Beverly Health & Rehabilitation Services

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1243 (N.L.R.B. 2003)

BEVERLY HEALTH & REHABILITATION SERVICES 1243
Beverly Health and Rehabilitation Services, Inc. and
Its wholly-owned subsidiary, Beverly Enter-
prises–Alabama, Inc. d/b/a Beverly Healthcare–
Oneonta, a Single Employer and United Food
and Commercial Workers Union, Local 1657

Beverly Enterprises–Alabama, Inc. d/b/a Beverly
Healthcare–Oneonta, a Single Employer and
United Food and Commercial Workers Union,
Local 1657. Cases 10–CA–32797 and 10–RC–
15153
August 21, 2003
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
On November 29, 2001, Administrative Law Judge
Keltner W. Locke issued the attached bench decision.
The Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated 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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, 325 NLRB 17 (1997). We shall substitute a new
notice in accordance with our decision in Ishikawa Gasket America,
Inc., 337 NLRB 175 (2001). We shall also conform the judge’s rec-
ommended Order and notice to the violations found by the judge. In
this respect, we note that the judge found in his recommended order
and notice that the Respondent had promised benefits to employees to
dissuade them from supporting the Union. However, the violation at
issue involved Alabama Group Human Resources Manager Mike
McKelvaine’s telling employees at a meeting that the Union could not
help employees, and that McKelvaine knew their problems and would
stick around and help employees with their problems. This violation is
a solicitation of grievances with an implied promise to remedy them.
See Alamo Rent-A-Car, 338 NLRB 275, 277, 284–286, 287 (2002).
Accordingly, we find it unnecessary to reach the statement made by
Oneonta Facility Director of Nursing Glenda Burns telling employees
at a meeting that Burns knew employees had problems, that the Re-
spondent was working on fixing them, and that the Union wasn’t the
way to go. The judge relied on both McKelvaine’s and Burns’ state-
ments in making his finding of a violation. However, any violation
predicated on Burns’ statement would be cumulative and does not
affect the remedy or the order.
The judge found that the Respondent violated Section
8(a)(1) of the Act by interrogating an employee about her
union activity and the union activity of other employees
(cplt. 13), by threatening employees with loss of benefits
if they supported the Union (cplt. 14), threatening em-
ployees with adverse changes in working conditions if
they chose union representation (cplt. 15), and by solicit-
ing employee grievances and impliedly promising to
remedy them if employees ceased supporting the Union
(cplt. 16–17).3 We agree with the judge.4 We also agree
with the judge that the violations which occurred during
the critical period constituted objectionable conduct and
that a second election is warranted.5 In addition, al-
though we agree with the judge that Respondent’s shown
proclivity to violate the Act justifies a broad order,6 we
do not agree with the judge that a corporatewide order
and notice posting provisions are necessary in this case.
As justification for a corporatewide remedy, the judge
noted that the Respondent had stipulated that it was a
single-integrated enterprise. He found based on prior
Board precedent that the Respondent had both a procliv-
ity to violate the Act and a sustained corporate-level un-
ion animus. And he noted that Alabama Group Human
Resources Manager Mike McKelvaine, a Respondent
official above the facility level, committed at least two of
the violations.
Although the Board has ordered corporatewide reme-
dies in other cases involving this Respondent, this case is
distinguishable. In those cases, the Respondent commit-
ted multiple violations at multiple locations with high-
ranking corporate and regional officials either visiting
the facilities at issue and playing a role in the unlawful
3 No exceptions have been filed to the judge’s findings that the Re-
spondent did not violate Sec. 8(a)(1) by soliciting employees to refrain
from supporting the Union, by asking an employee to get another em-
ployee to back off from supporting the Union, and by threatening ad-
verse changes in working conditions if employees selected a union
(Licensed Practical Nurse Shelby Walker’s statement to an employee
that “we could lose a lot of our benefits if they got the Union in there.
That we may not have our vacation days and holidays. We got cheaper
lunches and just different things that we already have now that we
could lose them if the Union came in and was negotiating a contract”).
4 Chairman Battista would find violations as to complaint allegation
pars. 13–16, but would not find a violation as to complaint allegation
par. 17, for reasons detailed above (fn. 2).
5 In finding that a new election is warranted due to the Respondent’s
objectionable conduct, we rely only on conduct set forth in complaint
pars. 14 and 16. In agreement with the judge, we do not rely on the
conduct set forth in complaint par. 13, as it occurred prepetition. We
also find it unnecessary to reach whether the conduct set forth in com-
plaint par. 15 occurred in the critical period as this determination does
not affect our order of a second election. Finally, we do not rely on the
conduct set forth in complaint par. 17 regarding Burns for the reasons
set forth in fn. 2 above.
6 Beverly Health & Rehabilitation Services, 335 NLRB 635, 640
(2001), enfd. in pertinent part 317 F.3d 316 (D.C. Cir. 2003).
339 NLRB No. 161
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1244
conduct, or taking prominent roles in directing, approv-
ing, or knowingly failing to prevent unlawful actions.7
Here, the Respondent committed three types of unfair
labor practices at one facility with a state manager being
the perpetrator in two instances. As such, this case in-
volves discrete violations at an individual facility, and, as
in other similar cases involving this Respondent, tradi-
tional remedies are warranted.8 We so order here.9
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Beverly Health and Rehabilitation Services,
Inc. and its wholly-owned subsidiary, Beverly Enter-
prises-Alabama, Inc. d/b/a Beverly Healthcare-Oneonta,
Oneonta, Alabama, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees regarding their
union sentiments and desires and the union sentiments
and desires of other employees.
(b) Threatening employees with adverse changes in
working conditions if they chose union representation.
(c) Threatening employees that they would lose bene-
fits if they supported the Union.
(d) Soliciting grievances from employees and impli-
edly promising to remedy them.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.

7 Beverly Health & Rehabilitation Services, supra; Beverly Califor-
nia Corp. (Beverly III), 326 NLRB 232 (1998), enfd. in part and re-
manded 227 F.3d 817 (7th Cir. 2000); Beverly California Corp. (Bev-
erly II), 326 NLRB 153 (1998), enfd. 227 F.3d 817 (7th Cir. 2000);
Beverly Enterprises (Beverly I), 310 NLRB 222 (1993), enf. denied in
relevant part sub nom. Torrington Extend-A-Care Employees Assn. v.
NLRB, 17 F.3d 580 (2d Cir. 1994).
8 New Madrid Nursing Center, 325 NLRB 897, 903 fn. 33 (1998),
and cases cited therein, enfd. 187 F.3d 769 (8th Cir. 1999).
9 In finding that a corporatewide remedy is not warranted, we distin-
guish Beverly Health & Rehabilitation Services, 335 NLRB 635 (2001)
(Beverly IV), enfd. in pertinent part 317 F.3d 316 (D.C. Cir. 2003),
from the instant case. In Beverly IV, the Board explicitly named five
“high ranking corporate and regional officials who played prominent
roles in directing, approving, or knowingly failing to prevent unlawful
actions,” including the company president, two vice presidents, and two
regional managers. 335 NLRB at 639. By contrast, we have no such
evidence of high-level management involvement in the unlawful con-
duct in this case. Indeed, our dissenting colleague can only say that
there is a “likelihood” that the unlawful conduct emanated from a cen-
tral source. That “likelihood” is not supported by concrete evidence of
central direction. Contrary to the view of our dissenting colleague, the
involvement of one state human resources manager, who is not alleged
to have had any involvement in corporate policy making, does not
provide that support.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Oneonta, Alabama, copies of the attached
notice marked “Appendix.”10 Copies of the notice, on
forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent 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 Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since June 27, 2000.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
IT IS FURTHER ORDERED that the election held in Case
10–RC–15153 be, and it is, set aside, and that the case
be, and it is, remanded to the Regional Director for Re-
gion 10 to conduct a new election when he deems the
circumstances permit the free choice of a bargaining rep-
resentative.
[Direction of Second Election omitted from publica-
tion.]

MEMBER LIEBMAN, dissenting in part.1
In Beverly Health & Rehabilitation Services (com-
monly known as Beverly IV), 335 NLRB 635 (2001),
enfd. in pertinent part 317 F.3d 316 (D.C. Cir. 2003), the
Board ordered a corporatewide remedy against this Re-
spondent.2 In Beverly IV, we held that

10 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 I agree with the majority opinion, except for its denial of a corpo-
ratewide remedy.
2 Respondent Beverly Healthcare-Oneonta has stipulated that it is a
single-integrated business enterprise with Beverly Health and Rehabili-
tation Services, Inc.
BEVERLY HEALTH & REHABILITATION SERVICES 1245
where we determine that a respondent is a single em-
ployer with a proclivity for violating the Act, we have
necessarily determined that the unfair labor practices
found have generally emanated from a central source.
. . . [A]lthough the respondent’s propensity to violate
the Act was manifested primarily where employees
happened to exercise their Section 7 rights, the propen-
sity exists corporatewide. This militates in favor of is-
suing a single, comprehensive remedial order and no-
tice which will have a deterrent effect at all the respon-
dent’s facilities. [335 NLRB at 642.]

As the judge found in the present case, the credited
evidence is consistent with the likelihood that the unfair
labor practices emanated from a central source. As de-
tailed by the judge, as well as in Beverly IV, supra, the
Respondent has shown a propensity for violating the Act.
Indeed, the majority does not take issue with the judge’s
finding that the violations here are similar to unlawful
statements which the Respondent’s agents have made to
other employees at other locations, and it is noteworthy
that the unfair labor practices here occurred during the
pendency of Beverly IV. The violations here also include
the commission of unfair labor practices by the Respon-
dent’s Alabama group resources manager, who was on
hand to explain the Respondent’s position on unioniza-
tion to groups of employees. Thus, it is apparent that the
unfair labor practices were not confined to local officials
but, on the contrary, included the commission of unfair
labor practices by a high-ranking regional official of the
Respondent.
In these circumstances, it is puzzling that the majority
concludes that the violations in this case are merely local
in character and no more than “discrete violations at an
individual facility.” It seems that the majority infers that
the regional corporate official who visited this facility
and committed unfair labor practices was acting alone
and on an ad hoc basis. In my view, the opposite infer-
ence is warranted. It seems far more likely that the re-
gional manager was present at this facility for a reason,
namely, to implement the Respondent’s corporate labor
policies and to conduct himself in a manner consistent
with those policies. To that end, he was successful. Fur-
ther, issuance of a corporatewide remedy is consistent
with our findings in Beverly IV, supra, and promotes the
likelihood that our remedies will have a deterrent effect
at all the Respondent’s facilities. Accordingly, contrary
to the majority, I would find that corporatewide remedies
are appropriate.
APPENDIX B
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT coercively interrogate employees regard-
ing their union sentiments and desires and the union sen-
timents and desires of other employees.
WE WILL NOT threaten employees with adverse changes
in working conditions if they choose union representa-
tion.
WE WILL NOT threaten employees that they would lose
benefits if they supported the Union.
WE WILL NOT solicit grievances from employees and
impliedly promise to remedy them.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of rights guaranteed
you by Section 7 of the Act.

BEVERLY HEALTH AND REHABILITATION
SERVICES, INC. AND ITS WHOLLY-OWNED
SUBSIDIARY, BEVERLY ENTERPRISES-ALA-
BAMA, INC. D/B/A BEVERLY HEALTHCARE-
ONEONTA

John D. Doyle, Jr., Esq., for the General Counsel.
Keith R. Jewell, Esq., of Fort Smith, Arkansas, for the Respon-
dent.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on October 17, 2001, in Birmingham, Alabama. After the
parties rested, I heard oral argument, and on October 18, 2001,
issued a bench decision pursuant to Section 102.35(a)(10) of
the Board’s Rules and Regulations, setting forth findings of fact
and conclusions of law. In accordance with Section 102.45 of
the Rules and Regulations, I certify the accuracy of, and at-
tached as “Appendix A,” the portion of the transcript contain-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246
ing this decision.1 The remedy, conclusions of law, recom-
mended order, and notice provisions are set forth below.2
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act, including posting the notice to em-
ployees attached as “Appendix B.”
Additionally, the General Counsel seeks, and Respondent
opposes, a “corporatewide” remedy, that is, an order which
applies to all of Respondent’s management and facilities, and a
notice to be posted at all of Respondent’s facilities. So that I
could give their arguments further consideration, my bench
decision deferred ruling on this issue.
The General Counsel alleged in complaint paragraph 8 that
Respondent Beverly Health and Rehabilitation Services and
Respondent Oneonta constituted a single-integrated business
enterprise which, among other things, “have formulated and
administered a common labor policy affecting employees of
said operations.” Respondent denied this allegation, but at
hearing it entered into stipulation in which it agreed that the
single-employer status issue was res judicata, and in which it
consented to a finding “that its nursing home operations are a
single integrated employer for National Labor Relations Act
purposes.”
The stipulation acknowledges that this issue, whether Re-
spondent and its subsidiaries constitute a single-integrated
business enterprise, has already been litigated, and I take notice
of these prior decisions, including the Board’s recent decision
in Beverly Health & Rehabilitation Services, 335 NLRB 635
(2001). Based upon these findings, as well as the record in the
present case, I conclude that a corporatewide remedy is appro-
priate and necessary.
The appropriateness of such a corporatewide remedy does
not depend on whether a corporation’s top management partici-
pated in or directed the commission of unfair labor practices at
the particular facility involved in the specific case under con-
sideration. Rather, the appropriateness of a corporatewide rem-
edy turns on the respondent’s proclivity to violate the Act on a
corporatewide basis. In Beverly Health & Rehabilitation Ser-
vices, the Board stated:

[O]nce a single employer is shown to have established a per-
vasive corporate environment in which local management is
encouraged and even expected to violate the Act, we may

1 The bench decision appears in uncorrected form at pp. 193 through
224 of the transcript. The final version, after correction of oral and
transcriptional errors, is attached as appendix A to this certification.
2 Sec. 102.45 of the Board’s Rules provides, in part, that if the ad-
ministrative law judge issues a bench decision, “promptly upon receiv-
ing the transcript the judge shall certify the accuracy of the pages of the
transcript containing this decision; file with the Board a certified copy
of those pages . . . and cause a copy thereof to be served on each of the
parties.” Customarily, the Division of Judges receives the transcript of
hearing from the court reporting service after 14 days, but in this case,
there was a delay in receipt of the transcript which resulted in some
delay in filing this certification.
fairly presume for the purpose of remedy that all the viola-
tions found are at least in part attributable to that environment.

335 NLRB 642. Although the evidence in the present case
does not establish, by itself, “a pervasive corporate environ-
ment in which local management is encouraged and even ex-
pected to violate the Act,” evidence in recent cases led the
Board to conclude that this same Respondent has precisely such
a corporate environment.
In Beverly Health & Rehabilitation Services, supra, the
Board relied upon both the record before it and upon its prior
findings in Beverly California Corp., 326 NLRB 232 (1998)
(Beverly II”), to find Respondent’s corporate-level officials
responsible for the unfair labor practice committed at particular
locations. The Board stated:

In this case, we have not only the now-familiar pattern of in-
volvement of the Respondent’s corporate personnel in the
unlawful actions found to have occurred, but convincing
documentary evidence of the Respondent’s corporatewide re-
sponsibility for almost all of its actions pertaining to its em-
ployees’ protected activities.

335 NLRB 639. The Board issued its decision in Beverly
Health & Rehabilitation Services less than 3 months ago, and it
was not the first decision in which the Board has concluded that
this Respondent’s unfair labor practices warranted a corporate-
wide remedy. See Beverly California Corp., 334 NLRB 713
(2001).
In view of these recent cases, there is no reason to believe
that the unfair labor practices in the present case were isolated
acts unconnected to Respondent’s unfair labor practices else-
where. As the Board has stated:

[W]here we determine that a respondent is a single employer
with a proclivity for violating the Act, we have necessarily de-
termined that the unfair labor practices found have generally
emanated from a central source. The particular location
where employees engaged in Section 7 activity consequently
had little or no bearing on the respondent’s decision to re-
spond in an unlawful manner; the respondent would pre-
sumably have committed the same or similar violations re-
gardless of where the protected activity occurred.

335 NLRB 642. The present record doesn’t demonstrate that,
in committing the unfair labor practices found here, local su-
pervisors and managers were puppets and corporate-level man-
agers pulled the strings. But such a showing is not necessary.
Based on the Board’s recent decisions finding corporatewide
animus, it may be presumed that the unfair labor practices here
emanated from a central source. The credible evidence before
me does not rebut such a presumption. To the contrary, it is
consistent with this presumption.
Thus, a corporate official above the facility level, Alabama
Group Human Resources Manager Mike McKelvaine, commit-
ted two of the unfair labor practices alleged in the complaint.
He did so by making unlawful statements during meetings
called to inform employees of the Respondent’s position on
unionization. The fact that a member of higher management
came to the particular facility to counter the Union’s organizing
BEVERLY HEALTH & REHABILITATION SERVICES 1247
campaign clearly indicates that management at the corporate
level, and not merely the facility level, took the initiative.
It may be argued that the violations found in this case are not
as egregious as those found by the Board in other cases involv-
ing this Respondent. However, in considering the appropriate-
ness of a corporatewide remedy, I am concerned not with sever-
ity but with source.
By analogy, if an industrial plant were discharging a poison
into a waterway, the chemical would appear at different con-
centrations at various locations. At some points, the concentra-
tion might be high enough to kill all fish, while at other points,
the harmful effects might be less extreme. When a pollutant is
emanating from a central location, the need to stop it does not
depend upon the toxicity measured at one particular spot but
rather upon the potential harm it may cause throughout the
ecosystem.
Numerous Board proceedings have demonstrated that the
animus manifested at Respondent’s various facilities has a cen-
tral source. Despite prior Board orders, this animus has contin-
ued to flow, becoming apparent whenever and wherever Re-
spondent’s employees engage in protected concerted activities.
The animus demonstrated at the Respondent’s Oneonta facility
is only the latest outbreak.
For the reasons discussed above, I conclude that a corpo-
ratewide remedy is both appropriate and necessary. In Beverly
Health & Rehabilitation Services, 335 NLRB 635 (2001), the
Board required this Respondent to post two separate notices,
one at its facilities in Pennsylvania, and the other notice at Re-
spondent’s other facilities. The conduct found violative in the
present case, however, does not concern discrimination against
specific employees at Respondent’s Oneonta facility. Rather, it
involves violations of Section 8(a)(1) similar to statements
which Respondent’s agents have made to other employees at
other locations. Therefore, I conclude that it is appropriate to
require Respondent to post the same notice at all locations.
Because Respondent has demonstrated a proclivity for
violating the Act, I also conclude that a broad cease-and-desist
order prohibiting Respondent from interfering with, restraining,
or coercing employees in the exercise of Section 7 rights in any
other manner is warranted.
Additionally, as stated in the bench decision, I recommend
that the Board set aside the September 7, 2000 secret-ballot
election and direct that a new election be conducted. Further,
to minimize delay, I recommend that the Board sever Case 10–
RC–15153 and remand it to the Regional Director so that a new
election may be conducted.
CONCLUSIONS OF LAW
1. Beverly Health and Rehabilitation Services, Inc., and its
wholly-owned subsidiaries, including Beverly Enterprises Ala-
bama, Inc. d/b/a Beverly Healthcare-Oneonta, and each of them
have been affiliated business enterprises with common officers,
ownership, directors, management, and supervision; have for-
mulated and administered a common labor policy affecting
employees of the operations; have shared common premises
and facilities; have provided services for each other; have inter-
changed personnel with each other; and have held themselves
out to the public as a single-integrated business enterprise.
2. The Respondent, Beverly Health and Rehabilitation Ser-
vices, Inc., and its wholly-owned subsidiaries, including Bev-
erly Enterprises Alabama, Inc. d/b/a Beverly Healthcare-
Oneonta, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
3. The Charging Party, United Food and Commercial Work-
ers Union, Local 1657, AFL–CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
4. The Respondent violated Section 8(a)(1) of the Act by the
following actions:
(a) Coercively interrogating employees regarding their union
sentiments and desires and the union sentiments and desires of
other employees.
(b) Threatening employees that they would lose benefits if
they supported the Union.
(c) Soliciting grievances from employees for purposes of re-
dress.
(d) Promising benefits to employees to dissuade them from
supporting the Union.
5. The above unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
6. The Respondent did not engage in the unfair labor prac-
tices alleged in the consolidated complaint not specifically
found herein.
[Recommended Order omitted from publication.]
APPENDIX A
This is a bench decision in the case of Beverly Heath and
Rehabilitation Services, Inc., and its Wholly–Owned Subsidiary
Beverly Enterprises Alabama, Inc. d/b/a Beverly Healthcare–
Oneonta, which I will call the “Employer” or “Respondent,”
and United Food and Commercial Workers Union, Local 1657,
AFL–CIO, which I will call the “Union” or the “Charging
Party.” The case numbers are 10–CA–32797 and 10–RC–
15153.
This decision is issued pursuant to Section 102.35(a)(10) and
Section 102.45 of the Board’s Rules and Regulations. I find
that the General Counsel has proven most, although not all, of
the Section 8(a)(1) allegations in the Complaint. Further, I find
that these violations constitute objectionable conduct which
warrants setting aside the election and direction of a new one.

Procedural History

This case concerns events leading up to an election con-
ducted by the National Labor Relations Board, which I will call
the Board, In Case 10–CA–15153, the Union filed a representa-
tion petition in this case on July 27, 2000. It entered into a
Stipulated Election Agreement with the Employer which pro-
vided for a secret ballot election in which employees in the
following unit were eligible to vote:

All full-time and regular part-time nursing assistants, cooks,
dietary aides, housekeeping, laundry employees, central sup-
ply clerk, activity department assistants, and maintenance as-
sistants employed by the employer at its 215 Valley Road,
Oneonta, Alabama facility, but excluding all registered
nurses, licensed practical nurses, activity department director,
social services coordinator, registered dietitian, dietary man-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248
ager, maintenance supervisor, department heads, office cleri-
cal employees, temporary and casual employees, professional
employees, guards, managers and supervisors as defined in
the Act.

On September 7, 2000, the Board conducted the secret ballot
election. The tally of ballots showed that of approximately 70
eligible voters, 32 cast valid votes for and 34 cast valid votes
against the Union. There was one challenged ballot and one
void ballot. The challenged ballots were not sufficient in num-
ber to affect the results of the election.
On September 12, 2000, the Union filed timely objections to
the election, which were duly served on the Employer.
On November 29, 2000, the Union filed an unfair labor prac-
tice charge against the Employer in Case 10–CA–32797. On
March 30, 2001, after investigation of the charge, the Regional
Director of Region 10 issued a Complaint and Notice of Hear-
ing, which I will call the “Complaint.” In issuing this com-
plaint, the Regional Director acted on behalf of the General
Counsel of the Board, whom I will refer to as the “General
Counsel” or as the “government.”
The Complaint and the Union’s Objections to the election
concern the same alleged acts. The Complaint alleges these
acts to be unfair labor practices. The Objections assert that this
same alleged conduct tainted the September 7, 2000 election
and that the Board should set this election aside and conduct a
new one.
On April 19, 2001, the Regional Director of Region 10 is-
sued an Order which consolidated Case 10–RC–15153 with
Case 10–CA–32797 and directed a hearing before an adminis-
trative law judge. On October 17, 2001, that hearing opened
before me in Birmingham, Alabama. After the General Coun-
sel and Respondent had presented evidence, counsel for each
gave oral argument. Today, October 18, 2001, I am issuing this
bench decision.

Admitted Allegations

Respondent’s Answer to the Complaint admitted a number
of allegations. Based on these admissions, I find that the Gen-
eral Counsel has proven the allegations raised in Complaint
paragraphs 1(a), 1(b), 3, 4, 5, 6, 7, 10, 11, and 12. More spe-
cifically, I find that at all material times, Respondent Beverly
Health and Rehabilitation Services, Inc. and each of its wholly–
owned subsidiaries and individual facilities identified in the
Complaint, was an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act, and that each
was a health care institution within the meaning of Section
2(14) of the Act.
Further, I find that at all material times, the Charging Party
has been a labor organization within the meaning of Section
2(5) of the Act.
Additionally, I find that the following individuals are Re-
spondent’s supervisors within the meaning of Section 2(11) of
the Act and its agents within the meaning of Section 2(13) of
the Act: Licensed Practical Nurses Jerry Nichols, Shelby
Walker and Joan Mize; Alabama Group Human Resources
Manager Mike McKelvaine. Oneonta Facility Director of
Nursing Glenda Burns; Oneonta Facility Executive Director
Laurel (Lollie) Massey.

Respondent’s Status as Single Integrated Enterprise

Respondent’s Answer partially denied the allegations raised
in Complaint paragraphs 2, 8, and 9, which pertain to the rela-
tionship between Respondent and its wholly–owned subsidiar-
ies and individual facilities. Referring to Beverly Health and
Rehabilitation Services, Inc. as “Respondent BHR,” Complaint
paragraph 8 alleges as follows:

At all material times herein, Respondent BHR and its wholly-
owned subsidiaries including Respondent Oneonta, and indi-
vidual facilities, and each of them have been affiliated busi-
ness enterprises with common officers, ownership, directors,
management, and supervision; have formulated and adminis-
tered a common labor policy affecting employees of said op-
erations; have shared common premises and facilities; have
provided services for each other; have interchanged personnel
with each other; and have held themselves out to the public as
a single integrated business enterprise.

Complaint paragraph 9 alleges as follows:

By virtue of its operations described above, Respondent BHR
and its wholly-owned subsidiaries including Respondent
Oneonta, and individual facilities constitute a single integrated
business enterprise and a single employer within the meaning
of the Act.

At hearing, the General Counsel and Respondent entered into
a stipulation regarding these allegations. The stipulation states,
in part, as follows:

Respondent, although it still contends that it is not a single in-
tegrated employer for National Labor Relations Act purposes
or any other purposes, hereby acknowledges, stipulates and
agrees that the issue of Respondent’s single employer status
under the National Labor Relations Act is res judicata. Pur-
suant to the administrative and judicial determinations made
on full records which are substantially similar to the facts as
they now are, Respondent expressly consents to a finding in
the above-referenced case by the National Labor Relations
Board and any reviewing court that its nursing home opera-
tions are a single integrated employer for National Labor Re-
lations Act purposes.

Both Respondent and Counsel for the General Counsel
hereby expressly acknowledge that this stipulation does not
constitute a waiver by Beverly of any other arguments regard-
ing the propriety of the nation-wide cease and desist order
sought by the General Counsel. Both Respondent and Coun-
sel for the General Counsel hereby expressly acknowledge
that this stipulation has no effect whatsoever beyond the case
captioned hereinabove.

Based upon this stipulation and the record as a whole, I find
that Respondent Beverly Health and Rehabilitation Services,
Inc., and its wholly-owned subsidiaries including Respondent
Oneonta, and individual facilities constitute a single integrated
business enterprise and a single employer within the meaning
of the Act, as alleged in Complaint paragraph 9.

BEVERLY HEALTH & REHABILITATION SERVICES 1249
Legal Standards to Be Applied

In determining whether statements by Respondent’s repre-
sentatives interfere with, restrain or coerce employees in the
exercise of Section 7 rights, I will apply an objective standard.
Under this standard, the intent of the person who made the
statement is not relevant. Neither is the effect of the statement
on a particular person. In other words, it is irrelevant that a
statement may not have chilled the union activities of the per-
son who heard it, or changed the way this employee voted in
the election. Rather, the lawfulness of the statement must be
judged by the effect it reasonable would have on employees.
In determining whether a particular statement constitutes ob-
jectionable conduct warranting setting aside the election, I will
apply a similar objective standard. See Hopkins Nursing Care
Center, 309 NLRB 958 (1992).

Unfair Labor Practice Allegations

Complaint Paragraph 13

Complaint paragraph 13 alleges that on or about June 27,
2000, Respondent, by its agent Jerry Nichols, at Respondent’s
Oneonta, Alabama facility, coercively interrogated employees
regarding their union sentiments and desires and the union sen-
timents and desires of other employees. Respondent denies this
allegation.
Respondent’s employee Juanita Middlebrook, a nursing as-
sistant, testified that on one occasion when she came out of a
patient’s room, Licensed Practical Nurse Nichols called her
over to the medicine cart, where he was standing. According to
Middlebrook, Nichols asked if she knew who was behind
bringing the Union in. Middlebrook replied that she wouldn’t
say. Middlebrook testified that Nichols said, “You can tell me,
I won’t tell nobody,” but that she just walked away.
When Nichols testified, Respondent asked him if he “had
any occasion” to ask employees about other employees’ union
activities. Nichols answered, tersely and simply, “no.” When
asked specifically if he “had occasion to speak to Juanita Mid-
dlebrook” about how other employees felt about the Union, he
answered “No, not myself, no.”
I do not credit Nichols’ denial. At the time they testified,
both Nichols and Middlebrook were still employed by Respon-
dent. Therefore, they both had some incentive to testify in a
manner favorable to Respondent. Yet Middlebrook’s testimony
could result in a finding that Respondent violated the law.
Middlebrook would have no reason to give such testimony if it
were not true.
Moreover, Nichols’ denial is rather vague. Nichols denied
having occasion to ask Middlebrook about the union activities
of other employees. Such a denial is not quite the same as de-
nying that he actually did ask Middlebrook the question.
Additionally, based on my observations of the witnesses, I
conclude that Middlebrook was more credible. For all these
reasons, I credit her testimony, rather than Nichols’, and find
that Nichols did make the statement which Middlebrook attrib-
uted to him.
In determining whether Nichols’ question to Middlebrook
violated the Act, I draw on the guidance of SAIA Motor
Freight, Inc., 334 NLRB No. 124 [979] (August 7, 2001). As
discussed in that case, to determine whether an interrogation
violated the Act, the Board considers the following factors: the
background in which the questioning occurs, the nature of the
information sought, the identity of the questioner, the place and
method of interrogation, and whether the employee involved
was an open and active union supporter.
Several of these factors militate in favor of finding the ques-
tioning violative. When Nichols interrogated Middlebrook, the
Union was trying to organize the employees. Nichols sought
the identity of the individuals behind the Union’s effort. Nich-
ols was an admitted supervisor and agent of Respondent who
attended meetings at which other supervisors discussed the
Union organizing drive. Further, the record fails to establish
that Middlebrook was an open and active union supporter. All
of these facts suggest that the questioning interfered with, re-
strained and coerced employees in the exercise of their Section
7 rights.
On the other hand, the interrogation did not take place in a
locus of management authority. Rather, Nichols posed the
question to Middlebrook in the hallway of the facility, next to
the medicine cart. Additionally, Nichols is not a higher man-
agement official but a first-line supervisor.
I conclude that the factors militating in favor of finding a
violation outweigh those against finding a violation. In the
context of a union organizing campaign, questioning an em-
ployee about the identity of union supporters is highly coercive.
Therefore, I recommend that the Board find that Respondent
violated Section 8(a)(1) of the Act, as alleged in Complaint
paragraph 13.

Complaint Paragraph 14

Complaint paragraph 14, as amended at hearing, alleges that
sometime during the period July 1, 2000 to September 7, 2000,
the exact date presently unknown to the Acting General Coun-
sel but well known to Respondent, Respondent, by its agent
Mike McKelvaine, at Respondent’s Oneonta, Alabama facility,
threatened employees that they would lose benefits if they sup-
ported the Union. Respondent denies this allegation.
During the union organizing campaign, management held
meetings to present its position to employees. The Alabama
Group human resources manager, Mike McKelvaine, con-
ducted or participated in some of these meetings. Respondent
has admitted that McKelvaine is its supervisor and agent.
McKelvaine denied telling employees that they would lose
benefits if they selected the Union.
While working at Respondent’s facility, nursing assistant
Nora Harper attended some of these meetings. According to
Harper, McKelvaine told the employees attending that if the
union came in, they would lose the Blue Cross/Blue Shield
insurance, and that they would have to get the union insurance,
which wasn’t as good as Blue Cross.
Harper’s pretrial affidavit, which was placed in evidence, is
consistent with her testimony at hearing. Based on this consis-
tency, as well as my observations of the witnesses as they testi-
fied, I credit Harper’s testimony about this matter.
Another nursing assistant, Sarah Fowler, also attended meet-
ings at which McKelvaine spoke. Fowler testified that McKel-
vaine told employees that their insurance would not be the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
same and that some benefits would change if the Union were
selected.
Fowler gave a pretrial affidavit and also provided the Gen-
eral Counsel another handwritten statement. These statements
do not mention McKelvaine telling employees that their insur-
ance would not be the same or that some benefits would
change. Moreover, her affidavit states that McKelvaine “did
not make any specific promises or threats.”
In some circumstances, the differences between Fowler’s
testimony and her pretrial affidavit might raise questions about
the reliability of her testimony. Those circumstances are not
present here. Although her affidavit does state that McKel-
vaine did not make any specific threats, it does not elaborate on
the meaning of the word “threat.” Ordinarily, that word carries
a somewhat menacing connotation, and it is not clear that the
affiant would consider a statement about a change in insurance
benefits to be the kind of overtly hostile behavior commonly
associated with a threat.
Based on my observations of the witnesses, I conclude that
Fowler’s testimony is reliable and I credit it.
Another nursing assistant, Janet Sherbet, testified that she at-
tended a meeting at which McKelvaine spoke. According to
Sherbet, McKelvaine said, “we could lose a lot of our benefits
if we got a union in there when they were negotiating contracts,
and just things like that, if we had problems that they could
work ‘em out, somehow.”
Respondent called a nursing assistant, Erin Dingler, who at-
tended one or two of the meetings conducted by McKelvaine.
She testified that McKelvaine did not discuss what would hap-
pen to benefits if the employees selected a union. She also did
not recall McKelvaine mentioning insurance.
In examining this testimony, it is important to keep in mind
that Respondent conducted a number of meetings at which
McKelvaine spoke. What McKelvaine said at a meeting at-
tended by one witness might not be identical to what he said at
another meeting attended by other witnesses. Thus, the fact
that employee Dingler did not hear McKelvaine make a viola-
tive statement does not foreclose the possibility that he did so at
another meeting she did not attend.
Relying on Harper’s testimony, which I credit, I find that at a
meeting she attended, McKelvaine told employees that if the
union came in, they would lose the Blue Cross/Blue Shield
insurance, and that they would have to get the union insurance
which wasn’t as good as Blue Cross. The record does not es-
tablish that McKelvaine made any statement to qualify or ex-
plain a change of insurance benefits as simply a possible out-
come of the collective-bargaining process. To the contrary,
Harper quoted McKelvaine as making the flat statement that
employees would lose their Blue Cross/Blue Shield insurance
and would have to obtain the Union’s insurance which wasn’t
as good. Clearly, that was the message communicated to
Harper and the message she understood.
Similarly, the credited testimony of Sarah Fowler establishes
that at a meeting she attended, McKelvaine said that if the Un-
ion were selected, the employees’ insurance would not be the
same or that some benefits would change. Again, Fowler’s
testimony does not show that McKelvaine described this
change as a possible outcome of the collective-bargaining proc-
ess rather than the inevitable result of selecting the Union.
I conclude that the statements McKelvaine made to employ-
ees at the meetings attended by Harper and Fowler interfered
with, restrained and coerced employees in the exercise of their
Section 7 rights. Therefore, I recommend that the Board find
that these statements violated Section 8(a)(1) of the Act. Fur-
ther, I recommend that the Board find that these statements,
made during the critical period, warrant setting aside the elec-
tion and directing that another be conducted.
On the other hand, I do not conclude that McKelvaine vio-
lated the Act by making the statement attributed to him by em-
ployee Sherbet. She testified that McKelvaine told the employ-
ees “we could lose a lot of our benefits if we got a union in
there when they were negotiating contracts. . .”
Based on my observations of the witnesses, I find that Sher-
bet testified honestly, but that her mind had abstracted and con-
densed McKelvaine’s comments considerably before it saved
them to long term memory. Her recollection that McKelvaine
told employees they could lose a lot of benefits “when they
were negotiating contracts” suggests that on this occasion,
McKelvaine did explain that a change in benefits could result
from the bargaining process.
Sherbet’s recollection, standing alone, is not sufficient to
support a finding that Respondent violated the Act. I do not
rely upon it in concluding that Respondent committed the un-
fair labor practice alleged in Complaint paragraph 14.

Complaint Paragraph 15

Complaint paragraph 15 alleges that sometime in August and
September 2000, on dates not presently known to the Acting
General Counsel but well known to Respondent, Respondent,
by its agents Shelby Walker and Glenda Burns, at Respondent’s
Oneonta, Alabama facility, threatened employees with adverse
changes in working conditions if they chose Union representa-
tion. Respondent denies this allegation.
Respondent has admitted that Walker is its supervisor and
agent. Walker schedules employees for work. To request a day
off, a nursing assistant goes to Walker, who typically grants the
request.
Sarah Fowler testified that on one occasion, she requested
that Walker give her a day off. According to Fowler, Walker
granted the request but said that once the Union got in, the
schedule would remain the same and that she, Walker, would
not be able to change it. Fowler provided a consistent account
of this incident in her pretrial affidavit.
Walker denied making this statement to Fowler. Based upon
my observations of the witnesses, I credit Fowler’s testimony
and find that Walker did make the statement which Fowler
attributed to her.
Further, I conclude that this statement—that once the Union
got in, the schedule would remain the same and that she,
Walker, would not be able to change it—interferes with, re-
strains and coerces employees in the exercise of Section 7
rights, in violation of Section 8(a)(1) of the Act. Walker did
not qualify the statement to indicate that, as a result of the col-
lective-bargaining process, certain benefits and working condi-
BEVERLY HEALTH & REHABILITATION SERVICES 1251
tions would change. Rather, Walker linked the change in bene-
fits directly to the selection of the Union.
Additionally, Walker made this statement during the critical
period. I recommend that the Board find that the statement
constitutes objectionable conduct warranting setting aside the
election and directing a new one.
Employee Janet Sherbet testified that the day before the elec-
tion, she heard Walker tell another employee that she, Walker,
had four weeks vacation and “would sure hate to lose it if the
Union came in, she felt like she would.”
Sherbet further testified that during this same conversation,
Walker told the other employee “that if we got the Union in,
that it would be run more like a business, it wouldn’t be like a
family place anymore.” Sherbet quoted Walker as saying that
the nurses had been told they wouldn’t be able to “pal around”
with the nursing assistants because the Union “might do some-
thing to ‘em if they did.”
According to Sherbet, Walker said that “we could lose a lot
of our benefits if they got the Union in there, that we may have
our vacation days and our. . .holidays, we got cheaper lunches
and just different things that we already have now that we could
lose ‘em if the Union came in negotiating a contract.”
Rather emphatically, Walker testified that she never dis-
cussed anything with Sherbet because “she was not the type to
discuss anything with” and because Sherbet was angry most of
the time. But Walker’s denial that she discussed the Union
with Sherbet is not quite a denial that she made the statements
which Sherbet attributed to her. Sherbet did not testify that
Walker made the statements directly to her, Sherbet, but rather
that Walker made the statements to another employee in Sher-
bet’s presence.
Walker’s testimony falls short of a flat denial in another re-
spect. She testified that she did not recall making any state-
ments concerning the way a Union’s presence would affect the
relationships between employees and supervisors. But she
admitted saying that “we would have a third party that would,
you know, be in between everybody.”
Considering that Walker did not squarely deny the state-
ments attributed to her by Sherbet, and based upon my observa-
tions of the witnesses, I credit Sherbet’s testimony, rather than
Walker’s. Relying on that testimony, I find that Walker told
employees that if the Union came in, the facility would be run
“more like a business” and wouldn’t be a “family place” any
more. Further, I find that Walker said that the nurses had been
told that if the Union came in, the nurses would not be able to
“pal around” with the nursing assistants because the Union
might “do something” to them.
If Walker’s comments that the facility would be run “more
like a business” and would not be a “family place” any more
stood by themselves, I would not recommend that the Board
find a violation. However, they must be considered in light of
Walker’s additional statement that the nurses would not be able
to “pal around” with the nursing assistants because the Union
might “do something” to them. This latter statement clearly
conveys any change in the family atmosphere of the staff would
result not from structure imposed by a negotiated collective-
bargaining agreement, but from Union action directed at the
nurses. The statement that the Union might “do something” to
the nurses implies that the Union would act with malicious
intent to destroy friendships rather than from legitimate purpose
related to collective bargaining.
In these circumstances, I conclude that Walker’s comments
violate Section 8(a)(1) of the Act. Further, I conclude that they
interfere with the laboratory conditions necessary for free and
uncoerced choice. Because Walker made the statements during
the critical period, I recommend that the Board find them to
constitute objectionable conduct.
Based on Sherbet’s credited testimony, I have also found that
Walker told an employee “we could lose a lot of our benefits if
they got the Union in there, that we may have our vacation days
and our . . . holidays, we got cheaper lunches and just different
things that we already have now that we could lose ‘em if the
Union came in negotiating a contract.”
Walker did not say that the employees would lose benefits
but only that they could, and she tied such possible changes to
negotiations for a collective–bargaining agreement. I conclude
that the statement falls short of interfering with, restraining or
coercing the employees in the exercise of Section 7 rights. I do
not recommend that the Board find that this statement violates
Section 8(a)(1) or constitutes objectionable conduct.
Employee Nora Harper testified that Director of Nursing
Glenda Burns commented to her that if the Union came in,
things would “only get worse” and that in bargaining, if the
Union “got something, they would only take something away.”
Harper’s pretrial affidavit, and her handwritten statement at-
tached to it, do not mention Burns making the statement Harper
described in her testimony. Moreover, Harper’s affidavit states,
in part, as follows:

Attached to this affidavit is a two-page handwritten
statement which I prepared. The information in that
statement is true and accurate to the best of my knowledge
and belief.
Other than the above, I have not heard any Beverly
Supervisor, Manager or other official say anything to any-
one or ask anyone anything about the Union.

Thus, Harper’s affidavit contradicts her testimony. Therefore, I
do not credit her testimony on this point, although as already
noted, I credited her testimony on another point.
Burns testified that she recalled having a conversation in
which she discussed benefits with an employee, but she was not
sure whether that employee was Nora Harper. According to
Burns, she told the employee that if a Union were selected,
benefits would be negotiated. She denied telling any employee
that things would be taken away during negotiations or that
things would get worse. I credit Burns’ testimony on this point
and conclude that she did not threaten employees with adverse
changes in working conditions if they chose Union representa-
tion.

Complaint Paragraph 16

Complaint paragraph 16, as amended at hearing, alleges that
sometime in August 2000, on a date not presently known to the
Acting General Counsel but well known to Respondent, Re-
spondent, by its agent Mike McKelvaine, at Respondent’s One-
onta, Alabama facility, solicited grievances from employees for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
purposes of redress and promised benefits to employees in or-
der to dissuade them from supporting the Union. Respondent
denies this allegation.
Before the election, McKelvaine conducted an employee
meeting which Sarah Fowler attended. Fowler testified that
McKelvaine told the employees that the Union could not help
them, that he knew the problems and that he would stick around
and help them with their problems. Fowler’s testimony is con-
sistent with an affidavit she gave to a Board investigator on
January 19, 2001. That affidavit describes an employee meet-
ing that Fowler attended on September 5, 2000, two days be-
fore the election. The affidavit states, in part, as follows:

Mike [McKelvaine] did tell us that he was going to stick
around and make things better. He said he would meet with
each of us CNAs to talk to us about what we thought was
wrong. In the meeting, [Director of Nursing] Glenda [Burns]
told us that she knew we had problems and that every busi-
ness has problems, but she was going to try to make it better.

Fowler’s testimony is also consistent with a handwritten
statement she prepared on September 9, 2000, only four days
after the meeting in question. That document, which also is in
evidence, states in part as follows:

Glenda Burns, Mike [McKelvaine] and Joan Mize stated at
that meeting held on Tuesday September 5, 1000 that they
know they have a lot of problems but they promise to change
and make it better if we just give them a chance.

McKelvaine denied soliciting grievances from employees or
promising benefits to employees to dissuade them from sup-
porting the Union. Additionally, employee Erin Dingler testi-
fied that she attended one or two of the meetings at which
McKelvaine spoke and that he did not discuss employee prob-
lems at these meetings.
For several reasons, I credit Fowler’s testimony. First, her
testimony is consistent with both her pretrial affidavit and with
her September 9, 2000 statement. Second, the statement attrib-
uted to McKelvaine is consistent with the text of a speech by
the highest management official at the Oneonta facility, Execu-
tive Director Laurel Massey. In this speech, Massey acknowl-
edged and apologized for mistakes. Then she stated:

I AM ASKING FOR YOUR SUPPORT. WITH IT I CAN
CORRECT THESE MISTAKES AND THEREBY
SUPPORT YOU MORE FULLY.

This text at least approaches a promise of benefits. There is
but a thin line between asking for employees’ support to “cor-
rect mistakes” and soliciting employees’ grievances and prom-
ising to redress them. Respondent conducted a vigorous and
coordinated campaign to persuade employees to vote against
the Union. It appears likely that McKelvaine elaborated on the
same theme as Massey but in doing so, his language crossed the
line.
Fowler quoted McKelvaine as saying that he was going to
“stick around” and make things better. McKelvaine did act
consistently with this statement attributed to him.
For these reasons, as well as my observations of the wit-
nesses, I credit Fowler’s testimony and find that McKelvaine
did make the statements Fowler attributed to him. Moreover, I
conclude that these statements interfered with, restrained and
coerced employees in the exercise of their Section 7 rights and
thereby violated Section 8(a)(1) of the Act.
McKelvaine made these statements in a meeting only two
days before the election. I find that the statements constitute
objectionable conduct and recommend that the Board set aside
the election and direct a new one.

Complaint Paragraph 17

Complaint paragraph 17 alleges that on or about September
5, 2000, Respondent, by its agent Glenda Burns, at Respon-
dent’s Oneonta, Alabama facility, promised employees benefits
if they refrained from supporting the Union. Respondent de-
nies this allegation.
Employee Sarah Fowler testified that before the election, she
attended a meeting at which Director of Nursing Burns spoke.
According to Fowler, Burns said that she knew they had prob-
lems, that they were working on fixing them, and that the Un-
ion wasn’t the way to go. Fowler’s testimony is consistent with
her pretrial affidavit and with the September 9, 2000 statement
she wrote four days after the meeting.
Because of this consistency, and based upon my observations
of the witnesses, I credit Fowler’s testimony. Further, I find
that Burns made the statement which Fowler attributed to her.
As stated in Hill Park Health Care Center, 334 NLRB No.
55 [328] (June 20, 2001), the “Board recognizes that when an
employer institutes a new practice of soliciting employee com-
plaints during an organizational campaign, there is a compel-
ling inference of an implicit promise to correct the inequities
discovered and to convince employees that the combination of
inquiry and correction will make union representation unneces-
sary. DTR Industries, 311 NLRB 833, 834 (1993).”
In the Hill Park Health Care Center case, the employer had
distributed to employees a pamphlet informing them of a pre–
existing “800” number hotline which they could call to voice
their concerns. The Board stated, in part:

[W]e find that the Respondent’s distribution of the pamphlet
during the critical period signaled to employees that the Union
might not be necessary given the Respondent’s willingness to
listen to and give consideration to their employment-related
concerns.

334 NLRB No. 55 [328] at footnote 2.
In the present case, Complaint paragraph 17 does not allege
that Respondent solicited grievances but only that it promised
employee benefits if they refrained from supporting the Union.
However, it may be noted that Respondent distributed to its
supervisors a “Guide to Legal Conduct During a Union Orga-
nizing Campaign” which actually did more than inform the
supervisors about the law. This “Guide” also embodied the
message which management wanted the supervisors to convey
to the employees. Thus, it included a section captioned
“WHAT YOU CAN AND SHOULD DO.” Under this head-
ing, management instructed the supervisors to do, among other
things, the following:

18. Tell associates [employees] that non-represented associ-
ates at the facility are strictly protected by problem solving
BEVERLY HEALTH & REHABILITATION SERVICES 1253
procedures, including the facility’s open door policy, hotline,
and peer review, all of which are described in the associate
handbook.
. . . .
28. Tell associates that you and other members of manage-
ment are always willing to discuss with them any subject of
interest to them.

Paragraph 18 of the “Guide,” quoted above, apparently refers
to an “Open Door/Problem Solving Policy” not unlike a griev-
ance procedure in a negotiated collective-bargaining agreement.
Respondent had posted this policy on a bulletin board at the
facility in May 1998.
I find that Burns told employees that they were working on
fixing problems and that the Union was not the way to go, in a
context which made an explicit solicitation of their grievances
unnecessary. Burns’ statement interfered with, restrained and
coerced employees in the exercise of Section 7 rights. I rec-
ommend that the Board find that it constitutes a violation of
Section 8(a)(1) of the Act and objectionable conduct warranting
setting the election aside and directing a new one.

Complaint Paragraph 18

Complaint paragraph 18 alleges that sometime during Au-
gust or September 2000, the exact date presently unknown to
the Acting General Counsel but well known to the Respondent,
Respondent, by its agent Lollie Massey, at Respondent’s One-
onta, Alabama facility, solicited employees to refrain from
engaging in support for the Union.
Employee Nora Harper testified that sometime during the
union organizing campaign, while she was at the Coke machine
to get a soft drink for a resident, Executive Director Massey
approached her. No one else was present. According to
Harper, Massey asked her to “talk to the ladies” on second shift
and get them to change their votes to “no.” Harper’s testimony
is consistent with her pretrial affidavit, which incorporates an
earlier statement she had written. In that statement, Harper
wrote that “at some point before election date” Massey “ask[ed]
me since I was working over all the time to please talk to the
girls on 2nd shift to change their votes to ‘NO’!” (Emphasis in
original.)
Massey testified that on a couple of occasions, employees—
whose names she did not recall—approached her “with com-
ments about ‘you know where this business with the Union got
started, it was the second shift and somebody needs to talk with
them.’ And I said ‘Yes, I’m aware of that but at this time I
don’t feel it would be very effective for me to attempt to talk
with the second shift but if they chose to do so that’s your op-
tion.’”
For reasons I have already given, I have doubts about the re-
liability of some of Harper’s testimony. It should be noted that
Massey’s testimony also does not inspire a lot of confidence.
Considering the Respondent’s forceful campaign against union
representation, and considering Massey’s role as the top man-
ager at the facility, it seems a bit implausible for her to forget
the names of the employees who came to her with the informa-
tion that the organizing drive began on the second shift.
Massey’s basic message to these employees does sound
plausible. Boiled down to the simplest words, she told these
employees that she wasn’t going to say anything to the second
shift employees but if they wanted to, they could.
The General Counsel bears the burden of proof. Because of
my doubts about the reliability of some of Harper’s testimony, I
conclude that the General Counsel has not carried this burden.
Rather, crediting Massey, I find that she did not make the re-
marks attributed to her by Harper. Therefore, I recommend that
the Board dismiss the allegations raised in Complaint paragraph
18.

Statement Not Alleged in Complaint

Employee Nora Harper testified that before the election, an-
other employee, Sarah Fowler, was wearing both a Union pin
and a “vote no” pin. Harper testified that Supervisor Shelby
Walker asked Harper to talk to Fowler and to get Fowler to
back off the Union. Harper’s pretrial affidavit refers to this
matter, although it also implicates Director of Nursing Burns.
Specifically, in a handwritten statement attached to the affidavit
and incorporated in it, Harper stated as follows:

At some point before election date Shelby [Walker] and
Glenda Burns—D.O.N. ask[ed] me to talk to Sarah Fowler
about the union, to try to convince her to back off.

Although the Complaint does not specifically allege this al-
legation, in certain circumstances the Board may find that unal-
leged conduct violates the Act, provided that the facts have
been fully litigated. Therefore, I believe it is appropriate to
make credibility resolutions regarding this matter.
In examining the facts related to Complaint paragraph 15, I
did not credit Harper’s testimony about a certain statement
attributed to Director of Nursing Burns, because the testimony
was inconsistent with Harper’s pretrial affidavit. Because of
this inconsistency, I do not credit Harper’s testimony this mat-
ter, to the extent it may conflict with that of other witnesses.
It is certainly true that a judge may discredit some portions
of the testimony of a witness but credit other portions, and I
have done so regarding Harper’s testimony. It is also true that
Harper’s testimony about this matter—namely, that Walker
asked Harper to persuade Fowler to back off the union—finds
support in her pretrial affidavit. Still, Harper’s testimony about
this matter and her pretrial affidavit do not coincide completely,
and the differences are enough to continue my previous doubts
about the reliability of her testimony. Therefore, I do not credit
Harper and instead find that neither Walker nor Burns asked
Harper to persuade Fowler to back off of her support for the
Union.

Summary

To summarize, I have not credited all of the evidence ad-
duced by the General Counsel to establish the allegations in the
Complaint. However, the General Counsel has presented suffi-
cient credible evidence to establish the violations of Section
8(a)(1) alleged in Complaint paragraphs 13, 14, 15, 16 and 17,
but not the violation alleged in Complaint paragraph 18.
It appears that the violative conduct alleged in Complaint
paragraph 13 took place before the critical period. However,
the other violations of Section 8(a)(1) did occur within the
critical period and constitute objectionable conduct. I recom-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
mend that the Board set aside the September 7, 2000 election
and direct that a new one be conducted.

The Remedy

In addition to the standard notice posting, the General Coun-
sel seeks an extraordinary remedy, including an order which
applies to all of the Respondent’s facilities nationwide, a broad
cease and desist order, and an order requiring Respondent to
send written instructions to all its administrators, managers and
supervisors requiring them to comply with the provisions of the
Order and Notice. Respondent opposes such a remedy.
Both counsel for the General Counsel and Respondent have
submitted briefs on this issue. Each brief cites considerable
legal precedent.
Because of the seriousness and complexity of this matter, it
is important to review the cited cases and consider the briefs
carefully. Therefore, I will defer resolution of this issue until
issuing the Certification of Bench Decision, which I will now
discuss.

Certification of Bench Decision

When the transcript of this proceeding has been prepared, I
will issue a Certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Find-
ings of Fact, Conclusions of Law, Remedy, Order and Notice.
When that Certification is served upon the parties, the time
period for filing an appeal will begin to run.
Throughout this proceeding, counsel have demonstrated the
highest levels of professionalism and courtesy. Their coopera-
tion has shortened the length of the hearing considerably, and
provides an outstanding example of civility. Thank you. The
hearing is closed.

Hearing Closed: October 18, 2001 at 5:15 pm

D E C I S I O N
OCTOBER 18, 20014:30 P.M.
JUDGE LOCKE: This is a Bench Decision in the case of Bev-
erly Health and Rehabilitation Services, Inc. and Its Wholly-
Owned Subsidiary Beverly Enterprises-Alabama, Inc. D/B/A
Beverly Healthcare-Oneonta, which I will call the Employer or
Respondent, and United Food and Commercial Workers Union,
Local 1657, AFL–CIO, which I will call the Union or the
Charging Party. The case numbers are 10–CA–32797, 10–RC–
15153.
This Decision is issued pursuant to Section 102.35(a)(10)
and Section 102.45 of the Board’s Rules and Regulations. I
find that the General Counsel has proven most, although not all,
of the Section 8(a)(1) allegations in the Complaint. Further, I
find that these violations constitute objectionable conduct
which warrants setting aside the election and direction of a new
one.

Procedural history:

This case concerns events leading up to an election con-
ducted by the National Labor Relations Board, which I will call
the Board. The Union filed a representation petition in Case
10–RC–15153 on July 27, 2000. And entered in to a stipulated
election agreement with the Employer, which provided for a
secret ballot election in which employees in the following unit
were eligible to vote. All full time and regular part time nurs-
ing assistants, cooks, dietary aides, housekeeping, laundry em-
ployees, central supply clerk, Activity Department assistants,
and Maintenance assistants employed by the Employer at it’s
215 Valley Road Oneonta, Alabama facility, but excluding all
registered nurses, licensed practical nurses, Activity Depart-
ment Director, Social Services Coordinator, registered dieti-
cian, dietary manager, Maintenance supervisor, department
heads, office clerical employees, temporary and casual employ-
ees, professional employees, guards, managers, and supervisors
as defined in the Act.
On September 7, 2000 the Board conducted a secret ballot
election. The tally of ballots showed that that of approximately
seventy (70) eligible voters thirty-two (32) cast valid votes for
and thirty-four (34) cast valid votes against the Union. There
was one challenged ballot and one void ballot. The challenged
ballots were not sufficient in number to affect the results of the
election.
On September 12, 2000 the Union filed timely objections to
the election, which were duly served on the Employer. On
November 29, 2000 the Union filed an unfair labor practice
charge against the Employer in Case 10–CA–32797. On March
30, 2001, after investigation of the charge, the Regional Direc-
tor of Region 10 issued a Complaint and Notice of Hearing,
which I will call the Complaint.
In issuing this Complaint the Regional Director acted on be-
half of the General Counsel of the Board, whom I will refer to
as the General Counsel or as the Government. The Complaint
and the Union’s objections to the election concern the same
alleged acts. The Complaint alleges these acts to be unfair
labor practices. The objections assert that this same alleged
conduct tainted the September 7, 2000 election and that the
Board should set this election aside and conduct a new one.
On April 19, 2001 the Regional Director of Region 10 issued
an Order which consolidated Case 10–RC–15153 with Case
10–CA–32797 and directed a hearing before an Administrative
Law Judge.
On October 17, 2001 that hearing opened before me in Bir-
mingham, Alabama. After the General Counsel and Respon-
dent had presented evidence counsel for each gave oral argu-
ment. Today, October 18, 2001, I am issuing this Bench Deci-
sion.

Admitted allegations:

Respondent’s answer to the Complaint admitted a number of
allegations. Based on these admissions I find that the General
Counsel has proven the allegations raised in Complaint Para-
graphs 1(a), 1(b), 3, 4, 5, 6, 7, 10, 11, and 12. More specifi-
cally, I find that at all material times Respondent Beverly
Health and Rehabilitation Services, Inc. and each of its wholly-
owned subsidiaries and individual facilities identified in the
Complaint was an employer engaged in commerce within the
meaning of Section 226 and 7 of the Act. And that each was a
healthcare institution within the meaning of Section 214 of the
Act.
BEVERLY HEALTH & REHABILITATION SERVICES 1255
Further, I find that at all material times the Charging Party
has been a labor organization within the meaning of Section 25
of the Act.
Additional, I find that the following individuals are Respon-
dent’s supervisors within the meaning of Section 2(11) of the
Act, and it’s agents within the meaning of Section 2(13) of the
Act: licensed practical nurses Jerry Nichols, Shelby Walker,
and Joan Mize, Alabama Group Human Resources Manager
Mike McKelvaine, Oneonta Facility Director of Nursing
Glenda Burns, Oneonta Facility Executive Director Laurel
“Lolly” Massey.

Respondent’s status as single integrated enterprise:

Respondent’s answer partially denies the allegations raised
in Complaint Paragraphs 2, 8, and 9, which pertain to the rela-
tionship between Respondent and it’s wholly-owned subsidiar-
ies and individual facilities. Referring to Beverly Health and
Rehabilitation Services, Inc. as Respondent BHR Complaint
Paragraph 8 alleges as follows. “At all material times herein
Respondent BHR and its wholly-owned subsidiaries, including
Respondent Oneonta and individual facilities, and each of them
have been affiliated business enterprises with common officers,
ownership directors, management, and supervision, have for-
mulated and administered a common labor policy effecting
employees of said operations. Have shared common premises
and facilities, have provided services for each other, have inter-
changed personnel with each other, and have held themselves
out to the public as a single integrated business enterprise.”
Complaint Paragraph 9 alleges as follows. “By virtue of its
operations described above Respondent BHR and it’s wholly-
owned subsidiaries, including Respondent Oneonta, and indi-
vidual facilities, constitute a single integrated business enter-
prise and a single employer within the meaning of the Act.”
At hearing the General Counsel and Respondent entered into
a stipulation regarding these allegations. The stipulation states
in part as follows. “Respondent, although it still contends that
it is not a single integrated employer for a National Labor Rela-
tions Act purposes, or any other purposes, hereby acknowl-
edges, stipulates and agrees that the issue of Respondent’s sin-
gle employer status under the National Labor Relations Act is
res adjudicata. Pursuant to the administrative and judicial de-
terminations made on full records which are substantially simi-
lar to the facts as they are now. Respondent expressly consents
to a finding in the above referenced case by the National Labor
Relations Board and any reviewing court that its nursing home
operations are a single integrated employer for National Labor
Relations Act purposes. Both Respondent and Counsel for the
General Counsel hereby expressly acknowledge that this stipu-
lation does not constitute a waiver by Beverly of any other
arguments regarding the propriety of the nationwide cease and
desist order sought by the General Counsel. Both Respondent
and Counsel for the General Counsel hereby expressly ac-
knowledge that this stipulation has no affect whatsoever be-
yond the case captioned here and above.”
Based upon this stipulations and the record as a whole I find
that Respondent Beverly Health and Rehabilitation Services,
Inc. and it’s Wholly-Owned Subsidiaries, including Respondent
Oneonta and individuals facilities constitute a single integrated
business enterprise, and a single employer within the meaning
of the Act as alleged in Complaint Paragraph 9.

Legal standards to be applied:

In determining whether statements by Respondent’s repre-
sentatives interfere with, restrain or coerce employees in the
exercise of Section 7 rights I will apply an objective standard.
Under this standard the intent of the person who made the
statement is not relevant. Neither is the affect of the statement
on a particular person. In other words, it is irrelevant that a
statement may not have chilled the Union activities of the per-
son who heard it, or changed the way this employee voted in
the election. Rather, the lawfulness of the statement must be
judged by the effect it reasonably would have on employees. In
determining whether a particular statement constitutes objec-
tionable conduct warranting sitting aside the election I will
apply a similar objective standard. See Hopkins Nursing Care
Center, 309 NLRB 958, 1992.

Unfair labor practice allegations, Complaint Paragraph 13:

Complaint Paragraph 13 alleges that on or about June 27,
2000 Respondent by it’s agent Jerry Nichols at Respondent’s
Oneonta, Alabama facility coercively interrogated employees
regarding their Union sentiments and desires and the Union’s
sentiments and desires of other employees. Respondent denies
this allegation.
Respondent’s employee Juanita Middlebrooks, a nursing as-
sistant, testified that on one occasion when she came out of a
patient’s room licensed practical nurse Nichols called her over
to the medicine cart where he was standing. According to
Middlebrooks Nichols asked if she knew who was behind
bringing the Union in. Middlebrooks replied that she wouldn’t
say. Middlebrooks testified that Nichols said, “You can tell
me, I won’t tell nobody,” but that she just walked away.
When Nichols testified Respondent asked him if he “had any
occasion” to ask employees about other employees’ Union
activities. Nichols answered tersely and simply, no. When
asked specifically if he “had occasion to speak to Juanita Mid-
dlebrooks” about how other employees felt about the Union he
answered, “No, not myself, no.” I do not credit Nichols’ de-
nial. At the time they testified both Nichols and Middlebrooks
were still employed by Respondent.
Therefore, they both had some incentive to testify in a man-
ner favorable to Respondent. Yet Middlebrooks’ testimony
could result in a finding that Respondent violated the law.
Middlebrooks would have no reason to give such testimony if it
were not true.
Moreover, Nichols denial is rather vague. Nichols denied
having occasion to ask Middlebrooks about the Union activities
of other employees. Such denial is not quite the same as deny-
ing that he actually did ask Middlebrooks the question. Addi-
tional, based on my observations of the witnesses, I conclude
that Middlebrooks was more credible. For all these reasons I
credit her testimony rather than Nichols and find that Nichols
did make the statement which Middlebrooks attributed to him.
In determining whether Nichols question to Middlebrooks
violated the Act I draw on the guidance of SAIA Motor Freight,
Inc., 334 NLRB 124 [979], August 7, 2001. As discussed in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
that case, to determine whether an interrogation violated the
Act the Board considers the following factors: the background
in which the questioning occurs, the nature of the information
sought, the identity of the questioner, the place and method of
interrogation, and whether the employee involved was an open
and active Union supporter.
Several of these factors militate in favor of fighting the ques-
tioning violative. When Nichols interrogated Middlebrooks the
Union was trying to organize the employees. Nichols sought
the identify of the individuals behind the Union’s effort. Nich-
ols was and admitted supervisor and agent of Respondent who
attended meetings at which other supervisors discussed the
Union organizing drive. Further, the record fails to establish
that Middlebrooks was an open and active Union supporter.
All of these facts suggest that the questioning interfered with
the restrained and coerced employees in the exercise of their
Section 7 rights. On the other hand, the interrogation did not
take place in the locus of management authority. Rather, Nich-
ols posed the question to Middlebrooks in the hallway of the
facility next to the medicine cart. Additional, Nichols is not a
higher management official, but a firstline supervisor.
I conclude that the factors militating in favor of finding a
violation outweigh those against finding a violation. In the
context of a Union organizing campaign questioning an em-
ployee about the identify of Union supporters is highly coer-
cive. Therefore, I recommend that the Board find that Respon-
dent violated Section 8(a)(1) of the Act as alleged in Complaint
Paragraph 13.

Complaint Paragraph 14:

Complaint Paragraph 14, as amended at hearing alleges that
sometime during the period July 1, 2000 to September 7, 2000,
the exact date presently unknown to the Acting General Coun-
sel, but well known to Respondent, Respondent by its agent
Mike McKelvaine at Respondent’s Oneonta, Alabama facility,
threatened employees that they would lose benefits if they sup-
ported the Union. Respondent denies this allegation.
During the Union organizing campaign management held
meetings to present its position to employees. The Alabama
Group Human Resources Manager Mike McKelvaine con-
ducted or participated in some of these meetings. Respondent
has admitted that McKelvaine is its supervisor and agent.
McKelvaine denied telling employees that they would lose
benefits if they selected the Union.
While working at Respondent’s facility nursing assistant
Nora Harper attended some of these meetings. According to
Harper McKelvaine told the employees attending that if the
Union came in they would lose the Blue Cross-Blue Shield
insurance and they would have to get the Union insurance,
which wasn’t as good as Blue Cross.
Harper’s pre-trial affidavit, which was placed in evidence, is
consistent with her testimony at hearing. Based on this consis-
tency, as well as my observations of the witnesses as they testi-
fied, I credit Harper’s testimony about this matter.
Another nursing assistant Sarah Fowler also attended meet-
ings at which McKelvaine spoke. Fowler testified that McKel-
vaine told employees that their insurance would not be the
same, and that some benefits would change if the Union were
selected. Fowler gave a pre-trial affidavit and also provided
General Counsel another handwritten statement. These state-
ments do not mention McKelvaine telling employees that their
insurance would not be the same, or that some benefits would
change. Moreover, her affidavit states that McKelvaine “did
not make any specific promises or threats.”
In some circumstances the difference between Fowler’s tes-
timony and her pre-trial affidavit might raise questions about
the reliability of her testimony. These circumstances are not
present here. Although her affidavit does state that McKel-
vaine did not make any specific threats it does not elaborate on
the meaning of the word threat. Ordinarily that word carries a
somewhat menacing connotation and it is not clear that the
affiant would consider a statement about a change in insurance
benefits to be the kind of overtly hostile behavior commonly
associated with a threat. Based on my observations of the wit-
nesses I conclude that Fowler’s testimony is reliable and I
credit it.
Another nursing assistant Janet Sherbet testified that she at-
tended at which McKelvaine spoke. According to Sherbet,
“We could lose a lot of our benefits if we got a Union in there
when they were negotiating contracts, and just things like that,
if we had problems, that they could work them out somehow.”
Respondent called a nursing assistant Erin Bingler, who at-
tended one or two of the meetings conducted by McKelvaine.
She testified that McKelvaine did not discuss what would hap-
pen to benefits if the employees selected a Union. She also did
not recall McKelvaine mentioning insurance.
In examining this testimony it is important to keep in mind
that Respondent conducted a number of meetings at which
McKelvaine spoke. But McKelvaine said at a meeting attended
by one witness might not be identical to what he said at another
meeting attended by other witnesses. Thus the fact that em-
ployee Bingler did not hear McKelvaine make a violative
statement does not foreclose the possibility that he did so at
another meeting she did not attend.
Relying on Harper’s testimony, which I credit, I find that at a
meeting she attended McKelvaine told employees that if the
Union came in they would lose the Blue Cross-Blue Shield
insurance and that they would have to get the Union insurance
which wasn’t as good as Blue Cross.
The record does not establish that McKelvaine made any
statement to qualify or explain a change of insurance benefits
as simply a possibly outcome of the collective bargaining proc-
ess. To the contrary, Harper reported McKelvaine as making a
flat statement that employees would lose their Blue Cross-Blue
Shield insurance and would have to obtain the Union’s insur-
ance, which wasn’t as good. Clearly that was the message
communicated to Harper, and the message she understood.
Similarly the credited testimony of Sarah Fowler establishes
that at a meeting she attended McKelvaine said that if the Un-
ion were selected the employees’ insurance would not be the
same, or that some benefits would change. Again, Fowler’s
testimony does not show that McKelvaine described this
change as a possibly outcome of the collective bargaining proc-
ess rather than the inevitable result of selecting the Union.
I conclude that the statements McKelvaine made to employ-
ees at the meetings attended by Harper and Fowler interfered
BEVERLY HEALTH & REHABILITATION SERVICES 1257
with restrained and coerced employees in exercise of their Sec-
tion 7 rights. Therefore, I recommend that the Board find that
these statements violated Section 8(a)(1) of the Act. Further, I
recommend that that Board find that these statements made
during the critical period warrant setting aside the election and
directing that another be conducted.
On the other hand I do not conclude that McKelvaine vio-
lated the Act by making the statement attributed to him by em-
ployee Sherbet. She testified that McKelvaine told the employ-
ees “we could lose a lot of our benefits if we got a Union in
there when they were negotiating contracts.” Based upon my
observations of the witnesses I find that Sherbet testified hon-
estly, but that her mind had abstracted and condensed McKel-
vaine’s comments considerably before it saved them to long
term memory.
Her recollection that McKelvaine told employees they could
lose a lot of benefits “when they were negotiating contract”
suggests that on this occasion McKelvaine did explain that a
change in benefits could result from the bargaining process.
Sherbet’s recollection standing alone is not sufficient to support
a finding that Respondent violated the Act. I do not rely upon
it in concluding that Respondent committed the unfair labor
practice alleged in Complaint Paragraph 14.

Complaint Paragraph 15:

Complaint Paragraph 15 alleges that sometime in August and
September 2000 on dates not presently known to the Acting
General Counsel, but well known to Respondent, Respondent
by its agents Shelby Walker and Glenda Burns at Respondent’s
Oneonta, Alabama facility threatened employees with adverse
changes in working conditions if they chose Union representa-
tion. Respondent denies this allegation.
Respondent has admitted that Walker is its supervisor and
agent. Walker schedules employees for work. To request a day
off a nursing assistant goes to Walker who typically grants the
request. Sarah Fowler testified that on one occasion she re-
quested that Walker give her a day off. According the Fowler
Walker granted the request, but said that once the Union got in
the schedule would remain the same, and that she, Walker,
would not be able to change it. Fowler provided a consistent
account of this incident in her pre-trial affidavit.
Walker denied making this statement to Fowler. Based upon
my observations of the witnesses I credit Fowler’s testimony
and find that Walker did make the statement which Fowler
attributed to her. Further, I conclude that this statement that
once the Union got in the schedule would remain the same, and
that she, Walker, would not be able to change it interferes with,
restrains, and coerces employees in the exercise of Section 7
rights in violation of Section 8(a)(1) of the Act. Walker did not
qualify the statement to indicate that as a result of the collective
bargaining process certain benefits and working conditions
would change. Rather Walker linked the change in benefits
directly to the selection of the Union.
Additionally, Walker made this statement during the critical
period. I recommend that the Board find that the statement
constitutes objectionable conduct warranting setting aside the
election and directing a new one.
Employer Janet Sherbet testified that the day before the elec-
tion she heard Walker tell another employee that she, Walker,
had four weeks vacation and “would sure hate to lose it. If the
Union came in, she felt like she would.” Sherbet further testi-
fied that during this same conversation Walker told the other
employee “that if we got the Union in that it would be run more
like a business, it wouldn’t be like a family place anymore.”
Sherbet quoted Walker as saying that the nurses had been
told they wouldn’t be able to “pal around” with the nursing
assistants, because the Union “might do something to them if
they did.” According to Sherbet Walker said that “we could
lose a lot of our benefits if they got the Union in there, that we
may have our vacation days and our holidays. We got cheaper
lunches and just different things that we already have now, that
we could lose them if the Union came in negotiating a con-
tract.”
Rather emphatically Walker testified that she never dis-
cussed anything with Sherbet because “she was not the type to
discuss anything with”, and because Sherbet was angry most of
the time. But Walker’s denial that she discussed the Union
with Sherbet is not quite a denial that she made the statements
which Sherbet attributed to her. Sherbet did not testify that
Walker made the statements directly to her, Sherbet, but rather
that Walker made the statements to another employee in Sher-
bet’s presence.
Walker’s testimony falls short of a flat denial in another re-
spect. She testified that she did not recall making any state-
ments concerning the way a Union’s presence would affect the
relationships between employees and supervisors. But she
admitted saying that “we would have a third party that would,
you know, be in between everybody.”
Considering that Walker did not firmly deny the statements
attributed to her by Sherbet, and based upon my observations of
the witnesses I credit Sherbet’s testimony rather than Walker’s.
Relying on that testimony I find that Walker told employee that
if the Union came in the facility would be run more like a busi-
ness and wouldn’t be a “family place” anymore. Further, I find
that Walker said that the nurses had been told that if the Union
came in the nurses would not be able to “pal around” with the
nursing assistants, because the Union might “do something” to
them.
If Walker’s comments that the facility would be run “more
like a business”, and would not be a “family place” anymore
stood by themselves, I would not recommend that the Board
find a violation. However, they must be considered in light of
Walker’s additional statement that the nurses would not be able
to “pal around” with the nursing assistants, because the Union
might “do something” to them.
This latter statement clearly conveys any change in the fam-
ily atmosphere of the staff would result not from structure im-
posed by a negotiated collective bargaining agreement, but
from Union action directed at the nurses. The statement that
the Union might “do something” to the nurses implies that the
Union would act with malicious intent to destroy friendships
rather than from legitimate purpose related to collective bar-
gaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1258
In these circumstances I conclude that Walker’s comments
violate Section 8(a)(1) of the Act. Further I conclude that they
interfere with the laboratory conditions necessary for free and
uncoerced choice. Because Walker made the statements during
the critical period I recommend that the Board find them to
constitute objectionable conduct.
Based on Sherbet’s credited testimony I have also found that
Walker told an employee “we could lose a lot of our benefits if
they got the Union in there, that we may have our vacation days
and our holidays. We got cheaper lunches and just different
things that we already have now, that we could lose them if the
Union came in negotiating a contract. Walker did not say that
the employee would lose benefits, but only that they could.
And she tied such possible changes to negotiations for a collec-
tive bargaining agreement.
I conclude that the statement falls short of interfering with
restraining or coercing the employees in the exercise of Section
7 rights. I do not recommend that the Board find that this
statement violates Section 8(a)(1), or constitutes objectionable
conduct.
Employee Nora Harper testified that Director of Nursing
Glenda Burns commented to her that if the Union came in
things would “only get worse”, and that in bargaining if the
Union “got something they would only take something away.”
Harper’s pre-trial affidavit and her handwritten statement at-
tached to it do not mention Burns making this statement Harper
described in her testimony. Moreover, Harper’s affidavit states
in part as follows: “Attached in this affidavit is a two-page
handwritten statement which I prepared. The information in
that statement is true and accurate to the best of my knowledge
and belief. Other than the above I have not heard any Beverly
supervisor, manager, or other official say anything to anyone or
ask anyone about the Union.”
Thus Harper’s affidavit contradicts her testimony. There-
fore, I do not credit her testimony on this point, although, as
already noted, I credited her testimony on another point.
Burns testified that she recalled having a conversation in
which she discussed benefits with an employee. But she was
not sure whether that employee was Nora Harper. According to
Burns she told the employee that if a Union were selected bene-
fits would be negotiated. She denied telling any employee that
things would be taken away during negotiations, or that things
would get worse.
I credit Burns’ testimony on this point and conclude that she
did not threaten employees with adverse changes in working
conditions if they chose Union representation.

Complaint Paragraph 16:

Complaint Paragraph 16, as Amended at Hearing, alleges
that sometime in August 2000 on a date not presently known to
the Acting General Counsel, but well known to Respondent,
Respondent by its agent Mike McKelvaine at Respondent’s
Oneonta, Alabama facility solicited grievances from employees
for purposes of redress and promised benefits to employees in
order to dissuade them from supporting the Union. Respondent
denies this allegation.
Before the election McKelvaine conducted an employee
meeting which Sarah Fowler attended. Fowler testified that
McKelvaine told the employees that the Union could not help
them, that he knew the problems and that he would stick around
and help them with their problems. Fowler’s testimony is con-
sistent with an affidavit she gave to a Board investigator Janu-
ary 19, 2001.
That affidavit describes an employee meeting that Fowler at-
tended on September 5, 2000, two days before the election.
The affidavit states in part as follows: “Mike McKelvaine did
tell us that he was going to stick around and make things better.
He said he would meet with each of us CNA’s to talk to us
about what we thought was wrong. In the meeting Director of
Nursing Glenda Burns told us that she knew we had problems,
and that every business has problems. But she was going to try
to make it better.”
Fowler’s testimony is also consistent with a handwritten
statement she prepared on September 9, 2000, only four days
after the meeting in question. That document, which also is in
evidence, states in part as follows: “Glenda Burns, Mike
McKelvaine, and Joan Mize stated that that meeting held on
Tuesday, September 5, 2000, that they know they have a lot of
problems, but they promised to change and make it better if we
just give them a chance.”
McKelvaine denied soliciting grievance from employees, or
promising benefits to employees the dissuade them from sup-
porting the Union. Additional, Employee Erin Bingler testified
that she attended one or two of the meetings at which McKel-
vaine spoke, and that he did not discuss employee problems at
these meetings.
For several reasons I credit Fowler’s testimony. First, her
testimony is consistent with both her pre-trial affidavit and with
her September 9, 2000 statement. Second, the statement attrib-
uted to McKelvaine is consistent with the text of a speech by
the highest management official at the Oneonta facility, Execu-
tive Director Laurel Massey. In this speech Massey acknowl-
edged and apologized for mistakes. Then she stated, “I am
asking for your support. With it I can correct these mistakes
and thereby support you more fully.”
This text at least approaches a promise of benefits. There is
but a thin line between asking for employees’ support to “cor-
rect mistakes”, and soliciting employees’ grievance and
promising to address them. Respondent conducted a vigorous
and coordinated campaign to persuade employees to vote
against the Union. It appears likely that McKelvaine elaborated
on the same theme as Massey, but in doing so his language
crossed the line.
Fowler quoted McKelvaine as saying that he was going to
“stick around” and make things better. McKelvaine did act
consistently with this statement attributed to him. For these
reasons, as well as my observations of the witnesses, I credit
Fowler’s testimony and find that McKelvaine did make these
statements Fowler attributed to him. Moreover, I conclude that
these statements interfered with, restrained, and coerced em-
ployees in the exercise of their Section 7 rights, and thereby
violated Section 8(a)(1) of the Act.
McKelvaine made these statements in a meeting only two
days before the election. I find that the statements constitute
objectionable conduct and recommend that the Board set aside
the election and direct a new one.
BEVERLY HEALTH & REHABILITATION SERVICES 1259

Complaint Paragraph 17:

Complaint Paragraph 17 alleges that on or about September
5, 2000 Respondent by its agent Glenda Burns at Respondent’s
Oneonta, Alabama facility promised employees benefits if they
refrained from supporting the Union. Respondent denies this
allegation.
Employee Sarah Fowler testified that before the election she
attended a meeting at which Director of Nursing Burns spoke.
According to Fowler Burns said that she knew that they had
problems, that they were working on fixing them, and that the
Union wasn’t the way to go. Fowler’s testimony is consistent
with her pre-trial affidavit and with the September 9, 2000
statement she wrote four days after the meeting. Because of
this consistency and based upon my observations of the wit-
nesses I credit Fowler’s testimony. Further, I find that Burns
made the statement which Fowler attributed to her.
As stated in Hill Park Healthcare Center, 334 NLRB 55,
June 20, 2001, the “Board recognizes that when an employer
institutes a new practice of soliciting employee complaints
during an organizing campaign there is a compelling inference
of an implicit promise to correct the inequities discovered and
to convince employees that the combination of inquiry and
correction will make Union representation unnecessary. DTR
Industries, 311 NLRB 833–834, 1993.”
In the Hill Park Health Center case the Employer had dis-
tributed to employees a pamphlet informing them of a pre-
existing 800 number Hotline, which they could call to voice
their concerns. The Board stated in part, “We find that the
Respondent’s distribution of the pamphlet during the critical
period signaled to employees that the Union might not be nec-
essary given the Respondent’s willingness to listen to and give
consideration to their employment related concerns.” 334
NLRB [No.] 55 [328] at Footnote 2.
In the present case Complaint Paragraph 17 does not allege
that Respondent solicited grievances, but only that it promised
employee benefits if they from supporting the Union. How-
ever, it may be noted that Respondent distributed to its supervi-
sors a “guide to legal conduct during a Union organizing cam-
paign” which actually did more than inform the supervisors
about the law.
This guide also embodied the message which management
wanted the supervisors to convey to the employees. Thus it
included a section captioned “What You Can And Should Do.”
Under this heading management instructed the supervisors to
do, among other things, the following:
18. Tell associates—employees—that non-represented asso-
ciates at the facility are strictly protected by problem solving
procedures. Including the facilities open door policy, hot line
and peer review, all of which are described in the associate
handbook.
20. Tell associates that you and other members of manage-
ment are always willing to discuss with them any subject of
interest to them.”
Paragraph 18 of the guide quoted above apparently refers to
a “open door problem solving policy” not unlike a grievance
procedure in the negotiated collective bargaining agreement.
Respondent had posted this policy on a bulletin board at the
facility in May 1998.
I find that Burns told employees that they were working on
fixing problems and that the Union was not the way to go in a
context which made an explicit solicitation of their grievances
unnecessary. Burns’ statement interfered with, restrained, and
coerced employees in the exercise of Section 7 rights. I rec-
ommend that the Board find it constitutes a violation of Section
8(a)(1) of the Act and objectionable conduct warranting setting
the election aside and directing a new one.

Complaint Paragraph 18:

Complaint Paragraph 18 alleges that someone—sometime
during August or September 2000, the exact date presently
unknown to the Acting General Counsel, but well known to the
Respondent, Respondent by it’s agent Lolly Massey at Respon-
dent’s Oneonta, Alabama facility solicited employees to refrain
from engaging in support for the Union.
Employee Nora Harper testified that sometime during the
Union organizing campaign, while she was at the Coke ma-
chine to get a soft drink for a resident, Executive Director
Massey approached her. No one else was present. According
to Harper Massey asked her to “talk to the ladies” on second
shift and get them to change their votes to no. Harper’s testi-
mony is consistent with her pre-trial affidavit, which incorpo-
rates an earlier statement she had written. In that statement
Harper wrote that “at some point before election date” Massey
“asked me, since I was working over all the time to please talk
to the girls on second shift to change their votes to no.” Em-
phasis in original.
Massey testified that on a couple occasions employees,
whose names she did not recall, approached her “ with com-
ments about, you know where this business with the Union got
started. It was the second shift and somebody needs to talk
with them.” And I said, “Yes, I’m aware of that, but at this
time I don’t feel it would be very effective for me to attempt to
talk with the second shift. But if they chose to do so, that’s
your option.”
For reasons I have already given I have doubts about the re-
liability of some of Harper’s testimony. It should be noted that
Massey’s testimony also does not inspire a lot of confidence.
Considering the Respondent’s forceful campaign against Union
representation and considering Massey’s role as the top man-
ager at the facility it seems a bit implausible for her to forget
the names of employees who came to her with the information
that the organizing drive began on the second shift.
Massey’s basic message to these employees does sound
plausible. Boiled down to the simplest words she told these
employees that she wasn’t going to say anything to the second
shift employees, but that if they wanted to, they could. The
General Counsel bears the burden of proof. Because of my
doubts about the reliability of some of Harper’s testimony I
conclude that the General Counsel counsel has not carried this
burden. Rather crediting Massey I find that she did not make
the remarks attributed to her by Harper. Therefore, I recom-
mend that the Board dismiss the allegations raised in Complaint
Paragraph 18.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1260
Statement not alleged in Complaint:

Employee Nora Harper testified that before the election an-
other employee, Sarah Fowler, was wearing both a Union pin
and a “Vote No” pin. Harper testified that Super Shelby
Walker asked Harper to talk to Fowler, and to get Fowler to
back off the Union. Harper’s pre-trial affidavit refers to this
matter. Although it also implicates Director of Nursing Burns.
Specifically in a handwritten statement attached to the affidavit,
and incorporated in it, Harper stated as follows. “At some point
before election date Shelby Walker and Glenda Burns, DON,
asked me to talk to Sarah Fowler about the Union to try to con-
vince her to back off.”
Although the Complaint does not specifically allege this al-
legation, in certain circumstances the Board may find that unal-
leged conduct violates the Act. Provided that the facts have
been fully litigated. Therefore, I believe that it is appropriate to
make credibility resolutions regarding this matter.
In examining the facts related to Complaint Paragraph 15 I
did not credit Harper’s testimony about a certain statement
attributed to Director of Nursing Burns, because the testimony
was inconsistent with Harper’s pre-trial affidavit. Because of
this inconsistency I do not credit Harper’s testimony regarding
this matter to the extent it may conflict with that of other wit-
nesses. It is certainly true that a Judge may discredit some
portions of the testimony of a witness, but credit other portions.
And I have done so regarding Harper’s testimony.
It is also true that Harper’s testimony about this matter,
namely that Walker asked Harper to persuade Fowler to back
off the Union, finds support in her pre-trial affidavit. Still,
Harper’s testimony about this matter, and her pre-trial affidavit
do not coincide completely. And the differences are enough to
continue my previous doubts about the reliability of her testi-
mony. Therefore, I do not credit Harper, and instead find that
neither Walker, nor Burns asked Harper to persuade Fowler to
back off of her support for the Union.

Summary:

To summarize I have not credited all of the evidence ad-
duced by the General Counsel to establish the allegations in the
Complaint. However, the General Counsel has presented suffi-
cient credible evidence to establish the violations of Section
8(a)(1) alleged in Complaint Paragraphs 13, 14, 15, 16, and 17,
but not the violation alleged in Complaint Paragraph 18. It
appears that the violative conduct alleged in Complaint Para-
graph 13 took place before the critical period. However, the
other violations of Section 8(a)(1) did occur within the critical
period, and constitute objectionable conduct.
I recommend that the Board set aside the September 7, 2000
election and direct that a new be conducted.

The Remedy:

In addition to the standard Notice posting the General Coun-
sel seeks an extraordinary remedy. Including an Order which
applies to all of the Respondent’s facilities nationwide, a broad
Cease and Desist Order. And an Order requiring Respondent to
send written instructions to all its administrators, managers, and
supervisors requiring them to comply with the provisions of the
Order and Notice. Respondent opposes such a remedy.
Both counsel for the General Counsel and Respondent have
submitted briefs on this issue. Each brief cites considerable
legal precedent. Because of the seriousness and complexity of
this matter it is important to review the cited cases and consider
the briefs carefully. Therefore, I will defer resolution of this
issue until issuing the Certification of Bench Decision, which I
will now discuss.

Certification of Bench Decision:

When the transcript of this proceeding has been prepared I
will issue a certification which attaches as an Appendix the
portion of the transcript reporting this Bench Decision. This
certification also will include provisions relating to the findings
of fact, conclusions of law, remedy, order, and notice. When
that certification if served upon the parties the timeperiod for
filing an appeal begin to run.
Throughout this proceeding counsel have demonstrated the
highest levels of professionalism and courtesy. Their coopera-
tion has shortened the length of the hearing considerably and
provides an outstanding example of civility.

Thank you.

The hearing is closed.

(Whereupon, the hearing in the above entitled matter was
closed at 5:20 p.m.)

C E R T I F I C A T E

This is to certify that the attached proceedings
before the National Labor Relations Board, Region Ten

In the Matter of:

BEVERLY HEALTH AND
REHABILITATION SERVICES,
INC. AND ITS WHOLLY-OWNED
SUBSIDIARY BEVERLY Case No.
ENTERPRISES-ALABAMA, INC.
D/B/A BEVERLY HEALTH-
CARE-ONEONTA
a single employer

and 10-CA-32797

UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL 1657, AFL-CIO

BEVERLY ENTERPRISES-ALABAMA
INC. d/b/a BEVERLY HEALTH-
CARE-ONEONTA

And 10-RC-15153

UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL 1657

Date:OCTOBER 18, 2001

BEVERLY HEALTH & REHABILITATION SERVICES 1261
Place:BIRMINGHAM, ALABAMA

were held according to the record, and that this is the original,
complete, true and accurate transcript which has been compared
to the reporting or recording, accomplished at the hearing, that
the exhibit files have been checked for completeness and no
exhibits received in evidence or in the rejected exhibit files are
missing.
_____________Joe Swiney________________

OFFICIAL REPORTER