Moody Nursing Home, Inc.

MOODY NURSING HOME, INC. 147 Moody Nursing Home, Inc. and Laborers' Interna- tional Union of North America, AFL-CIO, Local 1348. Cases 10-CA-14187, 10-CA- 14215, 10-CA-14853, and 10-RC-11609 August 13, 1980 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, PENEI.I.O, AND TRUESDALE On May 6, 1980, Administrative Law Judge Robert Cohn issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recom- mended Order. I. We agree with the Administrative Law Judge that, during the critical preelection period, Re- spondent's agents twice violated Section 8(a)(l) of the Act by soliciting employee grievances and at least impliedly promising that corrective action would be taken, thereby interfering with the em- ployees' right to a fair and free election.2 Although the Petitioner did not specifically raise the issue of unlawful solicitation of grievances in timely filed written objections, the Board has a "longstanding policy which permits a Regional Director to set aside an election based on conduct which he has discovered during his investigation, even though that particular conduct [was not] the subject of a specific objection."3 2. The Administrative Law Judge also consid- ered the Petitioner's timely filed written objections to conduct affecting the results of the election. The Administrative Law Judge recommended that cer- tain of the Petitioner's objections be overruled 4 i Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Don Wall Products, Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for resersing his findings 2 Dal-Tex Optical Company. Inc., 137 NLRB 1782 11962). American Safety Equipment Corporation, 234 NLRB 50()1 (19781 4 In the absence of exceptions thereto, we adopt proofrma. the Admin- istrative Law Judge's recommendations that the Petitioner's Objectiols A. E, G. H, . J, and K be overruled 251 NLRB No. 22 and that the election also be set aside based upon his findings concerning the following objections: B. The Employer agents told employees that they had to pick up checks before they could vote; C. The Employer attached to the outside of each employee check a miss statement [sic] of anti-Union propoganda, [sic] and the Union did not have a chance to reply; D. The employee was told by the Employ- er's agent to now go across the room and vote; F. An employee who arrived early to work was not allowed to vote until after she re- ceived her check and was told she could only vote at 3:00 p.m. The election was held on January 24. 1979, a payday. Respondent did not follow its normal practice of distributing paychecks at the end of each shift. Shortly before the polls opened, and throughout the course of the election, announce- ments were made over the loudspeaker instructing those employees scheduled to vote to pick up their paychecks and then to go vote. There was testimo- ny that employees would not be allowed to vote without first picking up their paychecks. 5 Attached to each employee's paycheck was a slip of paper which read as follows: If you had been paying union dues to the La- borer's Union for only the last three months that the Union has been trying to get in here, you would already have paid at least $19.50* in dues alone (not to mention possible fines, assess- ments, and initiation fees). This money would have gone to help pay the salary and expense accounts of some union "big shot" here or in Washington. This is your money. You earned it-WHY not keep it for you and your family, V O T E "N O" *Actually, the Union Constitution stales that you would pas more Inasmuch as the International union constitution provides that monthly dues of a local union shall not be less than $7 per month the Administrative 'In this regard. the record reveals that cmnplioee, ho had not cl picked up iheir pa>check, ere made to get lut of lie ;itid IiolI thal the5 would hae I do so before being allossed Ito sol E llen Moitorl- ara, Respondenl' staff dcs elopnle it c rdilltor. rte ificd that the Illfilrlg hotm5; attorilles inlructled her Io dirct cnlOh ecs firmi Io pick up their paychecks it]d then to sote MOODY NURSING HOME. INC. 147 14X DECISIONS OF NATIONAL LABOR RELATIONS BOARD Law Judge properly found that the pay slip was not misleading.6 Based upon the foregoing facts, the Administra- tive Law Judge found that Respondent had en- gaged in objectionable conduct. He concluded that the language on the pay slips, "taken together with the timing of the conduct, was likely to create a 'massed psychology' to which the Union clearly had no opportunity to respond." In support of his finding, the Administrative Law Judge relied on Peerless Plywood Company.7 In Peerless, the Board decided that campaign speeches to massed assem- blies of employees, on company time, within 24 hours of the start of an election, should be prohibit- ed because of a propensity "to create a mass psy- chology which overrides the arguments made through other campaign media," thus affording an unfair advantage to whichever party obtains the last word. The Administrative Law Judge conclud- ed that Respondent's conduct, under the circum- stances, was likely to create a similar mass psychol- ogy during the final minutes before voting and, therefore, that it violated the Peerless Plywood rule. We disagree with this conclusion. As expressly set forth in Peerless, the rule does not interfere with the right of any party to circu- late campaign literature, on or off the premises, or to otherwise take advantage of lawful means of persuasion during the critical 24-hour period. The Board held in The Mosler Safe Company,8 where written propaganda concerning union dues was dis- tributed along with paychecks on election day, "that neither the use of the pay envelopes for the stated propaganda purpose nor the acceleration of the pay hour constituted an interference with the employees' freedom of choice, which would war- rant setting aside the election." In The Trane Com- pany (Clarksville Manufacturing Division),9 the Board stated, citing Peerless, that "[t]here is no rule against the distribution of written propaganda ma- terial to employees during the 24 hours preceding the election, as there is against the making of speeches on company time to massed assemblies of employees during this period." It is only the con- tent of the written material, and not the medium or timing involved, which is relevant to our inquiry into the material's effect on an election. Thus, having found that the paycheck notice in the in- stant case accurately represented the Union's dues 'We note that Shopping Krt Food Murket. Inc., 228 NLR3 1311 1977), cited by the Administrative Law Judge along with the statement that the Board swould "no longer probe into the truth or falsity of the parties' campaign statements," has been overruled by General Knit of (aIoroniu, Inc,. 239 NlRB 619 (1978) 107 NLRB 427. 429 1953) 129 Nl.R 747. 749 (1960). citing with approval ,Uontrov Hnger Co., 120 NI.R 8 (1958X ' 137 NlRB 1506, 1509 1962) requirement, the Administrative Law Judge erred in finding Respondent's conduct objectionable based upon factors unrelated to the propaganda's content. Accordingly, we overrule the Petitioner's Objection C.' 0 We find, however, that the conduct described in the Petitioner's Objection B constitutes an inde- pendent ground for setting aside the election. While it is true that an employer may accelerate the distribution of paychecks accompanied by non- misleading propaganda to coincide with the start of an election,t it does not follow that an employer may condition the right to vote upon an employee first securing his paycheck. In this case, employees were instructed to pick up their paychecks and then to go vote. Employees who had lined up to vote and had not yet secured their paychecks were told they would not be permitted to vote until they had picked up their checks. Where, as here, an em- ployee's right to vote is expressly made to appear contingent upon picking up a paycheck, the inter- ference with the employee's expression of free choice is clear. The employees are given to under- stand that, rather than having an absolute Section 7 right to cast their votes for or against union repre- sentation, their franchise depends upon the suffer- ance of the employer. Accordingly, we sustain the Petitioner's Objection B. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Moody Nurs- ing Home, Inc., Decatur, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the election con- ducted on January 24, 1979, among the Employer's employees be, and it hereby is, set aside, and that Case 10-RC-11609 be, and it hereby is, severed and remanded to the Regional Director for Region 10, for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of Second Election omitted from pub- lication.] 1 2 MEMBER PENELLO, concurring in part and dissent- ing in part: "'T he Petitioner's Objections D and F are also overruled because the record fails to reflect any evidence in support of the conduct alleged therein. Mo/ ier Saj C(ompany, wupra 12 [Excelsior lootnote omitted from publication ] MOODY NURSING HOME, INC. 149 I agree with my colleagues that Respondent, by its agent, Ellen Montonara, violated Section 8(a)(1) of the Act by soliciting grievances during the union organizing campaign, but not that the con- duct engaged in by Nancy Jung similarly violated the Act. I would not set aside the election on ac- count of Montonara's unfair labor practices inas- much as the Petitioner did not allege such conduct in timely filed written objections.3 1I would, how- ever, like the majority, find objectionable Respond- ent's requiring voters to pick up their paychecks before casting their ballots, but not its distribution of propaganda with the checks.' 