstage Restaurant, 232 NLRB 1082, 1088 (1977); NLRB v. W. C. McQuaide, Inc., 552 F.2d 519, 533 (3d Cir. 1977); Jody Tootique, 245 NLRB 734, 739 (1979); Pelton Casteel, Inc., 246 NLRB 310 (1970); and Cerro CATV Devices, 237 NLRB 1153, 1156 (1978). Re- spondent proved' no valid purpose behind its questioning of Scott and Quiett and the record indicated that no valid purposes existed. There was no showing, for exam- ple, that Respondent was checking on a union claim of majority status nor was any motive shown other than the one apparent in Colston's efforts to require the two em- ployees to identify and support their respective positions. Additionally, Colston .was not a low-level, firstline super- visor. Although the record did not fully reveal his posi- tion in Respondent's supervisory structure, it is apparent from his testimony that,he supervised firstline supervi- sors. Concerning Quiett, even though' Respondent knew of her union activities, the Board has found similar ques- tioning, as here, violative (TR W-United Greenfield Divi- sion, 245 NLRB 1135, 1139 (1979)). B. Gloria Cyrus Former employee Joann Tate testified that she had a conversation with Gloria Cyrus ' in the presence of two other employees on February 9, 1981, at the hospital. According to Tate, she and two other employees were talking when Cyrus came up and asked, "Were we dis- cussing the union." The employees asked why and Cyrus stated, "Because every where she go people are talking BATON ROUGE HOSPITAL 197 about the union." The employees then told Cyrus that they were talking about the Union. Tate stated that later on that same day after she had returned to her work station, Cyrus came to her and asked Tate what she thought about the Union and was she going to vote for the Union. Tate testified that she replied, "Sure, if I thought it could get there." At that point Cyrus stated, "Well, that she didn't have anything else to do with it because she needed her job." Gloria Cyrus testified that she did not have a conver- sation with Joann Tate and others about union activities. Cyrus testified that she did recall one conversation when she went to Joann Tate and Julia Kelly and asked them what they needed on the carts and that one of the em- ployees asked her if she received a letter from the hospi- tal. Cyrus replied that she said yes, Cyrus testified that Tate did not say anything about the Union, but that Tate said, "I don't know what they are sending me mine for because people are going to do what they want to do any way." Cyrus testified that was the end of the con- versation. Cyrus testified that she did not ask Tate if she was going to vote for the Union nor did she ever ask Tate if she, Kelly, and Stevenson were talking about the Union. Discussion The dispute between the testimony of Joann Tate and Gloria Cyrus presents a difficult credibility problem. Al- though both witnesses evidenced good demeanor, they also demonstrated weakness in recollection during cross- examination. Concerning Tate, her testimony conflicted with her pretrial affidavit regarding the substance of the above-mentioned conversation with Cyrus and with her layoff interview. Cyrus' cross-examination demonstrated weak recollection in several areas, most noticeably in regard to union discussions at the hospital and the meet- ings held by the hospital regarding the union efforts. Moreover, Cyrus appeared to change her testimony on redirect regarding the practice of moving relief maids to another floor. Nevertheless, it remains the General Counsel's burden to prove its allegations by substantial evidence. Due to the conflicts between Tate's testimony at the instant hearing and her pretrial affidavit, I am unable to find that the General Counsel has established through substantial evidence that the above conversation oc- curred as testified by Tate. Conclusion In view of my credibility findings above, I find that the General Counsel has failed to prove the 8(a)(1) alle- gations regarding Gloria Cyrus. D. Hilda Deweese Former employee Dorothy Huges testified that she at- tended a meeting conducted by Deweese and a man she did not know at the hospital on February 9, 1981. There were approximately 20 employees at the meeting. Huges testified, "They said if the union would come in they would call a strike-and we would lose our jobs-and our family would be deprived of needed things-and we would lose all our benefits." Huges said, "They said if the union came in we would automatically lose our jobs and all our benefits." Huges also testified, "They said if the union did come in they would call a strike; and we would lose our jobs." Later , under cross-examination, Huges was asked if the employees were told they would automatically lose their jobs and she replied, "Yes, and you would be laid off from work." Hilda Deweese admitted giving group talks to employ- ees at the hospital. However, she denied making the comments alleged in Huges' testimony . Deweese testified that she followed the script of the speech although she admitted answering employees questions. Discussion Again, as in the case of the address by Gerald Colston (above), Dorothy Huges' testimony is very similar to comments found in the written text. Although, I am con- vinced that Huges endeavored to recall what was said, her observations reflect her understanding of the message rather than the actual words. The text reveals that the actual speech was long, almost 20-typed pages, and con- tains specific examples underscoring possible conse- quences of unionization. I find it less than surprising that Huges and other employees came away from the speech- es with the impression that they had been warned against certain dangers created by unions. However, on the other hand, I find it unlikely that any employer would, in a situation like we have here when numerous mid-level and high-level representatives ad- dressed employee groups, encourage the speakers to depart from the written text. Such a practice would most likely result in a confused and nonproductive message. I find it more probable that when, as here, both the em- ployee witness and the speaker witnesses appear credible, the speech was actually given as written with the result that one or more of the listeners may have understood the speech's predictions to be more definite than actually expressed. Conclusion As indicated above, in view of my findings that Deweese followed the written text in her February 9, 1981 address to the employees, I shall consider this alle- gation below along with allegations going to other super- visors regarding the group meeting. D. Tom Alexander Former employee May Ella LaCour testified that she attended a meeting at the hospital around January 20, 1981, conducted by Alexander, Jacobs,6 and a black man from purchasing. LaCour testified: Well, Mr. Alexander did most of the talking and he said that unions wasn't any good for hospitals and unions wasn't any good for patient care. And then he also talked about strikes, mostly, the two or three people were going out on strikes and that you can be at home and you wouldn't know anything 6 Shelia Jacobs did not testify. 198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD about it and he named several places that had had strikes and people lost their jobs. And then he said that-that you can lose all your benefits, that if the union would come in you wouldn't have no one to talk to. You'd have to go to the Board. And then he also told us-he held up a blank piece of paper- saying that you would have to start bargaining from a blank sheet of paper. And then he also told us that there was a big layoff coming up. LaCour was asked if Alexander gave the reason for the big layoff and she replied, "He said a shortage of staff nurses." LaCour testified that approximately 20 employees at- tended the above meeting. 1. Alexander's meeting with Warner Wilson Former employee Warner Wilson testified that he was called into Tom Alexander's office on February 12, 1981, and in addition to Tom Alexander, Supervisors Bill Snider and -Larry Betz were also present. Wilson testified Alexander told him, "We just got the result of who was eligible to vote yesterday. And you are a supervisor and you fall under management; therefore, you are not eligi- ble to vote." Wilson testified that Alexander told him: You are a supervisor. You are not allowed to vote. I don't want you to say anything, speak up for the union. I don't want you to discuss the union with anyone or it could mean your job. I know how strongly-I know how strongly you feel about the union-you know, how strongly I feel about the union, you know, wanting it. So I personally called you up here to tell you not to discuss anything about the union, or not to say anything to anybody about the union, because it could mean your job. Wilson stated that he asked Alexander, "Since I'm a su- pervisor, why aren't I drawing supervior's pay?" Alexan- der replied, "Well, you are going to have to take that up with Mr. Gene Miley, which is the laundry manager." According to Wilson, Snider then said, "If you don't like the pay you are getting you can quit." Alexander stated, "Do you understand what I mean." Wilson re- plied, "I understand exactly what you mean." 2. Alexander and the director of nursing Warner Wilson also testified about a meeting conduct- ed by Tom Alexander along with a lady that he believes was the director of nursing. Wilson stated that other people in attendance included a lady named Louise Harold, a man that worked in maintenance, a lady from nursing service, and two other employees he did not know. Wilson's testimony about that meeting was as fol- lows: During the course of the meeting the lady said, "Well, if the union win and we go to the bargaining table, we'll go with this." And she held up a blank piece of paper. So I asked her, I said, "Well, is it good faith to go to the bargaining table with a blank sheet of paper?" She said all that we have to do- is go to the bar- gaining table. So I don't know which one said it, the next statement about-if it was Mr. Tom Alex- ander or the lady-but if we go the bargaining table and we can't reach an agreement then the union would call a strike. And I said, I told them, Well, the union can call a strike, the union members have to vote on a strike. And if they vote on a strike they have to give the hospital 90 days notice. And I think a 90- day and then a 30-day notice, and then 10-day notice. I think that's federal law. And if they don't reach agreement by then they are not bargaining in good faith. So, Mr. Alexander went on and was talking about this hospital in Lake Charles had voted a union in and wound up making less money. And he also was speaking about strikes. He said if the employees go on a strike they can bring in a catering service or whatever-you know, to replace the employees that's on a strike. And then after the strike is over-when the strike is over some of the employees might be out of a job. He also said that all the union wanted to do was take your money. They don't do anything for you. And I told them-I spoke up and I said, well, I would rather pay $6,00 or $12.00 a month union dues for job security because right now anyone can come in, you know, and tell me I am fired without any really good reason. And I would be out of a job. At least with the union I have some type of se- curity. They would have to have a good reason to fire me. So they kept on talking. He said, well, you know-they kept on talking more or less like if the union came in there could be trouble. There could be violence and things like that, you could lose holi- days. And they kept on talking and I just turned a deaf ear to the meeting at that point. Wilson testified that the meeting conducted by Alexan- der was before Alexander told him that he was not eligi- ble to vote. I Tom Alexander testified that he along with Edward Silvey, Louis Champagne, Shelia Jacobs, and the Com- pany's attorney, Lindsey, participated in the formulation of a group of speeches to be delivered to the employees during the union organizing campaign. Alexander testi- fied there were five or six speeches in all. Each of those speeches was presented to several groups of employees. The first of the five or six speeches contained'a refer- ence to a blank sheet of paper. According to Alexander, he was one of the persons that presented that speech which was given on February 9, 1981, Alexander testi- fied: We, of course, had a speech typed out. We fol- lowed it to the word. Basically, that speech said that if bargaining-if the union got in and bargain- ing commenced we would bargain in good faith with the union, but bargaining started at the zero BATON ROUGE HOSPITAL 199 point, item by item and there was no guarantee that anyone would come out better or worse, during the bargaining process. The blank sheet of paper was held up and dis- played that bargaining would start from zero point. According to Alexander, there was reference during the speeches to Clarence Crayton, the secretary-treasurer and chief organizer for the Union at the hospital. He stated that the reference to Crayton was that Crayton was negligent in performing some of his duties in bar- gaining -and it was questioned whether this negligent type of person was the kind of individual that Baton Rouge General Hospital employees would want bargain- ing on their behalf. In support of this position regarding Crayton, Respondent distributed to the employees during the speeches a letter purportedly from Crayton to the ex- ecutive vice president of AMI in which Crayton indicat- ed he was negligent because he failed to bargain proper- ly on behalf of the employees. Alexander denied that he participated in any meeting with Warner Wilson concerning Wilson's supervisory status and his working for the Union at Baton Rouge General Hospital. However, admitted Supervisor Larry Betz testified: Q. Did you ever attend a meeting involving either Mr. Alexander or Mr. Munn or Mrs. Beard, or Mr. Snider where Mr. Wilson was present and he was told that he was a supervisor and that he could not participate in the union activities? A. I remember a meeting. Q. Did you attend the meeting? A. Yes, I did. Q. Who was present? A. Mr. Alexander, Mr. Miley, myself and Warner Wilson. Q. And what was told to Mr. Wilson? A. That part of the conversation I really don't re- nnember. In regard to the speeches to employees, Alexander ad- mitted that there were question -and answer periods and that he answered questions extemporaneously. Alexander admitted discussing strikes and strike violence with em- ployees during those meetings and showing clippings of strike violence to the employees. Under redirect, examination, Alexander denied that in answering any employee questions, 'he told the employ- ees that they would lose their hospital benefits if the Union successfully organized the hospital. He also denied that in answering questions he told employees that they would no longer have anyone with whom they could discuss their problems and would have to go to the Na- tional Labor Relations Board, Alexander denied that he informed any employees that strikes would be provoked and loss of jobs would occur if the Union successfully organized. On recross, Alexander admitted that they did "Inject union stewards in this situation , and to whatever extent the steward would have to get involved [the em- ployeesl would have to involve him." 3. Tom Alexander re Charles Hamilton In the General Counsel's case, Charles Hamilton was called and testified to a conference he had with George Munn, who Hamilton described as being over purchas ing, housekeeping, and the laundry. Hamilton testified the conference was in Munn's office and included Harris and Beard. Hamilton was recalled during the rebuttal portion of the General Counsel's case and he testified that he then recalled that Tom Alexander was present along with Munn and Beard. During the General Counsel's case-in-chief, Hamilton recalled that George Munn did the talking and that Munn told him that he heard rumors that Hamilton was affiliated with the Union but that he now knew for a fact because he had seen Hamilton on the property passing out leaflets. Munn told Hamilton, you know that,you are a supervisor and supervisors cannot be affiliated with the Union. According to Hamilton, Munn told him, "You either leave the union alone or take a reduction in pay and continue with the union." Tom Alexander admitted that he attended a meeting involving Hamilton along with Harris and Munn. Alex.. ander recalled telling Hamilton, "That it had come to my attention that he was actively engaged in the union orga- nizing campaign and we felt because he was a supervisor that he has the responsibility to uphold the hospital posi- tion." Alexander asked Hamilton to cease his activities as a union organizer. ; According to Alexander, Hamilton admitted that he was a supervisor, and that Hamilton felt like he knew he should not engage in union activities on hospital time but he thought he had the right to do it on his own time. Alexander told him that it was his respon- sibility as a supervisor to uphold the Hospital's position 24 hours a day, 7 days a week, and that, "We expected that of him." Alexander denied telling Hamilton that if he chose to continue organizing for the Union to take a reduction in pay, or he could stop being affiliated with the Union and keep his job as a supervisor. Henry Harris, chief patient care assistant, testified that he attended the meeting involving Tom Alexander, George Munn, and Charles Hamilton in Munn's office. Harris was asked what Alexander said to Hamilton about the Union. His testimony was: Well, he told-he' ask him was he a stewardess [sic] for the union, and Mr. Hamilton said yes. And he said that from this point he would not hold anything against him for believing what he be- lieves in, but at this point. and time that he wants him to stand along with the hospital, being the su- pervisor. Q. And did Mr. Hamilton respond? A. Well, he just-nodded his head like he agreed and understood what they are saying. Q. And how long after the meeting did you, go visit Mr. Hamilton.. A. Four hours later I went to Mr. Hamilton's house after the meeting. Q. Now, as best as you can, would you tell us the conversation that you had with'Mr. Hamilton. 