A.M.F.M. of Summers County

National Labor Relations Board - Board Decisions

Dec 14, 1994

315 N.L.R.B. 727 (N.L.R.B. 1994)

727
315 NLRB No. 112
A.M.F.M. OF SUMMERS COUNTY
1 On July 19, 1994, Administrative Law Judge Phillip P. McLeod
issued the attached decision. The Respondent filed exceptions and a
supporting brief. The National Labor Relations Board has delegated
it authority in this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
1 All dates herein refer to 1993 unless otherwise specified.
A.M.F.M. of Summers County, Inc. and United
Steelworkers of America, AFL–CIO, CLC.
Cases 11–CA–15659 and 11–RC–5949
December 14, 1994
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
The questions presented here are whether the judge
correctly found that the Respondent engaged in various
actions which violated Section 8(a)(4), (3), and (1) of
the Act and interfered with employee free choice in a
representation election.1 The Board has considered the
decision and record in light of the exceptions and brief
and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, A.M.F.M. of Summers
County, Inc., Hinton, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
IT IS FURTHER ORDERED that Case 11–RC–5949 is
severed from Case 11–CA–15659, the election in Case
11–RC–5949 is set aside, and that Case 11–RC–5949
be remanded to the Regional Director for further pro-
ceedings.
[Direction of Second Election omitted from publica-
tion.]
Patricia L. Timmins, Esq., for the General Counsel.
Larry P. Rothman, Esq. (Smith, Hennan & Althen), of Wash-
ington, D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case in Hinton, West Virginia, on February 15, 16, and 17,
1994. Pursuant to a Decision and Direction of Election in
Case 11–RC–5949 issued on August 10, 1993,1 a secret bal-
lot election was held on September 8 among service and
maintenance employees, dietary employees, housekeeping
employees, certified nurse’s assistants, licensed practical
nurses, medical records clerk, nursing medical clerks, and ac-
tivities coordinators employed by Respondent. Among the el-
igible voters, 39 votes were cast for union representation and
48 votes cast against union representation. Following the
election, United Steelworkers of America, AFL–CIO, CLC
filed timely objections to conduct affecting the results of the
election. Shortly thereafter, on September 27, the Union filed
the charge in Case 11–CA–15659.
On October 22, a complaint and notice of hearing issued
which alleges, inter alia, that Respondent violated Section
8(a)(1), (3), and (4) of the National Labor Relations Act (the
Act), by issuing warnings to employees James Gill and Kay
Fleshman; by suspending employee evaluations which ad-
versely affected employees’ wages and benefits; by granting
wage increases to employees to discourage their union activi-
ties; by promoting licensed practical nurses to supervisory
positions in order to discourage their union activities; and by
threatening employees concerning their union activities. On
October 25, the Regional Director for Region 11 issued a
supplemental decision, order directing hearing and order con-
solidating cases, joining the two cases for hearing. In its an-
swer to the consolidated complaint, Respondent admitted cer-
tain allegations including the filing and serving of the
charges; its status as an employer within the meaning of the
Act; the status of the Union as a labor organization within
the meaning of the Act; and the status of certain individuals
as supervisors and agents of Respondent within the meaning
of the Act. Respondent denied having engaged in any con-
duct which would constitute an unfair labor practice within
the meaning of the Act.
At the trial herein, the complaint was amended to allege
that Respondent violated Section 8(a)(1) of the Act by telling
statutory employees that they were supervisors and thus pro-
hibited from engaging in union activities. Respondent amend-
ed its answer to deny that allegation. At the trial herein, all
parties were represented and afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to intro-
duce evidence. Following the close of the trial, all parties
also filed timely briefs with me which have been considered.
On the entire record in this case and from my observation
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
A.M.F.M. of Summers County, Inc. is, and has been at all
times material herein, a West Virginia corporation engaged
in operating a nursing home at Hinton, West Virginia. In the
course and conduct of its business operations, Respondent
annually purchases and receives goods and products valued
in excess of $50,000 directly from points located outside the
State of West Virginia and annually derives gross volume of
revenue in excess of $500,000 in the operation of its nursing
home. Respondent is, and has been at all times material here-
in, an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. LABOR ORGANIZATION
United Steelworkers of America, AFL–CIO, CLC is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent operates a 120 bed intermediate care nursing
facility just outside Hinton, West Virginia. Respondent is one
of nine such nursing home facilities owned or operated
throughout West Virginia by A.M.F.M., Inc., the parent cor-
poration, headquarted in Charleston, West Virginia.
John Elliot is the president of A.M.F.M., Inc. as well as
the president of the Summers facility. Elliot serves as chief
executive and chief financial officer and is responsible for
the operation of all nine facilities.
