The Methodist Home

DECISIONS OF NATIONAL. LABOR REI.ATIONS BOARD The Methodist ome ad Service Employees Inter- national Union, Local 579, AFL-CIO, C,C. Case 1 1-CA--7134 November 21, 1980 SUPPLEMENIAL DECISION AND ORI)ER BH CItAIRMAN FNNIN(; ANI) MI:MBItRS J NKINS NI) TRtIISl)AI.. i On April 15, 1980, Administrative Law Judge J. Pargen Robertson, pursuant to an order of the United States Court of Appeals for the Fourth Cir- cuit' remanding the Board's Decision and Order issued on January 27, 1978, in the instant proceed- ing,2 issued the attached Decision. Thereafter, Re- spondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations 13oard has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, a' and cl(nclusions 4 of the Administrative Law Judge and to adopt his Recommendations. 5't, F 2d 11'73 IlTe 1 l - 234 NlIRH 535 :R p lldellt c itllcenliis tat nlany i1i te Ad Itll istrali c I al Jitdge's filidilg ad CloTIclnsl areit 1ased upon "arbilrary rejectilons If Ltltli'pii- Cd e idce IIC sglisel .1 reihility dclirinlillnaii" Upon calrful exannl- naloi of the Adnillisiratic law: Judge's )ccision and the enltire recor d, v., fdl( 1iii) iTierit itO a i ticrilion tli tI he AdniitStraitie Is Judges ilterpretaltilon of evidence illnd his credihility findings show hiasand pii P udice I urther, we lotle thalt t is the Board's eslahlished phlics I to, o1 Clil uC LII adillil;ll. law juIdge rlIUltIiOn1 ItIh respectI t r(li hilit uess t1le cleir jprepondtierianie it a.ll of the relcvanl c,,idc riirliI cI) inccs us thail Ith restlutilon are ilclorrecl .Slundard air 'aJl 'Pnu/ s/. Inc.. 91 NRII 544 (195(), calnd 18K :.2d 3(12 13d Cir. 1951) 11 ligilt I0t Respoletlleil' clilcnliiOlln, we have carlll y cxnamillned te Ic ,d til 1f11i no basis f reversing he Admilistrailve Ilaw Judges credihilit r u lions adlitii. e find io ierit t Respondenit's Ciiteltiloll that Ihe Admin itrlatl e I Judge, i eaching his credibility resolhins, il l- properly relied upon l it' aIlidalil itf employee Karin Ulmer takenll urinig tile iseStigaltiln f ihttiiit011 II ie tinderlyinig repreenialiionI plocttced illg l/vin J B/arl inl ('i, t.l 23h NIRB 242 (197K) 4 Respondetll ccep t the Administrative aw Judge's reliance oin the testimonly of cllpl see C arlc Brtlwn in reaching his faclual lilditgs concerning anll April 28, 1977, ellersalon which Resplonden assel, connect the alleged objecclionahle "knife incident" to the Uion or the election Relyinrg oll Broln's testim ony Ihat she had no recollectionl ol the clronversalion, the Adnl tistratie Law Judge fiound that lro vtn iwas not present during tile conllersation at which a picket line was discussed and he concluded, inter aita. that there is insufficient es idence to ronnect the kife incident Ilo the Union or the election r to finld that tihe incident cast a cloud ,f fear or apprehensioti over the election sufficient for it ti be said that it might have influenced the result Even if Brown's testimo- nv is conlsrued as a failure to recall the conltent of the April 28 convl ersa- titon rather than a denlial of her presence, we agree with the cnclusilons tif the Adrnirlistratie Law Judge. The fact tat Brotwn had 1it rco llcc- lioln f the suhject matter discussed during the cnversation make, it ull likely that as a result thereof she connecled the knife icidenll wilh the Union or the election Further. ias notel hy he Adtlinitrlti c Ila, Judge, BrFirn to ld eniplsec Ardie ( rtr about Ihe knife intcidifrt hiut said olhing to arl whitch t otld camile t that cidentlet t Ih l iiOll or the eleclion 253 NLRI No. 55 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board reaffirms its Decision and Order issued in this proceeding on January 27, 1978 (re- ported at 234 NLRB 535), and hereby orders that the Respondent, The Methodist Home, Orange- burg, South Carolina, its officers, agents, succes- sors, and assigns, shall take the action set forth therein. I)ECISION SI A I1MI NI 0) 11 tIl. CAS J. PAR,ILN ROH RISON. Administrative Law Judge: Ilhis matter was heard in Orangehurg, South Carolina, 1on Januar 8 1980. The charge as filed by the Union nilt Augusi 2, 177. A colplaint issucd on September 20, 1)77, alleging that Respondent iolated the Act by refus- ing to bargain with the Unioni followinlg the Union's cer- tification as bargaining agent of Respondent's emplosees. Pursuant to the General Counsel's Nlotion for Summary JudgIllent the Board, by Decision and Order, dated Jan- uary 27, 1978,, granted the General Counsel's motiol and found that Respondlent had unlawfl'ully refused to recoglize and bargain ith the Union i violation of Section 8(a)(1 and (5) of the Act. Subsequently, on Peti- tion for Review and Cross-Application for Enforcement of a D)ecision and Order of the National Labor Relations Board. the United States Court of Appeals for the Fourth Circuit, it an April 19, 1979, decision, 2 denied enforcement of the Board's Order, and remanded the case to the Board. On September 19, 1979, the Board issued an Order reopenlinig the record and remanding the proceeding to the Regional l)irector for hearing, in which it directed these proceedings reopened and that a full hearing be held on Rcspondent's objections to the election, consistent ith the opiniton of the circuit court's opiion, ad that such hearing be held before an adminis- Irative law judge. On October 23, 1979, the Regional Di- recttr for Region 11 issued an order reopening case, re- voking certification, order consolidating cases, and notice of hearing. On September 16, 1976, the Union filed its petition in Case I 1-RC-4251. The parties' Stipulation for Certifica- tionl Upon Consent Election was approved by the Acting Regional Director on October 10, 1976. Subsequently Respondent withdrew its agreement to the Stipulation for Certification Upon Consent Election, and, on No- vember 2, 1976, the Regional Director issued an order withdrawing approval of the Stipulation for Certification Upon Consent Election and car liing election, and notice of hearing. Following a h, lnig, the Regional Di- rector issued a Decision and Direction of Election on December 23, 1976.: On April 28, 177, a secret-ballot 214 NI RIH 535 -2'}{- t Id 1171 D u)u ring lie hertilg, tIl prile.s sili l.'lei 11; tlie hbargining ulnitl C,- hlahlst'd h~ thc I)ecionil, and Di r )lrck'ln(1 (t' f .iletin "a.