Hillhaven Corp.

258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hillhaven Corporation and General Drivers, Sales- men, Warehousemen's Local 984, an affiliate of International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL-CIO.1 Cases 26-CA-11873 and 26-CA- 12045 July 29, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On October 19, 1987, Administrative Law Judge J. Pargen Robertson issued the attached decision. The Respondent filed exceptions and a supporting 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 brief and has decided to affirm the judge's rulings,2 findings, and conclusions and to adopt the recommended Order. We agree with the judge's finding that the Re- spondent violated Section 8(a)(1) by interrogating its employees about union activity, threatening its employees with discharge for supporting the Union, informing its employees that benefits were lost in the past because of the Union, asking its em- ployees to remove their names from the union peti- tion, and informing its employees that wages would be frozen for up to a year if the Respondent nego- tiated with the Union.3 However, we find it unnec- i On November I, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change. 2 The Respondent has excepted to some of the judge's credibility find- ings 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 Cir 1951) We have carefully examined the record and find no basis for reversing the findings s The following case law supports the judge's finding that each of the above-described activities violates Sec 8(a)(1) See , e.g, Sunnyvale Medi- cal Clinic, 277 NLRB 1217 (1985), Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v NLRB, 760 F.2d 1006 (9th Cir. 1985) (totality of circumstances may indicate in- terrogations are coercive , e g, where the interrogations , as here, were di- rected at employees not shown to be known union adherents, and in- volved another employee's union activity or were accompanied by a threat) See Dutch Boy. Inc, 262 NLRB 4, 6-7 (1982), enfd sub nom Artra Group. Inc. Y. NLRB, 730 F 2d 580 (10th Cir 1984), and Russell Stover Candies, 221 NLRB 441, 443 (1975) (statements about adverse ef- fects of unionization at other facilities found to amount to implied threats) See Kut Rate Kid & Shop Kwik, 246 NLRB 106, 119 (1979), and L'Eggs Products, 236 NLRB 354, 410-411 ( 1978), enfd in pertinent part 619 F.2d 1337 (9th Cir 1980) (violations found where employers' re- quests, as that made by Administrator Judy Ullery, to withdraw authori- zation for union representation exceeded mere information about proce- dure and amounted to appeals for the employees to undertake that action). See Alpha Cellulose Corp., 265 NLRB 177. 177-178 ( 1982), enfd mem 718 F.2d 1088 (4th Cir 1983), and Gould. Inc, 260 NLRB 54, 59 (1982) (statements that negotiations would be protracted and wages essary to pass on whether these statements are also violative of Section 8(a)(5), as found by the judge. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Hillhaven Corporation, Memphis, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge. frozen were found unlawful in context , as here, of regularly provided wage increases). Member Cracraft agrees with the judge that under all the circum- stances, the questioning of employees Annie Gray and Barbara McClure by Supervisor William Bunton was illegal interrogation in violation of Sec 8(a)(1) of the Act. In so finding, however, she does not rely on Sunnyvale Medical Clinic, supra. 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain collectively in good faith with the General Drivers, Salesmen, Warehousemen's Local 984, an affiliate of Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO as the exclusive bargaining representative of our employees in the following appropriate unit: All full-time and permanent part-time nurses' aides, housekeeping employees, dietary em- ployees, and laundry employees employed at the Respondent's Care Inn Raleigh, Tennessee location, excluding all other employees includ- ing nurses, office clericals, professional em- ployees, guards and supervisors as defined in the Act. 290 NLRB No. 37 HILLHAVEN CORP WE WILL NOT refuse to bargain with the above- named Union by refusing to process grievances. WE WILL NOT threaten our employees with dis- charge if they support the Union. WE WILL NOT interrogate our employees con- cerning their union activities or membership. WE WILL NOT inform our employees that bene- fits were lost in the past because of the Union. WE WILL NOT ask our employees to remove their names from a union petition. WE WILL NOT inform our employees that wage increases could be frozen up to a year if we negoti- ate with the Union. 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, on request, bargain collectively with the above-named Union, as the exclusive bargain- ing representative of all the employees in the above-described appropriate unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an agreement is reached, embody such understand- ing, and sign any agreement reached. WE WILL, on request, process the grievance of employee Paula Gaither that we refused to process on October 29, 1986. HILLHAVEN CORPORATION James Fuller, Esq., for the General Counsel. Eric Nadworny, Esq., for the Respondent. Jesse C. Sykes, for the Charging Party. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. This case was heard in Memphis , Tennessee, on 11 March and 27 May 1987. The charge in Case 26-CA- 1873 was filed on 31 October 1986. The complaint in that case issued on 16 December 1986. The charge in Case 26-CA-12045 was filed on 20 March 1987 and amended on 20 April 1987. Complaint issued in Case 26- CA-12045 on 21 April 1987. On 29 April 1987 an order issued consolidating the captioned cases and reopening the hearing. The General Counsel alleges that Respondent violated Section 8(a)(1) and (5) by refusing to recognize and bar- gain with the Charging Party (Union) since 26 August 1986, by refusing to consider and discuss grievances since 22 October 1986, and by various statements by su- pervisors on 11 and 13 March 1987. The Respondent in its answer to the complaint, admit- ted all the commerce allegations, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Charging Party is a labor 259 organization within the meaning of Section 2(5) of the Act. 1. THE WITHDRAWAL OF RECOGNITION Through admissions and stipulations the General Counsel proved that Respondent has refused to recog- nize and bargain with the Union since August 1987. The Union was certified as the exclusive bargaining repre- sentative on 28 December 1982. A collective-bargaining agreement was in effect between the Union and the pred- ecessor employer when Respondent purchased its Ra- leigh, Tennessee nursing home on 1 August 1986. That contract was to run from 15 July 1983 through 15 Janu- ary 1987. Respondent admitted that it is a successor employer to Care Inn Raleigh, and the record fully supports that ad- mission. The General Counsel also proved that the Union filed a grievance on behalf of employee Paula Gaither on 22 October 1986. By a 29 October 1986 letter Respondent advised the Union: As you were informed on August 26, 1986, Care Inn Raleigh had a good faith doubt that you contin- ued to represent our employees in an appropriate bargaining unit. Therefore, we decline to accept or process this grievance. Respondent, in its brief, defended the allegation on the grounds that it had a "reasonably grounded doubt, based upon objective considerations , for believing that its em- ployees no longer desired to be represented by the Union." Respondent argues that its defense was proven by record evidence showing a "lack of union member- ship," a lack of contact with the union stewards from January through August 1986, and by expressions from employees during the period January through August 1986. Regarding the lack of union membership, Judy Ullery, Respondent's and the predecessor Employer 's administra- tor during 1986, testified that 14 or 15 employees were on union dues checkoff in 1986 . From January to August 1986 no additional employees authorized checkoff deduc- tions. Ullery testified that there were 140 to 150 employ- ees in the bargaining unit. Ullery also testified that she had no discussions with the union steward regarding grievances from January to August 1986 . According to Ullery , she had only one such discussion before January 1986. Regarding the expressions by employees, Ullery testi- fied that in monthly staff meetings during the January through August 1986 period , employees "would ask how did I get rid of the Union." Ullery could not identify any of those employees. Susan Morganeli, who was administrator in training in 1986, testified that questions were raised by employees concerning the Union during in-service training meet- ings. Morganeli recalled three employees by name. Em- ployee Trudy Calhoun asked Morganeli what could be done to get rid of the Union, and employees Carol Pinner and Meg Hutchins stayed after the meeting "to reinforce the question as far as what could be done." 260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Housekeeping and Laundry Supervisor William Bunton testified that employee Tom Rivers asked him "how can we get rid of the Union." Employees Gregory Becton and Kenny Young asked Bunton how they could stop union dues from being deducted from their pay. Bunton testified that two or three other people asked him how to get rid of the Union , but Bunton could not recall the names of those employees . Bunton recalled that employees Inez Blance and Clarence Macklin were part of conversations involving getting rid of the Union. Judy Ullery and Respondent's district director, Jimmy Crowe, testified about a meeting conducted at the nurs- ing home by Respondent's regional vice president, Dick Ebersol, on 11 August 1986. Crowe recalled that over 100 employees attended the 11 August meeting . Ebersol explained to the employees that Respondent had pur- chased the nursing home. According to Crowe, an em- ployee asked Ebersol, "Does this mean that we no longer have a union" and Ebersol replied , "to my knowl- edge, we don't." Ullery and Crowe testified that the em- ployees applauded following Ebersol 's response. 11. ANALYSIS OF EVIDENCE A. Union Membership Although Respondent argued that one of the objective factors they considered was a showing that union mem- bership did not increase from January to August 1986, the evidence did not support that contention. What the testimony did illustrate was that no additional employees authorized Respondent to deduct union dues from their pay during the January to August period. Prior to Janu- ary 1986 only 14 or 15 of the 140 to 150 employees in the unit had authorized Respondent to deduct union dues. The collective-bargaining agreement contains the fol- lowing language regarding deduction of union dues: The Company shall deduct monthly Union dues from the pay of all employees who are members of the Union and who hereafter voluntarily authorize such deductions in writing on a form approved by the Company and supplied by the Union to the Company. (Article I-C) As shown above, the contract provides two conditions for dues deductions, (1) the employee must be a union member, and (2) the employee must authorize such de- duction in writing. Because of that provision, it is appar- ent that union members that had not authorized such de- ductions in writing would not be included on Respond- ent's checkoff list. Therefore, showing of the number of employees that participated in deduction of dues may not accurately reflect the number of employees who were members of the Union. The fact that no additional employees signed dues- checkoff authorizations from January through August 1986 is not illustrative of objective considerations. Dues checkoff does not discretely reflect union membership. In fact, testimony shows that before 1986 only 14 or 15 of the 140 to 150 employees in the unit were on dues checkoff. Moreover, even if Respondent had successfully shown that all union members were on dues checkoff, the Board has consistently distinguished union membership from employee support of the Union: It has been clearly established that a distinction exists between union membership and union sup- port, foreclosing relying upon one as evidence of the other. Here, union membership being voluntary in this right-to-work State emphasizes that distinc- tion. Many employees while approving of the Union may not choose to give it financial support or participate as members. [Wald Transfer & Storage Co., 218 NLRB 592 (1975).] See also Atlanta Hilton & Towers, 278 NLRB 474 (1986); Hydro Conduit Corp., 278 NLRB 1124 (1986); Thomas Industries, 255 NLRB 646 (1981), enfd. as modi- fied 687 F.2d 863 (6th Cir. 1982). B. Lack of Contact with the Union Administrator Judy Ullery testified that she had no contact with a union steward regarding grievances during the January to August 1986 period. However, in rebuttal the General Counsel offered evidence that a grievance was filed with the Respondent's predecessor by the Union regarding the discharge of employee Artri- cia Smith on 3 April 1986 . Union Business Representa- tive Jesse Sykes testified without rebuttal that he re- solved Artricia Smith's grievance through discussions with Administrator Judy Ullery. Those discussions oc- curred between 3 and 8 April 1986. On 1 June 1986 an arbitrator issued his decision re- garding the Union's grievance over the discharge of 11 of Respondent's predecessor's employees. By letter from Administrator Judy Ullery dated 10 June 1986, Respond- ent's predecessor notified the Union of its compliance with the arbitrator's decision. On 14 July 1986, the attorney for Respondent's prede- cessor wrote the Union advising of their agreement with the Union to resolve a dispute regarding the discharge of one of the bargaining unit employees. On 17 July 1986 Respondent's predecessor advised the Union of its pending sale to Respondent and offering to bargain regarding the effects of the sale. On 26 August 1986 the predecessor employer mailed the Union its settlement proposal in Case 26 -CA-11199. The General Counsel argues that the above evidence, which was unrebutted, clearly establishes that the Union remained active during the period alleged by Respond- ent. In fact, that evidence shows that despite Administra- tor Judy Ullery's testimony regarding her lack of contact with the Union's agent, she had several contacts with the Union during the January to August time period. In view of the entire record , I find that the Union was not inactive. Nor did Respondent have a reasonable basis to believe that the Union was inactive, or that the Union had abandoned its role as bargaining representative. See Cowles Publishing Co., 280 NLRB 903 (1986). HILLHAVEN CORP C. Employee Expressions The General Counsel offered testimony from employ- ees Belinda Young, Jessie Jackson, Clementine Posey, and Marjorie Fulton, and former employee Sharon Nash to rebut Respondent's argument that employees ex- pressed a desire not to be represented by the Union. Additionally, Judy Ullery testified that she could not identify any of the employees who allegedly stated they wanted to get rid of the Union in meetings before August 1986. Moreover, Supervisor William Bunton was unable to identify the two or three people, in addition to Tom Rivers, who allegedly asked him how to get rid of the Union. As to the evidence regarding unidentified persons asking how the employees could get rid of the Union, that evidence cannot form the basis for objective consid- erations. In the first place that testimony is not credible. I cannot credit that Administrator Ullery would be unable to identify a single complaining employee, if em- ployees were regularly voicing the same request in meet- ings from January through July 1986. Employees that testified disputed that those questions were asked. Secondly, such testimony, if credited, would not show that unit employees or employees in addition to those named in other testimony, were asking to get rid of the Union. Only 140 to 150 of the total employee comple- ment of 200 employees are in the bargaining unit. By her being unable to identify questioning employees, Adminis- trator Ullery could not establish that the employee or employees were in the bargaining unit. Additionally, Ullery could not establish that the employee was not always the same person, and that that person was not one of the employees identified as complaining about the Union to Susan Morganeli or William Bunton . Addition- ally, that type of testimony provides insurance against full cross-examination and rebuttal. The alleged com- plaining employee cannot be identified and questioned. If that type of testimony was routinely accepted as proba- tive, it would open an avenue for false testimony. Respondent's evidence was unrebutted and is credited in the following respects. Susan Morganeli testified that she was questioned by employee Trudy Calhoun during an in-service meeting in the spring of 1986. Calhoun asked what could be done to get rid of the Union. Morganeli testified that some of the nursing assistants stayed over "to reinforce the question as far as what cold be done." Morganeli identified two of those employees as being Carol Pinner and Meg Hutch- ins. Supervisor William Bunton testified that employee Tom Rivers asked him how to get rid of the Union. Bunton also testified that employees Gregory Becton and Kenny Young asked him how they could stop their union dues deductions from being taken out of their pay- check every 2 weeks.' Bunton testified that he over- heard other employees talking about getting rid of the Union. Bunton testified that he recalled the names of two employees who were involved in those conversations as being Inez Blance and Clarence Macklin. I Neither Becton nor Young indicated a desire to get rid of the Union 261 Additionally, Judy Ullery and Jimmy Crowe testified about an employee meeting on 11 August 1986. At that meeting Respondent announced to the employees that it had