Gracelands, Inc. Convalescent Center

GRACELANDS INC Gracelands, Inc, Convalescent Center and Industrial Union Department, AFL-CIO Case 26-CA- 12491 March 21, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 30, 1988, Administrative Law Judge Lawrence W Cullen issued the attached de cision The General Counsel, the Charging Party, and the Respondent filed exceptions and supporting briefs The General Counsel filed an answering brief and the Respondent filed answering briefs to the General Counsel's exceptions and to the Charg ing Party's exceptions The Respondent also filed a motion to strike 1 The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge 's rulings, findings,2 and conclusions3 and to adopt the recommended Order i On December I 1988 the Respondent filed with the Board a motion to strike the Charging Party s combined exceptions and brief In that motion the Respondent asserts that the Charging Party s brief fails to meet the requirements of Sec 102 46(c) of the Board s Rules and Regula tions We deny the Respondent s motion Although the Charging Party s exceptions and brief do not conform in all particulars with Sec 102 46 they are not so deficient as to warrant striking Moreover the Respond ent has not shown prejudice as a result of any deficiency In light of all these circumstances the motion is denied 2 The General Counsel and the Charging Party have excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent has excepted to the judge s finding that the Industrial Union Department AFL-CIO is a labor organization within the meaning of Sec 2(5) of the Act In light of our decision we find it unnecessary to pass on the issue this exception raises We correct the following inadvertent errors in dates in sec III A of the judge s decision Par 2 should state that the petition was filed in 1987 not 1988 Par 3 should state that Carrie Delbridge s employment commenced in 1975 not 1978 3 At the hearing the complaint was amended to allege that the Re spondent acting through licensed practical nurse Ora Hoskins threatened its employee Carrie Delbndge with unspecified reprisals because of Del bridge s union activity We agree with the judge s conclusion that Hos kips conduct did not constitute a violation of the Act imputable to the Respondent In doing so we note that Hoskins supervisory status was neither alleged in the complaint nor litigated at the hearing Although the General Counsel refers to Hoskins as a supervisor and witnesses refer to the nurses generally as supervisors there is no evidence in the record that Hoskins possesses any indicia of supervisory status within the mean ing of Sec 2(11) of the Act ORDER 373 The recommended Order of the administrative law judge is adopted and the complaint is dis missed Margaret Guill Brakebusch Esq for the General Coun sel Louis A Fuselter Esq (Fuseher Ott McKee & Walker) of Jackson Mississippi, for the Respondent DECISION STATEMENT OF THE CASE LAWRENCE W CULLEN, Administrative Law Judge This case was heard before me on April 25 and 26, 1988, at Oxford, Mississippi The hearing was held pursuant to a complaint issued by the Regional Director for Region 26 of the National Labor Relations Board on March 15 1988 The complaint as amended at the hearing is based on a charge filed by the Industrial Union Department, AFL-CIO (the Union) on February 11 1988, and alleges that Respondent Gracelands Inc Convalescent Center violated Section 8(a)(1) of the National Labor Relations Act (the Act) by unlawfully threatening its employees because of their protected concerted activity and that it violated Section 8(a)(3) and (1) of the Act by unlawfully issuing written warnings to and discharging its employee Carrie Louise Delbridge because of her participation in union activities Respondent by its answer filed on March 25, 1988, has denied the commission of any viola tions of the Act After due consideration of the evidence and testimony presented at the hearing including the demeanor of the witnesses and the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT I JURISDICTION The complaint alleges the answer admits and I find that Respondent Gracelands Inc operates a dual care nursing home in Oxford Mississippi Respondent by its answer denies that it is a corporation or that it has been engaged as a health care institution I find however that Respondent has held itself out as a corporation and im plicitly admitted its corporate status I further find based on the undisputed evidence at the hearing that it has been engaged as a health care institution in its operation of a dual care nursing home The complaint also alleges Respondent admits and I find that during the 12 months preceding the filing of the complaint, Respondent, in the course and conduct of its business operations derived gross revenues in excess of $100 000 and purchased and received at Respondents facility products goods, and materials valued in excess of $50,000 directly from points outside the State of Mississippi The Respondent also admits that it has been a health care institution within the meaning of Section 2(14) of the Act but denies that it is an employer within the meaning of Section 2(2) (6) and (7) of the Act I find, however on the basis of the admit 293 NLRB No 45 374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ted jurisdictional facts as set out above and the evidence presented at the hearing that it employs registered and licensed practical nurses nurses aides, service workers and other categories of employees that Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION The complaint alleges that the Industrial Union De partment, AFL-CIO is and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act Respondent denies this allegation, and con tends in its brief that the Industrial Union Department (the IUD) of the AFL-CIO is not a labor organization within the meaning of the Act because it is an organiza tion of unions and does not itself admit employees into the IUD I however, find that the IUD is engaged in the representation of employees as an entity utilized to orga nize employees on behalf of its member unions which are themselves organizations of employees representing those employees in regard to wages, terms, and conditions of employment I conclude that the term labor organiza tion as defined in Section 2(5) of the Act is sufficiently broad to include the IUD III THE ALLEGED UNFAIR LABOR PRACTICES A Background Respondent operates a nursing home in Oxford, Missis sippi, providing skilled and intermediate care to approxi mately 135 aged and/or infirm patients or residents Re spondent s facility at Oxford Mississippi includes four wings or halls that house patients who require both skilled and intermediate care Hall B averages 38 patients whereas halls A C and D average 32 to 34 patients The facility is owned by the Overstreet family and is staffed by James Braswell its administrator Larry Overstreet its assistant administrator, Betty Jenkins its director of nurs mg and Assistant Director of Nursing Virginia Hudson Jenkins and Hudson are both registered