Baton Rouge General Hospital

National Labor Relations Board - Board Decisions

Mar 12, 1987

283 N.L.R.B. 192 (N.L.R.B. 1987)

192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Baton Rouge General Hospital and Service Employ-
ees' International Union Local 275, AFL-CIO.
Cases 15-CA-8016, 15-CA-8050, 15-CA-
8050-2, and 15-RC-6750
12 March 1987
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 9 July 1982 Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings,2
and conclusions3 and to adopt the recommended
Order.4
i We deny as lacking in merit the Respondent's motion to dismiss or to
remand the petition in Case 15-RC-6750
We assert jurisdiction over the Respondent because we find that it was
not, as alleged by the Respondent, a political subdivision of the State of
Louisiana See NLRB v. Natural Gas Utility District of Hawkins County,
402 U S 600 (1971) We note that jurisdictional concerns raised in Na-
tional Transportation Service, 240 NLRB 565 (1979), recently reiterated in
Res-Care, Inc., 280 NLRB 670 (1986), are not present here given the
record evidence and the nature of the Respondent's jurisdictional argu-
ments.
2 The judge erroneously stated that Charles Hamilton had occasionally
written up employees for disciplinary action We find the error to be
nonprejudicial because Hamilton's duties were otherwise sufficient to es-
tablish his supervisory status
The Respondent and the General Counsel have excepted to some of
the judge's credibility findings. The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F 2d 362 (3d Or. 1951). We have carefully examined the record and
find no basis for reversing the findings
3 In adopting the judge's findings of 8(a)(1) interrogations, we rely on
the standard set forth in Sunnyvale Medical Clinic, 277 NLRB 1217
(1985), and Rossmore House, 269 NLRB 1176 (1984), enfd. 760 F 2d 1006
(9th Cir. 1985)
Chairman Dotson disagrees with his colleagues' adoption of the judge's
8(a)(1) interrogation findings with respect to employees Jacqueline Jones,
Bertha Smith, and Yolanda Scott In accord with the principles of Sunny-
vale and Rossmore, he would find that none of the three supervisor-em-
ployee conversations at issue took place in coercive circumstances.
Inasmuch as we agree with the judge's conclusions that the Respond-
ent engaged in objectionable conduct when the Respondent threatened
employees with the loss of benefits and coerced employees against the
Union during the critical period, we find it unnecessary to pass on
whether the Respondent's director of material management 's comments
about replacing employees if they went on strike were objectionable
In adopting the judge's conclusion that the Respondent violated Sec
8(a)(1) by threatening employees with loss of jobs if they joined or assist-
ed the Union, Member Babson relies only on the remarks by Supervisors
Alexander and Betz to employee Wilson on 12 February and in mid-Feb-
ruary 1981, respectively.
4 In response to the General Counsel's exceptions, we shall modify the
notice to include a provision remedying the Respondent's unlawful as-
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Baton
Rouge General Hospital, Baton Rouge, Louisiana,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order, except that
the attached notice shall be substituted for the one
recommended by the judge.
[Direction of Second Election omitted from pub-
lication.] 5
signment of more difficult jobs to employee Susan Quiett because she en-
gaged in union activities
5 We agree with the judge that the Respondent committed objection-
able conduct during the critical period that warrants settmg'aside the first
election and directing a new election. In reaching that conclusion, we
note that this case is distinguishable from Clark Equipment Co., 278
NLRB 498 (1986), in which the Board found that certain isolated 8(a)(1)
violations in a unit of more than 800 did not warrant setting aside the
election Here the violations included two violations of Sec. 8(a)(3)-the
layoff of employee Warner Wilson because of his extensive union activi-
ties and the imposition of more onerous work assignments on employee
Susan Quiett after she was seen handbilling in support of the Union Such
violations are, by their nature, not fleeting in their effects, and they are
unlikely to escape the notice of fellow employees. This is thus not a case
in which "it is virtually impossible to conclude that the misconduct could
have affected the election results" (Clark Equipment Co., supra, 278
NLRB at 505), and therefore not a case in which we may properly
depart from our usual policy, set out in Dal-Tex Optical Co., 137 NLRB
1782, 1786 (1962), of directing-a new election when an unfair labor prac-
tice has been committed during the critical period
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT interrogate you about your union
sentiments.
WE WILL NOT threaten you with loss of jobs if
you join or assist Service Employees' International
Union Local 275, AFL-CIO or any other labor or-
ganization.
WE WILL NOT threaten you that you will not be
allowed to discuss work scheduling problems if the
Union is selected as your representative.
WE WILL NOT threaten you that, if the Union is
selected as your bargaining representative, you will
not be able to work overtime, adjust work sched-
ules, or come to supervision with your problems or
complaints.
WE WILL NOT assign you more difficult work as-
signments because or your union activities.
283 NLRB No. 37
BATON ROUGE HOSPITAL 193
WE WILL NOT layoff or refuse to reinstate you
because of your union activities.
WE WILL. NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Warner Wilson immediate and
full reinstatement to his former position or, if that
position no longer exists , to a substantially equiva-
lent position, without prejudice to his seniority or
other rights and privileges.
WE WILL make Warner Wilson whole for any
loss of earnings , he may have suffered by reason of
our discrimination against him, with interest.'
WE WILL expunge from,our records any refer-
ence to the layoff of Warner Wilson and WE WILL
notify him in writing of our action in that regard.
BATON ROUGE GENERAL HOSPITAL
Charlotte N. White, Esq., for the General Counsel.
James D. Carriere, Esq., for the Respondent.
Michael J. Meyers, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
This case was heard in Baton Rouge, Louisiana, on Feb-
ruary 8 through 11 and March 1 through 3, 1982. The
charge in Case 15-CA-8016 was filed on January 27,
1981. A complaint in that case issued on March 3, 1981.
The charge in Case 15-CA-8050 was filed on February
18, 1981, and amended on February 26, 1981. The charge
in Case 15-CA-8050-2 ' was filed on March 29, 1981. The
complaint in those two cases ; issued on April 10, 1981.
An order consolidating the three above unfair labor
practice cases issued on April 10, 1981. On June 19,
1981, a Supplemental Decision and Order directing hear-
ing on objections issued in Case 15-RC-6750. On June
22, 1981, an order issued consolidating the three above
unfair labor practice cases and Case 15-RC-6750. On
January 27, 1981, the Regional Office issued amendments
to the above-mentioned complaints.
The Supplemental Decision and Order directed a hear-
ing on the following "objection to conduct of election"
filed by the Union following a May 7, 1981 secret-ballot
election conducted by Region 15 of the National Labor
Relations Board:
(1) Management, it officers, agents and representa-
tives threatened employees with the loss of bene-
fits and possible loss of jobs if they voted for
SEIU, Local 275.
(3) Employees were threatened with loss of previ-
ously enjoyed benefits for engaging in protected,
concerted'and/or union activities.
(9) Agents of management continue to coerce work-
ers against the union from about February 9, 1981,
through May 7, 1981, reference:
Consolidated Complaint No. 15-CA- 8050 and
15-CA-8050-2 issued by the Regional Director,
Fifteenth Region dated April 10, 1981.
The complaint alleged numerous independent 8(a)(1)
violations and 8(a)(3) allegations including denying an
employee a merit wage increase, laying off eight employ
ees, changing work assignments of one employee, and
terminating another employee.
FINDINGS OF FACT'
During the hearing the parties stipulated that the fol-
lowing individuals were, at material times, supervisors
and agents:
David Frank Robertson2-(Housekeeping)
Gayle Caillouet-(Nursing Services)
Tom Alexander-(Vice President)
Gerald Colston-(General Stores)
Tom Webb-(Vice President of Employee Relations)
Claude Kilpatrick-(President-until January 11982)
Joann Lappin-(Nursing Services)
George Munn-(Director of Material Management)
Tom Sawyer-(Vice President)
Shelia Jacobs-(Public Relations Director)
Tom Hagen-(Vice President)
James Walters-(Administrative Director of Radiolo-
gy)
Joyce Burkeen-(Director of Nursing)
William Snider-(Director of Environmental Services)
Dorothy Jones-(Director of Housekeeping)
Gladys Couraville-(Housekeeping)
i Through its answer as amended and through stipulations, Respondent
admitted the commerce allegations in the complaint The complaint al-
leges, Respondent admits, and I find that, at all times material, Respond-
ent, a Louisiana corporation with a hospital facility located in Baton
Rouge, Louisiana, provided nursing and health care services and, during
the past 12 months, a representative period, Respondent purchased and
received goods and materials valued in excess of $50,000 from points lo-
cated directly outside the State of Louisiana.
At the hearing, Respondent also admitted, and I find, that the Charg-
ing Party (the Union) is, and has been at all times material , a labor orga-
nization within the meaning of Sec 2(5) of the Act.
Despite the above, Respondent contends the Board lacks jurisdiction
on the ground that it is a political subdivision of the State. Respondent
offered evidence showing it benefited from a $20 million bond issue from
the East Baton Rouge Parish Hospital Service District No. 2 and that an-
thority, which is composed of five commissioners, was cieated by the
East Baton Rouge city-parish government pursuant to authority created
by an Act of the legislature of the State of Louisiana. All the five com-
missioners were, at material times, members of Respondent's (the corpo-
ration) 45-member board of trustees Moreover, 4 of the 5 commissioners
are on the 21-member board of Respondent's hospital (Baton Rouge Gen-
eral Hospital). However, there was no showing that District 2, or any
other political subdivision, controls, to any extent„ Respondent's employ-
ees' terms and conditions of employment. In fact, the record clearly re-
vealed, and I find, that Respondent retains sufficient control over its em-
ployees' terms and conditions of employment so as to be capable of effec-
tively bargaining with a representative of the employees (National Trans-
portation Service, 240 NLRB 565 (1979)). I find that Respondent is not a
political subdivision but is an employer within the meaning of Sec. 2(6)
and (7) of the Act, and subject to the Board's jurisdiction.
2 Throughout the record this particular supervisor is identified as
David Robinson. I have referred to him as David Robertson in view of
his spelling of the name in conference reports signed by him
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Loren Beard-(Central Supply)
Nella Guilbeau-(Nursing Services)
Gloria Cyrus-(Housekeeping)
Hilda Dewesse-(Assistant Director of Nursing)
Louis-Champagne-(Director of Personnel)
Larry Betz-,(Laundry)
Robert Mancell-(Chief X-ray Technician)
Ernest Peters-(General Stores, Assistant Supervisor)
Linda James-(Assistant Director for Food Services)
Betty Falgout-(Director of Nursing CDU)
Linda Alumbaugh-(Director, of Chemical Dependen-
cy Unit)
Era McRae-(Supervisor)
Melda Pace-(Director of Housekeeping)
George Miley-(Director of Laundry)
Eva Lewis-(Housekeeping)
Betty Ward-(Assistant Director of Nursing Services)
1. THE 8(A) (1) ALLEGATIONS3
The 8(a)(l) allegations are considered below regarding
the named supervisors:
A. Gerald Colston
Former employee Yolanda Scott testified that she had
a conversation with Gerald Colston in his office in "Jan-
uary 1981 about two or 'three weeks at the beginning of
January," and "Mr. Colston asked me if I knew about
the union and I said to Mr. Colston that I did, but I
hadn't participated in the union activities because of the
illness I had in my family." Scott also testified about Col-
ston, "He also asked'me if I knew Susan Quiett; and I
told him that I did know Susan Quiett, personally I
didn't; I knew her sister real well." She went on to testi-
fy Colston "asked me if I was for the union; and I told
him that I hadn't made a decision yet, whether I was
going to, you-know, vote yes or no on that."
Scott stated, "After [Colston] asked me if I knew
Susan Quiett and I said that I didn't know her personal-
ly, that I knew her sister-he said that some black people
be going around talking about things they didn't know
what they were talking about." Scott asked Colston,
"What did he mean," and' "He said when he worked at
the Uniroyal plant that the black people, you know,
black guys that he was working with were striking and
didn't know what they were striking for." "And he said
3 Numerous 8 (a)(1) allegations were also alleged by the Union to con-
stitute objectionable conduct. Those include allegations considered below
regarding Supervisors Tom Sawyer, Betty Falgout, Hilda Dewesse, Tom
Alexander, Tom Webb, Louis Champagne, Claude Kilpatrick, Larry
Betz, David Frank Robertson, Loren Beard, Gayle Caillouet, Nella Guil-
beau, and Shelia Jacobs Additionally, it, was alleged that Respondent
committed objectionable conduct by changing its policy to provide free
parking to its employees, by denying an employee a merit wage increase
(also alleged as an 8(a)(3) violation), and by laying off eight employees
(8(a)(3) allegations).
Note: Re Shelia Jacobs: The complaint allegations refer to Alexander
Jacobs. However, the, supervisory stipulation shows only Shelia Jacobs
The evidence demonstrates that two supervisors, Alexander and Jacobs,
conducted one of the group meetings As shown below, my findings
herein reveal that the speakers at the group meetings whether Jacobs or
other supervisors, used prepared text. Therefore, the confusion regarding
Jacobs name neither adds nor detracts from my overall finding. My find-
ings as to Jacobs are included within the section dealing with the allega-
tions referring to Tom Alexander.
black people nowadays.go around talking about a lot of
things they don't know what they are talking about. And
he said Susan going pushing the union and she doesn't
know anything about the union or she doesn't know any-
thing about what she is talking about." On cross-exami-
nation, Scott testified that Colston "Asked me if I had
been to any of the union meetings and if I were for the
union." "I told him that I hadn't been to any of the
union meetings because I had illness in .the family. My
grandmother was real sick in the hospital at the time-"
"But I was communicating with the people that had been
at the meetings every week. And he asked me if I was
for the union. And I also told" him that I hadn't made my
decision yet, or whether I was for the union but I was
best for whatever best for me." I -
Former employee Susan Quiett testified that she at-
tended a meeting conducted by Gerald Colston and "also
Donald from pharmacy" around the-end of January or
the beginning of February. Quiett testified that an assist-
ant supervisor, Lawson, was also present along with five
employees from housekeeping, and nursing services.
Quiett testified that Colston:
Told us that he was involved in a chemical plant
that had a union and that they were trying to get a
union, but then things didn't go the way the union
wanted. And he said that the union took the em-
ployees out on strike.
He said the union could do all sort of things and
some bad things. He told us that if the union comes
in-if the union is voted in we would start out with
zero-and he held up a blank sheet of paper. And
he also told us that different companies that had
unions or that was trying to get a union that the
benefits we had now we won't have if the union is
voted in. And that they will have people to replace
us.
He said people they would hire to replace us,
they would be by the experience' they had,- would
decide who would get our jobs. '
Susan Quiett also testified she had a conversation with
Gerald Colston about 2 weeks before she was laid off on
February 20, 1981, that Colston approached her as she
was coming out of the cafeteria. Quiett testified that Col-
ston said to her:
Susan, I would like to talk to you. So he brought
me to the side and he asked me if I knew what I
was doing. And I said yes. And he said, what do
you think the union can,do for you?
And I said the union can do great things for me.
And he said, well, why do you feel that the union
can do good things for you? And I said, because the
union can give me better working conditions. And
he went on to say that the union can also take your
job and he said when we go out on strike we will
not get paid while we are on strike. He said that
they will have people to replace us.
In regard to alleged conversations which Colston had
with Yolanda Scott, Colston testified that he had conver-
BATON ROUGE HOSPITAL 195
sations with Scott "But the same conversation I had with
all the other employees I spoke to. So, if you're asking if
whether or not Ms. Scott had a special conversation
with me about the union, no." Colston was asked if he
ever asked Scott "if she was for the union?" Colston re-
plied that he had not. He testified that Scott would only
say that "my husband does not want me to get involved
with the union." Colston testified" he did not ever recall
asking Scott if she knew Susan Quiett and he testified
that to the best of his knowledge that he never told Yo-
landa Scott that Susan Quiett does not know anything
about the Union or does not know anything that she is
talking about.
Colston admitted giving group talks to employees at
the hospitalbut he testified that he simply read the mate-
rial from the prepared text.
Colston denied having a conversation with Susan
Quiett as she was leaving the cafeteria. He admitted that
on one occasion he saw Susan Quiett on the elevator and
that she was crying. Colston testified that he inquired of
Susan Quiett about what was wrong and her answer was
"That's why we need the union in this damn place. And
that is as much as she would say." Colston asked Quiett
if she felt like talking about it and she said no. According
to Colston, that was the extent of this conversation with
Susan Quiett. Colston was asked if he questioned Susan
Quiett, "Why do you feel that the union can do good
things for you?" He replied, "Not that I recall." Colston
denied telling Susan Quiett in his conversation with her
that the Union can take your job and that when you go
out on strike you will not get paid and that they will
have people to replace you.
Discussion
1. The group meetings4
Susan Quiett testified regarding a meeting she attended
and conducted by Colston, which she referred to as the
4 The unfair labor practice allegation apparently involved only the first
of several addresses to employees. Although different groups were ad-
dressed at various times, the same address was used for each of these
groups Subsequently the same process was repeated with different
speeches. A consensus of the testimony from witnesses of all three parties
convinces me that in each of the first group of meetings several employ-
ees were addressed by two representatives of Respondent, and those rep-
resentatives received from Respondent prepared texts for their addresses
to the employees Respondent's 'witnesses, identified as speakers in those
meetings, indicated that they spoke from a prepared text which, on its
face, dictated which of the,two speakers presented pertinent parts of the
address. Resppndent' s witnesses admitted answering employee questions
during those meetings and one witness for the General Counsel, Warner
Wilson, indicated in his testimony that he questioned the speakers during
the course of the address However, with the exception of Wilson, none
of the witnesses for the Union or the General Counsel demonstrated by
their testimony that the allegedly unlawful comments during the meeting
arose in response to employee questions.