200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A'. I went to Mr. Hamilton's residence and I ex- plained to him about the meeting we had earlier, did he understand what was said in the meeting from Doctor Alexander. And we elaborated on that and I told him that by being a company-he could understand that by being a company man he was suppose to stand with the hospital and not be with the union. And some of that he disagreed. And I told him about that if he wanted to be with the union step back in the staff and renounce his position, he wanted to help the union. He couldn't be in the po- sition that he had and be with the union. On cross-examination, Harris testified that when he went to Hamilton's house following the meeting with Al- exander, Hamilton told him that he still was going to fight for the Union. George Munn Jr. testified that in November 1980 he was materials manager and director of pharmacy. Munn testified that he attended the meeting involving Hamil- ton, Henry Harris, and Tom Alexander and that the meeting occurred on November 26, 1980. Munn was asked, "What did Alexander say to Hamilton," and his response was: - Basically it was his position of assistant supervi- sor over other PCA's. He did know that Charles Hamilton was working with the union activity and for him to cease to do so because of the hospital's feeling toward unions. And he just asked-because the hospital's attitude toward-their relationship with union activity-at that point we were against unions in the hospital. He, as a supervisor, was not eligible for, in our in- terpretation, to be involved in union activities. We requested that he not do so. Q. Did Mr. Hamilton say anything about whether or not he was a supervisor? A. No he was a supervisor. Q. Did Mr. Hamilton acknowledge the he was a supervisor or did he deny being a supervisor? A. He didn't deny it. On cross-examination, Munn testified that they did not tell Hamilton that further disciplinary action would in- volve discharge but that they did tell him that if he did not agree to cease further union activities there will be disciplinary action in the future. Discussion 4. The group meetings As in the case of other witnesses, May Ella LaCour's testimony was in substantial accord with the written text of the first series of addresses. However, LaCour's testi- mony that was supported by her earlier pretrial affidavit testimony, indicated that Alexander made comments in addition to those that appear in the text. I note that LaCour recalled Alexander telling them that two or three people could go out on strike even though the em- ployees who attended the meeting may be at home and not know about the strike. I am convinced and find, for reasons outlined above regarding other group meetings, that Alexander read or gave the speeches stated in the text. However, I also find that he made other comments, whether or not in re- sponse to questions, that included the comment about two or three people initiating a strike. That statement ap- pears reasonable in view of other comments that are in- cluded in the text regarding strikes. In view of my obser- vation of LaCour's demeanor, I am convinced that she testified to the best of her recollection regarding the group meetings. Even though I find that her recollection did not establish statements that were made in direct conflict with the written text, I do credit LaCour's testi- mony that Alexander told them that two or three em- ployees could initiate a strike. Concerning the meeting attended by Warner Wilson, I noticed that Wilson's testimony appears to substantially in accord with the written text. Therefore, and in line with the reasons stated above regarding other meetings, I am convinced and find that Alexander, and the other speaker, followed the printed text on that occasion. I credit Wilson's testimony that he questioned the speakers during their presentation rather than afterwards. 5. The meeting with alleged Supervisors Wilson and Hamilton In defense of alleged violations regarding Warner Wilson and Charles Hamilton, Respondent contends that both men were supervisors at material times and not sub- ject to the Act's protection afforded employees. Both Wilson and Hamilton testified that they were cautioned by Tom Alexander to cease their union activities because of Respondent's assertion they were supervisors. Alexan- der denied having such a conversation with Wilson, but admitted having one with Hamilton. I find Wilson's testimony believable on the basis of de- meanor and the entire record. I noticed in that regard his recollection o€ Alexander's warning that he was a super- visor and should cease union activities was similar to what Alexander admittedly told Charles Hamilton. Addi- tionally, Supervisor Larry Betz recalled attending that meeting between Alexander and Wilson. Concerning Hamilton, Alexander and other supervi- sors admitted that Alexander called Hamilton in and cau- tioned him not to engage in union activities. Generally, I do not credit Hamilton's testimony to the extent it con- flicts with other testimony regarding that meeting. Ham- ilton demonstrated in testimony during the General Counsel's case-in-chief and when called in rebuttal that his recollection was poor. However, I do not credit Alexander's and Henry Harris' testimony that during their conversation, Hamil- ton admitted that he was a supervisor. I find the testimo- ny of Materials Manager George Munn Jr. (another of Respondent's witness) more believable. Munn testified in response to the question did Hamilton acknowledge that he was a supervisor, "He didn't deny it." I specifically discredit Hamilton's testimony that he was told during the meeting at the hospital that, he should take a reduction to a unit job if he wanted to assist the Union. In that regard, I credit Chief Patient BATON ROUGE HOSPITAL Care Assistant Henry Harris' testimony that he, an "ad- mitted supervisor, made that suggestion to Hamilton, but that the suggestion was made after the meeting with Al- exander when Harris visited Hamilton's home. Addition- ally, I specifically credit the testimony of George Munn Jr. that Hamilton was warned of further disciplinary action if Hamilton did not agree to cease his union ac- tivities. Conclusion 6. The group meetings In view of my findings that Alexander followed the written text in his addresses to employees and that he added a comment that, a strike could be initiated by two or three employees, I shall make a determination on the allegations arising from those speeches, along with alle- gations regarding other supervisors' comments in their speeches, below. 7. The meetings with Warner Wilson and Charles Hamilton In considering the import of comments made to Wilson and Hamilton, it is first necessary to consider whether Wilson and Hamilton , were supervisors and not entitled to the Act's protection as employees. 8. The supervisory status of Warner Wilson Warner Wilson testified that his stated duties for Re- spondent were those of washman in Respondent's laun- dry facility. Wilson testified there were 17 or 18 other employees in the laundry that worked with him on his shift. Wilson testified that he loaded dirty clothes up in the washer, would wash them by sending them through the wash cycle, then pull them out and load them on a conveyor where they would go to the rest of the work- ers to finish the laundry process . Wilson stated his pay came to $4.97 per hour. Wilson testified that he had no authority to hire, fire, or recommend that an employee be hired or fired. Wilson stated that he did not have the authority to either layoff or recommend employees for layoff; nor did he have authority to recommend an em- ployee for a wage increase. Wilson recalled that he did not' give written warnings to employees, discipline any employees, nor grant them time off. Wilson's supervisors were Larry Betz and Gene Miley. Neither Betz nor Miley worked on weekends. Wilson and three other laundry employees were classi- fied as leadermen. Because both supervisors, Betz and Miley, were absent on weekends , Wilson and another leaderman, Fleming Fountain, rotated working Satur- days. Wilson testified that on those occasions it was his obligation to assist coworkers in' getting the clothes out and that if there was a breakdown, he had a number to call a mechanic and if an employee failed to show up for work, he was instructed to call to see if other employees could come in. Wilson stated that he was never told that he had the authority to discipline employees; however, he testified, "If somebody messes up or somebody comes in late," he was' to write a note and leave it on Miley's desk and Miley would take care of the situation. Wilson 201 was' asked if he had an occasion to write a note as indi- cated above, and his response was, "I don't think so." On cross-examination, Wilson was asked about an occa- sion, a Saturday, when an employee would just sit down and smoke a cigarette rather than work, and he respond- ed that he could just tell them that they might do a little better or he would have to report it to Miley, but that he did not have authority to tell employees what to do. Wilson indicated on cross-examination that he did not know whether he had attended any supervisory meet- ings. Although Wilson admitted that Gene Miley told him that he, could call for help if he was short-handed, he tes- tified that he never received any telephone numbers of other employees he was supposed to call, and that during the times when they were short they either doubled up and did the work themselves, or when he knew that an employee was absent he may ask someone to come in and work that Saturday. On occasion he had called some of the employees that he knew to come in and work on Saturdays. Gene Miley did not testify. Larry Betz testified that Warner Wilson's job was that of "leaderman, working washerman." Betz testified that on weekends Wilson's re- sponsibility was to make sure he had a crew--working crew, designated places .to work, etc. He testified that Wilson had authority on weekends to call other employ- ees to fill a slot if someone did not show up without first calling a supervisor. Betz also testified that Wilson had the authority to reprimand employees if they were either late or had some adverse reaction during the day, but generally Wilson would send him home and report the incident to either him or the laundry manager the fol- lowing workday. He testified that Wilson assigned differ- ent jobs on Saturdays. On cross-examination, Betz admitted that he had never told Warner Wilson that Wilson had authority to repri- mand employees. Betz also admitted that he did not know of any written warnings that Wilson had ever issued, nor did he know of anyone that Wilson had ever sent home. Betz also admitted that the only jobs assigned by Wilson on weekends were routine jobs of putting clothes in the washer, taking them out, putting them in the dryer, and folding them. Although Betz testified that Wilson had the authority to give employees time off if they were sick, he admitted that he was not aware of a specific example of Wilson doing that and he had never told Wilson that '"Filson had that authority. L find that Wilson was not a supervisor at material times. The Board has consistently held that even though an employee may perform some supervisory functions, he will be found not to be a supervisor, when he lacks authority and independent judgment and spends a sub- stantial portion of, his workday performing rank-in-file work of a repetitive nature (Air Filter Corp., 2.31 NLRB 782 (1977)). It was apparent that Larry Betz had no first- hand knowledge of what Warner Wilson had been told regarding his authority. Betz testified concerning his knowledge of Wilson's authority and activities. Howev- er, when examined by the General Counsel, Betz admit- 202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ted that he had no knowledge of Wilson ever exercising any supervisory authority over employees nor was he ac- tually aware that Wilson had been told that he possessed such authority. Therefore, I shall fully credit Wilson's testimony regarding his authority and duties . That testi- mony revealed, and I fmd, that Wilson was nothing more than a leaderman and was not a supervisor as defined in the Act. 9. The supervisory status of Charles Hamilton Charles Hamilton's duties differ somewhat from those of Warner Wilson. Whereas Wilson was one of four leadermen in. his department, Hamilton was designated as the only assistant chief patient care assistant. Patient care assistant's duties included catheterizing patients, walking patients, assisting with patients' baths, dressing patients, restraining patients, and getting patients out of chairs. Both Hamilton and his immediate supervisor, Henry Harris, the chief patient care assistant, performed all the functions normally performed by patient care assistants (PCAs). However, Harris and Hamilton were also charged with assigning jobs to available PCAs as the jobs ap- peared throughout the hospital . Although Hamilton spent most of his time during the week performing PCA duties, he 'also, during those periods, assigned jobs, trained employees, and on occasion counseled PCAs about their work -performance. Hamilton admitted coun- seling employees Gerald McRay and Horace Johnson. On' Sundays and Mondays, Hamilton assumed the role normally occupied by Chief Patient Care Assistant Henry Harris. Harris did not work on Sundays and Mon- days. On those occasions, according to Henry Harris' testimony, which I credit, Hamilton `called in employees toreplace no-show employees, granted employees per- mission to leave early, sent employees home for discipli- nary reasons, had the right to and, on occasion, actually wrote up employees for disciplinary action , counseled employees about their job performance, and trained em- ployees in their PCA duties. Hamilton testified that on Sundays and, Mondays it was up to him to see that the job went on fine. Hamilton admitted that his pay was about _$1.50 per hour higher than the highest paid PCA. According to Loren Beard,, the supervisor directly over Henry Harris, Hamilton was informed by her that he also had the authority to recommend discharge o£ an employee. -I ,am convinced on the basis for the record that Hamil- ton acted in a supervisory capacity. His supervisory duties were routinely administered on Sundays and Mon- days when he was the only firstline supervisor on the job and, also, on regular occasions during his, workdays even though less frequently because of the presence of the chief PCA. (See Butler-Johnson Corp., 237 NLRB .688 (1978); Flexi-Yin Service Center, 228 NLRB 956 (1977); 10. Findings regarding Hamilton and Wilson The complaint alleges that Alexander threatened an employee on February 12, 198-1, with termination if the employees supported the Union. Obviously, because Hamilton had been found to be a supervisor, I fmd no violation occurred during his meet- ing with Alexander nor was there a violation by Harris in his subsequent visit to Hamilton's home. Concerning Wilson, his testimony, that I have cred- ited, proves that during a February 12, 1981 meeting in Alexander's office he was told that he was a supervisor. Alexander cautioned Wilson not to speak up for the Union or it could mean Wilson's job. I find that consti- tutes a clear threat in violation of Section 8(a)(1) of the Act. E, Tom Webb Former employee LoRita Marshall testified that she attended a meeting at the hospital in the middle of Feb- ruary 1981 conducted by Tom Webb. Marshall testified as follows regarding that meeting: OK, he talked about how there had been vio- lence in the unions. How the unions caused vio- lence. He told us that if the employees would go on strike that we could lose our jobs. He said that the hospital had a contract with some other company and if we were on strike that they would supply the hospital with new employ- ees. And he told us that in the past they had had violence, truck drivers would have guns and'some people got shot. And he had some clippings on violence. Yeah, he told us that he wouldn't tolerate-that the hospital wouldn't tolerate having a union push it. Louis Champagne, director of personnel, testified that Tom Webb was employed by the hospital as one of its vice presidents until January 30, when Webb was in- volved in a reduction in force. Champagne testified that Webb did not participate in any of the group talks that began on February 9, 1981. Champagne testified that he made up the schedule for the group meetings and he knew that Tom Webb was not present at the hospital and did not participate in any of those meetings. Discussion In view of the unrebutted evidence showing that Tom Webb was not employed by Respondent after January 30, and evidence that the group talks did not start until February 9, 1 find that'LoRita Marshall was mistaken in her testimony that Tom Webb conducted a mid-Febru- ary employee meeting that she attended. Elliott River Tours, 246 NLRB 935, 943 (1979); Famous Conclusion Amos Cookie Corp., 236 NLRB 1093 (1978).) In view of my credibility determination, I fmd that the General