purchased the Raleigh, Tennessee nursing home. Ac- cording to Crowe someone2 asked Respondent's regional vice president, Dick Ebersol, "Does this mean we no longer have a union." Crowe testified that Ebersol re- plied, "to my knowledge, we don't." According to both Crowe and Ullery, the employees applauded Elbersol's reply. In rebuttal the General Counsel called Brenda Young, Sharon Nash, Jessie Jackson, Clementine Posey, and Marjorie Fulton. All those employees agreed with Crowe and Ullery that someone did ask Ebersol about the Union. However, those employees testified that other statements were made in support of the Union, and all testified that no one applauded Ebersol's remarks. Regarding the 11 August meeting, Brenda Young, who has been an employee at the Raleigh Nursing Home for 6 years, agreed with Crowe and Ullery that an em- ployee asked Dick Ebersol if there was still a union in the facility. Young also agreed with Crowe's recollection of Ebersol's response. However, Young testified that the employees did not applaud. According to Young the meeting broke up because state inspectors arrived to in- spect the nursing home. Sharon Nash, a former employee,3 testified that she heard an employee ask if union dues were "going to still be taken out of their checks." However, in disagreement with Crowe and Ullery, Nash testified that employees did not applaud. Jesse Jackson recalled an employee asking Ebersol "was there a union in the facility." Jackson testified that after Ebersol replied the "building was union free," em- ployee Marjorie Fulton asked "why are you still taking union dues if there is not a union." Ebersol replied that would be taken care of. Jackson testified that she spoke up and said there was a Union in the facility . Jackson testified that the employees did not applaud. Clementine Posey, who has been employed at Re- spondent's nursing home for 3 years, testified in accord with the testimony of Jessie Jackson except Posey re- called it was Marjorie Fulton who said there is a union in the building. Posey testified that the employees did not applaud, rather they "looked at each other in shock because everybody thought there was a union." Majorie Fulton, who has worked at Respondent's nursing home for 2 years, testified in accord with the tes- timony of Clementine Posey. Fulton testified that there was not a clapping of hands. I am convinced from the testimony of Fulton, Posey, Jackson, Nash, and Young that there was not applause from a noticeable number of employees following Eber- S 2 AS in earlier testimony . Respondent's witnesses were unable to identi- fy the questioning employee However, in this one instance the testimony was corroborated by several witnesses called by the General Counsel. " Respondent argues that Nash and Jessie Jackson should be discredit- ed since both were discharged by Respondent and were therefore biased However, the General Counsel introduced an affidavit from Sharon Nash showing that She gave similar testimony before her discharge (see FRE 801 (d)(1)) I find that neither Nash nor Jackson was impeached Their testimony is in accord with other evidence that I credit 262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sol's comments that there was no union. Respondent pro- duced no nonsupervisory employees to support the con- tention that the employees applauded . The above-men- tioned witnesses called by the General Counsel , and es- pecially employees Posey and Jackson , impressed me with their demeanor. Posey and Jackson demonstrated a better recollection of the details of the 11 August meet- ing than either Judy Ullery or Jimmy Crowe. III. CONCLUSIONS In situations when a union is the certified bargaining representative there exists a presumption of continuing majority status. Similarly, when a union has a collective- bargaining agreement, there is a presumption of continu- ing majority status even after the contract expires . Wilder Construction, 276 NLRB 977 (1985). When a successorship is established, there is a pre- sumption of continuing majority support . NLRB v. Burns Security Services, 406 U.S. 272 (1972); Redok Enterprises, 277 NLRB 1010 (1985); Royal Vending Services, 275 NLRB 1222 (1985). In all the above-mentioned situations, an employer may overcome the presumptions by showing that either (1) the union has lost its majority support or (2) the em- ployer has a reasonable doubt, based on objective consid- erations, that the union has majority support . In this case, there was no evidence showing that the Union had actually lost majority support. Respondent offered evidence that it withdrew recogni- tion on the basis of a reasonably based doubt of the Union's continued majority support. To pervail in its de- fense Respondent has the burden of proving that its doubt was reasonably based , by establishing that the doubt was grounded in objective considerations. Wilder Construction, supra. Those objective considerations must rely, in the final analysis, on facts showing that the unit employees reject- ed the Union (Wilder Construction , supra), or alternative- ly, that the Union has abandoned the unit . As shown above, the credited evidence shows that the Union did not abandon the unit by inactivity. Here, the outstanding query must deal with whether Respondent was led to believe that the employees reject- ed the Union. By taking the credited evidence in the light most fa- vorable to Respondent, the record shows the following: Three employees, Trudy Calhoun, Carol Pinner, and Meg Hutchins, may have demonstrated to Susan Mor- ganeli that they wanted to withdraw from the Union. At most, five other employees expressed to William Bunton that they wanted to withdraw from the Union.4 The above facts show that only 8 employees, at the most, in a unit of 140 or more, wanted to get rid of the Union. Regarding the 11 August 1986 meeting, the credited evidence shows only that an employee asked if the Union continued to represent the unit employees. Jimmy Crowe's testimony shows that an unidentified employee asked, "Does this mean that we no longer have a Union." 