Azalea Gar-Dens Nursing Center

National Labor Relations Board - Board Decisions

Jan 25, 1989

292 N.L.R.B. 683 (N.L.R.B. 1989)

AZALEA GARDENS NURSING CENTER
H C Cain, a Sole Proprietorship d/b/a Azalea Gar-
dens Nursing Center and Industrial Union De-
partment AFL-CIO, on Behalf of OPEIU Case
15-CA-10377
January 25, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 1, 1988, Administrative Law
Judge William N Cates issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting brief, the Charging Party also filed excep-
tions and a supporting brief, and the Respondent
filed an answering brief to the Charging Party's ex-
ceptions I
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findmgs,2 and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, H C Cain,
a sole proprietorship d/b/a Azalea Gardens Nurs-
ing Center, Wiggins, Mississippi, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order
' The Respondent also filed a motion to strike the Charging Party s
supporting brief for failing to comply with the provisions of Sec
102 46(c) of the National Labor Relations Board Rules and Regulations
The Charging Party filed a response to that motion to strike We con
clude that although the Charging Party s brief does not conform in all
particulars with Sec 102 46(c) it is not so deficient as to warrant sink
leg Accordingly the motion is denied
2 In sec I the judge referred to the Respondent as a corporation
The record shows that Respondent is a sole proprietorship
In sec III B 1 par 8 the judge found that owner Cain s remark at an
employee meeting in February 1987- that he knew five employees had
attended a union meeting and two of them were no longer employed-
constituted an 8(aXI) threat of discharge even though the remark was
not alleged as such a threat in the complaint We agree with the judge
that this remark constituted a threat of discharge in violation of the Act
In adopting the judge s finding we note that this same remark was al
ready alleged in the complaint to have violated Sec 8(a)(1) of the Act by
creating the impression of surveillance of employee union activities that
Charging Party s witness McKinney testified at the hearing that Cain had
made this statement that the Respondents witness Hiley specifically tes
tified that Cain had not and that the judge credited McKinney and did
not credit Hiley We thus conclude that the issue was fully and fairly liti
gated and that the judge was not in error in finding it constituted an un
lawful threat of discharge as well as an unlawful impression of surveil
lance of employee union activities
Charlotte N White Esq, for the General Counsel
Emile C Ott Esq, of Jackson, Mississippi, for the Com
pany
683
Hubert Coker Coordinator, of Jackson, Mississippi, for
the Union
DECISION
STATEMENT OF THE CASE
WILLIAM N CATES Administrative Law Judge This
case was tried before me in Wiggins, Mississippi, on
April 18 and 19, 1988, pursuant to a complaint and
notice of hearing (complaint) issued by the Regional Di
rector for Region 15 of the National Labor Relations
Board (Board) on September 3, 1987 i The complaint is
based on a charge filed on July 29 by Industrial Union
Department, AFL-CIO, on behalf of OPEIU (Union)
The complaint alleges H C Cain, a sole proprietorship
d/b/a Azalea Gardens Nursing Center (Company or the
Nursing Home) has engaged in certain violations of Sec
tion 8(a)(1) and (3) of the National Labor Relations Act
(the Act) More specifically, it is alleged the Company
violated Section 8(a)(3) and (1) of the Act by, on or
about March 13, discharging and thereafter failing and
refusing to reinstate its employee Glenda G Wells (G
Wells) because of her membership in and activities on
behalf of the Union and because she participated in pro
tected concerted activities with other employees for their
mutual aid and protection and/or to discourage union
and other concerted activities of its employees Further
it is alleged the Company violated Section 8(a)(1) of the
Act during February and March by threatening an em
ployee with unspecified reprisals because the employee
was wearing a union button by creating the impression
of surveillance of its employees union activities, by
threatening its employees with discharge, by threatening
it would not tolerate a union nor sign a union contract,
and by threatening to close its facility if its employees se
lected the Union to represent them
The Company filed an answer to the complaint in
which it admitted jurisdictional facts, the supervisory
and agency status of certain individuals, and certain
other factual allegations but denied the commission of
any unfair labor practices
All parties were afforded full opportunity to examine
and cross-examine witnesses to argue orally, and to
submit briefs Briefs which have been carefully consid
ered were submitted by the Company and counsel for
the General Counsel
Based on the entire record, including my observation
of the demeanor of the witnesses as they testified I make
the following
FINDINGS OF FACT
I JURISDICTION
The Company is a corporation licensed to do business
in the State of Mississippi where it is engaged in the op
eration of a nursing center at Wiggins, Mississippi 2
During the 12 months preceding issuance of the com
' All dates are 1987 unless otherwise indicated
2 Although the Company operates nursing facilities elsewhere in the
State of Mississippi the Wiggins facility is the only one involved
292 NLRB No 73
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plaint, a representative period, the Company, in the
course and conduct of its operations, received gross rev-
enues in excess of $100,000 and purchased and received
goods valued in excess of $50,000 directly from points
located outside the State of Mississippi. The complaint
alleges, the parties admit, and I find that the Company is
a health care institution within the meaning of Section
2(14) of the Act and is an employer engaged in a busi-
ness affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the parties admit, and I find
that the Union is, and at all times material has been, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In attempting to establish, or defend against, the claims
set forth in the complaint , the parties called some 10 wit-
nesses and presented numerous documents. The testimo-
ny and responses thereto are set forth below essentially
in the order established by the complaint with the excep-
tion that I have attempted to address all 8(a)(1) allega-
tions in chronological order before addressing the 8(a)(3)
allegations.