4 Concerning Nancy Jung's alleged misconduct, she held a meeting with four or five LPNs on or about December 7, 1978. She began the meeting by asking if anyone knew what was wrong with the nurses aides. She told them she had detected a cer- tain amount of hostility in the air and wanted to know whether it was related to the Union's orga- nizing activity or something else. Nobody an- swered her immediately. She then asked those pres- ent if they had any problems. The Administrative Law Judge specifically found that an employee re- quested Jung to assist her in accelerating her pay raise by speaking to the administrator and that Jung flatly refused. The record also reveals that, during the meeting, Jung announced that a new work schedule would provide employees with every 12th, rather than every other, weekend off. Jung asked for comments and also whether anyone had a better suggestion for revising the schedule. One employee made such a suggestion, but Jung rejected it. In Uarco, Inc.,' 5 we noted that "it is not the so- licitation of grievances itself that is coercive and violative of Section 8(a)(l) but the promise to cor- rect grievances or a concurrent interrogation or polling about union sympathies that is unlawful; the solicitation of grievarces merely raises an inference that the employer is making such a promise, which inference is rebuttable by the employer." In the in- stant case, any possible inference that grievances would be corrected was effectively negated by Jung's refusal to expedite an employee's raise, her imposition of a more onerous work schedule, and her refusal to amend the schedule when that was suggested.' 6 Thus, Jung clearly conveyed to the employees the message that, although she was will- ing to listen to their complaints, she either could "'See my dissent in Dayton Tire Rubber Co.. 234 NLRB 504. 505 (1978). 14 I emphasize, though, that I continue to adhere to Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977), and accordingly, disagree with the majority's willingness to review the content of campaign propa- ganda for possible misrepresentations. '5 216 NLRB 1, 2 (1974). '^ Jung made no explicit promise of any kind. not or would not correct them or improve working conditions. DECISION STATMNT OF THE CASE ROBERT COHN, Administrative Law Judge: This con- solidated proceeding was heard before me in Atlanta, Georgia, on December 3-6. 1979,' upon due notice. The principal issues presented for decision are whether Moody Nursing Home, Inc. (herein the Employer or Re- spondent), violated Section 8(a)(l) and (3) of the Nation- al Labor Relations Act, as amended (herein the Act), by the acts and conduct of its supervisors and agents herein- after detailed.2 Also presented for decision is whether the acts and conduct of the Employer's agents and super- visors were sufficiently wrongful or unlawful to warrant setting aside the election among Respondent's employees conducted by the National Labor Relations Board (herein the Board) on January 24, 1979. Following the close of the hearing, post-hearing briefs were filed by counsel for the General Counsel, by coun- sel for Respondent, and by the representative of the Charging Party, which have been duly considered. Upon the entire record, including arguments of coun- sel and my observation of the demeanor of the wit- nesses,3 I make the following: FINDINGS OF FACT 4 1. THE ALIL.GED UNFAIR LABOR PRACTICES A. Background Respondent operates a nursing home in Decatur, Georgia, where it employs approximately 126 employees in the appropriate unit determined by the Board for the election.5 The facility contains approximately 225 beds, which are distributed in 5 wings which are named Dog- wood, East, West, Pavilion, and Georgian. At all times material, Respondent's administrator was a Mr. Mell and All dates hereinafter refer to the calendar ear 1978 unls,, otherulse indicated. 2 The original charge in Case 1)-CA-14187 sa, filed Nsemher 27 the original charge in Case 10-CA-14215 was iled December 8: and Ihe original charge in Case 0 CA-14853 was filed Jul' 23. 1979 3 Cf Bishop and Malco. Inc.. db/a W'alker'. 159 NLRH 1150, 1161 196) 4 There is no issue respecting jurisdictlon or the stalus of the Charging Parts: Union as a labor organization. The complaint allege, ufliicni facts respecting Respondent's interslate operations, which are admlllcd hy answer upon which I ma), and do hereby, find that Respondent i an employer engaged in commerce within the meaning of Sec 2(h) .iid (7) of the Act. It is alleged in the complaint, admitted in the an, er. and I find that at all times material the Charging Parti Union is a labor rganizatllin ithl the meaning of Sec 2(5) of the Act s The unit description is as follows. All service and maintenance emnployees employed by the Employer at its Decatur. Georgia. facility, including all ward clerks. nurses aides, housekeeping employees., laundr? employees, dietary emplos- ees., laboratory employees, physical therapy employees. sial sers Ice employees., licensed practical nurses, the admsslion's clerk and medl cal records clerk, hut excluding all business office clerical employees. professional employees. RNs. and guard, and superi lor, al, defined in the Act MOODY NURSING HOME. NC. 149 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the director of nursing (who had supervisory authority over the employees with whom we are concerned in this proceeding) was Nancy Jung. Since the home operated around the clock, the employees worked three shifts as follows: 7 a.m. to 3 p.m., 3 p.m. to 11 p.m., and 11 p.m. to 7 a.m. Prior to the summer of 1978, there had been no histo- ry of collective bargaining at Respondent. In approxi- mately August of that year, the Union commenced its or- ganizational campaign which consisted primarily of so- licitation of employees to join the Union, distribution of union authorization cards, and the holding of union meetings at locations away from the nursing home. On November 28, the Union filed its petition for an election with the Board and, pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and approved on December 19, an election by secret ballot was conducted by the Board on January 24, 1979, which the Union lost. Thereafter, as previously noted, the Union filed timely objections to the election which are consolidated herein for hearing and disposi- tion. The complaint herein alleges that Respondent termi- nated three employees and refused to reinstate another because of their concerted and/or union activities, and otherwise engaged in conduct independently violative of Section 8(a)(l) of the Act. Respondent, while admitting that it terminated the three employees and refused to re- instate the fourth, denies committing any wrongful or unlawful acts, and asserts that the reasons for changing the employment status of its employees, as aforesaid, was based upon good and sufficient cause as hereinafter set forth. Accordingly, I come now to a consideration of the evidence adduced respecting these issues. B. The Facts 1. The discharge of Joyce Heyward Heyward was hired as a nurses aide on August 5, and worked on the third shift until she was terminated on November 15. Shortly after being employed, she signed a union card, passed out some union cards to other em- ployees, and attended two union meetings which were held at locations away from the nursing home. One such meeting was also attended by Jeanette Hambrick, a li- censed practical nurse (LPN) who was employed by Re- spondent. 6 t11 is the posilion of the General Counsel that company knowledge of Heyard's (and some other employees') union activities may be found through tambrick's attendance at a union meeting held at a McDonald's restaurant hich was near the nursing home. He points out that the record establishes that Hambrick sometimes functioned as a night super- visor, "ard routinely served as a conduit of information and paperwork between Director of Nursing Jung and Respondent's LPN and nursing assistant eployees (G C br at fn 2, citing Samuel Liefjr and Iarro , Ovtreicher, a copartnerhp. d/b/a River Manor Health Related Iucilirv, 224 Nl RB 227 (1976) ) However, the facts in that case are readily distin- guishable from those herein. There, the Administrative La Judge (af- firmed by the Board) found, in an 8(a)(2 ) context, that management had utilized certain LPNs to require employees to sign dues-deduction au- Ihoriation cards on behalf of a union favored by management. The Ad- ninisrative Law Judge thus concluded that these I.PNs had been placed by mangement in a strategic position where employees could reasonably behlieve they spoke on its behalfl and thus provided a basis for a finding On October 24, Heyward drafted a two-page, hand- written note to Director of Nursing Jung which con- tained some 10 various grievances having to do primarily with alleged preferential treatment of LPNS vis-a-vis nurses aides. Heyward testified that she secured the sig- natures of four other employees (including discriminatees Betty Hudson, an LPN, and Susie Todd). Since Hey- ward worked the 11 p.m. to 7 a.m. shift, she rarely came into contact with Jung, who normally worked in the daytime. Accordingly, Heyward testified that she placed the letter in a "green envelope" and turned it in to regis- tered nurse (RN) Garrison for forwarding to Jung. 7 Al- though this method of communication between employ- ees on the third shift and the director of nursing was ap- parently common practice at the nursing home, Jung denied that she ever received the letter.8 Heyward injured her back while working on the eve- ning of November 12. The injury apparently resulted as a consequence of an effort on the part of Heyward and another nurses aide (Isry) to turn a patient over in bed. Heyward reported the incident to the charge nurse (LPN Betty Hudson) on the wing where she was work- ing, and also called Nancy Jung on the telephone. It so happened that Jung was working that night, and she came up a few minutes later to the wing where Heyward was injured. She gave Heyward some pills for the pain, and told her to sit down and not to make any more rounds of the patients. It is required for insurance purposes that, whenever an employee of Respondent injures herself while at work, an incident report must be filled out and turned in to Re- spondent. Heyward testified that Hudson told her to complete the incident report after Jung had left that morning, and Heyward proceeded to do so. Interestingly enough, both Heyward and Hudson testified that, after the incident report was completed and placed in a "green envelope," each placed the envelope on Jung's desk before they left that morning. Nevertheless, Jung disclaimed knowledge of such incident report until after Heyward was terminated a few days later as described, infra. 0 that they were its agents There is no such evidence ir this case, and therefore no basis upon which to find that Hambrick's knowledge of these discriminaees' unio activities is imputable to Respondent The parties stipulated that Garrison was a Sec 2(11) supervisor 8 Jung testified that the first time she saw the letter was during the investigation of the charge in the instant case when it was shown to her by the NLRB agent whot interviewed her The copy of the letter shown to Jung was a copy retained by Heyward, which was apparently given to the NLRB agent i the course of the inestigation of the charge GCarrison testified that it was a common occurrence for employees on the night shift to give her memoranda destined for Jung, and that she normally lays such memoranda on Jung's desk since Jung is usually not present that early in the morning. Garrison further testified that the first time she had seen the letter (G.C Exh. 16) was during the investigation of the case. when it was shown to her by the Board agent. " Heyward claimed that Jung gave her two ylenol pills and a Darvon capsule, which estimonyv is corroborated by that of Betty Hudson Jung denied ever haing administered )aron to Heyward. testifying that she gave Heyward Tylenol -nolt Darvon. I will assume the veracity of Hey ards testimony for the purpose of disposing of the ultimate issue of alleged discrimination "'L Jung acknowledged receipt of a letter from Heyward addressed to Mrs Morgan. Respondeint s staff coordinator whose function is. among Continued e - MOODY NURSING HOME, INC. 151 Upon reporting for work the following evening, Hey- ward found her timecard missing and a note signed by Jung in the timecard slot. The note instructed Heyward not to report for work until she had seen a doctor. On November 15, Heyward went to the office of a chiro- practor. In the course of his interview with Heyward, the chiropractor telephoned Respondent (apparently in an effort to learn whether Respondent would be respon- sible for his bill), and talked with Jung. He reported to Heyward that Respondent could not pay the bill because Heyward had not turned in an incident report. Leaving the chiropractor, Heyward went directly to the nursing home carrying the papers which the chiropractor had given her to complete. She showed them to Administra- tor Mell, who instructed her to give them to Director of Nursing Jung. Heyward insisted to Jung that she (Hey- ward) did, in fact, complete an incident report and had left it on Jung's desk. According to Heyward's testimo- ny, Jung, at that point, laughed. This incensed Heyward, who then threatened Jung that she would have Jung's li- cense for giving Heyward a Darvon without a doctor's prescription, and that she (Heyward) would see Jung and Mell in court. As she turned to leave, Jung told her not to return to work and Heyward assumed that she was terminated. Analysis and Concluding Findings as to the Termination of Joyce Heyward At the outset, it may be noted that there is no direct evidence of company knowledge of Heyward's union and/or concerted activities prior to her termination. ' Thus, there is no testimony that any management agent or supervisor observed or was made aware of her union activities, and I have rejected the claim of the General Counsel that LPN Hambrick, who attended a union meeting at which Heyward was present, was an agent of Respondent. With respect to the concerted activity reflected by the October 24 letter, there is, of course, no direct evidence that Jung (who made the decision to terminate Heyward) was ever made aware of that document prior to the dis- charge. Of course, there is direct evidence that the docu- ment was placed on Jung's desk, but common experience teaches us that sometimes papers are misplaced. In that connection, I note that Jung did not deny receiving com- plaints from other alleged discriminatees, 12 as well as from Heyward herself. Thus, the evidence indicates Jung's awareness of the letter of November 13, which Heyward addressed to Morgan, and Jung also acknowl- edged receipt of Susie Todd's request for a meeting to other things, to make out the employees' work schedules. In that letter, Heyward advised Morgan that she (Heyward) had written several letters that week (all unanswered): and that Heyward's back had been hurting all week and she was requesting not to be assigned to the Georgian-Dog- wood wing apparently because of the lifting of patients required there. " I am, of course, cognizant of Board precedent which teaches that such knowledge may be inferred under certain circumstances. See. eg. Wiese Plow Welding Co.. Inc.. 123 NLRB 616 (1959). However, I find that there is a lack of substantial evidence in the record herein upon which lo base such an inference. 12 Indeed, the record shows that Jung encouraged the filing of such complaints by employees respecting working conditions. discuss her alleged unfair evaluation report discussed, infra. Under all these circumstances, I would be disinclined to find as a fact that Jung had knowledge of Heyward's October 24 letter prior to reaching a decision to dis- charge her. However, I need not and do not rest my ulti- mate conclusion of recommending dismissal of this aspect of the complaint upon that factor alone since I also find insubstantial evidence to support the General Counsel's alternative theory, explicated in his brief, that Heyward's threat to resort to a legal authority violated Section 8(a)(l) of the Act. Counsel for the General Counsel cites the following cases in support of his con- tention: Alleluia Cushion Co., Inc., 221 NLRB 999 (1975); and Triangle Tool & Engineering, Inc., 226 NLRB 1354 (1976). Thus, counsel for the General Counsel is in agreement with Respondent's position that the "disrespect" shown Jung by Heyward was the "immediate, precipitating cause of discharge. And the disrespect was Heyward's statement that she would report Jung to the appropriate authorities for unlawfully dispensing a prescription drug." 3 Relying upon the foregoing cited authority, counsel for the General Counsel argues that an employ- ee's threat to resort to legal authority in regard to a matter of legitimate concern in the workplace violates Section 8(a)(l) of the Act. However, I cannot agree that the cited authorities contemplate or control the factual situation extant in the instant matter. Thus, the Board, in Alleluia, determined that concerted activity may be based upon a single employee's seeking to enforce statutory provisions relating to occupational safety designed for the benefit of all employees (in that case a single employee presented a complaint to a state agency concerned with health and safety standards). In Triangle, a similar finding was made upon a single em- ployee's solicitation of the aid of the Wage and Hour Di- vision of the United States Department of Labor respect- ing overtime pay. It is certainly beyond dispute that such matters as occupational safety and overtime pay are mat- ters of concern to all employees, and are subjects which not infrequently arise in the workplace. On the other hand, there is certainly no evidence in this case that there was a practice or policy of dispensing Darvon or any other prescription drug to employees by Jung or any other management representative. Moreover, this was a threat made against Jung personally and not respecting any policy or practice of Respondent generally. In sum, I find in apparent agreement with all parties that the immediate, precipitating reason for the discharge of Heyward was her threat to Jung; i.e., the decision to discharge had not been made prior to such threat. I fur- ther find that the utterance of such a threat in the cir- cumstances constituted sufficient reason for Jung's action, and that such action resulted solely from Heyward's conduct in that regard and not from any union or concerted activities in which she may have been engaged prior to such occurrence. I shall therefore ':' Brief of counsel for the General Counsel at p 5 MOODY NURSING HOME. INC~~~~~~~~~~~~~~~. 5 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommend that the complaint, as it pertains to the al- leged wrongful termination of Heyward, be dismissed. 