In considering the credibility of the group's meetings testimony, I must
and do consider that the evidence establishes that all the speakers were
presented with prepared texts for those meetings Obviously, in the ab-
sence of other factors, a witness that has available for pretrial examina-
tion the text of the speech that he had before his speech and that he used
during, the speech would have a broader basis for accurate recall of the
events during the speech than someone attempting to recall what he
heard on the one occasion of the speech I shall fully consider that point
in determining the probability of the accuracy of the witnesses' recall
Due to consideration of the written text, I will be more reluctant to
first of Respondent's speeches to its employees. The
written text that Colston testified he read to the employ-
ees is in evidence. Quiett's testimony, although remark-
ably similar to the written text, contains comments by
Colston that would constitute predictions of disadvan-
tages which would result from unionization. According
to Quiett, Colston indicated that employees would lose
benefits and employees would be replaced.
On the other hand, the written text states, inter alia,
that bargaining begins at the zero point and everything
you currently have would go on the bargaining table and
be subjected to the give and take of bargaining. The text
then points to examples of loss of benefits, including a
specific case where employees' pay was reduced through
bargaining. The text also points out that the only weapon
the Union has to try and force its demands is to strike. It
then illustrates that strikers will not be paid nor will they
receive other benefits and the employees "could lose
your job" because they could be replaced during an eco-
nomic strike.
I am convinced that Quiett's testimony reflects her
recollection of what Colston meant in the group meet-
ings. However, in view of Colston's testimony and the
entire record, including my observations in footnote 4
above, plus the close similarities between the text and
Quiett's recollection, I find that the text was actually fol-
lowed by Colston.5
2. Yolanda Scott and Susan Quiett
Gerald Colston denied having conversations with
Scott and Quiett to the extent of their respective testimo-
ny. I am persuaded, on the basis of the demeanor of the
witnesses and the entire record, that Scott and Quiett
should be credited over the testimony of Colston regard-
ing those conversations. In considering this credibility
issue, the background of the employees union activity is
of particular importance. Susan Quiett was a visible
union supporter. Perhaps her most visible activity was
her handbilling for the Union across from the hospital by
the "new parking lot." Her handbilling, which started on
December 7, 1980, and occurred on three or four occa-
sions before her February 20, 1981 layoff, was observed
by supervisors of Respondent. Against that background,
credit evidence that is contrary, but similar, to comments in the text (e.g ,
evidence that benefits will be lost as opposed to language in the text
showing that negotiations may result in loss of certain benefits).
Moreover, although I shall consider the evidence in its entirety, I do
not find totally determinative of the question of variance from the writ-
ten text testimony that the speaker looked up at the audience or that the
speaker did not appear to read from notes The evidence did not reveal
with precision the dates of the speeches. Those speeches were repeated,
often times by the same speakers, to different groups of employees
Therefore, it is apparent that depending on how often the particular
speaker had given the speech at issue, he may have been so familiar with
the text at the time of the speech in question that frequent referrals to the
text were no longer necessary
5 Concerning Quiett's testimony, I note that it is not disputed that vari-
ous speakers made comments in the nature of answers to questions from
employees that were not contained in the written text However, in the
case of Quiett's testimony, and on most other situations involving the
speeches, the material comments (i.e, alleged illegal comments) are so
similar to comments in the written text that I am convinced and find that
actual remarks were taken'€rom the text and were not made in response
to employee's questions
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I fmd Yolanda Scott's testimony that, when Colston
questioned her about the Union during 1981, he specifi-
cally ' asked about her acquaintance with Susan Quiett,
gives a clear appearance of credibility. Scott's testimony
in that regard evidenced a clear recollection of com-
ments that would logically follow considering Respond-
ent's knowledge of -Quiett's activities. On the other hand,
in consideration of whether Scott fabricated her version
of the Colston conversation, I cannot conclude from the
record that she was otherwise aware of Respondent's
knowledge of Quiett's union activities. According to
Scott's testimony, she had not, at that time, participated
in union activities because of her grandmother 's illness.
Moreover, regardless of her knowledge of Quiett's ac-
tivities, I find it unlikely that Scott could fabricate such a
conversation by including references to another employ-
ee's union involvement that fits so reasonably into the es-
tablished time pattern of Quiett's activities.
Additionally, a comparison of Scott's and Quiett's tes-
timony showed a continuing pattern of comments by
Colston-i.e., when Colston talked to Scott in January,
he commented that Susan Quiett was pushing the Union
and she does not know anything about "what she is talk-
ing about"; when Colston talked to Susan Quiett in Feb-
ruary 1981, he asked her if she knew what she was
doing; what did she think the Union could do for her.
Conclusions
The complaint alleges that Respondent's supervisor
and agent, Gerald Colston, engaged in 8(a)(1) violations
by orally interrogating employees concerning employees
union activities on three separate occasions; creating the
impression of surveillance of employees union activities;
threatening that should the Union successfully organize,
bargaining would commence with a blank sheet of paper;
threatening loss of benefits if the Union was successful;
and threatening that if the Union was successful, employ-
ees would be required to strike and would lose jobs'.
Apparently the threats noted above allegedly occurred
during a group' meeting addressed by Colston. In view of
my -findings herein 'that material speakers at those meet-
ings followed a written text and the evidence failed to
establish that the speakers make arguably violative com-
ments not contained in the text, I shall consider below all
the allegations which arose during those meetings under
a common heading.
Therefore, ,as to Colston individually, I shall now con-
sider only the allegations of interrogations and impres-
sions of surveillance. In essence, the credited evidence
demonstrates Colston asked Yolanda Scott in his office
during January' 1981 if she knew about the Union, if she
had been to any of the union meetings, if she was for the
Union, and if she knew Susan Quiett. Colston also told
Scott that Quiett was pushing the Union and did not
know what she was talking about. Concerning Quiett,
the credited evidence demonstrated that Colston talked
to her outside Respondent's cafeteria in February 1981
and asked her if she knew what she was doing; what did
she think the Union could do for her; and told her the
Union could take her job and that she would not get
paid although on strike; and people would replace the
employees.
I see nothing in the above conversations that would
support a fmding that `Colston created , an impression of
surveillance . He did imply knowledge of Susan Quiett's
activities. However, the record clearly proved that
Quiett's activities before that conversation, included
handbilling for the Union in open view of employees and
supervisors alike. Therefore, Colston's comments demon-
strated awareness of nothing that was not common
knowledge. I fail to see how a supervisor's comments in-
dicating that he did nothing beyond observing such open
activities could be considered coercive. I fmd that the
General Counsel failed to prove- that particular allega-
tion . See Regal Tube Co., 245 NLRB 968,'97-3 (1979);
Carrick Foodland, 238 NLRB- 568, 569 (1978).
On the other hand, I find Colston's questions to Scott
and Quiett were coercive. In that regard, I note that
Scott was questioned in Colston's office; his questions to
Scott were extensive (i.e., if she knew about the Union;
had she attended any union meetings ; if she was for the
Union; and did she know Susan Quiett, a known union
advocate); and his comments included an implication that
union advocate Quiett was engaged in union activities
without being fully knowledgeable of the possible ramifi-
cations of that activity. I note that Quiett was queried on
what she thought the Union could do for her; and if she
knew what she was doing. Additionally, Colston threat-
ened Quiett with possible loss of her job because-of the
Union. Both the Board and the courts have traditionally
found such comments constitute an 8(a)(1) violation espe-
cially when, as here, they occur in an atmosphere of
other violations. See Agri-Seeds, 237 NLRB 911, 916
(1978); Backstage Restaurant, 232 NLRB 1082, 1088
(1977); NLRB v. W. C. McQuaide, Inc., 552 F.2d 519,
533 (3d Cir. 1977); Jody Tootique, 245 NLRB 734, 739
(1979); Pelton Casteel, Inc., 246 NLRB 310 (1970); and
Cerro CATV Devices, 237 NLRB 1153, 1156 (1978). Re-
spondent proved' no valid purpose behind its questioning
of Scott and Quiett and the record indicated that no
valid purposes existed. There was no showing, for exam-
ple, that Respondent was checking on a union claim of
majority status nor was any motive shown other than the
one apparent in Colston's efforts to require the two em-
ployees to identify and support their respective positions.
Additionally, Colston .was not a low-level, firstline super-
visor. Although the record did not fully reveal his posi-
tion in Respondent's supervisory structure , it is apparent
from his testimony that,he supervised firstline supervi-
sors.
Concerning Quiett, even though' Respondent knew of
her union activities, the Board has found similar ques-
tioning, as here, violative (TR W-United Greenfield Divi-
sion, 245 NLRB 1135, 1139 (1979)).
B. Gloria Cyrus
Former employee Joann Tate testified that she had a
conversation with Gloria Cyrus ' in the presence of two
other employees on February 9, 1981, at the hospital.
According to Tate, she and two other employees were
talking when Cyrus came up and asked, "Were we dis-
cussing the union." The employees asked why and Cyrus
stated, "Because every where she go people are talking
BATON ROUGE HOSPITAL 197
about the union." The employees then told Cyrus that
they were talking about the Union.
Tate stated that later on that same day after she had
returned to her work station, Cyrus came to her and
asked Tate what she thought about the Union and was
she going to vote for the Union. Tate testified that she
replied, "Sure, if I thought it could get there." At that
point Cyrus stated, "Well, that she didn't have anything
else to do with it because she needed her job."
Gloria Cyrus testified that she did not have a conver-
sation with Joann Tate and others about union activities.
Cyrus testified that she did recall one conversation when
she went to Joann Tate and Julia Kelly and asked them
what they needed on the carts and that one of the em-
ployees asked her if she received a letter from the hospi-
tal. Cyrus replied that she said yes, Cyrus testified that
Tate did not say anything about the Union, but that Tate
said, "I don't know what they are sending me mine for
because people are going to do what they want to do
any way." Cyrus testified that was the end of the con-
versation. Cyrus testified that she did not ask Tate if she
was going to vote for the Union nor did she ever ask
Tate if she, Kelly, and Stevenson were talking about the
Union.
Discussion
The dispute between the testimony of Joann Tate and
Gloria Cyrus presents a difficult credibility problem. Al-
though both witnesses evidenced good demeanor, they
also demonstrated weakness in recollection during cross-
examination. Concerning Tate, her testimony conflicted
with her pretrial affidavit regarding the substance of the
above-mentioned conversation with Cyrus and with her
layoff interview. Cyrus' cross-examination demonstrated
weak recollection in several areas, most noticeably in
regard to union discussions at the hospital and the meet-
ings held by the hospital regarding the union efforts.
Moreover, Cyrus appeared to change her testimony on
redirect regarding the practice of moving relief maids to
another floor. Nevertheless, it remains the General
Counsel's burden to prove its allegations by substantial
evidence.
Due to the conflicts between Tate's testimony at the
instant hearing and her pretrial affidavit, I am unable to
find that the General Counsel has established through
substantial evidence that the above conversation oc-
curred as testified by Tate.
Conclusion
In view of my credibility findings above, I find that
the General Counsel has failed to prove the 8(a)(1) alle-
gations regarding Gloria Cyrus.
D. Hilda Deweese
Former employee Dorothy Huges testified that she at-
tended a meeting conducted by Deweese and a man she
did not know at the hospital on February 9, 1981. There
were approximately 20 employees at the meeting. Huges
testified , "They said if the union would come in they
would call a strike-and we would lose our jobs-and
our family would be deprived of needed things-and we
would lose all our benefits." Huges said, "They said if
the union came in we would automatically lose our jobs
and all our benefits ." Huges also testified , "They said if
the union did come in they would call a strike; and we
would lose our jobs." Later , under cross-examination,
Huges was asked if the employees were told they would
automatically lose their jobs and she replied, "Yes, and
you would be laid off from work."
Hilda Deweese admitted giving group talks to employ-
ees at the hospital. However, she denied making the
comments alleged in Huges' testimony . Deweese testified
that she followed the script of the speech although she
admitted answering employees questions.
Discussion
Again, as in the case of the address by Gerald Colston
(above), Dorothy Huges' testimony is very similar to
comments found in the written text. Although, I am con-
vinced that Huges endeavored to recall what was said,
her observations reflect her understanding of the message
rather than the actual words. The text reveals that the
actual speech was long, almost 20-typed pages, and con-
tains specific examples underscoring possible conse-
quences of unionization . I find it less than surprising that
Huges and other employees came away from the speech-
es with the impression that they had been warned against
certain dangers created by unions.
However, on the other hand, I find it unlikely that any
employer would, in a situation like we have here when
numerous mid-level and high -level representatives ad-
dressed employee groups, encourage the speakers to
depart from the written text. Such a practice would most
likely result in a confused and nonproductive message. I
find it more probable that when, as here, both the em-
ployee witness and the speaker witnesses appear credible,
the speech was actually given as written with the result
that one or more of the listeners may have understood
the speech's predictions to be more definite than actually
expressed.
Conclusion
As indicated above, in view of my findings that
Deweese followed the written text in her February 9,
1981 address to the employees , I shall consider this alle-
gation below along with allegations going to other super-
visors regarding the group meeting.
D. Tom Alexander
Former employee May Ella LaCour testified that she
attended a meeting at the hospital around January 20,
1981, conducted by Alexander, Jacobs,6 and a black man
from purchasing. LaCour testified:
Well, Mr. Alexander did most of the talking and
he said that unions wasn't any good for hospitals
and unions wasn't any good for patient care. And
then he also talked about strikes, mostly, the two or
three people were going out on strikes and that you
can be at home and you wouldn't know anything
6 Shelia Jacobs did not testify.
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about it and he named several places that had had
strikes and people lost their jobs. And then he said
that-that you can lose all your benefits, that if the
union would come in you wouldn't have no one to
talk to. You'd have to go to the Board. And then he
also told us-he held up a blank piece of paper-
saying that you would have to start bargaining from
a blank sheet of paper. And then he also told us
that there was a big layoff coming up.
LaCour was asked if Alexander gave the reason for
the big layoff and she replied, "He said a shortage of
staff nurses."
LaCour testified that approximately 20 employees at-
tended the above meeting.
1. Alexander's meeting with Warner Wilson
Former employee Warner Wilson testified that he was
called into Tom Alexander's office on February 12, 1981,
and in addition to Tom Alexander, Supervisors Bill
Snider and -Larry Betz were also present. Wilson testified
Alexander told him, "We just got the result of who was
eligible to vote yesterday. And you are a supervisor and
you fall under management; therefore, you are not eligi-
ble to vote." Wilson testified that Alexander told him:
You are a supervisor. You are not allowed to
vote. I don't want you to say anything, speak up for
the union. I don't want you to discuss the union
with anyone or it could mean your job. I know
how strongly-I know how strongly you feel about
the union-you know, how strongly I feel about the
union, you know, wanting it. So I personally called
you up here to tell you not to discuss anything
about the union, or not to say anything to anybody
about the union, because it could mean your job.
Wilson stated that he asked Alexander, "Since I'm a su-
pervisor, why aren't I drawing supervior's pay?" Alexan-
der replied, "Well, you are going to have to take that up
with Mr. Gene Miley, which is the laundry manager."
According to Wilson, Snider then said, "If you don't
like the pay you are getting you can quit." Alexander
stated, "Do you understand what I mean." Wilson re-
plied, "I understand exactly what you mean."
2. Alexander and the director of nursing
Warner Wilson also testified about a meeting conduct-
ed by Tom Alexander along with a lady that he believes
was the director of nursing. Wilson stated that other
people in attendance included a lady named Louise
Harold, a man that worked in maintenance, a lady from
nursing service, and two other employees he did not
know. Wilson's testimony about that meeting was as fol-
lows:
During the course of the meeting the lady said,
"Well, if the union win and we go to the bargaining
table, we'll go with this." And she held up a blank
piece of paper. So I asked her, I said, "Well, is it
good faith to go to the bargaining table with a
blank sheet of paper?"
She said all that we have to do- is go to the bar-
gaining table. So I don't know which one said it,
the next statement about-if it was Mr. Tom Alex-
ander or the lady-but if we go the bargaining table
and we can't reach an agreement then the union
would call a strike.
And I said, I told them, Well, the union can call
a strike, the union members have to vote on a
strike. And if they vote on a strike they have to
give the hospital 90 days notice. And I think a 90-
day and then a 30-day notice, and then 10-day
notice. I think that's federal law.
And if they don't reach agreement by then they
are not bargaining in good faith. So, Mr. Alexander
went on and was talking about this hospital in Lake
Charles had voted a union in and wound up making
less money. And he also was speaking about strikes.
He said if the employees go on a strike they can
bring in a catering service or whatever-you know,
to replace the employees that's on a strike.
And then after the strike is over-when the strike
is over some of the employees might be out of a
job.
He also said that all the union wanted to do was
take your money. They don't do anything for you.
And I told them-I spoke up and I said, well, I
would rather pay $6,00 or $12.00 a month union
dues for job security because right now anyone can
come in, you know, and tell me I am fired without
any really good reason. And I would be out of a
job. At least with the union I have some type of se-
curity. They would have to have a good reason to
fire me.
So they kept on talking. He said, well, you
know-they kept on talking more or less like if the
union came in there could be trouble. There could
be violence and things like that, you could lose holi-
days.
And they kept on talking and I just turned a deaf
ear to the meeting at that point.
Wilson testified that the meeting conducted by Alexan-
der was before Alexander told him that he was not eligi-
ble to vote. I
Tom Alexander testified that he along with Edward
Silvey, Louis Champagne, Shelia Jacobs, and the Com-
pany's attorney, Lindsey, participated in the formulation
of a group of speeches to be delivered to the employees
during the union organizing campaign. Alexander testi-
fied there were five or six speeches in all. Each of those
speeches was presented to several groups of employees.
The first of the five or six speeches contained'a refer-
ence to a blank sheet of paper. According to Alexander,
he was one of the persons that presented that speech
which was given on February 9, 1981, Alexander testi-
fied:
We, of course, had a speech typed out. We fol-
lowed it to the word. Basically, that speech said
that if bargaining-if the union got in and bargain-
ing commenced we would bargain in good faith
with the union, but bargaining started at the zero
BATON ROUGE HOSPITAL 199
point, item by item and there was no guarantee that
anyone would come out better or worse, during the
bargaining process.