Inasmuch as credibility is an issue in the instant case, I
deem it appropriate to make some preliminary comments
thereon. In deciding which of the conflicting versions of
events are more credible, I have given considerable
weight to the demeanor of the witnesses while they were
on the stand. I have considered each witnesses' testimo-
ny in conjunction with established or admitted facts, in-
herent probabilities, and reasonable inferences that may
be drawn from the record as a whole. Regarding the tes-
timony, I have borne in mind the tendency of witnesses
in general to testify as to their impressions or interpreta-
tions of what was said or done rather than attempting to
give a verbatim account of what they heard, saw, or did.
Further, I am not unmindful that even in the case of per-
sons testifying about their own remarks or actions they
may well tend to express what they said or intended to
say in clearer or more explicit language than they actual-
ly used in their discussions or conversations. As to any
witness having testified in contradiction of the findings,
their testimony has been discredited either as having
been in conflict with the testimony of credible witnesses
or because it was in and of itself unworthy of belief. All
testimony has been reviewed and carefully weighed in
light of the entire record. As specific credibility conflicts
arise, I may from time to time state more specifically my
reasons for crediting or discrediting any particular wit-
ness on any particular portion of their testimony.
A. Brief Background
The Company operates a dual nursing care center at
Wiggins, Mississippi , providing intermediate and skilled
care to a maximum of 137 patients . The Company is reg-
ulated by, or subject to, requirements established by the
Mississippi Department of Health, the Veteran's Admin-
istration, and various agencies of the U.S. Department of
Health and Human Services. The Company is owned
and operated by H. C. Cain (Owner Cain).
The Union began an organizational campaign at the
Company in approximately September 1986. It filed a
representation petition in Case 15-RC-7295 on Decem-
ber 22, 1986. The Regional Director for Region 15 of the
Board issued a Decision and Direction of Election on
February 3 in which he ordered an election in the fol-
lowing appropriate unit:
All full-time and regular part-time employees em-
ployed by the Employer at its Wiggins, Mississippi
facility, including nurse's aides , cooks, cooks help-
ers, dietary aides, assistant director of activities, ac-
tivity aides, and housekeeping employees but ex-
cluding facility charge nurses, unit charge and
medication nurses, registered (RN) and licensed
practical (LPN) nurses, assistant food services su-
pervisors, maintenance employees, office clerical
employees, guards and supervisors as defined in the
Act.
An election among the 57 eligible voters was held on
March 3. Thirty-three ballots were cast for and 22
against representation by the Union, with 2 challenged
ballots. The challenged ballots were insufficient to affect
the results of the election. The Board, by the Regional
Director of Region 15, certified the results of the elec-
tion on April 6. Thereafter, the Board denied the Com-
pany's request for review of the Regional Director's ac-
tions regarding certifying the Union as the collective-
bargaining representative of its employees in the above-
described unit . As of the trial, the Company and Union
have been negotiating toward, but have not arrived at, a
collective-bargaining agreement.
B. The 8(a)(1) Allegations
1. The allegations against Owner Cain
It is alleged at paragraph 7 of the complaint that
during February Owner Cain, in a meeting with employ-
ees at the Nursing Home, in violation of Section 8(a)(1)
of the Act: (1) created the impression of surveillance of
employee union activities by stating he would be given a
list of employees who supported the Union, and by stat-
ing the number of employees who had attended a meet-
ing with the Union and stating that two of such employ-
ees were no longer employed; (2) stated that at another
of his nursing homes in Mississippi he had watched strik-
ing employees stand in the hot sun and after the strike he
had fired each striker; and (3) advised employees that he
would not sign a union contract or tolerate a union. It is
also alleged in paragraph 7 that Owner Cain, on or about
March 1, threatened to close the Nursing Home if the
employees selected the Union to represent them.