Counsel failed to prove that Tom Webb en- gaged in any activity violative of Section 8(a)(1). BATON ROUGE HOSPITAL 203 F. Louis Champagne Former employee Sharon Thompson testified that she attended a meeting of approximately 10 employees on February 12, 1981 , conducted by Champagne, who told the employees: The bargaining would come to us with a blank sheet of paper. That the union would strike the hos- pital. And they would hire people in our places. And we would be put on a picket line. And if we tried to cross the picket line that we'd be hit over the head and our homes would be burned down. And they said we could lose our raises, our holi- days and sick time, vacation. We probably wouldn't get, none of this. They also said that Baton Rouge General didn't need a union and they didn't want a union. propaganda?" Kirkpatrick read the leaflet and stated, "[I]t will never work." Thomas then said , "Well, there's nothing , wrong with trying." Kirkpatrick laughed and walked on. Kirkpatrick did not testify. Discussion Although Thomas' testimony was unrebutted, I shall credit her testimony as reflected above. Conclusion I see nothing coercive about Kirkpatrick's conduct re- lated by Thomas, and the General Counsel cited no au- thority on which I can fmd his conduct violative. I find that nothing occurred on that occasion that violates Sec- tion 8(a)(1). Louis Champagne testified that he made up the sched- ule for the group talks and that the first of the group talks was presented during the period February 9 through 14, 1981. The text of the first of the group talks was received in evidence. Champagne testified that "the blank-sheet-of-paper" was included in only the first of the group talks. Champagne testified that he presented approximately six-of the first of the group talks and that the script was followed. Champagne stated that each of the talks involved two individuals and that it was neces- sary to read the text because each person had a certain part to follow . During the presentation when the portion regarding the blank sheet of paper was read, he, along with the other speakers giving that particular talk, held up a blank sheet of paper . Champagne admitted that a question and answer period was held and that he re- sponded to employee questions . Champagne denied making a statement during his presentation of the first of the group talks that "the union will strike the hospital." Champagne testified that there was a statement in the text indicating that ' the Union could strike ,the hospital. Champagne also denied that he ever made the statement that employees would be hit over the head or that houses would be burned down. Discussion Sharon Thompson's testimony regarding a group meet- ing addressed by Louis Champagne did not vary from the subject and issues covered in the text for the first series of meetings. In line with my reasoning mentioned above, I shall credit Champagne 's testimony that he fol- lowed the text of that speech. Conclusion As in situations noted above, I shall consider the ques- tion of an 8(a)(1) violation regarding Champagne's ad- dress to employees in group meetings below. G. Claude Kirkpatrick Former employee Teresa Thomas testified that al- though she was handbilling for the Union across from the hospital parking lot, before Christmas 1980, Kirkpat- rick came by and asked, "[C]an I see some of you [sic] H. Ernest Peters Yolanda Scott testified that she had a conversation with Peters on February 11, 1980, in the 'big storeroom at the hospital. Scott testified as follows: And I ask Mr. Peters-Mr. Peters didn't say any- thing-I ask him, you know, at the time, if he was for the union. And was he going to be able to vote. And he said he was not for the union. He didn't know if he was going to be able to vote. And he also stated that everything he had worked for he had gotten on his own. And he said unions could make it hard on you. Ernest Peters did not testify. Discussion I shall credit Yolanda Scott's testimony regarding her conversation with Ernest Peters that is unrebutted. Conclusion The complaint alleges that Ernest Peters threatened to make work harder on an employee for supporting the Union. The testimony of Yolanda Scott fails to establish such a violation . I note especially significant the fact that Scott initiated the conversation -about the Union with Peters by asking Peters if he was for the Union. Peters' position was such that neither he nor Scott knew wheth- er he would be eligible to vote as an employee. There- fore, even though Peters was stipulated to be a supervi- sor he was a low-level supervisor . His response to Scott's question was limited to the scope of her query . Although the comment "unions could make it hard on'you," could imply a threat, it seems more in, line with Peters response to the Scott question (i.e., his feelings concerning the effect it may have on him and not the possible effect on an employee). I find that statement is innocuous. I. Larry Betz Warner Wilson testified that he discussed the Union with Larry Betz in either July or August 1980. Wilson testified that Betz said, "He hoped the Union would win 204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and come in." Wilson replied, "Well, don't worry; you know, they are going to do it. They are going to win." Subsequently, in mid-February 1981, according to Wilson, he had another conversation with Betz in the laundry at the hospital where Betz told him, "Warner, you better watch yourself." Wilson asked, "What do you mean?" and Betz stated, "Well, they are out to get you- they are out to get your job." Wilson replied that, "as long as I do my eight hours and come to work there is not too much they can do about it; and if they harass me I know where to go." Betz stated, "Well, just watch yourself" Wilson testified that there was no mention of the Union during that February conversation. Larry Betz denied that he ever told Warner Wilson that Wilson had better watch himself because the hospi- tal was out to get him because of his union activities. Discussion I was generally impressed with Warner Wilson's testi- mony on both .direct and cross-examination. Wilson was subjected to lengthy questioning and his response was usually clear without indication of reservation. On two occasions, Respondent's counsel cited apparent conflicts between Wilson's testimony and his pretrial affidavit, but in each of those instances Wilson's explanation appeared candid. Regarding his second conversation with Betz in consideration of whether Wilson fabricated that testimo- ny, I note that Wilson testified that Betz did not mention the Union-even though it was obvious that, had Betz coupled his warning directly to Wilson's union activity, the incident would have significantly benefited Wilson's discrimination case. That fact tends to indicate that Wil- son's testimony was not a fabrication. Betz, on the other hand, did not impress me with his demeanor. He appeared evasive and undecided especially when testifying about his knowledge of Wilson's union activity. I find Wilson to be a credible witness and I credit his version of the conversations with Betz. Conclusion In view of the close proximity to the union organizing campaign; Wilson's' outspoken queries at the time of Al- exander's, group meeting (see above under Alexander); the warning from Alexander to Wilson that Wilson must refrain from supporting the Union; and Wilson's Febru- ary 20, 1981 layoff, it appears obvious, and I find, that Betz was threatening Wilson with loss of job because of Wilson's union activities. The complaint alleges that Betz violated -Section 8(a)(1) by telling an employee that he had better watch himself because of his union activities. I find that'Wilson's testimony, which I credit, proves that allegation: J. Era McRae Former employee Mary Ann Hickman testified that she had a conversation with Era McRae on October 20, 1980, at the hospital. Hickman's testimony in that regard was as follows: October 20, 1980, I went to Era McRae to see about changing my days to, attend a friend's funeral in New Orleans. And we got that straight. And after that she say: Now may I talk to you. And she say: I know you heard about-I know you heard about what is going on about the union. I said: Wait a minute: Well, I've been out sick for a while, about a month and a half. And I don't know very much about what's going on. She said: Well, let me tell you about it. She said: If we had a union in here we wouldn't be able to talk like we are doing now. You wouldn't be able to talk about schedules. And then she said you might be bargaining with your benefits. She say: When they sit down to bargain they don't mean that the General has to agree with what they ask for. And after that she say you could lose your benefits. Era McRae testified that she did not recall calling Mary Ann Hickman into her office about October 20, 1980, and she did not recall telling Hickman I know you heard about what was going on about the Union. McRae testified that she did not recall ever telling Hickman that if we had a union in the hospital that we would not be able to talk like we are doing now and that you would not be able to talk about schedules or that they would be bargaining about your benefits. She also indicated that she did not recall ever telling Hickman that when they sit down to bargain that they do not mean that the "General" has to agree with what they ask for and that the employees could lose their benefits. Discussion I was impressed with Hickman's- demeanor. In regard to the alleged conversation with Era McRae, Hickman's testimony evidenced a clear recollection. Although Re- spondent -examined her pretrial affidavit, no conflicts were evidenced between her testimony at hearing and the affidavit regarding her conversation with McRae. Moreover, several matters were mentioned by Hickman that could have been, but were not, disputed by docu- mentary evidence. For example, Hickman testified that she went to McRae on October 20, 1980, to change "her days to attend a friend's funeral in New Orleans." Also, Hickman testified that she had been out sick before her conversation with McRae,and, for that reason, she knew little of the Union. Obviously, if Hickman was mistaken, Respondent's records may have shown the mistakes. No documents were offered showing that McRae did not ap- prove Hickman changing "her days" around October 20, nor was it shown that Hickman was not out sick before October 20. On the other hand, Era McRae's testimony regarding the alleged conversation with Hickman was vague. In fact, McRae admitted that she did not recall whether she talked with Hickman on October 20. I find that admis- sion significant because, as noted above, McRae had at- tendance records available that may have prompted her recollection. McRae did admit talking, to employees about the Union in the fall and early winter of 1980. BATON ROUGE HOSPITAL - 205 McRae testified that she had been instructed by Director of Nursing Joyce Burkeen to tell employees how the hospital felt about the Union. McRae also testified that she had approximately 175 employees "under her" and that she would not recognize Mary Ann Hickman if she saw her. Against that background, I find that Hickman's testi- mony should be credited. Conclusion The complaint alleges that McRae created an impres- sion of surveillance of the employees ' union activities and threatened an employee that employees would not be allowed to discuss scheduling changes with supervi- sors if the Union was successful in organizing the em- ployees. I find nothing in Hickman's testimony that would sup- port my finding that McRae created an impression of surveillance. Her comment to Hickman was simply, "I know you heard about what is going on about the union." The evidence proved that the organizing efforts were oftentimes open, with little or no effort being made to conceal those activities from supervision . Therefore, I cannot find that McRae's comment had the tendency to create, in Hickman's mind, the impression that Respond- ent was engaged in efforts to unlawfully observe the em- ployees' union activities.- However, McRae's comments clearly imply that selec- tion of the Union would remove the employees' privilege of resolving scheduling problems with their supervisors. Hickman was talking with McRae with an object of doing just that, i.e., changing her schedule to attend a friend's funeral, and McRae's comments included the threat to such actions would not continue if the Union was selected. See J. P. Stevens & Co., 245 NLRB 198 (1979); Tipton Electric Co., 242 NLRB 202 (1979); Sturgis Newport Business Farms v. NLRB, 563 F.2d 1252, 1256, 1257 (5th Cir. 1977); Two Guys Discount Dept. Stores, 242 NLRB 1139 (1979). version and she also admitted reporting the incident to higher supervision. Because Lewis obviously found the incident an unpleasant one, I am convinced and find that her recollection remained vivid. Therefore, I credit her account of the incident. Conclusion I see nothing coercive in Eva Lewis' comment to Susan Quiett. It appears to constitute nothing more than a normal reaction without accompanying threats or inter- rogation. Therefore, I find , that no violation occurred on this occasion. L. David Frank Robertson Former employee Jacqueline Jones testified that she had a conversation with Robertson at the hospital during January 1981 . Jones testified: OK, he approached me, he said , Jackie, could I speak with you for a moment? I said, yes. He said, we supervisors are on a campaign at this time and asking those how do we feel about the union. I said, what do you mean how do I feel about the union? He said, well, some unions are good, some unions want you for your dues and some unions can really help you. He started talking about this place he once worked at which was called Payne and Keller. And he said that at the time he was working for them they were on strike. They tried to get the union into that.' And I said , well, my father worked at Payne and Keller but I never heard him speak of a strike. And that time he said, well, he may have gotten hired during that strike time . And he said as far as he's concern they never got what they wanted, even though they had strikes. Robertson denied that in January 1981 he went to Jackie Jones and told her that "We supervisors are on a campaign to find out how you feel about the union." K. Eva Lewis Susan Quiett testified that as she was handbilling for the Union on December 7, 1980, across from the new parking lot, several supervisors came out of the hospital and one, Eva Lewis, approached and asked Quiett if she knew what she was doing. Quiett replied , "Yes." Lewis walked away, came back, and asked again if Quiett knew what she , was doing. Quiett replied, "Yes," and Lewis went into the hospital. Housekeeping Supervisor Eva Lewis admitted that on an occasion when she was leaving the hospital Susan Quiett tried to give her a union leaflet. Lewis testified that she told Quiett, "No, indeed; I don't want this Susan. And you don't know what you're doing ." Lewis then went back into the hospital to report the incident to her supervisor and as she walked away Quiett repeated what Lewis said to her in a "sarcastic way." Discussion I found Eva Lewis to be a credible witness. She, admit- ted the above incident in substantial accord with Quiett's Discussion Although David Robertson denied telling Jones that supervisors were on a campaign to find out how employ- ees felt about the Union, he admitted he was instructed to discuss the union campaign with at least five employ- ees. Robertson did not recall what those instructions in- cluded. He testified he was , not instructed concerning asking employees about their union sentiments. In view of Robertson's admissions, and in the absence of an explanation of what he actually told the employees he contacted regarding . the union campaign, I credit Jones' testimony. Her testimony appears logical in view of Robertson's admissions ` and I was impressed with her demeanor. Conclusion The complaint alleges that Robertson unlawfully inter- rogated an employee about her union sentiments. Robertson's comments served two purposes, they alerted Jones that supervisors were systematically inves- 206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tigating employees' union sentiments and they served to question Jones concerning her feelings about the Union. When considered against the background of other 8(a)(1) activity both at the time of the Robertson-Jones conver- sation (January 1981) and before, I find Robertson's com- ments constitute illegal interrogation as alleged. M. Loren Beard Mary Ann Hickman testified she attended a meeting conducted by Beard and a gentleman Hickman did not know around mid-January in a small conference room at the hospital. On direct examination, Hickman testified: Mostly in that meeting Ms. Beard was doing most of the talking. And she told us that the union could call us out on strike. And they could get someone off the street to come and to work. You wouldn't be drawing a paycheck; you wouldn't be-you wouldn't have any benefits. And you wouldn't be able to draw unemployment. And after the strike was over that didn't mean that they had to call us back to work. They wanted us to-they wanted us to vote, but they wanted us to vote no because Baton Rouge General didn't need the union. And then she told-then she told us that when they sit down to bargain they start off with a blank sheet of paper and that didn't mean that the General had to agree with them-what the union asked for. And said that we could, when they sit down to bar- gain, we could lose-we would lose our benefits such as sick leave, vacation, so on. And then she told us