nurses At the time of the hearing there was one additional registered nurse on the 7 a in to p in 3 day shift and one registered nurse on both the 3 to 11 p in shift and the 11 p in to 7 a in shift All other nurses are licensed practical nurses (LPN) There is a nurse on each hall on each of the two day shifts and two nurses on the night shift There are 13 nurses aides on the day shift with 4 assigned to B hall and 3 each assigned to halls A, C and D The nurses are responsible for patient care in each hall, including the monitoring of medical conditions of the patients, the re sponsibility for medication and the assignment of work to the aides who assist in patient care including the feed ing and bathing of patients, assistance with their personal needs, and related duties The aides work under the di rection of the nurse assigned to their wing i The complaint alleges Respondent admits and I find that at all rele vant times James Braswell Betty Jenkins Virginia Hudson and LPN Judy Leeton were supervisors within the meaning of Sec 2(11) of the Act In late 1987 the Union commenced an organizing campaign among Respondents service workers including the nurses aides A petition was filed on October 16, 1988 with a Board conducted election held on Decem ber 10, 1987 at which 38 employees voted in favor of the Union and 21 voted against the Union with 6 chal lenges Respondent filed objections to the election and a hearing was initially scheduled for February 10, 1987, but was subsequently rescheduled and held on March 29 and 30 1988, with the hearing officers Report on Objec tions issued on April 30, 1988, recommending that a cer tification of representative issue Carrie Louise Delbridge commenced her employment with Respondent as a nurses aide in approximately 1978 and worked approximately 3 to 4 years when she quit because of pregnancy She was rehired in 1981 and worked until February 1988 when she was terminated by Respondent Delbridge testified that in September 1987 she became aware of the union organizational campaign Delbridge attended three union meetings and then became an open union supporter Delbridge wore a union button and pencil holder at work in late October or early November 1987 She also handed out union leaf lets three to four times a week prior to the December 10, 1987 election She testified that Administrator James Braswell handed out antiunion leaflets in the front en trance to the nursing home Delbridge also testified that on the first day she wore a union pin Assistant Director of Nursing Hudson asked to read it and Delbridge al lowed her to do so 1 The November 14, 1987 warning As a condition of employment the nurses aides are re quired to have an annual physical exam by a physician The examinations must be obtained at the expense of the individual aides and are generally required on or about their initial hire date anniversary Delbridge testified that prior to 1987 she had on occasion taken time off from her job to take the physical exam In July 1987 Del bridge observed a notice on the bulletin board which had been posted by Director of Nurses Jenkins notifying sev eral nurses aides including Delbridge to obtain their physicals Subsequently, Jenkins reminded Delbridge that she should take her physical exam On the same day Del bridge informed Jenkins of her personal problems and that she would probably quit her employment the first of 1988 and asked whether she would be required to take the physical under those circumstances According to Delbridge Jenkins told her not to worry about the phys ical as she was planning to resign the first of the follow mg year Jenkins testified that in October Delbridge led me to believe that she was going to be leaving around Thanksgiving " Subsequently, the first of November Jen kins posted the names of several nurses aides including Delbridge who needed to have a physical exam by No vember 16 or they would be suspended for 3 days Prior notices of physicals had not contained a deadline or a threat of suspension On Friday November 13 1987 Jenkins informed several of the aides on the list including Delbridge that they needed to get their physical exam and turn it in by the following Monday Jenkins testified GRACELANDS INC 375 that Delbridge responded okay Jenkins permitted sev eral other employees to make appointments during work ing hours and take off work to take their physical but Delbridge did not request permission to do so Delbridge testified she left shortly after work on Friday after 3 30 p in accompanied by Fairy Flemons, another aide, and traveled to another town approximately 20 to 30 minutes away where she had gone before Delbridge testified that when she arrived at the doctor 's office, she was told by the receptionist that the doctor had gone for the day, but that she could return at 8 a in the following days for a physical Delbridge reported to work on Saturday, No vember 14, and told two nurses at her station that she needed to leave to get her physical as Jenkins had told her to have her physical by Monday , November 16, which was the deadline for which several aides names had been placed on a list for their physicals due or they would be subject to a 3 day suspension The nurses told her to talk to Virginia Hudson, assistant director of nurses, who was in charge that day Delbridge testified Well, I asked her [Hudson] if it was all right for me to leave work and go get my physical That Betty [Jenkins] had told me that Friday afternoon that I had to go ahead on and get it, and she said it was all right, and I said well-she said yeah be cause you known [sic] we were going to be sus pended for three days if we didn t get the physical by the 16th I told her I said-you know we were just casu ally talking, and I said, Well it d be better for me to miss an hour or two than three whole days you know and y all would be short , and she said Yeah, that s right and it wasn t any problem Delbndge testified she had informed Hudson of her prior attempt to obtain her physical the day before and that she had been told by the receptionist that if she re turned the next morning she would be given her physical at that time Delbndge testified she never informed Hudson or the other nurses that Jenkins had given her permission to be off that morning Delbridge testified she then worked about 30 to 35 minutes before leaving to take her physical and returned about 9 (a m) The next day (Sunday , November 15) she was called into Hud son's office and took fellow nurses aide Fairy Flemons with her as a witness as the employees had been told at the union meeting to take someone with them when they were called into the office Hudson told her that she had to write her you [sic] up and had already done so When Delbridge asked the reason, Hudson told her that Administrator Braswell had told her to write up Del bridge Delbridge testified further that Hudson was reading off the paper and said that Delbridge had told her (Hudson) that Jenkins had told her to leave work and get her physical on Saturday morning Delbridge testified that she told Hudson that she had not told her this but that Hudson replied Well I still I have to write you up' Delbridge testified that she inquired why and Hudson said Well, maybe I should ve been the one to get the write up Delbridge s testimony concerning the unsuccessful trip to get the physical on Friday and the meeting with Hudson on Sunday was corroborated by nurses aide Fairy Flemons With respect to the meet ing with Hudson, Flemons testified that Hudson told Delbridge that she had to write her up because she went to get her physical and when Delbridge asked why, that Hudson said, Well I have to do it because Mr Braswell told me to' Assistant Director of Nurses Virginia Hudson testified that on Saturday morning Delbridge met her in the hall way about 7 10 and told her that she was going to get a physical at 7 30 and that Delbridge also said that Betty said it would be better to miss two or three hours today, than three days next week without pay Hudson then al lowed Delbridge to leave to take her physical Subse quently Hudson talked to Director of Nursing Jenkins and Jenkins told her that she had not given Delbridge permission to leave to take her physical At the time of the warning Hudson told Delbridge that she was receiv ing the warning because Jenkins had not given Delbridge permission to leave work to take the physical and that she (Hudson) had discussed it with Nursing Home Ad ministrator Braswell Hudson denied having told Del bridge that Braswell had told her to write her up but said, I was told to write you up' She also told Del bridge that she probably shouldn't have let her go without investigating further and that I was sorry ' She does not remember whether she said that she (Hudson) should have been written up for letting Delbridge go to take her physical Jenkins testified that she posted a notice of employees who were due for their physicals on approximately November 1 with a date of November 16 for physicals to be due The notice included Delbridge as one of the employees who was due for their annual physical Delbridge's name had been on the list in July and Jenkins told Delbridge she needed to take her physi cal Jenkins testified that in October or early November prior to her posting of the notice that Delbridge came to her and told her she was going to be leaving the nursing home and that she (Jenkins) then agreed to let it slide Jenkins testified when she subsequently reviewed her list for physicals she noted that it was so delinquent she needed to take affirmative action and put Delbridge s name on the list as well as everyone else who was due for a physical On November 13 Jenkins talked to Del bridge and told her as well as others that were delin quent that she must take her physical and Delbridge said Okay November 13 was a Friday with the notice showing a due date of Monday, November 16 for physi cals or the imposition of a 3 day suspension Delbridge did not request time off on Friday to take her physical Several of the employees did request time off to take their physicals and were allowed to do so Hudson called her on Sunday at her home and told her that Delbridge had told her (Hudson) on Saturday morning that she had to go get her physical and left work to do so Jenkins had not given Delbridge permission to leave and Del bridge had not asked for permission of Jenkins Hudson made the decision to give Delbridge the warning and told Jenkins on the phone that she was going to write Carrie [Delbridge] up Administrator Braswell testified that he saw the posted list of people who had not taken 376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD their physicals and inquired of Jenkins about it and Jen kins informed him that everyone would have their physi cals by Monday, November 16 He was not aware that a warning had been issued to Delbridge on Sunday until Monday 2 The January warnings and incidents On one day in January 1988 several of the nurses aides went out to lunch Delbridge had been asked to join them but declined About 3 p in Annie Toles the aide who had asked Delbridge out to lunch, told her that she (Delbridge) was in trouble because the aides had over stayed their lunch period Delbridge accompanied by nurses aide Darlene Lyn went to Hudson s office Del bridge testified that Hudson started fussing at me, saying that I had taken longer than 30 minutes for lunch, and that I had taken an extra 15 minutes for a break ' Darlene Lyn told Hudson that she herself had gone out to lunch but that Delbridge had not gone out to lunch, after which Nothing else was said The four nurses aides who had overstayed their lunch periods were not given a warning Delbridge testified that on January 31 1988, she was taking care of a patient when Jenkins came into the room and said, Carne I ve been looking for you for 20 minutes and that Jenkins was dust going on and on about I hadn t taken care of my patients Jenkins specif ically mentioned patient H who had not been gotten up When Delbridge attempted to explain why she had not gotten him up because of bleeding on his bottom and hat she did not feel he should have pressure on it by sit ting up, Jenkins did not give her an opportunity to ex plain Delbridge testified she did not respond to Jenkins' yelling and was sort of quiet because I was scared Delbridge further testified that at the time there were no patients that she had failed to care for that morning Del bridge testified that Jenkins was yelling at her and did not give her an opportunity to explain that she had turned patients S and G but that G does not get up every day She asked Jenkins if she was timing her be cause previously there had never been a hurry Del bridge testified that she was unaware of any warning being issued to her concerning this incident and that Jen kins did not again discuss it until the day prior to her subsequent discharge Delbridge testified further that later that afternoon on January 31 Amy Hill, an LPN who was the charge nurse for the day stated to another nurses aide Deborah Clay ton in Delbridge s presence that You cant call any of the aides out of [other than] their name, because you 11 get reported to Carrie [Delbndge] and her people Del bridge testified that there had been a recent union meet ing 2 days prior and that one of the aides had repeated that a nurse had called her a starved out Ethiopian child Jenkins testified concerning the January warning that she was making her rounds of the nursing home as normal on a Saturday morning and noticed the patients didn t look quite up to par several of the bed patients, but that [sic] do sit up for a couple of hours at a time were still in the bed One in particular still had breakfast You know, it was obvious that she had not been taken care of Jenkins then checked at the nurses station and found that Delbridge was responsible for these patients She then went back to the lower end of B hall and was unable to find Delbridge She then looked for Delbridge in halls A, D, and C which took 15 to 20 minutes She then returned to B hall and found Del bridge in a patients room She asked