The blank sheet of paper was held up and dis-
played that bargaining would start from zero point.
According to Alexander, there was reference during the
speeches to Clarence Crayton, the secretary-treasurer
and chief organizer for the Union at the hospital. He
stated that the reference to Crayton was that Crayton
was negligent in performing some of his duties in bar-
gaining -and it was questioned whether this negligent
type of person was the kind of individual that Baton
Rouge General Hospital employees would want bargain-
ing on their behalf. In support of this position regarding
Crayton, Respondent distributed to the employees during
the speeches a letter purportedly from Crayton to the ex-
ecutive vice president of AMI in which Crayton indicat-
ed he was negligent because he failed to bargain proper-
ly on behalf of the employees.
Alexander denied that he participated in any meeting
with Warner Wilson concerning Wilson's supervisory
status and his working for the Union at Baton Rouge
General Hospital. However, admitted Supervisor Larry
Betz testified:
Q. Did you ever attend a meeting involving
either Mr. Alexander or Mr. Munn or Mrs. Beard,
or Mr. Snider where Mr. Wilson was present and
he was told that he was a supervisor and that he
could not participate in the union activities?
A. I remember a meeting.
Q. Did you attend the meeting?
A. Yes, I did.
Q. Who was present?
A. Mr. Alexander, Mr. Miley, myself and Warner
Wilson.
Q. And what was told to Mr. Wilson?
A. That part of the conversation I really don't re-
nnember.
In regard to the speeches to employees , Alexander ad-
mitted that there were question -and answer periods and
that he answered questions extemporaneously. Alexander
admitted discussing strikes and strike violence with em-
ployees during those meetings and showing clippings of
strike violence to the employees.
Under redirect, examination, Alexander denied that in
answering any employee questions, 'he told the employ-
ees that they would lose their hospital benefits if the
Union successfully organized the hospital. He also denied
that in answering questions he told employees that they
would no longer have anyone with whom they could
discuss their problems and would have to go to the Na-
tional Labor Relations Board , Alexander denied that he
informed any employees that strikes would be provoked
and loss of jobs would occur if the Union successfully
organized . On recross , Alexander admitted that they did
"Inject union stewards in this situation , and to whatever
extent the steward would have to get involved [the em-
ployeesl would have to involve him."
3. Tom Alexander re Charles Hamilton
In the General Counsel's case, Charles Hamilton was
called and testified to a conference he had with George
Munn, who Hamilton described as being over purchas
ing, housekeeping, and the laundry. Hamilton testified
the conference was in Munn's office and included Harris
and Beard. Hamilton was recalled during the rebuttal
portion of the General Counsel's case and he testified
that he then recalled that Tom Alexander was present
along with Munn and Beard.
During the General Counsel's case-in-chief, Hamilton
recalled that George Munn did the talking and that
Munn told him that he heard rumors that Hamilton was
affiliated with the Union but that he now knew for a fact
because he had seen Hamilton on the property passing
out leaflets. Munn told Hamilton, you know that,you are
a supervisor and supervisors cannot be affiliated with the
Union. According to Hamilton, Munn told him, "You
either leave the union alone or take a reduction in pay
and continue with the union."
Tom Alexander admitted that he attended a meeting
involving Hamilton along with Harris and Munn. Alex..
ander recalled telling Hamilton, "That it had come to my
attention that he was actively engaged in the union orga-
nizing campaign and we felt because he was a supervisor
that he has the responsibility to uphold the hospital posi-
tion." Alexander asked Hamilton to cease his activities as
a union organizer. ; According to Alexander, Hamilton
admitted that he was a supervisor, and that Hamilton felt
like he knew he should not engage in union activities on
hospital time but he thought he had the right to do it on
his own time. Alexander told him that it was his respon-
sibility as a supervisor to uphold the Hospital's position
24 hours a day, 7 days a week, and that, "We expected
that of him." Alexander denied telling Hamilton that if
he chose to continue organizing for the Union to take a
reduction in pay, or he could stop being affiliated with
the Union and keep his job as a supervisor.
Henry Harris, chief patient care assistant, testified that
he attended the meeting involving Tom Alexander,
George Munn, and Charles Hamilton in Munn's office.
Harris was asked what Alexander said to Hamilton
about the Union. His testimony was:
Well, he told-he' ask him was he a stewardess
[sic] for the union, and Mr. Hamilton said yes.
And he said that from this point he would not
hold anything against him for believing what he be-
lieves in, but at this point. and time that he wants
him to stand along with the hospital, being the su-
pervisor.
Q. And did Mr. Hamilton respond?
A. Well, he just-nodded his head like he agreed
and understood what they are saying.
Q. And how long after the meeting did you, go
visit Mr. Hamilton..
A. Four hours later I went to Mr. Hamilton's
house after the meeting.
Q. Now, as best as you can, would you tell us the
conversation that you had with'Mr. Hamilton.
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A'. I went to Mr. Hamilton's residence and I ex-
plained to him about the meeting we had earlier,
did he understand what was said in the meeting
from Doctor Alexander. And we elaborated on that
and I told him that by being a company-he could
understand that by being a company man he was
suppose to stand with the hospital and not be with
the union.
And some of that he disagreed. And I told him
about that if he wanted to be with the union step
back in the staff and renounce his position, he
wanted to help the union. He couldn't be in the po-
sition that he had and be with the union.
On cross-examination, Harris testified that when he
went to Hamilton's house following the meeting with Al-
exander, Hamilton told him that he still was going to
fight for the Union.
George Munn Jr. testified that in November 1980 he
was materials manager and director of pharmacy. Munn
testified that he attended the meeting involving Hamil-
ton, Henry Harris, and Tom Alexander and that the
meeting occurred on November 26, 1980. Munn was
asked, "What did Alexander say to Hamilton," and his
response was: -
Basically it was his position of assistant supervi-
sor over other PCA's. He did know that Charles
Hamilton was working with the union activity and
for him to cease to do so because of the hospital's
feeling toward unions.
And he just asked-because the hospital's attitude
toward-their relationship with union activity-at
that point we were against unions in the hospital.
He, as a supervisor, was not eligible for, in our in-
terpretation, to be involved in union activities. We
requested that he not do so.
Q. Did Mr. Hamilton say anything about whether
or not he was a supervisor?
A. No he was a supervisor.
Q. Did Mr. Hamilton acknowledge the he was a
supervisor or did he deny being a supervisor?
A. He didn't deny it.
On cross-examination, Munn testified that they did not
tell Hamilton that further disciplinary action would in-
volve discharge but that they did tell him that if he did
not agree to cease further union activities there will be
disciplinary action in the future.
Discussion
4. The group meetings
As in the case of other witnesses, May Ella LaCour's
testimony was in substantial accord with the written text
of the first series of addresses. However, LaCour' s testi-
mony that was supported by her earlier pretrial affidavit
testimony, indicated that Alexander made comments in
addition to those that appear in the text. I note that
LaCour recalled Alexander telling them that two or
three people could go out on strike even though the em-
ployees who attended the meeting may be at home and
not know about the strike.
I am convinced and find, for reasons outlined above
regarding other group meetings, that Alexander read or
gave the speeches stated in the text. However, I also find
that he made other comments, whether or not in re-
sponse to questions, that included the comment about
two or three people initiating a strike. That statement ap-
pears reasonable in view of other comments that are in-
cluded in the text regarding strikes. In view of my obser-
vation of LaCour's demeanor, I am convinced that she
testified to the best of her recollection regarding the
group meetings. Even though I find that her recollection
did not establish statements that were made in direct
conflict with the written text, I do credit LaCour's testi-
mony that Alexander told them that two or three em-
ployees could initiate a strike.
Concerning the meeting attended by Warner Wilson, I
noticed that Wilson's testimony appears to substantially
in accord with the written text. Therefore, and in line
with the reasons stated above regarding other meetings, I
am convinced and find that Alexander, and the other
speaker, followed the printed text on that occasion. I
credit Wilson's testimony that he questioned the speakers
during their presentation rather than afterwards.
5. The meeting with alleged Supervisors Wilson and
Hamilton
In defense of alleged violations regarding Warner
Wilson and Charles Hamilton, Respondent contends that
both men were supervisors at material times and not sub-
ject to the Act's protection afforded employees. Both
Wilson and Hamilton testified that they were cautioned
by Tom Alexander to cease their union activities because
of Respondent's assertion they were supervisors. Alexan-
der denied having such a conversation with Wilson, but
admitted having one with Hamilton.
I find Wilson's testimony believable on the basis of de-
meanor and the entire record. I noticed in that regard his
recollection o€ Alexander's warning that he was a super-
visor and should cease union activities was similar to
what Alexander admittedly told Charles Hamilton. Addi-
tionally, Supervisor Larry Betz recalled attending that
meeting between Alexander and Wilson.
Concerning Hamilton, Alexander and other supervi-
sors admitted that Alexander called Hamilton in and cau-
tioned him not to engage in union activities. Generally, I
do not credit Hamilton's testimony to the extent it con-
flicts with other testimony regarding that meeting. Ham-
ilton demonstrated in testimony during the General
Counsel's case-in-chief and when called in rebuttal that
his recollection was poor.
However, I do not credit Alexander's and Henry
Harris' testimony that during their conversation, Hamil-
ton admitted that he was a supervisor. I find the testimo-
ny of Materials Manager George Munn Jr. (another of
Respondent's witness) more believable. Munn testified in
response to the question did Hamilton acknowledge that
he was a supervisor, "He didn't deny it."
I specifically discredit Hamilton's testimony that he
was told during the meeting at the hospital that, he
should take a reduction to a unit job if he wanted to
assist the Union. In that regard, I credit Chief Patient
BATON ROUGE HOSPITAL
Care Assistant Henry Harris' testimony that he , an "ad-
mitted supervisor , made that suggestion to Hamilton, but
that the suggestion was made after the meeting with Al-
exander when Harris visited Hamilton's home . Addition-
ally, I specifically credit the testimony of George Munn
Jr. that Hamilton was warned of further disciplinary
action if Hamilton did not agree to cease his union ac-
tivities.
Conclusion
6. The group meetings
In view of my findings that Alexander followed the
written text in his addresses to employees and that he
added a comment that, a strike could be initiated by two
or three employees, I shall make a determination on the
allegations arising from those speeches, along with alle-
gations regarding other supervisors ' comments in their
speeches, below.
7. The meetings with Warner Wilson and Charles
Hamilton
In considering the import of comments made to
Wilson and Hamilton, it is first necessary to consider
whether Wilson and Hamilton , were supervisors and not
entitled to the Act's protection as employees.
8. The supervisory status of Warner Wilson
Warner Wilson testified that his stated duties for Re-
spondent were those of washman in Respondent's laun-
dry facility. Wilson testified there were 17 or 18 other
employees in the laundry that worked with him on his
shift. Wilson testified that he loaded dirty clothes up in
the washer, would wash them by sending them through
the wash cycle, then pull them out and load them on a
conveyor where they would go to the rest of the work-
ers to finish the laundry process . Wilson stated his pay
came to $4.97 per hour. Wilson testified that he had no
authority to hire, fire, or recommend that an employee
be hired or fired. Wilson stated that he did not have the
authority to either layoff or recommend employees for
layoff; nor did he have authority to recommend an em-
ployee for a wage increase . Wilson recalled that he did
not' give written warnings to employees , discipline any
employees, nor grant them time off.
Wilson's supervisors were Larry Betz and Gene Miley.
Neither Betz nor Miley worked on weekends.
Wilson and three other laundry employees were classi-
fied as leadermen . Because both supervisors , Betz and
Miley, were absent on weekends , Wilson and another
leaderman , Fleming Fountain , rotated working Satur-
days . Wilson testified that on those occasions it was his
obligation to assist coworkers in' getting the clothes out
and that if there was a breakdown, he had a number to
call a mechanic and if an employee failed to show up for
work, he was instructed to call to see if other employees
could come in. Wilson stated that he was never told that
he had the authority to discipline employees; however,
he testified, "If somebody messes up or somebody comes
in late," he was' to write a note and leave it on Miley's
desk and Miley would take care of the situation. Wilson
201
was' asked if he had an occasion to write a note as indi-
cated above , and his response was, "I don't think so."
On cross-examination , Wilson was asked about an occa-
sion, a Saturday, when an employee would just sit down
and smoke a cigarette rather than work , and he respond-
ed that he could just tell them that they might do a little
better or he would have to report it to Miley, but that he
did not have authority to tell employees what to do.
Wilson indicated on cross -examination that he did not
know whether he had attended any supervisory meet-
ings.
Although Wilson admitted that Gene Miley told him
that he, could call for help if he was short-handed, he tes-
tified that he never received any telephone numbers of
other employees he was supposed to call , and that during
the times when they were short they either doubled up
and did the work themselves , or when he knew that an
employee was absent he may ask someone to come in
and work that Saturday. On occasion he had called some
of the employees that he knew to come in and work on
Saturdays.
Gene Miley did not testify. Larry Betz testified that
Warner Wilson's job was that of "leaderman, working
washerman." Betz testified that on weekends Wilson's re-
sponsibility was to make sure he had a crew--working
crew, designated places .to work, etc. He testified that
Wilson had authority on weekends to call other employ-
ees to fill a slot if someone did not show up without first
calling a supervisor . Betz also testified that Wilson had
the authority to reprimand employees if they were either
late or had some adverse reaction during the day, but
generally Wilson would send him home and report the
incident to either him or the laundry manager the fol-
lowing workday. He testified that Wilson assigned differ-
ent jobs on Saturdays.
On cross-examination , Betz admitted that he had never
told Warner Wilson that Wilson had authority to repri-
mand employees . Betz also admitted that he did not
know of any written warnings that Wilson had ever
issued, nor did he know of anyone that Wilson had ever
sent home. Betz also admitted that the only jobs assigned
by Wilson on weekends were routine jobs of putting
clothes in the washer , taking them out, putting them in
the dryer, and folding them.
Although Betz testified that Wilson had the authority
to give employees time off if they were sick, he admitted
that he was not aware of a specific example of Wilson
doing that and he had never told Wilson that '"Filson had
that authority.
L find that Wilson was not a supervisor at material
times. The Board has consistently held that even though
an employee may perform some supervisory functions,
he will be found not to be a supervisor , when he lacks
authority and independent judgment and spends a sub-
stantial portion of, his workday performing rank-in-file
work of a repetitive nature (Air Filter Corp., 2.31 NLRB
782 (1977)). It was apparent that Larry Betz had no first-
hand knowledge of what Warner Wilson had been told
regarding his authority. Betz testified concerning his
knowledge of Wilson's authority and activities. Howev-
er, when examined by the General Counsel, Betz admit-
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ted that he had no knowledge of Wilson ever exercising
any supervisory authority over employees nor was he ac-
tually aware that Wilson had been told that he possessed
such authority . Therefore, I shall fully credit Wilson's
testimony regarding his authority and duties . That testi-
mony revealed , and I fmd, that Wilson was nothing more
than a leaderman and was not a supervisor as defined in
the Act.
9. The supervisory status of Charles Hamilton
Charles Hamilton 's duties differ somewhat from those
of Warner Wilson . Whereas Wilson was one of four
leadermen in. his department , Hamilton was designated as
the only assistant chief patient care assistant . Patient care
assistant 's duties included catheterizing patients , walking
patients, assisting with patients ' baths, dressing patients,
restraining patients , and getting patients out of chairs.
Both Hamilton and his immediate supervisor, Henry
Harris, the chief patient care assistant, performed all the
functions normally performed by patient care assistants
(PCAs).
However, Harris and Hamilton were also charged
with assigning jobs to available PCAs as the jobs ap-
peared throughout the hospital . Although Hamilton
spent most of his time during the week performing PCA
duties, he 'also, during those periods, assigned jobs,
trained employees , and on occasion counseled PCAs
about their work -performance . Hamilton admitted coun-
seling employees Gerald McRay and Horace Johnson.
On' Sundays and Mondays , Hamilton assumed the role
normally occupied by Chief Patient Care Assistant
Henry Harris. Harris did not work on Sundays and Mon-
days. On those occasions , according to Henry Harris'
testimony , which I credit , Hamilton `called in employees
toreplace no-show employees , granted employees per-
mission to leave early, sent employees home for discipli-
nary reasons , had the right to and, on occasion , actually
wrote up employees for disciplinary action , counseled
employees about their job performance , and trained em-
ployees in their PCA duties. Hamilton testified that on
Sundays and, Mondays it was up to him to see that the
job went on fine. Hamilton admitted that his pay was
about _$ 1.50 per hour higher than the highest paid PCA.
According to Loren Beard ,, the supervisor directly
over Henry Harris, Hamilton was informed by her that
he also had the authority to recommend discharge o£ an
employee.
-I ,am convinced on the basis for the record that Hamil-
ton acted in a supervisory capacity . His supervisory
duties were routinely administered on Sundays and Mon-
days when he was the only firstline supervisor on the job
and, also , on regular occasions during his, workdays even
though less frequently because of the presence of the
chief PCA. (See Butler-Johnson Corp., 237 NLRB .688
(1978); Flexi-Yin Service Center, 228 NLRB 956 (1977);
10. Findings regarding Hamilton and Wilson
The complaint alleges that Alexander threatened an
employee on February 12, 198 -1, with termination if the
employees supported the Union.
Obviously, because Hamilton had been found to be a
supervisor, I fmd no violation occurred during his meet-
ing with Alexander nor was there a violation by Harris
in his subsequent visit to Hamilton 's home.
Concerning Wilson, his testimony , that I have cred-
ited , proves that during a February 12, 1981 meeting in
Alexander's office he was told that he was a supervisor.
Alexander cautioned Wilson not to speak up for the
Union or it could mean Wilson's job . I find that consti-
tutes a clear threat in violation of Section 8(a)(1) of the
Act.
E, Tom Webb
Former employee LoRita Marshall testified that she
attended a meeting at the hospital in the middle of Feb-
ruary 1981 conducted by Tom Webb. Marshall testified
as follows regarding that meeting:
OK, he talked about how there had been vio-
lence in the unions . How the unions caused vio-
lence . He told us that if the employees would go on
strike that we could lose our jobs.
He said that the hospital had a contract with
some other company and if we were on strike that
they would supply the hospital with new employ-
ees. And he told us that in the past they had had
violence, truck drivers would have guns and'some
people got shot.
And he had some clippings on violence.
Yeah, he told us that he wouldn 't tolerate-that
the hospital wouldn't tolerate having a union push
it.
Louis Champagne, director of personnel , testified that
Tom Webb was employed by the hospital as one of its
vice presidents until January 30, when Webb was in-
volved in a reduction in force. Champagne testified that
Webb did not participate in any of the group talks that
began on February 9, 1981. Champagne testified that he
made up the schedule for the group meetings and he
knew that Tom Webb was not present at the hospital
and did not participate in any of those meetings.
Discussion
In view of the unrebutted evidence showing that Tom
Webb was not employed by Respondent after January
30, and evidence that the group talks did not start until
February 9, 1 find that'LoRita Marshall was mistaken in
her testimony that Tom Webb conducted a mid-Febru-
ary employee meeting that she attended.
Elliott River Tours, 246 NLRB 935, 943 (1979); Famous Conclusion
Amos Cookie Corp., 236 NLRB 1093 (1978).) In view of my credibility determination, I fmd that the
General Counsel failed to prove that Tom Webb en-
gaged in any activity violative of Section 8(a)(1).
BATON ROUGE HOSPITAL 203
F. Louis Champagne
Former employee Sharon Thompson testified that she
attended a meeting of approximately 10 employees on
February 12, 1981 , conducted by Champagne , who told
the employees:
The bargaining would come to us with a blank
sheet of paper. That the union would strike the hos-
pital . And they would hire people in our places.
And we would be put on a picket line. And if we
tried to cross the picket line that we 'd be hit over
the head and our homes would be burned down.
And they said we could lose our raises , our holi-
days and sick time, vacation . We probably wouldn't
get, none of this . They also said that Baton Rouge
General didn 't need a union and they didn't want a
union.
propaganda?" Kirkpatrick read the leaflet and stated,
"[I]t will never work." Thomas then said , "Well, there's
nothing , wrong with trying ." Kirkpatrick laughed and
walked on.
Kirkpatrick did not testify.
Discussion
Although Thomas ' testimony was unrebutted , I shall
credit her testimony as reflected above.
Conclusion
I see nothing coercive about Kirkpatrick 's conduct re-
lated by Thomas, and the General Counsel cited no au-
thority on which I can fmd his conduct violative. I find
that nothing occurred on that occasion that violates Sec-
tion 8(a)(1).
Louis Champagne testified that he made up the sched-
ule for the group talks and that the first of the group
talks was presented during the period February 9
through 14, 1981. The text of the first of the group talks
was received in evidence . Champagne testified that "the
blank-sheet-of-paper" was included in only the first of
the group talks. Champagne testified that he presented
approximately six-of the first of the group talks and that
the script was followed. Champagne stated that each of
the talks involved two individuals and that it was neces-
sary to read the text because each person had a certain
part to follow . During the presentation when the portion
regarding the blank sheet of paper was read, he, along
with the other speakers giving that particular talk, held
up a blank sheet of paper . Champagne admitted that a
question and answer period was held and that he re-
sponded to employee questions . Champagne denied
making a statement during his presentation of the first of
the group talks that "the union will strike the hospital."
Champagne testified that there was a statement in the
text indicating that ' the Union could strike , the hospital.
Champagne also denied that he ever made the statement
that employees would be hit over the head or that
houses would be burned down.
Discussion
Sharon Thompson 's testimony regarding a group meet-
ing addressed by Louis Champagne did not vary from
the subject and issues covered in the text for the first
series of meetings . In line with my reasoning mentioned
above, I shall credit Champagne 's testimony that he fol-
lowed the text of that speech.
Conclusion
As in situations noted above, I shall consider the ques-
tion of an 8 (a)(1) violation regarding Champagne's ad-
dress to employees in group meetings below.
G. Claude Kirkpatrick
Former employee Teresa Thomas testified that al-
though she was handbilling for the Union across from
the hospital parking lot, before Christmas 1980 , Kirkpat-
rick came by and asked , "[C]an I see some of you [sic]
H. Ernest Peters
Yolanda Scott testified that she had a conversation
with Peters on February 11, 1980 , in the 'big storeroom
at the hospital . Scott testified as follows:
And I ask Mr . Peters-Mr. Peters didn ' t say any-
thing-I ask him, you know , at the time, if he was
for the union . And was he going to be able to vote.
And he said he was not for the union . He didn't
know if he was going to be able to vote . And he
also stated that everything he had worked for he
had gotten on his own. And he said unions could
make it hard on you.
Ernest Peters did not testify.
Discussion
I shall credit Yolanda Scott's testimony regarding her
conversation with Ernest Peters that is unrebutted.
Conclusion
The complaint alleges that Ernest Peters threatened to
make work harder on an employee for supporting the
Union . The testimony of Yolanda Scott fails to establish
such a violation . I note especially significant the fact that
Scott initiated the conversation -about the Union with
Peters by asking Peters if he was for the Union. Peters'
position was such that neither he nor Scott knew wheth-
er he would be eligible to vote as an employee. There-
fore, even though Peters was stipulated to be a supervi-
sor he was a low-level supervisor . His response to Scott's
question was limited to the scope of her query . Although
the comment "unions could make it hard on'you," could
imply a threat , it seems more in, line with Peters response
to the Scott question (i.e., his feelings concerning the
effect it may have on him and not the possible effect on
an employee). I find that statement is innocuous.
I. Larry Betz
Warner Wilson testified that he discussed the Union
with Larry Betz in either July or August 1980. Wilson
testified that Betz said , "He hoped the Union would win
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and come in." Wilson replied, "Well, don't worry; you
know, they are going to do it. They are going to win."
Subsequently, in mid-February 1981, according to
Wilson, he had another conversation with Betz in the
laundry at the hospital where Betz told him, "Warner,
you better watch yourself." Wilson asked, "What do you
mean?" and Betz stated, "Well, they are out to get you-
they are out to get your job." Wilson replied that, "as
long as I do my eight hours and come to work there is
not too much they can do about it; and if they harass me
I know where to go." Betz stated, "Well, just watch
yourself" Wilson testified that there was no mention of
the Union during that February conversation.
Larry Betz denied that he ever told Warner Wilson
that Wilson had better watch himself because the hospi-
tal was out to get him because of his union activities.
Discussion
I was generally impressed with Warner Wilson's testi-
mony on both .direct and cross-examination. Wilson was
subjected to lengthy questioning and his response was
usually clear without indication of reservation. On two
occasions, Respondent's counsel cited apparent conflicts
between Wilson's testimony and his pretrial affidavit, but
in each of those instances Wilson's explanation appeared
candid. Regarding his second conversation with Betz in
consideration of whether Wilson fabricated that testimo-
ny, I note that Wilson testified that Betz did not mention
the Union-even though it was obvious that, had Betz
coupled his warning directly to Wilson's union activity,
the incident would have significantly benefited Wilson's
discrimination case. That fact tends to indicate that Wil-
son's testimony was not a fabrication.
Betz, on the other hand, did not impress me with his
demeanor. He appeared evasive and undecided especially
when testifying about his knowledge of Wilson's union
activity.
I find Wilson to be a credible witness and I credit his
version of the conversations with Betz.
Conclusion
In view of the close proximity to the union organizing
campaign; Wilson's' outspoken queries at the time of Al-
exander's, group meeting (see above under Alexander);
the warning from Alexander to Wilson that Wilson must
refrain from supporting the Union; and Wilson's Febru-
ary 20, 1981 layoff, it appears obvious, and I find, that
Betz was threatening Wilson with loss of job because of
Wilson's union activities. The complaint alleges that Betz
violated -Section 8(a)(1) by telling an employee that he
had better watch himself because of his union activities. I
find that'Wilson's testimony, which I credit, proves that
allegation:
J. Era McRae
Former employee Mary Ann Hickman testified that
she had a conversation with Era McRae on October 20,
1980, at the hospital. Hickman's testimony in that regard
was as follows:
October 20, 1980, I went to Era McRae to see
about changing my days to, attend a friend's funeral
in New Orleans. And we got that straight. And
after that she say: Now may I talk to you.
And she say: I know you heard about-I know
you heard about what is going on about the union. I
said: Wait a minute: Well, I've been out sick for a
while, about a month and a half. And I don't know
very much about what's going on.
She said: Well, let me tell you about it. She said:
If we had a union in here we wouldn't be able to
talk like we are doing now. You wouldn't be able to
talk about schedules. And then she said you might
be bargaining with your benefits.
She say: When they sit down to bargain they
don't mean that the General has to agree with what
they ask for. And after that she say you could lose
your benefits.
Era McRae testified that she did not recall calling
Mary Ann Hickman into her office about October 20,
1980, and she did not recall telling Hickman I know you
heard about what was going on about the Union. McRae
testified that she did not recall ever telling Hickman that
if we had a union in the hospital that we would not be
able to talk like we are doing now and that you would
not be able to talk about schedules or that they would be
bargaining about your benefits. She also indicated that
she did not recall ever telling Hickman that when they
sit down to bargain that they do not mean that the
"General" has to agree with what they ask for and that
the employees could lose their benefits.
Discussion
I was impressed with Hickman's- demeanor. In regard
to the alleged conversation with Era McRae, Hickman's
testimony evidenced a clear recollection. Although Re-
spondent -examined her pretrial affidavit, no conflicts
were evidenced between her testimony at hearing and
the affidavit regarding her conversation with McRae.
Moreover, several matters were mentioned by Hickman
that could have been, but were not, disputed by docu-
mentary evidence. For example, Hickman testified that
she went to McRae on October 20, 1980, to change "her
days to attend a friend's funeral in New Orleans." Also,
Hickman testified that she had been out sick before her
conversation with McRae,and, for that reason, she knew
little of the Union. Obviously, if Hickman was mistaken,
Respondent's records may have shown the mistakes. No
documents were offered showing that McRae did not ap-
prove Hickman changing "her days" around October 20,
nor was it shown that Hickman was not out sick before
October 20.
On the other hand, Era McRae's testimony regarding
the alleged conversation with Hickman was vague. In
fact, McRae admitted that she did not recall whether she
talked with Hickman on October 20. I find that admis-
sion significant because, as noted above, McRae had at-
tendance records available that may have prompted her
recollection. McRae did admit talking, to employees
about the Union in the fall and early winter of 1980.
BATON ROUGE HOSPITAL - 205
McRae testified that she had been instructed by Director
of Nursing Joyce Burkeen to tell employees how the
hospital felt about the Union . McRae also testified that
she had approximately 175 employees "under her" and
that she would not recognize Mary Ann Hickman if she
saw her.
Against that background , I find that Hickman 's testi-
mony should be credited.
Conclusion
The complaint alleges that McRae created an impres-
sion of surveillance of the employees ' union activities
and threatened an employee that employees would not
be allowed to discuss scheduling changes with supervi-
sors if the Union was successful in organizing the em-
ployees.
I find nothing in Hickman 's testimony that would sup-
port my finding that McRae created an impression of
surveillance . Her comment to Hickman was simply, "I
know you heard about what is going on about the
union. " The evidence proved that the organizing efforts
were oftentimes open, with little or no effort being made
to conceal those activities from supervision . Therefore, I
cannot find that McRae's comment had the tendency to
create, in Hickman's mind, the impression that Respond-
ent was engaged in efforts to unlawfully observe the em-
ployees' union activities.-
However, McRae's comments clearly imply that selec-
tion of the Union would remove the employees' privilege
of resolving scheduling problems with their supervisors.
Hickman was talking with McRae with an object of
doing just that, i.e., changing her schedule to attend a
friend 's funeral , and McRae's comments included the
threat to such actions would not continue if the Union
was selected . See J. P. Stevens & Co., 245 NLRB 198
(1979); Tipton Electric Co., 242 NLRB 202 (1979); Sturgis
Newport Business Farms v. NLRB, 563 F .2d 1252, 1256,
1257 (5th Cir . 1977); Two Guys Discount Dept. Stores, 242
NLRB 1139 (1979).
version and she also admitted reporting the incident to
higher supervision . Because Lewis obviously found the
incident an unpleasant one, I am convinced and find that
her recollection remained vivid . Therefore, I credit her
account of the incident.
Conclusion
I see nothing coercive in Eva Lewis ' comment to
Susan Quiett . It appears to constitute nothing more than
a normal reaction without accompanying threats or inter-
rogation. Therefore, I find , that no violation occurred on
this occasion.
L. David Frank Robertson
Former employee Jacqueline Jones testified that she
had a conversation with Robertson at the hospital during
January 1981 . Jones testified:
OK, he approached me, he said , Jackie, could I
speak with you for a moment? I said, yes. He said,
we supervisors are on a campaign at this time and
asking those how do we feel about the union.
I said, what do you mean how do I feel about the
union? He said, well, some unions are good, some
unions want you for your dues and some unions can
really help you . He started talking about this place
he once worked at which was called Payne and
Keller . And he said that at the time he was working
for them they were on strike. They tried to get the
union into that.' And I said , well, my father worked
at Payne and Keller but I never heard him speak of
a strike.
And that time he said, well, he may have gotten
hired during that strike time . And he said as far as
he's concern they never got what they wanted,
even though they had strikes.
Robertson denied that in January 1981 he went to
Jackie Jones and told her that "We supervisors are on a
campaign to find out how you feel about the union."
K. Eva Lewis
Susan Quiett testified that as she was handbilling for
the Union on December 7, 1980, across from the new
parking lot, several supervisors came out of the hospital
and one, Eva Lewis, approached and asked Quiett if she
knew what she was doing. Quiett replied , "Yes." Lewis
walked away , came back, and asked again if Quiett knew
what she , was doing . Quiett replied, "Yes," and Lewis
went into the hospital.
Housekeeping Supervisor Eva Lewis admitted that on
an occasion when she was leaving the hospital Susan
Quiett tried to give her a union leaflet. Lewis testified
that she told Quiett, "No , indeed ; I don't want this
Susan . And you don't know what you're doing ." Lewis
then went back into the hospital to report the incident to
her supervisor and as she walked away Quiett repeated
what Lewis said to her in a "sarcastic way."
Discussion
I found Eva Lewis to be a credible witness. She, admit-
ted the above incident in substantial accord with Quiett's
Discussion
Although David Robertson denied telling Jones that
supervisors were on a campaign to find out how employ-
ees felt about the Union , he admitted he was instructed
to discuss the union campaign with at least five employ-
ees. Robertson did not recall what those instructions in-
cluded . He testified he was , not instructed concerning
asking employees about their union sentiments.
In view of Robertson's admissions , and in the absence
of an explanation of what he actually told the employees
he contacted regarding . the union campaign , I credit
Jones' testimony . Her testimony appears logical in view
of Robertson 's admissions ` and I was impressed with her
demeanor.
Conclusion
The complaint alleges that Robertson unlawfully inter-
rogated an employee about her union sentiments.
Robertson's comments served two purposes, they
alerted Jones that supervisors were systematically inves-
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tigating employees' union sentiments and they served to
question Jones concerning her feelings about the Union.
When considered against the background of other 8(a)(1)
activity both at the time of the Robertson-Jones conver-
sation (January 1981) and before, I find Robertson's com-
ments constitute illegal interrogation as alleged.
M. Loren Beard
Mary Ann Hickman testified she attended a meeting
conducted by Beard and a gentleman Hickman did not
know around mid-January in a small conference room at
the hospital. On direct examination , Hickman testified:
Mostly in that meeting Ms. Beard was doing
most of the talking. And she told us that the union
could call us out on strike. And they could get
someone off the street to come and to work. You
wouldn't be drawing a paycheck; you wouldn't
be-you wouldn't have any benefits. And you
wouldn't be able to draw unemployment.
And after the strike was over that didn't mean
that they had to call us back to work. They wanted
us to-they wanted us to vote, but they wanted us
to vote no because Baton Rouge General didn't
need the union.
And then she told-then she told us that when
they sit down to bargain they start off with a blank
sheet of paper and that didn't mean that the General
had to agree with them-what the union asked for.
And said that we could, when they sit down to bar-
gain, we could lose-we would lose our benefits
such as sick leave, vacation, so on.
And then she told us about a hospital in Lake
Charles that-that had' got rid of a union. And she
told us about-they had clippings about other
places-about strikes.
And then she told us that all the union wanted
was our money. That we'd pay like $10.00 a month
union dues-from 100 to 120 thousand a year in
dues. And that was mainly about all that conversa-
tion.
On cross-examination, Hickman admitted testifying in
her pretrial affidavit to' the Regional Office that Beard
told the employees in the meeting:
Things might go up or they might go down. You
might be bargaining with your benefits. They might
promise you this or that; that didn't mean that the
General is going to give it to us. And when they sit
down to bargain with we might lose our benefits.
Former employee Lily Cato testified that she attended
a meeting conducted by Beard in a conference room
about January 22, 1981, along with about 15 employees.
Her testimony was as follows:
Well, mostly she was talking about the union-if
the union came in-if we got a union into the hospi-
tal it would go but on strikes. And these strikes
would cause us to lose our jobs.
And, you know, and if, you know, we didn't lose
our jobs, and if we did have a union that we would
have to pay union dues . And also, you know, that
all the benefits that the hospital had given us that,
you know, we would lose that and would start
from, you know, start from the beginning.
Q. What would you have to start over from the
beginning with?
A. Well, all the benefits that the hospital had
given us, you know, that we' would, you know,
have lost all our benefits that we already had and
then would start all over.
Q. Was the subject of bargaining brought up in
the meeting?
A. Bargaining?
Q. Bargaining between the company and the
union . Was that discussed at the meeting?
A. I think this is what she was really talking
about, you know, because like when she was saying
that if the union did get into the hospital then any-
thing that, you 'know, that we would ask for, you
know, the hospital would say no.
And lots of times could have lost your job.
Q. All right. Do you recall the subject of strikes
being discussed at the meeting?
A. Really, you know, really, I mean, I didn't-
you know, really I didn't-really, I just was in the
meeting, you know, to see what was the discussion
about. But, like I said, in the beginning it was basi-
cally, mostly what she talked about, strikes.
Q. Uh-huh. -
A. You know, what affect strikes would mean to
us.
On cross-examination, Cato admitted that Loren Beard
made the following statement during the above confer-
ence:
Would you like to see a copy of the union contract
in hospital if the union should win an election here?
Let me show it to you-and she would hold up a
blank piece of paper-there's nothing on it. If the
union should win the election here, and we don't
believe that's going to happen, but just assume for a
moment that it did, the hospital would be obligated
to bargain in good faith with the union. That is all.
We would do that bargaining with the intention of
reaching an agreement.
Although Cato admitted Loren Beard made the above
statement, she denied that Beard held up a blank sheet of
paper.
Loren Beard admitted giving group talks to employees
at the hospital. However, she denied that any of those
talks occurred in January 1981. Beard, along with other
witnesses for Respondent, testified that the talks began in
February 1981. Beard admitted that she discussed what
could happen to benefits during negotiations. She testi-
fied that she followed the text of the speech. She testified
that she described that bargaining would start from a
blank piece of paper-the hospital would bargain in
good faith but the bargaining would start from zero.
Beard stated that she conducted a question-and-answer
BATON ROUGE HOSPITAL 207
session during her group talks and, of course, the an-
swers were not prepared beforehand.
On cross-examination, Beard testified that she told the
employees that anything the employees got would be
bargained for-they could either get more or less than
they had at the time. She denied that she told the em-
ployees that there would probably be strikes if the Union
came in. Instead, according to Beard, she told the em-
ployees, "there was a possibility" of strikes. She also ad-
mitted telling the employees that there was a possibility
of physical harm and a possibility that they could be re-
placed if there was an economic strike.
Discussion
Again, as in many cases discussed above, I note the at-
tending employees' testimony is in substantial accord
with the written text of the first of Respondent's series of
speeches. The testimony of Mary Ann Hickman appears
in line with the speeches concerning both the issues cov-
ered and the actual language used (i.e., Hickman recalls
the speech included references to what could happen al-
though Cato recalled predictions that certain disadvan-
tages would occur).
I find, in line with my previously stated reasons, that
the speech was given by Beard in accord with the writ-
ten text.
Conclusion
See below regarding findings on the speeches.
Trosclair's recollection was correct because the alleged
comments by Caillouet were specifically directed toward
learning about employees' activities. With that back-
ground, I am convinced and find that Trosclair's above-
mentioned testimony should be credited.
Conclusion
The complaint alleges that Caillouet's comments con-
stituted illegal interrogation.
It is noteworthy that Caillouet's conversation occurred
around the same time that Supervisor David Robertson
advised employee Jacqueline Jones that the supervisors
were on a campaign to determine how Respondent's em-
ployees felt about the Union. Additionally, along the
same line, Caillouet admitted attending supervisory meet-
ings where the estimated union strength in the various
departments was discussed. Those facts, which I also
considered in making my credibility findings, would
have the tendency to support a finding that interroga-
tions have a coercive affect. In the case of Caillouet's
conversation- with Trosclair, Trosclair was not only
questioned but she was also advised to inform the super-
visor in charge of anything she learned about the union
campaign. That comment places the employee in a posi-
tion of either reporting her knowledge or running the
risk of Caillouet discovering that the employee was hold-
ing out important information. I am convinced and find
that Caillouet's comments constituted illegal interroga-
tion.
N. Gayle Caillouet
Former employee Shirley Trosclair testified to a con-
versation with Gayle Caillouet around January 1981 at
the hospital. Trosclair stated Salains, the assistant super-
visor, was also present. Trosclair testified she was asked
if she had heard of any union organizing in the hospital.
Trosclair testified she replied no and she was then told,
"Well, if you hear anything come and contact me in
charge--Ms. Caillouet." Trosclair said that Caillouet told
her "Don't talk to anyone outside, just come to them and
talk."
Gayle Caillouet denied asking Shirley Trosclair if she
had ever heard of any union organizing at the hospital
and that she told Trosclair that if she heard anything to
contact her. However, Caillouet admitted that she tried
to talk to all her employees about the Union and that she
told her employees that she wanted to tell them facts
about the Union and this Union in particular. Caillouet
admitted attending meetings with supervisors during
which the estimated strength of various departments re-
garding employees' union support was discussed and it
was her recollection that the strongest departments for
the Union included housekeeping and nursing services.
Discussion
Although Caillouet denied the specific allegations of
Shirley Trosclair, Caillouet admitted she tried to talk to
all her employees about the Union. Moreover, Caillouet
admitted attending supervisory meetings where the
Union's strength in various departments was discussed.
Those admissions lend strength to the likelihood that
0. Nellie Guilbeau
Former employee Ruth Stevenson testified' that she
was involved in a conversation with Guilbeau dining the
first week of- February,1981. Stevenson placed that con-
versation in the coffeeshop on the fifth floor of the hos-
pital. She said other employees including Elizabeth Day,
Fanny Griffin, Georgia Payne, and Nancy, the secretary,
were also present. Stevenson testified as follows:
Ms. Guilbeau said she would like to tell us about
the union. She said the union was bad and she said
in her hometown one year a union went on strike
and the people didn't have food to eat. Some lost
their cars and home.
And she said if we had a union we wouldn't be
able to work overtime, adjust the schedulle, or to
come to her with our problems or complaints.
Q. Was the topic of jobs mentioned in the con-
versation?
A. Yeah, she said that we would lose our jobs
while the union was out on strike. And we'd be re-
placed by, you know, other employees.
On cross-examination, Stevenson admitted that she tes-
tified in her pretrial affidavit as follows:
Guilbeau said she would like to tell us how she
felt about the union. She said that unions was bad.
That in her hometown one year the union called a
strike and the people didn't have food to eat. Some
lost their' homes and their cars. Guilbeau said that
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
she-Guilbeau said that if we went on strike we
wasn't guaranteed our jobs once the strike was over
and we would be replaced.
Guilbeau said , for instance , if we got the union
we would be-wouldn 't be able to work overtime,
adjust the schedule, or come to her with our prob-
lems or complaints.
Nellie Guilbeau was called by Respondent and her tes-
timony regarding the allegations of Ruth Stevenson was
as follows:
Q. Did you ever tell this group of employees,
and more specifically Ruth Stevenson , that the
union was bad?
A. No.
Q. Did you ever tell these employees, including
Ruth Stevenson, that if we have a union in the hos-
pital that we wouldn 't be able to work overtime,
adjust schedules, or to come to you with their prob-
lems and complaints?
A. If I did speak to them on this issue, which I'm
sure I probably did, it's my understanding on all
three of those - issues that if the union came into the
hospital their time schedules, their grievances, their
overtime would be negotiated between management
personnel and our hospital and a union representa-
tive . And that was my opinion.
Q. Is that what you told those employees? Or is
that what you told employees in general?
A. In general . That's my understanding. And
when this would come and I was asked that's what
I would say.
Discussion
Although Guilbeau denied telling Stevenson that the
Union was bad, she admitted advising Stevenson and
other employees that unionization could affect their ben-
efits. Moreover, Guilbeau did not deny Stevenson' s alle-
gation that Guilbeau threatened her with loss of jobs
while the Union struck. I shall credit Stevenson's version
of the Guilbeau conversation to the extent of her pretrial
affidavit testimony that appeared more logical than her
testimony at trial.
Conclusion
The complaint alleges that Guilbeau threatened em-
ployees that should the Union be successful overtime
would be eliminated, work schedules would not be ad-
justed, and employees would not be allowed to discuss
complaints and problems with supervisors.
The credited evidence (i.e., Stevenson 's pretrial affida-
vit testimony that was corroborated by her at the hear-
ing) shows that Guilbeau told approximately five em-
ployees during early February 1981 that "[i]f [the em-
ployees] got the union [the employees] would be-
wouldn 't be able to work overtime , adjust the schedule
or come to her with [employee] problems or com-
plaints."
Again I note that these comments, like those from
other supervisors , occurred around the same time that
Respondent was engaged in other 8(a)(1) conduct. The
credited evidence clearly reveals that Guilbeau expressed
the threats alleged by the General Counsel and I so find.
P. Joann Lappin
Former employee Minnie Coleman testified that she
was called into Lappin's office in late January or early
February 1981. Coleman testified that in addition to
Lappin , Lappin's secretary and the assistant supervisor
were present for portions of the conversation . Coleman
testified her conversation with Lappin was as follows:
She proceeded to tell me that , Minnie, you know
that the union is coming into the hospital. And I
said, no I don't know. The only thing I know is
what you all tell me and the pamphlets I receive in
the mail.
And she proceeded to say that the union was not
good for me and I wasn 't a person for the union.
And I said-so after that she told me that we
would be-the hospital would run with us or with-
out us. And I said that I didn 't know anything
about that.
So she proceeded to tell me that they would
work night and day to keep the hospital going if we
go out on a picket line or anything . And they
would hire new people to replace us. And we
would be-and then she proceeded to tell me that
some of us would be laid off because of the union.
And I asked her-then she said, how do you feel
about the union? And so I proceeded to tell her, I
don't know how I feel about the union because I
am only hearing one side of the story , that's what
you all telling me.
And I said, well, why don 't you all let the union
come in and have a debate and let us hear the
union 's side of the story; and then we can decide.
And then she proceeded to tell me that they
wasn't going to let the union come to the hospital
but we got out and found time to seek the union, so
get out and find time to see what it was all , about.
Then she proceeded to tell me to go ahead on
back to work.
Joann Lappin denied that she ever had a one-on-one
conversation with Minnie Coleman regarding the Union.
However, Lappin admitted that she had conversations
with nurses aides, and especially with Minnie Coleman,
when other nurses aides were present . Lappin admitted
talking to the employees regarding the Union and telling
the employees that the hospital would work night and
day to keep the hospital going if the employees went out
on the picket line. Lappin denied telling Coleman or any
other nurses aides that the Union was not good-was not
good for her and that she was not the person for the
Union . Lappin denied threatening Coleman that she
would be laid off because of the Union or questioning
Coleman on how she felt about the Union . Lappin testi-
fied that Coleman never suggested to her that the Union
be permitted to come and debate their side of the story.
Lappin denied ever telling any employee that ,' if the
Union successfully organized the hospital, union mem-
bership would be mandatory.
BATON ROUGE HOSPITAL 209
Discussion
I was impressed with Joann Lappin's demeanor. More-
over, she appeared to testify candidly on both cross and
direct. She admitted discussing the Union with Minnie
Coleman although she denied it was a one-on-one con-
versation as related by Coleman and she denied some of
the contentions by Coleman. I was also impressed with
the openness with which Lappin responded to the Gen-
eral Counsel's questions about supervisory meetings re-
garding the Union. I shall credit Lappin's version of her
conversation with Coleman.
Discussion
Despite his denial, Robert Mancell's testimony regard-
ing the contents of his conversations reveals that he did
interrogate employees concerning their "opinion" or
"view point on the union." In view of that admission and
my observation of Bertha Smith's demeanor, I shall
credit her version of the conversation. Even though
Smith was discharged by Respondent for alleged miscon-
duct, she appeared to answer Respondent's questions
about her discharge, as well as questions about her con-
versation with Mancell, candidly.
Conclusion
I find nothing in the credited version of the Lappin-
Colem°m conversation that supports the General Coun-
sel's allegations of impression of surveillance, threat of
layoff, interrogation, and a threat that union membership
would be mandatory should the Union win. I recom-
mend dismissal of the allegations relating to Joann
Lappin.
Q. Robert Mancell
Former employee Bertha Smith testified that she was
approached by Robert Mancell in one of the X-ray
rooms on December 10, 1980.
He asked me had I heard whether they was trying
to organize a union at the hospital. And he asked
me how did I feel toward the union. I told him a
union wouldn't be such a bad idea.
And he went on to say that his son participated in a
union and he said if they-if they get a union and
they go out on strike that I might not get my job
back.
, Robert Mancell denied ever having a conversation
limited to him and Bertha Smith during which the Union
was discussed. However, Mancell admitted discussing
the Union with a group of employees that included
Bertha Smith. Mancell testified that he did not direct any
question directly to Smith. On cross-examination, Man-
cell testified regarding his union conversations with the
employees as follows:
I would say, what is' your view point on the
union. What is your opinion? That was at this par-
ticular meeting-the one and only-that I had with
them. And I just wanted to hear what they had to
say. Not to ask whether they were going to join or
not, just if they had an opinion. Everybody is sup-
pose to have one.
Mancell also admitted approaching two other employ-
ees, Will Chapman and Thomas Jackson, and saying basi-
cally the same thing as above to those employees. Man-
cell denied he ever told the employees that if the Union
came in the employees would go on strike. Instead, he
testified that he told the employees that "[t]hey might
have a strike."
Conclusion
In line with my findings above, and in consideration of
the credited testimony of Bertha Smith, and evidence of
other violative conduct of Respondent during that same
period of time, I find that Robert Mancell illegally inter-
rogated employee Smith about her and other employees
union activities.
R. Edward Silvey
Former employee Willie Freeman testified that he had
attended an employee meeting at the hospital in the early
part of February 1981, conducted by Silvey. Freeman
testified:
At this meeting Mr. Silvey said that the union
can cause a lot of trouble. The union causes strikes
and violence. We would be out without any pay.
The union would set up picket lines and others
would come across the line; this would be bad.
He also added that we would be out without pay.
All we would have would be bills. And he said
have the union sign a statement as to what they can
guarantee you. He held up a blank sheet of paper
and said this is where you start with the union.
He said the union can't force Baton Rouge Gen-
eral to do anything. Such as your raises ,and so
forth.
Then he had some newspaper clippings also he
would like for us to read. I didn't read any of them.
This meeting lasted about an hour, close to that.
He said that-that Baton Rouge General would
hire other people and if they could come into the
hospital it would cause trouble.
And strikes would, you know, have us out with
no pay.
Edward Silvey admitted that he was one' of the speak-
ers during the group meetings to employees regarding
union organization . Silvey was asked if he told the em-
ployees that if the Union was successful that bargaining
would commence from scratch. He responded that he
did not believe he said it like that but that he held up a
piece of paper and said this is a blank piece of paper and
that we would bargain in good faith and that benefits or
wages could go up or down or they could remain the
same.
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Discussion
Willie Freeman 's testimony appears to follow the gen-
eral scope of issues covered in the written text . As in the
situations note& earlier , I am convinced, and find, that
Silvey's comments during this meeing were in accord
with the written text.
Conclusion
I shall consider Silvey's presentation, along with ad-
dresses by other supervisors below.
S. The Group Meetings
1. The first series of group meetings
The record evidence reveals that the unfair labor prac-
tice, contentions regarding the group meetings when
speakers addressed groups of employees-(other than
those indicated above where prepared texts were not
used)-involved the first of Respondent's several speech-
es. That speech was used in meetings beginning on Feb-
ruary 9, 1981.
As indicated above, I have credited evidence showing
that the prepared text of that first series of meetings,
which was received in evidence, was read to employees
at the group meetings. A reading of the text reveals a
clever antiunion speech showing that Respondent was
strongly opposed to the union efforts of its employees. In
fact,' the speech clearly states that was Respondent's po-
sition.
However, no evidence was offered to show that any
of the information revealed in the speech was untrue.
The speech was carefully constructed to show em-
p1oyees'the' dangers that may result from unionization.
After identifying the object of the talk, the text states
Respondent's position as being "100 percent against
having a union in the Hospital." The text then summa-
rizes the procedure for an NLRB election.
Next 'the text deals with the alleged union promises
and counters with Respondent's version of what will
occur if the Union wins the election, by asking, "Will
you like to see a copy of the union contract in the Hos-
pital if the union should win an election here?" The
speaker holds up a blank sheet of paper, which is shortly
followed by the following, inter alia:
If the union should win an election here-and we
don't believe that is going to happen, but just
assume for a moment that it did-the hospital
would be obligated to bargain in good faith with
the union . That is all. We would do that bargaining
with an intention of reaching an agreement. You
should know, though, that there would be no auto-
matic wage increases, no automatic benefits im-
provements , no automatic policies, no automatic any-
thing else.
We would start right from this blank sheet of paper,
and'not one word, not one sentence, not one paragraph
wohuld go on that sheet of paper unless the hospital
and the union agreed that it should be on there.
Bargaining begins at the zero point, and everything
which you currently have-your paid holidays,
your wages, your vacations, your hospitalization in-
surance, your retirement plan-everything would go
on the bargaining table and be subject to the give
and take of bargaining.
Under the law, the only thing that the Hospital
would be required to do should the union win the
election, is to sit down and bargain in good faith
over your pay and your jobs. We would do that. A
union win, however, would mean an automatic in-
crease in nothing! Here is the proof of what I am
saying (hold up copy of Government leaflet). Let
me read the section which is circled in red. (You
read indicated phrase.) That's the law and we
would obey the law.
Before you think about voting for the union, you
need to know how bargaining works. You should un-
derstand that bargaining can be cold-blooded and im-
personal. Nothing is automatic about bargaining be-
tween a hospital and a union. No one knows what
will happen or what will come out of bargaining.
The union has made a lot of promises already and
will probably be making more about their getting
you more pay, more benefits, and that you will not
have to work so hard. That's the name of the game
with unions-promises. Under the law, there is ab-
solutely no limit on how extravagant promises can
be-the sky is the limit!
The cases have customarily found that threats to bar-
gain from scratch, or from a blank sheet of paper, do not
violate Section 8(a)(1), when the context of the statement
shows the comments relate to the give and take of bar-
gaining and when it is revealed that benefits may go up
or down during negotiations. I find that to be the case
here. General Electric 'Co., 246 NLRB 1103, 1107 (1979);
Delchamps, Inc., 244 NLRB 366, 372 (1979); Rapid Mfg.
Co., 239 NLRB 465, 471, 472 (1978).
Following the above, the speakers cited cases indicat-
ing that an employer may inform its employees that bar-
gaining would have to begin at the zero point and that
bargaining may actually result in reduced benefits.
Subsequently, the speaker asked what may the Union
do if its demands are rejected during negotiations and he
responded that the "[s]trike is the only weapon." The
speaker then points out, inter alia, that strikers do not get
paid; that, in Louisiana, strikers do not get unemploy-
ment compensation; and that strikers could lose their
jobs because Respondent has the right to replace strikers
with new employees.
In considering this portion, I noticed that the speaker
did not specifically contend that strikes were inevitable
when a union is selected. Rather, the text indicates, inter
alia:
What would happen if we said NO to the union's
demands? What could the union'do? What, would the
union do? What could the union do to try to force
us to give in to their demands. There's only one
thing that the union could do to try to force us to
give in to their demands-and that would be call
you out on strike. The strike is the only weapon that
BATON ROUGE HOSPITAL 211
the union has to try to force the Hospital into
giving in to its demands-and you would be the
union's ammunition.
The above statement may constitute an exaggeration.
Although the power to strike, or the strike itself, may be
one of the Union's strongest weapons, it is not the "only
weapon" as indicated in the text. However, I find that
statement does not constitute misrepresentation in view
of the strike being the most likely recognized weapon
available to labor organizations. Where, as here, the
speech does not stress that a strike is inevitable, no viola-
tion is found (see Tipton Electric Co., 242 NLRB 202
(1979)).
Moreover, an employer does not violate the Act by
telling employees they ' will not receive pay during a
strike and that it has the right to replace economic strik-
ers.7 (See discussion in Puritech Industries, 246 NLRB
618, 622 (1979).)
The speech then deals with the examples of strikers
losing out-examples of strikers being replaced at work
during a strike.
The text then addresses itself to violence in strikes
with the statement, "Unfortunately, along with strikes
very often comes violence." This is followed by specific
examples of death and serious injury occurring during
strikes.
Subsequently, the text advised the employees that it is
difficult to remove a union once employees select one,
but subsequently decide they made a mistake.
The speech then closes with the following:
Mir. Kirkpatrick and Mr. Sawyer asked that you dis-
cuss this important matter among yourselves and
with your supervisors. If any union pushers ask you
to vote for the union, demand a written, signed, nota-
rized guarantee that you won't lose your job-you
won't be involved in a strike or in strike violence.
Get it in writing-demand proof. You shouldn't take
a chance on the outside union organizer and their
strike-happy union. They have members out of
work now and they are simply looking for some-
one-you-to make up the money which those out
of work people are no longer paying. Make no mis-
takes-this whole thing is nothing but a big money
deal for the union and the union's bosses. They plan
on taking over and you are right to figure a hun-
dred thousand dollars from you, each and every year,
if they can get in here and can get their hands in
your pockets.
Well, that is all we have time to cover today. But-
if you have any questions or comments about what
was covered, feel free to ask those questions or
voice those comments. We hope we have cleared
up some of the mysteries surrounding what the
union can and cannot do. If anything later, you are
unsure of something we have covered or that the
union has claimed-we encourage you to ask your
7 The text shows from its contexts that it was addressing economic
strikes-the context indicates the speaker is referring to a strike resulting
from rejection of the union negotiating demands
supervisor or come by and see another member of
management . We want to be sure you get all the
truthful answers to your questions before this election.
Are there any questions?
I find the above speech troublesome. It comes close to
speeches found illegal by the Board and courts. Never-
theless, I am constrained to find that no violations were
proved. The speeches do not advise the employees of the
inevitable consequences of unionization. It does, with a
heavy hand, alert the employees to some of the most bla-
tant examples of what has occurred during other union
campaigns. However, even in consideration of the entire
text against the background of unfair labor practices
found herein, I am unable to find anything that ventures
into the area of illegal threats or coercion. Reliable Mfg.
Corp., 240 NLRB 90, 100 (1979).
2. Improved benefits
The General Counsel alleges that Respondent violated
Section 8(a)(1) by changing from a retirement system
that, among other things, required employee contribu-
tions to one requiring no employee contributions, and by
changing its policy regarding employee parking in its
garage to permit the employees to park free during the
union organizing campaign.
There appears to be no dispute regarding the facts. Re-
spondent learned of the union campaign on or before
November 24, 1980, when the Union wrote Respondent
advising it of the campaign and naming certain employ-
ees on the organizing committee.
By notice to all employees dated December 2, 1980,
Respondent advised that effective with the pay period
starting December 14 there would no longer be a charge
to employees for parking in the parking garage.
By notice to all employees dated January 12, 1981, Re-
spondent advised that "[e]ffective January 1, 1981, the
Board of Trustees has approved a retirement program
which is fully funded by the Hospital."
On January 15, 1981, the Union filed its representation
petition.
Employer's are generally found to violate Section
8(a)(1) by announcing improved benefits during an elec-
tion campaign unless the evidence reveals that the em-
ployer would have announced and granted those im-
proved benefits even in the absence of the union. Tek-
form Products Co., 229 NLRB 733, 742, 743 (1977).
3. The pension plan
Prior to January 1, 1970, Respondent, along with two
other hospitals in Louisiana, was a Baptist institution and
its retirement plan was administered by the Southern
Baptist Convention. Even though Respondent ceased
being a Baptist institution in 1970, the Southern Baptist
Convention continued to administer its retirement plan.
The Employment Retirement Security Act of 1974
(ERISA) granted certain exemptions to churches. Due to
Respondent's unique position as a former institution of
the Baptist Church, with its retirement plan currently ad-
ministered by that church's governing, body, questions,
arose as to its entitlement to those exemptions.
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
By an August 9, 1978 letter from the Annuity Board
of the Southern Baptist Convention's (Annuity Board)
general counsel, Respondent was notified that the Annu-
ity Board was seeking clarification from Internal Reve-
nue Service and the Department of Labor, concerning its
entitlement under the Internal Revenue code as a tax
shelter annuity, program . That letter advised that similar
church plans had obtained favorable rulings from the
government agencies.
By its letter to the Southern Baptist Annuity Board
dated February 27, 1979, Respondent advised that it had
learned that the two other Louisiana hospitals that were
formerly Baptist institutions had withdrawn from the
Annuity Board. The letter asked for an opinion concern-
ing whether Respondent should also withdraw in light of
decisions and problems regarding ERISA. The Annuity
Board responded on March 8, 1979, by recommending
that Respondent investigate withdrawal from the Annu-
ity Board and advising that the ERISA questions had not
been resolved.
Minutes from committees under Respondent's board of
trustees and letters to outside agencies, that were re-
ceived in evidence, show further study, investigation,
and consideration was given to the possible withdrawal
of, Respondent's employees' retirement plan from the An-
nuity Board during the period May 4, 1979, through De-
cember 22, 1980.
The unrebutted evidence indicated that during the
above-mentioned period of time, more and more atten-
tion was given to withdrawal from the Southern Baptist
Annuity Board due to the -ERISA problems and due to
the low interest rate received from the Annuity Board.
Louis Champagne testified that Respondent was noti-
fied of an amendment to ERISA effective September 26,
1980. That amendment clarified Respondent' s status.
Whereas before the September 26, 1980 amendment, Re-
spondent felt it may possibly "grandfather" under the
ERISA exemptions as a former church institution, that
amendment indicated that continued church exemptions
were no longer possible for Respondent.
Against that background, the personnel committee of
Respondent's board of trustees was notified on Decem-
ber 22, 1980, that retirement moneys would be placed
with a private insurance company. By letter dated Janu-
ary 2, 1981, Respondent notified the Annuity Board of
its decision effective January 1, 1981, to change its retire-
ment plan and place the funds with Union Mutual Insur-
ance Company. Union Mutual submitted its plan to Re-
spondent on July 10, 1980.
The 'above evidence conclusively proves that initial
events necessitating Respondent's change in the employ-
ees' pension plan predated the union organizing cam-
paign -by severalyears. Although some of the consequent
events occurred after the Union first appeared, some of
those material events, such as the September 26, 1980
ERISA amendment, were clearly beyond Respondent's
control: Moreover, the actual plan that was adopted by
Respondent was submitted on July 10, 1980. There was
no showing that Respondent was aware of its employees'
union campaign when it first considered Union Mutual's
proposal.
Moreover, the timing of Respondent's change appears
logical in view of the above evidence. The funds held by
the Southern Baptist Annuity Board exceeded $2 million.
In view of the facts establishing that Respondent re-
ceived Union Mutual's proposal in July 1980, and the
ERISA amendments becoming effective September 26,
1980, I do not find that Respondent unduly delayed im-
plementation to coincide with the union campaign. The
January 1, 1981 effectuation of the plan evidences
prompt and reasonable action under the circumstances
regardless of the timing of the union campaign. The evi-
dence is convincing, and I find, that Respondent would
have implemented the new plan on January 1, 1981, in
the absence of the union organizing campaign. There-
fore, I find that the General Counsel has failed to prove
a violation by Respondent in implementing the new pen-
sion plan in January 1981.
4. Free parking
Respondent opened its parking garage in August 1977.
By notice dated August 5, 1977, employees were notified
of parking privileges in the garage with fees at the rate
of $6.92 per pay period.
Through its news to employees publication, "The
Vine," dated May 31, 1978, Respondent notified its em-
ployees of a reduction in parking fees to ' $4.62 per pay
period.
Louis Champagne testified without rebuttal that by
1980 Respondent was providing free parking in the
garage as an encouragement to the evening and night-
shift employees to park in the garage as a security meas-
ure.
According to Respondent's comptroller, Lynn
Lanoux, he learned that medicare was changing their at-
titude regarding accountability of reimbursable parking
cost. Funds were available to reimburse hospitals for
parking of staff and employees as opposed to visitors.
The attitude change affected whether the hospital could
simply allot certain areas to staff and employees parking
as opposed to the old method of accounting for the park-
ing on an individual-by-individual basis . Against that
background, Lanoux was directed in the summer of 1980
to investigate whether it was beneficial to Respondent to
continue the system of charging certain employees park-
ing fees or changing to a system that would provide for
medicare reimbursement-(allowable as cost attributable
to that percentage of patient care that was subject to
medicare reimbursement)-for all or a portion of the
parking cost.
By memo to Respondent's president dated November
28, 1980, Lanoux advised that his study showed the park-
ing garage could receive pro rata medicare reimburse-
ment for staff employee parking of approximately
$54,000 per year as opposed to fees currently collected
from employees of $50,000 per year. Lanoux recom-
mended that Respondent discard the procedure of charg-
ing fees to employees and seek reimbursement from med-
icare.
Subsequently, Lanoux' recommendation was approved
and the employees were notified of the change on De-
cember 2, 1980.
BATON ROUGE HOSPITAL 213
Again, as in the case of the pension plan, I note that
Respondent's actions that ultimately resulted in 'free
parking for the day-shift employees commenced before it
had knowledge of the union campaign. The employees
other than day shift received free parking in'the garage
and Lanoux's study, which resulted in free parking for
the day shift, all occurred before the union campaign.
The evidence reveals that Respondent acted properly
and in a logical fashion following Lanoux's November
28, 1980 recommendation. I find, under the circum-
stances, that the facts demonstrate that the change in
parking would have resulted absent the employees' union
activities. Therefore, I shall recommend dismissal of the
allegation.
II. THE 8 ( A)(3) ALLEGATIONS,
A. The Layoffs
The complaint alleges that Respondent terminated or
laid off employees Charles Hamilton , Ethyl Booker, Jac-
queline Jones, Mae Ella LaCour, Susan Quiett , Ruth Ste-
venson, Teresa Thomas , Lucille Wilson, and Warner
Wilson because of their protected activities.
The evidence conclusively proves, and the General
Counsel concedes in' its brief, that Respondent's decision
to lay off a substantial segment of its work force during
February 1981 was motivated by economic . consider-
ations. Due to a continuing decline in its patient census
and its continuing inability to recruit and retain a suffi-
cient number of registered nurses to support its employee
complement, Respondent decided to lay off some 53 em-
ployees from all departments including 4 employees in
housekeeping, 1 leaderman ' in the laundry, and 20 em-
ployees from nursing services.
The evidence revealed that an acceptable level of
staff-to-patient census was in the range of 3 . 3 to 3.6 em-
ployees per patient . In December 1980 , Respondent was
operating at the level of 4.5 employees per patient. Al-
though some reduction in the number of employees had
been achieved through normal attrition , it became appar-
ent during early 1981 that a layoff ,would be necessary in
order to reach an acceptable level of employees.
In view of' the unrebutted evidence and the General
Counsel's concession that the overall decision was not
discriminatorily motivated , I find that Respondent's
overall layoff action was not illegal.'
The General Counsel does contend and I shall now
consider, whether Respondent engaged in illegal conduct
by selecting for layoff, among others , the nine alleged
discriminatees.
1.. The nurses aides
The General Counsel contends that of all the nurses
aides selected for layoff, the following would not have
been selected but for, their union activity: (1) Ethyl
Booker, (2) Mae Ella LaCour, (3) Ruth Stevenson, (4)
Teresa Thomas, and (5) Lucille Wilson.
Vice President Edward Silvey testified regarding the
need to reduce the number of nurses aides. In the spring
of 1980., Silvey, in consultation with Tom Alexander, de-
cided a staff reduction was necessary. It was decided
that the reduction, which would be attempted by attri-
tion, should involve 60 nurses aides. However, by late
1980, 108 nurses aides were still employed. The reduc-
tion by attrition had been only partly successful. -Forty
of the needed 60 reductions had occurred through attri-
tion. In December 1980, Silvey, along with Alexander,
decided it would be necessary to lay off 20 employees in
nursing services, 18 nurses aides, and 2 operating room
aides.
Silvey advised the director of nursing services to
select the employees for layoff based on job perform-
ance.
Joyce Burkeen was director of nursing, services at ma-
terial times. Burkeen testified that on being advised by
Silvey to select employees, for layoff, she discussed the
aides' job performance with their supervisors and re-
viewed all the, employees' personnel records. Through
that initial process, approximately 40 employees were
found to be outside the area of consideration for layoffs
because of their good performance. Those 40 were there-
upon eliminated from the selection process.
Of the remaining , employees, Burkeen decided on a
process of evaluating job performance on the basis of the
employees availability at work. She elected to select
those employees with the poorest absentee-tardy records.
Each employee file was examined and a list established
on the basis of the employees with the most absences and
tardies over the past 1-year period. However, according
to Burkeen, 3 of the top 20 were passed over and not se-
lected for layoff.
Those three included one employee that was out sick
because she had contacted hepatitis at work in the hospi-
tal and was drawing workmen's compensation benefits.
Burkeen testified that she was advised that state law pro-
hibited discharge of an employee because of illness that
resulted in a workmen's compensation award.
Another of the three was a nursing student working as
a nurses aide. Her absences were frequent because of
class conflicts. Burkeen testified that arrangement was
made when the employee was hired and the hospital was
in hope of retaining the employee on her graduation as a
registered nurse-a critical job that the hospital had trou-
ble manning and that contributed to the need to lay off
nurses aides. Therefore, Burkeen elected to excuse that
employee's absences for purposes of layoff consideration.
The third employee passed over for layoff was an em-
ployee that frequently volunteered to work back-to-back
shifts and received a number of tardies when she took
too long returning after working consecutive shifts-i.e.,
16 hours. Burkeen excused that particular type of tardi-
ness due to the strain of working consecutive shifts and
having only 8 hours before returning the next day.
In order to 'prevail, in view of my finding that the
overall decision to lay off the employees in the nursing
services was legally motivated, the General Counsel
must now establish that either (1) the overall layoff se-
lection process in nursing services was discriminatorily
designed; or (2) the process was discriminatorily applied
in such a fashion that Respondent was able to unfairly
select the named discriminatees.
Regarding item (1) above, the General Counsel offers
no evidence showing that Burkeen's decision to select
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees with the highest absentee/tardiness rates was
discriminatorily designed. Obviously, other processes
could have been used in measuring job performance, but
no evidence was introduced illustrating that Burkeen's
absentee/tardiness method was used because it provided
a means to discriminate; nor was any other grounds of-
fered on which I could find fault with Burkeen 's- system.
Burkeen testified that she resorted to the absentee/-
tardiness procedure after examining the personnel files
and determining the employee evaluations were not suffi-
ciently reliable to use in that process. She stated that un-
fortunately she discovered that personnel records were
not "very well kept." Burkeen's absentee/tardiness
system appears on its face to be a logical, although per-
haps an inexact method of judging performance, i.e., an
employee does not perform well when they are not on
the job. Therefore, I find no basis to determine that the
method of selection was discriminatory.
Next, I must look to see if the system was discrimina-
torily applied.
Regardless of the apparent inequities involved in se-
lecting an employee, perhaps a -longtime employee such
as several employees involved, on the basis of her absen-
tee and tardiness record, and regardless of the extent of
the employee's union activity and other elements tending
to show a prima facie case, I must conclude Respondent
acted lawfully if the employee would have been selected
under the Burkeen system absent their union activities
(see Wright Line, 251 NLRB 1083 (1980)). I shall consid-
er, in making this analysis, Respondent's union animus
that has been illustrated through the supervisors' speech-
es to' employees and the numerous 8(a)(1) violations that
I have found herein. I am also mindful of the timing of
the layoffs coming a little over a month after the Union
filed its representation petition. Additionally, I am aware
of the evidence showing that employees Ethyl Booker,
Mae Ella LaCour, Ruth Stevenson, Teresa Thomas, and
Lucille Wilson engaged in union activities. Three of the
alleged discriminatees, Booker, LaCour, and Thomas
were included on the Union's organizing committee list
mailed to Respondent on November 24, 1980. Ruth Ste-
venson handbilled for the Union at the hospital during
early February 1981, and was allegedly seen by supervi-
sion. The company knowledge element is weak as to al-
leged discriminatee Lucille Wilson. There was no direct
evidence showing awareness of Wilson's union feelings
other than an alleged conversation involving Wilson and
alleged Supervisor Bogen.
However, the above facts establish to my satisfaction
that the General Counsel should prevail if it is shown
that the above alleged discriminatees were treated in a
discriminatory manner. Obviously, regardless of animus,
knowledge, timing, and employee union activity, no alle-
gation - of illegal termination should survive absent a
showing that the alleged discriminatees were treated
with disparity.
In the instant case , 18 nurses aides , were laid off during
February 1981. Prior to that time some 40 other employ-
ees from nursing services had been eliminated through
attrition.
Respondent proved that of those employees listed as
members of the organizing committee in the Union's No-
vember 1980 letters, 20 remained in Respondent's employ
on May 7, 1981, the day of the NLRB election. Three of
the remaining 10 from the organizing committee volun-
tarily resigned before May 7. One member of the com-
mittee was discharged for neglect on duty and that em-
ployee was not alleged as a discriminatee. The six re-
maining union committee members were included in Re-
spondent's layoff. Three of the six were nurses aides
Booker, LaCour, and Thomas. The remaining three were
also alleged by the General Counsel as discriminatees
(see below).
As indicated above, the employees involved in Re-
spondent's February 1981 reduction in force totaled 53
from all departments.
Concerning the specific number of absences or tardies
by nurses aides, counsel for the General Counsel was
supplied with those records that she used in her Rule
611(c) examination of Director of Nursing Burkeen.
There was no evidence offered showing that any of the
five alleged nurses aides discriminatees failed to qualify
for layoff on the basis of those absentee/tardy records
for the year before the layoff.
Therefore, I must find that the General Counsel failed
to establish that former employees Booker, LaCour, Ste-
venson, Thomas, and Wilson were treated in a disparate
manner. It is well established that an employee does not
receive immunity from personnel actions simply by en-
gaging in union or protected activity. There must be a
showing that the respective employee was treated differ-
ently. Here, that element was not proven. I shall recom-
mend dismissal of the allegations regarding those five al-
leged discriminatees : International Computaprint Corp.,
261 NLRB 1106 ('1982).
2. The housekeeping employees
The General Counsel alleges that Respondent laid off
employees Jacqueline Jones and Susan Quiett because of
their union activities. Both Jones and Quiett were em-
ployed as maids in housekeeping.
Jones and Quiett were among the four maids laid off
during Respondent's February 19, 1981 reduction in
force. As shown above, the force reduction, which in-
cluded a total of 53 employees, was found to have been
economically motivated. The sole question remaining is
whether, as the General Counsel alleges, employees
Jones and Quiett were selected for layoff because of
their protected activities.
Bill Snider, hospital manager for the management-serv-
ice charged with overseeing Respondent's -laundry and
housekeeping department, testified that shortly after
coming to the hospitalin April 1980 he advised Tom Al-
exander that a reduction of housekeeping employees was
necessary.- However, by December 1980, Respondent
had reduced the housekeeping complement by only five
employees through attrition. In February, with house-
keeping remaining overstaffed, the head of housekeeping,
Melda Pace, was advised to reduce the housekeeping
force by four through layoffs.
Pace, faced with an assignment similar to that of Joyce
Burkeen in nursing, decided on a procedure of selecting
those four employees with the largest number of discipli-
BATON ROUGE HOSPITAL 215
nary offenses in their personnel records . The four select-
ed were Susan Quiett ,and Sharon Thompson with five
conferences8 each; and Jacqueline Jones and J. Tate with
four and three conferences , respectively. A listing of the
conferences among all housekeeping employees showed
that no maid other than Thompson , who was laid off, re-
ceived as many disciplinary conferences as alleged discri-
minatees Quiett and Jones.
a. Susan Quiets
Susan Quiett 's personnel ' file included reports on con-
ferences with employee dated December 30, 8, and 7,
1979 , and July 16 and May 28 , 1980 . However, none of
the disciplinary incidents were alleged as violations.9
Moreover, the General Counsel does not, argue and no
evidence was offered to prove that any of those discipli-
nary actions were precipitated by Quiett 's union activi-
ties. I make special note of that fact because the obvious
concern dictated by an awareness that at ,least three of
Quiett's conferences occurred after Respondent learned
of Quiett's prounion position-i.e., on November 24,
1980, the Union notified Respondent that Quiett, among
others, was on the Union 's organizing committee . There-
after, on December 7, 1980 , and afterwards , Quiett en-
gaged in handbilling for the Union near the hospital and
her activity in that regard was observed by supervision.
Two of Quiett's conferences occurred in alarming prox-
imity to her initial handbilling activity . On December 7,
the day she first handbilled , Quiett, along with four other
employees , received a conference report from Supervisor
David Robertson for overstaying their break. Neverthe-
less, Susan Quiett 's testimony removed doubt regarding
the integrity of that incident. Although Quiett testified
that she was not shown the conference report, she admit-
ted that David Robertson "did demand we get up. He
said that we had over stayed our break ." The record
shows that Robertson also conferenced the other em-
ployees involved in that incident.
On December 8, Melda Pace completed a conference
report on Susan Quiett for "late 12 times, self--sick 9
times, absent 9 times, illness in family 15 times."10 When
questioned about the December 8, 1980 conference
report, Susan Quiett admitted the conference with Pace
even though she testified that Pace told her the report
would not go on the record if Quiett did not sign it."
Moreover, it appears that this was not an incident where
Pace arbitrarily selected Susan Quiett for absentee coun-
seling . Counseling reports were offered for the four
housekeeping employees laid off in February. All four
e Disciplinary writeups were referred to as conferences
9 TheGeneral Counsel does allege as an 8(a)(3) violation that, begin-
ning in 1 he first week of December 1980, Respondent changed Susan
Quiett's work assignments because of her union activities . The evidence
supports that allegation as shown hereafter.
10 The conference report covered the December 30, 1979, through De-
cember 8, 1980 period. In addition to the above, the conference report
showed, "maternity leave - January 26, 1980-April 8, 1980 Surgery leave:
August 24, 1980-October 27, 1980."
11 Although I found Quiett to be a credible witness, I do not credit
her testimony ,in this regard . It simply makes no sense that the supervisor
would reward an employee because the employee refused to sign a con-
ference report I am convinced that Quiett misunderstood what Melda
Pace said on that occasion
received counseling in December 1980 for attendance
problems; Joann Tate on December 29, 1980; Jacqueline
Jones on December 16, 1980 ; Susan Quiett on December
8, 1980; and Sharon Thompson on December 9, 1980,12
Likewise, concerning Susan Quiett 's last , conference
report before she was laid off, when questioned about
the December 30, 1980 conference report on the condi-
tion of her uniform, Quiett admitted the occurrence.
Susan Quiett also acknowledged awareness of her ear-
lier conference reports dated before her union activity-
a verbal warning on July 16, 1980, and a warning for
smoking dated May 28, 1980 . The May '28, 1980 confer-
ence was the only one of her five conference reports that
was signed by Quiett.
Despite Quiett 's candid testimony acknowledging her,
various conferences, I am deeply troubled by' their
timing, especially ' when viewed against Respondent's
proven animus, Quiett's very visible union involvement
and Respondent's knowledge of that involvement, and
the overall 8(a)(1) activity, and Quiett' s direct involve-
ment in some of that activity. Moreover, as shown
below, I am convinced that Quiett was awarded more
burdensome work assignments following Respondent's
learning of the union activities 13
I am also mindful of various devices by which warn-
ings may be unduly increased during a union campaign,
but the evidence does not establish that occurred here.
Nor was there evidence that Susan Quiett's conferences
involved occurrences for which employees were not rou-
tinely conferenced.
The bottom line here, as in the case of the nurses
aides , is that the evidence failed to prove disparity.
There was no showing that the selection process was dis-
criminatorily designed and there was no showing that
Susan Quiett was discriminatorily disciplined on the five
occasions that ' led' to her layoff. Regardless of my feel-
ings of concern , I am not empowered to substitute con-
jecture and suspicion for evidence. Regardless of the dif-
ficulty of proof, the case must fail absent a showing of
discriminatory treatment . (International Computaprint
Corp., 261 NLRB 1106.)
b. Jacqueline Jones
The record proved that ' Jones received four confer-
ence reports during the year before she was laid off.
On December 16, 1980 , Jacqueline Jones received a
conference report from Melda Pace for her attendance
during the December 30, 1979 , through December 8,
1980 period . The conference reflected "late 32 times,
self-sick 17 times , absent 7 times, illness in family 4 times.
The conference report was signed by Jacqueline Jones.
On December 5, 1980 , Jacqueline Jones received a
conference report from Supervisor Jones for questioning
12 Jacqueline Jones testified that December was the first time house-
keeping employees had been called in and counseled about their attend-
ance. However, Jones testified that the entire department was included in
that procedure . Therefore, even if this conference report is discontinued
regarding all employees counseled , there would be no change in the rela-
tive positions of the employees on the listing of conference reports
IS The General Counsel did not argue and the evidence failed to show
that Quiett's changed work assignments contributed to any of the confer-
ence reports she received in December 1980.
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
her work assignments, telling supervisors that they were
scared of another employee, and telling that employee
that the supervisors must be "scared" of her. Jacqueline
Jones acknowledged that particular incident in her testi-
mony although she contested some of the facts related in
the conference report.
On September 16, 1980, Jones was awarded a confer-
ence report for "not reporting to work" and "not giving
correct information." Jones admitted the incident oc-
curred as a result of her involvement in a police action at
a party she attended that resulted in her not being able to
work. Jacqueline Jones admitted receiving the confer-
ence report.
Jones denied knowledge of an incident and a confer-
ence dated September 20, 1980. That conference report
was'signed by Supervisor David Robertson.14 Following
Jones' testimony, Respondent called David Robertson,
who testified as follows regarding the September 20,
1980 conference report:
A. Yes, I went in and I told her that her break
was over and it was time to leave. And as I was
walking away she mumbled something and I turned
around and said, what was that?
And the words was, you're getting kind of smart
here lately.
Q. And did you write her up?
A. Yes, I didn't write up-I wrote-what I did I
just wrote the paper that I had warned her of over-
staying her break. And as far as writing it up, it
wasn't what you'd call a writeup, it was just a
warning so I could know myself that I had told her
about this incident.
On cross-examination, Robertson admitted that he did
not tell Jones he had written the September 20, 1980
conference report. Robertson's above testimony is unre-
butted because Jones was not called to deny his specific
testimony regarding the incident.
As in the case of Susan Quiett, I find the record fails
to justify a determination that Jones was treated in a dis-
criminatorily manner. The only housekeeping employees
with more conference reports than Jones were Susan
Quiett and Sharton Thompson, both of whom were also
laid off. The record fails to show that Jones' December
16, 1980 conference on attendance was discriminatorily
awarded because there was no showing that any house-
keeping employee with a worse attendance/trady record
failed to receive a conference report. Moreover, there
was no showing that any employee would not have been
awarded conference reports, as Jones was on December
5, September 16, and September 20, 1980.
14 Jones did not sign her September 20, 1980 conference report and
the document does not show that she refused to sign However, the con-
ference reports received in evidence on housekeeping employees Jones,
Tate, Quiett, and Thompson (the laid-off employees) show numerous
conference reports that do not contain either the employee's signature or
a "refused to sign" notation. David Robertson issued conference reports
to Jones, Quiett, and Thompson and none of his reports contain either
the employee's signature or the notation "refused to sign " Also, Supervi-
sors Johnson and Courville issued conference reports that do not include
the employee's signature or an indication "refused to sign "
In view of the above, I reluctantly find that the evi-
dence does not support a determination that either. Susan
Quiett or Jacqueline Jones was discriminatorily laid off.
c. Charles Hamilton
The General Counsel's case in support of Charles
Hamilton is totally dependent on my determining Hamil-
ton was not a supervisor. In that regard, counsel for the
General Counsel contends, "Hamilton's refusal to with-
draw support from the union was the precipitating event
which caused his discharge." In view of my determina-
tion that Hamilton was a supervisor, the General Coun-
sel's case must fail. An employer may legally discharge a
supervisor for refusing to withdraw support for a union.
I am in agreement with counsel for the General Coun-
sel's contention that Hamilton's extensive activities on
the Union's behalf were known to management. More-
over, as shown above, I credit the testimony showing
that Hamilton was warned to cease his union activities or
risk further disciplinary action.
It is apparent from the record that Hamilton, a valued
employee, was treated with disparity. But for my finding
that Hamilton was a supervisor, I would have found a
violation. The facts reveal that Hamilton was selected
for termination because of his union activities. However,
as shown above, that does not constitute a violation in
view of his supervisory position. Parker-Robb Chevrolet,
262 NLRB 402 (1982).
d. Warner Wilson
Wilson, like Charles Hamilton, was cautioned by su-
pervision to cease his union activities (see above). Wil-
son's union activities were extensive. He signed one, and
distributed other, union authorization cards. As shown
above, Wilson had conversations with Supervisor Betz
about the Union and Betz cautioned Wilson that they
were out to get Wilson's job. Also, as shown above,
Wilson was an outspoken advocate of the Union during
one of Respondent's group meetings. Therefore, the
record establishes, as it did in all the termination cases
discussed above, the elements of animus, knowledge,
union activities, and timing. Additionally, Wilson was
threatened with discharge because of his union activities.
Moreover, the evidence also revealed that Wilson was
treated in a discriminatory fashion. There is no question
but that Warner Wilson was a valued employee-Re-
spondent did not argue otherwise. He held the responsi-
ble position of leaderman and, as shown above, on regu-
lar occasions he was the senior employee present on,the
job with significant responsibilities.
Respondent contends it was necessary to lay off one of
its leadermen. However, no evidence was offered, to
show why a leaderman position was selected over an-
other nonsupervisory position. Respondent alleged that
Wilson was the junior leaderman. However, Wilson's tes-
timony, which I credit as shown above, demonstrated
that he was senior to the woman who occupied, the lea-
derman position on the night shift. Wilson testified that
he was never offered the opportunity to transfer to the
night shift to avoid lay off.
BATON ROUGE HOSPITAL 217
Therefore, the evidence is overwhelming and I fmd
that Warner Wilson was laid off on February 20, 1980,
because of his union activities.
e. Susan Quiett's change in work assignments
Susan Quiett testified that for the first time during her
employment with Respondent, on December 8, 1980, the
day following her first handbilling for the Union near the
hospital, she was reassigned three different work areas
during her shift. She was assigned 3d west, but subse-
quently sent to 4th west; later to 2d west and finally
back to 3d west. Quiett complained that after December
8 she was assigned to clean and mop walls and to mop
brick on the ground floor in pediatrics without assistance
even though that work was normally performed by por-
ters. She was also assigned to sweep and mop stairs from
the fifth floor down to the ground floor. Additionally,
Quiett was assigned to clean 42 rooms without help. Ac-
cording to Quiett, she had not received similar assign-
ments before her handbilling activity. He request for as-
sistance from Supervisor Cyrus was denied.
Melda Pace testified that "Hard cleanup jobs" such as
scrubbing walls, were normally performed by' both maids
and porters. When asked if those jobs normally involved
more than one person, Pace testified, "It would be ac-
cording to how big an area it would be."
Respondent offered assignment records that appeared
to show the general assignments of the relief maids, and
contended that those records demonstrated that Quiett's
project and patient room assignments had remained con-
sistent.
However, I am convinced on the basis of Quiett's testi-
mony, which I credit, that she was assigned more diffi-
cult jobs without assistance after being observed hand-
billing for the Union. Such activity provides a conven-
ient means for an employer to express how adverse con-
sequences may flow from union activity and that action
is prohibited by Section 8(a)(1) and (3) of the Act.
B. Denial of a, Merit Wage Increase
Counsel for the General Counsel contends that Ethel
Booker was denied a merit pay increase in January 1981
because of her union activities. Booker testified that Su-
pervisor Gillespie promised her an increase in January
1981, following an evaluation. When Booker did not re-
ceive the increase, she inquired of Gillespie and was re-
ferred to Personnel Director Champagne. However,
Booker never had an opportunity to discuss the matter
with Champagne.
Respondent, through documents (including checks
signed by Booker), and testimony of Louis Champagne,
offered evidence that Ethel Booker received a general
increase in pay in September' 1980, and a merit increase
effective October 19, 1980. Champagne testified that the
above increases brought Booker to the top of her pay
scale, making her ineligible for an increase in January
1981.
I find Respondent's evidence convincing. The General
Counsel did not overcome the evidence that Booker was
ineligible for a January raise due to her earlier increases.
Therefore, I fmd that if Booker was informed by Gilles-
pie that she was scheduled to receive another wage in-
crease in January, that information was incorrect. I am
inclined to believe that Booker was mistaken and that
she confused the time she received information about her
merit raise. In any event, I credit the evidence showing
that Booker was not denied an increase , which she
would have received but for her union activities.
III. ADDITIONAL OBJECTIONS EVIDENCE
At the beginning of the hearing, the Union called
three witnesses that it relied on, in addition to evidence
offered during the unfair labor practice case mentioned
above,15 to support its objections.
A. Margaret Walter
The first witness for the Union, employee Margaret
Walter, testified she attended several meetings regarding
the union campaign, which were conducted by Respond-
ent at the hospital. Walter testified the first of those
meetings was held in February and Sawyer and Walters
(from X-ray) spoke. Walter recalled Sawyer mentioning
the following:
And then if they a union come in the first thing it
would do was to call us out on strike. And, then, if
we went out on strike our time that we go out on
strike wouldn't-we wouldn't be paid for. And they
would have somebody to come in and replace us.
Q. Okay. What else did he say about strikes?
A. Well, I think, you know, I think at that meet-
ing that was mainly all that he said.
Q. All right. Did he cite any examples of strikes?
A. Well, Mr. Walters read some things about
strikes happening in other hospitals over the state.
And one particular one, I think, was about employ-
ees who had been off 107 days or so. And he told
how much money the people had lost from being
out on strike. And that we wouldn't get paid if we
go out any certain length of time like this. And that
they would have to come in and replace us because
they couldn't stand for us to be out.
Q. Okay, you said he read from something. Did
,he have some document in his hand that he was
reading from?
A. Well, he had some type of paper, yes. I don't
know exactly what it was.
Q. All right. Did you get a copy of anything to
read while this was going on?
A. No.
Q. Okay., Did he-Mr. Sawyer indicate what
the-if the union won the election, how the hospital
was going to' bargain with the union?
A. Well, he said that they would start off with-
all of the benefits that we had then, we would have
nothing. We would start off with a blank sheet of
paper when they would sit down to the bargaining
table.
15 See fn . 3 above.
218 DECISIONS OF THE NATIONAL LABOR-- RELATIONS BOARD
And we would start there and we would-it was
no guarantee that we would get anything if they
bargained with the union.
Q. Do you recall that Mr. Sawyer said what
would happen if there was a strike and when it was
over-what the consequences of the strike would be
once it was over?
A. Well, he said if we were called out on strike
and we went out and struck , then, the time that we
were out we didn't get paid for. And then we
wouldn't be able to come back to our jobs.
Q. You Would not-
A. We
Q. You would not-be able to come back to your
jobs?
A. Right, because they would replace us.
Q. All right . When is the-that was the first
meeting that you can remember . Did Mr . Walters
say anything at this first meeting?
A. Well, he read from the paper about the strikes
and he talked about-you know, he talked about the
same thing ; about strikes, during that meeting.
Walter attended a second meeting, some 2 or 3 weeks
after the first. The speakers at that meeting were Munn
and James (assistant director of food services). Her testi-
mony was that Munn spoke first:
A. Well, he told us-the first thing that I can re-
member-he said his father was a member of a
union , but-which was no good-and that he
thought unions was no good and it wasn 't a good
idea for us to have a union in the hospital.
Q. Okay, was he reading from something, as
well?
A. Yeah, they did have a-some type of paper.
Q. I see. Did they hand out anything for you to
read at this meeting?
A. Yeah, they gave us a booklet when we went
in.
Q Did the book have a title or a name?
A. I-don't remember the title or name of it, but in
the book they had all the different types of articles
about striking in different places in different cities,
hospitals and what not , for the unions.
Q. As best you can recall, can you tell us -some of
these places, what the book said, what it was about?
A. No, I can't remember exactly some of the
places. But one particular picture in the book they
talked about because it was a picture of violence
being carried on at a strike. , And they made the
remark that would we want this to happen-that
some of the people in this picture at this strike was
killed` at the time of the strike. And they said we
didn't want that to happen here in Baton Rouge.
Q. I see . Again , at this meeting was anything'said
that if there was' a strike, about what the conse-
quences would be, once it was over, to you?
A. Well, Mr. Munn , he say that if we got the
union ' in and'they-come to the bargaining table and
they would bargain in good faith. But he also said
that when you bargain in good faith it didn't really
mean that we would get more than we had been.
Probably, it would mean that we would get less than
what we had now.
Q. All right. That was his position on bargaining.
What about on the-at the end of-if there was a
strike, what would be the consequence to you as an
employee? -
A. Well, he said that if there was a strike and we
would definitely be replaced and would not get-our
jobs back.
Q. You would not get your jobs back?
A. No.
Q. All right . Was that all that Mr. Munn said at
the meeting?
A. Well, I think so.
Q. Okay, did Ms. James say anything , the assist-
ant director of food services?
A. Yes, she read some documents about strikes at
different places. And I can't remember where it
was. But it was different cities and states, over a
period of time. At different times they had strikes
and things that happened during the strike.
Q. Okay, what-did she read from the same book
that you-that they handed out at the meeting?
A. Well, I couldn 't follow her in. the book.
Q. Uh-huh.
A. I can't say for sure she wasn 't reading from it,
but when I tried to follow what article she was
reading in the book I could never find - the place she
was reading from.
On the day before the May 8 , 1981 election, according
to Walter, she attended a third meeting . The speakers
were Alexander and Jacobs. Shelia Jacobs spoke first:
A. Well, she gave us the procedures for voting
and how just what you do when you vote.
Showed us a sample ballot and how to, go about
marking it.
Q. Okay,, did she say anything else at this meet-
ing?
A. Well, she said if the employees were off on
election day-to come in and clock in and out-that
they would be paid for it.
Q. I see . Did she say anything else?
A. Well, not too much more than that.
Q. Okay, then who spoke next?
A. Mr. Alexander.
Q. And what did he say?
A. Well, he talked mainly about Mr. Crayton.
Q. Who is Mr. Crayton?
A. Well, Mr . Crayton was one of the union rep-
resentatives.
Q. Okay, go ahead.
A. He told us about Mr. Crayton being evicted
or fired or something , from Lake Charles , during
the strike . I don't know-he said something he
didn't go for the Lake Charles peoples. And he
didn 't think he was the man that he would want to
represent him.
BATON ROUGE HOSPITAL 219
B. Brenda Brown
Employee Brenda Brown also testified about the
group meetings held by Respondent. Brown recalled that
the speakers at the first meeting she attended in January
1981 were Betty Falgout and another counselor. Her tes-
timony regarding that meeting was:
Q. All right, who spoke first?
A. The counsellor.
Q. All right, what did this counsellor say?
A. Well, he began talking on strikes out of a
booklet, "Tell It Like It Is." And then they started
talking about strikes.
Q. "Tell It Like It Is" was the name of the book-
let?
A. Yes.
Q. All right. As close as you can recall, will you
tell us what the counsellor said about strikes and
how he used the booklet?
A. Well, as close as I can recall, strike-was
saying that how it can hurt your family and can
hurt you, may cause you to lose your job, someone
causing you to lose your life or someone of your
loved one's life. And it's just a whole tragedy in
your life and your family.
Q. Did he say anything else about strikes, give
any names of any hospitals or-
A. Well, he gave the name of one hospital. I
don't recall-one in Lake Charles.
Q. Uh-huh.
A. I don't recall the name but somewhere in
Lake Charles.
Q. Did they-did he bring out any other exam-
ples of the consequences of strikes?
A. Well, something-not just, you know, you
could get hurt and while you are striking they can
hire someone else to take your place. And he might
even work for less to get the job while you're on
strike. And that sometime some outsider can come
in and cause a disturbance that will cause you to get
into a disturbance and you might lose your life or a
member of your family or something.
Q. Did the counsellor discuss-that spoke--dis-
cuss anything about the bargaining that would
occur if the union won the election?
A. Yes.
Q. What did he say?
A. He said that if the union won the election
they would go to the bargaining table with a blank
sheet of paper and start from scratch.
Q. When you say "they" who do you mean?
A. I guess administration when you say "they."
Q. Okay. Would go with a blank sheet of paper
with-what else did he say about that?
A. They would start from scratch and they don't
have to agree to anything that would be said. They
don't start from where your present salary is or
anything. They start all over from the beginning.
They will work up; they don't have to agree to
anything.
Q. All right. Did he make any predictions about
the results of this bargaining would be, for the em••
ployees?
A. He said it would be bad; you would come out
with less than what you had from the bargaining. It
could happen that way.
Q_ Did the counsellor say anything about a union
card-about signing a union card?
A. Yeah, that was at the second meeting I went
to.
Q. All right. Well was there anything the coun-
sellor said at the first meeting?
A. Well, they talked about strikes at manufactur-
ing companies, and strikes at a hospital that he once
worked for and the tragedy there.
A. What did he say?
A. People lost jobs; some was hired back, wasn't
too many. And some lost their jobs. Some homes
was burned or something or other. Exactly whose
home it was I don't recall but he said that he re-
called that happening. It was just an upset.
Q. I see. Did Ms. Falgout say anything at this
meeting?
A. No, she didn't say anything until her turn
came.
Q. All right. When her turn came did she say
anything?
A. Just emphasized on what the counsellor said.
Brown attended a second group meeting in March
1981, and the speakers were Tom Hagen (vice president,
chemical dependency unit) and Linda Alenbaugh (a head
over nursing services). Tom Hagen spoke first:
A. Well, first he gave out "Tell It Like It Is."
And they were reading from off some papers they
had. And then, they told us to open up the booklet.
And they started-open to certain pages. And the
page we opened up was to the salaries of the inter-
national union. And it showed the salaries people
made.
Q. Uh-huh.
A. -That was being paid, how much these
people was paying. And that's what it was, salary,
first we talked about.
Q. Okay, what else did he say at the meeting?
A. He talked about Mr. Crayton and said that-
that we-union dues-the dues that we paid would
buy Mr. Crayton black cadillacs, and we could be
buying our own needs for our purpose of life. And
he was saying that how much money that they
were making compared to what we were making.
And instead of giving our money to them-union
dues-how often they wanted it to be giving it to
them-
Q. Uh-huh.
A. -to keep them in black cadillacs.
Q. All right. Anything else Mr. Hagen said at
this meeting?
A.- Well, yeah, he said that he would like every-
one to come and vote and if you didn't have a way
that they had some that would be working that day
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
.and just call-call and someone would pick you up
and bring you and take you back.
Q. All right. Did-
A. But-
Q. Okay, excuse me . Did he say anything about
negotiations at this meeting, bargaining?
A. No.
Q. Anything about strikes?
A. No.
Q. Did Ms. Alenbaugh spoke-speak at this
meeting?
A. Yes.
Q. What did Ms. Alenbaugh say?
A. She spoke about fines and assessments.
Q. What did she say about fines and assessments?
A. She was telling us that if the union should get
in and you signed cards for union dues to be paid, if
you didn't pay your union dues in a certain length
of time they -would fine you. And you have to pay
all that money at one time you'd lose your- $100
something or other they give you-$100 death or
something or other, you know, death of a family
member, you know, if you're a union member.
C. Roger Thomas
Former employee Roger Thomas attended a group
meeting in March 1981. The speakers, were Tom Sawyer
and Jim Walters. Thomas testified that Sawyer spoke
first:
A. Well, it all begins about the union . And they
passed out booklets telling-"Tell It Like It Is"
booklets. And they discussed that-about how our
benefits, we'd lose everything we have and we
would start from a blank sheet. You know, they
showed us a blank sheet of paper.
Q. Okay, is-when he brought up about the bene-
fits and the blank sheet of paper can you tell us, as
near as ; you can remember, exactly what Mr.
Sawyer said about that?
A. Well, first he say that if the union get in we
have to start all over again , blank sheet of paper.
We'd lose everything.
Q. Uh-huh.
A. -our benefits. And the union 's not going to
promise anything that we should get it. We might
get lessor we might get more. But we will lose our
benefits.
Q. Okay.
A. We'd start from zero and the union can't
promise us anything.
Q. Uh-huh.
A. And in the booklet it showed strike,, Coca
Cola, and, you know, several people pushing and
fighting on the strike. And this was discussed.
Q. Do you recall anything -specifically in terms of
what strike-did they mention any names of the
hospitals or towns, or hospitals?
A. Well, it was in Lafayette. It was a picture of
Coca Cola. It was East Jefferson Hospital and it
was in Lafayette.
Thomas attended the second meeting 3 or 4 weeks
after the first, which was also conducted by Sawyer and
Walters:
Q. What did Mr. Sawyer say at the second meet-
ing?
A. Well, basically on the same thing, benefits, a
blank sheet of paper and about strikes.
Q. All right. What did he say about benefits?
A. Well, we can lose everything we have now
and we'll have to start all over fromzero.
Q. Okay, what did he say about strikes?
A. He really didn't say too much about strikes.
The strike was the key word and the pictures. The
pictures and strikes is what, you know, like using to
upset a lot of people, you know. That we don't
need the union here and if we go on strike this is
what would happen, people fight among each other.
Your car and something-you know, burn down
your homes and all that. That was the thing that
was used.
Q. Okay. Did he use the-at the second meeting
did Mr. Sawyer say anything about the blank sheet
of paper as he had in the first meeting?
A. Yes, he did.
Q. What did he say about that?
A. Well, he said that-okay, we would start all
over from a blank sheet of paper. The union can't
promise us anything; that they don't have to negoti-
ate with the union or give anything. They have to
start from blank. And we'll lose benefits; we'll start
from zero. We might get more, we might not.
Q. Did you attend any other meetings?
A. No.
Discussion
The evidence is substantial that the "blank sheet of
paper" comments were included in only the first of the
group talks. I have credited testimony that- the written
text was used on that occasion. With that background, I
am convinced that Roger Thomas was confused in his
testimony regarding the subjects covered in the second
group meeting that he attended. It appears, and I find,
that his testimony in that regard actually refers to the
first series of meetings. Therefore, I shall not credit his
testimony to the extent it involves meetings other than
those of the first series. Concerning the first series, I find
the written text was used.
L was impressed with the demeanor of witnesses Mar-
garet Walter and Brenda Brown and I credit their testi-
mony regarding meetings after the first series. However,
I see nothing in Brown's testimony that reveals objec-
tionable conduct by Respondent during any of the subse-
quent meetings.
Regarding Walter, she testified that she attended a
second group meeting some 2 or 3 weeks after the first
and the speakers were Munn and James. According to
Walter, Munn told the employees, among other things,
"That, if there was a strike and we would definitely be
replaced and would not get our jobs back." Although
BATON ROUGE HOSPITAL 221
Munn testified, he did not deny that he made the com-
ment. I credit Walter's testimony in that regard.
Objections Findings
As shown above, the Union's objections include alle-
gations of Respondent threatening its employees with
loss of benefits, possible loss of jobs, and loss of previ-
ously enjoyed benefits. Also alleged are the matters in-
cluded in the April 10, 1981 complaint in Cases 15-CA-
8050 and 15-CA-8050-2
The petition in Case 15-RC-6750 was filed on January
15, 1981. The election was conducted on May 7, 1981.
My above findings concerning the alleged unfair labor
practice allegations reflect that several 8(a)(1) violations
occurred during the above-mentioned critical period.16
Those violations that I find also constituted objectionable
conduct, including the following:
(1) Gerald Colston interrogated employee Susan Quiett
about 2 weeks before February 20, 1981 (sec. I,A,
above).
(2) On February 12, 1981, Tom Alexander cautioned
employee Warner Wilson to cease his union activities
and threatened Wilson with discharge if he did not do so
(sec. I,D, above).
(3) In mid-February 1981, Larry Betz cautioned em-
ployee Warner Wilson to watch himself because they
were out to get him because of Wilson's union activities
(sec. 1,1, above).
(4) In early February 1981, Supervisor Nellie Guilbeau
threatened employees that if the Union got in the em-
ployees would not be able to work overtime, adjust
work schedules, or come to supervision with employee
problems or complaints (sec. 10, above).
Additionally, as shown above under "Discussion," I
credit the testimony of Margaret Walter that she and
other employees were told by Munn in a group meeting
that they would be replaced and would not get their jobs
back in the event of a strike. I find that statement consti-
tutes objectionable conduct within the scope of Objec-
tion 1. In that regard, I note Respondent's continued em-
phasis to its employees of the likelihood of a strike (see
above). Walter's total testimony reveals that group meet-
ing was held in February or March 1981.
In view of my findings above, I recommend that Ob-
jections (1), (3), and (9) be sustained and the election set
aside. and a new election ordered.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Service Employees' International Union, Local 275,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interrogating its employees about their union ac-
tivities; threatening its employees with discharge if the
Union was successful in organizing its unit employees;
16 Several of the matters, including from example Gerald Colston's in-
terrogation of Yolanda Scott, were placed as occurring in January 1981
Because the evidence failed to show those matters occurred on or after
January 15, 1 have not found them to fall within the critical period
threatening employees that they would not be allowed to
discuss work-scheduling problems if the Union was se-
lected; and threatening employees that if the Union was
successful, employees would not be able to work over-
time, adjust work schedules, or come to supervision with
employee problems and complaints, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By laying off its employee Warner Wilson on Feb-
ruary 20, 1981, and, thereafter, failing, refusing,,and con-
tinuing to fail and refuse to reinstate Wilson, Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act.
5.- By changing the work assignments of employee
Susan Quiett to more onerous jobs about December 8,
1980, and continuing to assign more difficult work to
Susan Quiett until her layoff on February 20, 1981, be-
cause of Quiett's union activities, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
6. Respondent did not otherwise- engage in unfair labor
practices as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend it be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act, As I have
found that Respondent unlawfully laid off employee
Warner Wilson, I shall recommend that Respondent be
ordered to offer Wilson immediate and full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or other rights and privileges. I shall further rec-
ommend that Respondent be ordered to make Wilson
whole for any loss of earnings he may have suffered as a
result of the discrimination against him. Backpay may be
computed with interest as described in F. W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977).1 7
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edis
ORDER
The Respondent , Baton Rouge General Hospital Cor-
poration , Baton Rouge , Louisiana, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, and coercing its em-
ployees in the exercise of their rights guaranteed to them
in Section 7 of the Act, in violation of Section 8(a)(1) of
the Act, by interrogating its employees concerning its
employees union activities, by threatening its employees
with discharge if the Union was successful ; by threaten-
17 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
18 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
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing its employees that the employees would not be al-
lowed to discuss work scheduling problems if the Union
was selected-, and by threatening its employees that if the
Union was successful, employees would not be able to
work overtime, adjust work schedules, or come to super-
vision with employee problems or complaints.
(b) Changing work schedules of its employees because
of its employees' support for the Union.
(c) Laying off and thereafter refusing to reinstate its
employees because of the employees' union activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer immediate and full reinstatement to Warner
Wilson to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority, or other rights and privi-
leges.
(b) Make Warner Wilson whole for any loss of pay he
may have suffered as a result of the discrimination
against him in the manner set forth in the remedy section
of this decision.
(c) Remove from his files any reference to the layoff
of Warner Wilson on February 20, 1981, and notify him
in writing that this has been done and that the evidence
of his unlawful layoff will not be used as a basis for
future personnel actions against him.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Baton Rouge, Louisiana facility copies
of the attached notice marked "Appendix."19 Copies of
the notice, on forms provided by the Regional Director
for Region 15, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
19 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 Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "