Birch View Manor

National Labor Relations Board - Board Decisions

Jul 17, 1979

243 N.L.R.B. 495 (N.L.R.B. 1979)

BIRCH VIEW MANOR
Birch Tree Number One, Incorporated, d/b/a Birch
View Manor and Service Employees Union Local
No. 50 of the Service Employees International
Union, AFL-CIO-CLC
Birch Tree Number One, Incorporated, d/b/a Birch
View Manor and Daniel L. Moody, Petitioner, and
Service Employees Union Local No. 50 of the Ser-
vice Employees International Union, AFL-CIO-
CLC. Cases 14-CA- 11490 and 14-UD 108
July 17, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JNKINS
AND MURPHY
On March 29, 1979, Administrative Law Judge J.
Pargen Robertson issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting briefs,
and Respondent filed cross-exceptions and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order,' as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Birch
Tree Number One, Incorporated, d/b/a Birch View
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dr Wall Products. Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 In adopting the Administrative Law Judge's conclusion that Respondent
did not violate Sec. 8(a)43) and (I) of the Act by discharging strikers Moore
and Sechrest and suspending striker Bradford. we rely on his findings that
Respondent's actions were motivated by the strikers' misconduct. and that
the misconduct was sufficiently senrious to justify denial of reinstatement.
I In par. I of his recommended Order the Administrative Law Judge inad-
vertently omitted the cease-and-desist provision against Respondent's violat-
ing the Act "in any like or related manner." which the Board traditionally
provides in cases involving 8(aX)1) violations. Accordingly. we shall modify
the recommended Order and notice.
Manor. Birchtree, Missouri, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following for paragraph I:
"1. Cease and desist from:
"(a) Interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed
them by Section 7 of the Act, in violation of Section
8(a)( I) of the Act, by telling its employees that its
supervisor had been instructed to ride strikers.
"(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not specifically found herein.
APPENDIX
NoTI(F. To ENPI.OYlES
POS[El) BY ORDER ()F TIlt-
NAIIO()NA LABOR REIAO()NS BOARD
An Agency of the United States Government
Wit. wii. NO I interfere with, restrain, or coerce
our employees in the exercise of the rights guar-
anteed them in Section 7 of the Act, by telling
our employees that our supervisors have been in-
structed to ride employees who have participated
in the strike.
Wt: Wil I NI in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
BIRCHII TRI I NMBIR ONE, INCORPORArED,
I)/B/A BIR( I1 VIFlW MANOR
DECISION
SIAIIMI-NI OF 1t11 CASI
J. PARGEN ROBERISON, Administrative Law Judge: This
case was heard on November 28, 29. and 30, 1978, at Emi-
nence, Missouri. The complaint, which issued o July 7
1978, and was amended on September 15. 1978, is based
upon a charge filed May 24, 1978. by Service Employees
Union No. 50 of the Service Employees International
Union, AFL CIO-CLC (Union). The complaint, as
amended. alleges Birch Tree Number One, Incorporated,
d/b/a Birch View Manor (Respondent), violated Section
8(a)(I) and (3) of the National labor Relations Act, as
amended (Act). Pursuant to a petition filed b Daniel L.
Moody an election was conducted on May I I,. 1978. Subse-
quently, the Regional Director determined that the results
of that election were inconclusive inasmuch as the chal-
lenged ballots of two of the alleged discriminatees in Case
243 NLRB No. 87
495
DECISIONS OF NATIONAl. LABOR RELATIONS BOARD
14-CA- 11490 were determinative, and he ordered consoli-
dation of these two cases for hearing before an administra-
tive law judge.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Briefs, which have been care-
fully considered, were filed on behalf of the General Coun-
sel, Respondent, and the Union.
Upon the entire record' and from my observation of the
witnesses and their demeanor, I make the following:
third alleged discriminatee, Denise Bradford,' was denied
reinstatement from September 2, 1978. and suspended by
letter dated September 7, 1978, due to alleged "acts against
an employee of Birch View Manor at the time you were on
strike."
The complaint also alleges that Respondent, through its
administrator, threatened an employee that it had advised
its supervisor to "ride" the employees that had participated
in the strike.4
IV. (ON('I.USI()NS
FINDINGS AND CO)N('I.!SIO(NS
I. COMMERCE
Respondent is, and at all times material herein has been,
a corporation doing business at Birchtree, Missouri, where
it is engaged in the operation of a nursing care facility.
During the year ending June 30, 1978, which period is
representative of all times material herein. Respondent, in
the course and conduct of its business operations, derived
gross revenues in excess of $250,000. It purchased and
caused to be transported and delivered at its Birchtree, Mis-
souri, place of business goods and materials valued in ex-
cess of $5,000, of which goods and materials valued in ex-
cess of $5,000 were transported and delivered to its place of
business at Birchtree, Missouri. directly from points located
outside the State of Missouri.
I find that Respondent is, and at all times material herein
has been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR OR(IANIZAI()N
Service Employees Union Local No. 50 of the Service
Employees International Union, AFL-CIO CLC, is, and at
all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR l.ABOR PRA('It('ES
On December 9, 1977, certain employees of Respondent
represented by the Union engaged in an economic strike.2
That strike continued until February 21, 1978, when the
Union unconditionally offered to return the employees to
work. All the striking employees with the exception of the
three alleged discriminatees were eventually reinstated or
offered reinstatement by Respondent. Two of the alleged
discriminatees, Leota Schrest and Barbara Kay Moore,
were discharged by letters dated March 8, 1978, for alleged
"Striker misconduct during the term of the strike." The
I Respondent's motion to correct the transcript, made in its brief, is
granted.
2 On December 11, 1977, a restraining order was issued against the Union
and certain striking employees including Leota Sechrest and Kay Moore by
the Shannon County Circuit Court. That order was amended by the court on
December 20, 1977, to prohibit picketing in a manner to prevent ingress and
egress, parking vehicles in a manner to obstruct traffic, and picketing by
more than two persons.
A. The 8(a)(3) Allegalions
The issue presented is whether Respondent, by terminat-
ing two employees and failing to reinstate a third fobr activi-
ties allegedly committed during an economic strike, vio-
lated the Act.
An employer who refuses to reinstate a striker on the
basis of misconduct occurring at or even away from the
picket line need only show evidence of its good-faith belief
that the employees engaged in such misconduct. Upon such
showing, the General Counsel then has the burden of show-
ing that the striking employees did not, in fact, engage in
the alleged misconduct.'
Respondent admitted that its employees, including the
alleged discriminatees engaged in an economic strike. Em-
ployees involved in an economic strike are engaged in pro-
tected concerted activity and, absent a showing of some
nonviolative motivation such as employee misconduct, ac-
tions by an employer against those employees would be
inherently destructive of Section 7 rights. See N.L.R.B. v.
Great Dane Trailers, Inc.. 388 U.S. 26 (1967); N.L.R.B. v.
Fleet wood Trader (o., 389 U.S. 375 11967).
1. he "good-faith" question
Therefore. my analysis must start with a determination of
whether Respondent acted in "good faith" in discharging
and suspending the alleged discriminatees. In considering
that issue, I have considered whether the allegations, as
reported, were worthy of belief and whether they rose to the
level which would justify the disciplinary actions taken by
Respondent.
I am convinced, on the basis of the record, that the var-
ious allegations against Moore, Sechrest, and Bradford
were worthy of belief. The evidence reflects that all the
relevant incidents' were promptly reported to Respondent.
Also, all of the incidents resulted in charges in state courts
'Although Denise Bradford was not specifically alleged as an 8(aK31 dis-
criminalee in the charge. Respondent has not objected to her inclusion in the
complaint. and the allegations regarding Bradford were fully litigated at the
hearing.
' Another 8(aX I) allegation was dismissed at the beginning of the hearing
pursuant to motion of Respondent after counsel foIbr General Counsel an-
nounced that he would not submit evidence as to that particular allegation.
Rubin Brothers Footwear, Inc., 99 NLRB 610, 611 (19521; NL.R.B. v.
Burnup & Sims. 379 U.S. 21 (1964): Associated Grocers of New England, Inc.,
227 NLRB 1200 (1977).
6 Moore was discharged because of a December 9. 1977. incident; Sechrest
was discharged because of a December 25. 1977. incident: and Bradford was
denied reinstatement and suspended because of a February 2, 1978, incident.