Delbridge where she had been and Delbridge replied that she had been in the laundry and Jenkins said Well your patients are dust not up to par this morning Delbridge then said Oh have you started timing us now? Jenkins then said, No Carrie, I haven t, but I just noticed that your patients are untidy, and they re just not being taken care of like they should have been She then told Delbridge to get pa tients H and G up and take care of patient S and re marked that she could see Delbridge was taking care of patient C Delbridge replied, Yes I am Jenkins then said Okay, I want the job done like it s supposed to be done Delbridge then said Well you wont give me any time to answer you and Hudson replied No Carrie, I want you to do the job like you know how to do it and then walked out of the room She then contin ued her rounds and on her return to her office wrote up the incident and gave Delbridge a written warning By the end of the shift everything seemed in order with Del bridge s patients She did not tell Delbridge of the writ ten warning because everything had been taken care of 3 The February incidents, the alleged unlawful threat the alleged unlawful discharge a The alleged unlawful threat Delbridge testified that on Friday, February 5, 1988 she served several subpoenas to employees on behalf of the Union for a hearing scheduled for February 10, 1988 on the Employers objections to the election held in De cember 1987 She served several of the employees in the nursing home dining room and was observed by Mrs Braswell the administrators wife, and by June Over street the owner s daughter in law She also served em ployee Erma Webb at the home of Webb s mother Webb is the sister of Ora Hoskins an LPN at the nursing home On either Sunday or Monday following her serv ice of the subpoena on Webb Delbridge was coming from the laundry down C hall and was approached by Hoskins who asked her what she was doing at her moth er's house Delbridge told her she was there to see her sister and Hoskins asked what she wanted with her sister Delbridge told her to ask her sister and Hoskins replied she had and that her sister had not told her Del bridge then said, Well I in not going to tell you Hos kins then said Well, I know what you were there for and I d better not catch you there again Hoskins testified that she told Delbridge that she had heard that she had been at her mother s house that the conversation was pleasant, she did not get angry with Delbridge and did not inquire why Delbridge had been at her mother s house as she knew the reason She denied telling Delbridge to stay away from her mother s house and did not ask whether Delbridge had been to see her sister as she knew that was the reason Delbridge was GRACELANDS INC sent there She did not say anything to anyone at the nursing home about this b The discharge of Delbridge On the morning of February 9 Delbndge reported to her assignment in B hall This hall has the largest number of patients and four aides are normally assigned there whereas the other three halls have three aides each Aides Bonnie Vaxter and Francis Carothers also reported to work on that morning but aide Ann Higgen bottom did not report Delbridge testified that when she had checked in, there had been a note on the timeclock to employees that the scheduled February 10 heanng on the Employer s objections to the election had been postponed and that she was approached on three separate occasions by Betty Franklin the Respondents observer at the election in which Franklin inquired on each occasion whether Del budge knew the reason for the postponement On the third inquiry, Delbridge told Franklin she felt that the postponement had been because Respondent was not ready to proceed as the Union and the NLRB were ready to proceed Delbridge also stated that the Union had nothing to fear but that she felt Respondent wanted time to go through the employees personnel files and that Franklin could tell the Respondent what she had said Franklin corroborated Delbridge s testimony con cerning her inquiry of Delbridge and Delbridge s reply that she felt the continuance had been requested by Re spondent in order to go through its records, but denied that there was more than one conversation I credit Franklin After Delbridge began her work on the lower end of B hall she noted that she and aide Bonnie Vaxter were getting behind and went to the nurses station where she found LPNs Judy Leeton and Ruthie Nichols and asked whether they knew they were an aide short According to Delbridge neither nurse replied and Nichols looked at Delbndge and walked past her with her head down Delbridge testified that Leeton and Nichols seemed to be acting strangely and she assumed they were discussing personal problems Delbndge testified that after she finished feeding her patients she returned to the nurses station and checked her assignment sheet which lists among other assign ments the patients to be bathed by the aide Delbridge testified that in the past some of the baths would be eliminated when an aide was missing and the remaining baths would be distributed among the aides who were present On this occasion patient C stopped aide Betty Carothers in the hall and inquired who was going to give her a bath Carothers then asked this of Delbridge who told Carothers to tell patient C they might not get to her although she was scheduled for a bath At this point LPN Charge Nurse Leeton said Carrie, you are going to take care of those other patients Delbridge asked whether Leeton was aware of the shortage of the aide Leeton said Yes, but you can take care of those other patients Delbndge asked Leeton if she would help and Leeton stated she would when Delbndge told Carothers to tell patient C that Leeton was going to bathe her Ac 377 cording to Delbndge, Leeton did not tell her how many baths she would have to do Delbridge testified further that after she had bathed one patient she returned to the nurses station and both Leeton and Hudson were there and Hudson said that she (Delbndge) would do those other baths Delbridge asked whether Hudson wanted her to do her own as signed patients, Higgenbottom s patients and all the rest of the work and Hudson said yes Delbridge told Hudson there were only three aides on duty and Hudson asked whether she was refusing to do the work Del bridge said she was not and was there to take care of the patients Hudson then told her to clock her card and go home for refusing to take care of the patients She then again told Hudson she was not refusing and Hudson then told her to go home Delbridge asked why she was to go home Jenkins then arrived and took the assignment sheets and reassigned the work Delbridge inquired whether the aides had to put out ice and shave the men and Jenkins replied in the affirmative Delbridge had not actually been assigned any additional baths or work until this point and testified she had understood that she, her self, was being required to do all the work of the missing aide Delbridge did not protest the reassignment of work by Jenkins and commenced bathing