That Owner Cain held meetings with employees on an
occasion in February at which time two films were
shown is not in dispute nor is it disputed that one of the
films pertained to a hotel fire in Puerto Rico where there
had been union activity. There is, however, disagreement
as to the exact date of the meetings and as to who was
present for the Nursing Home at the meetings.
AZALEA GARDENS NURSING CENTER
Former employee Jameszena McKinney (McKinney)3
testified she attended a meeting at the Nursing Home in
February4 at which Owner Cain spoke She said the
meeting began by Cain offering the employees soft
drinks, which they accepted McKinney stated Cain held
up for the group to see and then read from a blank
union petition She asserts he told them he would have
a list of the people that signed the union petition She
testified he showed the group a film about a hotel fire in
Puerto Rico and blamed the fire on the union McKin
ney said Cain then told the employees he was not going
to have a union She stated he also said five employees
had attended the first union meeting and two of them
were already gone from the Nursing Home McKinney
said Cain told them that at another nursing home he
owned , he had some employees and a nurse who stood
out in the hot sun on strike and when they came back to
work he fired all of them McKinney stated Nursing
Home Administrator Mark Hatten (Administrator
Hatten) was present at the meeting with Owner Cain,
but that no other supervisors or management officials
were present 5
G Wells testified she also attended a meeting in Feb
ruary6 at which Owner Cain spoke She said he told the
employees he did not blame most of them for this union
thing because they were not even 30 years old but
added The ones I really blame are these women
that work here G Wells stated Owner Cain mentioned
that at another nursing home he owned , the nurses
went on strike and after they got tired of walking
around in the hot sun and came back in to go to work
he fired every one of them She testified he said I
won t have a union here I won t tolerate it G Wells
asserts Cain also told the employees they had a sched
uled pay raise coming up in July but if this union comes
in, they will tie it up in negotiations and hold up your
raises G Wells said a movie which centered around a
woman named Margaret in a hospital setting, was
shown at the meeting 7
G Wells asserts Owner Cain held another meeting
with employees in March just a day or so before the
March 3 Board conducted election She said he showed
a film at that meeting about a hotel fire that supposedly
took place in Puerto Rico, which fire he blamed on un
ionism She testified Owner Cain said after showing the
film that no union is coming in here and telling me
how to run my business I will close the place down
first
Nursing Consultant Supervisor Hiley testified she
drove Owner Cain from his home in southern Mississippi
3 McKinney worked as a nursing assistant from August 26 1986 until
December 5 On that date she was discharged for picketing at the Nurs
mg Home There is no contention that her discharge violated the Act
4 On cross examination McKinney stated she believed the meeting
took place in early February
5 She specifically denied that Nursing Consultant Supervisor Ranelle
Hiley (Hiley) was present at the meeting
5 G Wells stated she attended a meeting in September 1986 at which
management discussed the Union but she was not asked to elaborate on
that meeting
r G Wells did not recall Owner Cain making any mention of a list of
employees or about the number of employees that started the Union at
the Nursing Home
685
to Wiggins on the occasion when he visited the Nursing
Home in February She said it was late in February be
cause Cain had been recovering from December 1986
heart surgery and had not been permitted to travel prior
to that time She stated she was present at all the group
meetings he held on that visit to the Nursing Home She
stated Administrator Hatten was present only at the be
ginning of the meetings to set up a movie projector and
to bring soft drinks to the employees 8 She specifically
stated Hatten was not present during the showing of the
movies or for the discussions that took place afterward
Hiley testified two movies were shown at the meetings
one about a hotel fire in Puerto Rico and the other about
a strike at the Magic Chef Company She stated Owner
Cain confined his remarks to comments about those two
films She specifically denied he mentioned he would be
given the names of employees who supported the Union
or that he knew the number of employees who had at
tended a union meeting and that two of them were no
longer with the Nursing Home Hiley also denied that
Owner Cain said he had watched striking nurses standing
in the sun at another nursing home and thereafter fired
them She further denied that he said he would not sign
a union contract or tolerate the union She also denied
that Cain said anything about not blaming the younger
employees for the Union, or that their wage reviews
would be tied up in negotiations or that he would close
the Nursing Home if the Union came in
McKinney appeared generally candid and impressed
me as attempting to testify truthfully I credit her testi
mony The essence of what she asserts Owner Cain told
