Blue Cross-Blue Shield of Alabama

National Labor Relations Board - Board Decisions

Sep 8, 1976

225 N.L.R.B. 1217 (N.L.R.B. 1976)

BLUE CROSS - BLUE SHIELD OF ALABAMA
Blue Cross-Blue Shield of Alabama and Communica-
tions Workers of America, AFL-CIO. Cases 10-
CA-11439, 10-RC-10386, and 10-RC-10387
September 8, 1976
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On May 14, 1976, Administrative Law Judge Rob-
ert E. Mullin issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed a brief in reply to the Respondent's exceptions
and 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Blue Cross-Blue Shield
of Alabama, Birmingham, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election held in
Cases 10-RC-10386 and 10-RC-10387 on Septem-
ber 19, 1975, be, and it hereby is, set aside, and that
the case be remanded to the Regional Director for
Region 10 for the purpose of conducting a new elec-
tion in the appropriate unit at such time as he deems
the circumstances permit the free choice of a bar-
gaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule 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 Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
1217
ROBERT E. MULLIN, Administrative Law Judge: This is a
consolidated proceeding involving allegations that the
above-named Employer engaged in unfair labor practices
in violation of Section 8(a)(1) and in conduct affecting the
results of an election held pursuant to a petition filed by
the above-named Union in Cases 10-RC-10386 and 10387.
The unfair labor practice allegations are set forth in a
complaint issued in Case 10-CA-11439 on October 16,
1975. By order dated January 5, 1976, the Regional Direc-
tor for Region 10 consolidated the complaint case with the
above-numbered representation matters and directed a
hearing. In its answer, duly filed, the Respondent conceded
certain facts with respect to its business operations, but it
denied all allegations that it had committed any unfair la-
bor practices.
The election in Cases 10-RC-10386 and 10387 was con-
ducted on September 19, 1975.' Out of approximately 726
eligible voters, 298 cast valid votes for, and 371 cast valid
votes against, the petitioning union. There were 33 chal-
lenged ballots and no void ballots. After the election, the
Union timely filed objections to the election. After a pre-
liminary investigation, the Regional Director concluded
that the Union's objections raised substantial and material
factual and credibility issues which could best be resolved
after hearing thereon 2 Accordingly, the aforesaid objec-
tions were consolidated for hearing with the unfair labor
practice allegations of the complaint in Case 10-CA-
11439.
The hearing of these consolidated matters was held on
February 9, 10, and 11, 1976, in Birmingham, Alabama. At
the hearing, all parties were represented by counsel. All
were given full opportunity to examine and cross-examine
witnesses, and to file briefs. The parties waived oral argu-
ment. On March 29, 1976, the General Counsel, the Union,
and the Respondent submitted briefs.
Upon the entire record herein, including the briefs of
counsel, and from his observation of the witnesses, I make
the following.
Case 10-CA-11439
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, an Alabama corporation, with an of-
fice and place of business located in Birmingham in that
State, is engaged in the selling and servicing of medical
insurance. During the calendar year preceding issuance of
the complaint, a representative period, the Respondent re-
1 The petitions in Cases l0-RC-10386 and 10387 were filed on July 17.
1976
2 On December 4, 1975, the Union requested that its Objections 2, 3, 4, 6,
7, and 12 be withdrawn The Regional Director approved this request in his
order of January 5, 1976 At the hearing in the instant matter , the Union
also withdrew its Objection 10
225 NLRB No. 178
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceived revenue in excess of $50,000 from the sale of insur-
ance directly to customers located outside the State of Ala-
bama. Upon the foregoing facts, the Respondent concedes,
and it is now found, that Blue Cross-Blue Shield of Ala-
bama is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Communications Workers of America, AFL-CIO, here-
in Union or CWA, is a labor organization within the mean-
ing of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Respondent has approximately a thousand employ-
ees. In the spring of 1975,3 the Union began an organiza-
tional campaign. On July 17, it filed the petitions in Cases
10-RC-10386 and 10387, which ultimately resulted in the
holding of a secret ballot election on September 19.
The General Counsel alleges that, during the course of
the Union's organizational efforts, the Respondent en-
gaged in many violations of Section 8(a)(1). All of these
allegations are denied by the Respondent.
The Respondent conceded the supervisory status of all
who were so alleged in the complaint.
B. The Alleged Violations of Section 8(a)(1), Findings and
Conclusions With Respect Thereto
1. The threat of discharge for discussion of wages
The Respondent distributes to each of its employees a
booklet entitled "Employee Handbook" which contains
the rules of conduct for all employees On page 4 of this
handbook there appears the following language with re-
spect to the confidentiality of an employee's salary
Your Salary
A Private Matter
The amount of your salary is a matter of private
concern to you and to the company. The Personnel
Department will keep this information in strictest con-
fidence, and requires that you do likewise. Your
checks will be delivered to you in sealed envelopes,
and must be cashed by you alone.
For many years the Respondent also required that, on
her initial hire, an employee sign a salary agreement that
was kept in her personnel file. On this agreement there
appeared the following admonition-
. . . pages 4 and 5 of the Employee Handbook ex-
plains your salary. Please read this very carefully. Sal-
ary information is confidential and should not be dis-
cussed. This could be cause for dismissal. [Emphasis
supplied.]