2. The alleged discriminatory discharge of Betty Hudson Hudson was employed by Respondent as an LPN prior to being terminated by Respondent on December 7. She worked on the third shift as a "charge nurse," 4 and sometimes served as an acting supervisor on that shift in the absence of Jeanette Hambrick, for which Hudson re- ceived an extra $5 per pay period.' 5 Hudson signed a card for the Union in August, and also solicited signatures of approximately 20 other em- ployees, according to her testimony. She also attended union meetings, including the meeting at the McDonald's restaurant at which LPN Jeanette Hambrick was in at- tendance, as hereinabove noted. On or about October 27, Hudson received her first evaluation report, as was customary with employees after they had worked about 3 months for Respondent. Her performance rating varied from "average" to "good" and she was recommended by Director of Nurs- ing Jung for continued employment but not the pay in- crease. In the "comments" section of the report it was stated: "[R]eluctant to work Pavilion [wing] and to help dry up [patients]. Will have conference with her and re- evaluate in 3 months." Hudson testified that she refused to sign the evaluation report on the grounds that, while she admitted reluctance to work in the Pavilion wing, she would not agree that she refused to "help dry up." On or about October 24, Hudson signed the memoran- dum drafted by Heyward, referred to above, listing sev- eral complaints respecting working conditions. 6 During November, Hudson received a 20-cent-per- hour wage increase. However, the evidence shows that such increase was not based upon merit but rather was a night pay differential which all LPNs on the third shift received. The record reflects that, in late November and early December, Hudson had two derogatory memoranda filed with Jung respecting Hudson's work performance. One memorandum had to do with Hudson's leaving the floor for long periods of time, which necessitated that a nurses aide call her concerning residents who needed medica- tion. The other memorandum involved the dispensing of insulin to patients too early in the morning; that is to say, insulin should not be given to patients far in advance of their eating. Thus, Respondent had a policy that insulin was not to be given to patients before 6:45 a.m. The memorandum recited that Hudson gave insulin on some occasions prior to 6:15 a.m. Hudson did not deny breach- ing this policy but contended that, in order to give insu- lin to patients before Hudson was scheduled to leave at 7 a.m., she was required to give the insulin earlier than Re- spondent's policy stated. " This title refers to the LPN on duty in each wing of the nursing home on the night shift. Is However, on November 24, 1978, Hudson notified Jung that she no longer wished to serve in that position because the extra pay received was not worth the extra duties required. 16 Interestingly enough, some of the complaints had to do with alleged preference of LPNs (such as Hudson) over the nurses aides Jung testified that she reached a decision to terminate Hudson on December 7 on the basis of the following: She (Jung) received a telephone call early on the morn- ing of December 7 from nurses aide Isry, who was ap- parently upset respecting the care (or lack thereof) which Hudson was giving to the residents. This included the lack of feedings and lack of care due to Hudson's ab- sence from the wing. Jung asked if there were any other nurses aides who felt the same way Isry did, and the latter mentioned Sarah Wright, another nurses aide. Jung then called Wright and also Hambrick, and received the same information. According to Jung's testimony, Wright reported an incident where a resident had come to the desk that evening requesting medication, but no LPN was present to administer it.'7 On the basis of the foregoing information, Jung testi- fied that she immediately went to her files and pulled some of the nurses' notes on the most critically ill patient in the building because she wanted to see what kind of notes LPN Hudson had written on those people. She found that Hudson's notes were totally inaccurate and in- adequate because they did not reflect any information that the patient was given intravenous feedings, that she was turned, or that she had anything done for her, merely stating that she had a "quiet night without com- plaint." On the basis of all of these reasons, i.e., the early administering of the insulin, the length of time away from the wing on which she was the charge nurse, and the reporting on the patient above-noted, Jung reached a decision to terminate Hudson and telephoned her to so advise. Hudson merely thanked her, and later went to the nursing home to get her final check as well as the copies of the memoranda in her personnel file. Analysis and Concluding Findings as to Betty Hudson As in the case of Joyce Heyward, the record reflects no direct evidence of company knowledge of Hudson's union and/or concerted activities. Although I am, of course, aware that such knowledge may be based upon circumstantial evidence, I am disinclined to do so for the reasons mentioned in Heyward's case. Moreover, I note no attitude of recrimination by Jung against Hudson or any other employee for filing complaints; to the con- trary, as previously noted, the record reflects that she encouraged such memoranda from all employees under her supervision. But even if it is assumed, arguendo, that Jung had such knowledge of Hudson's concerted activities, I find the evidence in support of Respondent's reasons for the ter- mination to be substantial. Thus, there was no denial of Respondent's assertions that she breached Respondent's policy regarding the giving of insulin to patients too soon, which could have had an adverse effect on their health; that she was away from her work station for long periods of time; and that her charting was inadequate as to the very sick patients. Of course, suspicions are " Neither Wright nor Hambrick testified at the hearing, and I advised counsel that the testimony of Jung on this point was received merely as information upon which Jung took action and not for the truth or accura- cy of the report. MOODY NURSING HOME, INC. 153 aroused because of the timing of the termination as well as the failure by Jung to warn Hudson of such contem- plated action prior to the discharge. However, it is ap- parent from a consideration of the totality of the evi- dence, including Jung's demeanor on the witness stand, that the latter was a strict disciplinarian and brooked no carelessness or negligence of the employees, particularly with respect to the care of the patients. This is reflected, in part, by the relatively high rate of employee turnover at the facility. While this policy may not constitute good personnel relations, it is well established that the Board may not substitute its judgment in these matters for that of the Employer. Moreover, I note that there is no evi- dence that Jung departed from a policy or practice of Respondent with respect to any requirement for a previ- ous warning prior to termination. In sum, I find that there is insubstantial evidence to sustain the General Counsel's burden of proof that Hudson was terminated because of her union and/or concerted activities. I shall therefore recommend that these allegations of the complaint be dismissed. 3. The alleged discriminatory termination of Susie Todd Todd was employed by Respondent on August 28, and worked as a nurses aide on the third shift. She testified that, shortly after her employment she signed a union card, attended several union meetings (one of which was also attended by Jeanette Hambrick as discussed supra), and talked to several other employees about signing union cards. She also signed the October 24 memoran- dum drafted by Joyce Heyward, discussed supra. Todd acknowledged that she worked for a period shortly in excess of the 90-day probationary period for employees, of which she was aware. On or about No- vember 20, Jeanette Hambrick delivered to Todd an evaluation report prepared by Director of Nursing Jung. She told Hambrick that she did not intend to sign it be- cause it was incomplete. The form was, in fact, incom- plete in the sense that of the 15 criteria listed, only 4 were checked. In the "comment" section of the form it was stated: "Has used all three personal leave days. Worked with her 11-7 one night and asked her to go to Pavilion which she did but not willingly. Attitude seems poor." Jung recommended the employee for continued employment but did not recommend her for a pay in- crease. On December 4, Todd requested Union Repre- sentative Joyce Brown to write a letter to Jung request- ing a meeting for the purpose of discussing the evalua- tion report which Todd characterized as "unfair" and "not true"; she asserted that she had never worked with the director and that she was available to discuss the matter at any mutually agreeable time. The note was de- livered to Jung through RN Garrison. On December 6, Jung initiated a telephone call to Todd at the latter's home. According to Todd's version of the conversation, Jung asked why Todd did not sign the report, to which Todd responded that it was incom- plete. Jung then asked whether Todd would come to the nursing home to talk about it. Todd explained that she had just moved and that it would be 11 o'clock at night before she could come, to which Jung responded that she would have departed the nursing home by that time. Also, she advised Todd that she would have to sign the report before she would be allowed to return to work. At that point, Todd became rather indignant and told Jung that "she [Jung] did not hire her, that Miss Morgan did, and she [Jung] told me that Miss Morgan was acting under her supervision and then wasn't nothing else said." Todd assumed that the conversation was over, and hung up. A few minutes later, Jung called her back and told her that she was being fired because of being "disrespect- ful over the telephone, and then I told her, well, again, that she did not hire me, that Miss Morgan did and before I could be terminated, she would have to give me a termination slip showing that I was terminated."' Jung testified that she filled out the evaluation form on Susie Todd and purposely did not check all the blanks because she was not aware of Todd's capabilities in some of the areas; that she knew that Todd had some minor problems which she thought could be resolved; that, ac- cordingly, she did not recommend a pay increase but did recommend her for continued employment; that she was personally aware of Todd's reluctance to work in the Pa- vilion area; and that, on one occasion prior to Jung's re- ceipt of Todd's December 4 letter, Todd telephoned her one morning to complain about the evaluation-that it was inaccurate and that, "Jung never worked with Todd." Jung explained that she was the person who asked Todd to change wings, and that it was necessary that the evaluation form be returned so that it could be placed in her file. Jung further testified that that conver- sation was not unpleasant; that, after she received Todd's note, she immediately telephoned her to explain that she was the person who felt that Todd was unwilling to go to the Pavilion wing; and that Jung felt that Todd should remain employed but that she could not so continue if she failed to return the evaluation form for her file. It was at that point, according to Jung's testimony, that Todd hung up-while Jung was attempting to explain to her about the evaluation form; that Jung attempted to call her back but Todd's line was busy; that a few min- utes later Todd called her back and told Jung that Morgan had hired her, to which Jung responded that she had been trying to telephone Todd to advise her that she had been terminated because Jung did not "appreciate people hanging up on me when I am trying to solve problems, which she brought forth. I needed her evalua- tion. She did not return it. It's disrespectful. You cannot solve problems with employees like this." Analysis and Concluding Findings as to the Termination of Susie Todd As in the cases of Heyward and Hudson, above, there is no direct evidence of Respondent's knowledge of Todd's union or concerted activities prior to her termina- tion. As to the contention of the General Counsel that an inference should be drawn that Jung did, in fact, receive the October 24 communication, referred to above, and that she became indignant about it and set about to ter- minate those employees who signed it, I note that Jung I" Tesl imon o Susie Todd MOODY NURSING HOME, INC. 153 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responded promptly to the December 4 memorandum of Susie Todd, and that she indicated a willingness to dis- cuss Todd's problems, and evidenced no antagonism toward Todd (or any other employee as far as the record shows) for filing complaints with her (Jung). Moreover, there is no evidence that Jung had reached any decision to terminate or otherwise discipline Susie Todd prior to her telephone conversation with the latter on the morning of December 6. Even according to Todd's testimony, Jung asked if she would come to the nursing home to talk about the problem of the evaluation report. It was only after Todd indicated an unwillingness or inability to come to the nursing home at a time when Jung would be there that the latter explained that Todd would not be able to return to work until she signed it. It was at that point, as previously noted, that Todd became indignant and questioned Jung's authority to ter- minate her since Jung had not hired her. I find it unnec- essary to resolve the particular question of whether Todd hung up at that point, or while Jung was actually in the process of speaking. In either event, it was certain- ly not an approach conducive to resolving the problem under discussion. Considering the lack of evidence of animus on the part of Jung to Todd's asserted participa- tion in union and/or concerted activities, along with her singular disposition and temperament, described above, it may be reasonably concluded that it was this conduct of Todd which precipitated and formed the basis of Jung's decision to terminate her. Accordingly, based upon all of the foregoing, I find that the General Counsel did not sustain his burden of proof that the reason for Todd's termination was because of her union and/or concerted activities. I shall therefore recommend that the complaint as to her be dismissed. 4. The alleged discriminatory refusal to reinstate or reemploy Lillie Ruth Grissom This employee worked for Respondent from April 20, 1978, until she was terminated on July 23, 1979, because she "refused to accept job offered on July 12, 1979."' 9 Unlike the cases of the other alleged discriminatees discussed above, there is no question of Respondent's knowledge of Grissom's union activities prior to her ter- mination. She was one of the Union's observers at the NLRB election on January 24, 1979.20 At the time of the election, however, Grissom was on layoff status due to an injury which she suffered on December 23 at the nursing home. It appears that she slipped and fell while attempting to pick up a patient who had fallen to the floor, and injured her back and leg in the process. She was subsequently treated by a doctor, and attempted to return to work on one or two occasions in January and February, but she was unable to perform her duties due to the injury. Accordingly, she requested-and received "9 This language is from the separation notice sent to Grissom by Re- spondent (G.C. Exh. 10). 20 Her name also appeared as one of approximately 18 employees in various departments of the nursing home who could be contacted if any employee had any questions concerning the Union See the union leaflet distributed to employees in the latter part of November (G C Exh. 4). It is noted that the name of the other union observer at the election (Doro- thy Todd) appears on this circular. The record reflects that the latter is still an employee of the Company. from Respondent, on or about March , 1979, an ex- tended leave of absence. During this period, she filed for, and received, workmen's compensation for medical pay- ments and time lost due to the injury. On May 18, 1979, Grissom received a release from her doctor to return to work on May 21, 1979. However, the release included a specified limitation as follows: "She is to lift no more than 25 pounds. No stooping and bending and no working with arms over shoulder level." Grissom went to the nursing home on or about May 26, and spoke with Jung about returning to work. However, when Jung learned of the above-quoted limitation, she spoke to Administrator Mell and subsequently told Gris- som that "We can't let you come back to work with these limitations." 2 1 Grissom returned to her home and contacted her lawyer, who subsequently advised her to return to her doctor to ascertain whether he would change his state- ment. She did so, and received, on or about June 12, the following statement from her doctor: "The above-named patient (Grissom) was seen by me today and she is to lift only 35 pounds, no stooping or bending and no working with arms over shoulder level. Please no repetitive lift- ing." Grissom testified that she took the above statement to the nursing home and left it with the receptionist. Her next contact from the nursing home was in the form of a letter dated July 11, 1979, to be described more particu- larly infra. Meanwhile, in May, Grissom received a lump sum set- tlement of her workmen's compensation claim. Shortly thereafter, still being unemployed, Grissom filed a claim for unemployment compensation. A notice of this claim was sent to Respondent by the Georgia Unemployment Commission. This resulted in a decision by the officials of Respondent to offer Grissom a job in the laundry de- partment of the nursing home; that is to say, Respondent, having decided that it could not reinstate or reemploy Grissom under the limitations prescribed by her physi- cian, determined to offer Grissom a job in the laundry which she could perform and not breach the restrictions imposed by Grissom's doctor. The July letter stated as follows: July 11, 1979 Dear Mrs. Grissom: It is my understanding that you are ready to return to work after an extended illness. I understand that you have some stipulations as to physical activity. At this time we have a position open in the laundry from 3:00 AM to 11:00 AM. The physical activity would meet your present activity limitations. Please let us hear from you by Monday, July 16th. We can discuss the specifics of the job when you contact us. Thank you. Sincerely yours, Isabel Morton 2 Testimony of Grissom. MOODY NURSING HOME, INC. 155 Shortly after receiving the foregoing letter, Grissom telephoned Isabel Morton, the supervisor in the laundry. According to Grissom's testimony, after she identified herself as an LPN, Morton apologized for offering the position to a nurse, and suggested that Grissom talk di- rectly to Director of Nursing Nancy Jung. 22 Analysis and Concluding Findings as to Lillie Ruth Grissom It is the contention of the General Counsel that Re- spondent's refusal to reinstate Grissom as an LPN, and its final offer to allow her to return in the menial job of a laundry worker with unseemly working hours, were but stratagems devised by Respondent to retaliate against her because of her union activities. Respondent argues that, considering its obligation to the comfort and safety of its patients, it could not employ an LPN with the limitations prescribed by Grissom's physician, and that it offered her the laundry position (I) because it was a job which could be performed within those limitations and (2) as a counter to Grissom's unemployment compensation claim. It is true that at Respondent's nursing home it is the nurses aides who are primarily responsible for the per- sonal care of the patients such as bathing, personal hy- giene, turning the bed patients every 2 hours, and gener- ally cleaning up after the patients. On the other hand, the LPNs are primarily responsible for the medical care ad- ministered to the patients, which would encompass giving medication, taking vital signs such as blood pres- sure, temperature, etc., and performing the charting work required on each patient. Nevertheless, the record clearly reflects that, in the course of performing her normal day-to-day duties, an LPN must engage in some lifting, bending, and stooping. Thus, in the course of dis- pensing medication, the LPN has to push a cart contain- ing the medications through her wing. The cart, which is approximately 3 to 4 feet high, contains drawers which hold the medications, and the drawers extend down to approximately I foot from the floor. In order to reach the medications in the lower drawers, the LPN would perforce be required to bend or stoop in order to secure the medications. Moreover, the record reflects that on some occasions patient!; (who are, for the most part, el- derly, partially incapacitated persons) sometimes fall from their beds or wheelchairs and need to be restored to their original positions. Ordinarily, this would be the responsibility of the nurses aide, but, if she is not present on the scene, an LPN would be expected to lift or assist in lifting the patient to his or her original position. Indeed, I note that this was what Grissom was doing at the time she suffered her original injury in December. Accordingly, I am unable to agree that there is substan- tial evidence to support the General Counsel's position that an LPN could perform her work duties at Respond- ent's nursing home and, at the same time, be in compli- zz Morton testified that, at that time, she had an employee on acalnlll and needed someone to fold clothes: that Jung had given her Grissom'% name and told her of the latter's limitations; and that, hen she talked to Grissom on the telephone, the latter indicated that she could not accept the position because se as still a nurse I deem It unnecessarN to re- solve this particular credihility Issue for the purpose of res,olving the ult- mate question of discrimlination ance with the limitations prescribed by Grissom's physi- cian. Moreover, I note that there is no evidence to refute Respondent's contention that it has never employed an LPN with those limitations, so there is no evidence that Respondent discriminated against Grissom in this regard. To be sure, there is record evidence that Respondent al- lowed certain female employees to work during their pregnancy for extended periods of time, but it did so as long as the employee could perform her duties, and there was no outstanding limitation upon such duties which might result in liability to Respondent for breach of the stipulated limitation. Under the foregoing circumstances, and upon the filing by Grissom of an unemployment claim, I am unable to ascribe to Respondent a discriminatory intent in offering Grissom the job of folding clothes in the laun- dry. Although the working hours may seem unusual, Su- pervisor Morton's explanation appears reasonable: Q. And why those particular hours? A. As I stated before, we had a machine broken and it was vacation time. These were our peak hours; I needed-at that time the girl was coming in from twelve midnight and she was washing clothes and if I had gotten someone to come in at three o'clock she could have folded the clothes. And they could have been ready to go to the floors at ten minutes till seven. In sum, I conclude, and therefore find, that there is in- substantial record evidence to sustain the burden of the General Counsel on this issue, and therefore will recom- mend that the complaint, insofar as it alleges discrimina- tion as to Lillie Ruth Grissom, be dismissed. C. Alleged Interference. Restraint, and Coercion The complaint alleges that on various dates in Novem- ber and December agents of Respondent solicited its em- ployees concerning grievances they had with Respond- ent, and promised employees that it would remedy their grievances. Respondent denies such conduct. I. By Ellen Montonara At the time of the incidents at issue, Montonara had the title of staff development coordinator. As such, her job duties included orientation of the employees with re- spect to Respondent's rules, practices, and procedures. She testified that, commencing in October, she held training sessions almost daily with new staff members re- specting the above-stated subject matters. However, ac- cording to her testimony, a few days before Thanksgiv- ing, she held four meetings with older staff members on the same day. Such meetings were requested by Nursing Director Jung and another department head (Miss Hayes) who assertedly told her that there was quite a bit of confusion among the older staff people concerning Respondent's policy and procedure manual which had been issued the previous September.2 ' Accordingly, 2 testlllnn of lon ionara tl.tNs as not ailied as ia itlle. and Jung assi nl ilterrogtel n this poit MOODY NURSING HOME INC. 155 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD again according to Montonara's testimony, the purpose of the meetings with the older staff personnel was to go over the manual, which she said she could accomplish in approximately 30 minutes. Montonara's testimony with respect to the purpose of the meetings was controverted by that of Wanda Prayer. She testified that Montonara stated at the commence- ment of the meetings that she was there to hear the em- ployees' complaints-to have a "bitch meeting," and that she would take those complaints to Administrator Mell; that Montonara had a pad upon which she made notes; that she indicated that an affirmative action committee was to be formed which was to be composed of one em- ployee "per floor," which would have the function of a grievance committee, however, the latter committee would not commence to operate until after the election; that while Montonara intended to take the employees' complaints to Mell, "they couldn't do nothing [sic] until after the election"; and, finally, that, while she could not promise that Mell would always grant the employees' re- quests, "she would do the best she could."2 4 Based upon all of the foregoing, I conclude, and there- fore find, that the meetings held by Montonara (referring to the four meetings held on I day around Thanksgiving) were, in fact, held for the purpose of soliciting employee grievances or complaints; that such meetings were unique in that they had never been held prior to the advent of the union campaign; and that, while there is no evidence of a specific promise to improve any particular working condition, it was implicit that Respondent was promising to correct or remedy certain grievances so as to make union representation unnecessary. Such conduct therefore constituted interference, restraint, and coercion respecting employees' Section 7 rights in violation of Section 8(a)(l) of the Act. 25 2. By Nancy Jung Casondra Moore Petty, a witness for the General Counsel, testified that on or about December 7, while 24 Montonara's testimony is in accord with that of Prayer to the extent that Montonara would listen to the employees' complaints and take them to Mell. "and she [would seel what could be done for the employees in regard to the things they were unhappy about"; that she, in fact, noted items raised at the meeting on a legal pad; and that, in fact, an employee complaint committee was later instituted after the NLRB election. Both Prayer and Montonara testified that, at the meeting attended by Prayer, another employee (Gloria Yarborough) raised the issue of the Union, and accused Montonara that the purpose of the meeting was, in reality. for the purpose of thwarting the union movement; however, such purpose was denied by Montonara. Finally. Prayer placed the meeting which she attended in December, while Montonara was adamant in stating that it was before Thanksgis- ing-before the union petition was filed The credibility issue here has been a difficult one. However, rayer was quite impressive as a witness. answering questions candidly ad di- rectly. I also note that, at the time of the hearing, she was still an em- ployee of Respondent, and I have taken that circumstance into considera- tion in making my credibility findings. See Georgia Rug Mill. 131 NLRB 1304, 1305 at fn. 2 (1961), enfd. as modified 308 F.2d 89 (5th Cir. 1962); Astrosyotems, Inc., 203 NLRB 49 (1973); Federal Envelope Company, Omaha. Nebraska. A Division of Narionwide Papers Incorporufaed. 147 NLRB 1030, 1036 (1964). Accordingly. to the extent that her estimony differs with that of Montonara. I credit the former. 2s Teledyne Dental Products Corp.. 21(0 NL RB 435 (1974); Reliance Electric Compuinv. Madison Plant Mechanical Drive Division, 191 NlRH 44 (1971). enfd 457 F 2d 513 (6th Cir 172) employed as an LPN at the nursing home, she attended a small meeting of approximately four or five LPNs which was called by Director of Nursing Jung, and was held in the in-service room which is located directly across from Jung's office. She testified, without contradiction, as fol- lows: Q. Well, tell the Court what you remember being said, about how the meeting started, and what Ms. Jung talked about. A. Okay. Ms. Jung started the meeting, and she asked us could we possible-did we possibly know what was wrong with the aides, why there was so much hostility in the air, and nobody-well, first of all-okay. Ms. Jung started the meeting and she asked us could we possibly know what was wrong with the aides, there was so much hostility, could it be from the Christmas or the fact that the Union is coming in or trying to come in or did we know what it was about, and nobody answered at that point. Q. Okay. What occurred after those early re- marks? A. Okay. Then she asked us something, was there any problems with us, and I told her that I had been there since July and it was now October, and I was due for an evaluation, which would include a raise; and she said that Mr. Mell had the papers on his desk then, but-and I asked her could she push him to sign the papers, and that's when she told me she couldn't. Q. Okay. Did-were any other matters brought up by the employees there, any other subjects, that you recall? A. I don't remember. Q. Well, in regard-you mentioned what you said about your own raise and what Ms. Jung said-in regard to the matter raised about the nickle, one of the other employees mentioning the nickle raise- A. Uh-huh (affirmative). Q. -what if anything did Ms. Jung say? A. Well, she told us if she asked Mr. Mell for a quarter, he would only give a dime, or something, you know, to that effect. Based upon the foregoing, I conclude and find, as in the case of the Montonara meetings described above, that the Jung meeting with the LPNs had as its purpose the solicitation of employee grievances at a time when it was definitely known that a union organizational cam- paign was in progress. Even though Jung declined to promise Petty that Jung could accelerate her requested raise, the setting was such as to implicitly assure the em- ployees that their grievances or complaints were being sympathetically viewed. I believe the situation here to be comparable to that which was before the Board in Reli- ance Electric Company, supra, where it was stated that ". .. even a refusal to commit Respondent to specific MOODY NURSING HOME, INC. 157 corrective action, does not cancel the employees' antici- pation of improved conditions if the employees oppose or vote against the unions."26 Accordingly, I find the conduct of Jung at the Decem- ber 7 meeting, above-described, to constitute a violation of Section 8(a)(l) of the Act. II. THE OBJECTIONS TO THE ELECTION As previously noted, the Union lost the election held on January 24, 1979, but filed timely objections to said election with the Regional Director of the NLRB. On February 1, 1979, the Regional Director issued an order in which he found that the said objections raised substan- tial and material factual issues which could be more ap- propriately resolved by record testimony at a hearing. He also noted that certain allegations of the complaint issued in Cases 10-CA-14187 and 10-CA-14215 occurred during the critical period; i.e., after the filing of the peti- tion for the election. He then pointed out, in footnote 3 of his order: It is well established that the jurisdiction of the Re- gional Director in conducting post-election investi- gations is not limited to the specific issues raised by the parties and that an election may be set aside based upon evidence adduced during such investiga- tions but not specifically alleged in the objections. International Shoe Company, 123 NLRB 682. I have heretofore found that certain conduct of Re- spondent's agents which was violative of Section 8(a)(l) of the Act occurred during the critical period. Accordingly, I would recommend that the election be set aside based upon those findings. Ad- ditionally, I will briefly consider the remaining ob- jections alleged by the Union: A. Employer agents in open-room directly across from the voting place; thus allowing them to com- municate with each individual employee before en- tering the voting place before they had an opportu- nity to cast their ballots. The evidence shows that, prior to the election, a rep- resentative of the NLRB along with representatives of Respondent and the Union observed the place where the election was to be held, and otherwise checked the facili- ties and arrangements under which the employees would vote in the election. The place of the balloting was in the "in-service room," which was a classroom located direct- ly across a hallway from the offices of the staff coordina- tor and the director of nursing. The hours of the election were stipulated to be 1:30 p.m. to 4:30 p.m. and 10:30 p.m. to 11:30 p.m. Accordingly, it would be reasonably expected that, at least during the first period of voting when most of the employees actually voted, the supervi- sory personnel referred to would be engaged in their 26 191 NLRB at 46. Respondent relies upon 1: C. Papers. Inc., A Division of the Mead Corporation, 211 NLRB 657 (1974). However, in that case, a majority of the Board panel found that the purpose of the re- spondent's president's speech was to inquire into "normal work prob- lems," which is not the case here See also the dissenting opinion in that case. normal duties. There is scant evidence that any supervi- sor or agent of Respondent communicated with any indi- vidual employee in the voting area while that employee was awaiting an opportunity to cast his or her ballot. Certainly there was no evidence of any prolonged con- versations between representatives of Respondent and voters waiting to cast ballots. 27 Under all circumstances, I find insufficient evidence to warrant setting aside the election based upon this objection. 28 Paragraphs B, C, and D of the Union's objections, quoted below, will be considered together since they relate to the same series of events: B. The Employer's agents told employees that they had to pick up checks before they could vote. C. The Employer attached to the outside of each employee check a miss statement of antiunion pro- poganda, and the Union did not have a chance to reply. D. The employee was told by the Employer's agent to now go across the room and vote. The election was held on the employees' payday. It was apparently the regular procedure on payday for em- ployees to pick up their paychecks at the end of their shifts in the staff coordinator's office. It was also appar- ently agreed, or at least acquiesced in, that employees would vote by wings or departments in which they were employed, at scheduled times, and that announcements to that effect would be made over Respondent's public ad- dress system. The record reflects that, shortly before the polls opened, Respondent's agent, Ellen Montonara, began an- nouncing over the loudspeaker that the first employees scheduled to vote should pick up their paychecks and then go to vote. 29 This procedure was apparently fol- lowed throughout the election, and there was testimony that an employee would not be allowed to vote without first picking up her paycheck. Attached to the paycheck of each employee was a slip of paper containing the fol- lowing language: If you had been paying union dues to the Laborer's Union for only the last three months that the Union has been trying to get in here, you would already have paid at least $19.50* in dues alone (not to men- tion possible fines, assessments, and initiation fees). This money would have gone to help pay the salary and expense accounts of some union "big shot" here or in Washington. This is your money. You earned it-WHY not keep it for you and your family. 'Actually, the Union Constitution states that you would pay more 27 Cf. Milchem, Inc., 170 NLRB 362 (1968) 28 In the brief of the Union (p. 3). the following statement appears It was clearly understood during the stipulated session between the employer and the union that no one would he in that office [staff coordinator's office] or vicinity during the election events However, there is no evidence to that effect in the record. 29 Testimony of Dorothy Todd MOODY NURSING HOME, NC. 157 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V O T E "N O" It is clear from the foregoing that Respondent utilized the combination of payday and the voting procedure to put before the employees a bit of last-minute, antiunion propaganda before they entered the polling place. How- ever, there is no evidence that the information contained on the slip of paper attached to the employees' pay- checks was a misrepresentation since the evidence dis- closes that the monthly dues of a local union shall not be less than $7 per month.30 In any event, the Board has recently determined that it would "no longer probe into the truth or falsity of the parties' campaign state- ments." 31 However, for reasons hereinafter explicated, I believe the procedure utilized by Respondent on this oc- casion oversteps the bounds of the "laboratory condi- tions" standard which the Board has established for the conduct of its elections. Thus, while statistical evidence is not immediately at hand, it is well known that many, if not most, NLRB elections are scheduled on a day which coincides with the employees' payday since that is the workday upon which it might be reasonably assumed that most employ- ees would be present at the facility to vote. Were the procedure utilized by Respondent in this case allowed to prevail, it is reasonably foreseeable that unions, in the future, would be naturally reluctant to agree that elec- tions be scheduled on the workers' payday. It has been the Board's long-established policy to at- tempt to immunize the employees from certain types of I Ith-hour electioneering by either party. Thus, in Peerless Plywood Company3 2 the Board established its doctrine prohibiting election speeches, by either employers or unions, to mass assemblies of employees on company time within the 24-hour period immediately preceding an election. Since Peerless Plywood, the Board has refused to apply that doctrine to cases where a management offi- cial, on election day, individually contacted eligible voters at their work stations importuning them to vote "no" on the ground that such conduct was "unlikely to create the mass psychology referred to in Peerless Ply- wood."33 The Board concluded that the individual con- versations did not amount to a speech made to all the employees collectively. While the slips of paper attached to the employees' paychecks in the instant case may simi- larly not amount to a speech, the fact is that the lan- guage thereon, taken together with the timing of the conduct,34 was likely to create a "mass psychology" to which the Union clearly had no opportunity to re- spond.35 Based upon this factor, as well as the natural reluctance of unions to agree to elections on payday in the future, discussed above, I would find the conduct of Respondent in this instance to be sufficiently objection- able to warrant setting aside the election. 30 See "International Union Constitution," at p. 45 (Resp. Exh. II 1). 31 Shopping Karr Food Market, Inc., 228 NLRB 1311 (1977). 32 107 NLRB 427 (1953). a3 See Elecrro- Wire Products, Inc., 242 NLRB 960 (1979). 34 "The final minutes before an employee casts his vote should be his own, as free from interference as possible." Milchem, Inc., 170 NLRB 362. 3s Ibid. (dissenting opinions). E. The Employer's agents (Morgan & others) stood/sat and watched the employees line up along the walls of the voting place as they entered the voting room. Since the subject matter of this objection is similar to that of paragraph A above, the discussion and disposition of this paragraph would be the same as that of paragraph A. F. An employee who arrived early to work was not allowed to vote until after she received her check and was told she could only vote at 3:00 PM. The subject matter of this objection relates to the evi- dence, discussion, and disposition of paragraphs B, C, and D above. It is to be recalled that the first voting period extended from 1:30 p.m. until 4:30 p.m., and yet an off-duty employee was not able to cast her ballot until she picked up her check (which, of course, had the above-quoted slip attached thereto). The rationale and disposition of this item should be considered to be consistent with that respecting para- graphs B, C, and D above. G. The observer for the Union was clocked out at 1:10 PM by the Employer's agent, and denied re- mainder of pay for the day, while the observer for the Employer remained on the clock for the dura- tion of her scheduled shift. The Employer stipulated that it paid its observer for the time spent while acting as an observer at the elec- tion, but did not pay the Union's observer. I regard this item to be controlled by the Board's Decision in Golden Arrow Dairy, 194 NLRB 474, 479 (1971), where it was held that, in a case where the Union could have desig- nated an off-duty employee to act as an observer rather than an employee who acted as such during his regular hours of work, the employer was not required to pay the union's observer his wages while so acting. I therefore recommend that this item be overruled. H. The observer for the Employer was told by the Administrator, Mr. Mell, upon completion of the evening voting that she [the same observer] could come in late to work the next day. The representative of the Union, in her brief, acknowl- edged that no evidence was adduced in support of this item; therefore it should be overruled. I. That the nursing director, Mrs. Jung, during the voting hours was seen walking up and down the hall in front of the voting place. It is acknowledged in the record that, during the voting hours, Jung, in apparent pursuit of her duties, was seen walking up and down the hall in front of the voting place. As previously noted, there is no provision in the stipulation for the election which this conduct violated, and there is no evidence that Jung engaged in this con- duct for the purpose of interfering with the election, or MOODY NURSING HOME, INC 15 that she engaged in such conduct for an inordinate amount of time. Accordingly, I shall recommend that this item be overruled. J. The staff coordinator before and during elec- tion voting was in direct communication with em- ployees by informing them individually and collec- tively as to who is to vote first. As previously discussed, there was a schedule by which employees were supposed to vote. It was ac- knowledged that Miss Montonara, on occasions, instruct- ed employees of such schedule. There is no evidence that by engaging in such conversations she interfered with, restrained, or coerced them in connection with their rights or privileges under the Act. Accordingly, I shall recommend that this item be overruled. K. The Administrator, Mr. Mell, was in direct view of the voting place while an employee was casting her vote. The subject matter, discussion, and disposition of this objection should be considered with that under para- graph A above. For the reasons discussed above, I shall recommend that some of the objections to the election be sustained, that the election be set aside, and that another election be scheduled by the Regional Director at a time he deems to be appropriate. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interfering with its employees in the exercise of the rights guaranteed them in Section 7 of the Act, as set forth above, Respondent has engaged in unfair labor practices affecting com:nerce within the meaning of Sec- tion 8(a)(l) and Section 2(6) and (7) of the Act. 4. By its conduct, as set forth above, Respondent has interfered with its employees' freedom of choice in se- lecting a bargaining representative, and such conduct warrants setting aside the election conducted on January 24, 1979, in Case 10-RC-11609. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(l) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the entire record, the findings of fact, and the conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 3 6 The Respondent, Moody Nursing Home. Inc., Deca- tur, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Conducting meetings with groups of its employees for the purpose of hearing and adjusting employee griev- ances or complaints and explicitly or impliedly promising them economic benefits or improved working conditions in order to interfere with their choice of a bargaining representative, or as an inducement to reject and refrain from activities in support of Laborers' International Union of North America, AFL-CIO, Local 1348, or any other labor organization. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist the above-named labor organiza- tion, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purposes of col- lective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its facility in Decatur, Georgia, copies of the attached notice marked "Appendix." 3 7 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's au- thorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or cov- ered by any other material. (b) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that certain of the Union's objections to the election held by the Board in Case 10-RC-11609 be sustained, that the results of said election be set aside, and that said case be remanded to the Regional Director for Region 10 for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bargaining rep- resentative. IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. fi In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall a provided in Sec 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions. and Order. and all objections thereto shall be deemed waived for all purposes a7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National abor Relations Board" shall read "Poted Pursu- ant to a Judgment of the United States Court of Appeals all Order of the National I.abor Relations Board 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF: THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIll NOT conduct meetings with groups of our employees for the purpose of hearing and ad- justing their grievances or complaints, and directly or impliedly promising them benefits or improved working conditions, in order to discourage our em- ployees from voting, joining, or supporting Labor- ers' International Union of North America, AFL- CIO, Local 1348, or any other union. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the National Labor Relations Act, as amended. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, as guaranteed by Section 7 of the Act. MOODY NURSING HOME, INC.