During approximately February 1993, employees James
Gill and Kay Fleshman contacted the United Mine Workers
to discuss the possibility of that union representing Respond-
ent’s employees. After several meetings, in April 1993, the
employees contacted the Union herein to further pursue rep-
resentation. Also during April, Director of Nurses Deborah
Ashley learned through Clinical Care Coordinator Barbara
Meadows, both supervisors within the meaning of the Act,
that employees were looking for a union to represent them
and meeting with union representatives for that purpose.
Ashley admitted that she reported this information imme-
diately to Hinton Administrator Rick Shrewsberry. Shortly
thereafter, Gill, Fleshman, and other employees personally
informed Ashley of their participation in union activities.
Ashley again reported this information to Shrewsberry. In
late May, the Union sent Respondent a letter identifying 17
employees who were actively engaging in a union campaign
at Respondent’s facility.
B. The May 1993 Wage Increase
All employees at all of Respondent’s facilities received an
across-the-board wage increase in April 1990. Licensed prac-
tical nurses (LPNs), received an additional increase in June
1990. In September 1990, all employees again received an
across-the-board increase. Nine months later, in March 1991,
all employees received another across-the-board increase.
Beginning in March 1992, Human Resource Director Pam
Lawson began a wage survey study at all nine of Respond-
ent’s facilities to compare them to similar facilities in each
area. Administrators of the various facilities supplied Lawson
with information at various times between March and August
1992. In early December 1992, Lawson prepared a summary
for CEO John Elliot recommending a 3- to 5-percent wage
increase. Elliot decided that for financial reasons, he would
be unable to grant a wage increase before the end of 1992,
and deferred any action until the next year. Elliot, however,
included the proposed raise in his budget report to the state
regulatory agency for 1993.
In May 1993, after Respondent learned of union activity
at the Hinton facility, Respondent implemented a 25-cent-
per-hour across-the-board wage increase for all employees at
all nine of its facilities. Respondent admits that it knew of
the union activities among employees at the Hinton facility
when CEO Elliot signed off on the paperwork granting this
raise. Elliot testified that the decision was totally unrelated
to the union activities of employees at that one facility. Elliot
testified that he had serious concerns about whether the in-
crease recommended by Lawson could be granted simply be-
cause of the cash flow demands which it represented. Elliot
testified that it was not until after he was able to review the
results of operations for the first quarter of 1993 that his
‘‘comfort level’’ was satisfied that ‘‘the numbers worked.’’
On or about May 5, the wage increase was announced to all
facilities effective May 1.
C. July 1993: The Representation Petition, Promotions,
and Raises Granted to LPNs
On July 6, the Union filed its petition in Case 11–RC–
5949 seeking to represent employees at the Hinton facility,
including licensed practical nurses.
On July 19, the LPNs were informed by letter from CEO
John Elliot that they were all being promoted to supervisors.
On July 20, Hinton Administrator Rick Shrewsberry met
with LPNs and repeated the same message. The LPNs were
given a 25-cent-per-hour raise along with this ‘‘promotion,’’
supposedly because of additional responsibilities and addi-
tional duties which they would be required to perform.
On the next day, July 21, Respondent’s attorney herein
met with the licensed practical nurses and informed them
that in view of their supervisory status, they could not en-
gage in union activity. Employees James Gill and Kay
Fleshman both testified credibly that because of the attor-
ney’s comments, neither they nor other LPNs campaigned
any further on behalf of the Union until after the Regional
Director issued his Decision and Direction of Election find-
ing them to be employees within the meaning of the Act, as
more fully discussed below.
On July 28, a hearing was conducted by Region 11 of the
Board on various issues relating to the representation peti-
tion, including the issue of whether or not LPNs were super-
visors within the meaning of the Act. At that hearing, em-
ployees Gill and Fleshman testified on behalf of the Union
concerning the duties and responsibilities of LPNs. On Au-
gust 17, the Regional Director issued a Decision and Direc-
tion of Election wherein he found, inter alia, that Respond-
ent’s LPNs are not supervisors and are statutory employees
within the meaning of the Act.
It is undisputed that prior to the promotion of LPNs to su-
pervisors, LPNs were never included in regular management
meetings held at the Hinton facility. Director of Nurses
Deborah Ashley testified candidly she was informed by her
superiors that while LPNs were going to be promoted to su-
pervisor, there title would change but they were going to be
doing basically the same duties as before, with a few more
responsibilities and more accountability for their actions. De-
spite the would-be promotion, and the raise in pay, the
LPNs’ duties did not change until at least November when
they were given their first training ‘‘module’’ or session.
D. July 31: The Disciplinary Warning to Employee
James Gill
On July 27, supervisors attending a department head meet-
ing reported that James Gill had been observed talking about
the Union while he and other employees were working. Ad-
ministrator Shrewsberry admits directing the supervisors to
729A.M.F.M. OF SUMMERS COUNTY
investigate the matter further and obtain documentation
against Gill if possible. At the urging of supervisors,
Shrewsberry received written reports from employees con-
cerning statements Gill made to them about the benefits of
union representation. Shrewsberry received only one written
complaint, from certified nursing assistant Brenda Allen, that
Gill’s solicitations interfered with her work.
After Gill testified on behalf of the Union at the represen-
tation hearing on July 28, on July 31 Gill was issued a dis-
ciplinary oral warning, euphemistically referred to as ‘‘edu-
cational counseling,’’ by Director of Nursing Deborah Ash-
ley. It is undisputed that Shrewsberry specifically directed
Ashley to issue this warning to Gill. At Shrewsberry’s direc-
tion, Ashley met with Gill on July 31, documented the meet-
ing sometime later, and presented a memo of the meeting to
Gill on August 14.
By the time of the trial herein, Ashley had been terminated
as director of nursing, and she was called as a witness by
counsel for General Counsel. Ashley testified that while she
was director of nursing, after Respondent became aware that
employees were engaged in union activities, she was in-
structed by CEO Elliot to find some basis and issue warnings
to both Gill and employee Kay Fleshman. Ashley testified
that she would not have given warnings to either Gill or
Fleshman had she not been instructed to do so. Respondent
argues that Ashley should not be credited since she had obvi-
ous reasons for being biased against Respondent. While there
may indeed be reasons why Ashley might be biased against
Respondent, I am utterly convinced from having observed
her as a witness that Ashley was telling the truth, particularly
relating to the warnings issued to employees Gill and
Fleshman. Ashley was a very credible witness, candidly ad-
mitting, for example, her own shortcomings which led to her
termination. As it relates to the warnings issued to Gill and
Fleshman, I note that Ashley’s testimony is also supported
by other evidence.
The disciplinary warning issued to Gill was for allegedly
soliciting on behalf of the Union in violation of Respond-
ent’s no-solicitation rule. Of particular interest in Gill’s case,
however, is the testimony of Brenda Allen that it was she
who started the conversation with Gill about the Union.
Allen did not receive any discipline or warning for her con-
duct. Moreover, Allen’s testimony tends to corroborate Ash-
ley who admitted to having ‘‘steered’’ the contents of the
written documentation of the conversation in order to ‘‘get
something’’ on Gill. Ashley, for example, specifically told
Allen to state whether the conversation between her and Gill
kept Allen from doing her job. Allen admitted that while it
was she who started the conversation with Gill, after being
approached and talked to about the conversation by Ashley,
Allen stated in a memo documenting the conversation that
Gill ‘‘started talking about the Union,’’ that she was against
the Union and ‘‘didn’t want to hear about it,’’ and that Gill
‘‘kept me away from my work and put me behind with my
patient.’’ At the trial herein, Allen testified candidly that it
was she who started the conversation with Gill which kept
her from completing her work. As both Allen and Ashley in-
timated, Ashley intentionally steered Allen toward blaming
Gill for the conversation and any interference which it might
have caused with employees’ work.
On July 31, Director of Nursing Deborah Ashley met with
Gill and informed him that he was being given an oral warn-
ing or reprimand for soliciting on behalf of the Union in vio-
lation of Respondent’s no-solicitation rule. During the meet-
ing between Ashley and Gill, Ashley reminded Gill once
again that he could not engage in union activities on behalf
of the Union because he was a supervisor. Ashley then read
Gill Respondent’s no-solicitation rule and warned Gill that
he had to abide by it. Ashley also told Gill that he had been
accused of interfering with employees’ work by talking about
the Union. Gill responded that he and other employees had
routinely sold nonunion related items at the facility in the
past without incident. This is corroborated by other wit-
nesses. Further, Respondent has no rule against talking dur-
ing working time, and there is simply no evidence that Gill
actually solicited Allen to do anything on behalf of the
Union. Gill simply responded to Allen’s inquiry about the
Union. The record clearly reflects that Respondent, through
Ashley, encouraged Allen to point the finger at Gill in order
to justify Respondent issuing discipline to Gill, and I so find.