7 Unless otherwise indicated , all dates hereinafter are for the year 1975
John McGlown, director of financial services , testified
that the aforesaid rule had been in existence throughout all
of his 19 years with the Company . Employee Sarah Clark
credibly testified that , when she was hired in 1967 , Person-
nel Manager B B. Yates gave her various forms to fill out
and cautioned her that one of them provided that if she
revealed her salary she could be discharged . Clark further
testified that , in each instance when she was given a wage
increase , her supervisors , Pervey Matthews , and Mary
Reed , reminded her of the Company's rule on confidential-
ity of salary information . Clark also testified that she was
given raises in both May and June 1975, and that on each
occasion she was warned by her immediate supervisor that
she was to refrain from any discussion of her wages with
coworkers Similarly , employee Juanita Hughes testified
that when she was hired in 1974 the then assistant person-
nel manager , Tony O. Butts, warned her that information
about her salary should be held in strictest confidence.
In May 1975, and after the Union's organizational cam-
paign had been in progress for several weeks, Manager Mc-
Glown prepared and had circulated to the approximately
30 employees under his direction , the following memoran-
dum:
To: All Accounting Employees
From: John W. McGlown
Subject: Confidentiality of Information
Date: May 15, 1975
It has been brought to my attention that certain em-
ployees have been indescrete in discussing payroll
information. I would like to take this opportunity to
refer you to the following documents which are a
part of the rules and regulations of this corporation:
Employee Handbook, Page 4 "The amount of your
salary is a matter of private concern to you and to
the company The Personnel Department will keep
this information in strictest confidence and requires
that you do likewise."
The Job Application form Which you Signed "I also
agree . . (2) if employed, to abide by all other
rules and regulations of the company.. . .
Copy of Signed Salary Agreement in your File in Per-
sonnel ". . . pages 4 and 5 of the Employee Hand-
book explains your salary. Please read this very
carefully Salary information is confidential and
should not be discussed. This could be cause for
dismissal."
It is apparent from the above that disclosure of pay-
roll information is not a matter of individual discre-
tion it is a condition of employment. If any of
you disagree please see me immediately.
McGlown acknowledged that he was fully aware of the
fact that the Union's campaign was in progress at the time
he prepared the above letter. He further testified that, be-
fore its issuance, he discussed the matter with Personnel
Manager Yates. Thereafter, it was taken to each of the
employees in McGlown's department Upon being given
BLUE CROSS-BLUE SHIELD OF ALABAMA 1219
an opportunity to read it, the employee was asked to ac-
knowledge its receipt by signing her name at the bottom.
One of those who assisted in circularizing McGlown's
letter among the employees in the department was Richard
Stanton, supervisor of governmental accounting. Employee
Janet Netherton testified that, when the memorandum was
brought to her, she initially declined to sign it. Very shortly
thereafter, Stanton, her immediate supervisor, returned
with the letter and told her and a coworker who had also
declined to sign that "We'd better sign it." Netherton still
refused to act. However, when Stanton then told her that
to do so was "in your best interest, sign it ..." she did so.
Netherton testified that about 2 days later Stanton told her
and several other employees who were near her desk that
"he knew of at least 2 or 3 [employees] that had been fired
for discussing their wages." 4
Netherton credibly testified that after McGlown's letter
was circulated among the employees in the accounting de-
partment she discussed it with many other employees who
were friends of hers and who worked elsewhere in the
building. She also testified that, in the weeks that followed,
she and her coworkers complied with the stern injunction
in the memorandum and did not talk about their wages.
There was evidence that the Respondent continued to
publicize the rule against discussing wage information
throughout the summer. Sherry Donahoo was hired as a
new employee about August 21 She credibly testified that,
on the day she reported for work, a Mrs. Laguait, a clerk in
the personnel office, had her sign various forms in connec-
tion with insurance, withholding taxes and other matters,
and that, in doing so, Laguait told her that it was against
company regulations to "discuss your salary and that you
might possibly be terminated if you discussed it." 5 Dona-
hoo further testified that that same day Pervey Matthews,
manager of the subscriber accounts department, called her
to his office where he told her that "it was against company
rules and regulations to discuss your salary" and that "you
could be terminated if you discussed [it]." 6
McGlown acknowledged that his memorandum of May
15 was never revoked. Nevertheless, in its brief, the Re-
spondent contends that, in fact, the rule has never been
enforced and that, after management officials were told by
counsel that the rule was probably unlawful, the decision
was made to let it lapse Thus, Tony O. Butts, corporate
director of human resources at the time of the hearing and
formerly assistant manager of personnel, testified that in
late May or early June counsel for the Respondent in-
formed him that the rule was probably illegal. According
to Butts, upon receiving this advice, it was decided that
"Since we had not enforced the rule in the past that we
4 The findings and quotations in this paragraph are from the credible
testimony of Netherton Stanton denied that he had made the last remark
that she attributed to him However, as to this incident it is now found that
Netherton was the more credible witness
5 Laguait's name is also spelled "Leverett" in the transcript Tony 0
Butts , who at the time was her supervisor, testified that one of her duties
was to explain company policy to new employees when they were hired
6 Donahoo's testimony was undenied Laguaft was never called as a wit-
ness by the Respondent When on the stand. Matthews conceded that he
"more than likely did" tell Donahoo about the company prohibition on
discussing salary information on the day that she reported for work
should just let it die." However, he conceded that until
sometime in the fall of 1975 the personnel office continued
to have employees sign the form which forbade them to
discuss their salary. He also acknowledged that no notice
has ever been posted to indicate that this particular form
has been rescinded, that the personnel files of each em-
ployee have never had the salary notice expunged, and that
there was never any kind of meeting with the supervisors
for the purpose of announcing the revocation of the rule.?
McGlown testified that, following a wage increase which
the Respondent granted in June and after the circulariza-
tion of his memorandum of May 15, he found that there
was discussion among the employees concerning the
amount of the wage increase. According to McGlown, he
wanted to do something about this conduct, since it was in
violation of the Company's policy and his memorandum.
Thereafter he conferred with counsel for the Respondent
who advised him that the rule might be illegal and that it
should not be enforced Nevertheless, McGlown did noth-
ing to advise his supervisors, much less the employees un-
der him, that the rule would be allowed to lapse. Earlier
herein, it was found that in May or early June Assistant
Personnel Manager Butts likewise found, after a discussion
with counsel, that the rule was probably illegal. At the
hearing, Butts testified that the reason for not formally re-
voking the rule was an alleged fear that the Union "might
use it for propaganda "
The Respondent's undisclosed decision not to enforce
the rule did nothing to lessen its inhibiting effect, for from
the record it is evident that employees, and supervisors,
continued to believe that the Company intended to adhere
to the rule. On August 21, the newly hired Sherry Donahoo
was admonished by the personnel clerk who signed her in
that it was against company policy to discuss her salary
and that to do so could lead to her discharge. That same
day, Pervey Matthews, her new supervisor, who had ap-
proximately 90 employees under his direction, called her to
his office to remind her of the necessity for obedience to
this rule, and to reiterate the threat that she could be termi-
nated for discussing her salary with other employees. Obvi-
ously, the Respondent's intentional failure to advise even
the supervisory personnel as to the illegality of the rule left
them with the belief that it would be enforced As a result,
supervisors were free to continue to harass employees with
the rule, even though certain of Respondent's officials
knew of its invalidity.8
In his brief the General Counsel moved that the word "feeling" which
appears in the transcript with reference to a question he asked of Butts, be
changed to "meeting" No opposition having been voiced to this proposed
change, and it appearing that the change is necessary to make the question
read as it was originally propounded, the motion is granted and the record
is corrected in accordance with the motion
8 In September, some of the union supporters disclosed their salaries in a
booklet which the Union distributed in its campaign to apprise the employ-
ees of the basis for its claim that the Respondent's salary structure was
inequitable Sarah Clark, one of the employees who allowed her name and
the details of her salary to be used in this fashion by the Union, testified
that she agreed to this action only after being assured by the union officials
that the rule was illegal and that her release of such information constituted
protected activity for which she could not lawfully be discharged She fur-
ther testified that, until this occasion in September, she had not discussed
her salary with other employees because she was afraid she would lose her
job if she did so
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Jeannette Corporation v. N.L.R.B, 532 F.2d 916 (C A.
3, 1976), the court held that the employer there violated
Section 8(a)(l) by maintaining an unqualified rule which
prohibited employees from discussing their wage rates
Similarly, the rule in question here forbids an employee
from discussing his wages at any time, whether at work or
after work and the employees are restricted from telling
anyone about their wages under penalty of discharge. Ineq-
uities in employee wages constitute a common issue in
many organizational campaigns. The existence of the rule
here involved clearly restricted the employees in the exer-
cise of their right to discuss freely the critical issue of wages
in the election campaign. For this reason, it is found that
the Respondent violated Section 8(a)(1): by maintaining
this rule, by McGlown's action in circulating the memoran-
dum of May 15 threatening employees with discharge for
violating it, by Supervisor Stanton's declaration to employ-
ee Netherton that "he knew of at least 2 or 3 employees
that had been fired for discussing their wages," and by the
Respondent's failure to rescind and disavow the rule at any
time during the period in question. Jeanette Corporation v.
N.L.R.B., supra; N L.R B v. Lexington Chair Company, 361
F.2d 283, 287 (C.A. 4, 1966). Although the Respondent
now contends that in the early summer and after top man-
agement learned that the rule might be illegal it was al-
lowed to expire, this assertion is belied by the experience of
employee Donahoo who, on being hired late in August,
was cautioned about the rule by the personnel office and
by Manager Matthews. In any event, as long as the rule
remained in existence, unrevoked and unrescinded, the
possibility of its application against employees engaged in
protected activity tended to coerce, restrain, and interfere
with the employees in the exercise of Section 7 rights. Hy-
land Machine Company, 210 NLRB 1063, 1072 (1974),
Marinette Marine Corporation, 179 NLRB 627, 629 (1969);
Pueblo Supermarkets, Inc., and Pueblo Supermarkets of St
Thomas, Inc., 156 NLRB 654, 656 (1966). Moreover, since
the aforesaid rule was invalid on its face, it was not neces-
sary for the General Counsel to show that it was illegally
motivated, discriminatorily enforced, or even enforced at
all. Congoleum Industries, Inc., 197 NLRB 534, 539 (1972);
Lexington Metal Products Company, Division of Ferro Man-
ufacturing Corporation, 166 NLRB 878 (1967); Farah Man-
ufacturing Company, 187 NLRB 601, 602 (1970).9 Finally, it
is found that the Respondent's maintenance of this rule
throughout the critical period preceding the election con-
stituted a serious impediment to the holding of a fair and
open election.
2. Interrogation and threats of reprisal
Throughout the organizational campaign which extend-
ed from sometime in late March or early April until the
election in September many of the Respondent's supervi-
9 Nor does the Respondent's asserted, but admittedly unannounced, deci-
sion not to enforce the rule constitute a valid defense Where an employer's
rule or regulation is alleged to restrict, unduly, employees' rights, the Board
looks to the wording of the rule itself , rather than to the unexpressed limita-
tions or interpretations that are given it by the employer Solo Cup Company,
144 NLRB 1481, 1482 (1963)
sors discussed the subject of the Union and the Company's
policies with most, if not all, of the employees working
under them Whether, in so doing, they crossed the line
that separates permissible free speech from unlawful inter-
rogation and threats of reprisal must be considered now.
Employee Juanita Hughes testified that, about the first
week in May, Lee Shelton, her supervisor, questioned her
about the organizational campaign and told her "he want-
ed to know what I thought about a Union.. ." According
to Hughes, in this same conversation Shelton told her
about an earlier job which he had with another employer
where "the union went out on strike and everybody got
fired " When called to the stand, Shelton acknowledged
having discussed unions during this conversation with
Hughes. According to Shelton, he spoke to many of the 75
employees in his department about that subject and esti-
mated that he had discussed the Union with about 15 other
employees on the same day that he talked with Hughes
The latter was a credible witness and it is now found that
the conversation occurred substantially as she testified.
Employee Janet Netherton testified that about May 9,
Supervisor Richard Stanton asked her "did I see any rea-
son why we needed anybody to represent us." Stanton de-
nied that he asked the employee this question. On the other
hand, Stanton conceded that he had a discussion with
Netherton on the subject and that during the course of
their conversation he told her that "I felt like they [the
Union] couldn't do anything, that the Company had to do
everything for her ..." Netherton was, in general, a credi-
ble witness and it is now found that Stanton questioned her
in substantially the manner in which she testified.
Employee Vessie Williams testified that about July 8 Su-
pervisor Pauline Ethridge asked her "What was going on
with the Union?" and that, to avoid any further discussion
of the subject, she [Williams] answered that she had no
knowledge of the Union. When on the stand, Ethridge de-
nied having questioned Williams about the Union. On the
other hand, she acknowledged having discussed the subject
of the organizational campaign with each of the employees
in her department and she testified that at the time there
were 46 working under her. It is now found that Williams'
recollection of the conversation with Ethridge is the more
credible
Employee Sarah Clark testified that, several times from
the last week in July and until the time of the election,
Mary Reed, her supervisor and the assistant manager of
the subscriber accounts department, told her that "we
would be punching time clocks when the union came in
... we had better think about what we were doing," and
that on three or four other occasions during that same peri-
od Eldridge Rhynes, another assistant manager of the same
department, told her that "when the Union came in we'd
be punching time clocks and we'd better think about what
benefits we had...... Similarly, employee Constance Pol-
lard testified that in mid-August, Jackie Sorrell, her super-
visor, stated that "they wouldn't want to have to punch a
time clock and not be able to make up time . .." if the
Union won. If correct, this forecast would have indicated a
substantial loss for the employees since they had never
been required to punch timeclocks and they had always
enjoyed considerable latitude with respect to reporting at
BLUE CROSS-BLUE SHIELD OF ALABAMA 1221
their desks and in securing time off during the day. Both
Rhynes and Reed denied that they had made the remarks
attributed to them by Clark. On the other hand, Reed con-
ceded that she had discussed the Union with about 20 of
the employees in her section during this period. It is my
conclusion that Clark's recollection of the conversations
and remarks of both Rhynes and Reed was credible Sor-
rell explained that on the occasion about which Pollard
testified she was only trying to allay the fear of that em-
ployee which had been caused by a rumor then current
concerning the likelihood of timeclocks being installed.
Pollard, however, was an intelligent individual who, when
being cross-examined by counsel for the Respondent, cred-
ibly testified that it was not she who brought up the subject
of timeclocks during the conversation with Sorrell. It is my
conclusion that, insofar as there were discrepancies be-
tween the testimony of these two witnesses, the version giv-
en by Pollard is entitled to the greater credence.
Employee Clark also testified as to a conversation with
Pervey W. Matthews, then manager of the subscriber ac-
counts department. According to Clark, this conversation
occurred during the last week in July and about 3 or 4 days
after she returned from her vacation. Clark testified that
Matthews called her to the office ostensibly to discuss a
claim file, but that after she arrived he introduced the sub-
ject of unions and the perils they could create for employ-
ees. According to Clark, early in the conversation, which
lasted about 20 minutes, Matthews showed her a CWA
authorization card and told her that if she signed one she
would be signing away her rights, that thereafter the Union
could trade away her sick days and holidays for a checkoff
provision, that the Union was trying to hold its meetings
on Sunday mornings when she might want to go to church,
and that if Clark did not attend she would be heavily fined
as well as having $100 a month deducted from her pay for
union dues. On cross-examination by counsel for the Re-
spondent, Clark testified that she was intimidated by Mat-
thews' interrogation because she had heard earlier from
one of her coworkers that Matthews had predicted that
anyone that signed an authorization card would lose her
job and "I certainly didn't want to lose my job." Matthews
acknowledged that he had a conversation with Clark dur-
ing which he introduced the subject of the Union and that
he had shown her an authorization card and had discussed
with her the effect which the Union's bargaining might
have on fringe benefits. Matthews, however, testified that
he believed the conversation occurred in April or May,
rather than in July as Clark had testified. Clark's testimony
as to this conversation was most persuasive and it with-
stood a searching cross-examination by able counsel for
the Respondent. It is now found that her version of this
encounter is more plausible than that offered by Matthews.
Employee Clark testified as to another incident wherein
she overheard a conversation which Jackie Sorrell, assis-
tant manager of the subscriber accounts department, had
with employee Julia Mauldin. According to Clark, this oc-
curred later in July or early in August when Sorrell spoke
to Mauldin and told the latter "if the Union came in she'd
lose her job because anyone off the street could do her
[Mauldin's] fob " Sorrell denied having made this state-
ment. On the other hand, she acknowledged that during
the period in question she had endeavored to discuss the
subject of unionization with each of the approximately 33
employees working under her. In an effort to discredit
Clark's testimony, the Respondent spent considerable time
at the hearing seeking to establish that Mauldin was at a
desk some distance from Clark so that it would be unlikely
that the latter could have overheard a conversation be-
tween Sorrell and Mauldin. Significantly, however, the Re-
spondent never called Mauldin, notwithstanding the fact
that Sorrell acknowledged that Mauldin was still working
for the Company at the time of the hearing. Based on the
comparative demeanor of these witnesses when they were
on the stand and the failure of the Respondent to call
Mauldin as a witness, it is now found that Clark was the
more credible and that this incident occurred substantially
as she testified.
Three employees who worked under Prince Slaton,
night-shift maintenance supervisor, testified as to several
conversations which they asserted Slaton had with them on
the subject of the organizational campaign. Robert
Buycks 10 testified that, about mid-May, Slaton described
the Union as a "con game" and asked him "Why do we
want a Union? What's the use of having a Union?" Em-
ployee Jessie James Blackmon, Jr., testified that, on several
occasions during the first part of July, Slaton questioned
him as to "my viewpoints on the union." Employee Rim-
bert Burroughs testified that Slaton questioned him about
the Union on three different occasions. According to Bur-
roughs, in mid-June, Slaton asked him what he thought of
the Union and when he answered that he thought it was
"great," Slaton told him that if he "participate[d] with a
union it's going to cost you your job." Burroughs testified
that, during the first 2 weeks of July, Slaton repeated the
comment to him that "if I participated with a union, it was
going to cost me my job." Later, and about the middle of
August, according to Burroughs, Slaton again asked him
what he thought of the Union. Slaton denied having inter-
rogated any of the employees working under him about
their views on unionization. He conceded that he had told
Buycks that most unions were "a con game." He also testi-
fied that both Buycks and Blackmon had discussed the
Union on several occasions in his presence and that they
had characterized him as an "Uncle Tom" for not mani-
festing any enthusiasm for the CWA. Neither Buycks nor
Blackmon was an impressive witness and neither was frank
nor convincing. That was not the case, however, as to Bur-
roughs who was a persuasive and credible witness while on
the stand Consequently, insofar as his testimony and that
of Slaton differ, it is now found that Burroughs was the
more credible.
Employee Nancy Sutton testified that during the first
week in August she was questioned by David Abernathy,
manager of the claims department) At the time she was
10 In the transcript this name is spelled "Buicks" In his brief, the General
Counsel moved that this be changed to "Buycks" so as to conform with the
proper spelling of the witness' name There being no objection to the pro-
posed correction, the motion is granted and the record is corrected in accor-
dance therewith
''Sutton credibly testified that Abernathy was the supervisor of the
claims department, that he had the authority to hire and fire, and that he
Continued
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wearing a CWA button. According to Sutton, the conver-
sation occurred in Abernathy's office and was initiated by
a comment about her union pin to the effect that "I
thought you were on my side." Sutton testified that after
she acknowledged that she was then supporting the Union,
he told her "I hope you have thought it out carefully and
understand what you are doing . . are you prepared for
the strike if the Union gets in . . . I hope you will weigh
both sides." She responded by telling him that she had
made her decision and would support the CWA. Sutton
was a credible witness. Since Abernathy was never called
to the stand, her testimony was neither denied nor contra-
dicted.
Employee Sarah Clark testified that on the evening of
August 13 she was working overtime when Supervisor El-
dridge Rhynes came into the department and asked her
. . did you work last night?" According to Clark, the
evening before she had worked at the CWA headquarters
in connection with the organizing campaign . Clark testified
that immediately thereafter Rhynes told Clark that she
"was working for the union just for the romance of orga-
nizing a new Union and I would be sorry when it came in."
Rhynes recalled the conversation which Clark attributed to
him, but denied that he had told her that she was in the
organizing campaign for the sake of the romance involved.
Clark was more credible than Rhynes in connection with
this incident and it is now found that it occurred substan-
tially as she described the event.12
Employee Deborah Green testified that , one morning in
late August, Pervey Matthews, manager of her department,
accosted her in the hall to discuss the raises she had re-
ceived during the course of the preceding year and to re-
mind her of the fringe benefits which she enjoyed as an
employee of the Respondent. She also testified that Mat-
thews told her that if the Union came in she might lose
some of them such as her sick leave and vacation time.
Matthews acknowledged having talked with Green about
the time she testified and that during this period he had
talked with 50 or 60 other employees in his department. He
denied, however, that he told Green that the advent of the
Union would cause her to lose any current benefits. Green
was not an entirely plausible witness. She had given a pre-
hearing affidavit which was the subject of much dispute
between counsel . Her affidavit carried no mention of the
remarks she attributed to Matthews on direct examination.
Consequently, it is my conclusion that, as to this exchange,
Matthews ' denials are entitled to greater weight than
Green's version of what occurred that day.
evaluated the employees in that department , including Sutton , for the pur-
poses of raises and promotions Her testimony was uncontradicted . for Ab-
ernathy was never called as a witness
12
Clark testified that later that same evening she was not feeling well
According to Clark, when Rhynes inquired as to whether anything was
wrong and she responded that she had a stomach ache, he told her that her
illness was due to her extracurricular activities Rhynes acknowledged hav-
ing made the comment The General Counsel and the Union contend that
Rhynes ' remark was a further reference to the time the employee had spent
working for the Union on the night before However , that was not the only
possible inference here Clark was an attractive young woman Rhynes was
likewise young and the remark which he made on this occasion was more in
the nature of casual banter , rather than an observation with any further
significance
On the day before the election, Manager John McGlown
asked that Lottie Lee Hudson , one of the employees work-
ing in his department , meet with him in the lunchroom. At
the time, Hudson was wearing a CWA button . According
to Hudson , McGlown inquired as to her views on the
Union and when she told him that she was supporting it,
he told her that he disagreed , that he felt the Union could
not do anything for the employees of Blue Cross and that if
it did succeed in coming in, some of the employees ' fringe
benefits could be taken away. McGlown acknowledged
having had a conversation with Hudson at the time and
place in question . According to the supervisor, he spent
almost an hour in his discussion with her on that occasion.
He denied , however, that he inquired as to her feelings
about the Union or that he told her that if the Union won
the election the employees would lose fringe benefits. Hud-
son was an intelligent , articulate witness with a clear and
convincing recollection of the event in issue It is my con-
clusion that her testimony was more credible than the deni-
als and the version offered by McGlown.
Employee Janet Netherton testified that about Novem-
ber 6 she had a meeting with Supervisor Richard Stanton
during which she complained about some critical com-
ments that supervisors had placed in her personnel file.
According to Netherton , Stanton explained the presence of
these adverse reports with the comment , "Well, you know
you had those charges filed . with the labor board."
Stanton denied that he made these remarks. According to
the supervisor , on this occasion , he had a long discussion
with Netherton about her efficiency rating and that during
the conference it was necessary to remind her of a number
of occasions during the preceding months when her perfor-
mance had been unsatisfactory . As to several earlier inci-
dents it was found that Netherton was a credible witness.
In connection with this particular episode, however, she
was not entirely plausible. Quite apparently , her work rec-
ord was not as good as it might have been , but she was
unwilling to accept any criticism . It is now found that Stan-
ton was credible in his denial that during the meeting with
Netherton he attributed the adverse reports on her work to
the unfair labor practice charges which had been filed with
the Board.
Concluding Findings
It is now found that the Respondent violated Section
8(a)(1) of the Act, by the following acts and conduct that
are described above: ( 1) Supervisor Lee Shelton 's interro-
gation of employee Juanita Hughes, during the first week
in May, as to what she thought about the Union; (2) Super-
visor Richard Stanton 's questioning of employee Janet
Netherton, about May 9, as to whether she saw "any rea-
son why we needed anybody to represent us"; (3) Supervi-
sor Pauline Ethridge's questioning of employee Vessie Wil-
liams about July 8 , as to "What was going on with the
Union?"; (4) the comments of Supervisors Eldridge
Rhynes and Mary Reed to employee Sarah Clark, and of
Supervisor Jackie Sorrell to employee Constance Pollard,
on various occasions between the last week in July and the
date of the election, to the effect that, if the Union won, the
employees would be punching timeclocks and that a more
BLUE CROSS -BLUE SHIELD OF ALABAMA 1223
restrictive leave policy would be in effect; (5) Manager Per-
vey Matthews' conversation with employee Clark during
the last week in July during which he cautioned her that by
signing an authorization card she would be signing away
her rights and that she would be risking the loss of many of
her current benefits; (6) Supervisor Jackie Sorrell's conver-
sation with employee Julia Mauldin during the last week in
July or early in August during which Sorrell told the em-
ployee that if the Union won the election, Mauldin would
lose her job because "anyone off the street could do her
[work]"; (7) Supervisor Prince Slaton's questioning of em-
ployee Rimbert Burroughs in June and August as to what
Burroughs thought of the Union, and his predictions to
that same employee in June and July that if Burroughs
"participated with a union, it was going to cost [him his]
fob...."; (8) Supervisor David Abernathy's questioning
of employee Nancy Sutton, during the first week in Au-
gust, as to what she thought of the Union; (9) Supervisor
Rhynes' questioning of employee Clark, about August 13,
as to her activities on the preceding evening when she
worked for the Union and his comment that she was
"working for the union just for the romance . . . and [that
she] would be sorry when it came in... ."; and (10) Man-
ager McGlown's questioning of employee Lottie Hudson,
on September 18, during which he inquired as to her views
on the Union and told her that if the Union won the elec-
tion some of the employee fringe benefits might be taken
away. Gabriel Mfg. Co., 201 NLRB 1015, 1017 (1973).
3 The speeches by the Respondent's officials
On the morning of August 18, Houston Brown, executive
vice president of the Company, addressed all of the em-
ployees on the subject of the forthcoming election. The
staff was divided into three groups of approximately 300
each and taken to a large conference room where Brown
gave his speech. Many, if not all, of the company supervi-
sors were in attendance at each of the three sessions which
were held that morning. On September 18, and the day
before the election, this process was repeated, but on this
occasion both Brown and William E. Miller, president of
the Company, spoke to them.l3
Employee Clark testified that on August 18 Brown told
the employees in her group that if the Union won the elec-
tion the Company did not have to continue their existing
benefits when it started bargaining and that they could lose
their sick leave, health insurance, holidays, and vacations.
According to Clark, when Brown and Miller spoke to the
employees immediately before the election, Brown told
them about a strike at the Blue Cross of New Jersey head-
quarters which had resulted in the elimination of 150 jobs
She further testified that President Miller told them that
the employees did not need a third party to speak for them,
that Blue Cross could handle their problems better than
outsiders, that the Union was only interested in the money
it hoped to get from them in dues, and that, if the Compa-
i3 Employee Sarah Clark testified that these latter speeches were given on
September 17 Brown, however, testified that he spoke on September 18
Several of the employees corroborated the latter testimony It is my conclu-
sion that Clark was mistaken as to the date of the second series of speeches
ny could not afford the benefits the Union would demand,
there would be a strike.
Clark testified that neither Brown nor Miller appeared to
be reading their speeches. She acknowledged that she did
not take any notes during the period that she was listening
to them when they were speaking, but she testified that
after returning to her desk, in each instance, she prepared
notes as to what she recalled that they had said. Brown, on
the other hand, testified that both he and Miller read their
speeches and that they did not deviate from the tests while
doing so.14 Copies of the speeches which they gave on those
occasions were received in evidence. Whereas Clark has
been found to have been a thoroughly credible witness as
to other phases of this case, in connection with the content
of the speeches given by the company officials, it is now
found that the texts which were used by the Respondent's
officials while they were speaking are more accurate than
Clark's recollection as to what was said by Brown and
Miller.
At the outset it should be noted that the General Coun-
sel conceded at the hearing that the speeches of September
18 were not alleged as being violative of the Act. The com-
plaint did allege that the Respondent violated Section
8(a)(1) with Brown's speech of August 18. This allegation,
however, rested on the testimony of Sarah Clark which has
dust been found less reliable than the text of the speech
itself.
In the first speech which Brown gave on August 18, he
dwelt at length on the promises that the Union was making
about its ability to bring the employees job security and
better wages whereas, according to him, it was only from
the Company that they could get these benefits. Thereafter,
he appealed to the employees to have trust in the Company
for all needed job and wage improvements rather than rely
on the Union which he characterized as an "outsider." In
his next speech on September 18, Brown emphasized the
loss in individual freedom which the presence of a union
and collective bargaining might involve and the hazards
connected with strikes and their aftermath. Miller spent
most of the time in his talk to the employees on the bright
future which lay ahead for those with the Company and
the need for more open communications between the em-
ployees and the management. More details of these
speeches could be enumerated, but it is my conclusion that
in none of them did the Respondent exceed the bounds
permitted by Section 8(c) of the Act. Consequently, it will
be recommended that paragraph 11 of the complaint be
dismissed.
Case 10-RC-10386 and Case 10-RC-10387
The Union's Objections to the Election; Findings and
Conclusions in Connection Therewith
On September 26, 1975, the Union timely filed 12 objec-
tions to conduct affecting the results of the election. After
an investigation, the Regional Director concluded that a
hearing should be held on the issues raised by these objec-
14 Miller did not testify At the hearing, counsel for the Respondent stated
that President Miller was suffering from a severe cardiac condition and
would not be called as a witness
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions. Further, since the objections raised issues that were
coextensive with certain conduct alleged in the present
complaint to be unfair labor practices, the Regional Direc-
tor consolidated for hearing the representation matter and
the present unfair labor practice proceeding.
The parties in this case having entered into a Stipulation
for Certification Upon Consent Election, the objectional
period commenced when the petitions were filed on July
17, 1975. Goodyear Tire and Rubber Company, 138 NLRB
453, 454-455 (1962). As found earlier (fn. 2), in his order of
January 5, 1976, the Regional Director approved a request
by the Union that its Objections 2, 3, 4, 6, 7, and 12 be
withdrawn, and at the hearing in the present case, the
Union withdrew its Objection 10. The relevant findings
with respect to the objections that remain outstanding will
now be considered.
Objection No 1: [The Employer] Engaged in massive
interrogation of employees concerning their union ac-
tivities and the activities of others.
As found earlier herein, in mid-August Supervisor Prince
Slaton questioned employee Rimbert Burroughs as to what
he thought of the Union; during the first week in August
Supervisor David Abernathy questioned employee Nancy
Sutton as to what she thought of the Union; about August
13 Supervisor Eldridge Rhynes questioned employee Sarah
Clark as to what she had been doing the night before when
she had been working for the Union; and, on September 18
Manager McGlown questioned employee Lottie Hudson
as to her views on the Union These incidents have already
been found to violate Section 8(a)(1). It is now held that,
on the basis of the foregoing findings, there is merit to
Objection 1.
Objection No. 5: Threatened employees with termina-
tion because of their union activities.
It has been found that from May and throughout the
election period the Respondent's supervisors, McGlown
and Matthews, emphasized to the employees a longstand-
ing company rule which required that each employee
maintain absolute silence on the subject of her salary under
penalty of termination. As set forth earlier, the mainte-
nance of this unlawful rule and the extreme sanction of
discharge for its breach inevitably tended to restrict the
employees in communicating with the Union as to the de-
tails of their salaries and their objections to the
Respondent's existing salary structure. It has likewise been
found that for this reason the maintenance of this rule
throughout the critical period preceding the election ham-
pered the employees in the exercise of union and concerted
activities and constituted a serious impediment to the hold-
ing of a fair and open election. Consequently, it is now
held that on the basis of these findings there is merit to
Objection 5
Objection No 8: Threatened employees with loss of
existing benefits, including sick pay, if the Union won
the election.
Objection No 9: Threatened that, if the Union won
the election, employees would lose their benefits as a
result of the Union's attempt to bargain collectively.
Earlier it was found that, from the last week in July and
until the time of the election, Supervisors Eldridge Rhynes
and Mary Reed told employee Sarah Clark and Supervisor
Jackie Sorrell told employee Constance Pollard that, if the
Union won, the employees would be punching timeclocks
and that a more restrictive leave policy would be in effect.
It was further found that, during the last week in July,
Manager Pervey Matthews told employee Clark that by
signing an authorization card she would be risking the loss
of many of her current benefits and that, on September 18,
Manager McGlown told employee Lottie Hudson that if
the Union won the election some of the employee fringe
benefits might be taken away. Finally, late in July or early
in August, Supervisor Jackie Sorrell told employee Julia
Mauldin that if the Union won the election Mauldin would
lose her job because anyone "off the street could do her
[work]" thereby implying that after a union victory the Re-
spondent would impose more difficult and restrictive work
standards which would facilitate the ready replacement of
an employee such as Mauldin. It has already been found
that by the foregoing incidents the Respondent violated
Section 8(a)(1) It is now found that on the basis of these
same findings there is merit to Objections 8 and 9.
Objection No. 11 • Threatened that, if the Union won
the election, a strike would inevitably follow and that
the employees would lose their jobs if they partici-
pated in such strike.
The foregoing objection, insofar as it does not rely on
the same testimony as Objections 8 and 9, was obviously
based on the assumption that the speeches which Brown
and Miller made to the employees in the period prior to the
election contained unlawful threats. If the testimony which
employee Clark gave on this subject had been found per-
suasive, there might have been substance to Objection 11.
That, however, was not the case. Consequently, it is now
found that this last objection is lacking in merit.
Having found merit in Objections 1, 5, 8, and 9, it will be
recommended that the election be set aside and that Cases
10-RC-10386 and 10-RC-10387 be remanded to the Re-
gional Director for Region 10 for the purpose of conduct-
ing a new election at a time and place to be determined by
the Regional Director.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization within the meaning of the
Act
2 By interfering with, restraining , and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, the Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
4. The General Counsel has not proved by a preponder-
ance of the evidence that the Respondent interfered with,
restrained , or coerced its employees in the exercise of the
BLUE CROSS -BLUE SHIELD OF ALABAMA 1225
rights guaranteed by the Act, except by the specific acts
and conduct found herein to have been violative.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , it will be recommended that it
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Having also found that the Respondent has maintained
in effect an unlawful rule prohibiting employees from dis-
cussing wages among themselves , it will be recommended
that the Respondent be ordered to rescind and abrogate
this rule and notify its employees that it has taken such
action and that henceforth they may engage in such discus-
sions on the Respondent ' s premises subject to limitations
permissible under the Act. The posting of an appropriate
notice is also recommended.
Upon the foregoing findings and conclusions and the
entire record , and pursuant to Section 10(c) of the Act,
there is issued the following recommended:
ORDER 15
Blue Cross -Blue Shield of Alabama , Birmingham, Ala-
bama, its officers , agents, successors , and assigns , shall.
1. Cease and desist from:
(a) Interrogating any employee concerning that
individual 's union activity , or that of other employees, in a
manner constituting a violation of Section 8(a)(1) of the
Act.
(b) Threatening its employees with loss of jobs, or more
restrictive work rules, if they elect a union to represent
them.
(c) Maintaining in effect , or enforcing , any rule which
prohibits employees from discussing salaries or wage rates
among themselves , under penalty of discharge for its viola-
tion.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
right to self-organization , to form, join , or assist labor orga-
nizations , to bargain collectively through representatives of
their own choosing , to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection , or to refrain from any and all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Rescind and abrogate its rule prohibiting employees
from discussing wage rates among themselves and notify
its employees that it has taken such action and that they
may henceforth engage in such discussions on its premises
subject to limitations permissible under the Act.
(b) Post at its headquarters in Birmingham, Alabama,
copies of the attached notice marked "Appendix ." 16 Cop-
ies of the notice, on forms provided by the Regional Direc-
tor for Region 10, after being duly signed by the
Respondent 's authorized representative , shall be posted by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered, de-
faced , or covered by any other material.
(c) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges any unfair labor practices other than as
herein specifically found.
IT IS FURTHER ORDERED that the election conducted on
September 19, 1975, be set aside and that Cases 10-RC-
10386 and 10-RC-10387 be remanded to the Regional Di-
rector for Region 10 to conduct a new election at such time
as he deems the circumstances permit the free choice of a
bargaining representative.
15 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
16 In the event the Board ' s Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate any employee concerning
that individual ' s union activity , or that of other em-
ployees , in a manner constituting a violation of Sec-
tion 8 (a)(1) of the Act.
WE WILL NOT threaten our employees with loss of
jobs, or more restrictive work rules, if they elect a
union to represent them.
WE WILL NOT maintain in effect, or enforce, our rule
prohibiting employees from discussing wages rates
among themselves.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their right to self-organization , to form, join , or assist
labor organizations , to bargain collectively through
representatives of their own choosing , to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain
from any and all such activities.
WE WILL rescind and abrogate our rule prohibiting
employees from discussing wage rates among them-
selves and WE WILL notify them that we have taken
such action and that henceforth they may engage in
such discussions on our premises subject to limitations
permissible under the National Labor Relations Act.
BLUE CROSS-BLUE SHIELD OF ALABAMA