about a hospital in Lake Charles that-that had' got rid of a union. And she told us about-they had clippings about other places-about strikes. And then she told us that all the union wanted was our money. That we'd pay like $10.00 a month union dues-from 100 to 120 thousand a year in dues. And that was mainly about all that conversa- tion. On cross-examination, Hickman admitted testifying in her pretrial affidavit to' the Regional Office that Beard told the employees in the meeting: Things might go up or they might go down. You might be bargaining with your benefits. They might promise you this or that; that didn't mean that the General is going to give it to us. And when they sit down to bargain with we might lose our benefits. Former employee Lily Cato testified that she attended a meeting conducted by Beard in a conference room about January 22, 1981, along with about 15 employees. Her testimony was as follows: Well, mostly she was talking about the union-if the union came in-if we got a union into the hospi- tal it would go but on strikes. And these strikes would cause us to lose our jobs. And, you know, and if, you know, we didn't lose our jobs, and if we did have a union that we would have to pay union dues. And also, you know, that all the benefits that the hospital had given us that, you know, we would lose that and would start from, you know, start from the beginning. Q. What would you have to start over from the beginning with? A. Well, all the benefits that the hospital had given us, you know, that we' would, you know, have lost all our benefits that we already had and then would start all over. Q. Was the subject of bargaining brought up in the meeting? A. Bargaining? Q. Bargaining between the company and the union. Was that discussed at the meeting? A. I think this is what she was really talking about, you know, because like when she was saying that if the union did get into the hospital then any- thing that, you 'know, that we would ask for, you know, the hospital would say no. And lots of times could have lost your job. Q. All right. Do you recall the subject of strikes being discussed at the meeting? A. Really, you know, really, I mean, I didn't- you know, really I didn't-really, I just was in the meeting, you know, to see what was the discussion about. But, like I said, in the beginning it was basi- cally, mostly what she talked about, strikes. Q. Uh-huh. - A. You know, what affect strikes would mean to us. On cross-examination, Cato admitted that Loren Beard made the following statement during the above confer- ence: Would you like to see a copy of the union contract in hospital if the union should win an election here? Let me show it to you-and she would hold up a blank piece of paper-there's nothing on it. If the union should win the election here, and we don't believe that's going to happen, but just assume for a moment that it did, the hospital would be obligated to bargain in good faith with the union. That is all. We would do that bargaining with the intention of reaching an agreement. Although Cato admitted Loren Beard made the above statement, she denied that Beard held up a blank sheet of paper. Loren Beard admitted giving group talks to employees at the hospital. However, she denied that any of those talks occurred in January 1981. Beard, along with other witnesses for Respondent, testified that the talks began in February 1981. Beard admitted that she discussed what could happen to benefits during negotiations. She testi- fied that she followed the text of the speech. She testified that she described that bargaining would start from a blank piece of paper-the hospital would bargain in good faith but the bargaining would start from zero. Beard stated that she conducted a question-and-answer BATON ROUGE HOSPITAL 207 session during her group talks and, of course, the an- swers were not prepared beforehand. On cross-examination, Beard testified that she told the employees that anything the employees got would be bargained for-they could either get more or less than they had at the time. She denied that she told the em- ployees that there would probably be strikes if the Union came in. Instead, according to Beard, she told the em- ployees, "there was a possibility" of strikes. She also ad- mitted telling the employees that there was a possibility of physical harm and a possibility that they could be re- placed if there was an economic strike. Discussion Again, as in many cases discussed above, I note the at- tending employees' testimony is in substantial accord with the written text of the first of Respondent's series of speeches. The testimony of Mary Ann Hickman appears in line with the speeches concerning both the issues cov- ered and the actual language used (i.e., Hickman recalls the speech included references to what could happen al- though Cato recalled predictions that certain disadvan- tages would occur). I find, in line with my previously stated reasons, that the speech was given by Beard in accord with the writ- ten text. Conclusion See below regarding findings on the speeches. Trosclair's recollection was correct because the alleged comments by Caillouet were specifically directed toward learning about employees' activities. With that back- ground, I am convinced and find that Trosclair's above- mentioned testimony should be credited. Conclusion The complaint alleges that Caillouet's comments con- stituted illegal interrogation. It is noteworthy that Caillouet's conversation occurred around the same time that Supervisor David Robertson advised employee Jacqueline Jones that the supervisors were on a campaign to determine how Respondent's em- ployees felt about the Union. Additionally, along the same line, Caillouet admitted attending supervisory meet- ings where the estimated union strength in the various departments was discussed. Those facts, which I also considered in making my credibility findings, would have the tendency to support a finding that interroga- tions have a coercive affect. In the case of Caillouet's conversation- with Trosclair, Trosclair was not only questioned but she was also advised to inform the super- visor in charge of anything she learned about the union campaign. That comment places the employee in a posi- tion of either reporting her knowledge or running the risk of Caillouet discovering that the employee was hold- ing out important information. I am convinced and find that Caillouet's comments constituted illegal interroga- tion. N. Gayle Caillouet Former employee Shirley Trosclair testified to a con- versation with Gayle Caillouet around January 1981 at the hospital. Trosclair stated Salains, the assistant super- visor, was also present. Trosclair testified she was asked if she had heard of any union organizing in the hospital. Trosclair testified she replied no and she was then told, "Well, if you hear anything come and contact me in charge--Ms. Caillouet." Trosclair said that Caillouet told her "Don't talk to anyone outside, just come to them and talk." Gayle Caillouet denied asking Shirley Trosclair if she had ever heard of any union organizing at the hospital and that she told Trosclair that if she heard anything to contact her. However, Caillouet admitted that she tried to talk to all her employees about the Union and that she told her employees that she wanted to tell them facts about the Union and this Union in particular. Caillouet admitted attending meetings with supervisors during which the estimated strength of various departments re- garding employees' union support was discussed and it was her recollection that the strongest departments for the Union included housekeeping and nursing services. Discussion Although Caillouet denied the specific allegations of Shirley Trosclair, Caillouet admitted she tried to talk to all her employees about the Union. Moreover, Caillouet admitted attending supervisory meetings where the Union's strength in various departments was discussed. Those admissions lend strength to the likelihood that 0. Nellie Guilbeau Former employee Ruth Stevenson testified' that she was involved in a conversation with Guilbeau dining the first week of- February,1981. Stevenson placed that con- versation in the coffeeshop on the fifth floor of the hos- pital. She said other employees including Elizabeth Day, Fanny Griffin, Georgia Payne, and Nancy, the secretary, were also present. Stevenson testified as follows: Ms. Guilbeau said she would like to tell us about the union. She said the union was bad and she said in her hometown one year a union went on strike and the people didn't have food to eat. Some lost their cars and home. And she said if we had a union we wouldn't be able to work overtime, adjust the schedulle, or to come to her with our problems or complaints. Q. Was the topic of jobs mentioned in the con- versation? A. Yeah, she said that we would lose our jobs while the union was out on strike. And we'd be re- placed by, you know, other employees. On cross-examination, Stevenson admitted that she tes- tified in her pretrial affidavit as follows: Guilbeau said she would like to tell us how she felt about the union. She said that unions was bad. That in her hometown one year the union called a strike and the people didn't have food to eat. Some lost their' homes and their cars. Guilbeau said that 208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD she-Guilbeau said that if we went on strike we wasn't guaranteed our jobs once the strike was over and we would be replaced. Guilbeau said, for instance, if we got the union we would be-wouldn't be able to work overtime, adjust the schedule, or come to her with our prob- lems or complaints. Nellie Guilbeau was called by Respondent and her tes- timony regarding the allegations of Ruth Stevenson was as follows: Q. Did you ever tell this group of employees, and more specifically Ruth Stevenson, that the union was bad? A. No. Q. Did you ever tell these employees, including Ruth Stevenson, that if we have a union in the hos- pital that we wouldn't be able to work overtime, adjust schedules, or to come to you with their prob- lems and complaints? A. If I did speak to them on this issue, which I'm sure I probably did, it's my understanding on all three of those -issues that if the union came into the hospital their time schedules, their grievances, their overtime would be negotiated between management personnel and our hospital and a union representa- tive . And that was my opinion. Q. Is that what you told those employees? Or is that what you told employees in general? A. In general. That's my understanding. And when this would come and I was asked that's what I would say. Discussion Although Guilbeau denied telling Stevenson that the Union was bad, she admitted advising Stevenson and other employees that unionization could affect their ben- efits. Moreover, Guilbeau did not deny Stevenson's alle- gation that Guilbeau threatened her with loss of jobs while the Union struck. I shall credit Stevenson's version of the Guilbeau conversation to the extent of her pretrial affidavit testimony that appeared more logical than her testimony at trial. Conclusion The complaint alleges that Guilbeau threatened em- ployees that should the Union be successful overtime would be eliminated, work schedules would not be ad- justed, and employees would not be allowed to discuss complaints and problems with supervisors. The credited evidence (i.e., Stevenson's pretrial affida- vit testimony that was corroborated by her at the hear- ing) shows that Guilbeau told approximately five em- ployees during early February 1981 that "[i]f [the em- ployees] got the union [the employees] would be- wouldn't be able to work overtime, adjust the schedule or come to her with [employee] problems or com- plaints." Again I note that these comments, like those from other supervisors, occurred around the same time that Respondent was engaged in other 8(a)(1) conduct. The credited evidence clearly reveals that Guilbeau expressed the threats alleged by the General Counsel and I so find. P. Joann Lappin Former employee Minnie Coleman testified that she was called into Lappin's office in late January or early February 1981. Coleman testified that in addition to Lappin, Lappin's secretary and the assistant supervisor were present for portions of the conversation . Coleman testified her conversation with Lappin was as follows: She proceeded to tell me that, Minnie, you know that the union is coming into the hospital. And I said, no I don't know. The only thing I know is what you all tell me and the pamphlets I receive in the mail. And she proceeded to say that the union was not good for me and I wasn't a person for the union. And I said-so after that she told me that we would be-the hospital would run with us or with- out us. And I said that I didn't know anything about that. So she proceeded to tell me that they would work night and day to keep the hospital going if we go out on a picket line or anything. And they would hire new people to replace us. And we would be-and then she proceeded to tell me that some of us would be laid off because of the union. And I asked her-then she said, how do you feel about the union? And so I proceeded to tell her, I don't know how I feel about the union because I am only hearing one side of the story , that's what you all telling me. And I said, well, why don't you all let the union come in and have a debate and let us hear the union's side of the story; and then we can decide. And then she proceeded to tell me that they wasn't going to let the union come to the hospital but we got out and found time to seek the union, so get out and find time to see what it was all , about. Then she proceeded to tell me to go ahead on back to work. Joann Lappin denied that she ever had a one-on-one conversation with Minnie Coleman regarding the Union. However, Lappin admitted that she had conversations with nurses aides, and especially with Minnie Coleman, when other nurses aides were present . Lappin admitted talking to the employees regarding the Union and telling the employees that the hospital would work night and day to keep the hospital going if the employees went out on the picket line. Lappin denied telling Coleman or any other nurses aides that the Union was not good-was not good for her and that she was not the person for the Union. Lappin denied threatening Coleman that she would be laid off because of the Union or questioning Coleman on how she felt about the Union . Lappin testi- fied that Coleman never suggested to her that the Union be permitted to come and debate their side of the story. Lappin denied ever telling any employee that ,' if the Union successfully organized the hospital, union mem- bership would be mandatory. BATON ROUGE HOSPITAL 209 Discussion I was impressed with Joann Lappin's demeanor. More- over, she appeared to testify candidly on both cross and direct. She admitted discussing the Union with Minnie Coleman although she denied it was a one-on-one con- versation as related by Coleman and she denied some of the contentions by Coleman. I was also impressed with the openness with which Lappin responded to the Gen- eral Counsel's questions about supervisory meetings re- garding the Union. I shall credit Lappin's version of her conversation with Coleman. Discussion Despite his denial, Robert Mancell's testimony regard- ing the contents of his conversations reveals that he did interrogate employees concerning their "opinion" or "view point on the union." In view of that admission and my observation of Bertha Smith's demeanor, I shall credit her version of the conversation. Even though Smith was discharged by Respondent for alleged miscon- duct, she appeared to answer Respondent's questions about her discharge, as well as questions about her con- versation with Mancell, candidly. Conclusion I find nothing in the credited version of the Lappin- Colem°m conversation that supports the General Coun- sel's allegations of impression of surveillance, threat of layoff, interrogation, and a threat that union membership would be mandatory should the Union win. I recom- mend dismissal of the allegations relating to Joann Lappin. Q. Robert Mancell Former employee Bertha Smith testified that she was approached by Robert Mancell in one of the X-ray rooms on December 10, 1980. He asked me had I heard whether they was trying to organize a union at the hospital. And he asked me how did I feel toward the union. I told him a union wouldn't be such a bad idea. And he went on to say that his son participated in a union and he said if they-if they get a union and they go out on strike that I might not get my job back. , Robert Mancell denied ever having a conversation limited to him and Bertha Smith during which the Union was discussed. However, Mancell admitted discussing the Union with a group of employees that included Bertha Smith. Mancell testified that he did not direct any question directly to Smith. On cross-examination, Man- cell testified regarding his union conversations with the employees as follows: I would say, what is' your view point on the union. What is your opinion? That was at this par- ticular meeting-the one and only-that I had with them. And I just wanted to hear what they had to say. Not to ask whether they were going to join or not, just if they had an opinion. Everybody is sup- pose to have one. Mancell also admitted approaching two other employ- ees, Will Chapman and Thomas Jackson, and saying basi- cally the same thing as above to those employees. Man- cell denied he ever told the employees that if the Union came in the employees would go on strike. Instead, he testified that he told the employees that "[t]hey might have a strike." Conclusion In line with my findings above, and in consideration of the credited testimony of Bertha Smith, and evidence of other violative conduct of Respondent during that same period of time, I find that Robert Mancell illegally inter- rogated employee Smith about her and other employees union activities. R. Edward Silvey Former employee Willie Freeman testified that he had attended an employee meeting at the hospital in the early part of February 1981, conducted by Silvey. Freeman testified: At this meeting Mr. Silvey said that the union can cause a lot of trouble. The union causes strikes and violence. We would be out without any pay. The union would set up picket lines and others would come across the line; this would be bad. He also added that we would be out without pay. All we would have would be bills. And he said have the union sign a statement as to what they can guarantee you. He held up a blank sheet of paper and said this is where you start with the union. He said the union can't force Baton Rouge Gen- eral to do anything. Such as your raises ,and so forth. Then he had some newspaper clippings also he would like for us to read. I didn't read any of them. This meeting lasted about an hour, close to that. He said that-that Baton Rouge General would hire other people and if they could come into the hospital it would cause trouble. And strikes would, you know, have us out with no pay. Edward Silvey admitted that he was one' of the speak- ers during the group meetings to employees regarding union organization . Silvey was asked if he told the em- ployees that if the Union was successful that bargaining would commence from scratch. He responded that he did not believe he said it like that but that he held up a piece of paper and said this is a blank piece of paper and that we would bargain in good faith and that benefits or wages could go up or down or they could remain the same. 210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Discussion Willie Freeman's testimony appears to follow the gen- eral scope of issues covered in the written text . As in the situations note& earlier, I am convinced, and find, that Silvey's comments during this meeing were in accord with the written text. Conclusion I shall consider Silvey's presentation, along with ad- dresses by other supervisors below. S. The Group Meetings 1. The first series of group meetings The record evidence reveals that the unfair labor prac- tice, contentions regarding the group meetings when speakers addressed groups of employees-(other than those indicated above where prepared texts were not used)-involved the first of Respondent's several speech- es. That speech was used in meetings beginning on Feb- ruary 9, 1981. As indicated above, I have credited evidence showing that the prepared text of that first series of meetings, which was received in evidence, was read to employees at the group meetings. A reading of the text reveals a clever antiunion speech showing that Respondent was strongly opposed to the union efforts of its employees. In fact,' the speech clearly states that was Respondent's po- sition. However, no evidence was offered to show that any of the information revealed in the speech was untrue. The speech was carefully constructed to show em- p1oyees'the' dangers that may result from unionization. After identifying the object of the talk, the text states Respondent's position as being "100 percent against having a union in the Hospital." The text then summa- rizes the procedure for an NLRB election. Next 'the text deals with the alleged union promises and counters with Respondent's version of what will occur if the Union wins the election, by asking, "Will you like to see a copy of the union contract in the Hos- pital if the union should win an election here?" The speaker holds up a blank sheet of paper, which is shortly followed by the following, inter alia: If the union should win an election here-and we don't believe that is going to happen, but just assume for a moment that it did-the hospital would be obligated to bargain in good faith with the union. That is all. We would do that bargaining with an intention of reaching an agreement. You should know, though, that there would be no auto- matic wage increases, no automatic benefits im- provements, no automatic policies, no automatic any- thing else. We would start right from this blank sheet of paper, and'not one word, not one sentence, not one paragraph wohuld go on that sheet of paper unless the hospital and the union agreed that it should be on there. Bargaining begins at the zero point, and everything which you currently have-your paid holidays, your wages, your vacations, your hospitalization in- surance, your retirement plan-everything would go on the bargaining table and be subject to the give and take of bargaining. Under the law, the only thing that the Hospital would be required to do should the union win the election, is to sit down and bargain in good faith over your pay and your jobs. We would do that. A union win, however, would mean an automatic in- crease in nothing! Here is the proof of what I am saying (hold up copy of Government leaflet). Let me read the section which is circled in red. (You read indicated phrase.) That's the law and we would obey the law. Before you think about voting for the union, you need to know how bargaining works. You should un- derstand that bargaining can be cold-blooded and im- personal. Nothing is automatic about bargaining be- tween a hospital and a union. No one knows what will happen or what will come out of bargaining. The union has made a lot of promises already and will probably be making more about their getting you more pay, more benefits, and that you will not have to work so hard. That's the name of the game with unions-promises. Under the law, there is ab- solutely no limit on how extravagant promises can be-the sky is the limit! The cases have customarily found that threats to bar- gain from scratch, or from a blank sheet of paper, do not violate Section 8(a)(1), when the context of the statement shows the comments relate to the give and take of bar- gaining and when it is revealed that benefits may go up or down during negotiations. I find that to be the case here. General Electric 'Co., 246 NLRB 1103, 1107 (1979); Delchamps, Inc., 244 NLRB 366, 372 (1979); Rapid Mfg. Co., 239 NLRB 465, 471, 472 (1978). Following the above, the speakers cited cases indicat- ing that an employer may inform its employees that bar- gaining would have to begin at the zero point and that bargaining may actually result in reduced benefits. Subsequently, the speaker asked what may the Union do if its demands are rejected during negotiations and he responded that the "[s]trike is the only weapon." The speaker then points out, inter alia, that strikers do not get paid; that, in Louisiana, strikers do not get unemploy- ment compensation; and that strikers could lose their jobs because Respondent has the right to replace strikers with new employees. In considering this portion, I noticed that the speaker did not specifically contend that strikes were inevitable when a union is selected. Rather, the text indicates, inter alia: What would happen if we said NO to the union's demands? What could the union'do? What, would the union do? What could the union do to try to force us to give in to their demands. There's only one thing that the union could do to try to force us to give in to their demands-and that would be call you out on strike. The strike is the only weapon that BATON ROUGE HOSPITAL 211 the union has to try to force the Hospital into giving in to its demands-and you would be the union's ammunition. The above statement may constitute an exaggeration. Although the power to strike, or the strike itself, may be one of the Union's strongest weapons, it is not the "only weapon" as indicated in the text. However, I find that statement does not constitute misrepresentation in view of the strike being the most likely recognized weapon available to labor organizations. Where, as here, the speech does not stress that a strike is inevitable, no viola- tion is found (see Tipton Electric Co., 242 NLRB 202 (1979)). Moreover, an employer does not violate the Act by telling employees they ' will not receive pay during a strike and that it has the right to replace economic strik- ers.7 (See discussion in Puritech Industries, 246 NLRB 618, 622 (1979).) The speech then deals with the examples of strikers losing out-examples of strikers being replaced at work during a strike. The text then addresses itself to violence in strikes with the statement, "Unfortunately, along with strikes very often comes violence." This is followed by specific examples of death and serious injury occurring during strikes. Subsequently, the text advised the employees that it is difficult to remove a union once employees select one, but subsequently decide they made a mistake. The speech then closes with the following: Mir. Kirkpatrick and Mr. Sawyer asked that you dis- cuss this important matter among yourselves and with your supervisors. If any union pushers ask you to vote for the union, demand a written, signed, nota- rized guarantee that you won't lose your job-you won't be involved in a strike or in strike violence. Get it in writing-demand proof. You shouldn't take a chance on the outside union organizer and their strike-happy union. They have members out of work now and they are simply looking for some- one-you-to make up the money which those out of work people are no longer paying. Make no mis- takes-this whole thing is nothing but a big money deal for the union and the union's bosses. They plan on taking over and you are right to figure a hun- dred thousand dollars from you, each and every year, if they can get in here and can get their hands in your pockets. Well, that is all we have time to cover today. But- if you have any questions or comments about what was covered, feel free to ask those questions or voice those comments. We hope we have cleared up some of the mysteries surrounding what the union can and cannot do. If anything later, you are unsure of something we have covered or that the union has claimed-we encourage you to ask your 7 The text shows from its contexts that it was addressing economic strikes-the context indicates the speaker is referring to a strike resulting from rejection of the union negotiating demands supervisor or come by and see another member of management . We want to be sure you get all the truthful answers to your questions before this election. Are there any questions? I find the above speech troublesome. It comes close to speeches found illegal by the Board and courts. Never- theless, I am constrained to find that no violations were proved. The speeches do not advise the employees of the inevitable consequences of unionization. It does, with a heavy hand, alert the employees to some of the most bla- tant examples of what has occurred during other union campaigns. However, even in consideration of the entire text against the background of unfair labor practices found herein, I am unable to find anything that ventures into the area of illegal threats or coercion. Reliable Mfg. Corp., 240 NLRB 90, 100 (1979). 2. Improved benefits The General Counsel alleges that Respondent violated Section 8(a)(1) by changing from a retirement system that, among other things, required employee contribu- tions to one requiring no employee contributions, and by changing its policy regarding employee parking in its garage to permit the employees to park free during the union organizing campaign. There appears to be no dispute regarding the facts. Re- spondent learned of the union campaign on or before November 24, 1980, when the Union wrote Respondent advising it of the campaign and naming certain employ- ees on the organizing committee. By notice to all employees dated December 2, 1980, Respondent advised that effective with the pay period starting December 14 there would no longer be a charge to employees for parking in the parking garage. By notice to all employees dated January 12, 1981, Re- spondent advised that "[e]ffective January 1, 1981, the Board of Trustees has approved a retirement program which is fully funded by the Hospital." On January 15, 1981, the Union filed its representation petition. Employer's are generally found to violate Section 8(a)(1) by announcing improved benefits during an elec- tion campaign unless the evidence reveals that the em- ployer would have announced and granted those im- proved benefits even in the absence of the union. Tek- form Products Co., 229 NLRB 733, 742, 743 (1977). 3. The pension plan Prior to January 1, 1970, Respondent, along with two other hospitals in Louisiana, was a Baptist institution and its retirement plan was administered by the Southern Baptist Convention. Even though Respondent ceased being a Baptist institution in 1970, the Southern Baptist Convention continued to administer its retirement plan. The Employment Retirement Security Act of 1974 (ERISA) granted certain exemptions to churches. Due to Respondent's unique position as a former institution of the Baptist Church, with its retirement plan currently ad- ministered by that church's governing, body, questions, arose as to its entitlement to those exemptions. 212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD By an August 9, 1978 letter from the Annuity Board of the Southern Baptist Convention's (Annuity Board) general counsel, Respondent was notified that the Annu- ity Board was seeking clarification from Internal Reve- nue Service and the Department of Labor, concerning its entitlement under the Internal Revenue code as a tax shelter annuity, program . That letter advised that similar church plans had obtained favorable rulings from the government agencies. By its letter to the Southern Baptist Annuity Board dated February 27, 1979, Respondent advised that it had learned that the two other Louisiana hospitals that were formerly Baptist institutions had withdrawn from the Annuity Board. The letter asked for an opinion concern- ing whether Respondent should also withdraw in light of decisions and problems regarding ERISA. The Annuity Board responded on March 8, 1979, by recommending that Respondent investigate withdrawal from the Annu- ity Board and advising that the ERISA questions had not been resolved. Minutes from committees under Respondent's board of trustees and letters to outside agencies, that were re- ceived in evidence, show further study, investigation, and consideration was given to the possible withdrawal of, Respondent's employees' retirement plan from the An- nuity Board during the period May 4, 1979, through De- cember 22, 1980. The unrebutted evidence indicated that during the above-mentioned period of time, more and more atten- tion was given to withdrawal from the Southern Baptist Annuity Board due to the -ERISA problems and due to the low interest rate received from the Annuity Board. Louis Champagne testified that Respondent was noti- fied of an amendment to ERISA effective September 26, 1980. That amendment clarified Respondent' s status. Whereas before the September 26, 1980 amendment, Re- spondent felt it may possibly "grandfather" under the ERISA exemptions as a former church institution, that amendment indicated that continued church exemptions were no longer possible for Respondent. Against that background, the personnel committee of Respondent's board of trustees was notified on Decem- ber 22, 1980, that retirement moneys would be placed with a private insurance company. By letter dated Janu- ary 2, 1981, Respondent notified the Annuity Board of its decision effective January 1, 1981, to change its retire- ment plan and place the funds with Union Mutual Insur- ance Company. Union Mutual submitted its plan to Re- spondent on July 10, 1980. The 'above evidence conclusively proves that initial events necessitating Respondent's change in the employ- ees' pension plan predated the union organizing cam- paign-by severalyears. Although some of the consequent events occurred after the Union first appeared, some of those material events, such as the September 26, 1980 ERISA amendment, were clearly beyond Respondent's control: Moreover, the actual plan that was adopted by Respondent was submitted on July 10, 1980. There was no showing that Respondent was aware of its employees' union campaign when it first considered Union Mutual's proposal. Moreover, the timing of Respondent's change appears logical in view of the above evidence. The funds held by the Southern Baptist Annuity Board exceeded $2 million. In view of the facts establishing that Respondent re- ceived Union Mutual's proposal in July 1980, and the ERISA amendments becoming effective September 26, 1980, I do not find that Respondent unduly delayed im- plementation to coincide with the union campaign. The January 1, 1981 effectuation of the plan evidences prompt and reasonable action under the circumstances regardless of the timing of the union campaign. The evi- dence is convincing, and I find, that Respondent would have implemented the new plan on January 1, 1981, in the absence of the union organizing campaign. There- fore, I find that the General Counsel has failed to prove a violation by Respondent in implementing the new pen- sion plan in January 1981. 