E. August 6: Disciplinary Warning Issued to Employee
Kay Fleshman
On August 6, Director of Nursing Ashley issued a verbal
warning to employee Kay Fleshman. As was the case with
Gill, Administrator Shrewsberry directed Ashley to issue the
warning to Fleshman. Shrewsberry decided that Fleshman
needed this warning because of an allegedly hostile attitude
displayed toward Shrewsberry by not saying ‘‘good morn-
ing’’ to Shrewsberry and not speaking to Shrewsberry when
he entered Fleshman’s work area, by not wearing the com-
pany name tag, and by speaking up in a critical manner con-
cerning company rules during employee meetings.
There is no question that at some point in the past, some
employee or employees have been issued discipline for dis-
playing poor work attitudes. On the other hand, Director of
Nursing Ashley testified in an entirely credible manner that
the specific conduct for which Fleshman was issued the
warning was no different from conduct other employees en-
gaged in for as long as Ashley worked at the facility and for
which no discipline had issued. Ashley testified credibly that
after the union campaign began, she was told by adminis-
trator Shrewsberry both privately and in supervisors’ meet-
ings that Ashley needed to ‘‘clean house’’ and crack down
by finding reasons to issue discipline to union supporters.
When Fleshman did not do so, Shrewsberry finally directed
Ashley to issue specific discipline to the two most avid
union supporters, James Gill and Kay Fleshman. I find that
this is precisely what Ashley did.
F. August 23: The Actions of Dr. Jack Woodrum
On or about August 23 or 24, not long before the Board-
conducted election on September 8, employee James Gill
was called to the nurses’ desk by medical director Dr. Jack
Woodrum. Gill testified credibly that Clinical Care Coordina-
tor Barbara Meadows and Social Service Director Ray Nutter
were also present. Gill testified that Dr. Woodrum asked Gill
why he was trying to get a union to represent Respondent’s
employees. Dr. Woodrum went on to state that if the Sum-
mers County facility became unionized, CEO Elliot would
sacrifice that facility and close it in order to save the other
facilities from becoming union.
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Woodrum was called as a witness by Respondent, and he
denied making these or similar remarks to Gill, but I found
Woodrum’s denial half-hearted and totally unconvincing.
Gill also testified credibly that as Dr. Woodrum made this
statement to Gill, neither Clinical Care Coordinator Meadows
nor Social Service Director Nutter, both admitted super-
visors, said or did anything to disclaim Woodrum’s state-
ments. I credit Gill that Dr. Woodrum made the statements
to which Gill testified. I find as well that Clinical Care Coor-
dinator Barbara Meadows and Social Service Director Ray
Nutter were both present during Woodum’s remarks and did
nothing to disclaim Woodrum’s statements.
G. September 1993: Suspending Employee Evaluations
In the Board-conducted election held on September 8, 39
votes were cast for union representation and 48 votes were
cast against representation. On September 13, the Union filed
timely objections to conduct affecting the results of the elec-
tion. It is undisputed that after the Union filed objections to
the election, Administrator Shrewsberry delayed completion
of annual employee evaluations and merit pay adjustments.
Director of Nurses Deborah Ashley testified credibly she
was told by administrator Shrewsberry that the freeze was
being imposed because of ‘‘allegations that were filed by the
Union.’’ Shrewsberry went on to tell Ashley that Respondent
‘‘didn’t want to give any raises during this timespan where
it could be misinterpreted as bribes or whatever.’’ Respond-
ent told employees the reason employee performance evalua-
tions were frozen was due to the Union’s objections to the
election. Employees were given no indication how long the
‘‘freeze’’ might last, although Respondent did tell employees
that eventually the wage increases would be reinstated and
they would be retroactive.
There is no dispute that annual employee performance
evaluations were the basis on which employees received reg-
ular wage increases. There is no dispute that after the Board-
conducted election and after the Union filed objections, Re-
spondent imposed a temporary freeze on evaluations and on
raises stemming from such evaluations. Neither is there any
dispute that when the wage increases were eventually grant-
ed, they were in fact made retroactive to their originally
scheduled date, which was the first full payroll period after
their employment anniversary date. Nine employees had their
evaluations indefinitely suspended pursuant to Shrewsberry’s
action.
Analysis and Conclusions
The Supreme Court has stated that when a wage increase
is granted by an employer during a union organizing cam-
paign, it will presume that the raise was given in order to
dissuade employees from supporting the Union. NLRB v. Ex-
change Parts Co., 375 U.S. 405 (1964). The Court stated
that when a raise is granted in such situations, the burden is
on the Employer to overcome that presumption and prove
that the increase was granted for other legitimate business
considerations. The Board, however, recently declined to in-
voke such a presumption, apparently choosing instead a test
which would require that the preponderance of the evidence
must reflect unlawful motivation. Speco Corp., 298 NLRB
439 fn. 2 (1990). See also Montgomery Ward & Co., 288
NLRB 126 fn. 6 (1988). The Board will give considerable
weight to the employer’s application of the wage increase to
other employees who are not involved in the Union’s orga-
nizing effort. J. J. Newberry Co., 249 NLRB 991, 1008–
1009 (1980). Similarly, the relative size of a wage increase
compared to the employer’s past practice is a relevant con-
sideration. Automated Products, 242 NLRB 424 (1979).