496
BIRCH VIEW MANOR
against each of the alleged discriminatees prior to Respon-
dent taking its actions against them. There is nothing in the
record with demonstrates that Respondent should have
concluded that any of the reported incidents were without
foundation in fact. General Counsel contends that because
of an alleged 8(aX 1) violation Respondent was not acting in
good faith. As shown hereafter. I find that Respondent did
indeed violate Section 8(a)( I) during August 1978. How-
ever. I specifically reject General Counsel's argument that
that violation demonstrates Respondent was not acting in
good faith in its actions against the alleged discriminatees.
Respondent's 8(a)(I) activity establishes, at least to some
degree. its union animus. The question must remain. how-
ever, does this demonstration of animus establish that Re-
spondent was not acting in good faith when it disciplined
Moore, Sechrest, and Bradford. At the time of its disciplin-
ary actions the strike had ended. Nevertheless, Respondent
was aware when it disciplined Moore and Sechrest that
each had been found guilty of traffic violations stemming
from their alleged actions against nonstriking employees.
Since the evidence does not reflect any disparity in treat-
ment against nonstrikers, or that the evidence against
Moore and Sechrest was fabricated or exaggerated with Re-
spondent's knowledge, I am unable to find that Respondent
altered its planned course of action because of antiunion
motivation.
Also, as to Bradford, the evidence does not reflect that
Respondent, by acting on its information regarding the al-
leged February 2 incident, permitted its union animus to
alter action it would have otherwise taken. In that regard. I
do consider that the action against Bradford preceded any
findings in state court. However. I am influenced by the fact
that the allegations regarding the February 2, matter reflect
far more serious activity than those earlier allegations re-
garding Moore and Sechrest. Nevertheless, due to the fact
that no court had reached a decision on the charges stem-
ming from that incident, the disciplinary action against
Bradford was not as permanent as those taken against
Moore and Sechrest. Therefore, I find that the evidence
upon which Respondent based its discipline of Moore.
Sechrest, and Bradford, was worthy of belief and was not
the result of union animus.
The next question is whether, upon the evidence pre-
sented against the alleged discriminatees, Respondent was
justified in discharging and refusing to reinstate them.
2. The December 9, 1977. incident
On the first day of the strike, Opal Bryan (Rothwell). a
supervisor. and Janice Miller, a nonstriking employee, left
work at 3 p.m., the end of their shift. As they drove away
they were followed by a car driven by striking employee
Barbara Kay Moore and containing strikers Denise Brad-
ford and Leota Sechrest. Rothwell testified that she was
driving with Janice Miller, her passenger. As she drove out
of the nursing home parking area Rothwell noticed Moore.
Sechrest, and Bradford getting into a car. Rothwell waited
at the exit of the parking area for Moore to proceed ahead,
but Moore waited until Rothwell pulled out and then she
followed behind Rothwell down the service road toward
Highway 60. When Rothwell turned west on Highway 60./
the Moore car followed. Rothwell testified that Moore
pulled her vehicle up to a point where she felt that Moore
was going to ram her car before they reached the intersec-
tion of the service road and Highway 60. Thereafter. Moore
followed closely behind Rothwell's car for approximately 4
miles at speeds of 50 to 55 miles per hour until Rothwell
pulled off at Searcy's store On two or three occasions
Moore pulled up to what seemed to Rothwell to be "a loot
or maybe closer" to Rothwell's rear bumper. On two occa-
sions Moore pulled out into the passing lane and up along-
side Rothwell's car. On those occasions Moore pulled over
partly into Rothwell's lane and. on one occasion, forced
Rothwell onto the shoulder of the road. On the other occa-
sion Moore had to pull back behind Rothwell's car as an
oncoming car approached. Upon arriving at Searcy's store
Rothwell pulled off and called over Vivian Mason who was
parked there. told Mason what had happened, and asked
her to call the nursing home and tell Helen Hickinbotham
or Mr. Jackson that they needed help. When Rothwell
pulled off at Searcy's Moore also pulled off and parked
immediately behind Rothwell. No one got out of either car.
Subsequently, Rothwell pulled away from Searcy's and
continued to the town of Mountain View. Moore also
pulled away but did not follow Rothwell. Instead, Moore
pulled off down the old Highway 60 also in the direction of
Mountain View. When Rothwell arrived at "Berner-Banks
corner" in Mountain View, a 4-way stop, she again met
Moore. Thereafter. Moore pulled in behind Rothwell and
followed her some 5 or 10 minutes through Mountain View.
Rothwell tried and succeeded in losing Moore occasionally,
but Moore would pick her up again. Rothwell pulled into
the Mountain View police station upon seeing a police car
and reported the incident.
Janice Miller, who is no longer employed by Respondent,
also testified. Miller testified that she was a member of the
Union until the day before the strike when she mailed her
resignation. Miller testified that she was one of only two
employees that refused to honor the December 9 picket
line. Miller's account of the December 9 incident involving
Moore. Sechrest, and Bradford was substantially in accord
with Rothwell's testimony.
3. The December 25. 1977, incident
Barbara Reed testified that she was employed by Re-
spondent as a nurse's aid from December 22, 1977. during
the strike until May 22, 1978. At the time of the hearing
Reed was no longer employed by Respondent. She now
lives approximately 110 miles from Birchtree.
Reed testified that as she was leaving the nursing home
after work at 3 p.m. on December 25 she was followed by a
brown Plymouth as she proceeded east on Highway 60
from Birchtree. Reed later identified the driver of the brown
Plymouth as Leota Sechrest. As she approached a caution
light on Highway 60 at the edge of Birchtree. Sechrest
passed her in a no-passing zone and pulled back sharply in
I personally observed that Highway 60 is a rural paved highway trans-
versing a sparsel 5 populated area fior several miles. both east and west of
Birchtree. Misslurl.
497
DECISIONS ()1 NATIONAL. LABOR RELATIONS BOARI)
front of Reed. forcing Reed to hit her brakes. hereafter,
Sechrest pulled off the road and allowed Reed to pass.
Sechrest then pulled back in behind Reed.
After following Reed for a while, Sechrest pulled into the
passing lane alongside Reed's car. Sechrest proceeded
alongside Reed's car for "a mile or a mile and a fourth" and
on three or four occasions pulled over the dividing line
toward Reed's car. Sechrest then pulled back behind Reed.
followed her for another I to 1-1/2 miles. and she pulled
off.
Two other witnesses, T'Ferry Lawson and Robert Smother-
man, who were not employees of Respondent, testified that
they followed Sechrest as she left the nursing home behind
Reed's car. Smotherman testified that they followed Sech-
rest because "we figured they would do something."
While Lawson's testimony substantially corroborated
Reed's, there were some differences in their testimonies.
Lawson recalled Sechrest trying to pass Reed more than
once. He observed Sechrest pulling over toward Reed on
several occasions while driving alongside Reed, but he was
not sure whether Sechrest crossed the dividing line into
Reed's lane on those occasions.
Smotherman's testimony also corroborated Reed's.
Smotherman testified that Sechrest did "weave over a little"
toward Reed on several occasions, but that action did not
cause Reed to swerve away.
4. The February 2, 1978. incident
Janice Miller testified that before daylight on February 2,
as she was leaving her rural home to go to work, she was
attacked by three women. Miller identified two of the
women as Barbara Kay Moore and Denise Bradford.
Miller testified that she was beaten on the face and kicked
in the ribs after being knocked to the ground. Sheriff
Chester Hawkins testified that Miller's face was noticably
damaged when he interviewed her on the morning of Feb-
ruary 2. Miller's automobile was also damaged by the three
women. The windshield and a headlight were broken.
Barbara Kay Moore and Leota Sechrest were subse-
quently convicted in magistrate court for traffic offenses
arising out of the December 9 and 25 incidents, respec-
tively. They have appealed those convictions and are await-
ing trial de novo, in circuit court. Both Moore and Denise
Bradford have been charged with offenses arising out of the
February 2 incident and are awaiting trial.
Respondent discharged Moore and Sechrest immediately
upon learning of their March 7, 1978, convictions in magis-
trate court.8 Respondent conceded that it would have re-
hired Bradford on September 2, 1978, but for its informa-
tion that she was involved in the alleged February 2
incident. Shortly thereafter, on September 7, it notified
Bradford of her suspension pending the outcome of pro-
ceedings against her in circuit court.
The Board, in deciding question of misconducts, has con-
sidered whether the conduct in question was so flagrant or
I In determining whether the alleged conduct of Moore, Sechrest. and
Bradford justified disciplinary actions, I have placed no reliance on state
court findings or proceedings. W. C McQuaide, In(., 220 NIRB 593, 594
(1975).
egregious as to require subordination of the employees' pro-
tected rights in order to vindicate the broader interest of
society as a whole. See W ('. McQuaide, Inc., 220 NLRB
593. 594 (1975): cf. Associaled (rocerv o/ Ne'w England, 227
NLRB 1200.