4 As shown above, however, two of the five only requested of Bunton information on how to rescind their dues deduction As shown above, I reject Crowe's testimony that 60 to 70 percent of the employees applauded. Even if credited, however, that testimony would not establish a reasonable basis for believing that the Union did not maintain ma- jority support. Testimony from Administrator Judy Ullery established that about 50 to 60 of Respondent's employees were not in the bargaining unit . The evidence did not show how many of the employees at the 11 August meeting were members of the bargaining unit. Therefore, Respondent failed to show that any 60 per- cent of the employees at the meeting necessarily consti- tuted over 50 percent of the unit employees . Ullery testi- fied there were about 140 to 150 employees in the unit. Respondent's evidence shows that there were at least 100 employees at the 11 August meeting . If 60 of those were nonunion employees , it is apparent that a possibility ex- isted that only nonunit employees applauded. Although the above analysis results in what may be an unlikely scenario, it is important to keep several thoughts in mind. It is Respondent's burden to show that it had an objective belief that the unit employees in substantial numbers expressed a desire to get rid of the Union. That belief must be shown to be based on objective factors. With that burden in mind, it is necessary to analyze the evidence in a critical light in order to consider the objec- tivity of the evidence . I cannot conclude, for example, that a question of whether the Union continues to repre- sent the employees shows that the questioning employee is opposed to the Union. Moreover, I cannot conclude, for example, that applause in a room that included unit and nonunit employees represents the desires of unit em- ployees, absent some proof that applauding unit employ- ees constituted a substantial portion of the total bargain- ing unit. The record contains no such proof. See Thomas Industries, supra. The credited evidence shows that , at most, only 8 em- ployees out of a unit exceeding 140 expressed a desire to get rid of the Union. At least one other employee ques- tioned whether they were still represented by the Union after Respondent purchased the nursing home . However, that employee did not express a desire to get rid of the Union. On the basis of that evidence it is clear, and I find, that Respondent did not have a reasonable basis to doubt the Union's majority status in August 1986. A. Refusal to Consider the Gaither Grievance As shown above, Respondent advised the Union on 29 October 1986 that it would not accept the Union's griev- ance regarding Paula Gaither . Respondent based that action on its "good-faith doubt that (the Union contin- ued) to represent our employees." Because of my findings that Respondent violated Sec- tion 8(a)(1) and (5) by refusing to recognize the Union in August 1986, it follows that Respondent had a continu- ing duty to bargain in good faith in October 1986. Before August 1986 Respondent and the Union had an established procedure to process grievances . That proce- dure is outlined in the collective-bargaining agreement, which is in evidence . After Respondent took over the nursing home on 1 August 1986 it made only two changes in the employees' terms and conditions of em- HILLHAVEN CORP. ployment. Those changes involved insurance and meals for employees. No change was ever announced , and the evidence does not show that Respondent instituted any changes in the grievance procedure. Since Respondent did not change the grievance proce- dure at a time before it began operations with a full com- plement of employees, its subsequent refusal to process the grievance because it had illegally withdrawn recogni- tion also constitutes a violation of Section 8(a)(1) and (5). Turnbull Enterprises, 259 NLRB 934 (1982). 1. The March 11, 1987 speech After the first day of hearing , Administrator Judy Ullery returned to the nursing home and addressed the employees. Ullery admittedly spoke to the employees re- garding their efforts to organize for the Union . The Gen- eral Counsel alleges that that speech violated the Act as follows: Informed its employees that the Union caused em- ployees benefits to be eliminated and threatened to eliminate its employees benefits. The General Counsel called five witnesses, all of whom were employed by Respondent on 11 March 1987 to testify regarding Judy Ullery's speech. Former employee Deloris Woods testified that Ullery told the employees some of the disadvantages of having the Union, that "some of our benefits would be taken away from us." Annie Gray and Anita Parnell testified about the March 11 speech, but Gray's and Parnell's tes- timonies did not include anything about benefits being taken away. Betty McClure recalled that Ullery asked the employees if they could recall "when the benefits [were] taken away ." McClure said Ullery told them the benefits were taken away because of the Union. Barbara Walker recalled that Ullery told the employees that the Union they had before had taken away "some of our va- cation benefits and insurance benefits." Judy Ullery testified as follows regarding her com- ments about loss of benefits: Q. Now, at the meeting you said you told the employees about benefits being lost in the past. Isn't it a fact that you told them that benefits could be lost again if the Union comes back in? A. I did not say that. All I said-because I knew that I would have to answer for what I said-was that my experience has been in the past, that this is what has happened. I did not say this is what would happen in the future, no. Q. Your experience had been in the past, that em- ployees would lose benefits if the Union came in? A. My experience had been in the past , from the Union negotiations that I had been in at the Ger- mantown facility, and I always used the German- town facility, because I was in on every negotiation at that time-I said that, yes, indeed, they did lose benefits, and they did. Respondent also called Assistant Director of Nursing Ruth Landers regarding Ullery's speech: 263 Q. Do you have any recall of any statements that employees had lost benefits at Germantown? A. No, sir, I do not. We did have the statement that they did lose their insurance benefits. 