Respondent admits that when it granted the wage increase
to employees in May 1993, it knew of union activities
among employees at the Hinton facility. The timing of this
raise is the one element to which counsel for General Coun-
sel can most strongly point as evidence of unlawful motiva-
tion. Other factors, however, strongly suggest that the May
1993 wage increase would have occurred at or about the
same time regardless of employee union activity. All em-
ployees at all of Respondent’s facilities received an across-
the-board wage increase in April 1990 and again in March
1991. These raises suggest a pattern of Respondent reviewing
employee wage levels and granting raises when possible on
an annual basis in the spring. Indeed, the record reflects that
beginning in March 1992, Human Resource Director Pam
Lawson began another wage survey study at all of Respond-
ent’s facilities. Although Lawson recommended that employ-
ees receive a wage increase, CEO John Elliot decided that
for financial reasons, particularly cash-flow concerns, he
would not grant such an increase before the end of 1992. El-
liot, however, included such as proposed raise for calendar
year 1993 in his budget report to the West Virginia health
care regulatory agency. When Elliot did implement the raise
in May 1993, he did so at all of Respondent’s facilities. The
1993 raise was instituted in the spring, as were raises in
1990 and 1991. Based on all of these facts, I am persuaded
that the raise granted Respondent in May 1993 would have
occurred without regard to union activity at the Hinton facil-
ity, and I shall therefore dismiss the allegation that the May
1993 raise was granted in violation of the Act.
I reach a much different result, however, with regard to
the July 1993 promotions and raises granted to LPNs. On
July 6, 1993, the Union filed its petition in Case 11–RC–
5949 seeking to represent employees at the Hinton facility,
including LPNs. On July 19, the LPNs were informed by let-
ter from CEO John Elliot that they were all being promoted
to supervisors. On July 20, Hinton Administrator Rick
Shrewsberry met with the LPNs and repeated the same mes-
sage. The LPNs were given an additional 25-cent-per-hour
raise along with this promotion. On the next day, July 21,
Respondent’s attorney met with the LPNs and informed them
that in view of their supervisory status, they could not en-
gage in union activity.
It is true, as Respondent argues, that as far back as March
1991 Elliot formulated as one of his ‘‘management by objec-
tive’’ goals the inclusion of LPNs in the corporate manage-
ment team. The record herein reflects, however, that until the
Union filed its petition seeking to represent licensed practical
nurses, Respondent had done very little, if anything, to im-
plement that goal. Indeed, in 1991 and thereafter Elliot de-
cided instead to focus on several other objectives, including
new job descriptions, health insurance coverage for employ-
ees, a new human resources policy and procedure manual,
and a new employee handbook. Indeed, throughout 1992 and
1993, Respondent pursued a much different goal of obtaining
approval from the State of West Virginia to be a provider
of continuing education credits for nurses within the State of
731A.M.F.M. OF SUMMERS COUNTY
West Virginia as required of nurses by recently enacted con-
tinuing education legislation.
It was not until after union activity began among employ-
ees at the Hinton facility that Respondent took any action to
actually implement the goal of making LPNs supervisors. In
its posttrial brief, Respondent argues that ‘‘the Company has
always taken the position that LPNs are supervisors.’’ Noth-
ing is farther from the truth. In fact, the record is absolutely
clear that prior to the July 1993 promotion of LPNs to super-
visors, LPNs were never included in regular management
meetings held at the various facilities.
As soon as union activity began at the Hinton facility,
however, Respondent immediately began to implement this
goal. This was easy to do since some LPNs exercised quasi-
management authority when they acted as charge nurses on
the evening and nighttime shifts. Respondent simply had to
formalize those quasi-supervisory duties and delegate them to
every LPN as LPNs related to certified nursing assistants.
This is why, within a time frame of 3 days from July 19 to
July 21, Respondent was able to inform LPNs that they were
all being promoted to supervisors, issue them an immediate
raise, and then have Respondent’s attorney declare that in
view of their supervisory status, LPNs could not engage in
union activity. Even after Respondent took this action, noth-
ing was done to actually train LPNs to be ‘‘supervisors’’ for
almost 4 months until the first training ‘‘module’’ in Novem-
ber. I find that Respondent promoted LPNs to supervisors
and issued them a raise simply in order to wrest away from
LPNs the right under the Act to engage in union activity. In
short, Respondent’s action was simply part of a scheme to
deprive employees of Section 7 rights guaranteed them by
the Act, and I find that in doing so Respondent violated Sec-
tion 8(a)(1) of the Act. Regency Manor Nursing Home, 275
NLRB 1261 (1985).
Moreover, I find that as a part of the scheme to deprive
employees of their statutory rights, Respondent’s attorney
met with and informed LPNs that in view of their super-
visory status, they could not engage in union activity. Re-
spondent’s attorney was simply acting in concert with Re-
spondent to attempt to chill the exercise of Section 7 rights
by licensed practical nurses, and I find that by doing so he
violated Section 8(a)(1) of the Act. Shelby Memorial Home,
305 NLRB 910 fn. 2 (1991).
Finally, Respondent would no doubt argue that even if it
acted to promote LPNs to supervisors because of union ac-
tivity among employees at the Hinton facility, LPNs would
eventually have been promoted to supervisors anyway as re-
flected by the ‘‘management by objective’’ goals. While it
is true that Respondent had long been discussing the ‘‘charge
nurse as manager’’ concept, and probably even intended to
implement it somewhere down the line, when that might
have occurred were it not for the union activity is a matter
of pure speculation.
I also find that Respondent issued disciplinary warnings to
employees James Gill and Kay Fleshman in retaliation for
their union activity, and in retaliation for having testified on
behalf of the Union at the Board’s representation case hear-
ing. Former Director of Nurses Deborah Ashley testified
credibly that after Respondent became aware employees were
engaged in union activities, she was encouraged by CEO
John Elliot to find some basis to issue warnings to both Gill
and Fleshman. When Ashley did not do this on her own, she
was eventually specifically directed by Hinton Administrator
Rick Shrewsberry to issue warnings to Gill and Fleshman.
Ashley testified credibly that she would not have given warn-
ings to either Gill or Fleshman had she not been instructed
to do so.
With regard to the warning issued to Gill, credible record
testimony reflects that it was not Gill, but employee Brenda
Allen, who initiated the conversation regarding the Union.
Ashley steered Allen toward laying the blame for this con-
versation on Gill. I note, too, that Respondent has no rule
against talking during working time, and there is simply no
evidence that Gill actually solicited Allen to do anything on
behalf of the Union. Gill simply responded to Allen’s inquiry
about the Union. Respondent, however, through Ashley, en-
couraged Allen to point the finger at Gill in order to justify
Respondent issuing discipline to Gill. With regard to the
warning issued to employee Kay Fleshman, Ashley testified
credibly that the conduct which displayed Fleshman’s alleged
poor attitude was in fact no different from the conduct other
employees engaged in for as long as Ashley worked at the
facility and for which no discipline had ever been issued. I
find that Respondent issued disciplinary warnings to both
Gill and Fleshman in order to retaliate against them for their
union activity and for having testified on behalf of the Union
at the Board-conducted representation case hearing, and Re-
spondent thereby violated Section 8(a)(1), (3), and (4) of the
Act.
As I have found above, in late August 1993, not long be-
fore the Board-conducted election on September 8, Medical
Director Dr. Jack Woodrum, accompanied by Clinical Care
Coordinator Barbara Meadows and Social Service Director
Ray Nutter, confronted employee James Gill at the nurses’
desk. Dr. Woodrum first asked Gill why he was trying to get
a union to represent Respondent’s employees. Dr. Woodrum
then went on to state that if the Hinton facility became
unionized, corporate CEO John Elliot would sacrifice that fa-
cility and close it in order to save the other facilities from
becoming union. Counsel for General Counsel argues that
Dr. Woodrum’s duties as medical director at the Hinton fa-
cility make him an agent of Respondent within the meaning
of Section 2(2) and (13) of the Act. Respondent denies that
Woodrum is its agent for any purposes. The facts regarding
Woodrum’s duties and responsibilities as medical director are
not disputed. Woodrum has been the medical director at the
facility for as long as the facility has existed. In this capac-
ity, he has served on various committees and advised Re-
spondent on matters which have arisen relative to both medi-
cal care and nursing care. He reviews all of Respondent’s
policies and procedures, and his signature approving them is
on the front page of Respondent’s policy and procedures
manual, including its human resources manual. Woodrum’s
name is prominently displayed on the wall at the front of Re-
spondent’s facility along with the facility administrator, di-
rector of nurses, and department heads.
On the other hand, the record is equally clear that
Woodrum has no authority in personnel matters and plays no
role in hiring, firing, interviewing, disciplining, evaluating, or
directing the work of employees. Woodrum does not partici-
pate in regular management meetings. When Woodrum is in
the facility as medical director, he is accompanied by a
member of Respondent’s management staff, usually the clini-
cal care coordinator. Woodrum has no authority, and does
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not on any regular basis deal directly with employees about
personnel matters or policies. In the health care industry, the
Board has recognized that individuals such as physicians
whose authority extends only to the direction of medical
treatment pursuant to the exercise of medical judgment are
not supervisors or agents in the meaning of the Act where
their actions are incident only to patient care. See, e.g., Mid-
dletown Hospital Assn., 282 NLRB 541, 548 (1986).
Woodrum’s position as medical director, however, tends to
cloak him with more authority than simple direction of medi-
cal treatment, as exemplified by the fact that Woodrum’s sig-
nature appears on the front page of all of its policies and
procedures manuals, including its human resource manual.
Whether or not Woodrum’s duties and responsibilities as
medical director make him an agent of Respondent within
the meaning of the Act is nevertheless somewhat question-
able. I find it unnecessary to reach that specific issue. When
employee James Gill was summoned to the nurses’ desk and
confronted by Dr. Woodrum on this occasion in late August
1993, Woodrum was accompanied by clinical Care Coordina-
tor Meadows and Social Service Director Nutter, both admit-
ted supervisors and agents of Respondent within the meaning
of the Act. As Woodrum confronted Gill, arguing that if the
Hinton facility became unionized corporate CEO John Elliot
would sacrifice that facility and close it in order to save the
other facilities from becoming union, neither Meadows nor
Nutter said or did anything to disclaim Woodrum’s state-
ment. In the context of that confrontation, employee Gill had
every reason to believe that Woodrum was speaking on be-
half of, or with special insight and knowledge of Respondent.
In other words, given Woodrum’s special status as medical
director of the facility, and with two of Respondents admit-
ted supervisors present throughout the conversation, both re-
maining silent and never contradicting or correcting
Woodrum’s statement, employee Gill had every reason to be-
lieve that Woodrum was speaking on behalf of Respondent
and/or that his comments were being ratified and condoned
by the two supervisors present. Accordingly, I find that in
the context of this conversation, Woodrum’s threats that Re-
spondent would close the Hinton facility if employees se-
lected the Union are attributable to Respondent, and Re-
spondent thereby violated Section 8(a)(1) of the Act.
There is no dispute that after the Board-conducted election
and after the Union filed objections, Respondent imposed a
temporary freeze on annual performance evaluations and on
raises stemming from such evaluations. Neither is there any
dispute that when the wage increases were eventually grant-
ed, they were in fact made retroactive to their originally
scheduled date. Nine employees had evaluations and raises
delayed pursuant to Respondent’s temporary freeze. As I
have found above, Respondent told employees that the rea-
son employee performance evaluations were being frozen
was do to the Union’s objections to the election. In other
words, Respondent tried to blame the Union for the fact that
evaluations and raises were being delayed.
Respondent nevertheless argues that since wage increases
were eventually granted retroactive to their originally sched-
uled date, no discrimination and therefore no unfair labor
practice occurred. I reject Respondent’s argument. The ad-
verse effect of Respondent’s actions on employees was in de-
laying, making them wait for both evaluations and merit
raises. Respondent itself clearly understood how this ad-
versely affected and inconvenienced employees, for Respond-
ent attempted to lay the blame for that on the Union. I there-
fore find that by suspending or ‘‘freezing’’ the evaluation
and annual raises of employees in retaliation for the Union
filing objections to the Board-conducted election, Respondent
thereby violated Section 8(a)(1) and (3) of the Act. Shelby
Memorial Homes, supra; Sunbeam Corp., 287 NLRB 996 fn.
4 (1988). The decision in KMST-TV, Channel 46, 302 NLRB
381 (1991), is clearly distinguishable. In that case, the em-
ployer similarly delayed evaluations and raises, but made it
clear to employees that the purpose of the postponement was
to avoid the appearance of influencing the election’s out-
come. In this case, however, Respondent specifically blamed
the Union for the freeze in evaluations and raises by telling
them that the Union’s objections to the election were the rea-
son that the evaluation and raises would be delayed.
CONCLUSIONS OF LAW
1. Respondent, A.M.F.M. of Summers County, Inc. is, and
has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. United Steelworkers of America, AFL–CIO, CLC is,
and has been at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The raise granted by Respondent to employees in May
1993 was not to dissuade employees from supporting the
Union and would have occurred without regard to union ac-
tivity, and that allegation is hereby dismissed.
4. Respondent promoted licensed practical nurses to super-
visors and granted them a raise in order to prevent and/or
discourage them from exercising the right to engage in union
activity, and Respondent thereby violated Section 8(a)(1) of
the Act.
5. As part of a scheme to deprive employees of their rights
under the Act, and/or to discourage employees from exercis-
ing such rights, Respondent’s attorney met with and in-
formed licensed practical nurses that in view of their super-
visory status, they could not engage in union activity, and
Respondent thereby violated Section 8(a)(1) of the Act.
6. Respondent issued disciplinary warnings to employee
James Gill and Kay Fleshman in retaliation for their union
activity, and in retaliation for having testified on behalf of
the Union at a Board hearing, and Respondent thereby vio-
lated Section 8(a)(1), (3), and (4) of the Act.
7. Through Dr. Jack Woodrum, acting in concert with
Clinical Care Coordinator Barbara Meadows and Social
Service Director Ray Nutter, Respondent threatened employ-
ees that if the Hinton facility became unionized, Respondent
would sacrifice that facility and close it in order to save the
other facilities from becoming union, and Respondent there-
by violated Section 8(a)(1) of the Act.
8. Respondent suspended and temporarily froze employee
performance evaluations, and raises resulting from such eval-
uations, in retaliation for the Union filing objections to the
Board-conducted election, and Respondent thereby violated
Section 8(a)(1) and (3) of the Act.
9. The unfair labor practices which Respondent has been
found to have engaged in, as described above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow
733A.M.F.M. OF SUMMERS COUNTY
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
of commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1), (3), and
(4) of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
I shall also recommend that because of the unfair labor
practices which I have found to have occurred between the
filing of the petition and the Board-conducted election in
Case 11–RC–5949, the Union’s objection to the election be
sustained and the election held on September 8, 1993, be set
aside and a second election be conducted by secret ballot
among employees in the appropriate unit at such time and
manner as the Regional Director deems appropriate.
Accordingly, on the foregoing findings of fact and conclu-
sions of law, I issue the following recommended2
ORDER
The Respondent, A.M.F.M. of Summers County, Inc., Hin-
ton, West Virginia, its officers, agents, successors, and as-
signs shall
1. Cease and desist from
(a) Promoting licensed practical nurses to supervisors and
granting them raises in order to prevent and/or discourage
them from exercising the right to engage in union activity.
(b) Informing licensed practical nurses that in view of their
supervisory status, they are not entitled or permitted to en-
gage in union activity.
(c) Issuing disciplinary warnings to employees in retalia-
tion for their union activity and/or in retaliation for testifying
at a Board-conducted hearing.
(d) Threatening employees that if the Hinton, West Vir-
ginia facility became unionized, Respondent would sacrifice
that facility and close it in order to save the other facilities
from becoming union.
(e) Suspending and/or temporarily freezing employee per-
formance evaluations, and raises resulting from such evalua-
tions, in retaliation for the Union filing objections to a
Board-conducted election.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Remove from its files any documentation of, and any
reference to, the disciplinary warnings issued to employees
James Gill and Kay Fleshman, and notify them in writing
that this has been done, and that evidence of the unlawful
warnings will not be used as a basis for future personnel ac-
tions against them.
(b) Post at its facility in Hinton, West Virginia, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for Region
11, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY THE ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid and protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT promote licensed practical nurses to super-
visors and grant them raises in order to prevent and/or dis-
courage them from exercising the right to engage in union
activity.
WE WILL NOT inform licensed practical nurses that in view
of their supervisory status, they are not entitled or permitted
to engage in union activity.
WE WILL NOT issue disciplinary warnings to employees in
retaliation for their union activity and/or in retaliation for tes-
tifying at a Board-conducted hearing.
WE WILL NOT threaten employees that if the Hinton, West
Virginia facility became unionized, Respondent would sac-
rifice that facility and close it in order to save the other fa-
cilities from becoming union.
WE WILL NOT suspend and/or temporarily freeze employee
performance evaluations, and raises resulting from such eval-
uations, in retaliation for the Union filing objections to a
Board-conducted election.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed them in Section 7 of the Act.
WE WILL remove from our files any documentation of, and
any reference to, the disciplinary warnings issued to employ-
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees James Gill and Kay Fleshman, and notify them in writing
that this has been done, and that evidence of the unlawful
warnings will not be used as a basis for future personnel ac-
tions against them.
A.M.F.M. OF SUMMERS COUNTY, INC.