the employees in the meeting she attended was supported
by the testimony of G Wells regarding what she states
Cain told the employees at the meeting she attended 9
8 Hatten corroborated Hiley s testimony on this point Hatten placed
the date of the meeting as February 23
e The record is not clear exactly how many meetings Cain held with
employees during his February visit at the Nursing Home or if McKin
ney and G Wells were at the same meeting Nursing Consultant Super
visor Hiley stated she attended all the group meetings Cain held during
his February visit but she like the others did not specify the exact
number of meetings Cain held or if McKinney and G Wells attended
the same meeting Although G Wells displayed a deep resentment
toward the Company such that it might impact on her willingness to
relate facts accurately rather than in a light most favorable to her person
al interests I nonetheless credit her testimony regarding the February
and March meetings she attended at which Owner Cain spoke I do so
because her testimony is as noted corroborated at least to the extent that
McK nney attributed some of the same type remarks to Cain Also no
attempt was made to dispute the fact that Cain held employee meetings
in early March just a day or so before the Board conducted election I
have placed no reliance on Nursing Consultant Supervisor Hiley s denials
regarding Owner Cain s comments at the meetings because her recollec
tions about what was actually said were so vague as to render her overall
testimony totally unreliable I find suspect that Hiley could vividly recall
what was not said by Cain at the meetings but could not recall anything
that he might in fact have said I note Owner Cain was not called to tes
tify in these proceedings Company counsel introduced a written note
from Cain s physician stating he had to insulate Cain from many situa
tions and activities that would tend to elevate his blood pressure or in
crease stress factors on him However no other efforts were made or
means explored to have Cain address the allegations against him Finally
I note McKinney s recollections were not exact regarding when the
meeting she attended took place however such does not under the cir
cumstances detract from her overall credibility nor does the fact she
contends Administrator Hatten was present at the meeting because he
was present at the beginning of the meeting to set up a movie projector
and provide soft drinks for the employees
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I find the Company, through its owner, Cain, in Feb-
ruary created the impression of surveillance of employee
union activities when he told employees he would have a
list of the employees that signed the union petition and
that he knew five employees had. attended a union meet-
ing and two of them were no longer employed. Al-
though not specifically alleged in the complaint, Cain's
above comments also constitute a threat of discharge,
and I so find. Furthermore, I find Owner Cain threat-
ened employees with discharge when he told them he
had watched employees and nurses stand in the sun on
strike and that when they attempted to return to work
he fired them. I also find Owner Cain threatened em-
ployees with unspecified reprisals when he told them he
was not going to have or tolerate a union.
I find Owner Cain clearly threatened to close the
Nursing Home because of the protected activities of his
employees when he told them in a meeting on March 1
that no union was going to come in and tell him how to
run his business, that he would close first.
2. Allegations involving Assistant Director of
Nursing Williams
It is alleged at paragraph 6 of the complaint that on or
about March 3, Assistant Director of Nursing Naomi
Williams (Williams),10 in violation of Section 8(a)(1) of
the Act, threatened an employee with unspecified repris-
als because the employee was wearing a union button
and that she created the impression of surveillance of
employees' union activities by informing two employees
she knew how they had voted in the Board-conducted
election.
Former nursing assistant Janice Wells (J. Wells),15 G.
Wells, and Union Coordinator Hubert Coker (Coker)
had lunch at Ward's Restaurant in Wiggins, Mississippi,
on the day (March 3) the Board conducted an election at
the Nursing Home. Among other patrons at the restau-
rant that day was Assistant Director of Nursing Wil-
liams.12 G. Wells testified Williams came to where she
and J. Wells were eating and asked what they were
doing. G. Wells said she showed Williams the union
button she was wearing 13 and Williams told her "You
will regret this day" and walked off. 14 Coordinator
Coker, who had not been present at the table with the
Wells up to that time, joined them. G. Wells testified
she told Coker what Williams had said and stated Coker
wanted to meet Williams. As the Wells were leaving the
restaurant, G. Wells introduced Coker to Williams. Ac-
cording to G. Wells, Williams told Coker she used to
work for a place in Chicago that had a union and it pre-
sented her with problems and made her job harder. G.
Wells asserts she told Williams they were not trying to
10 Williams left her employment with the Nursing Home for health
reasons in July.
11 J. Wells is not related to G. Wells. J. Wells was terminated in De-
cember 1986 for picketing at the Nursing Home in November 1986.
There is no contention that J. Wells' discharge violated the Act.
12 Williams was not scheduled to wort: on March 3.
13 The button read "Be Proud with OPEIU."
14 J. Wells corroborated G. Wells' above testimony in essential parts.
J. Wells stated she had discussed the Union with Williams in February
and Williams had told her at that time she could not believe they were so
stupid as to be mixed up in union brainwashing tricks.
make her job harder, that they were just trying to secure
better working conditions at the Nursing Home. G.
Wells testified Williams then talked about how bad the
Federal Government was. G. Wells asked Williams
how the Federal Government could be so bad in that it
allowed them to have a union at the Nursing Home if
the employees chose to have one. According to G.
Wells, Williams responded with a comment about the
lack of treatment her elderly father had received from
the Federal Government and then said to Coordinator
Coker, "These two voted for the Union, and I have
nothing more to say to them." G. Wells stated Williams
left the restaurant after that.
Assistant Director of Nursing Williams acknowledged
meeting the Wells at Ward's Restaurant on the day of
the Board-conducted election. She recalled "glancing at
the [Union] buttons" when she talked with the Wells but
could not recall what was said. She testified, "I might
have made some kind of remark" about the buttons. Wil-
liams, however, denied telling the Wells they would
regret that day. Williams said she was introduced to
Union Coordinator Coker and that he told her about the
advantages of the Union. She said she told him she did
not like unions because of the situation that existed at a
place where she had previously worked. She told him
the union at that location caused her "a lot of headaches
and heart[aches]." Williams acknowledged her recollec-
tions about that day were flawed and that she could not
recall all or exactly what was said at the restaurant. Wil-
liams denied telling Coker (or the Wells) that she knew
how the two of them had voted.
I credit J. Wells' and G. Wells' accounts of their meet-
ing with Williams at Ward's Restaurant. First, the Wells'
testimony is, in part, mutually supportive. Second, Wil-
liams acknowledged most of what the Wells attributed to
her, and she admits she cannot recall all that was said at
the meeting. I am persuaded Williams' failure to recall
more details about the meeting was genuine. That failure
to have a good recollection of what was said raises con-
cern about her denials particularly in light of the mutual-
ly supportive testimony of the Wells. Accordingly, I find
Williams said what the Wells attributed to her.
It is clear Williams' comments violated Section 8(a)(1)
of the Act. In context, Williams' statement that the two
employees in question would "regret this day" clearly
conveyed to them that they could expect unspecified re-
prisal actions to be taken against them in the future for
their having supported the Union. Notwithstanding that
the Wells were active and visible supporters of the
Union, Williams created an impression that the employ-
ees' union activities were under unlawful surveillance
when she told them she knew how they had voted and
that she wanting nothing else to do with them. This is
especially so because these comments were made at the
same time she threatened the same two employees with
unspecified reprisals for supporting the Union.
AZALEA GARDENS NURSING CENTER
C The Discharge of G Wells
1 The facts
It is alleged at paragraphs 8 and 9 of the complaint
that the Company in violation of Section 8(a)(3) and (1)
of the Act, discharged G Wells on or about March 13,
and thereafter failed and refused to reinstate her because
of her activities on behalf of the Union and/or because
she participated in protected concerted activities with
other employees for mutual aid and protection
Nursing Assistant G Wells most recent employment
at the Nursing Home began approximately in March
1986 and ended when she was terminated on March
13 15 Her immediate supervisor at the time of her dis
charge was Assistant Director of Nursing Williams
G Wells testified she signed a petition for the Union
at a local church in September 1986 and thereafter took
the petition to the Nursing Home where, in the break
room she secured the signatures of four or five fellow
workers on the petition Wells stated she persuaded three
or four fellow workers to sign authorization cards for
the Union G Wells attended eight or nine union meet
ings (one approximately every month) and handed out
union related leaflets at the Nursing Home She served
on the Union s organizing committee In October 1986,
Wells told then relief charge nurse Lucy Hickman (Hick
man)', that she was a supporter of and on the organiz
ing committee for the Union and that she was actively
working to organize the Nursing Home Wells served as
an observer for the Union at the Board conducted elec
tion on March 3 There were two voting sessions during
the election G Wells testified that between the two
sessions she made house calls at the homes of certain em
ployees to ensure the employees had transportation to
the Nursing Home to vote 17 After the Union was certi
fled as the collective bargaining representative for the
employees at the Nursing Home and after G Wells had
been terminated she became a member of and has since
that time served on the Union s negotiating commit
tee 18
The central facts surrounding G Wells termination
on March 13 are not in dispute 19
At approximately 9 45 am on March 13 Administra
tor Hatten, while making his normal rounds at the Nurs
ing Home observed G Wells wearing an unbuttoned
outer garment with the sleeves rolled up He told her as
15 G Wells was first employed by the Nursing Home in April 1985
and thereafter worked for approximately 9 months until she left the Nurs
ing Home to have surgery She returned in March 1986 as a new employ
ee
1e Hickman is currently the director of nurses for the Nursing Home
i Administrator Hatten testified he believed G Wells to be one of the
leading advocates of the Union at the Nursing Home
ie The facts surrounding the 8(a)(l) acts that supervisors and agents of
the Nursing Home engaged in that specifically involved G Wells will
not be repeated in this portion of the decision
19 There are some minor differences in the accounts given by Adminis
trator Hatten and G Wells with respect to the events of that morning
such as Wells claim that Hatten asked her twice and that she refused
twice to remove an outer garment she was weanng whereas Hatten con
tends he asked and she refused three times Although Hatten impressed
me as an unreservedly honest witness, I find it unnecessary to resolve all
the nonessential minor discrepancies that exist between his and Wells ac
counts of what took place on that morning
687
he passed her in the hallway that she needed to take her
jacket off, that they did not wear such items inside the
building Without stopping to speak further with G
Wells Hatten proceeded on his rounds He did stop to
speak with housekeeping employee Joyce Jackson G
Wells interrupted Hatten s conversation with Jackson
and told him she had enough sense to know when she
was cold and whether she needed a jacket and she was
not going to remove her jacket Hatten told G Wells
he would check and, if necessary, adjust the building
temperature but it was against the Nursing Home policy
for her to be wearing the jacket she had on Wells told
Hatten what she was wearing was a lab coat, not a
jacket Hatten then told Wells it was against nursing
home policy for nursing assistants to wear jackets sweat
ers lab coats, or any other outer garments inside the
building that if it was too cold, he would check and
adjust the building temperature but she would have to
take her jacket off while she was inside the building
Wells told Hatten she was not going to take the garment
off The matter went back and forth between the two
and the situation became stalemated Hatten then told
Wells to follow him to his office, but on the way told
her to return to work, that he would get back with her
later that morning 20
Later that morning at approximately 10 30 Hatten
sent for G Wells and in Assistant Director of Nursing
Williams presence terminated her Hatten told Wells she
was terminated for insubordination in that she had not
done what he asked which was to remove her jacket
Wells attempted to tell Hatten it was too cold in the fa
cility, however, Hatten told her there was no need for
any further discussions Wells left Hatten s office visited
her mother who is a patient at the Nursing Home and
then left the facility
One of many minimum standards required by the Mis
sissippi Department of Health for institutions such as the
Nursing Home is that it maintain adequate heating in all
rooms used by patients so that a minimum temperature
of 75 to 80 degrees Fahrenheit is maintained at all times
According to the undisputed testimony of Nursing Con
sultant Supervisor Hiley the Nursing Home has attempt
ed to ensure compliance with the above requirement not
only by thermostat settings but by a rule that prohibits
nursing assistants , housekeeping and dietary employees
from wearing any outer garments such as jackets, sweat
ers or lab coats This practice has been followed at the
Nursing Home for at least 10 years Hiley explained that
the policy behind the rule is that if those working and
moving about such as nursing assistants are cold with
out an outer garment it is a sign to the Nursing Home
that the patients many of whom are not active or
moving about, will also be cold and that additional
checks are needed with respect to maintaining the de
sired temperature in the home It is just another way to
ensure that the required temperature is maintained in the
Nursing Home for the patients' comfort The outer gar
20 Hatten stated he became angry because G Wells would not do as
she was told but that he did not want to show his emotions on the work
floor in front of the patients and other workers that were present when
G Wells confronted him
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment policy like certain other company dress require
ments is not written out but is explained to each new
employee during orientation and reemphasized during
the employees annual evaluations
No employee prior to G Wells had ever been dis
charged or disciplined for violating the outer garment
rule
Two witnesses in addition to G Wells who were pre
sented by the General Counsel (J Wells and Breland)
testified they had observed nursing assistants wearing
outer garments without being disciplined However no
testimony was presented that Administrator Hatten or
any other supervisor specifically observed any such con
duct and failed to correct it Breland testified that before
the advent of the Union she, on an occasion in the
winter of 1986, wore an outer garment and was observed
doing so by then Director of Nurses Mooney (later Alex
ander), who told her to take it off that she could not
wear an outer garment in the Nursing Home Breland
said she removed the outer garment she was wearing
Director of Nurses Alexander and Administrator
Hatten testified they had on occasions over the years ob
served nursing assistants who were returning from lunch
or outside trips with the patients enter the facility with
out remembering to remove their outer garments All,
however removed their outer garments on being re
minded to do so
2 Discussion and conclusions
The facts must be analyzed under the Board s decision
in Wright Line 251 NLRB 1083 ( 1980) enfd 662 F 2d
899 (1st Cir 1981 ) cert denied 455 U S 989 (1982) ap
proved in NLRB v Transportation Management Corp
462 US 393 (1983 ) To establish a prima facie case
under Wright Line supra , the General Counsel must
present evidence sufficient to support the inference that
protected conduct was a motivating factor in the
Nursing Home s decision to discharge G Wells on
March 13 I am persuaded she has done so She has
shown that G Wells was one of the most vocal and
visible supporters of the Union at the Nursing Home
Wells attended union meetings handbilled for the Union
at the Nursing Home and sought to have her fellow
workers sign petitions and/or signature cards for the
Union In October 1986 she told her supervisor (Hick
man) that she was a member of the Unions organizing
committee and was actively working to organize the em
ployees of the Nursing Home She served as an observer
for the Union at the Board conducted election and had
unlawful conduct specifically directed at her in that As
sistant Director of Nursing Williams told her she would
live to regret supporting the Union 21 Within days of the
time Williams made the above comment to G Wells
and also within days of her having served as an observer
for the Union at the Board conducted election she was
discharged She was discharged for an offense that no
other employee had been discharged for namely refus
21 Administrator Hatten readily admitted he believed G Wells was
one of the leading advocates of the Union at the Nursing Home
ing to remove an outer garment 22 Therefore in summa
ry fashion, the General Counsel established that G
Wells was very active for the Union, had unlawful acts
directed at her, that the Company knew of her strong
support for the Union, and shortly after informing her
she would regret her support of the Union discharged
for conduct no other employee had ever before been dis
charged for Thus, I am persuaded the General Counsel
established her prima facie case
Once the General Counsel makes a prima facie show
ing, such as she has done herein, that protected conduct
was a motivating factor in the employers actions against
its employee the burden shifts to the employer to dem
onstrate it would have taken the same action it did even
in the absence of the protected conduct on the part of
the employee involved The employers proffered basis
must be established by a preponderance of the evidence
I find the Company has met its burden of demonstrat
ing that it would have discharged G Wells even in the
absence of any protected conduct on her part First,
there is no question but that the Nursing Home had a
valid rule against employees, such as G Wells, wearing
outer garments in the facility Although the rule was not
written there is no showing on this record that any em
ployee was unaware of the no outer garment restrictions
In fact, one of the witnesses called by the General Coun
sel, Breland, testified that prior to the advent of the
Union she had been observed on one occasion wearing
an outer garment and had been told to remove it, which
she did Thus the rule is not a new or retaliatory one
but rather is for a justifiable reason G Wells readily
admitted she violated the rule when she refused Admin
istrator Hatten s three requests that she remove her outer
garment on the day in question I find merit in the Com
pany s contention that such conduct on G Wells part
amounted to unprotected willful and blatant insubordi
nation The Company s contention that Wells conduct
constituted willful and blatant insubordination is demon
strated by the fact that G Wells told Assistant Director
of Nursing Williams on the morning of but before her
discharge that she was no longer cold and did not need
her outer garment, but because she had been told to
remove it and had been made angry about it she was not
going to remove it at all 23 There is no showing on this
record that any employee was ever asked but refused to
remove an outer garment and was not disciplined In
that regard the Nursing Home established that it had in
22I am not unmindful that other employees had been discharged for
insubordination
23I discredit G Wells testimony that she did not make such a corn
merit to Williams In addition to observing her as she testified I am per
suaded it was not out of character for G Wells to make such a corn
ment For example G Wells readily acknowledged that on an occasion
when she was told by Director of Nurses Hickman to place a pad under
a particular patient she forgot to do so and when questioned about it
to d Hickman that if she had the time to check up on her she had time to
do the job herself and asked Hickman why she had not done it herself
Likewise Wells continued to ambulate a patient by having the patient
push her in a wheelchair even after she had been asked not to do so be
cause it was dangerous for the patient Such conduct by G Wells per
suades me it is very probable she told Williams that she would not
remove her outer garment because she had been made angry by being
asked to do so
AZALEA GARDENS NURSING CENTER
fact discharged employees for insubordination Thus, in
summary I am persuaded the Company has demonstrat
ed it discharged G Wells for violating one of its rules
and there is no showing Wells was treated any different
ly than any other employee 24
Accordingly I shall recommend the complaint allega
tions that the Nursing Home discharged G Wells in
violation of Section 8(a)(3) and (1) of the Act be dis
missed
CONCLUSIONS OF LAW
1 H C Cain a sole proprietorship d/b/a Azalea Gar
dens Nursing Center is, and at all times material has
been, a health care institution within the meaning of Sec
tion 2(14) of the Act and is engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act
2 Industrial Union Department, AFL-CIO, on behalf
of OPEIU is a labor organization within the meaning of
Section 2(5) of the Act
3 By engaging in the following conduct between on
or about February and March 1987 the Company com
milled unfair labor practices in violation of Section
8(a)(1) of the Act
(a) Threatening its employees with unspecified repass
als because of their union activities
(b) Creating the impression of surveillance of its em
ployees union activities
(c) Threatening its employees with discharge because
of their union activities
(d) Threatening its employees that it would close its
facility if the employees selected the Union to represent
them
4 The Company did not violate Section 8(a)(3) and (1)
of the Act when on March 13 1987 it terminated the
employment of Glenda G Wells and thereafter failed
and refused to reinstate her
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that the Company has engaged in cer
tarn unfair labor practices, I find it necessary to order it
to cease and desist therefrom and to take certain affirma
tive actions designed to effectuate the policies of the
Act
24 The General Counsel s argument that the discriminatory nature of
G Wells discharge is highlighted by the fact that Hatten did not allow
her to explain her side of the situation at her discharge interview is with
out merit There was no need for Hatten to allow her to explain her ac
Mons because he was the one she had reacted to He was the one who
had asked her to remove her outer garment and she had refused his re
quest She had already told him she thought it was cold and she was not
going to do to He had already explained to her that he would check the
temperature settings in the facility but she would have to remove her
outer garment in accordance with the Nursing Home s policies One fur
ther argument by the General Counsel that the discriminatory nature of
Well s discharge was established by the fact the rule in question was not
uniformly established is also without ment The Nursing Home made and
makes its policy known to all newly hired employees during orientation
Employees are reminded on the spot if they inadvertently fail to follow
the rule and are reminded of the rule during their annual evaluations
Thus it is clear the General Counsels lack of uniformly established
policy argument is without merit
689
It is recommended the Company be ordered to post
the attached notice to its employees for 60 days in order
that employees may be apprised of their rights under the
Act and the Company s obligation to remedy its unfair
labor practices
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed25
ORDER
H C Cain, a sole proprietorship d/b/a Azalea Gar
dens Nursing Center Wiggins, Mississippi its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Threatening its employees with unspecified repris
als because of their union activities
(b) Creating the impression of surveillance of its em
ployees union activities
(c) Threatening its employees with discharge because
of their union activities
(d) Threatening its employees that it would close its
facility if the employees selected the Union to represent
them
-(e) In any like or related manner interfering with, re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its nursing home in Wiggins, Mississippi
copies of the attached notice marked Appendix 26
Copies of the notice on forms provided by the Regional
Director for Region 15 after being signed by the Nurs
mg Home s authorized representative shall be posted by
the Nursing Home immediately upon receipt and main
tained for 60 consecutive days in conspicuous places in
cluding all places where notice to employees are custom
arily posted Reasonable steps shall be taken by the Nurs
ing Home to ensure that the notices are not altered, de
faced or covered by any other material
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Nursing
Home has taken to comply
IT IS RECOMMENDED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found above
25 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
26 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 Nation
al Labor Relations Board shall read Posted Pursuant to a Judgme it of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered 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 or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT threaten you with unspecified reprisals
because of your activities on behalf of Industrial Union
Department , AFL-CIO on behalf of OPEIU or any
other labor organization
WE WILL NOT create the impression that your union
activities are under surveillance
WE WILL NOT threaten you with discharge because of
your union activities
WE WILL NOT threaten you that we will close our fa
cility if you select the Union to represent you
WE WILL NOT in any like or related manner interfere
with restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
H C CAIN A SOLE PROPRIETORSHIP
D/B/A AZALEA GARDENS NURSING
CENTER