2. Analysis The bulk of the testimony illustrates that Ullery's re- marks included comments that employees had lost bene- fits in the past because of the Union . I am convinced that Ullery did not specifically threaten that benefits would be taken away. Only Deloris Woods recalls such a threat. The General Counsel's witnesses, McClure and Walker, agreed with Ullery and Landers that Ullery mentioned only that benefits had been lost in the past. a. Solicited employees to repudiate their union membership and support Deloris Woods testified: A. Well, [Ullery] said that if anybody had signed forms, that she suggests that we get them , and tear them up, and if we had a friend , or knowed of anyone that had signed, to talk to them. Q. Okay. Did she say what kind of a form? A. Well, she was talking about the Union slip, the form for the Union. Annie Gray testified: Q. Would you tell us what Ms. Ullery-what you recall Ms. Ullery saying at this meeting? A. That she knew about some employees passing around some slips of paper concerning the Union, and that they need to think twice before joining the Union. Betty McClure recalled: Q. Would you tell us what you remember Ms. Ullery saying at this meeting? A. Well, she started out saying that the reason we wasn't getting-wasn't getting any nickel raises was because of the Union. Then she said, for those of us that had friends, that we ought to talk to them about the Union. Tell them that the Union, you know, wasn't no good, and that we'd better get out. Barbara Walker testified: Q. Now, would you tell us what you remember Ms. Ullery saying during that meeting? A. She said that it was okay, for her lawyer-her lawyer said it was okay for her to give that meet- ing, and she said that she had heard that there was a Petition going around, that somebody had signed up for the Union, and if we had signed up, she would like for us to take our name off of the Petition. Anita Parnell stated: Q. Would you tell us what you remember Ms. Ullery saying during that meeting? 264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A. I don't remember much, but I know-I know that she said that whoever was in the Union, it was best for them to get out of the Union, stuff. It wasn't very much that I remember though, because I really wasn't paying no attention. Q. Did she say how long the freeze would be? A. She said it would take approximately a year, like it did last time. Regarding the unfair labor practices and raises, Gray testified: Assistant Administrator Brenda Howell testified that Judy Ullery did not tell the employees that she would like them to get out of the Union. However, Judy Ullery admitted that she did ask the employees to take their names off the petition: Q. Did you tell the employees not to-tell the employees to take their names off the Petition, or any card if they had signed? A. I did. They asked me if they had signed it, and if they did not mean to sign it, and my sugges- tion was for them to call the Union , and see if there's any way they could have their name re- moved. That's the ones that called me and asked me about it. 3. Analysis Although it is not absolutely clear from Ullery's testi- mony whether she asked employees to remove their names from the union petition while speaking to the em- ployees on 11 March, I am convinced from her testimo- ny and from the testimony mentioned above that Ullery did make that request during her 11 March speech. Ul- lery's testimony was in the context of a chain of ques- tions regarding her 11 March speech and she did not say that those comments were not included in that meeting. Informed employees that wage increases would be frozen and that the employees had not received a wage increase because of unfair labor practices filed with the board. Regarding wage increases, Deloris Woods testified: Q. Do you remember anything being said about raises? A. Oh, yes. She said that the reason why we haven't gotten our nickel raise was because some girl had filed charges against the company. Q. And was any question ask about the raise? A. Yeah. It was some girl there, and she asked about, you know, was that the reason why we wasn't getting our nickel raise, because of this girl who had filed charges against the company. She really didn't answer her, you know, didn't give her an answer to the question. Annie Gray: Q. Did she say anything else? A. Yes. She stated that the last time the Union was in, that they put a freeze on the wages, and whatever else that was concerning the Union, and it put a stop on things for about a year , and that if the Union came into force, that it would put a freeze on the raise you're supposed to get annually , for your year to year. Q. Did she say anything about the unfair labor practice charge, and the raises? A. I can't remember, because I wasn't paying too much attention to her. Betty McClure recalled: Q. Do you remember anything else she said? A. And she said that the reason we wasn't get- ting the nickel raises was because of the Union, be- cause they had, you know, had everything at a standstill. Barbara Walker: Q. Did she say anything else about a wage in- crease? A. She said that we wouldn' t get a increase in pay, because of the lawsuit that they had going, and that it would take a whole year before-if the Union came in, it would be a whole year, and then they had to sit down, and decide the benefits and everything. It would be a whole year before we'd get any benefits and raises. Anita Parnell: Q. Did she say anything else about the Union? A. No. She said that if they did get a Union up in there, it would be on a freeze for a whole year. Q. Did she say what would be on a freeze? A. No, she didn't say. She just said everything would be on a freeze, but I don't remember if she said nothing. Respondent's Administrator Judy Ullery testified: Q. By Mr. Nadworny: Did you make any state- ments to employees that they would lose any wage increases, that they presently had? A. Absolutely not. Q. Did you say anything to employees, concern- ing what would happen during negotiations for a contract? A. I don't remember. Later, on cross-examination , Ullery testified: Q. Now, you testified that you told the employ- ees that the unfair labor practices-Well, I'm sorry, let me ask you again. What did you say about the unfair labor practices? A. I told them, when they asked about the money, that at this point we were following the contract, because an employee from the kitchen had filed a grievance, and the Union-we had refused to HILLHAVEN CORP. hear the grievance, and the Union had filed the unfair labor practice. Q. And I believe, you testified you told the em- ployees you were following the contract with regard to the raises? A. That's right. However, Assistant Administrator Brenda Howell tes- tified regarding Ullery's 11 March address: Q. Did she say anything to them about wages being frozen? A. There were some questions from the floor, about 90 day increases, and she addressed it, that everything had been frozen, and would remain under the contract until the NLRB hearing was set- tled-the charges were settled. Q. Did employees ask about the five cent in- crease? A. No. They asked about a 90 day increase, which was not in their present contract. Q. Did she ask them or tell them, that it could be a year without increases, or changes? A. She told them if there was another Union election, elections could go on or the negotiations could go on for a period of a year, which she had seen that happen. Q. Did she say that that had happened in the past? A. Yes. Assistant Director of Nursing Landers testified: Q. Now, when Ms. Ullery talked aobut the Ger- mantown facility, and what happened at that facili- ty, exactly what did she say happened at that facili- ty? A. She only referred to the length of negotia- tions, that wages were frozen during that period, and that if anyone-she also encouraged anyone if they had any questions, they might talk to some of the employees that were at Germantown, at that time. Some that joined, and some that did not join. 4. Analysis Although the above-mentioned testimony illustrates confusion, I am convinced that Judy Ullery did warn the employees that dealing with the Union would result in protracted negotiations, which in the past had lasted for a year, and that wages would be frozen during that time. I find the evidence unconvincing that Ullery threatened the employees that they had lost a wage increase because of unfair labor practice charges. William Bunton: Two former employees testified about conversations with William Bunton. Bunton, like Judy Ullery, had testified in the 11 March hearing. Annie Gray testified that a day or so after the 11 March hearing she talked with Supervisor Bunton in the dining room. Only the two of them were involved in that conversation: Q. And would you tell us what Mr. Bunton said to you during that meeting? 265 A. He came to me, and said that Martha Ryan, he had asked Martha Ryan if she was going to join the Union, and she said that, no, she wasn't going to join it, and he asked me if I was going to join the Union, and I told him, No. Q. Now, before Mr. Bunton asked you that ques- tion, had you ever told him anything about your feelings toward the Union? A. No. Barbara McClure recalled talking with Bunton in the breakroom on 13 March. Only McClure and Bunton were present: Q. Tell us what Mr. Bunton said to you? A. Well, he came in while I was smoking a ciga- rette, he lit up him a cigarette, and he asked me, you know, did I join the Union, so I told him, No. So, then he said, have I thought about it, or have I been thinking about it, so I told him , you know, I didn't tell him nothing. So then he said , well, I would join myself, but because, you know, I couldn't, because of his job. So, then he asked- then he said, well-So then I told him that I had, you know, I had thought about it, so then he said, you know that if Ms. Ullery finds out, you know, about those that join the Union, that she was going to get rid of them. So, then I told him, I said, well, I feel she shouldn't fire nobody beccause they join some Union, and if she's going, you know , to fire me, she'd better fire me for a reason, and not be- cause, you know, I joined some Union. So then he said, well, she'll find out, and then he also said, and that's not hard for her to do. Bunton denied talking with either Gray or McClure about the Union. Bunton's testimony regarding the alleged conversa- tions with Gray and McClure appears to conflict with testimony he gave on 11 March. On 27 May when Bunton was trying to minimize his contacts with employ- ees to show that he did not make violative comments he testified: Q. But I mean, you do sit in the breakroom from time to time? A. No, I always sit in the dining room Q. You never sit in the breakroom? A. No, not really. Sometimes I'll go in there to eat my lunch, but there would be, you know, a room full of employees, or I might eat it in the dining room. Q. But you do go in and talk to the employees in the breakroom, don't you? A. I go inside, but I really don't talk to many em- ployees there, unless they're working under my su- pervision. Q. You've never talked to an employee in the breakroom? A. Yeah, I've talked to employees. Q. You've talked to employees about the Union, haven't you? 266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A. No, I have not. Q. Employees have asked you questions about the Union, haven't they? A. No, sir. They have not. Q. Employees have never asked you a question about the Union? A. No, sir. Excuse me, yes, one of my housekeep- ers did , but I told him that I couldn 't-you know, that he would have to talk to Ms. Ullery about the Union. Any questions regarding the Union, they would have to go talk to her. Q. And that was the only time? A. That was the only time that anyone ever asked me concerning the Union. Q. That one single time? A. That I recall, sir. On 11 March, however, when Bunton was trying to establish that he had contacts with employees to show that he had knowledge about employee efforts to get rid of the Union, Bunton testified that he would be in the breakroom "taking my break or smoking a cigarette" when he would overhear employees , in and out of his department , discussing getting rid of the Union. Addi- tionally, on that occasion Bunton recalled several conver- sations with employees about the Union. On 27 May he tes- tified he never had but one conversation with an em- ployee about the Union . Bunton's conflicting testimony convinces me that he cannot be believed . I was im- pressed with the demeanor of Annie Gray and Betty McClure. Both appeared to testify truthfully. I credit their testimony . I find that their testimony establishes il- legal interrogation and a threat of discharge. 5. Conclusions As shown above, on or before March 1987 Respond- ent had an obligation to recognize the Union as bargain- ing representative for its unit employees. Once the Union becomes exclusive bargaining representative it is incum- bent on an employer to avoid acting to undermine the Union. Obviously, an atmosphere of good-faith collective bargaining is impossible when the employer is working to undermine the Union. In the instant situation Respondent obviously hoped to prevail in the allegation that it illegally withdrew recog- nition from the Union. If Respondent had been successful then the Ullery address on 11 March to employees would be considered in light of Section 8(a)(1) alone. However, as found on 11 March Respondent was obli- gated to recognize the Union and to avoid taking actions to undermine the Union in violation of Section 8(a)(1) and (5). Against that background it is apparent that Respond- ent, by Bunton threatening its employees with discharge for supporting the Union and by interrogating employees about union activity (Baton Rouge General Hospital, 283 NLRB 192 (1987), and by Judy Ullery informing its em- ployees that benefits were lost in the past because of the Union, asking its employees to remove their names from the union petition, and informing its employees that wage increases would be frozen for up to a year if Re- spondent negotiated with the Union, attempted to under- mine the Union in violation of Section 8(a)(1) and (5) of the Act. Bay Area-Los Angeles Express, 275 NLRB 1063 (1985); Marriott Corp., 258 NLRB 755 (1981); Hedaya Bros., Inc., 277 NLRB 309 (1985). CONCLUSIONS OF LAW 1. Respondent Hillhaven Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. General Drivers, Salesmen , Warehousemen's Local 984, AFL-CIO, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. From 1 August 1986, the Union was, and has been at all times since, the exclusive bargaining representative of Respondent 's employees in the bargaining unit de- scribed below, within the meaning of Section 9(b) of the Act. The appropriate bargaining unit is All full-time and permanent part -time nurses' aides, housekeeping employees , dietary employees, and laundry employees employed at the Respondent's Care Inn Raleigh , Tennessee location, excluding all other employees including nurses, office clericals, professional employees, guards and supervisors as defined in the Act. 4. Respondent , by refusing to recognize and bargain with the Union since 26 August 1986, by refusing to con- sider and discuss grievances since 22 October 1986, by asking its employees to remove their names from the Union's petition, by telling its employees that benefits were lost in the past because of the Union , by threaten- ing its employees with discharge for supporting the Union , by interrogating its employees about the Union, and by informing its employees that wage increases would be frozen for up to a year if Respondent negotiat- ed with the Union violated Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that Respondent be or- dered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed5 5 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. HILLHAVEN CORP. ORDER The Respondent, Hillhaven Corporation , Memphis, Tennessee, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain on request with General Drivers, Salesmen, Warehousemen's Local 984, AFL-CIO, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, in derogation to its bargaining obligation im- posed by the Act. (b) Refusing to consider and process grievances. (c) Informing its employees that benefits were lost in the past because of the Union, asking its employees to remove their names from a union petition, threatening its employees with discharge for supporting the Union, in- terrogating its employees about the Union, and by in- forming its employees that wage increases would be frozen for up to a year if Respondent negotiated with the Union. (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 designed to ef- fectuate the policies of the Act. (a) On request, bargain collectively with the above- named Union as exclusive bargaining representative of all 267 the employees in the aforesaid appropriate unit, with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an agreement is reached, embody such understanding in a signed agreement. (b) On request process a grievance regarding employee Paula Gaither, which it refused to process on 29 October 1986. (c) Post at its Care Inn Raleigh Nursing Home, copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Regional Director for Region 26, 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. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. a If this Order is enforced by a judgment of a United State% court of appeals, the word% in the notice reading "Posted by Order of the Nation- al Labor Relations Board " %hall read "Potited Pursuant to a Judgment of the United State% Court of Appeals Enforcing an Order of the National Labor Relations Board."