the patients Subse quently Jenkins came to her and gave her an additional bath assignment Subsequently, Delbridge was called into Hudson s office in the presence of June Overstreet and Hudson where Jenkins accused Delbridge of being loud, obnoxious and refusing work Delbridge denied this Jenkins told her to go home and Delbridge refused until Jenkins called Braswell and then agreed to go home She was later called to the nursing home on February 10 and met with Braswell who told her she had three previous warnings and discharged her Delbridge also testified that during the February 9 in cident, June Overstreet, the owner s daughter in law, was leaning against the wall looking at her and that she had not often seen Overstreet in the nursing home Over street and Jenkins testified that Overstreet performs a li aison function to see that the nursing home is in compli ance with nursing regulations and is providing good care to the patients She is there at various times and does not have set hours Since December 1987 both she and her husband Larry Overstreet, have been there more fre quently as the result of the illness of June Overstreet s father in law who is the owner of the facility Overstreet testified that she heard a loud conversation between Jen kins and Delbridge and she heard that Delbridge did not want to do an extra bath and that Jenkins was telling Delbridge this was the way they had always done it Leeton testified that on the morning of February 9 she had made prior arrangements to visit Oxford Hospital to talk to the doctor about her father who was hospitalized with renal failure Leeton arrived at the nursing home about 7 39 am when she received the nurses report from LPN Nichols who had received the report from the 11 p in to 7 am LPN from B wing at the time she went off duty Nichols who was normally assigned to A' wing had taken the report for Leeton in anticipa tion of her absence and had begun to set up the medi 378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cores Nichols observed Delbridge approach Leeton and herself and ask whether they were aware that they were an aide short Leeton and Nichols testified that Leeton replied that she was unaware of it but would check it Nichols was aware of this but had not yet told Leeton Leeton specifically denies having failed to reply to Del bridge s inquiry concerning the missing aide On updat mg Leeton Nichols returned to A wing which was her regular assignment Leeton learned that nurses aide Elizabeth Higgenbottom had called in sick and could not be replaced Leeton then told Delbridge that they would be short an aide and that she would reassign the baths when she had time Leeton explained the normal proce dure when they are short an aide is to reassign baths among the remaining aides and to eliminate baths of pa tients who can bathe themselves Leeton checked the charts of the patients and determined that only three of the patients assigned to the missing aide were in need of a bath that day She told Delbridge that she would be assigned an extra bath to do Delbridge replied that she was going to tend to her patients and asked whether Leeton was going to help out and Leeton said yes as she always did At this point Leeton had not had time to re assign the baths as she was doing medications and break fast Nurses Aide Betty Carothers then came down the hall and a patient was standing in the doorway of her room and asked Carothers who would give her a bath Carothers asked this of Delbridge and Delbridge replied that she guessed Leeton would give the bath and tend to the patients on that end Leeton testified that nurses never bathe patients Leeton then finished passing out the medicines and called Assistant Director of Nursing Hudson and told her Delbndge did not want to help out with the baths Hudson told Leeton to assign the baths and that she would be there in a minute Leeton wrote down the patients for the aides to bathe on a piece of paper and Hudson then came While Leeton and Hudson were discussing the matter Delbridge came out of the shower and asked what was going on Hudson told Del budge that baths were being reassigned and she would have one extra bath to do Delbridge replied she was going to tend to her own patients and told Hudson she (Hudson) could do the work as she received more pay than Delbndge Hudson also asked Delbndge why she was making such a big issue out of the extra bath as she had worked short before Hudson called Nursing Direc tor Jenkins to the hall The conversation between Del budge and Hudson became loud At one point Hudson told Delbndge that if she did not want to take care of her patients, she had to go home Jenkins came to the hall and told everyone to hush and reassigned the baths among the remaining aides Delbndge continued to say she would not do the extra bath The other aides were asked if they had a problem with the extra bath assigned to them and they said no, but they had a problem with doing extras, such as cutting and painting fingernails Jenkins told them to tell Leeton if anyone wanted this done Delbridge asked about extra things like shaving patients and putting out ice and Jenkins replied that these were a normal part of their duties and would be per formed After Jenkins and Delbndge finished their con versation Jenkins and Hudson left The aides had been in and out during the course of these conversations with Delbridge After the conversation, the three aides re turned to work Subsequently, Leeton told Delbridge that Jenkins wanted to see her in her office Leeton did not attend the meeting but subsequently saw Jenkins and Delbridge walking to the timeclock and heard Jenkins tell Delbndge to go home and that she would call her later and Delbridge say you mean I have to sit around and wait on your call? Jenkins said, Carrie, as I said, go home, 111 call you later Assistant Director of Nursing Hudson testified that after Leeton called her concerning the rescheduling of the work assignments Delbridge came out of the shower and said she was not going to do any extra work Hudson told Delbridge she would reschedule the missing aides patients among Delbridge and aides Frances Car others and Bonnie Vaxter and Delbridge said she was not going to do it but would do her job showing Hudson her assignment Hudson told her she would do the extra duties and Delbridge said she would not and Hudson told her to go home if she did not want to do the jobs assigned to her Delbridge said she was going home Delbndge also told Hudson she was paid more than Del budge and could do the work and that they wanted Del bridge to do extra work but would not pay extra Hudson did not tell Delbridge that she had to take care of all the missing aides patients Delbridge had become loud Delbridge had said she would take care of the pa tients on her list but only on that list When Jenkins came to the hall Hudson told her that Delbridge had re fused to do the job and was going home rather than do it At first Delbridge told Jenkins that she would not do the extra assignments Jenkins told her it will only be one extra bath and Delbridge said Okay Jenkins then made the reassignments Subsequently Hudson and Jen kins went on a break together and she told Jenkins that she did not think she (Jenkins) had handled this correctly as she (Hudson) thought Delbridge should have been sent home and told Jenkins she ought to think about it Hudson reviewed what had occurred with Jenkins and Jenkins then proceeded to sit and evaluate the matter and went to her office Subsequently Jenkins decided to call Delbridge into Hudson s office and send her home until further investigation and told Delbridge to clock out and go home Delbridge refused and Jenkins called Braswell and told him of the refusal to go home and during that telephone conversation Delbridge said she would go home but would not clock out her card Jen kins then said she would clock out the card and told Braswell that Delbridge would go home but would not clock out her card She and Jenkins and Braswell later discussed the incident and it was agreed that Delbridge should be discharged but the final decision was not made until Braswell called Delbndge the next day Jenkins testified that on the morning of February 9 she was called to the nurses station at B hall by Assistant Di rector of Nurses Hudson who informed her that Del bridge was refusing to do work assigned to her She ar nved there shortly thereafter and heard yelling between Hudson and Delbndge who said she was going to do her assignments only and she told Delbridge that she, Del GRACELANDS INC bridge would do the work and that it only required an extra bath per aide Delbridge then agreed to do the extra bath and commenced to do her work Subsequent ly, she discussed the matter with Hudson and decided that in view of the prior warnings in November and Jan uary and in view of Delbndge s refusal to do the work assigned by Leeton and Hudson to her, that Delbndge should be terminated because she (Jenkins) would not always be on duty to ensure that Delbndge did her work In response to questions by the General Counsel concerning Delbridge s prior work performance Jenkins testified that Delbndge had always been quick to speak up when she did not like something and had argued with other aides and supervisors in the past, alluding to a prior warning issued to Delbridge for arguing with an other aide concerning the giving of a bath to a patient Jenkins then called for Delbridge to come into Hud son s office after discussing the matter with Hudson and reconsidering it and in the presence of Hudson and June Overstreet, who had heard the incident in the hall, told Delbridge to punch out and go home and that she would call her later at home Delbridge initially refused but when Jenkins called Administrator Braswell at home, Delbridge said she would go home but would not punch out Jenkins went with Delbridge and punched out her timecard Braswell testified that he had been ill and was at home on February 9 but that he later reviewed the matter with Leeton, Hudson, and Jenkins and the nurses aides and determined to discharge Delbridge for insubordination and called her the next day and did so as a result of this incident and her prior warnings Nurses aide Bonnie Vaxter testified that on the morn ing of February 9 Leeton told the nurses that she would divide the baths of the patients of the missing aide among the aides and that she would help them Del bridge said that she was going to bathe the patients on her list and that the other aides could do what they wanted to do and that she guessed Leeton would bathe the rest of the patients Vaxter heard a little bit loud conversation between Hudson and Delbridge but could not hear what they were saying She saw Jenkins, Hudson Overstreet Leeton and Delbridge at the nurses desk and recalls Jenkins asking the aides whether they had a problem with the reassignments and she replied no and went back in the shower Nurses Aide Frances Carothers testified that on learn ing that they were an aide short the other nurses aides decided to eliminate some work as the nurses usually let them do She did not hear the conversation between Leeton and Delbridge She did hear Delbridge and Hudson in which Hudson told Delbridge to punch out and Delbridge refused saying she was there to do her work There was no assignment of extra baths made until Jenkins came and said hold everything and then made them 4 Positions of the parties The General Counsel contends that Delbridge was a long term employee with a good work record having only previously been issued a single warning prior to November 1987 when she was issued a warning shortly 379 after Respondent became aware of her role as a union supporter With respect to the November warning the General Counsel argues that Delbndge did nothing wrong as she merely requested permission of Assistant Director of Nurses Hudson to take off from work for a medical exam to meet a deadline imposed by manage ment after she was unable to obtain the physical the pre vious evening in her off duty hours The General Coun sel contends that Delbndge s testimony as supported by Flemons should be credited and demonstrates that Del budge did not misrepresent to Hudson that Jenkins had already given Delbridge permission to take off The General Counsel also apparently contends that the notice to take the physical by the following Monday or be sub ject to discipline is suspect as it was the first instance in which a penalty had been added to the notice and that the placement of Delbridge s name there is evidence of Respondent's animus toward her because of her union activities as she had been previously excused by Jenkins because of her announced intention to resign the first of next year The General Counsel also contends that the is suance of the warning to Delbridge by Hudson on the following day is further evidence of Respondent s animus as an unlawful attempt to seize on a pretext to punish a known union supporter because of her union activities In support of this contention the General Counsel points to the testimony of Delbridge as supported by aide Fairy Flemons and Hudson that Hudson said that she had been told by Administrator Braswell to give Delbridge the warning and the conflicting testimony of Braswell that he was not aware of the issuance of the warning until the following day The General Counsel also relies on the testimony of Delbridge as corroborated by Flemons and as unrebutted by Hudson that Hudson said that perhaps she should have received the warning for letting Del bridge go With respect to the warning of January 1988 issued by Jenkins to Delbridge, the General Counsel also contends that this warning was pretextual relying on Delbridge s testimony that she had been taking care of her patients as normal when Jenkins suddenly came into the patient s room where she was working and began yelling at her for not taking proper care of her patients and that Jen kins would not permit her to explain as corroborated by Jenkins The General Counsel further relies on the fact that Jenkins issued a written warning to Delbridge in connection with this incident but did not apprise Del budge of this The General Counsel also cites Delbridge s continuing union activity through the issuance of subpoenas on behalf of the Union to employees in the presence of man agement personnel in the cafeteria and at the home of the mother of LPN Ora Hoskins to the sister of Ora Hoskins who was employed as a nurses aide by Respond ent The General Counsel also contends that Delbridge s testimony that Ora Hoskins told her after she went to her mother s house that she had better not go there again was an unlawful threat issued by a supervisor and agent of Respondent to Delbridge because of her engagement in protected concerted activity of serving subpoenas on behalf of the Union for the scheduled hearing on the Re 380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent s objections to the election As further evidence of animus the General Counsel also cites the statement by an LPN to Delbridge that you cannot call any of Carne s people by other than their own name or it will be reported and the instance in which Hudson became upset with Delbndge when she thought that Delbndge had left the premises for lunch and exceeded her lunch period and the lack of any action taken against the aides who actually did this after she learned that Delbridge had not left the premises and exceeded her lunch period The General Counsel further contends that the reasons given for the discharge of Delbndge on February 10, 1988, are pretextual and were put forth to mask the Re spondent s intent to discharge Delbridge because of her union activities In support of this the General Counsel relies on Delbndge s testimony that Respondents observ er at the election, housekeeper Betty Franklin, asked Delbridge on three separate occasions on the morning of February 10 why the hearing on the Employers objec tions to the election had been postponed The General Counsel contends that unusual things occurred at the nursing home on the morning of February 10 citing Del bridge s testimony that when she spoke to nurses Leeton and Nichols and told them that they were an aide short that neither answered or acknowledged her and that Nichols stared right past her, that previously when an aide had been missing , some of the baths were not given or were divided among the aides whereas on this occa sion Delbndge was told she must do them all , that she was told to go home by Assistant Director of Nursing Hudson for refusing to do any work other than that which was on her normal list of assignments although she advised them that she was not refusing to do the work, that the owner s daughter in law June Overstreet was leaning against the wall during her discussions with Leeton and Hudson looking at her although she was not usually on the premises in the past that she was not per mitted to explain to Jenkins before she was sent home, that she was not permitted to explain to Braswell the next day but was discharged as soon as she entered his office and that he had already made out the termination notice The General Counsel also contends that there is substantial evidence of pretext in this case as Delbridge had received only one prior warning in her 9 years as a nurses aide but within a period of less than 4 months had received three warnings and was discharged after Re spondent became aware of her role as a leading union adherent and continuing union activities The General Counsel contends that Respondents animus toward Del bridge because of her union activities is established by Hoskins threat to her for engaging in union activities and by comments from the LPN concerning Carrie s people and by Hudson s actions with regard to the al leged extended lunch period The General Counsel also contends that there is substantial evidence of disparate treatment in this case as Delbridge was discharged after only three warnings one of which she had not even been advised of whereas other employees as demonstrated by Respondents records were not similarly discharged after three warnings or for incidents more serious than those involved in this case citing an instance in which a nurses aide threatened to kill the administrator and was not dis charged and another incident in which a nurses aide threatened to throw a patients urine at him and was not discharged The Respondent contends that Delbridge was dis charged because she was blatantly insubordinate refusing to do any extra baths other than those on her list on Feb ruary 10 that although she had previously been a reason ably satisfactory employee, she did not have an unblem fished record as she had previously been written up for arguing about the number of baths she was required to give during the absence of another aide but on that occa sion did apologize and bathe the patient Respondent contends Delbndge was subsequently written up for mis representing what the director of nurses had said and leaving work to take her physical and for slow work and neglect to the patients assigned to her Respondent con tends that employees have previously been subject to ter mination for violation of work rules and that all employ ees were treated the same regardless of their union sym pathies or activities Respondent contends that Jenkins actions in sending Delbridge home after she had initially told her to go to work and Delbridge had done so were reasonable in view of the complaint by her Assistant Di rector Hudson of undermining her in her role in disci plining employees as she (Jenkins) could not be present at all times when Delbridge was and she needed to sup port the assistant director and the charge nurses Jenkins called Delbridge into the office and sent her home pend ing further discussion with Administrator Braswell who was home ill Jenkins determined that Delbridge should be terminated Braswell investigated the matter inter viewed the witnesses, and concluded also that Delbridge should be terminated Respondent contends that Del bridge clearly stated that she would do her patients meaning only the patients on her assigned list and no others required as a result of the missing aide It is undis puted that the additional work of one extra bath was not substantial and the reassignment was consistent with the past practice of eliminating some baths and reassigning the remainder to the other aides Delbridge s comment that the charge nurse would give a patient a bath was a smart remark that caused Charge Nurse Leeton to call the assistant director of nursing Delbridge continued to resist the reassignment of additional baths to her to Hudson who was then prompted to call Jenkins who also witnessed the insubordination Respondent further contends there was no evidence of antiunion animus or animus toward Delbridge personally because of her support of the Union, but rather the su pervisors candidly testified that they did not treat em ployees differently because of their union activities With respect to the alleged statement by Hoskins the Respond ent contends that Hoskins denial should be credited and argues that in any event the remark was innocuous and does not merit a finding of a violation of the Act, or a remedy 5 Analysis I conclude that the General Counsel has not estab lashed a prima facie case of a violation of the Act by reason of the two warnings issued to Delbridge and by GRACELANDS INC 381 reason of Respondents discharge of Delbndge In making this determination, I rely primarily on credibility determinations having personally observed and listened to and reviewed the credibility of the witnesses I have also considered what I find to be a total lack of antiunion animus in this case notwithstanding the alleged unlawful threat by Hoskins and the comments by the LPN and the incident in which Hudson berated Delbridge for having overstayed a lunch period which Delbridge had not in fact done Initially, it is undisputed that Delbridge was an active union supporter and that her role as a union observer at the election, in wearing union insignia, handing out union literature, and serving subpoenas on behalf of the Union was known to Respondent It is also clear that Respondent conducted an antiunion campaign by hand ing out literature to employees and that it has filed ob ,sections to the election There was, however, no evi dence that Respondent resorted to unlawful means to do so I do not find the remarks of the charge nurse or the LPN to Delbridge, or the lunch incident with Hudson to constitute any basis for inferring to Respondent animus against the Union or Delbridge personally because of her union activities I also find that Hoskins did make the remark to Delbridge that she had better not go to her mother s house again and credit Delbridge in this regard However I do not view this as a violation of the Act inferable to Respondent Rather, I find that Hoskins was acting as an individual in telling Delbridge to stay away from her mother s home With respect to credibility I find the testimony of Leeton Hudson, and Jenkins to be credible and to with stand scrutiny I found them each to be sincere witnesses who testified forthrightly concerning what occurred in each of the incidents I also found June Overstreet's and Braswell's testimony to be credible I also credit Vaxter s and Frances Carothers testimony With respect to the November warning, I credit Hudson and Jenkins concerning their testimony I note the inconsistency between the testimony of Hudson and Braswell as to who determined to give Delbridge the warning but do not find this determinative of their credi bility It may well be that Hudson was directed to give Delbndge the warning by Braswell and that Braswell was mistaken when he testified that he did not learn of the incident until after the warning However I am con vinced that Hudson was concerned enough about Del bridge taking off work to obtain her physical to contact Jenkins concerning whether she had given Delbridge permission to do so and that Hudson gave Delbndge a warning after learning that Jenkins had not given her permission to do so I do not find as apparently contend ed by the General Counsel that the placement of a penal ty on the notice if the aides failed to obtain the physical by the following Monday or that the placement of Del bridge s name on the list was connected with the union campaign I also credit Jenkins testimony that her issuance of the January warning was related to her perceived poor job performance by Delbridge on that occasion rather than antiunion animus Although Jenkins failure to apprise Delbridge of the warning may raise suspicion, I find it insufficient to support a violation of the Act I also find the events of February 9 support Respond ent s position in this case If one were to accept the theory of the General Counsel, including the testimony elicited of Delbridge, it would appear that on February 9, the Respondent had set out to discharge Delbridge by creating the entire scenario Thus, Delbndge testified that on that morning Respondents observer at the elec tion asked her three times why the hearing was contin ued and that she (Delbridge) responded something to the effect that Respondent wanted to look through employ ees' files Delbridge also testified that nurses Leeton and Nichols did not speak to her and that Nichols looked away from Delbridge She also testified that prior to the incident with Hudson, that Overstreet was leaning against the wall and watching her, and that she was being required to do all the additional baths rather than a reassignment of them among the three aides on duty She also testified that she spoke softly as she was afraid for her job This was refuted by the testimony of Leeton, Hudson, and Jenkins as well as aide Bonnie Vaxter who all testified that the conversation was loud I do not credit Delbridge s statement that she was quiet Rather, I credit the testimony that she was loud and assertive, that she was going to do the baths on her assigned list and nothing more I credit the testimony that Hudson and Jenkins were required to speak loudly to her I am con vinced that Delbridge was assertive and insubordinate on February 9 1988 It may well be that she was irritated as a result of the postponement of the hearing on the Em ployer s objections to the election Moreover, after having had the opportunity to observe her demeanor on the witness stand I am not convinced that she was quiet during this incident but rather observed her to be asser tive With respect to the contention that the discharge of Delbridge shows disparate treatment was accorded to her I find this contention without merit Respondent s records show that it has disciplined and discharged em ployees for various offenses and I find the records show a variety of responses to these incidents but do not sup port the General Counsels contention that Delbridge re ceived disparate treatment by reason of her discharge Based on the foregoing I find that the General Coun sel has failed to prove a prima facie case that the No vember and January warnings and the discharge of Del bridge were violative of the Act Assuming arguendo that the General Counsel has proved that the warnings and discharge of Delbridge were motivated in part by Respondent s animus toward her because of her union activities, I find the Respondent has persuasively demon strated by the preponderance of the evidence that she would have received the warnings and been discharged even in the absence of her protected concerted activities Wright Line 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 US 989 (1982), Roure Bertrand Dupont Inc, 271 NLRB 443 (1984) and NLRB v Transportation Management Corp, 462 U S 393 (1983) 382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1 Gracelands Inc is an employer within the meaning of Section 2(2), (6), and (7) of the Act 2 The Industrial Union Department, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 Respondent did not unlawfully threaten issue writ ten warnings to, or discharge Carrie Louise Delbridge in violation of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed2 ORDER The complaint is dismissed in its entirety 2 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