4. Free parking Respondent opened its parking garage in August 1977. By notice dated August 5, 1977, employees were notified of parking privileges in the garage with fees at the rate of $6.92 per pay period. Through its news to employees publication, "The Vine," dated May 31, 1978, Respondent notified its em- ployees of a reduction in parking fees to ' $4.62 per pay period. Louis Champagne testified without rebuttal that by 1980 Respondent was providing free parking in the garage as an encouragement to the evening and night- shift employees to park in the garage as a security meas- ure. According to Respondent's comptroller, Lynn Lanoux, he learned that medicare was changing their at- titude regarding accountability of reimbursable parking cost. Funds were available to reimburse hospitals for parking of staff and employees as opposed to visitors. The attitude change affected whether the hospital could simply allot certain areas to staff and employees parking as opposed to the old method of accounting for the park- ing on an individual-by-individual basis. Against that background, Lanoux was directed in the summer of 1980 to investigate whether it was beneficial to Respondent to continue the system of charging certain employees park- ing fees or changing to a system that would provide for medicare reimbursement-(allowable as cost attributable to that percentage of patient care that was subject to medicare reimbursement)-for all or a portion of the parking cost. By memo to Respondent's president dated November 28, 1980, Lanoux advised that his study showed the park- ing garage could receive pro rata medicare reimburse- ment for staff employee parking of approximately $54,000 per year as opposed to fees currently collected from employees of $50,000 per year. Lanoux recom- mended that Respondent discard the procedure of charg- ing fees to employees and seek reimbursement from med- icare. Subsequently, Lanoux' recommendation was approved and the employees were notified of the change on De- cember 2, 1980. BATON ROUGE HOSPITAL 213 Again, as in the case of the pension plan, I note that Respondent's actions that ultimately resulted in 'free parking for the day-shift employees commenced before it had knowledge of the union campaign. The employees other than day shift received free parking in'the garage and Lanoux's study, which resulted in free parking for the day shift, all occurred before the union campaign. The evidence reveals that Respondent acted properly and in a logical fashion following Lanoux's November 28, 1980 recommendation. I find, under the circum- stances, that the facts demonstrate that the change in parking would have resulted absent the employees' union activities. Therefore, I shall recommend dismissal of the allegation. II. THE 8 ( A)(3) ALLEGATIONS, A. The Layoffs The complaint alleges that Respondent terminated or laid off employees Charles Hamilton , Ethyl Booker, Jac- queline Jones, Mae Ella LaCour, Susan Quiett, Ruth Ste- venson, Teresa Thomas, Lucille Wilson, and Warner Wilson because of their protected activities. The evidence conclusively proves, and the General Counsel concedes in' its brief, that Respondent's decision to lay off a substantial segment of its work force during February 1981 was motivated by economic . consider- ations. Due to a continuing decline in its patient census and its continuing inability to recruit and retain a suffi- cient number of registered nurses to support its employee complement, Respondent decided to lay off some 53 em- ployees from all departments including 4 employees in housekeeping, 1 leaderman ' in the laundry, and 20 em- ployees from nursing services. The evidence revealed that an acceptable level of staff-to-patient census was in the range of 3 .3 to 3.6 em- ployees per patient. In December 1980, Respondent was operating at the level of 4.5 employees per patient. Al- though some reduction in the number of employees had been achieved through normal attrition , it became appar- ent during early 1981 that a layoff ,would be necessary in order to reach an acceptable level of employees. In view of' the unrebutted evidence and the General Counsel's concession that the overall decision was not discriminatorily motivated, I find that Respondent's overall layoff action was not illegal.' The General Counsel does contend and I shall now consider, whether Respondent engaged in illegal conduct by selecting for layoff, among others, the nine alleged discriminatees. 1.. The nurses aides The General Counsel contends that of all the nurses aides selected for layoff, the following would not have been selected but for, their union activity: (1) Ethyl Booker, (2) Mae Ella LaCour, (3) Ruth Stevenson, (4) Teresa Thomas, and (5) Lucille Wilson. Vice President Edward Silvey testified regarding the need to reduce the number of nurses aides. In the spring of 1980., Silvey, in consultation with Tom Alexander, de- cided a staff reduction was necessary. It was decided that the reduction, which would be attempted by attri- tion, should involve 60 nurses aides. However, by late 1980, 108 nurses aides were still employed. The reduc- tion by attrition had been only partly successful. -Forty of the needed 60 reductions had occurred through attri- tion. In December 1980, Silvey, along with Alexander, decided it would be necessary to lay off 20 employees in nursing services, 18 nurses aides, and 2 operating room aides. Silvey advised the director of nursing services to select the employees for layoff based on job perform- ance. Joyce Burkeen was director of nursing, services at ma- terial times. Burkeen testified that on being advised by Silvey to select employees, for layoff, she discussed the aides' job performance with their supervisors and re- viewed all the, employees' personnel records. Through that initial process, approximately 40 employees were found to be outside the area of consideration for layoffs because of their good performance. Those 40 were there- upon eliminated from the selection process. Of the remaining , employees, Burkeen decided on a process of evaluating job performance on the basis of the employees availability at work. She elected to select those employees with the poorest absentee-tardy records. Each employee file was examined and a list established on the basis of the employees with the most absences and tardies over the past 1-year period. However, according to Burkeen, 3 of the top 20 were passed over and not se- lected for layoff. Those three included one employee that was out sick because she had contacted hepatitis at work in the hospi- tal and was drawing workmen's compensation benefits. Burkeen testified that she was advised that state law pro- hibited discharge of an employee because of illness that resulted in a workmen's compensation award. Another of the three was a nursing student working as a nurses aide. Her absences were frequent because of class conflicts. Burkeen testified that arrangement was made when the employee was hired and the hospital was in hope of retaining the employee on her graduation as a registered nurse-a critical job that the hospital had trou- ble manning and that contributed to the need to lay off nurses aides. Therefore, Burkeen elected to excuse that employee's absences for purposes of layoff consideration. The third employee passed over for layoff was an em- ployee that frequently volunteered to work back-to-back shifts and received a number of tardies when she took too long returning after working consecutive shifts-i.e., 16 hours. Burkeen excused that particular type of tardi- ness due to the strain of working consecutive shifts and having only 8 hours before returning the next day. In order to 'prevail, in view of my finding that the overall decision to lay off the employees in the nursing services was legally motivated, the General Counsel must now establish that either (1) the overall layoff se- lection process in nursing services was discriminatorily designed; or (2) the process was discriminatorily applied in such a fashion that Respondent was able to unfairly select the named discriminatees. Regarding item (1) above, the General Counsel offers no evidence showing that Burkeen's decision to select 214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees with the highest absentee/tardiness rates was discriminatorily designed. Obviously, other processes could have been used in measuring job performance, but no evidence was introduced illustrating that Burkeen's absentee/tardiness method was used because it provided a means to discriminate; nor was any other grounds of- fered on which I could find fault with Burkeen's- system. Burkeen testified that she resorted to the absentee/- tardiness procedure after examining the personnel files and determining the employee evaluations were not suffi- ciently reliable to use in that process. She stated that un- fortunately she discovered that personnel records were not "very well kept." Burkeen's absentee/tardiness system appears on its face to be a logical, although per- haps an inexact method of judging performance, i.e., an employee does not perform well when they are not on the job. Therefore, I find no basis to determine that the method of selection was discriminatory. Next, I must look to see if the system was discrimina- torily applied. Regardless of the apparent inequities involved in se- lecting an employee, perhaps a -longtime employee such as several employees involved, on the basis of her absen- tee and tardiness record, and regardless of the extent of the employee's union activity and other elements tending to show a prima facie case, I must conclude Respondent acted lawfully if the employee would have been selected under the Burkeen system absent their union activities (see Wright Line, 251 NLRB 1083 (1980)). I shall consid- er, in making this analysis, Respondent's union animus that has been illustrated through the supervisors' speech- es to' employees and the numerous 8(a)(1) violations that I have found herein. I am also mindful of the timing of the layoffs coming a little over a month after the Union filed its representation petition. Additionally, I am aware of the evidence showing that employees Ethyl Booker, Mae Ella LaCour, Ruth Stevenson, Teresa Thomas, and Lucille Wilson engaged in union activities. Three of the alleged discriminatees, Booker, LaCour, and Thomas were included on the Union's organizing committee list mailed to Respondent on November 24, 1980. Ruth Ste- venson handbilled for the Union at the hospital during early February 1981, and was allegedly seen by supervi- sion. The company knowledge element is weak as to al- leged discriminatee Lucille Wilson. There was no direct evidence showing awareness of Wilson's union feelings other than an alleged conversation involving Wilson and alleged Supervisor Bogen. However, the above facts establish to my satisfaction that the General Counsel should prevail if it is shown that the above alleged discriminatees were treated in a discriminatory manner. Obviously, regardless of animus, knowledge, timing, and employee union activity, no alle- gation - of illegal termination should survive absent a showing that the alleged discriminatees were treated with disparity. In the instant case, 18 nurses aides , were laid off during February 1981. Prior to that time some 40 other employ- ees from nursing services had been eliminated through attrition. Respondent proved that of those employees listed as members of the organizing committee in the Union's No- vember 1980 letters, 20 remained in Respondent's employ on May 7, 1981, the day of the NLRB election. Three of the remaining 10 from the organizing committee volun- tarily resigned before May 7. One member of the com- mittee was discharged for neglect on duty and that em- ployee was not alleged as a discriminatee. The six re- maining union committee members were included in Re- spondent's layoff. Three of the six were nurses aides Booker, LaCour, and Thomas. The remaining three were also alleged by the General Counsel as discriminatees (see below). As indicated above, the employees involved in Re- spondent's February 1981 reduction in force totaled 53 from all departments. Concerning the specific number of absences or tardies by nurses aides, counsel for the General Counsel was supplied with those records that she used in her Rule 611(c) examination of Director of Nursing Burkeen. There was no evidence offered showing that any of the five alleged nurses aides discriminatees failed to qualify for layoff on the basis of those absentee/tardy records for the year before the layoff. Therefore, I must find that the General Counsel failed to establish that former employees Booker, LaCour, Ste- venson, Thomas, and Wilson were treated in a disparate manner. It is well established that an employee does not receive immunity from personnel actions simply by en- gaging in union or protected activity. There must be a showing that the respective employee was treated differ- ently. Here, that element was not proven. I shall recom- mend dismissal of the allegations regarding those five al- leged discriminatees : International Computaprint Corp., 261 NLRB 1106 ('1982). 2. The housekeeping employees The General Counsel alleges that Respondent laid off employees Jacqueline Jones and Susan Quiett because of their union activities. Both Jones and Quiett were em- ployed as maids in housekeeping. Jones and Quiett were among the four maids laid off during Respondent's February 19, 1981 reduction in force. As shown above, the force reduction, which in- cluded a total of 53 employees, was found to have been economically motivated. The sole question remaining is whether, as the General Counsel alleges, employees Jones and Quiett were selected for layoff because of their protected activities. Bill Snider, hospital manager for the management-serv- ice charged with overseeing Respondent's -laundry and housekeeping department, testified that shortly after coming to the hospitalin April 1980 he advised Tom Al- exander that a reduction of housekeeping employees was necessary.- However, by December 1980, Respondent had reduced the housekeeping complement by only five employees through attrition. In February, with house- keeping remaining overstaffed, the head of housekeeping, Melda Pace, was advised to reduce the housekeeping force by four through layoffs. Pace, faced with an assignment similar to that of Joyce Burkeen in nursing, decided on a procedure of selecting those four employees with the largest number of discipli- BATON ROUGE HOSPITAL 215 nary offenses in their personnel records . The four select- ed were Susan Quiett ,and Sharon Thompson with five conferences8 each; and Jacqueline Jones and J. Tate with four and three conferences, respectively. A listing of the conferences among all housekeeping employees showed that no maid other than Thompson , who was laid off, re- ceived as many disciplinary conferences as alleged discri- minatees Quiett and Jones. a. Susan Quiets Susan Quiett's personnel ' file included reports on con- ferences with employee dated December 30, 8, and 7, 1979, and July 16 and May 28, 1980. However, none of the disciplinary incidents were alleged as violations.9 Moreover, the General Counsel does not, argue and no evidence was offered to prove that any of those discipli- nary actions were precipitated by Quiett 's union activi- ties. I make special note of that fact because the obvious concern dictated by an awareness that at ,least three of Quiett's conferences occurred after Respondent learned of Quiett's prounion position-i.e., on November 24, 1980, the Union notified Respondent that Quiett, among others, was on the Union's organizing committee. There- after, on December 7, 1980, and afterwards, Quiett en- gaged in handbilling for the Union near the hospital and her activity in that regard was observed by supervision. Two of Quiett's conferences occurred in alarming prox- imity to her initial handbilling activity . On December 7, the day she first handbilled, Quiett, along with four other employees, received a conference report from Supervisor David Robertson for overstaying their break. Neverthe- less, Susan Quiett's testimony removed doubt regarding the integrity of that incident. Although Quiett testified that she was not shown the conference report, she admit- ted that David Robertson "did demand we get up. He said that we had over stayed our break." The record shows that Robertson also conferenced the other em- ployees involved in that incident. On December 8, Melda Pace completed a conference report on Susan Quiett for "late 12 times, self--sick 9 times, absent 9 times, illness in family 15 times."10 When questioned about the December 8, 1980 conference report, Susan Quiett admitted the conference with Pace even though she testified that Pace told her the report would not go on the record if Quiett did not sign it." Moreover, it appears that this was not an incident where Pace arbitrarily selected Susan Quiett for absentee coun- seling. Counseling reports were offered for the four housekeeping employees laid off in February. All four e Disciplinary writeups were referred to as conferences 9 TheGeneral Counsel does allege as an 8(a)(3) violation that, begin- ning in 1 he first week of December 1980, Respondent changed Susan Quiett's work assignments because of her union activities . The evidence supports that allegation as shown hereafter. 10 The conference report covered the December 30, 1979, through De- cember 8, 1980 period. In addition to the above, the conference report showed, "maternity leave - January 26, 1980-April 8, 1980 Surgery leave: August 24, 1980-October 27, 1980." 11 Although I found Quiett to be a credible witness, I do not credit her testimony ,in this regard. It simply makes no sense that the supervisor would reward an employee because the employee refused to sign a con- ference report I am convinced that Quiett misunderstood what Melda Pace said on that occasion received counseling in December 1980 for attendance problems; Joann Tate on December 29, 1980; Jacqueline Jones on December 16, 1980; Susan Quiett on December 8, 1980; and Sharon Thompson on December 9, 1980,12 Likewise, concerning Susan Quiett's last , conference report before she was laid off, when questioned about the December 30, 1980 conference report on the condi- tion of her uniform, Quiett admitted the occurrence. Susan Quiett also acknowledged awareness of her ear- lier conference reports dated before her union activity- a verbal warning on July 16, 1980, and a warning for smoking dated May 28, 1980. The May '28, 1980 confer- ence was the only one of her five conference reports that was signed by Quiett. Despite Quiett's candid testimony acknowledging her, various conferences, I am deeply troubled by' their timing, especially ' when viewed against Respondent's proven animus, Quiett's very visible union involvement and Respondent's knowledge of that involvement, and the overall 8(a)(1) activity, and Quiett's direct involve- ment in some of that activity. Moreover, as shown below, I am convinced that Quiett was awarded more burdensome work assignments following Respondent's learning of the union activities 13 I am also mindful of various devices by which warn- ings may be unduly increased during a union campaign, but the evidence does not establish that occurred here. Nor was there evidence that Susan Quiett's conferences involved occurrences for which employees were not rou- tinely conferenced. The bottom line here, as in the case of the nurses aides, is that the evidence failed to prove disparity. There was no showing that the selection process was dis- criminatorily designed and there was no showing that Susan Quiett was discriminatorily disciplined on the five occasions that ' led' to her layoff. Regardless of my feel- ings of concern, I am not empowered to substitute con- jecture and suspicion for evidence. Regardless of the dif- ficulty of proof, the case must fail absent a showing of discriminatory treatment . (International Computaprint Corp., 261 NLRB 1106.) b. Jacqueline Jones The record proved that ' Jones received four confer- ence reports during the year before she was laid off. On December 16, 1980, Jacqueline Jones received a conference report from Melda Pace for her attendance during the December 30, 1979, through December 8, 1980 period. The conference reflected "late 32 times, self-sick 17 times, absent 7 times, illness in family 4 times. The conference report was signed by Jacqueline Jones. On December 5, 1980, Jacqueline Jones received a conference report from Supervisor Jones for questioning 12 Jacqueline Jones testified that December was the first time house- keeping employees had been called in and counseled about their attend- ance. However, Jones testified that the entire department was included in that procedure. Therefore, even if this conference report is discontinued regarding all employees counseled, there would be no change in the rela- tive positions of the employees on the listing of conference reports IS The General Counsel did not argue and the evidence failed to show that Quiett's changed work assignments contributed to any of the confer- ence reports she received in December 1980. 216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD her work assignments, telling supervisors that they were scared of another employee, and telling that employee that the supervisors must be "scared" of her. Jacqueline Jones acknowledged that particular incident in her testi- mony although she contested some of the facts related in the conference report. On September 16, 1980, Jones was awarded a confer- ence report for "not reporting to work" and "not giving correct information." Jones admitted the incident oc- curred as a result of her involvement in a police action at a party she attended that resulted in her not being able to work. Jacqueline Jones admitted receiving the confer- ence report. Jones denied knowledge of an incident and a confer- ence dated September 20, 1980. That conference report was'signed by Supervisor David Robertson.14 Following Jones' testimony, Respondent called David Robertson, who testified as follows regarding the September 20, 1980 conference report: A. Yes, I went in and I told her that her break was over and it was time to leave. And as I was walking away she mumbled something and I turned around and said, what was that? And the words was, you're getting kind of smart here lately. Q. And did you write her up? A. Yes, I didn't write up-I wrote-what I did I just wrote the paper that I had warned her of over- staying her break. And as far as writing it up, it wasn't what you'd call a writeup, it was just a warning so I could know myself that I had told her about this incident. On cross-examination, Robertson admitted that he did not tell Jones he had written the September 20, 1980 conference report. Robertson's above testimony is unre- butted because Jones was not called to deny his specific testimony regarding the incident. As in the case of Susan Quiett, I find the record fails to justify a determination that Jones was treated in a dis- criminatorily manner. The only housekeeping employees with more conference reports than Jones were Susan Quiett and Sharton Thompson, both of whom were also laid off. The record fails to show that Jones' December 16, 1980 conference on attendance was discriminatorily awarded because there was no showing that any house- keeping employee with a worse attendance/trady record failed to receive a conference report. Moreover, there was no showing that any employee would not have been awarded conference reports, as Jones was on December 5, September 16, and September 20, 1980. 14 Jones did not sign her September 20, 1980 conference report and the document does not show that she refused to sign However, the con- ference reports received in evidence on housekeeping employees Jones, Tate, Quiett, and Thompson (the laid-off employees) show numerous conference reports that do not contain either the employee's signature or a "refused to sign" notation. David Robertson issued conference reports to Jones, Quiett, and Thompson and none of his reports contain either the employee's signature or the notation "refused to sign " Also, Supervi- sors Johnson and Courville issued conference reports that do not include the employee's signature or an indication "refused to sign " In view of the above, I reluctantly find that the evi- dence does not support a determination that either. Susan Quiett or Jacqueline Jones was discriminatorily laid off. c. Charles Hamilton The General Counsel's case in support of Charles Hamilton is totally dependent on my determining Hamil- ton was not a supervisor. In that regard, counsel for the General Counsel contends, "Hamilton's refusal to with- draw support from the union was the precipitating event which caused his discharge." In view of my determina- tion that Hamilton was a supervisor, the General Coun- sel's case must fail. An employer may legally discharge a supervisor for refusing to withdraw support for a union. I am in agreement with counsel for the General Coun- sel's contention that Hamilton's extensive activities on the Union's behalf were known to management. More- over, as shown above, I credit the testimony showing that Hamilton was warned to cease his union activities or risk further disciplinary action. It is apparent from the record that Hamilton, a valued employee, was treated with disparity. But for my finding that Hamilton was a supervisor, I would have found a violation. The facts reveal that Hamilton was selected for termination because of his union activities. However, as shown above, that does not constitute a violation in view of his supervisory position. Parker-Robb Chevrolet, 262 NLRB 402 (1982). d. Warner Wilson Wilson, like Charles Hamilton, was cautioned by su- pervision to cease his union activities (see above). Wil- son's union activities were extensive. He signed one, and distributed other, union authorization cards. As shown above, Wilson had conversations with Supervisor Betz about the Union and Betz cautioned Wilson that they were out to get Wilson's job. Also, as shown above, Wilson was an outspoken advocate of the Union during one of Respondent's group meetings. Therefore, the record establishes, as it did in all the termination cases discussed above, the elements of animus, knowledge, union activities, and timing. Additionally, Wilson was threatened with discharge because of his union activities. Moreover, the evidence also revealed that Wilson was treated in a discriminatory fashion. There is no question but that Warner Wilson was a valued employee-Re- spondent did not argue otherwise. He held the responsi- ble position of leaderman and, as shown above, on regu- lar occasions he was the senior employee present on,the job with significant responsibilities. Respondent contends it was necessary to lay off one of its leadermen. However, no evidence was offered, to show why a leaderman position was selected over an- other nonsupervisory position. Respondent alleged that Wilson was the junior leaderman. However, Wilson's tes- timony, which I credit as shown above, demonstrated that he was senior to the woman who occupied, the lea- derman position on the night shift. Wilson testified that he was never offered the opportunity to transfer to the night shift to avoid lay off. BATON ROUGE HOSPITAL 217 Therefore, the evidence is overwhelming and I fmd that Warner Wilson was laid off on February 20, 1980, because of his union activities. e. Susan Quiett's change in work assignments Susan Quiett testified that for the first time during her employment with Respondent, on December 8, 1980, the day following her first handbilling for the Union near the hospital, she was reassigned three different work areas during her shift. She was assigned 3d west, but subse- quently sent to 4th west; later to 2d west and finally back to 3d west. Quiett complained that after December 8 she was assigned to clean and mop walls and to mop brick on the ground floor in pediatrics without assistance even though that work was normally performed by por- ters. She was also assigned to sweep and mop stairs from the fifth floor down to the ground floor. Additionally, Quiett was assigned to clean 42 rooms without help. Ac- cording to Quiett, she had not received similar assign- ments before her handbilling activity. He request for as- sistance from Supervisor Cyrus was denied. Melda Pace testified that "Hard cleanup jobs" such as scrubbing walls, were normally performed by' both maids and porters. When asked if those jobs normally involved more than one person, Pace testified, "It would be ac- cording to how big an area it would be." Respondent offered assignment records that appeared to show the general assignments of the relief maids, and contended that those records demonstrated that Quiett's project and patient room assignments had remained con- sistent. However, I am convinced on the basis of Quiett's testi- mony, which I credit, that she was assigned more diffi- cult jobs without assistance after being observed hand- billing for the Union. Such activity provides a conven- ient means for an employer to express how adverse con- sequences may flow from union activity and that action is prohibited by Section 8(a)(1) and (3) of the Act. B. Denial of a, Merit Wage Increase Counsel for the General Counsel contends that Ethel Booker was denied a merit pay increase in January 1981 because of her union activities. Booker testified that Su- pervisor Gillespie promised her an increase in January 1981, following an evaluation. When Booker did not re- ceive the increase, she inquired of Gillespie and was re- ferred to Personnel Director Champagne. However, Booker never had an opportunity to discuss the matter with Champagne. Respondent, through documents (including checks signed by Booker), and testimony of Louis Champagne, offered evidence that Ethel Booker received a general increase in pay in September' 1980, and a merit increase effective October 19, 1980. Champagne testified that the above increases brought Booker to the top of her pay scale, making her ineligible for an increase in January 1981. I find Respondent's evidence convincing. The General Counsel did not overcome the evidence that Booker was ineligible for a January raise due to her earlier increases. Therefore, I fmd that if Booker was informed by Gilles- pie that she was scheduled to receive another wage in- crease in January, that information was incorrect. I am inclined to believe that Booker was mistaken and that she confused the time she received information about her merit raise. In any event, I credit the evidence showing that Booker was not denied an increase, which she would have received but for her union activities. III. ADDITIONAL OBJECTIONS EVIDENCE At the beginning of the hearing, the Union called three witnesses that it relied on, in addition to evidence offered during the unfair labor practice case mentioned above,15 to support its objections. A. Margaret Walter The first witness for the Union, employee Margaret Walter, testified she attended several meetings regarding the union campaign, which were conducted by Respond- ent at the hospital. Walter testified the first of those meetings was held in February and Sawyer and Walters (from X-ray) spoke. Walter recalled Sawyer mentioning the following: And then if they a union come in the first thing it would do was to call us out on strike. And, then, if we went out on strike our time that we go out on strike wouldn't-we wouldn't be paid for. And they would have somebody to come in and replace us. Q. Okay. What else did he say about strikes? A. Well, I think, you know, I think at that meet- ing that was mainly all that he said. Q. All right. Did he cite any examples of strikes? A. Well, Mr. Walters read some things about strikes happening in other hospitals over the state. And one particular one, I think, was about employ- ees who had been off 107 days or so. And he told how much money the people had lost from being out on strike. And that we wouldn't get paid if we go out any certain length of time like this. And that they would have to come in and replace us because they couldn't stand for us to be out. Q. Okay, you said he read from something. Did ,he have some document in his hand that he was reading from? A. Well, he had some type of paper, yes. I don't know exactly what it was. Q. All right. Did you get a copy of anything to read while this was going on? A. No. Q. Okay., Did he-Mr. Sawyer indicate what the-if the union won the election, how the hospital was going to' bargain with the union? A. Well, he said that they would start off with- all of the benefits that we had then, we would have nothing. We would start off with a blank sheet of paper when they would sit down to the bargaining table. 15 See fn. 3 above. 218 DECISIONS OF THE NATIONAL LABOR-- RELATIONS BOARD And we would start there and we would-it was no guarantee that we would get anything if they bargained with the union. Q. Do you recall that Mr. Sawyer said what would happen if there was a strike and when it was over-what the consequences of the strike would be once it was over? A. Well, he said if we were called out on strike and we went out and struck , then, the time that we were out we didn't get paid for. And then we wouldn't be able to come back to our jobs. Q. You Would not- A. We Q. You would not-be able to come back to your jobs? A. Right, because they would replace us. Q. All right. When is the-that was the first meeting that you can remember . Did Mr. Walters say anything at this first meeting? A. Well, he read from the paper about the strikes and he talked about-you know, he talked about the same thing; about strikes, during that meeting. Walter attended a second meeting, some 2 or 3 weeks after the first. The speakers at that meeting were Munn and James (assistant director of food services). Her testi- mony was that Munn spoke first: A. Well, he told us-the first thing that I can re- member-he said his father was a member of a union , but-which was no good-and that he thought unions was no good and it wasn't a good idea for us to have a union in the hospital. Q. Okay, was he reading from something, as well? A. Yeah, they did have a-some type of paper. Q. I see. Did they hand out anything for you to read at this meeting? A. Yeah, they gave us a booklet when we went in. Q Did the book have a title or a name? A. I-don't remember the title or name of it, but in the book they had all the different types of articles about striking in different places in different cities, hospitals and what not, for the unions. Q. As best you can recall, can you tell us -some of these places, what the book said, what it was about? A. No, I can't remember exactly some of the places. But one particular picture in the book they talked about because it was a picture of violence being carried on at a strike. , And they made the remark that would we want this to happen-that some of the people in this picture at this strike was killed` at the time of the strike. And they said we didn't want that to happen here in Baton Rouge. Q. I see . Again, at this meeting was anything'said that if there was' a strike, about what the conse- quences would be, once it was over, to you? A. Well, Mr. Munn, he say that if we got the union 'in and'they-come to the bargaining table and they would bargain in good faith. But he also said that when you bargain in good faith it didn't really mean that we would get more than we had been. Probably, it would mean that we would get less than what we had now. Q. All right. That was his position on bargaining. What about on the-at the end of-if there was a strike, what would be the consequence to you as an employee? - A. Well, he said that if there was a strike and we would definitely be replaced and would not get-our jobs