The Board, in McQuide, vupra. held that mere verbal
abusive language and threats not accompanied by any
physical acts or gestures that would provide added empha-
sis or meaning to the words are not a sufficient basis to deny
reinstatement after a strike. However, physical assault and
conduct that gives threats a sense of immediacy and cre-
dence would justify a refusal to reinstate.
I am convinced that Respondent's discipline of Moore,
Sechrest. and Bradford was justified on the basis of the
reports it received. Although the December incidents in-
volving Moore and Sechrest did not result in injury or prop-
erty damage, the evidence presented in Respondent's case
clearly reflects that those actions were calculated to have
and did have the effect of placing nonstriking employees
and others in fear of imminent injury to themselves. Fur-
thermore, the manner in which Moore and Sechrest alleg-
edly operated their automobile on those occasions placed
everyone involved in a situation where serious injury could
have easily resulted. 'The evidence demonstrates that Re-
spondent received reports that the alleged February 2 inci-
dent resulted in personal injury and property damage to
nonstriking employee Miller.
Therefore, the evidence demonstrates that Respondent
was acting in good faith when it discharged Moore and
Sechrest and refused to rehire Bradford.
5. The General Counsel's evidence
Remaining is the question of whether the General Coun-
sel proved that the alleged discriminatees did not actually
engage in misconduct.9
Moore admitted that she followed Opal Bryan (Roth-
well) on December 9. and that Janice Miller was with Roth-
well. Leota Sechrest and Denise Bradford were riding with
Moore. However. Moore contended that she got no closer
than four or five car lengths behind Rothwell's car, and she
never pulled out to pass. Moore also contended that she did
not follow Rothwell and Miller through Mountain View.
Moore admitted pulling off at Searcy's behind Rothwell.
but contended that she did so 15 feet away. When asked
why she pulled off at Searcy's behind Rothwell, Moore re-
plied, "because she was acting very strange." Moore admit-
ted that no one got out of her car at Searcy's. She remained
parked at Searcy's until Rothwell left. Then Moore left,
taking a different route into Mountain View. Leota Sechrest
and Denise Bradford testified about this same incident.
Their testimonies were similar to Moore's.
Leota Sechrest admitted that she drove to the nursing
home at about 3 p.m. on December 25, did not get out of
the car, but immediately turned and drove away toward
Bartlett. Sechrest testified that she started to Bartlett to take
her niece to see a boyfriend. It was not until she was "down
' Since the General Counsel's evidence did not include a denial by Brad-
ford or Moore of Miller's allegation that they attacked her on February 2 I
find General Counsel failed to disprove that instance of alleged misconduct.
498
BIRCH VIEW MANOR
the road a ways" that Sechrest noticed Barbara Reed
ahead. Sechrest also noticed a pickup containing Robert
Smotherman and Terry Lawson behind her. Sechrest tried
to pass Reed on two occasions, but Reed pulled over across
the center line and prevented her passing. Sechrest denied
pulling alongside Reed or that she tried to run Reed off the
road. Sechrest's passengers, lSeona Sechrest. Julie Sechrest.
and Tammy Sechrest also testified regarding the December
25 incident.
Neither Bradford nor Moore denied the testimony of Ja-
nice Miller regarding the alleged incident of February 2.
1978.
After observing the demeanor of General Counsel's wit-
nesses and considering their testimonies. I conclude that
General Counsel has not proved that Moore. Sechrest, and
Bradford did not engage in the alleged misconduct.
Leota Sechrest was admittedly involved in both the De-
cember incidents. Although she did not admit any intent to
follow nonstriking employees, her testimony and common
logic would suggest otherwise. On direct examination Sech-
rest testified that she did not notice Barbara Reed ahead of
her on December 25 until they were down the road. How-
ever, on cross-examination Sechrest admitted that she met
Reed when she was coming down the hill near the nursing
home, and she had to turn around to follow Reed down the
service road. Also Sechrest testified that her only reason for
being on the road behind Reed was to take her niece to a
boyfriend's home in Bartlett. When confronted with the
fact that she passed the Bartlett turnoff without turning,
Sechrest could offer no explanation of why she continued to
follow Reed. When asked why she was following one car
length behind Reed at a high rate of speed, Sechrest's was
able to respond simply, "I don't know really. We just got in
behind her."
I found that Leota Sechrest's testimony also failed to
square with logic regarding the December 9 incident. She
admitted that she, Bradford, and Moore left the picket line
on the first day of the strike and recognized that one of only
two bargaining unit employees that had crossed the picket
line that day was riding in the car immediately in front of
them. Sechrest noticed Miller and Rothwell when Rothwell
started slowing down and then speeding up. Nevertheless,
according to Sechrest's testimony, there was no discussion
of Miller working during the strike. Furthermore, according
to Sechrest, there was no discussion as they pulled off at
Searcy's as to why they were stopping there.
Bradford and Moore, who were present throughout Sech-
rest's testimony,. ° also testified that there was no discussion
of Janice Miller as they followed Miller and Rothwell.
Both Bradford and Moore appeared to change their testi-
monies from that in their affidavits as to when they first
recognized Rothwell and Miller on December 9. In her affi-
davit Bradford stated that Sechrest got in the car with her
and Moore just about the time Bryan (Rothwell) and Miller
were getting into their car. Moore stated in her affidavit
that nonstriking employees Opal Bryan (Rothwell) and Ja-
nice Miller pulled out of the nursing home parking lot in
Bryan's car as Sechrest was getting in her car. However,
after hearing Leota Sechrest's testimony regarding when
HO No motion was made to place witnesses under he rule of sequestration.
she recognized Rothwell and Miller, Bradford and Moore
appeared to alter their testimonies to more closely support
Sechrest. Bradford's and Moore's explanation that their af-
fidavits reflected what they assumed to be correct lends fur-
ther support to the inference that they were collectively ad-
justing their testimonies to support each other.
Leota Sechrest's sister Leona testified regarding the De-
cember 25 incident. Leona Sechrest testified in full support
of the earlier testimony of Leota. Although she admitted
following one car length behind Barbara Reed at 50 to 55
miles per hour and that they were blocked from passing by
Reed, she contended there was no discussion of why Leota
was trying to pass Reed. Leona Sechrest also testified that
there was no discussion as to whether they should return to
Bartlett after they passed the Bartlett turnoff.
Julie Sechrest, Leona's daughter, also testified about the
December 25 incident, as did Leota's daughter Tammy.
Leota. Leona, and three of their daughters were all in Leo-
ta's car that day. Julie testified that they followed Barbara
Reed for about 2 or 3 miles, one to two car lengths behind
and tried twice to pass Reed. Although they were blocked
from passing by Reed moving to cut them off, Julie recalled
no discussion of what was occurring other than Leona and
Leota commenting that Barbara Reed was driving the car.
Julie admitted stating in her affidavit that they were along-
side Reed's car when Reed pulled over into their lane.
However, at trial she testified that she really meant they
were getting close. maybe 3 or 4 feet behind Reed. Julie
admitted testifying in her affidavit that they were in the
passing lane on one occasion for one-half of a mile to I
mile. Tammy Sechrest, a striking employee, testified in full
support of her mother. Tammy testified that they were past
the Bartlett turnoff on the second occasion they' tried to
pass Barbara Reed. No explanation was ever given as to
why Leota Seclrest was in such a rush after passing the
turnoff to her intended destination. Tammy testified in her
affidavit that the statement that they were in the passing
lane for I-1/2 miles, was incorrect, because she did not
know how far I mile was. At the time of the hearing, Tam-
my was 18 years old, possessed a drivers license, and was
employed.
In comparing the versions of the two December inci-
dents, I note that neither Janice Miller nor Barbara Reed is
now employed by Respondent. Much of Mil!er's testimony
stands undenied. Both Miller and Reed appeared straight-
forward and candid in their testimonies. On the other hand,
I find the testimonies of General Counsel's witnesses noted
above demonstrate a common effort to adjust their testimo-
nies to suit the situation. I do not credit the testimonies of
Moore, Bradford, or any of the Sechrests to the extent they
conflict with the testimonies of Miller and Reed. Therefore,
I have determined that the evidence does not satisfy the
burden required of General Counsel. The General Counsel
has failed to prove that the alleged discriminatees did not
engage in misconduct. I shall recommend that the 8(a)(3)
allegations of the complaint be dismissed" and the chal-
" In view of my finding, I do not reach Respondent's alternate argument
that Moore. by engaging in the February 2 attack on Janice Miller. forfeited
any right to reinstatement, However, I credit the undenied testimony of
Miller that Moore and Bradford were two of her attackers.
499
I)E('ISIONS OF NATIONAI LABOR RATIONS BOARI)
lenges to the ballots of Leota Sechrest and Barbara Kay
Moore be sustained. 2
B. The 8(a)(I) Allegation
Miss (lenna Cafiourek testified that she had an August
conversation at the office with Administrator Jackson. ('a-
fourek had earlier written a letter of complaint about
charge nurse Pat Burris. During the conversation with
Jackson she was asked if, when she wrote the letter, she
knew that Jackson had told Pat Burris to ride the strikers.
When Cafourek replied no, Jackson said, "Well I did. But
you're not a striker so you don't have nothing to worry
about."
Administrator Jackson denied making the above state-
ments. I found Miss Cafourek to be a direct and candid
witness. Her demeanor and testimony demonstrated that
she was not interested in advancing the Union's position.
She was employed by Respondent on a part-time basis at
the time of the hearing and was first employed during the
strike. Her responses to questions during cross-examination
indicated a willingness to respond truthfully even though
her answer would aid Respondent. I found Mr. Jackson to
be too interested in responding in a manner that assisted
Respondent's position. He very positively testified that all
the striking employees that had not returned, excepting
only the alleged discriminatees received more than one offer
to return to work. However, when confronted with a spe-
cific name, he first responded that her offer may have oc-
curred prior to the time he came. Later Jackson admitted
that the named person was not given a second offer to re-
turn to work. Therefore, I credit the testimony of Miss Ca-
fourek and discredit that of Mr. Jackson to the extent they
conflict. I find Jackson's statement to Cafourek violates
Section 8(a)(I)."
V. THE CHttALLENGED BALLO)S
For the reasons discussed above. I recommend that the
challenges to the ballots of Barbara Moore and Leota Sech-
rest be sustained.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Service and Hospital Employees Union Local No. 50
of the Service Employees International Union, AFL-CIO-
" The Union argues, over General Counsel's objection, that Respondent
condoned the misconduct of the alleged discriminatees. In view of the Gen-
eral Counsel's opposition, I am without authority to consider the Union's
argument, and I so rule. Winn-Dixie Stores, Inc., 224 NLRB 1418 (1976).
However, had I been in position to consider the condonation argument, I
would have found no condonation occurred. The "Return to Work" provi-
sion of the March 6, 1978, collective-bargaining agreement is clear and un-
ambiguous on Respondent's authority to discipline strikers for misconduct
and is therefore not subject clarification by oral testimony. That provision
states in part: "Any replaced striker determined by the Company to have
harassed any economic replacement shall be subject to discipline. up to and
including discharge, and the same apply to replacements who harass return-
ing strikers."
i1 I find a violation even though the evidence indicates that the conversa-
tion occurred in August rather than on July 24 as alleged.
CIC, is a labor organization within the meaning of Section
2(5) of the Act.
3. By telling its employee that its supervisor had been
instructed to ride strikers Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)( I ) of the
Act.
4. Respondent did not violate Section 8(a)( I ) of the Act
by conduct alleged in paragraph 6,B, of the complaint or
Section 8(a)( I ) or (3) of the Act by conduct alleged in para-
graphs 7 and 9 of the complaint.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
TIl RMEII)Y
Having found that Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)(1) of the ct, I
shall recommend that it be ordered to cease and desist
therefrom and take certain affirmative actions designed to
effectuate the policies of the Act.
I recommend that the allegations of the complaint that
were not proved be dismissed.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
ORDER' 4
The Respondent. Birch Tree Number One, Incorporated.
d/b/a Birch View Manor, Birchtree, Missouri, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from interfering with, restraining,
and coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act in violation of
Section 8(a)( ) of the Act by telling its employee that its
supervisor had been instructed to ride strikers.
2. Take the following affirmative action which is found
necessary to effectuate the policies of the Act:
(a) Post at its Birchtree. Missouri, operations copies of
the attached notice marked "Appendix."' Copies of the at-
tached notice, on forms provided by the Regional Director
for Region 14, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees customarily
are posted. Reasonable steps shall be taken by Respondent
to insure that the notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
t1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
'5 In the event that this Order is enforced by a Judgment of a United
Sltates court of appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States C ourt of Appeals Enforcing an Order of the Na-
tional abor Relations Board."
500