% l 11 ap iiprolprialte tIl [ hal lllll is ( o'ltrtu'd 45X ME IFH()ISI IH()M4 election was held, with the result: there were approxi- mately 164 eligible voters, there were no void ballots, 77 votes were cast for the Union, 74 votes were cast against the Union, and there were 4 challenged ballots. he challenged ballots vere sufficient in number to be deter- minative. On May 5 Respondent filed timely objections to the election. By a Supplemental Decision and Certifi- cation of Representative, which issued on June 9., 1977. the Regional Director, overruled Respondent's objec- tions, sustained the challenges as to three of the four challenged ballots. found that the fourth challenged ballot was no longer determinative, and certified the Union as exclusive representative of all the employees in the above-mentioned unit. On June 18, 1977, Respondent filed with the Board, the Employer's request for revies of the Regional Director's Supplemental Decision and Certification of Representative. The Board, b tele- graphic order dated July 1, 1977, denied the request of Respondent on the ground it raised no substantial issue warranting review. Subsequently. Respondent tested the Union's certification by refusing to bargain. Respondent contended, in part, that the Regional Director, and the Board, erred by not directing a hearing on Respondent's objections to the election. By its above-mentioned opin- ion, the Court of Appeals for the Fourth Circuit agreed that Respondent was entitled to a hearing o its objec- tions. Therefore, the instant hearing was directed. During the hearing herein Respondent offered e\ idence in support of its Objections 1, 3, and 4.4 All licensed practical rllrses, harge nllrses nur se, aides, ordcrhli,. hostesse , activities aid,. he.'keeping. dictars lilldr 1 and r1aIlll,- nance enploees at tihe employr', ()Orangebhiurg. South ('arolina. - ciit), hut excluding all office clerical emplisees. guards and su Iper I- sor a defi ned in the Act 4 Those ohiecliolln, read I Approximately tvlo hours before the first ,otilig period, an r ployce knlowin ito be ery actlc t)11 behalf f Ihe Ptitiolnel tliellit- ened another employee to he against llnloniatlion for thie nmploer's employees the threat involed pointillng a large knife at the second employee's throat and lower abdomen accompanied b a threaltening statement The threat instilled a great fear in the employc to . hich it was diretied as well as mI the mans other unit emploees i ho either witnessed the incident or learned of it shortly thereafter This threa: was intended Ito and did eriously disrupt at a critical time. the conditions necessary for a valid election and anilIunled to coercioi and intimidation of anti-union employees l I)uring the first oting period between 215 pm. and 3:45 prni two agents of the Petitionor positiolned themselves on the -mploy- er's property near the outside entrance to the voting area and am- paigned throughout the voting period These agents stopped and talked with employees who were on their way to sle The Pelilltion- er's agents were positioned in such a manner that they could not he observed from the administrative area of the Employer's facility and the Employer was not in fact aware of their presence until hortly before the irst voting period ended Their position as also uch that all off dulty employees coming to vote would be required t pass closely by them on their way to the oting area 4. Two agents of Petitioner conducted a campaign of haralss, mnt and coercion toward a fellow' employee after learning of this em- ployee's anti-ulioin sentiments The two ( agents of Petitioner ere present when this emploee openly stated her antl-liniln polnri Prior to that time there had been no difficulties betv een this eilplo - eec and the lPetitioner', agents How ever, upon learning f the rti- plosee's antl-uirliti feelings, etitoner's agent hbegan to harass aid cierce tier in her dails ai,iti s At onlle point, olter tf Petit tllor' agents grabbed this emlployee and threatened hlr, releasing hicl r nl when Ihec heard ,omelente approaching Upon the entire record ad from my observations of the witnesses, and after due consideration of the brief filed by Respondent and a statement filed hy the Union. I hereby make the following: FINDIN(S ANDI CONCI SIONS The Evidencet Although the unfair labor practice fiictual allegations are not in dispute, Respondent contends it has no duty to bargain. Respondetnt, in ad ancing that argument, relies on its contention that the April 28, 1977, election should have beenl set aside due to the Unioni's objectionable con- d tic t. Therefore, pursuant to the Board's "Order Reopenting Record and Remanding Proceeding to Regional D)irector for leariig," the sole factual issue to he conlsidered in these proceedings is hether the evidence jusltfies sus- taininig Respondent t s objection to the elect ion. (a) Ohje'('o r 1: In reviewing the Regional )irector's refusal to accord Responldent a hearing on its objectios. the Court determined that ()bjection 1 raised serious fac- tUal issueS. TIhe alleged ()hbjectionable conduct arose out of anl incident wvhich occurred o the day of the electio. April 28. 1977. 1hi1. ,hlt 1' 11lls hlIils1niellt an1d11 cIctrl1111 xtas clearly to iilu- encc this ertiploe c'. solc And it l sersc is iian ca;irliplt to oilhers w l} lppscd P'cinililIe A sluch 1I antiliue t Illegail ad rllpropcl itlnrilldlatiorl ald rciralll s Illtch .affei ld tue rcsulis it' lI- tlction Respondenrt, in its brieft ihleted Ct'uiicl flr ( llenral (Iounsel's coiduct dliring the hering I hreh! i.eriule that ihbl'ciiol I oh,ered CItiisel itlo (ie nerai (i'lIlsel' Ihrllihout [t hea hring lie conllltctil hlltl- ,self i full aclrd \itlih a.il ,.table st.rdalardls anrid lli applicabhc rules land ti l ithe hIearing, ad iagin il Its rief, Respondlt qL ul.thImed us tl risdiction In Its cnitCnitun til this mattiler did nt pruierlts nvs an tllir labor prictict pr i.dil i Rcrtllsponden ionllndled lIhat i his lter illnx ls r's itl ils ohbectiOn I,, liet' lection ill the lrersenlalltil Ca,,' p"' At hlle hearing. s)iie Ctlnfusion deI cliped ils a restillt if Ith Recglt.iJ Director's "Order Reipenilng Case, Riking Certificalin. Order Coitn- stlidating Cases anti Notice of Hearing " It appears the Regional I)ire Itr erred in issuinrig that Order The Regional Director also erred i re eoking the certlficatilon The Hoard's IDecisil iln d ()rder, ,,hlch is ced illt 234 NI.RH 53s i olxcd only Case 11 CA 7134 Therefre, the action of Ihe U'nitell Sltes Court of Appeals for thi Fourtlh Circuit, alxor involed nil y one Icas. I I CA 7134. and it was Inly that ase which was remanded to the Hoard hs the circuit court Consequently, the subsequent Order of the Hoard, which reopened he record. involled only one case, II CA-7114 and that as the onI caste ihich was cited by the Boa.lrd in the caption of that Order t'hiatl rder relpenrilng r-c rd and remanding proceeding tg the Regional Director fior hearing limited the scope of the Regional I)i rector's responsihility to Ilie fiilltiri g. IS It HtRIttR (Il)t RHit) that this prioceeding be. and it hrebs s. remanded to the Regionlal D)irector for Region II for the purpose of arrallging such heatring, and hlti the s;id Regional Direclor hbe. and he hereby ix. authorized to issue ntice thereof Therefore, it appefirs that the Regiirnal Director exceeded the scipe it his authority in several respects. Hioecver, it is clear that his errorr h e ilnt[ prejudiced a ne's rightls r Illportultlie H is errors were proc- dulral onil and the eff'ect of hi' toalrtd's ()rdtr. v hllch a is fir a isritliu tralse l.a, jludg t tconduct full hearing oi Respoldeit's bltuti.ion to the t' cttiul il Case I1 R 42' 1, i, a lphlished hrecfore R- spoindr1's coneivilion in this rgard is lacking I eri til id herths oserrtlde (Sce '/ii'l ... itlnu fi tlitlurin' -eroipie / ljolimn f J/ - ih /,toidi trl'. Irnc, 21() NI RHI 715 (il977)) I'riediirailly, Ih' only mailer Insolndl is he illite iabilr pi.n llt '(.teldlig 45 Q DECISIONS OF NATIONAL IABOR RATIONS OARD At approximately 11 or 11:30 a.m. on April 28, 1977, employee Betty Welfare approached employees Louise Phillips (Louise Prince at the time of the incident) and Carole Brown with a kitchen knife. The knife was ap- proximately 12-14 inches long, with a white handle and a serrated blade. Welfare pointed the knife toward Phil- lips' throat and said something to the effect, "Prince said nobody around here can cut her a-; what are you going to do, I've got you now." Carole Brown said, "Why don't you just split her from the split up." The employ- ees laughed or smiled, Welfare told Phillips that Phillips did not have to worry about Welfare using a knife be- cause she had never harmed anyone in her life. No em- ployees witnessed the incident other than Welfare, Brown, and Phillips. 7 Although the above-mentioned incident occurred on the day of the election, the evidence is clear that there was nothing said or done during the incident, which would connect the incident to the election or to the Union. However, Respondent contends that the incident was connected to the election and it points to an April 28 conversation which, it argues, supports that conten- tion. The particular conversation which Respondent con- tends connects the knife incident to the Union was touched upon during the testimony of several witnesses. None of the witnesses agreed on what occurred during that conversation. Louise Phillips, who was the object of the knife inci- dent, briefly touched on an earlier conversation during her direct testimony. Phillips was asked by Respondent's attorney, if, on April 28, she had a conversation with any other employees regarding the union. Phillips replied that she had a conversation at the desk at the nursing sta- tion in the Clinksdale Building. Phillips testimony re- garding the conversation continued: Q. [By Respondent's Attorney] Do you recall who was present for that conversation? A. [Louise Phillips] There were a few aides that were working that day plus Ms. Brown. Q. And do you recall who the aides were? A. Barbara Glenn, Pearly Hall, Karin Ulmer. I don't remember if anyone else was there. MR. FAVORS [counsel for General Counsel]: Excuse me, could I get the names again. MR. ScHwturzER [Respondent's Attorney]: Pearly Hall, Barbara Glenn, Karin Ulmer and Carole Brown. Q. [By Mr. Schweitzer]: Do you recall if Mrs. Betty Welfare was there? A. Yes sir, she was there too. Q. Ms. Phillips to the best of your recollection what was said in this conversation? A. Well, it was mainly about the union and what it would make happen if a picket line, if the union made a picket line. Q. Did you participate in this conversation? However, employee Karin Ulmer testified that as she was coming out of a room she saw Welfare standing at the nurses desk hetween Brown and Phillips with a knife and she saw Welfare turn around and go toward the kitchen A. Well, I did. But I do not recollect all the con- versation because I was working at the time and I had my mind on my work. Q. [General Counsel]: What was discussed about the union? A. Like I said before, about what if there was a picket line and it was discussed-Betty made it clear she was for the Union. Q. Ms. Welfare was there talking about it at that time? A. That's right. Q. What did she say about the picket line? A. I do not recall what she said. Q. All right, what did Ms. Glenn have to say about the Union? A. They made it clear that they were for it and that they were going to vote for it because they had on Union buttons. Q. Okay, do you remember what Ms. Hall said? A. No I do not. Q. What about Ms. Ulmer? Did she say anything about the Union? A. I'm not real sure. Q. What about Ms. Brown? Ms. Carole Brown? A. I don't recall. Q. [General Counsel]: What did you discuss about the Union in the conversation? A. What did I discuss? Q. Yes, what did you say about the Union, about the picket line; crossing it and so forth? A. I don't recall anything about crossing it. I recall saying that I was not for the Union and that I was not going to vote or it. Q. Wasn't it Ms. Ulmer that brought up the con- versation about the picket line and what would happen if she had to cross it? A. I don't recall who brought the subject up. Q. Do you remember saying in that conversation that you were not afraid and that no one could cut your a-? A. No, I do not. Q. You did not say that? A. Not to my remembrance. Q. Did you say that you had a pair of brass knuckles and that you would use on anyone who tried to interfere with you crossing the picket line? A. No I did not. Q. You don't rememher saying that'? A. No I do not. Q. What about Ms. Welfare, do you remember her saying anything in response to the picket line and the union? A. No. I only remember her saying that she was for the Union and that she was going to vote for it. Q. Do you remember her asking you if you were afraid of your husband? A. Yes, I do. Q. I see. And how did that come up? 46( METHODIST HOME A. I don't know. I was going from the desk down the hall and she was in the kitchen then. That's when she asked me if I was afraid of my hus- band. Q. Do you remember saying that you didn't be- lieve that your husband could cut your a-? A. Yes, I do. Q. You said that? A. I certainly did. I have no reason to be afraid of him. Q. Why had you said that you didn't think that your husband could cut your a-? What prompted you to say that? A. She asked me a direct question. She asked. "Do you think your husband could cut your a-?" Q. Had you said something about having your a- cut before that? A. No I had not. Q. So you're saying that Ms. Welfare was the first one to bring up the conversation about your a- being cut? A. That's right. In addition to Louise Phillips, Respondent called two other witnesses whose testimony touched on the above conversation. The first of those witnesses was Karin Ulmer. Ulmer was present in the courtroom during Phil- lips' testimony. Ulmer's testimony during the hearing in- cluded the following: Q. [Respondent's attorney]: To the best of your recollection would you tell us who was present or who was involved in the conversation? A. Ms. Prince or Ms. Phillips, Ms. Brown, Ms. Welfare and I saw some housekeeping staff, but I can't recall who they were. Q. Would you, to the best of your knowledge, tell us what was said by the various people? A. Well, somehow it came into the conversation about what we would do it there was a picket line, if the Union were elected and I remember stating that if there were a picket line I would turn around and go back home. Q. Do you remember anything anyone else said? A. Yes. Somebody said, as far as I can remember it was Ms. Prince [Phillips], saying why would you turn around? I'm not scared of anyone. No one can cut my a-. Q. Ms. Phillips said that? A. Yes, as far as I remember it. Q. Did anyone else say anything? A. Well, we just passed it off as a joke because the next thing was that someone asked her if she wasn't even afraid of her husband and she said no. Q. Do you recall who asked her that? A. That was Ms. Welfare as well as I can remem- ber. 8 However. Ulmer's testimony aboul this conersaion. and in other areas as shown below. differed from her earlier esimony On Ma, 19 Carole Brown, a nurse in Respondent's ICF unit, was also called by Respondent. In large measure Respondent relied on the testimony of Brown, which like that of Louise Phillips, Karin Ulmer, and others, was generally favorable to Respondent's position. Brown was not ques- tioned on the April 28 conversation on direct. When asked about the conversation on cross, Brown, who was present in the courtroom throughout the testimony of Phillips and Ulmer, testified that she was aware that she had been identified as being present during that conver- sation but that she had no recollection of such a conver- sation. Respondent did not call any of the other employees that were alleged to have been present during the con- versation. Betty Welfare was called by the Union. Welfare testi- fied that she was not involved in the April 28 conversa- tion. Welfare did testify that she overheard Louise Phil- lips comment that no one around there could cut her a- According to Welfare, she was in a patient's room working when she heard the comment from Phillips. Welfare heard nothing else of the alleged conversation. All the above-mentioned testimony, with the exception of that of Carole Brown, regarding the conversation con- tained elements of suspicion. Phillips' testimony was structured to cast Betty Welfare in the most unfavorable image while retaining for herself the image of someono who said nothing improper. Her testimony conflicts with that of other of Respondent's witnesses, Carole Brown and Karin Ulmer. Even Respondent's attorney, in his brief, does not rely on Phillips' testimony regarding the alleged conversation. Respondent's attorney relies instead on the testimony of Karin Ulmer. However, as shown above, there are se- rious conflicts between Ulmer's testimony at the hearing trial and her pre-trial affidavit. Additionally, her testimo- ny at the hearing conflicts with that of Carole Brown. Betty Welfare's testimony would, at first blush, appear too unusual to be true. Although she contends that she was not involved in the conversation, she admittedly overheard the one critical remark uttered by Louise Phillips (i.e., the comment regarding someone cutting her). After examining all the evidence and considering my observation of the witnesses' demeanor, I am convinced that both Carole Brown's and Betty Welfare's testimony about the April 28 conversation were truthful. However, I am also convinced that portions of the testimony of Ulmer and Phillips probably indicate what actually oc- 1977. Ulmer gave an affidasit in which she identified only Carole Brown. Louise Prince (Phillips). and herself being involved in the April 2 con- versation In the affidavit. Ulmer testified: "On he morning of the 28th I asked Brown if the Union was going to picket on Friday if it won. She said she didn't know. I said I was afraid that I knew that the union was nothing hut suppressed communism and was going to get my husband to take me and if I couldn't get in I would call the home and have them come get me. Louise Prince [Phillips] said she wasn't cared that she had a pair of brass knuckles and would take hem I asked Prince if she was even ,cared of her husband She said no that she asn't scared of any- thing that no onre could cut her a Addilionall, LUlmcr testified in her afidavit that "Bett? Welfare did nt talk to me habout the Union " 46h I t)'ISIONS ()I NATIONAL .A3()R REI.ATIONS 3()ARD curred. I am convinced that Ulmer did, as she testified in her affidavit, indicate in Phillips' presence that she would not cross a picket line. I am also convinced that Phillips was not being truthful when she denied saying that she was not afraid and that no one could "cut her a-." However, Phillips' testimony that she was "going from the desk down the hall" when the matter of "cutting her a-" arose, squares with Betty Welfare's testimony that she overheard Phillips make that remark while she (Wel- fare) was working in a patient's room. I credit Betty Welfare's testimony that she was not in- volved in the conversation but that she overheard Phil- lips say no one could cut her a-. Even though, as shown below, I found Ulmer's testimony to be largely incredible, I have credited her affidavit testimony re- garding the comments between her and Louise Phillips. That particular testimony squares with what Betty Wel- fare overheard while working in a patient's room. The above-mentioned "knife incident" prompted a series of questions from the Fourth Circuit Court of Ap- peals.10 In regard to Objection 1, I shall consider those questions in light of the record evidence. (1) The incident was or was not in earnest but was in- tended as a joke: Despite the obvious incongruity of her actions, I am convinced that Betty Welfare intended her knife threat to be nothing more than a practical joke. Louise Phillips admitted that during the knife incident, Betty Welfare told her that Phillips did not have any- thing to worry about, that Welfare was afraid of knives. Ray Masneri, who, at the time of the above incident was Respondent's administrator, testified that Phillips came in and told him about the incident at approximately 11:30 a.m. on April 28. Masneri admitted on cross-exami- nation that Phillips told him that she thought Betty Wel- fare may have been kidding. The testimony of both Masneri and Betty Welfare demonstrates that Welfare told Masneri that she was only joking. Moreover, there was simply no evidence introduced which demonstrated that Welfare had any motive other than to joke, when she approached Phillips with the knife. Additionally, other evidence and my observations of Betty Welfare convince me that she was joking. Welfare impressed me as a person that would not engage in any action designed to physically harm anyone. She de- scribed herself as being very happy when she came in to work on April 28. Maseri testified that he knew of no disciplinary problems with Welfare and there was no evi- dence that she ever presented any disciplinary problems to any of Respondent' supervisors. (2) The incident was or was not entirely unrelated to the Union organization campaign or the pending election: As shown above, nothing was said during the knife incident, which would tend to connect the incident to the Union or the election. Moreover, the testimony of former Ad- ministrator Masneri indicates the reports he received re- garding the incident contained nothing which would connect the incident to the Union or the election. Fd. R Evil , Rule O1(d( I)(A HI 596 F2d 1173, upru. The evidence does reflect that Welfare favored the Union and that Phillips opposed the Union. However, there is no evidence that the two clashed in their views or that they had arguments regarding the Union. Louise Phillips admitted that she and Betty Welfare never had hard words and always got along well together. Welfare testified without contradiction, that Phillips gave her a "Vote No" sticker on April 28, and that Welfare wore the sticker along with a prounion sticker during her work that morning. As found above, the evidence reflected that Welfare was unaware of any connection between Phillips' com- ment that no one could cut her, and the Union. Furthermore, in view of Brown's testimony, she was aware of nothing which would cause her to connect the knife incident with the Union or the election. Brown, like Welfare, was not present during the conversation in which Louise Phillips said no one would cut her. The evidence reflected that Brown told employee Ardie Carn about the knife incident, but Carn's testimony demon- strated that Brown said nothing to her which would con- nect that incident with the Union or the election. Therefore, I find, on the basis of the evidence, that the only person that could have possessed any information which would result in some likelihood of her connecting the knife incident with the Union or the election was Louise Phillips. Phillips was, of course, aware that the early morning conversation during which she said that no one could cut her dealt with a "picket line." Phillips testified that she did not discuss the knife incident with anyone other than her supervisors on the day of the elec- tion. ' Moreover, Phillips' comments to her supervisors, Masneri and Reeves, reflect that she was not connecting the incident with the election or the Union. Phillips testified that she continued working on April 28 until the end of her shift and that she voted in the election. Therefore, as to everyone except posibly Phillips, there was no relationship between the knife incident and the Union or the election. Although the possibility exists as to Phillips, the evidence indicates that she did not make such a connection and, in any event, she proceeded to vote in the election. There was no testimony or evi- dence that the incident affected the way Phillips voted. (3) Welfare, the agressor in the incident, was or was not an agent of the Union: In regard to the issue of what was Welfare's connection with the Union, the evidence' 2 is ' I do not credit Karin Ulmer's testlimny that Louise Phillips iid her of the knife incident on April 28. Phillips testified that she told no one. lithe r ihan Supervisors Masneri and Reeees, about he i nciden on thai day Moreover, although Ulmer discussed April 28 at length in her May 1 I, 77, affidavit. she made no mention of learning of the knife in- cident on0 that day As shown t hroughout this Decision I found Ulmer to be an incredible witness 12 Karin Ulmer testified that Betty Welfare ad Barbara Glenn (both emplosees), asked her how she stood n the Union lmer contended that Welfare anl Glen n harassed her at work b ecause she opposed he U nion As in licated above I do not credit Ulmer's testimony I will con- sider tiher contention of harassment under Ohjection 4, injru Mreo,er I specifical ly discredit Uthner'e, teilnii: y that ell Welfar e asked h tier how she io l ibohtl tib e tt ion. in , icL. if Ulmer's testlliony In her pre-trial aftida vi , h I ich . as direcil co ntrar ii, t r e arintg testimon i, haI regard In tier pre-trial affidaviw, Ulmer estified. Belly Welfare did nt talk to me about th e Uniot." 462 .1 1TH()t)1DIS H()ME as follows: Louise Phillips testified that Welfare "made it well known that she was for the Union." Carole Brown's only testimon? regarding WVelfare's connection with the Union was that Welfare had said that she was for the Union and, if the Union came in. she and "Barbara" were going to he the shop stewards. Employee Ardie Cam testified that Welfare had "let it be known that she was for the Union." Betty Welfare testified that she served as union ob- server throughout the election. Welfare was paid b the Union for her services as election observer. Welfare at- tended union meetings prior to the election and, on occa- sion, she asked questions at those meetings. However. Welfare did not conduct the meetings, nor did she speak at those meetings. The cases, both before the courts and the Board. show, with uniformity, that under circumstances similar to the instant case of Betty Welfare, the employee would not be the Union's agent.: In the case of Certain-feed Products Corporation . N.L.R.B.. 562 F.2d 5(00), 509-510 (7th Cir. 1977), cited by the court hercin, the Seventh Circuit held that employees on the in-plant organizing committee of the union, who made representations to other employees regarding what effect the signing of union authorization cards would have on the employees not having to pay a union initiation fee, did not thereby become agents of the union. In so holding, that court dis- tinguished the case of N.L.R.B. v. Urban Telephone Cor- poration, 499 F.2d 239 (7th Cir. 1974), pointing out that the employee in question in Urban Telephone was the em- ployee that initiated the original contact with the union; was one of three contact men selected by the union whose function was to relay information between the union and employees; and, although the union organizers heard that the employee had, on a number of occasions, threatened antiunion employees, the union organizers never repudiated the threats. The court also cited the case of Collins & 4Ailman Cor- poration v. .NL.R.B., 383 F.2d 722, 729 (7th Cir. 1967). The question in Collins & Aikman, was whether the Union, by paying its employee election observer a fee which was seven times what the employee would have been paid for working during that time, had engaged in objectionable conduct. The court there found that such a high fee had a tendency to influence employees' votes and was, therefore, objectionable. In the instant case, Re- spondent does not contend that the Union engaged in ob- jectionable conduct by paying the observers, including Welfare, an "unusually" high fee. Furthermore, the record does not support such an allegation. Welfare re- ceived a fee of $20. However, the election lasted from 2:30 to 3:30 p.m. and from 10:30 to 11:45 p.m. Welfare was required to be present throughout the voting times plus the time required for the preelection conference and the time required to count the votes. There was no l3 See also ilreone Steel Prnduct Ci, 235 NIRH 548 (1978) .uli//l', v. NL.R.B., 571 2d 1292 4th Cir 19781: as regard empl,yee Paircllo The court agreed 'ith the Board that Parello as, ni,, an agent of thc Union even hough he ails on the union's clonference hboard and the , gotiating committee Ho'eer, as to the acilng slesard, he coca fund the Board erred in finding he union as not responsible fr hi. aitlios Compare. .4Ahho,, .)ahoruratore N .R. . 544) tI 2d1 hh2 (41h ir 1,i76, showing what her , age scale was, or that the $20() fee was out of line v, ith her normal su ages for a similar period of tinle. T'he court also inquired as to whether Welfare's con- duct was attributahble to the Union even though she ma! not qualify as the Union's agent. However, Respondent presented no evidence during the hearing herein which s,kould justify my making such findinig. O()n the basis of the rcord et.idence, Welfairc did nothing more than indi- cate that she favored the Union, tell Carole Brown that she and "Barbara"'' ould he ste, ards if the Union canme in, and serve as one of the union election observers. As indicated above, nothing sas said during the knife inci- denit which would tend to attribute that action by Wel- fare to the Union. Moreover, there 'sas no evidence that Welfare, either through direct statement or implication. ever expressed that she uvas acting on the Union's behalf in ally capacity. (4) In any evcnt the incident did or did not cast a cloud rof fear or apprehension over the election ufficient fi)r it to bc .saut that it tmiht have influenced its result: In its opin- ion, the Fourth Circuit expressed concern with evidence that could have demonstrated an atmosphere of fear and apprehension among Respondent's employees as a result of the knife incident. In that regard, the court referred to testify that, "cold feeling came over the floor after it [the incident] happened" and everything became "very quiet." In that regard the court cited the case of .VL.R.B. v. Gulf States Canners, Inc., 585 F.2d 757 (1978) In GulfStates the Fifth Circuit Court of Appeals criticized the Board fior applying the wrong test in con- sidering objections to an election. The court found that the Board appeared to be concerned with the union's intent regarding the union's payment of fees to employ- ees during an election canipaign. The Fifth Circuit indi- cated that the "intent test" ,was inconsistenit with the proper test which should hare been, whether the unlaw- ful acts "interfered with the employees' exercise of free choice to such an extent that they materially affected the results of an election." The court in Gulf States, stated, "an unintentional act may have such a deleterious effect on the conduct of an election that the result does riot re- flect the voters free will." That Court held that, in at- tempting to determine the effects of a particular act, "the assay should seek to find whether the questioned action by an election candidate had a tendency to influence the outcome of the voting." The Gulf States test is applicable here.4 If the evi- dence demonstrates that Welfare's actions had "such a deleterious effect on the conduct of [the] election that the result does not reflect the voters free will," then the election should be set aside, even though Welfare had no such intention. However, Respondent, during the hearing herein. did nothing more than repeat the evidence that bothered the Fourth Circuit. Several witnesscs for Respondent testi- fied to the effect that employees were quiet after the " Set' alsoI l/cte, n i c (olrnpur n Cnl ( or \ . R 1K 54h F 2d lOSS. 1)2 4th ir lu7h) 463 DECISIONS 01F NATIONAL LAB()R RELATIONS BO()AkD knife incident. "s However, the credited evidence, did not follow up on the possibilities presented by that testi- mony. On the basis of the credited evidence only employees Phillips, Brown, Welfare, and Carnm knew of the knife incident at the time of the election. However, of that group only Phillips had any, reason to suspect that the knife incident could have had any relationship to the Union. 7 Nevertheless, according to her own testimony, Phillips completed her days work and voted in the elec- tion. Of course Respondent has enjoyed continued access to its employees and it had the right to question its employ- ees regarding its objections. 8 Nevertheless, Respondent offered no further evidence which would tend to support a finding under the Gulf States test. In the absence of evidence illustrating more than a sus- picion that the knife incident and its possible connection with the Union, were known to more unit employees. I have determined that "the incident did not cast a cloud of fear or apprehension over the election sufficient for it to be said that it might have influenced the result." (b) Objection 3: In support of this objection Respond- ent offered the testimony of employee Willie Mae Owens. Owens testified that at the time of the election she saw an unidentified woman, who she knew to be a union agent, stop five or six, or more, cars out near the intersection of the highway and Respondent's driveway. Owens testified that she could see that the woman was talking to the occupants of the cars. Owens identified one of the cars' occupants as employee Lucille Green. However, Lucille Green did not testify. Owens testified that she reported what she had observed to Administra- tor Masneri. She told Masneri that "they [are] campaign- ing right there on the grounds." Owens testified that Masneri went out and talked to the woman and, thereaf- ter, the woman moved across the highway and stood there. Masneri, who testified on other matters before Owens was called, did not testify about this particular in- cident. The testimony indicated that the woman, who Owens identified only as being a union representative, was always out of sight of the voting area. It is clear, and I find, that even by placing the most favorable consideration on Owens' testimony from the standpoint of Respondent, the evidence is insufficient to support an objection. Nor would Owens testimony con- tribute toward a finding of objectionable conduct when considered alongside the evidence offered in support of 15 Those witnesses included employee Ardie Cam who testified there was just a "cold, dull. I don't know, a feeling over the building." Howe- er, another of Respondent's witnesses, Carole Brown, testified that "ev- erybody was tense [on April 28], from the beginning of that workday up until the end of the workday." Therefore, the record does little more than show that the employees were quieter than usual n April 28, along with the inference that perhaps the election or the knife incident conitrib- uted to that situation ' Cam testified that she was told of the incident by Carole Brown on the afternoon of the election. 17 rown's testimony demonstratcd that she was not present during the earlier conversation where Phillips mentioned no one could cut hei None of the witnesses that testified about the earlier conversation placed Carn at the cinversation 1i Johnnie'i Poultrv (o., 146 NL.Rtl 770 (1964). the other objections. Respondent contended that Owens' testimony proved that the Union was electioneering near the polls during the voting period, and was, therefore, objectionable. Those contentions are not supported by the evidence. The evidence does not demonstrate that the unidentified woman was electioneering. Owens ad- mitted that she could not tell what the woman was saying or doing, other than stopping cars. The one em- ployee identified as being stopped, Lucille Green, was not called by Respondent. Nor did Respondent show why Green was not called. Masneri, who allegedly talked to the unidentified woman, was not questioned about his knowledge of the incident. Furthermore, the evidence indicated that the woman was not near the polls. Therefore, I find that this objection is not support- ed by the evidence. (c) Objection 4: In support of this objection Respond- ent offered the testimony of Karin Ulmer. According to Ulmer's testimony at the hearing, her relationship with two employees, Betty Welfare and Barbara Glenn, changed after Welfare and Glenn asked her how she stood about the Union. Ulmer testified that she told Wel- fare and Glenn that she was against the Union. From that point, according to Ulmer, her relationship with Welfare and Glenn was not friendly anymore. Ulmer was asked about specific examples and she replied, "They wouldn't help at work like they always had. They blocked my path when I had my hands full, and you know, things like that." She testified that they also in- spected her work and that inspecting her work was not part of Welfare's and Glenn's job. Ulmer did not place a date on the above matters. Additionally, Ulmer testified that, as she was coming into work, a couple days before the April 28 election, Barbara Glenn was out at the timeclock. Ulmer testified that, as she punched in and was turning around, Glenn "held my arm and it was quite a pressure and I asked her to please turn loose. She said, 'Well what are you going to do about the election,' I said that it didn't make any difference to me because as far as I was concerned that I wasn't eligible to vote anyway, and she said, 'Well, what are you going to do?' I told her I was going to vote no, and she said that I'd better think about it and vote yes because 'I think everybody is going to ask for trouble."' Again, as in other incidents mentioned above, Ulmer's testimony at the hearing differs materially from her prior affidavit testimony. In her affadavit, Ulmer testified as follows: Sometime in February . . . when I came to the timeclock she was getting there. [Barbara] Glenn asked me at the timeclock if I ever thought about the union. She held my arm as if she wanted me to be aware that she wanted to stop me and talk to me. I told her I hadn't thought about it one way or the other. (I had not thought that I would be eligi- ble to vote since I had just started.) Glenn said I better think about it. I told her to turn me lose. She dropped my arm. At that time someone was coming up the hall. She didn't say anything more about it. In late February I had to work late one afternoon and came in early. Reeves asked me if I was sched- 464 METHODIST HOME uled the day of the election. She told me I was eli- gible. Reeves told me that I should come in even if I was going to vote no. I said I was planning on voting no. Barbara Glenn and Betty Welfare were present when I said this. Glenn and Welfare did not say anything. The only time Barbara talked to me about the union was at the timeclock mentioned above. Betty Welfare did not talk to me about the union. After I made this statement to Reeves I believe that Welfare and Glenn began to harass me. It start- ed a couple of days afterwards about the Ist Satur- day in March. On about Sunday March 6-1 am not sure of the date Hughes asked who was helping me with the trays. I said Willie Mae Ritter. The other girls Wel- fare, Glenn, Pearlie Mae Hall and Eloise were taking a long lunch break and weren't helping me. I believe they were doing this to get even with me. The next time about a week later some cards were messed up on the trays. I told Brown that I thought that it was intentional. I did not see Glenn mess up the trays. She however was the only one who had access to it. This made all of us nervous and jumpy so we couldn't work everyone was on edge. On about Sunday March 6, 1 tried to pull the trays out the door on the lunch carts. I tried to get the trays out and Glenn and Welfare closed the doors. I did not say anything to them except excuse me I would like to get in their [sic]. I then started ignoring them and not bothering with them any- more. This happened on about every day for a week. Sometimes Glenn and Welfare would go down the hall and would ask me why I made the bed this way. This kind of thing stopped after about 3 weeks. I did not report this to Masnari or any supervisor be- cause I didn't want them to bother about it. In view of the continuous conflicts between her testi- mony at the hearing and her prior affidavit testimony, I place little trust in Karin Ulmer's testimony. However, of the two, it has consistently appeared that her affidavit testimony is more reliable than her testimony at the hear- ing. I note in that regard that, in every material instant, Ulmer, at the hearing, tended to exaggerate her previous testimony in order to favor Respondent's position on its objections. For example, regarding her alleged harass- ment at work, Ulmer placed the "timeclock incident" with employee Barbara Glenn only a couple days before the election. However, when she testified less than a month after the election, on May 19, 1977, she recalled that the "timeclock incident" occurred during February. Additionally, at the hearing, she testified that during the "timeclock incident," Glenn placed "quite a pressure" on her arm and threatened that "everybody is going to ask for trouble." In her affidavit, Ulmer testified that Glenn held her "arm as if she wanted me to be aware that she wanted to stop me and talk to me." In her affidavit she said nothing about Glenn threatening that everybody is going to ask for trouble. Instead, Glenn told her that she had better think about it. Even ignoring my reservations about Ulmer's testimo- ny, there appears to be nothing in the incidents men- tioned in her affidavit which would justify overturning the election. Ulmer's objective testimony regarding the alleged harassment includes only a suspicion that on one occasion Barbara Glenn "messed" up some cards on a tray; that several "girls" took a long lunch break in order to avoid helping Ulmer; that Glenn and Welfare closed a door as Ulmer tried to pull trays out the door; and that "sometimes Glenn and Welfare would ask me why I made the bed this way." Furthermore, Ulmer tes- tified that all those incidents stopped after about 3 weeks and that she did not report them to a supervisor because "I didn't want them to bother about it." Under the circumstances, I find that Ulmer's testimony at the hearing regarding the alleged harassment and the alleged "timeclock incident" are not worthy of belief. Furthermore, her affidavit testimony, which I credit only to the extent it reflects specific events which are other- wise not rebutted, falls short of proving objectionable conduct. In the first place, there is insufficient evidence to show that Barbara Glenn was an agent of the Union. Although Respondent argues that she had apparent authority suffi- cient to warrant my finding that she was an agent, I dis- agree. If anything the evidence regarding Glenn's alleged agency status, is no stronger than the evidence regarding Welfare's alleged agency status. Therefore, I find that Respondent failed to prove that Glenn (or Welfare) was an agent of the Union. Moreover, Ulmer's testimony fails to support a finding of harassment sufficient to support my finding the con- duct objectionable, even when that evidence is consid- ered in light of all the evidence presented in favor of other objections. Additionally, Ulmer's testimony dem- onstrates that the alleged harassment stopped long before the April 28 election. Therefore, I recommend that Ob- jection 4 be overruled. In view of the above findings and conclusions, I make the following: RECOMMENDATIONS It is recommend that the Board find that the objec- tions to the election filed by Respondent have not been sustained, and that it affirm its Order in the instant pro- ceeding (as reported in 234 NLRB 535). 465