back. Q. You would not get your jobs back? A. No. Q. All right. Was that all that Mr. Munn said at the meeting? A. Well, I think so. Q. Okay, did Ms. James say anything, the assist- ant director of food services? A. Yes, she read some documents about strikes at different places. And I can't remember where it was. But it was different cities and states, over a period of time. At different times they had strikes and things that happened during the strike. Q. Okay, what-did she read from the same book that you-that they handed out at the meeting? A. Well, I couldn't follow her in. the book. Q. Uh-huh. A. I can't say for sure she wasn't reading from it, but when I tried to follow what article she was reading in the book I could never find - the place she was reading from. On the day before the May 8 , 1981 election, according to Walter, she attended a third meeting . The speakers were Alexander and Jacobs. Shelia Jacobs spoke first: A. Well, she gave us the procedures for voting and how just what you do when you vote. Showed us a sample ballot and how to, go about marking it. Q. Okay,, did she say anything else at this meet- ing? A. Well, she said if the employees were off on election day-to come in and clock in and out-that they would be paid for it. Q. I see. Did she say anything else? A. Well, not too much more than that. Q. Okay, then who spoke next? A. Mr. Alexander. Q. And what did he say? A. Well, he talked mainly about Mr. Crayton. Q. Who is Mr. Crayton? A. Well, Mr. Crayton was one of the union rep- resentatives. Q. Okay, go ahead. A. He told us about Mr. Crayton being evicted or fired or something, from Lake Charles, during the strike. I don't know-he said something he didn't go for the Lake Charles peoples. And he didn't think he was the man that he would want to represent him. BATON ROUGE HOSPITAL 219 B. Brenda Brown Employee Brenda Brown also testified about the group meetings held by Respondent. Brown recalled that the speakers at the first meeting she attended in January 1981 were Betty Falgout and another counselor. Her tes- timony regarding that meeting was: Q. All right, who spoke first? A. The counsellor. Q. All right, what did this counsellor say? A. Well, he began talking on strikes out of a booklet, "Tell It Like It Is." And then they started talking about strikes. Q. "Tell It Like It Is" was the name of the book- let? A. Yes. Q. All right. As close as you can recall, will you tell us what the counsellor said about strikes and how he used the booklet? A. Well, as close as I can recall, strike-was saying that how it can hurt your family and can hurt you, may cause you to lose your job, someone causing you to lose your life or someone of your loved one's life. And it's just a whole tragedy in your life and your family. Q. Did he say anything else about strikes, give any names of any hospitals or- A. Well, he gave the name of one hospital. I don't recall-one in Lake Charles. Q. Uh-huh. A. I don't recall the name but somewhere in Lake Charles. Q. Did they-did he bring out any other exam- ples of the consequences of strikes? A. Well, something-not just, you know, you could get hurt and while you are striking they can hire someone else to take your place. And he might even work for less to get the job while you're on strike. And that sometime some outsider can come in and cause a disturbance that will cause you to get into a disturbance and you might lose your life or a member of your family or something. Q. Did the counsellor discuss-that spoke--dis- cuss anything about the bargaining that would occur if the union won the election? A. Yes. Q. What did he say? A. He said that if the union won the election they would go to the bargaining table with a blank sheet of paper and start from scratch. Q. When you say "they" who do you mean? A. I guess administration when you say "they." Q. Okay. Would go with a blank sheet of paper with-what else did he say about that? A. They would start from scratch and they don't have to agree to anything that would be said. They don't start from where your present salary is or anything. They start all over from the beginning. They will work up; they don't have to agree to anything. Q. All right. Did he make any predictions about the results of this bargaining would be, for the em•• ployees? A. He said it would be bad; you would come out with less than what you had from the bargaining. It could happen that way. Q_ Did the counsellor say anything about a union card-about signing a union card? A. Yeah, that was at the second meeting I went to. Q. All right. Well was there anything the coun- sellor said at the first meeting? A. Well, they talked about strikes at manufactur- ing companies, and strikes at a hospital that he once worked for and the tragedy there. A. What did he say? A. People lost jobs; some was hired back, wasn't too many. And some lost their jobs. Some homes was burned or something or other. Exactly whose home it was I don't recall but he said that he re- called that happening. It was just an upset. Q. I see. Did Ms. Falgout say anything at this meeting? A. No, she didn't say anything until her turn came. Q. All right. When her turn came did she say anything? A. Just emphasized on what the counsellor said. Brown attended a second group meeting in March 1981, and the speakers were Tom Hagen (vice president, chemical dependency unit) and Linda Alenbaugh (a head over nursing services). Tom Hagen spoke first: A. Well, first he gave out "Tell It Like It Is." And they were reading from off some papers they had. And then, they told us to open up the booklet. And they started-open to certain pages. And the page we opened up was to the salaries of the inter- national union. And it showed the salaries people made. Q. Uh-huh. A. -That was being paid, how much these people was paying. And that's what it was, salary, first we talked about. Q. Okay, what else did he say at the meeting? A. He talked about Mr. Crayton and said that- that we-union dues-the dues that we paid would buy Mr. Crayton black cadillacs, and we could be buying our own needs for our purpose of life. And he was saying that how much money that they were making compared to what we were making. And instead of giving our money to them-union dues-how often they wanted it to be giving it to them- Q. Uh-huh. A. -to keep them in black cadillacs. Q. All right. Anything else Mr. Hagen said at this meeting? A.- Well, yeah, he said that he would like every- one to come and vote and if you didn't have a way that they had some that would be working that day 220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD .and just call-call and someone would pick you up and bring you and take you back. Q. All right. Did- A. But- Q. Okay, excuse me. Did he say anything about negotiations at this meeting, bargaining? A. No. Q. Anything about strikes? A. No. Q. Did Ms. Alenbaugh spoke-speak at this meeting? A. Yes. Q. What did Ms. Alenbaugh say? A. She spoke about fines and assessments. Q. What did she say about fines and assessments? A. She was telling us that if the union should get in and you signed cards for union dues to be paid, if you didn't pay your union dues in a certain length of time they -would fine you. And you have to pay all that money at one time you'd lose your- $100 something or other they give you-$100 death or something or other, you know, death of a family member, you know, if you're a union member. C. Roger Thomas Former employee Roger Thomas attended a group meeting in March 1981. The speakers, were Tom Sawyer and Jim Walters. Thomas testified that Sawyer spoke first: A. Well, it all begins about the union. And they passed out booklets telling-"Tell It Like It Is" booklets. And they discussed that-about how our benefits, we'd lose everything we have and we would start from a blank sheet. You know, they showed us a blank sheet of paper. Q. Okay, is-when he brought up about the bene- fits and the blank sheet of paper can you tell us, as near as ; you can remember, exactly what Mr. Sawyer said about that? A. Well, first he say that if the union get in we have to start all over again, blank sheet of paper. We'd lose everything. Q. Uh-huh. A. -our benefits. And the union's not going to promise anything that we should get it. We might get lessor we might get more. But we will lose our benefits. Q. Okay. A. We'd start from zero and the union can't promise us anything. Q. Uh-huh. A. And in the booklet it showed strike,, Coca Cola, and, you know, several people pushing and fighting on the strike. And this was discussed. Q. Do you recall anything -specifically in terms of what strike-did they mention any names of the hospitals or towns, or hospitals? A. Well, it was in Lafayette. It was a picture of Coca Cola. It was East Jefferson Hospital and it was in Lafayette. Thomas attended the second meeting 3 or 4 weeks after the first, which was also conducted by Sawyer and Walters: Q. What did Mr. Sawyer say at the second meet- ing? A. Well, basically on the same thing, benefits, a blank sheet of paper and about strikes. Q. All right. What did he say about benefits? A. Well, we can lose everything we have now and we'll have to start all over fromzero. Q. Okay, what did he say about strikes? A. He really didn't say too much about strikes. The strike was the key word and the pictures. The pictures and strikes is what, you know, like using to upset a lot of people, you know. That we don't need the union here and if we go on strike this is what would happen, people fight among each other. Your car and something-you know, burn down your homes and all that. That was the thing that was used. Q. Okay. Did he use the-at the second meeting did Mr. Sawyer say anything about the blank sheet of paper as he had in the first meeting? A. Yes, he did. Q. What did he say about that? A. Well, he said that-okay, we would start all over from a blank sheet of paper. The union can't promise us anything; that they don't have to negoti- ate with the union or give anything. They have to start from blank. And we'll lose benefits; we'll start from zero. We might get more, we might not. Q. Did you attend any other meetings? A. No. Discussion The evidence is substantial that the "blank sheet of paper" comments were included in only the first of the group talks. I have credited testimony that- the written text was used on that occasion. With that background, I am convinced that Roger Thomas was confused in his testimony regarding the subjects covered in the second group meeting that he attended. It appears, and I find, that his testimony in that regard actually refers to the first series of meetings. Therefore, I shall not credit his testimony to the extent it involves meetings other than those of the first series. Concerning the first series, I find the written text was used. L was impressed with the demeanor of witnesses Mar- garet Walter and Brenda Brown and I credit their testi- mony regarding meetings after the first series. However, I see nothing in Brown's testimony that reveals objec- tionable conduct by Respondent during any of the subse- quent meetings. Regarding Walter, she testified that she attended a second group meeting some 2 or 3 weeks after the first and the speakers were Munn and James. According to Walter, Munn told the employees, among other things, "That, if there was a strike and we would definitely be replaced and would not get our jobs back." Although BATON ROUGE HOSPITAL 221 Munn testified, he did not deny that he made the com- ment. I credit Walter's testimony in that regard. Objections Findings As shown above, the Union's objections include alle- gations of Respondent threatening its employees with loss of benefits, possible loss of jobs, and loss of previ- ously enjoyed benefits. Also alleged are the matters in- cluded in the April 10, 1981 complaint in Cases 15-CA- 8050 and 15-CA-8050-2 The petition in Case 15-RC-6750 was filed on January 15, 1981. The election was conducted on May 7, 1981. My above findings concerning the alleged unfair labor practice allegations reflect that several 8(a)(1) violations occurred during the above-mentioned critical period.16 Those violations that I find also constituted objectionable conduct, including the following: (1) Gerald Colston interrogated employee Susan Quiett about 2 weeks before February 20, 1981 (sec. I,A, above). (2) On February 12, 1981, Tom Alexander cautioned employee Warner Wilson to cease his union activities and threatened Wilson with discharge if he did not do so (sec. I,D, above). (3) In mid-February 1981, Larry Betz cautioned em- ployee Warner Wilson to watch himself because they were out to get him because of Wilson's union activities (sec. 1,1, above). (4) In early February 1981, Supervisor Nellie Guilbeau threatened employees that if the Union got in the em- ployees would not be able to work overtime, adjust work schedules, or come to supervision with employee problems or complaints (sec. 10, above). Additionally, as shown above under "Discussion," I credit the testimony of Margaret Walter that she and other employees were told by Munn in a group meeting that they would be replaced and would not get their jobs back in the event of a strike. I find that statement consti- tutes objectionable conduct within the scope of Objec- tion 1. In that regard, I note Respondent's continued em- phasis to its employees of the likelihood of a strike (see above). Walter's total testimony reveals that group meet- ing was held in February or March 1981. In view of my findings above, I recommend that Ob- jections (1), (3), and (9) be sustained and the election set aside. and a new election ordered. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Service Employees' International Union, Local 275, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating its employees about their union ac- tivities; threatening its employees with discharge if the Union was successful in organizing its unit employees; 16 Several of the matters, including from example Gerald Colston's in- terrogation of Yolanda Scott, were placed as occurring in January 1981 Because the evidence failed to show those matters occurred on or after January 15, 1 have not found them to fall within the critical period threatening employees that they would not be allowed to discuss work-scheduling problems if the Union was se- lected; and threatening employees that if the Union was successful, employees would not be able to work over- time, adjust work schedules, or come to supervision with employee problems and complaints, Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By laying off its employee Warner Wilson on Feb- ruary 20, 1981, and, thereafter, failing, refusing,,and con- tinuing to fail and refuse to reinstate Wilson, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5.- By changing the work assignments of employee Susan Quiett to more onerous jobs about December 8, 1980, and continuing to assign more difficult work to Susan Quiett until her layoff on February 20, 1981, be- cause of Quiett's union activities, Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. Respondent did not otherwise- engage in unfair labor practices as alleged in the complaint. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, As I have found that Respondent unlawfully laid off employee Warner Wilson, I shall recommend that Respondent be ordered to offer Wilson immediate and full reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority or other rights and privileges. I shall further rec- ommend that Respondent be ordered to make Wilson whole for any loss of earnings he may have suffered as a result of the discrimination against him. Backpay may be computed with interest as described in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).1 7 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edis ORDER The Respondent, Baton Rouge General Hospital Cor- poration, Baton Rouge, Louisiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interfering with, restraining, and coercing its em- ployees in the exercise of their rights guaranteed to them in Section 7 of the Act, in violation of Section 8(a)(1) of the Act, by interrogating its employees concerning its employees union activities, by threatening its employees with discharge if the Union was successful ; by threaten- 17 See generally Isis Plumbing Co., 138 NLRB 716 (1962) 18 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing its employees that the employees would not be al- lowed to discuss work scheduling problems if the Union was selected-, and by threatening its employees that if the Union was successful, employees would not be able to work overtime, adjust work schedules, or come to super- vision with employee problems or complaints. (b) Changing work schedules of its employees because of its employees' support for the Union. (c) Laying off and thereafter refusing to reinstate its employees because of the employees' union activities. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer immediate and full reinstatement to Warner Wilson to his former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority, or other rights and privi- leges. (b) Make Warner Wilson whole for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in the remedy section of this decision. (c) Remove from his files any reference to the layoff of Warner Wilson on February 20, 1981, and notify him in writing that this has been done and that the evidence of his unlawful layoff will not be used as a basis for future personnel actions against him. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Baton Rouge, Louisiana facility copies of the attached notice marked "Appendix."19 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 19 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "