Care Inn, Collierville

National Labor Relations Board - Board Decisions

Apr 11, 1973

202 N.L.R.B. 1065 (N.L.R.B. 1973)

'CARE INN, COLLIERVILLE 1065
Mississippi Extended Care Center, Inc., d /b/a Care were made in a context indicating that what was
Inn, Collierville and d/b/a Care Inn, Memphis and contemplated was an economic strike, and that the
Service Employees International Union, Local talk of permanent replacement was a legitimate
150T, AFL-CIO. Cases 26-CA-4341.26-RC-4159, prediction in light of the nursing home's moral
and 26-CA-4377 obligation lto keep the facility adequately staffed,
found no violation of Section 8(a)(1). For the reasons
he gives, we agree.3 For the same reasons, we
April 11, 1973
DECISION, ORDER, AND DIRECTION
.OF SECOND ELECTION
BY MEMBERS KENNEDY, JENKINS, AND
PENELLO
On November 30, 1972, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs, and
Respondent filed a reply brief. Respondent also filed
a motion to remand the proceeding to the Adminis-
trative Law Judge and the General Counsel filed an
opposition thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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.
It was alleged as a violation of Section 8(a)(1) of
the Act, and as a basis for setting aside the
representation election at the Employer's Collierville
nursing home, that Respondent caused speeches to
be made to employees in which the employees were
told that if they struck they could be permanently
replaced, but were not told about their reinstatement
rights under Fleetwood Trailer and Laidlaw,2 nor
about the special status of unfair labor practice
strikers, after the putative strike was over. The
Administrative Law Judge, finding that such remarks
r The General Counsel has excepted to certain credibility findings made
by the Administrative 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 were incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
2 N.L.R.B. v. Fleetwood Trailer' Inc., 389 U.S. 375; Laidlaw Corp., 171
NLRB 1366.
3 See Buddies Supermarkets, Inc., 192 NLRB No. 143. But cf . Hicks-
Ponder Co., A Division of Blue Bell, Inc., 186 NLRB 712, in which an
employer expressly told its employees that in case of a strike their jobs
would be filled and when the strike ended those whose jobs were filled
would automatically lose their right -to get their jobs back ; and Dayton Food
Fair Stores, Inc., 165 NLRB 14, enfd . 399 F.2d 153 (C.A. 6, 1968), in which
disagree with his conclusion that these remarks
constituted objectionable conduct which interfered
with employees' right to a free election. Although the
threshold of interference for purposes of objections
to the conduct of an election, may, in a particular
case, be lower than that for establishing a violation of
Section 8(a)(1), we do not think a material misrepre-
sentation or an impermissible threat occurred simply
because the warning about possible "permanent"
replacement was not coupled with an explanation of
employees' poststrike rights.4 We therefore overrule
Petitioner's Objection 1.
We adopt the Administrative Law Judge's recom-
mendation, however, that the Collierville election be
set aside on the basis of the evidence presented in
support of Petitioner's Objection 4. This evidence, as
credited by the Administrative Law Judge, was that
during the critical preelection period Administrator
Coats asked employee Dean how he was going to
vote and Vice President Bordeaux asked individual
employees how they felt about the subjects he had
just discussed in an antiunion speech to a group of
employees. We agree with the Administrative Law
Judge that Bordeaux's questions, in the circum-
stances in which they were asked, amounted to
interrogations of employees as to how they felt about
the Union, in violation of Section 8(a)(1) of the Act,5
and interfered with their free choice in the elections
Our dissenting colleague characterizes our finding
that Bordeaux's questions were coercive as a per se
rule that an employer may not invite comments on
the subjects mentioned in a lawful speech. Surely the
finding does not admit of such an interpretation. The
subject of the lawful speech involved here was the
Respondent's opposition to the Union. Employee
Allen responded to Bordeaux's question by telling
him that she was not saying that she was for the
the employer advised its employees that under the law economic strikers
"can be fired at once and permanently replaced."
4 Buddies Supermarkets, Inc.,supra.
5 In finding an unlawful interrogation here , we do not rely on the fact
that in the preceding speech Bordeaux referred to the Employer 's right to
permanently replace strikers while failing to explain the poststrike rights of
economic strikers and the special status of unfair labor practice strikers. We
find it unnecessary to rely, moreover, on the Administrative Law Judge's
finding that the interrogations by Bordeaux were part of an overall design to
question employees in the series of "small group" meetings at which the
Employer presented its antiunion views.
6 Although only three employees were shown to have been interrogated,
two of them were interrogated in the presence of a captive group of
employees assembled to hear Bordeaux 's antiunion speech.
202 NLRB No. 139
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union or against it. That the question was calculated
to elicit a response concerning the employee' s feeling
toward the Union, even though the word "union"
was not used in the question, is strongly suggested by
Allen's answer in itself. Furthermore, although it is
not clear to our dissenting colleague whether any
employees were questioned individually, the Admin-
istrative Law, Judge credited the testimony of Allen
that two employees in her group were. Bordeaux
admitted that he asked employees how they felt
about the subjects discussed, not whether they had
any questions. An individual employee who was
asked how she felt could hardly'have responded by
saying that she had no questions, as our colleague
suggests. And it is simply not the law that an
interrogation is harmless because the employee
answers that she has nothing to say, as one of the
employees questioned by Bordeaux did here.
Our colleague falls into the same error, we think, in
concluding that the interrogation of employee Dean
by Administrator Coats was harmless because Dean
gave a noncommittal answer. And, given the
avowedly antiunion posture of the Respondent and
the interrogation of employees by Vice President
Bordeaux, it is difficult to understand our colleague's
characterization of Dean's interrogation as "isolat-
ed," or his suggestion that we are again using a per se
approach. In the cases he cites in which questions
about union feelings were held not to have been
coercive, the impact of the questioning was found to
have been negligible for some such specific reason,
not present here, as that the employees involved were
avowed union supporters, that the question was
taken as a joke, or that there was no evidence of
employer hostility to the union.
- We deny Respondent's motion to remand the issue
of interrogations by Bordeaux to the Administrative
Law Judge on the ground that the Administrative
Law Judge made findings not included in the
complaint. The complaint specifically alleges interro-
gation by Bordeaux and the issue was fully litigated.
Moreover, the same interrogation was treated in the
Regional Director's Report on Objections in Case
26-RC-4149, in which report Petitioner's evidence
was summarized and the Respondent was plainly put
on notice that the issue raised by that allegation
would be litigated at the hearing.. The evidence
presented at the hearing was substantially as stated
in the Report on Objections.
I The vote was 12 for the Union , 32 against , and 7 challenged.
S Blue Flash Express, Inc., 109 NLRB 591.
9 N. L. R.B. v. Ralph Printing and Lithographing Company, 379 F.2d 687;
690 (C.A. 8).
to The Administrative Law Judge found a few incidents of unlawful
interrogation of employees at the Memphis facility . Respondent has not
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, -the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Mississippi Extended
Care Center, Inc., d/b/a Care Inn, Collierville, and
d/b/a Care Inn, Memphis, Collierville and Mem-
phis, Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in the
recommended Order of the - Administrative Law
Judge.
IT IS FURTHER ORDERED that the election conducted
on April 14, 1972, in Case 26-RC-4159 be, and it
hereby is, set aside, and that Case 26-RC-4159 be,
and it hereby is, remanded to the Regional Director
for the purpose of conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
MEMBER KENNEDY, dissenting in part:
I do not agree with the majority's adoption of the
Administrative Law Judge's findings of unlawful
interrogation in two incidents which preceded the
election in the Collierville facility. Accordingly, I
would not set aside the election in this facility which
the Union lost, but would certify the results.7
The first incident involved Administrator Coats
and employee Decatur Dean. Sometime in March or
April 1972, but before the election held on April 14,
Coats spoke to Dean in the kitchen asking him how
he was going to vote. Dean replied: "I haven't got no
comment." Nothing else was said. Interrogation of
employees as to union matters is not unlawful per se.8
It is unlawful only when it is "conducted against a
background of employer hostility and discrimination-
towards unionization as would induce in its employ-
ees a fear of reprisal for lawfully pursuing their union
activities.. ."9 Coats' question itself contains no
coercive overtones. It was not part of an employer
plan of systematic intimidation of employees, but
was isolated and casual in nature. Nor was the
background against which the question was asked
such as to give it coercive impact.10 In fact, Dean's
noncommital answer would seem to indicate that he
was not coerced. Finally, the Board has found similar
casual queries as to an employee's voting intention
not violative of Section 8(a)(1).11
The second incident involved questions which
followed speeches by Vice President Bordeaux to
small groups of employees in March 1972. My
filed exceptions to these findings . They are accordingly adopted pro forma.
However , there is no evidence that Dean was aware of these incidents. They
also occurred after the election at the Collierville facility.
11 B. F. Goodrich Footwear Company, 201 NLRB No. 46; G & S Metals
Company, Inc., 198 NLRB No. 65; Knafel Pontiac, Inc., 195 NLRB No. 149;
Olin Conductors, 185 NLRB 467; Trojan Steel Corp., 180 NLRB 704.
CARE INN, COLLIERVILLE 1067
colleagues have found, and 'I agree, that Bordeaux's
speech, although antiunion, was not unlawful. At the
close of the speech, Bordeaux asked his audience for
questions concerning any points covered in his talk,
any points of confusion or unanswered questions
that might have arisen, The Administrative Law
Judge credited Bordeaux's denial that he had asked
employees how they felt about the Union.12 Never-
theless he concluded that asking employees about the
topics he had discussed in his talk was the equivalent
of asking them how they felt about the Union and
the questions were therefore unlawful. It seems to me
illogical to say that an employer can lawfully discuss
certain topics in a talk to employees, but if he invites
comment on the subjects mentioned, he is per se
guilty of unlawful conduct. It is not clear whether
Bordeaux questioned members of his audience
individually or in groups. Only employee Allen
testified as to individual questioning. If the questions
were addressed to employees as a group, the
individual employee could protect the privacy of his
view as to the Union simply by not volunteering any
questions. If asked individually as to any questions
he might have, he could similarly conceal his opinion
about the Union from the employer by simply
answering that he had none. It seems to me
unreasonable therefore to conclude, as did the
Administrative Law Judge, that Bordeaux's ques-
tions legitimate on their face were actually intended
to elicit the attitude of employees toward the Union.
For the foregoing reasons I dissent from the
majority's finding of unlawful interrogation during
the period preceding the election at the Collierville
facility.13 As these findings are the sole basis for the
order setting aside the results of the Collierville
election, I would instead certify the results of the
election.
12 According to Bordeaux, he asked such questions as, "How do you feel
about the information we have presented? How do you feel about the topics
we have discussed?"
13 One other trivial incident of unlawful interrogation was found by the
Administrative Law Judge at the Collierville facility, but this occurred after
the election and therefore could not have had any impact on the election.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This
proceeding, under Section 10(b) and Section 9 of the
National Labor Relations Act, as amended, was tried
pursuant to due notice on August 28, 29, and 30 and
October 19, 1972, at Memphis, Tennessee.
The original charge in Case 26-CA-4341 was filed on
May 5, 1972. The first amended charge in Case
26-CA-4341 was filed on June 16, 1972. The complaint in
Case 26-CA-4341 was issued on June 16, 1972. The
original charge in Case 26-CA-4377 was filed on June 9,
1972. The first amended charge in Case 26-CA-4377 was
filed on July 17, 1972. The complaint in Case 26-CA-4377
was issued on July 19, 1972. The first order consolidating
Cases 26-CA-4341 and 26-CA-4377 was issued on July
19, 1972. A second order consolidating Cases 26-CA-4341,
26-CA-4377 and 26-RC-4159 was issued on August 4,
1972.
The petition in Case 26-RC-4 159 was filed on February
3, 1972. A Stipulation for Certification Upon Consent
Election was approved by the Regional Director for
Region 26 on February 29, 1972. An NLRB-supervised
election by secret ballot was held on April 14, 1972, among
the employees in an approved stipulated appropriate
bargaining unit. Timely objections to the election were
filed by the. Union on April 21, 1972. The Regional
Director for Region 26 conducted an investigation of such
objections and issued a Report on Objections,on June 6,
1972. Thereafter, the Board, on August 2, 1972, issued its
Decision and Order, adopting the Regional Director's
report.
The issues concern whether Respondent engaged in
various acts violative of Section 8(a)(1) and (3). The 8(a)(1)
issues, issues of conduct of interference, restraint, and
coercion as to employee Section 7 rights concern interroga-
tion as to union activities or desires, creation of impression
of surveillance of employee union activities, threats of
discharge because, of employee union activities, futility in
selection of a nion because Respondent would not
negotiate, threats of bodily harm if an employee voted for
a union, and promises of benefits to dissuade union
organization. The 8(a)(3) issues concern whether Respon-
dent discriminatorily discharged Vera M. Walker on May
3, 1972, and Barbara Smith on June 1, 1972, because of
their union activities. The objection issues in Case
26-RC-4159 concern the issues raised by Objections 1, 4,
and 5, a question of a defaced sample ballot and of certain
small group meetings held by the Employer at Collierville,
Tennessee.
Objection 1, concerns whether the Employer engaged in
conduct of threatening employees with loss of jobs and
benefits if they should join a union or vote and with
Employer conduct in certain meetings . Objection 4
concerns whether the Employer engaged in conduct of
questioning employees about their union activities or
membership in such circumstances as would tend to
restrain or coerce employees, and whether the Employer
questioned a number of employees about their union
activity and attendance at union meetings. Objection 5
concerns whether the Employer spied upon union meetings
and so told employees. The unnumbered objections,
presented by the Regional Director's investigation, concern
(1) whether the Employer used a defaced sample ballot in
its electioneering, and (2) the holding by the Employer of
small group meetings. The unnumbered objection concern-
ing whether the Employer-held small group meetings with
employees which interfered with the election is essentially a
rephrasing of part of the Union's Objection I to the same
point.
All parties were afforded full opportunity to participate
in the proceeding. Briefs were filed by the General Counsel
and the Respondent and have been considered.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and
admissions therein.
Mississippi Extended Care Center, Inc., d/b/a Care Inn,
Collierville, and d/b/a Care Inn, Memphis, the Respon-
dent, is now, and has been at all times material herein, a
corporation with nursing homes located in Collierville and
Memphis, Tennessee, where it is engaged in the medical
aid and care of patients.
During the past 12 months, Respondent, in the course
and conduct of its business operations, received gross
revenues in excess of $100,000. During the same period,
Respondent purchased and received directly from points
outside the State of Tennessee products valued in excess of
$10,000.
As conceded by Respondent and based upon the
foregoing, it is concluded and found that the Respondent
is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The facts are based upon the pleadings and admissions
therein . Service Employees International Union, Local
150T, AFL-CIO, is and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act. It is so concluded and found.
III. THE UNFAIR LABOR PRACTICE OBJECTIONS TO THE
ELECTION
A. The Unfair Labor Practices Memphis (Case
26-CA-4377)
1. Supervisory status
The facts are based upon the pleadings and admissions
therein.
At all times material herein, the following persons
occupied the positions set opposite their names, and have
been, and are now, agents of Respondent and are
supervisors within the meaning of Section 2(11) of the Act.
Tollie Bordeaux Assistant to the President
E. H. Overstreet Regional Supervisor
T. Eavenson Director of Nursing
Elsie Card Licensed Practical Nurse
2. The conduct of Licensed Practical Nurse Card
The General Counsel alleges and Respondent denies that
Supervisor Card, on or about April 20, 1972, (a) interrogat-
ed employees concerning their union membership, activi-
ties, and desires and (b) created the impression of
surveillance of its employees' union activities by telling
employees that she knew that an employee was going to
vote for the Union.
The only witness to the above issues was Barbara Smith.
Smith testified credibly that she had a conversation with
Supervisor Card about 2 weeks before the election (held on
May 3, 1972). What occurred in the conversation between
Card and Smith is revealed by the following credited
excerpts of Smith's testimony.
A. Mrs. Card asked me was I going to vote for the
union and I told her that I didn't know and she said if
she was me, she wouldn't vote for the union. Then I
asked her why and she said we was going to get a raise
anyway.
She told me that she could look at me and tell I was
going to vote for the union.
Q. Was there anything else said in this conversa-
tion?
A. Well, Mrs. Wilhite didn't say anything, not that
I know of. I don't know what she said. I told her she
couldn't look at me and tell what I was going to do and
she started to laughing and said she could.
Considering the foregoing, I conclude and find that
Respondent, by Supervisor Card, on or about April 20,
1972, interrogated an employee concerning the employee's
union sympathies and voting desires in a manner constitut-
ing interference, restraint, and coercion within the meaning
of Section 8(a)(1) of the Act. Such conduct is violative of
Section 8(a)(1) of the Act. I so conclude and find.
Considering the foregoing, I conclude and find that the
General Counsel has not established that Respondent, by
Supervisor Card, on or about April 20, 1972, created the
impression of surveillance of its employees' union activities
by telling employees that she knew that an employee was
going to vote for the Union.
3. The conduct of Director of Nursing Eavenson
The General Counsel alleges and the Respondent denies
that Supervisor Eavenson, on or about April 24, 1972,
interrogated employees concerning their union activities,
membership, and desires.
The witnesses to this issue were Barbara Smith, Perlie E.
Chapman, and Tommie.Lucas Eavenson. I found Perlie E.
Chapman to appear to be a more frank, objective, and
truthful witness to this issue than either Smith or
Eavenson. I credit Chapman's testimony. I discredit
Smith's testimony to the effect that Eavenson during the
conversation involved asked if Smith and Chapman were
going to buy marching shoes. I discredit Eavenson's denial
that she interrogated the employees as to how they were
going to vote. What occurred is revealed by the following
credited excerpts of Chapman's testimony.
Q. Mrs. Chapman, were you ever questioned by a
supervisor or administrator or managing official about
the union?
A. Yes, I was.
Q. Tell us when?
A. It was prior to the election of the union.
A. Mrs. Eavenson came to the third floor about
fifteen to seven. She spoke to Mrs. Smith and I and she
asked how was we feeling and we told her that we was
CARE INN, COLLIERVILLE 1069
doing fine . Then she asked us, she asked two questions
in, one. She asked what we thought about the union and
how was we going to vote . I looked at her and smiled
and told her "No comment."
Considering the foregoing , I conclude and find that
Respondent , by Supervisor Eavenson , on or about April
24, 1972, interrogated employees concerning their union
sympathies and voting desires in a manner constituting
interference , restraint, and coercion within the meaning of
the Act. Such conduct is violative of Section 8(a)(1) of the
Act. It is so concluded and found.
4. The conduct of Regional Supervisor Overstreet
The General Counsel alleges and the Respondent denies
that Supervisor Overstreet, on or about May 1, 1972, (a)
interrogated employees concerning their union activities
and desires, and (b) created the impression of surveillance
of employees ' union activities by informing employees that
he knew certain of the employees had been selected as
shop stewards for the Union.
Witnesses to these issues were Smith , Bowers, Kendricks,
Brittenum , and Overstreet . I found Kendricks to be a more
frank , objective , truthful , and reliable witness to these
issues than the other witnesses . I credit her version of what
occurred over the testimony of other witnesses where in
conflict.
What occurred is revealed by the following credited
excerpts from Kendricks' testimony.
Q. Mrs. Kendricks, were you ever present in any
conversation with a supervisor or administrator or
managing official where the union was discussed?
A. Yes.
Q. Can you tell us when?
A. About a couple of nights prior to the election of
the union in the dining room of the first floor.
Q. Can you tell us who was present, please?
A. Mr. Overstreet, Mrs. Brown , Mrs. Marilyn
Bolden , Mrs. Barbara Smith , Mrs. Laura Smith, Mrs.
Mayme Brittenum and I think that 's about-and
myself.
A. Well, he says, "You all are going to vote the
union in and I think they have already got the
stewardesses here ." Someone asked "Well, who are
they?" He said , "Well, that one right there, she looks
like she might be one." They said, "Who, Mrs.
Bolden?" And he said, "Yeah, and that one right
there"-Mrs. Barbara Smith-"She, looks like she
might be one, but I am not sure , she just looks like the
one that might be a stewardess."
Q. During this conversation did Mr . Overstreet
give any descriptions?
A. Well, he said that the lady that he recollected
was stewardess was one that dressed -neatly, wore
glasses and kind of medium height , but he didn't know
her name.
Considering all of the foregoing , I conclude and find that
the Respondent , by Overstreet, on or about May 1, 1972,
interrogated employees concerning their union sympathies
and desires . Overstreet did not directly ask employees
whether they were stewardesses . Overstreet 's remarks as a
whole , however , were reasonably calculated to evoke a
response as to whether the . employees pointed out by him
were designated stewardesses or not . Such conduct
constitutes interrogation of employees concerning their
union activities , sympathies and desires in a manner
constituting interference , restraint , and coercion within the
meaning of Section 8 (a)(1) of the Act . Such conduct is
violative of Section 8(a)(1) of the Act . I so conclude and
find.
Considering all of the foregoing, I conclude and find that
the facts do not reveal that Respondent , by Overstreet, on
or about May 1, 1972, created the impression of surveil-
lance of employees ' union activities by informing employ-
ees that he knew certain of the employees had been
selected as shop stewards for the Union.
5. The alleged discriminatory discharge of '
Barbara Smith on June 1, 1972
a. Introduction
The General Counsel alleges in effect and the Respon-
dent denies that Respondent discharged Barbara Smith on
June 1 , 1972, because of her union or protected concerted
activities.
The issues as to whether Respondent discriminatorily
discharged Smith , as litigated , devolves into a question as
to whether Respondent discriminatorily constructively
discharged Smith on June 1, 1972.
Smith commenced working for Respondent on July 7,
1970. At such time , Smith indicated to Respondent that she
was available for work on any shift . Smith worked from
July 7, 1970, until June 1, 1972, for the Respondent. Prior
to May 26, 1972 , Smith had been assigned to work for
Respondent on the shift beginning at 11 p.m . and ending at
7 a.m. However , on May 26, 1972 , Respondent posted a
new schedule whereby, as of June 1, 1972, Smith was
assigned to a shift beginning at 3 p .m. and ending at 11
p.m. Smith did not report to work for the Respondent on
June 1 , 1972, for the shift of work to which she was then
assigned (3 p.m. to I l p.m.). t
The only reprimand that Smith received during her work
tenure was a written reprimand given her on May 22, 1972:
Such reprimand was for habitually missing work. As to
this, it is noted that during Smith 's tenure of employment
(July 7, 1970 to June 1, 1972), Smith was absent 37 times.
b. Union activity
At some point of time prior to February 3, 1972, the
Union commenced organizational activity among Respon-
dent's employees at Collierville , Tennessee . Thereafter, on
February 3, 1972, the Union filed a representation petition
concerning such employees at Collierville in Case
26-RC-4159. At some point of time prior to February 29,
1972, the Union commenced organizational activity among
Respondent's employees at Memphis , Tennessee . Thereaf-
ter, on February 29, 1972, the Union filed a representation
petition concerning such employees at Memphis in Case
26-RC-4188. On February 29, 1972, the Regional Director
1070. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Region 26, approved a "Stipulation for Certification
Upon Consent Election" in Case 26-RC-4159. Such
stipulation provided for a representation election to be
held on April 14, 1972, among the Collierville employees.
The facts otherwise relating to union activity and
company knowledge thereof respecting Respondent's
Memphis employees may be summarized as follows:
1. Barbara Smith was questioned as to her union
activity and testified concerning (a) a discussion with and
persuasion of Memphis employees to sign union cards, (b)
a meeting with Union Agent Kelly and during such
meeting making telephone calls to Collierville employees,
and (c) acting as a union observer of the election on May 3,
1972, at Memphis. Smith, although presented an opportu-
nity to tell of all her union activity, did not testify to the
effect that she signed a union card. I conclude and find
therefore that Smith did not sign a union card during the
Memphis campaign.
2. There is no evidence to reveal that Smith was
involved in any union activity prior to April 1, 1972. Smith
testified credibly that she, Bolden, and Chapman met with
Union Agent Kelly at a place called Loeb. Smith testified
that she did not know the date, that the meeting occurred
on a Saturday, and that it occurred before the election (on
May 3, 1972, in Case 26-RC-4188). Smith's testimony as to
calling Collierville employees revealed in logical effect that
this Saturday meeting occurred after February 29, 1972,
and prior to April 14, 1972 (the date of the Collierville
election). Accordingly, I fix the date of this meeting as
being on a Saturday, after February 29 and prior to April
14, 1972.
The facts reveal that on Saturday, after February 29 and
prior to April 14, 1972, Smith, Bolden, and Chapman met
with Union Agent Kelly at Loeb's. It is clear that Kelly
spoke to these Memphis employees about the upcoming
election among the Collierville employees on April 14,
1972. It is clear that Kelly solicited help from these
employees in an attempt to persuade the Collierville
employees to vote for the Union. It is also clear, at least,
that Smith responded to Kelly's request for help and
telephoned four Collierville employees and asked such
employees to vote for the Union in the election on April
14, 1972.
3. As previously indicated, Supervisor Card interrogat-
ed Smith, on or about April 20, 1972, as to whether Smith
was going to vote for the Union. Smith told Card in effect
that she didn't know whether she was going to vote for the
Union.
4. During the period of time preceding the election on
May 3, 1972, the Union gave the employees on the third
shift (Barbara Smith, Kendricks, Wilhite, Brittenum,
Chapman, Laura Smith, Bowers, and Brown) union
buttons. The evidence as to who wore union buttons and
who didn't wear union buttons was loosely presented.
Considering the total facts, I am persuaded that Barbara
Smith did not wear a union button at any time while at
work.. Brown credibly testified to the effect that she put on
her union button and wore it thereafter on her uniform
I The facts are based upon the credited aspects of the testimony of
Overstreet, Eavenson, Bowers, Smith, other witnesses, and exhibits.
2 Considering the testimony of all of the witnesses and especially the
while at work. It is clear that Brown had her union button
on her uniform on May 1, 1972, on the occasion that
Supervisor Overstreet met with some of the employees.
Smith credibly testified to the effect that Brown and
Chapman were two employees who wore union buttons at
work, and that Chapman did not wear her union button
every night. Chapman testified to the effect that she did
not wear a union button. I discredit Chapman's testimony
to such effect. I am persuaded from Smith's and Brown's
testimony that at least one other employee besides Brown
on the third shift wore a union button at work and that
Chapman wore a union button at work at least on one
occasion.
5. As previously indicated, Supervisor Overstreet, on
May 1, 1972, in a group meeting interrogated Smith and
other employees concerning their union activities or
desires. The facts as to such interrogation do not reveal
that Smith indicated that she was for the Union.
6. Smith served as a union observer in the May 3, 1972,
election (Case 26-RC-4188). The Union won the election
by a vote of 33 to 4.
c. Decision to transfer a nurses aide 1
In May 1972, Respondent's Memphis Care Inn had three
shifts of nurses aides. There were eight nurses aides on the
7 a.m. to 3 p.m. shift, seven nurses aides on the 3 p.m. to 11
p.m. shift, and six nurses aides on the 11 p.m. to 7 a.m.
shift. Barbara Smith was a nurses aide on the 11 p.m. to 7
a.m. shift.
In May 1972, Overstreet was serving Respondent in two
functions. Thus, Overstreet was Respondent's regional
supervisor and also acting administrator of Respondent's
Memphis Care Inn. In May 1972 (around May 18) 2
Overstreet and Director of Nursing Eavenson discussed the
number of employees needed on the second and third
shifts. Overstreet considered that an additional nurses aide
was needed on the second shift, at least in part caused by
the necessity 'to serve a meal to patients on such shift.
Eavenson indicated to Overstreet that an employee could
be taken from,the third shift, based upon reports that there
were too many nurses aides on the third shift. Thereupon,
Overstreet decided that a nurses aide should be transferred
from the third shift to the second shift. The selection of
such employee was left up to Director of Nursing
Eavenson.
After receiving instructions from Overstreet about
transferring a nurses aide from the 11 p.m. to 7 a.m. shift to
the 3 p.m. to 11 p.m. shift, Eavenson attempted to
effectuate such transfer in a voluntary manner.
The nurses aides on the 11 p.m. to 7 a.m. shift in May
1972 were Kendricks, Bowers, Barbara Smith, Laura
Smith, Brown, Wilhite, Brittenum, and Chapman. Thus,
around May 18, 1972, Eavenson spoke to Bowers. Bowers
indicated that she would make the transfer at such time.
Two or three days later, Bowers told Eavenson that she
would not be able to transfer because of transportation
problems. Either around the same time that she had
spoken to Bowers, when Bowers later indicated that she
testimony of Bowers and Smith as to their conversations with Eavenson
about the transfer, and a logical consistency of the facts, f fix the timing as
indicated.
CARE INN, COLLIERVILLE 1071
could not transfer, or between May 22 and May 25,
Eavenson spoke to nurses aides Kendricks, Brown, and
Wilhite about a voluntary transfer to the 3 p.m. to 11 p.m.
shift. Kendricks told Eavenson in effect that she could not
transfer because she had a full-time job in addition to her
job with Respondent. Brown told Eavenson in effect that
she (Brown) was a widow and did not want to be at home
at night by herself. Wilhite indicated that she did not want
to transfer, that Eavenson should get the one who was
slipping out at night.3
Nursing Supervisor Eavenson did not ask Laura Smith
about a transfer. because Eavenson preferred to leave her
on the 11 p.m. to 7 a.m. shift because Laura Smith was the
one nurses aide who did not object to working a floor by
herself and such need existed on the 11 p.m. to 7 a.m. shift.
Eavenson did not approach Brittenum and Chapman
about transferring to the 3 p.m. to 11 p.m. shift because she
considered them stable employees and considered that it
was best to leave them on the 11 p.m. to 7 a.m. shift and to
move an employee who needed more supervision to the 3
p.m. to 11 p.m. shift.4
As has been indicated, Nursing Director Eavenson gave
Barbara Smith a written reprimand on May 22, 1972,
because of excessive absenteeism (habitually missing
work). At the end of the conversation, Eavenson asked
Smith if she would like to transfer to the 3 p.m. to 11 p.m.
shift, or if she would like to work relief. Smith told
Eavenson that she could not work the 3 p.m. to 11 p.m.
shift because she had no one to keep her baby, and that she
would like to stay on the 11 p.m. to 7 a.m. shift. Eavenson,
indicated that this was "okay."
On May 25, 1972, Barbara Smith learned that Eavenson
had tried to telephone her. Barbara Smith telephoned
Eavenson. Eavenson told Smith that she was going to put
Smith on the 3 p.ni. to 11 p.m. shift. Smith again told
Eavenson that she could only work the 11 p.m. to 7 a.m.
shift because she did'not have anyone to look after her
baby. Eavenson told Smith to try to find someone to look
after, her baby. Smith told Eavenson that she would do so
and let Eavenson know before the first of the month.
Apparently, on May 26, 1972, Respondent posted a new,
schedule for the week beginning on June 1, 1972. On such
schedule Respondent scheduled Barbara Smith for work
on the 3 p.m. to 11 p.m. shift. On May 26, 1972,.employee
Bowers telephoned Barbara Smith and told Smith that
Smith was scheduled for work on the 3 p.m. to 11 p.m. shift
beginning on June 1, 1972.
On May 28, 1972, Barbara Smith and Bowers stopped
Supervisor Eavenson. Smith spoke to Eavenson about the
shift change. Smith told Eavenson that she could not
change shifts, that she had not been able to find a
babysitter. Eavenson told Smith to see if Bowers would
change with her. Smith told Eavenson that she had tried,
but Bowers didn't want to change her schedule. Smith
asked Eavenson in 'effect if it weren't her job to see about
the changes. Eavenson told Smith that someone had to
3 I note that the facts reveal that the only nurses aides who had indicated
their unavailability for work at other hours at time of hire were Kendricks
and Brown. Apparently, Eavenson did not recall this at the time of
requesting transfers or believed that circumstances might have changed.
4 General Counsel, in his brief, appears to argue that Chapman's
absenteeism record was poorer than that of Barbara Smith. As of the time of
change, that she had to cut down on the help on the II
p.m. to 7 a.m. shift. Eavenson told Smith that when she
hired her she had not indicated need for a special shift.
Smith told Eavenson that this was true, that she could have
worked any shift, that she had someone then to keep her
child, but that she no longer had someone to look after her
child, and that she couldn't work the new shift.
Barbara Smith did not report to work on June 1, 1972, on
the 3 p.m. to 11 p.m. shift. Smith next saw. Supervisor
Eavenson on June 7, 1972. On this occasion, Smith picked
up her check. On this occasion, Nursing Director Eavenson
asked Smith when. she was going to come in for the 3 p.m.
to 11 p.m. shift. Smith told Eavenson that she did not have
a babysitter. Smith asked Eavenson when Eavenson was
going to change and put her back on the 11 p.m. to 7 a.m.
shift. Eavenson told Smith that she would call her when
there was an opening.5
In addition to the foregoing , it is noted that the' facts
reveal, as regards initial dates of hearing, that among the
11 p.m. to 7 a.m. nurses aides, Kendricks was the oldest
employee and Barbara Smith the second oldest employee.
Eavenson was questioned as to the basis of selection of
Barbara Smith for the transfer from the 11 p.m. to ,7 a.m.
shift to the 3 p.m. to 11 p.m. shift. Eavenson's credited
testimony reveals that Smith was selected because the
transfer, could not be effectuated on a voluntary basis since
other employees, when asked to transfer , had declined for
various reasons. Eavenson also testified, and I so credit,
that Barbara Smith was selected because of her poor
attendance record. Eavenson also testified in a contradic-
tory manner concerning whether reports that Smith was
slipping.out at night had a bearing on the decision to select
Smith for transfer. It suffices to say that I credit
Eavenson's testimony to the effect that she did not receive
such reports until after the schedule change had been
made. I discredit Eavenson's testimony to the effect that
the reports of Smith's slipping out at night had a bearing
on the decision to transfer Smith. I am persuaded,
however, that such reports have been considered by
Eavenson with respect to calling Smith for work on the 11
p.m. to 7 a.m. shift as new , openings have occurred.
Sometime after the schedule change of one employee
from the 11 p.m. to 7 a.m. shift to the 3 p.m. to 11 p.m.
shift, there occurred openings on the 11 p.m. to 7 a.m. On
one occasion, Eavenson attempted unsuccessfully to get in
touch with Barbara Smith. Since June 1, 1972, several new
employees have been hired for the openings that have
occurred on the 11 p.m. to 7 a.m. shift.
Considering all of the foregoing, I conclude and find that
the preponderance of the facts do not reveal that
Respondent discriminatorily discharged Barbara Smith on
June 1, 1972. The facts do not reveal that Respondent
transferred Smith from the 11 p.m. to 7 a.m. shift to the 3
p.m. to 11 p.m. shift for the purpose of causing Smith to
quit..Rather, the facts reveal that Respondent had need to
,transfer an employee from the I I p.m. to 7 a.m. shift to the
the June 1, 1972, transfer, this was not the case.
5 Eavenson denied that the referred to conversation occurred on June 7,
1972. I discredit Eavenson 's denial and credit Smith's testimony as to such
conversation . There is not a great dispute as to the facts otherwise. I
discredit all testimony, however, inconsistent with the facts found.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 p.m. to 11 p.m. shift , attempted to effectuate such
transfer on a voluntary basis, and had a valid reason for
the selection of Barbara Smith for transfer. I have
considered the fact that Eavenson attempted to add to her
reasons for selection of Smith •a reason which did not exist.
While I do not believe Eavenson 's testimony that reports of
Smith 's slipping out constituted part of her reasons for
selection of Smith , I am not persuaded that such
inconsistent testimony reveals the selection of Smith for
transfer to be discriminatorily motivated.
Respondent 's employees voted 33 to 4 for the Union in
the, May 3, 1972, NLRB representation election. Other
than Smith 's serving as a union observer, there are no facts
to reveal that Respondent knew of Smith 's union activities
or beliefs . Smith did not sign a union card but did engage
in union activities . In general , however , Smith 's union
activities appeared on the same level as that of other
employees.
In sum , I conclude and find that the facts do not reveal
that Respondent discriminatorily discharged Barbara
Smith on June 1, 1972.
B.. The Unfair Labor Practices (Collierville) (Case
26-CA-4341)
1. The conduct of Administrator Coats
(a) The General Counsel alleges and the Respondent
denies that Administrator Coats, on or about March 14,
1972, interrogated an employee concerning his union
membership, activities, and desires.
The only witness to this issue was Decatur Dean.6 Dean
credibly testified to the effect that on an occasion in March
or April 1972, and before the April 14, 1972, election that
Administrator Coats spoke to him in the kitchen about the
Union. Coats said to Dean, "Decatur, how are you going
to cast your vote." Dean told Coats, "I haven't got no
comment."
Considering the above, I conclude and find that
Respondent, by Coats, in March or in April 1972, before
the April 14, 1972, representation election, interrogated an
employee about his voting desires in a manner constituting
interference, restraint, and coercion, within the meaning of
Section 8(a)(1) of the Act. Such conduct is violative of
Section 8(a)(1) of the Act. It is so concluded and found.
(b) The General Counsel alleges and the Respondent
denies that Coats, on or about April 12, 1972, interrogated
an employee concerning his membership, activities, and
desires.
The General Counsel presented Hunt as a witness in
support of this issue. It is sufficient to say that Hunt's
testimony did not allude to an incident concerning
interrogation. The General Counsel does not refer to this
evidence or lack thereof in his brief, nor does he indicate
abandonment of this issue. The facts as presented clearly
fail to support the General Counsel 's allegation as to this
issue. Accordingly, it will be recommended that the
complaint allegation of unlawful conduct by Coats, on or
about April 12, 1972, as to interrogation of an employee
concerning his union membership , activities , and desires,
be dismissed.
(c) The General Counsel alleges and the Respondent
denies that Coats , on or about June 1 , 1972, interrogated
an employee concerning his union membership , activities,
and desires.
The only witness presented with respect to this issue was
Dorothy Jackson. Jackson testified to the effect that on
May 4, 1972, she gave a statement to Union Representative
Kelly concerning the incident involving her, Walker, and a
patient named Mrs. Cowan on May 3 , 1972. Jackson
testified that she had a conversation on May 4, 1972, with
Administrator Coats. Jackson's testimony as to such
conversation is revealed by the following excerpts from her
testimony.
Q. Did you ever have any occasion to have any
conversation with any management official or supervi-
sor about the union?
A. I talked to Mr. Kelly and I gave Mr. Kelly a
statement about what happened on third floor. So the
next day Mr. Coats asked me what-what did I sign for
Kelly and I told him I signed what happened on the
third floor and he said what Kelly had to do with it and
I told him I didn 't know . He asked me did I sign was I
out of the room when it happened and I told him yes.
Considering the foregoing , I conclude and find that
Respondent, by Coats, violated Section 8(a)(1) of the Act
by interrogation of Jackson on May 4, 1972, concerning
what she had signed for Union Representative Kelly, what
Kelly had to do with the "May 3" incident, and the
contents of such statement given to Kelly. I note that no
assurances against reprisals were given to Jackson by
Coats. Under such circumstances, the questions directed to
Jackson were coercive in nature.
2. The conduct of Director of Nursing Rose
(a) The General Counsel alleges and Respondent denies
that Respondent, by Rose, on or about March 31, 1972,
threatened an employee with discharge if the Union were
selected as the employees ' collective-bargaining representa-
tive.
The witnesses to this issue were Genevia Garrison and
Malene Rose . Garrison's testimony on direct examination
was to the effect that she had a conversation with
Supervisors Rose and McGuire about 2 weeks before the
April 14 representation election, that Rose told her
(Garrison) that if she voted for the Union, she would be
the first laid off because the employer would not be able to
pay all of the employees . On cross-examination, Garrison
testified that she was told by Rose in the conversation that
she would be laid off first because she was the last one
hired. Rose in her testimony denied having the conversa-
tion alluded to by Garrison . Rose testified, however, that
she had several conversations with Garrison about the
Union. It is not necessary to set forth the details of such
conversations. It is sufficient to say that they were
innocuous in nature. The facts reveal that Garrison was
6 Coats was present for most of the , trial in this proceeding . It appeared his failure to testify as to the issues for which he appeared to be involved.
that he left'the trial because of illness . No adverse inference is drawn from
CARE INN, COLLIERVILLE 1073
working at the time as a housekeeper. Garrison was senior
of the four housekeeping employees.
Rose, as a witness, appeared to be a more truthful,
forthright, 'and honest witness as compared to Garrison.
Considering this and the logical consistency of facts, and
the fact that Garrison was not the last employee hired, I
find Rose's testimony on this issue more credible than
Garrison's. I credit Rose's -denial that she told Garrison
that, if she voted for the Union, she would be the first laid
off because the employer would not be able to pay all of
the employees and because she was the last one hired.
Accordingly, it will be recommended that the allegation of
unlawful conduct by Rose as to a threat of discharge on or
about March 31, 1972, be dismissed.
(b) The General Counsel alleges and the Respondent
denies that Rose, on or about April 7, 1972, interrogated an
.employee concerning his union membership, activities, and
desires.
The witnesses to this issue were Moore and Rose. As to
this and a number of other issues, Moore and Rose were
the only witnesses . Moore was not an impressive witness.
The hearing was temporarily moved from the trial site to
Moore's'home for the purpose of taking Moore's testimony
because of Moore's illness or injury. Moore's testimonial
demeanor as she testified to the issues was that of a
confused witness, and she did not appear to be an objective
and reliable witness. Moore's affidavit of May 5, 1972, was
presented to reveal inconsistencies between her testimony
and her affidavit. Moore's testimony and affidavit when
considered together present a confused picture of when
events occurred, who participated in such events, and who
said what in such events. There are clear inconsistencies
between Moore's testimony and. her affidavit. Moore's
affidavit revealed that she had not read the affidavit at
time of signing such affidavit but had had the affidavit
read to her. Moore was afforded the opportunity to read
her affidavit at the hearing and to explain any inconsisten-
cies between the affidavit and her testimony. Moore
indicated at the hearing that she was unable to read said
affidavit because she did not have her glasses. Moore's
affidavit was read to her by Counsel. Moore indicated that
she did not wish to change or explain any statements in her
affidavit. Rose was an impressive witness. Rose' s demean-
or was frank, forthright, truthful, and objective. I credit
Rose's testimony over Moore's where such testimony is in
conflict.
A consideration of General Counsel's statements as to
what issues Moore was presented in support of, Moore's
testimony, and Moore's pretrial affidavit, reveals that
Moore failed to testify in support of some of said issues
and that her testimony departs from and conflicts with her
affidavit.
As to the issue whether Rose interrogated Moore on
April 7, 1972, I note that Moore's testimony which comes
closest to suggesting interrogation of Moore by Rose is that
concerning remarks made by Rose to her on or about April
11, 1972. Moore testified about this as is revealed by the
following excerpts from Moore's testimony.
A. Mrs. Rose, Mr. Coats about three days before
the election, they came around with ballot sheets and
they was showing us how to vote and that they would
like for us to vote where the box said, "No," and she
asked everyone if they understood and they said,
"Yes." I didn't say anything and they picked the ballot
sheet up to walk away and she stopped and turned and
looked at me and asked me, "Mary, are you sure you
understand how to vote?" And I said, "Yeah," and they
walked away.
Considering the foregoing, I do not find such testimony
to reveal unlawful interrogation. It is doubtful that this
evidence was offered in support of the interrogation issue.
Moore's affidavit of May 5, 1972, introduced to reveal
inconsistencies between said affidavit and her testimony,
reveals statements concerning a conversation .with Rose
and McGuire that occurred 2 days after April 5, 1972.
Such affidavit was to the effect that Rose asked Moore
"why was I still attending the Union meetings ." Moore's
testimony as to a conversation with Rose on April 7, 1972,
does not reveal evidence of interrogation: I so conclude
and find. Accordingly, it is recommended . that ' the
allegation of unlawful conduct in such regard be dismissed.
(c) The General Counsel alleges and the Respondent
denies that Rose, on or about April 7, 1972, created the
impression of surveillance of an employee's union activities
by informing the employee that she knew the employee
had been selected as a shop steward and that the Union
had paid the employee $20 for going to the Labor Board.
The General Counsel alleges and the Respondent denies
that Rose, on or about May 8, 1972, created the impression
of surveillance of an employee's union activity by
informing the employee that the employee should talk to
other employees who were going down to the Labor Board
giving statements and signing their names, that there was
not anything going on that the Respondent did not know
about.
Moore's testimony in support of these issues concerns an
incident which allegedly occurred on May 8, 1972.
According to Moore, what occurred on May 8, 1972, is
revealed by the following excerpts from her testimony.
A. And I returned to work at the right time on
Monday morning, about 7:00 and about 10:00 Mrs.
Rose met me and she told me, said, "Mary, you was
sick, I see on your time card where you were sick, but
you wasn't too sick to stay in bed Sunday," and I said,
"No, ma'm, I went to see my mother," and she paused
for a moment and said, "Mary, I know you is no fool'
and the union has already elected you for shop
steward." She said, "Why don't you talk to these girls
that are running down to the Labor Board and giving
statements and signing their names on papers that is
something that they don't know what they are doing
because if they have to go into a court of law, that will
be sworn by the Bible."
She told me also that the union bought me a car and
they knowed I had been elected for shop steward
because the union had paid me $20.
Q. All. of this conversation took place on May 8th?
A. Yeah.
Rose testified to the effect-that she had a conversation
with Moore around April 7, and one after the election.
Rose's testimony essentially as to what occurred is revealed
by the following excerpts from her testimony.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. One was on third floor at few-a week or ten
days before the election and I was making rounds and
she said she wanted to talk with me.
Q. Just a minute. About what time of day was it?
A. It was in the morning.
* *
A. She wanted to know if they were still telling that
she was pushing the union and I said, "Yes, I hear
that," and she said, "Have you heard that the union
bought me a car?" And I said, "I have heard that
rumor, too, Mary." She said, "I am sick to death of the
union . I Wish I had never heard the word," and said, "I
am not for it." I said, "Mary, you don't have to tell me
all this," I said, "Nobody but you and the Lord will
know how you vote when you go in that booth."
* * * * *
A. , ' No, I did not have any until after the election
she did not come in to work, did not call in, did not
report in. The next day I asked her'why and she said
she had been to Whiteville to see her mother that was
sick and I said, "Well, you could have called in so we
could have replaced you." I said, "Why didn't you?"
She said, "Because I didn't have to."
So I turned and walked away and didn't say
anything else to her.
Q. Was there any discussion about the union on
that occasion?
A. No discussion at all. Mrs. Adair, the dietician,
was standing there when I talked to her, when I asked
her why she didn't call in.
Q. Do you recall any other discussions with her
during the course of the campaign?
A. No, I believe that was all the discussions I had
with her.
Q. Specifically I will ask you if during any
conversation with Mary Moore you asked her about
her membership or activities or desires in connection
with the union?
A. No, I did not.
Q. Did you ever ask her if she were attending
meetings?
A. I did not.
Q. Did you ever ask her how she was going to vote?
A. I did not.
Q. Did you ever tell her that you knew she had
been selected as a shop steward?
A. No.
Q. Did you ever tell her that you knew that the
union had paid her $20 for going to the Labor Board?
A. No.
Q. Did the subject of shop steward ever come up in
a conversation between you and Mary Moore?
A. No.
Q. Did the subject of $20 and going to the Labor
Board come up?
A. Well, back at this conversation we had about
the union buying her car and all this, and that she was
pushing the union, she said she only went to the
hearing because she was subpoenaed and thought she
had to go. That was all the discussion that was
mentioned about that.
Q. How did the subject of the hearing come up?
A. She said that she had to attend, but she was
subpoenaed and thought she had to go.
Q. Had you made reference to that hearing?
A. No, not at all. She said she thought she had to
go.
As indicated previously, I found Rose a more credible
witness than Moore. I credit Rose's testimony over
Moore's where in conflict. Considering all of the foregoing,
I conclude and find that the General Counsel has not
established (1) that Rose, on or about April 7, 1972,
created the impression of surveillance of an employee's
union activity by informing the employee that she knew
the employee had been selected as a- shop steward and that
the Union had paid the employee $20 for going to the
Labor Board, or (2) that Rose, on or about May.8, 1972,
created the impression of surveillance of an employee's
union activity by informing the employee that the
employee should talk to other employees who were going
down to the Labor Board giving statements and signing
their names, that there was not anything going on that the
Respondent did not know about. Accordingly, it is
recommended that the allegation of unlawful conduct in
such regards be dismissed.
(d) The General Counsel alleges and the Respondent
denies that Rose, on or about April 7, 1972, told an
employee that if the employees selected the Union as their
collective-bargaining representative, the Union would take
a blank piece of paper and draw up what she wanted, then
it was up to the Company to negotiate, which the
Company did not have to do. -
The witnesses to this issue were Moore and Rose.
Moore's testimony to this issue is revealed by the following
excerpts from her testimony.
A. At the time, well, it may be the same date, but I
can't recall. She approached me at the nurse's station
on the first floor, her and Mrs. McGuire, and she also
had a blank piece of paper and she drew about that Joe
Kelly would draw up his contract on one side and
Bordeaux would draw up his and Kelly couldn't make
Bordeaux give him one red penny and that if the union
did come in here, that they didn't have to negotiate and
wasn't no need of us trying to vote for the union
because Kelly couldn't make Bordeaux negotiate
anything. I would all start off on a blank piece of
paper.
Rose's testimony to this issue is revealed by the following
excerpts from her testimony.
Q. Did you ever have a conversation with Mrs.
Moore in which you used a blank piece of paper?
A. I did not.
Q. Did you ever specifically take a blank piece of
paper and draw a line and tell her "This is a union
contract"?
A. No.
Q. Or "This is the way a union contract works"?
A. I think she is getting that-well, that was
mentioned in a meeting, but I did not make that
statement, that they told that a union contract would
CARE INN, COLLIERVILLE 1075
start out and be a blank sheet of paper and everybody
had to negotiate on the terms, but I did not make that
statement.
Q. Did you ever tell her that the company did not
have to negotiate?
A. No, I did not.
As indicated previously, I found Rose to appear to be a
more credible witness than Moore. I credit Rose's
testimony over Moore's where there is testimonial conflict.
Considering the foregoing, I conclude and find that the
facts do not establish that Rose, on or about April 7, 1972,
told an employee that if the employees selected the Union
as their collective-bargaining representative, the Union
would take a blank piece of paper and draw up what they
wanted, then it was up to the Company to negotiate, which
the Company did not have to do. Accordingly, it is
recommended that the allegation of unlawful conduct in
such regard be dismissed.
(e) The General Counsel alleges and the Respondent
denies that Rose, on or about April 13, 1972, created the
impression of surveillance of an employee's union activity
by informing the employee that Respondent had spies in
the union meetings.
The witnesses to this issue were Moore and Rose.
Moore's testimony as to this issue is revealed by the
following excerpts from her testimony.
A. Yeah. I went one evening to pick up my sister
from work and Mrs. Rose and Virginia McGuire met
me at the elevator and she said, "Well, hello, Mary. I
thought you wasn't going to attend the union meeting
anymore," and I said, "I didn't tell you I wasn't going
to the meetings anymore." She said, "Well, I know you
were there yesterday," and I told her "Well, for you to
know that I was at the meeting, the person who seen me
to tell you, she had to be there herself." She said, "Well,
Mary, it's not anything that goes on up there that we
don't know about because you all have spies in our
meetings ," and she said, "We all have spies in your
meetings.
At that time the elevator opened up and I got on the
elevator.
Q. Who was this doing the talking now?
A. Mrs. Rose.
Q. Did Mrs. McGuire say anything?
A. Yes. She said that "We should beat her up, she
has been attending the union meetings."
Rose's testimony as to this issue is revealed by the
following excerpts from her testimony.
Q. Did you ever tell Mary Moore that the company
had spies in the union meetings?
A. No.
Q. Did you ever say, "We know you have spies in
our meetings"?
A. Well, the only thing I have heard about that is
Mrs. McGuire said Mr. Kelly called her at home. This
was back at the beginning before the election, I would
say a month before, and told her that he knew we had
spies at the meeting and she asked him "Well, didn't
everybody have spies?" That is the only-
Q. That is what was reported to you?
A. That is what she reported to me.
Q. This was reported to you by Mrs. McGuire?
A. By Mrs. McGuire.
Q. Of a conversation that she had-
A. With Joe Kelly.
Q. -with Joe Kelly, the union representative? Did
you discuss this conversation that Mrs. McGuire had
with Mr. Kelly with Mary Moore?
A. No.
As indicated previously, I found Rose to appear to be a
more credible witness than Moore to the issues. I credit
Rose's testimony over Moore's where the testimony is in
dispute. Considering the foregoing, I conclude and find
that the facts do not establish that Rose, on or about April
13, 1972, created the impression of informing the employee
that Respondent had spies in the union meetings. Accord-
ingly, it will be recommended that the allegation of
unlawful conduct in such regards be dismissed.
(f) The General Counsel contends and Respondent
denies that Rose, in the last part of March 1972, the exact
date being unknown, threatened an employee with bodily
harm if the employee voted for the Union.
The witnesses to this issue were Walker, Rose, and
McGuire. Walker testified to the effect that she had a
conversation with Rose in March 1972. Walker's testimony
as to what occurred in the conversation is revealed by the
following excerpts from her testimony.
A. She asked me if-was I going to vote for the
union and I didn't say anything and she told me, she
said, "Dowdy, if you vote for the union, I am going to
whip your ass," and she smiled.
Rose testified to the effect that she had a conversation
with Walker a week or 10 days before April 14, 1972.
Rose's testimony as to what occurred in the conversation is
revealed by the following excerpts from her testimony.
A. Mrs. McGuire was there with me at the first
floor nurse 's station.
Q. Mrs. McGuire, what is her position?
A. She is charge nurse on the first floor seven to
three.
Q. What took place there, Mrs. Rose?
A. Mrs. Dowdy or Vera Walker Dowdy told me
that the other employees were accusing her of pushing
the union, that she was not for the union and she was
tired of being accused and said she was not going to
vote for the union and I said, "I'm glad to hear that,
Dowdy, that anybody that would want a union in a
place like this deserves to have their rear kicked," and I
laughed when I said it.
Rose's version of what occurred is corroborated by
McGuire's testimony. I credit the testimony of Rose and
McGuire as to this issue and discredit Walker's testimony.
Rose was a very impressive and believable witness. I found
Rose to appear to be a more truthful and objective witness
than Walker. Although McGuire was not as impressive as
a witness as Rose, I found her testimony and the logical
consistency of the facts, including Rose's credible testimo-
ny, to be similarly persuasive of the truth. As indicated, I
credit the testimony of Rose and McGuire to this issue
over the testimony of Walker.
Considering the credited testimony of Rose and
McGuire, I conclude and find that the facts do not reveal
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent, by Rose, threatened an employee with
bodily harm if the employee voted for the Union.
(g) The General Counsel alleges and the Respondent
denies that Rose, in April 1972, the exact date being
unknown, interrogated an employee concerning the em-
ployee's union membership, activities, and desires.
The General Counsel alleges and the Respondent denies
that Rose, in April 1972, the exact date being unknown,
promised an employee a wage increase if the employees
would abandon their support for the Union.
The witnesses to these issues were Walker, Rose, and
McGuire. Walker testified as to these issues that she had a
conversation with Rose and McGuire in March 1972.
Walker's testimony as to what occurred is revealed by the
following excerpts from her testimony.
Q. Where did this conversation take place?
A. The nurse's station, first floor.
Q. What was said in this conversation?
A. She asked me was I still for the union and I
didn't say anything and she asked me was I still going
to the union meetings and I told her yes and she asked
me why and I told her for the same reason that I was
going to the company meetings, because I wanted to
hear both sides of it.
Q. Was anything else said?
A. No.
Q. Did Mrs. McGuire say anything?
A. Yeah, she told Mrs. Rose to look at my face, she
said to look at my face, she could tell whether or not I
was going to vote for the. union because my face
blushed a little.
Both Rose and McGuire testified to the effect that such a
conversation as described by Walker did not occur. I
found Rose's and McGuire's testimonial demeanor to
appear to be more credible and truthful than that of
Walker. I credit their testimonial denial of the unlawful
conduct complained of in this issue. Accordingly, it will be
recommended that the complaint allegations in such
regards be dismissed.
3. The conduct of Vice President Tollie
Bordeaux?
(a) The General Counsel alleges and the Respondent
denies that Bordeaux, in the last of March 1972, the exact
date being unknown, interrogated an employee concerning
his union membership, activities, and desires.
This issue and the other issues relating to Bordeaux's
conduct concern Bordeaux's conduct during the presenta-
tion of Respondent's antiunion campaign in certain
meetings by management official with small groups of
Respondent's employees at Collierville.
The testimonial facts presented by Respondent's witness-
es Bordeaux, Rose, and Overstreet with respect to such
meetings and one meeting at Collierville with a large group
of Collierville employees may be said to be somewhat
confused. The testimony of General Counsel's witness,
Moore, as to such meetings may also be said to be
confused. Allen's testimony was clear and believable, and I
credit her testimony to the effect that she attended a
meeting wherein Respondent's officials spoke to a large
number of Collierville employees in March 1972 and
presented strong opposition to the Union, and that later in
March she attended a meeting where Respondent's
officials spoke to a small group of Collierville employees,
six in number , again gave talks about the Union, and
questioned her and others as to their " feelings." It is also
clear from Moore's testimony that another presentation
was made by Respondent's officials in early April 1972 to a
small group of Respondent's Collierville employees.
Overstreet clearly testified to the effect that there were two
series of meetings with small groups of employees. The
overall facts reveal that in each series the same basic text
was used and that each series consisted of seven or eight
meetings where the same basic text for such series was
used.
Considering the foregoing, the credited aspects of the
composite of the testimony of the witnesses, and the logical
consistency of the facts, I find the facts as follows.
Respondent commenced its antiunion . campaign at
Collierville by the presentation of its viewpoint to a large
group of its Collierville employees in March 1972.
Respondent's officials in general effect followed a prepared
text in their presentation of Respondent 's antiunion views.
The prepared text was not presented in evidence in this
proceeding.8 Allen testified in conclusionary terms as to
what occurred at one presentation. Such testimony may
have been intended, to convey her recollection as to what
occurred at Respondent's presentation to. a large group of
Collierville employees. It is conceivable that Respondent's
presentation of its message to the large group of Collierville
employees could be similar in effect to one of its
presentations to the Collierville employees congregated in
small groups. I am persuaded, however, that Allen has
confused the "large group" presentation by Respondent
with the "small group" presentation. What Allen testified
to as having occurred at the " large group" presentation is
revealed by the following excerpts from Allen' s testimo-
ny:9
A. Mr. Coats introduced Mr. Bardo and Mr.
Overstreet. Mr. Overstreet had a few words. He told us
that the union was using us for guinea pigs and he
didn't think it would be good for us and it would cause
strikes and employees would be without jobs and he
said if we went on strike, while we was out walking the
picket that if they hired other employees and employees
of Care Inn, they would work while we were out
walking picket and then after the strike had ended and
started back to work-was ready to come back to work,
then they would not have to be forced to take the
strikers back.
Mr. Bardo said some of the same things that Mr.
Overstreet said. He said the union dues would be four or
five dollars and that we would not be able to speak for
ourselves, that one person would have to talk for us, speak
for us.
In the last of March 1972, Respondent presented the first
7 The pleadings establish that Bordeaux was "Assistant to the President ." to the Regional Director's June 6, 1972, Report on Objections-Case
The testimony establishes that he was a vice president . 26-RC-4159.
8 What may have been a part of such proposed text is Exhibit I attached 9 Bardo in the record is in reference to Tollie Bordeaux.
CARE INN, COLLIERVILLE 1077
of two series of presentations to a small group of its
Collierville employees. Respondent has approximately 50
employees at its Collierville operation. This first series of
its presentation to small groups of Collierville employees
was made by a presentation in effect of the same basic text
to groups of employees, 6 to 10 in number, in 7 to 8
separate meetings. It appears that each meeting in the first
series followed shortly in time the completion of the prior
meeting.
Employee Allen attended one of the meetings in the first
series. Thus Allen was present at Respondent's small group
meeting presentation in late March 1972. Employee Moore
also attended one, of the meetings in the first series held in
late March 1972. I am persuaded from the overall facts
that Moore has confused the late March 1972 small group
meeting with another small group meeting that occurred
during the week of April 5, 1972.
The Respondent's basic presentation at the small group
meeting in late March 1972 is revealed in effect by the
basic prepared texts used and indicated prepared for use
during the week of March 20, 1972. The prepared text in
evidence reveals that Respondent was advising its employ-
ees of how it felt about the Union and why it felt the way it
did. The prepared text revealed that Respondent would
negotiate with the Union in good faith but that Respon-
dent would not agree to union demands or proposals that
would endanger the nursing home or hurt Respondent's
legal and economic rights, that Respondent could in good
faith refuse to make economic concessions, that the Union
could not make Respondent do "this or that." The
prepared text set forth statements about union promises,
that the only way the Union could try to force its demands
was by strikes, and that the "Company has the absolute legal
right to permanently replace each and every striker." The
basic text also refers to the Union's manner of operations
concerning bargaining and the calling of strikes, about
union fines, that another Company was able to hire 300
striker replacements, and that Respondent only had to hire
50 employees if everyone went on strike. The basic text
discussed union finances and union rules, the Union's
constitution, union dues, fines and assessments, lawsuits to
collect union fines, union financial reports, and union
expenditures. The basic text ends with statements to the
effect that Respondent has presented the facts and
documented truth about the Union and a solicitation for
questions from the employees.
Bordeaux and Overstreet testified to the composite effect
that the prepared texts were used and followed verbatim. I
credit their testimony to such effect. Bordeaux's testimony,
however, reveals that management officials solicited
questions, that employees asked questions, and that the
officials answered such questions. I am convinced that the
evidence reveals that the dialogue as to such questions and
answers is not revealed in the written prepared texts.
Allen testified to the effect that Bordeaux questioned her
as is revealed by the following credited excerpts from her
testimony.'
He asked Mrs. Jamison how did she feel and Mrs.
Jamison said she didn't have anything to say. He asked
me how did I feel and I told him that I was not saying
that I was for the union or against the union, but some
of the things that the union had said had sounded good
and some of the things the company said sounded
good.
He asked me to tell him what was some of the things
that Kelly had said and I told him that we stood a
better chance of losing our jobs if the union didn't get
in than we did if the union would get in.
Considering the foregoing and the basic text format for
soliciting questions from employees, I am persuaded that
Bordeaux questioned Allen at the end of the use of the
prepared text.10 Allen at points in her testimony described
the question as being a direct question as to how she felt
about, the union. I am persuaded from her total testimony
that Bordeaux did not use the word "Union" in his
question. I credit his denial that he "directly" asked her as
to how she felt about the Union.
Bordeaux's testimony as to his use of questions is re-
vealed by the following excerpts from his testimony:
Q. Do you recall a group meeting in the storage
room in which Mrs. Allen was present?
A. I do.
Q. Would you state as best you can what went on
in the meeting that she attended?
A. Just in general terms? Well, the meeting, as I
mentioned in earlier testimony, was conducted with the
outline, the information that was provided me. As
stated earlier, we went through the document verbatim
and followed it to the word.
There were some questions, as there always is, at the
end of our meeting. We did make an express point to
ask for questions concerning any points that we did
cover, any points of confusion, just any unanswered
questions that might have arisen as a result of this
meeting or other meetings, or any other conversations,
both inside and outside the facility.
During the meeting that we are talking about here,
Viola Allen was a member of that group. During that
meeting questions were asked-as to any other questions.
Q. Did you ask anyone how they felt about the
union?
A. No, no specific or direct questions were asked
on a direct basis saying, "How do you feel about the
union?" There were questions asked as relative to
"How do you feel about the information we have
presented? How do you feel about the topics we have
'discussed?" that type of situation.
But to my knowledge, and I can say this without
qualification, that I did not ask a direct question
because obviously I had been told by Counsel that
direct questions are not permitted.
Considering the foregoing, I am persuaded and conclude
and find that Bordeaux in effect asked employees how they
felt about the Union. It is not necessary to use a direct
question as to how he feels about a union to in effect
question an employee as to how he feels about a Union. In
1O Allen's testimony as to what occurred at the late March 1972
presentation concerns the dialogue of what occurred during the question
and answer period. I am persuaded to this conclusion from the overall
consistency of facts.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the context of a prepared presentation as to how the
employer feels about a union and why and a discussion of
the Union in many of its operational procedures and
practices, a question of how an employee feels about the
topics discussed is a question of how the employee feels
about the Union. An examination of the basic text used
reveals strong opposition to the Union. While in major part
the prepared text appears within the protection of Section
8(c) of the Act, I note that the statement about the absolute
right to permanently replace employees is inaccurate under
current case law and is not absolutely clear as to the
difference between economic strikers' and unfair labor
practice strikers' rights. Considering all of the foregoing, I
conclude and find that the General Counsel has estab-
lished that Respondent, by Bordeaux, unlawfully interro-
gated' employees about their union feelings or beliefs. Such
interrogation, under the circumstances, without legitimate
basis therefor, and without assurance against reprisals,
constitutes interrogation as to employees' union feelings or
beliefs in a manner constituting interference, restraint, and
coercion, within the meaning of Section 8(a)(1) of the Act.
It is so concluded and found.
(b) The General Counsel alleges and Respondent denies
that Bordeaux, on or about April 5, 1972, told employees
that Respondent was not going to negotiate with the Union
and give them one red cent if the employees selected the
Union as their collective-bargaining representative.
General Counsel's witness to this issue was Moore. As
previously indicated, I found Moore to be an extremely
confused witness. Moore's testimony was to the effect that
on April 5, 1972, Respondent officials Bordeaux and
Overstreet made statements to a small group in the
presentation of Respondent's antiunion campaign.
Moore's initial testimony was of _ such a nature that it
appeared that she attributed remarks of refusal to negotiate
to Overstreet. Later her testimony makes it clear that she
attributed such remarks to Overstreet as occurring on April
5, 1972, that Bordeaux did not make such remarks on April
5, 1972, and that Bordeaux had made remarks about
Respondent's refusal to negotiate at other presentations.
Bordeaux denied that he ever made statements to the effect
that Respondent would not negotiate and give the
employees one red cent.
Considering all of the facts, as indicated previously, I am
persuaded that Moore has confused Respondent's late
March 1972 presentation of its antiunion campaign with its
April antiunion presentation. Considering all of the
evidence, I credit Bordeaux's denial that he made state-
ments that Respondent would not negotiate with the
Union and give them one red cent. I discredit Moore's
testimony that Bordeaux and Overstreet made remarks
that Respondent would not negotiate with the Union and
give them one red cent. I am persuaded that Respondent
officials made remarks (concerning the topics covered in its
basic prepared text utilized for the main portion of its
presentation in late March 1972) during the question and
answer period at the end of its presentation which are not
revealed in writing. However, I am persuaded that such
remarks were consistent with the remarks contained in the
basic text and not as indicated by Moore.
Accordingly, I recommend that the allegation of unlaw-
ful conduct concerning a threat to refuse to negotiate be
dismissed.
(c) The General Counsel alleges and Respondent denies
that Respondent, by Bordeaux, on or about April 5, 1972,
threatened employees that, if they selected the Union as
their collective-bargaining representative and went on
strike, the very next day the Respondent would have three
shifts there to replace them.
The General Counsel principal witness to this issue was
Moore. Her testimony was to the effect that Overstreet
made the following remarks on April 5, 1972.
Q. Now, tell me everything that you remember Mr.
Overstreet saying.
A. Well, he come in and we was talking about the
union, about them drawing up their negotiation and
start off on a blank piece of paper. Kelly has to draw
up his and they draw up theirs and they were not going
to negotiate. If we did vote the union in and went on
strike; we would be replaced because those old people
was going to be taken care of, they was paying to live
out there and they was going to be taken care of no
matter what.
As indicated previously, I am persuaded that Moore has
confused Respondent's late March 1972 antiunion presen-
tation with its April antiunion presentation.
Allen testified to the effect that at Respondent's late
March 1972 presentation of its antiunion views, Bordeaux
made remarks as revealed by the following excerpts from
her testimony.
A. Bardo did the talking. He told us that he had
promised the patients' families that they would have to
be cared for and that he was going to see to it that it
was done and that nobody could tell him-tell them
how to spend their money.
As indicated previously, Respondent's officials followed
a basic text in the main part of the late March 1972
presentation. of its opposition to the Union. The prepared
text indicates various remarks for delivery by indicated
officials. Bordeaux's credited testimony revealed however
that on occasion remarks prepared for one official were
delivered by other officials. As indicated previously, other
remarks about topics were made during the question and
answer period.
Bordeaux denied making the statements about replace-
ments attributed to him by Moore. Bordeaux, however,
testified as follows:
Q. Did you at that. meeting or any other meeting
tell the employees that if they selected the union as
their collective bargaining representative and went on
strike that the very next day the Respondent would,
have three shifts there to replace them?
A. No, sir, I did not make that statement.
Q. Did you make statements like those that I have
asked you about?
A. Statements relative to replacement of employees
would reveal itself in the agenda or the information we
had.
Q. You are talking about Respondent's Exhibit 4?
A. Right, sir. It was related to the statement that
we, the company, and I at that particular time
represented that, felt the responsibility to the families
CARE INN, COLLIERVILLE 1079
of the patients that we had in the home that we would
do everything within our power to see that these
patients received the proper nursing care.,
Q. Did you make reference to that in connection
with strikes?
A. In connection with strikes?
Q. Yes.
A. Yes, sir.
Q. What did you say? How does that relate to
strikes as you said it?
A. I beg your pardon?
Q. What did you say about that in connection with
strikes?
A. As I remember the text of the speech that was
read, there was a mention in there of potential strikes.
Now, there was also a specific point mentioned that
under law striking employees may be replaced in the
performance of their duties and that you are not
compelled by law to. rehire the striking employees
pursuant to a settlement or withdrawal or whatever the
solution might be.
Considering all of the foregoing, I find Moore's
testimony on this issue more credible than I do the
testimony of Bordeaux.' I found her testimony in the
context of all the facts to have the ring of truth on this
issue. I did not find Bordeaux's testimony on this issue to
appear forthright. It is clear that remarks other than the
prepared text were used. I am persuaded that such remarks
were made in the dialogue during the question and answer
period.
The General Counsel argues in effect that the telling of
employees that they will be replaced if they strike, without
the further explication of all the legal rights of economic
and unfair labor practice strikes, constitutes a violative
threat.11 Considering all of the facts, I do not find the
remarks made by Bordeaux to be coercive. Respondent
operates a nursing facility and had a high moral obligation
to furnish the necessary nursing care to patients at such
facility. Public policy would dictate that such services be
furnished. Statements concerning replacements to furnish
such necessary services accompanied by explanation of the
need for such services fall within the purview of Section
8(c). Accordingly, I recommend that the allegation of
unlawful conduct in such regard be dismissed.12
4. The conduct of McGuire
The General Counsel alleges and the Respondent denies
that Respondent, by McGuire, on or about April 13, 1972,
created the impression of surveillance of an employee's
union activity by informing the employee that she knew
that the employee had been at a union meeting the day
before.
The witnesses to this issue were Moore and McGuire. As
indicated previously, Moore was a confused witness. Her
testimony was to the effect that on or about April 7, 1972,
McGuire was present when Rose was having a conversa-
11 See Hicks-Ponder Co., 186 NLRB 712, and a discussion of Fleetwood
Trailer (N.L.R.B. v. Fleetwood Trailer Co.), 389 U.S. 375 (1967); N.L.R.B. v.
Great Dane Trailers, Inc., 388 U.S. 26(1967),iand Laidlaw Corp., 171 NLRB
1366 (1968) cases.
12 The remarks in the prepared text concerning the absolute right to
tion with her, that McGuire said "Rose, we should beat her
up because she has been attending union meetings." Rose
and McGuire testified in effect that this incident did not
occur. McGuire testified in effect that she had a conversa-
tion with Moore, initiated by Moore, about the Union.
McGuire testified in denial that she told Moore that she
knew that Moore had been attending union meetings. As
indicated, I found Moore to be a confused and unreliable
witness. I discredit her testimony on this issue. I credit
Rose's and McGuire's testimony to this issue. Accordingly,
it will be recommended that the allegation of creation of
impression of surveillance by McGuire be dismissed.
5. The discharge of Vera M. Walker
. May 3, 1972
Vera M. Walker was hired as a nurses aide at
Respondent's Collierville facility in November 1969, and
worked thereafter until she was discharged on May 3, 1972.'
During the first part of 1972, the Union commenced
organizational activity at' Respondent's Memphis and
Collierville facilities. Representation petitions were filed
for separate bargaining units at both facilities. A represen-
tation election was conducted by the National Labor
Relations Board at the Collierville facility on April 14,
1972. A representation election was also conducted by the
National Labor Relations Board at the Memphis facility
on May 3, 1972. The. Union lost the vote count at the
Collierville facility and filed timely objections to the
election. Certain of, those objections are in issue in this
proceeding. The Union won the vote count at the Memphis
facility.
The facts reveal that Respondent' engaged in three
separate incidents of unlawful interrogation as to their
union beliefs or desires of its Memphis employees prior to
the May 3, 1972, election at Memphis. The facts also reveal
that Respondent, by Coats, engaged in an incident of
unlawful interrogation of a Collierville employee, after the
filing of the representation petition and prior to the April
14, 1972, election.
The facts reveal that Respondent, at Collierville, engaged
in presentation of an antiunion campaign designed in
effect to constitute. unlawful interrogation of its employees
as to their union feelings or beliefs. This presentation
commenced in March and concluded in April 1972, before
the April 14, 1972, representation election at Collierville.
This presentation consisted of one presentation of Respon-
dent's opposition to the Union to a large group of
Collierville employees and two series of small group
meetings (6 to 10 in number) designed to present each
series to all employees. The presentations included a
question and answer period.
Respondent, on or about June 1, 1972, transferred one of
its Memphis employees, Barbara Smith, from one shift to
another shift. Smith was one of the union observers for the
representation election held at the Memphis facility on
permanently replace each and every striker were in the context of remarks
indicating as a whole that such strikes as would occur would be economic
strikes . As indicated later herein, I find such remarks to constitute improper
conduct with respect to the holding of a free representation election.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 3, 1972. The facts reveal this transfer to be
nonviolative of the Act.
The facts also reveal that Respondent, by Coats, on or
about May 4, 1972, unlawfully questioned employee
Jackson, at the Collierville facility about a statement she
gave the union representative concerning the discharge of
Walker.
Walker, as indicated, worked as a nurses aide for
Respondent at the Collierville facility from November
1969 to May 3, 1972. Walker engaged in union, activity
during the union organizational campaign. Walker' s union
activity essentially was that of attending two union
meetings, talking about the Union to several of the other
nurses aides, and serving as a union observer at the
representation election at Collierville on April 14, 1972.
Walker had several conversations with supervisors about
the Union. The credited facts do not reveal, however, that
such conversations revealed her interest in support of the
Union. The evidence as to Walker' s serving as a union
observer on April 14, 1972, is the only evidence to reveal
company knowledge of her union activities or beliefs.
The evidence, as indicated, reveals a planned presenta-
tion of the Company's antiunion views in such a manner as
to constitute unlawful questioning of employees. Although
the overall facts would indicate that Walker was present at
these presentations, there was no direct evidence as to
Walker's presence at such presentations. Thus, there was
no evidence presented to reveal that Walker was ques-
tioned at such meetings or in any manner at such meetings
revealed her inclinations as to the union issues.
The events leading to Walker's discharge occurred on
May 3, 1972. The facts as to such events are based upon a
composite of the credited aspects of the testimony of
witnesses Walker, Jackson, Lindsey, and Rose and the
logical consistency of all the evidence.13
1. Respondent had a patient at its Collierville facility
named Mrs. Cowan. Mrs. Cowan was an elderly patient
who appeared to be essentially confined to being a bed
patient or in a wheelchair. Because of her condition, Mrs.
Cowan wore a catheter (a.urine aid). The catheter, tubing,
and catheter bag necessitated care in the movement of the
patient in order to avoid discomfort to the patient,
especially if the catheter bag were full of fluid.
Mrs. Cowan was able to move from her bed to her
13 Testimony of any witness inconsistent with the facts found is
discredited.
14 The real issue in this case is Respondent's motivation: Whether
Walker slapped Mrs. Cowan or not is not an essential issue . The essential
issue is whether Respondent believe she slapped Mrs. Cowan and because
of such belief discharged her for nondiscriminatory reasons. Whether
Walker slapped Mrs. Cowan after Jackson had left would not change the
ultimate findings herein . Only Walker and Jackson testified as to what
occurred at the time in Mrs. Cowan's room. It is clear that the incident of
the slapping or believed slapping is not fabricated. It is clear from Rose's
and Lindsey's credited testimony that there was evidence of marks on Mrs.
Cowan's face indicative that she had been slapped. It is also clear that
virtually as a part of the incident, immediately following the event, Mrs.
Cowan told both Lindsey and Rose that she had been slapped and
described in effect that Walker was the one who slapped her. Walker's
testimony indicates that there was a discussion between Cowan and Jackson
and her as to what was wrong. Considering all of this, I find the facts as
indicated based upon a composite of the credited aspects of the testimony
of the witnesses and a logical consistency of the evidence . I discredit
Walker 's and Jackson 's testimony inconsistent with the facts found.
15 Jackson testified essentially as indicated in the facts above. Since
wheelchair and vice versa with supporting help from two
aides. On May, 3, 1972, after Mrs. Cowan's luncheon
period, nurses aides Walker and Jackson helped Mrs'.
Cowan to return to her room and from her wheelchair to
her bed.
2. While the nurses aides were helping Mrs. Cowan into
bed, Mrs. Cowan was complaining about the way she was
being handled and was crying. Mrs. Cowan asked the aides
not to be so rough. Nurses aide Walker slapped Mrs.
Cowan and told her to shut up. Nurses aide Jackson left
the room to go to another patient. Nurses aide Walker
remained in the room to put the bed rails up and then
followed nurses aide Jackson out.14
3. Apparently almost immediately following the above
incident, LPN Lindsey heard Mrs. Cowan crying and went
to Mrs. Cowan's room to ascertain what was wrong. Mrs.
Cowan was crying and her face was red and reflected what
appeared to be the imprint of fingers thereon. Mrs. Cowan
told Lindsey that one of the aides had slapped her. Lindsey
asked Mrs. Cowan which aide had slapped her. Cowan told
Lindsey that "the little one" had slapped her. It is noted
that both Walker and Jackson are Blacks , that Walker is a
light-skinned person, and that Jackson is a dark-skinned
person. Walker is 5 foot 5 inches in height and weighs in
excess of 150 pounds.
4. LPN Lindsey immediately went out into the hall,
located Jackson, asked who had put Mrs. Cowan in her
bed. Jackson told Lindsey that she and Walker had put
Mrs. Cowan in her bed. Lindsey asked Jackson in effect to
tell her who had hit Mrs. Cowan. Jackson told Lindsey that
no-one had hit Mrs. Cowan. Jackson called Walker over
and Lindsey asked Walker in effect to tell her who had hit
Mrs. Cowan. Walker told Lindsey that no one had hit Mrs.
Cowan.15
5. Lindsey took Walker and Jackson into Mrs. Cowan's
room. Lindsey asked Mrs. Cowan to tell her which of the
nurses aides had slapped her. Mrs. Cowan was crying,
talking about the catheter, and about her family. Lindsey
asked Mrs. Cowan again to tell her which of the nurses
aides had hit her. Mrs. Cowan pointed to Walker.16
Lindsey told Mrs. Cowan that she would take care of the
matter. The aides started to say something to Lindsey.
Lindsey told the aides that they would not discuss the
matter in the patient's room. The aides and Lindsey left the
Jackson knew she had left Walker in the room with Mrs. Cowan, I am
persuaded that absent her knowledge that the slapping incident had
occurred in her presence that she would have told Lindsey that no one had
slapped Mrs. Cowan while she was present but that she had left Walker in the
room alone with Mrs. Cowan for a short period oftime.
16 Both Walker and Jackson testified to the effect that Cowan pointed to
Jackson. Lindsey testified to the effect that Cowan pointed to Walker. I
have carefully considered Lindsey's testimony at one point wherein her
testimony reflected she started to say Dorothy (Jackson ) was the one
pointed to by Cowan . I am persuaded that this was an inadvertant mistake
and that it was not a slip of the tongue revealing that Jackson was actually
pointed to by Cowan. All credibility resolutions have been made with a
consideration of the logical consistency of all the evidence. Of all witnesses,
Rose was the more impressive witness and tilted the consideration of the
logical consistency of facts as indicated. I discredit Walker 's and Jackson's
testimony to the effect that Cowan pointed to Jackson. I discredit Walker's
testimony to the effect that Jackson asked her if she (Jackson) had hit Mrs.
Cowan and that she told Jackson that she had not. I credit Lindsey's
testimony to the effect that Cowan pointed to Walker as the aide who had
slapped her.
CARE INN, COLLIERVILLE 1081
patient's room. Lindsey told the aides that she would take
care of the matter.
6. Nursing Supervisor Rose was making her rounds
about the time that Lindsey, Walker, and Jackson left Mrs.
Cowan's room. Apparently almost immediately after
Lindsey, Walker, and Jackson left Cowan's room, Rose
heard Mrs. Cowan crying. Rose went into Cowan's room
to see what the problem was. Rose observed that Mrs.
Cowan's face had red marks on the side and that her eye
was red in the corner. Rose asked Mrs. Cowan in effect to
tell her why she was crying. What Mrs. Cowan replied is
revealed by the following credited excerpts from Rose's
testimony.
A. I asked her why she was crying and she said that
"They handled me so roughly when they put me in the
bed and they were pulling my catheter and tubing so I
complained and asked them not to be so rough," and
said, "The little light-skinned one slapped me and told
me to shut up."
I said, "Well, it was two in here, Mrs. Cowan, which
one did it?" And she said, "The little light-skinned
one."
7. Following the above, Rose went to the nursing
station. Lindsey, in the meantime, had proceeded to the
nursing station to call Rose about the slapping incident. It
is clear that these events all occurred in a short period of
time. What occurred at the nursing station is essentially
revealed by the following credited excerpts from Rose's
testimony.
So I went to the nurse's station and asked Mrs.
Lindsey "Who were the aids in there?" And she said,
"Well, I was just going to call you," she said, "There
was Vera Walker and Dorthory Jackson," and said, "I
carried them in The room and I asked Mrs. Cowan to
point out the one that slapped her." She said, "She
pointed to Vera Walker."
I am also persuaded that a fair inference can be drawn
that Rose related to Lindsey and Lindsey related to Rose
each of their conversations with Mrs. Cowan.
8. Following the foregoing events, Rose went to
Administrator Coats' office and related the facts that she
had ascertained as to the slapping incident. Coats and
Rose called LPN Lindsey down and Lindsey related what
she knew about the incident and that Cowan had pointed
Walker out as the one who had slapped her.
9. Following the above, Rose went to where Jackson
was having lunch and asked Jackson to come to Rose's
office after lunch. Jackson, after lunch, went to Rose's
office and spoke with Rose and Administrator Coats.
Coats asked Jackson to tell them what had happened in
Mrs. Cowan's room. Jackson told Rose and Coats that she
and Walker had been putting Mrs. Cowan in her bed and
that Mrs. Cowan was crying. Jackson told Rose and Coats
in effect that she had left the room with Walker still being
with Mrs. Cowan, and that Walker later had come to help
her with another patient. Jackson told Rose and Coats that
Lindsey had later asked her and Walker to tell her who had
hit Mrs. Cowan, that she had told Lindsey that no one had
hit Mrs. Cowan, that Lindsey, Walker, and she had gone
into Mrs. Cowan's room, and that Mrs. Cowan had
pointed to Walker as the one who had hit her.17
Rose and Coats discussed with Jackson what Lindsey
had related to them about Mrs. Cowan's pointing to
Walker. Rose and Coats also related the fact that they had
had other complaints about Walker 's mistreating patients.
Rose told Jackson that Mrs. Cowan had told her that "the
little colored girl had jumped on her and beat her and
pulled her water pipe (catheter)." Jackson told Rose and
Coats that Walker had not hit Mrs. Cowan while she was
in the room.18
10. After the foregoing, Jackson returned to work and
spoke to Walker. Jackson related in summary fashion what
Rose and Coats had told her, that Rose and Coats were
saying that Walker had hit Mrs. Cowan, and that Rose and
Coats had told her that Lindsey had said that Cowan had
pointed Walker out as the one who had hit her.
11. After the foregoing, Walker went to LPN Lindsey
and asked Lindsey if she had told Rose that she (Walker)
had hit Mrs. Cowan. Lindsey told Walker that she had told
Rose that Mrs. Cowan had pointed to Walker as the one
who had hit her. Walker told Lindsey that Mrs. Cowan had
not pointed to her.19
12. After the foregoing, Lindsey received a telephone
call from Rose. Lindsey told Walker to get all of her
belongings and go to Coats' office. Walker went to Coats'
office. After a short wait, Rose and Coats came to the
office and had a discussion with Walker. Rose told Walker
that Walker had hit Mrs. Cowan. Walker told Rose that
she had not hit Mrs. Cowan. Rose told Walker that she
(Walker) had hit Mrs. Cowan, that Lindsey had told her
that Mrs. Cowan had pointed Walker out as the one who
had hit Mrs. Cowan. Walker and Rose disputed whether
Mrs. Cowan had pointed Walker out as the one who had
hit Mrs. Cowan. Rose told Walker that Jackson had also
stated that Mrs. Cowan had pointed Walker out. Rose and
Coats told Walker that she could leave for the day, that
they would let her know when to come back if she were to
come back.20
The next day, Walker telephoned Rose. Nursing Supervi-
sor Rose told Walker that she, Coats, and Overstreet had
discussed the )incident and had decided that Walker was
not to come back to work.
13. In addition to the foregoing facts, the facts also
reveal that Walker had had an incident with a patient
named Jackson involving patient Jackson's complaint of
rough handling by Walker.
Considering all of the foregoing, I conclude and find that
the preponderance of the facts reveal that-Respondent did
not discharge Walker, on or about May 3, 1972, for
discriminatory reasons. The evidence reveals strong union
animus on Respondent's part, however, evidence as to a
propensity to engage in illegal conduct is limited essentially
'r I credit Rost's testimony to the effect that Jackson told her and Coats
that Cowan had pointed to Walker as the aide who had hit her.
18 Testimony of any witness inconsistent with the findings herein is
discredited. As in many cases, evidence was presented which was
fragmentary and incomplete in nature. Considering all of the evidence and
the logical consistency thereof and a fair inference therefrom , the facts are
found as indicated.
19 I do not credit Jackson's testimony to the effect that she told Lindsey
at the time that Mrs. Cowan had pointed to her (Jackson).
20 1 discredit Walker's version of the conversation inconsistent with the
facts found.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to that of unlawful interrogation. Walker engaged in union
activities, but the only union activity or related concerted
activity by Walker established to be known by Respondent
is that of her service as a union observer at the April 14,
1972, representation election. It is clear that the incident of
the slapping, or believed slapping, of Mrs. Cowan is not a
pretextuous incident. Considering all of the facts, it is clear
that Respondent had a reasonable basis to believe that
Walker was at fault in this incident. Under such circum-
stances, the facts preponderate for a finding that Respon-
dent's discharge of Walker was for nondiscriminatory ,
reasons.2t
C. The Objections to the Election
(Case 26-RC-4159)
The objection issues concern conduct by Respondent
between February 3, 1972, the date the petition in Case
26-RC-4159 was filed, and April 14, 1972, the date of the
NLRB representation election in such case.
The objection issues involved herein are:
(I) Threatening employees with loss of jobs and
benefits if they should join a union or and vote also-
Care Inn held one mass meeting with all employees
and promised overtime pay, held several small meeting
[sic] after that, up until the election; they were also tole
[sic] the only means of attempting to obtain an
agreement is by stricking [sic] and employees would
lose there [sic] ' jobs and more employees would be
hired. There was a number of mis-leading [sic]
statements tole [sic ] to employees, some of which I'am
[sic] just finding out about.
The evidence relating to this issue essentially concerns
(1) the testimony of witness Garrison and Supervisor Rose
with reference to a threat of discharge and (2) testimony
concerning speech presentation by Bordeaux, Coats, and
Overstreet, and exhibits of prepared material used in such
speeches.
As indicated previously in connection with unfair labor
practice issues, I found Rose's denial that she threatened
Garrison with job reprisal because of her or others' union
activity more credible than Garrison's testimony to the
effect that such a threat was made.
As indicated previously in connection with unfair labor
practice issues, I discredited Moore's testimony that
Respondent officials threatened to refuse to negotiate with
the Union and not give them one red cent. In such regards,
I found in effect the facts to reveal that Respondent had
not threatened to refuse to negotiate with the Union if the
Union were selected as the employees' collective-bargain-
ing representative.
The facts reveal that in late March, the Respondent
made a series of presentations of speeches. One of the
series of speeches made 6 to 10 times to groups of
employees 6 to 8 in number contained much reference to
strikes and to the Employer 's right to replace employees in
such strikes.
The prepared texts for use in such presentations were
clearly and admittedly used by the Employer's officials.
Thus, it is clear that in the context of discussions about
strikes the Employer, by high supervisory officials, in
March 1972, told employees "As I told you in our first
meeting, in a strike you don't get paid you can't draw
unemployment money, and the Company had the absolute
legal right to permanently replace each and every striker."
The prepared presentations are obviously skillfully
designed . A careful reading thereof would reveal references
to economic reasons as the basis of such strikes as referred
to. The above statement is, however , of such a nature that
it would be difficult for employees to distinguish in their
minds between economic and unfair labor practice strikes
rights. Further, under the current law the statement is
incorrect . Such statement is of the type which would
interfere with employees ' exercise of a free decision as to
whether they would select or vote for a union or not.22
Accordingly, I find that Respondent, by such statements,
interfered with employees ' right to a free election.
As indicated later , the Regional Director , in his Report
on Objections dated June 6, 1972, set forth one unnum-
bered objection relating to small group meetings. Such
unnumbered objection, in my opinion, comes within the
purview of Objection 1.
The facts reveal that the Employer presented its
opposition to the Union by use of a presentation of its
views to employees in one meeting with a large number of
Collierville employees , and by two series of meetings in
number to small groups of employees with 6 to 10
employees in number being present. The facts reveal such
meetings to have been designed to present the Employer's
feelings about the Union and designed by use of a question
and answer period to elicit employee feelings about the
Union. Thus, such meetings with inaccurate statements
concerning the absolute right to permanently replace
employees who went on strike, and with such unlawful
questioning of employees about their union feelings or
beliefs, clearly constituted improper interference with
employees ' right to exercise a free choice as to a union
representative or vote.
As to the "small group" meetings, it appears that the
Regional Director's report made an issue of interference
because of the locale of the meetings . Were the issue
simply this, I would not find the "small group" meetings to
constitute improper election conduct by the Employer.23
However, the statements about the absolute right to
permanently replace strikers and the total design of
unlawful questioning of employees involved therein render
such "small group" meetings sponsored by the Employer
to be objectionable conduct. Accordingly, it will be
recommended that Objection 1 be sustained.
21 The issue as to the facts is essentially one of credibility. I found Rose Trailer (N.L.R.B. v. Fleetwood Trailer Co.), 389 U.S. 375 (1967); N.LR.B. v.
to be a most impressive witness and easily the most credible of all witnesses Great Dane Trailers, Inc., 388 U.S. 26(1967),and Laidlaw Corp., 171 NLRB
in this proceeding . This, coupled with the logical consistency of the evidence 1366 (1968 ) cases.
otherwise , contributed essentially to the findings herein . 23 The meetings were held in a supply room and not in a "locale" of
22 See Hicks-Ponder Co., 186 NLRB 712,and a discussion of Fleetwood management authority. See Three Oaks, Inc., 178 NLRB 534.
CARE INN, COLLIERVILLE 1083
2.
(4) Questioning employees about their union activities
or membership in such circumstances as will tend to
restrain or coerce employees-
A number of employees was questioned about their
union activity and whether they attended meetings.
The facts previously set forth in the section dealing with
Respondent's unfair labor practices at Collierville, Tennes-
see, reveal (1) that Administrator Coats engaged in
unlawful interrogation of employee Dean concerning his
union activities circa March or April 1972 and before April
14, 1972, and that Bordeaux and other officials engaged in
the presentation of series of small group meetings in March
and April and before April 14, 1972, with employees,
ending with a question and answer period, and that such
presentations and question and answer periods were
designed to present Employer's feelings about the Union
and to question employees' feelings about the Union.
Considering the foregoing, I conclude and find that the
facts establish that the Employer engaged in the conduct
objected to by Objection 4. Such conduct interfered with
employees' exercise of a free choice as to whether they
wanted to select or vote for a union or not. Accordingly, it
will be recommended that Objection 4 be sustained.
(5) Spying on union gatherings-
A number of employees feels very strongly that there
[sic] spying on the union meeting and reported to the
company.
The evidence relating to this issue was litigated with
respect to the unfair labor practice issues concerning the
Collierville employees. It is sufficient to say that I found no
facts to support a finding that Respondent spied on union
meetings. It is also sufficient to say that I found the
evidence insufficient to establish that Respondent's super-
visors made statements of an admission type or designed to
create the impression of surveillance of employee union
activity.
Accordingly, it will be recommended that Objection 5 be
overruled.
In addition to the foregoing objections, there are
objection issues concerning (1) a defaced sample ballot and
(2) the holding of small group meetings by the Employer.
Such objections are set forth as follows:
(1) The Regional Director in his report on June 6, 1972,
set forth an unnumbered objection to the effect that there
is an issue as to whether the Employer utilized a defaced
sample ballot indicative of official National Labor Rela-
tions Board sanction for a vote no against the Union.
The evidence pertaining to, this issue consists of the
testimony of Hunt, Allen, Moore and Rose, an exhibit
consisting of the NLRB's Notice of Election containing a
sample ballot, and a sample ballot not purporting to be an
official sample ballot.
The "sample ballot," which on its face does not purport
to be an official sample ballot was mailed to employees
during the election campaign.
Hunt testified to the effect that Coats showed him a
sample ballot with the "no" section already marked in red.
Hunt's, Allen's, and Moore's testimony was of such a
nature that it did not establish that the "sample ballot"
shown to them was an official "sample ballot." Rose's
testimony was to the effect that she and Coats showed
employees the "sample ballot" which was a part of the
official notice of election. Rose's testimony was also to the
effect that the "sample ballot" used was not marked or
defaced.
Considering the foregoing, as to Hunt 's testimony, I am
persuaded that the facts preponderate for a finding that a
defaced or marked official sample ballot was not shown
him. I am persuaded that Coats either showed Hunt a
sample ballot not purporting to be an official sample ballot
or that Hunt has confused the unofficial sample ballot with
the official sample ballot.
As to Allen's and Moore's testimony to the effect that a
defaced and marked "sample ballot" with blue writing
thereon was shown them, I find Rose's testimony to the
effect that the "official sample ballot" shown employees
was not marked or defaced to be more credible.24 I credit
Rose's testimony and conclude and find that a defaced and
marked (in the "no" box) official sample ballot was not
shown employees at Collierville. Accordingly, the objec-
tion that a defaced and marked official sample ballot was
used by the Employer in preelection (April 14, 1972)
campaigning is found without merit. It is recommended
that such objection be overruled.
(2) The Regional Director's Report on Objections, dated
June 6, 1972, sets up as an unnumbered objection the
question of whether the Employer's holding of "small
group meetings" with employees is improper election
conduct.
The Employer's conduct in such meetings has been
litigated in the unfair labor practice issue and with respect
to Objections 1 and 4 and has been found to constitute
objectionable conduct therein. This unnumbered objection
is a duplicating of issues already determined . It is therefore
recommended that it be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Upon the basis of the above findings of fact and
upon the entire record in the case, I make the following:
24 As indicated, Rose's testimonial demeanor in this proceeding was
more impressive of the truth than that of any other witness.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Mississippi Extended Care Center, Inc., d/b/a Care
Inn, Collierville, and d/b/a Care Inn, Memphis, the
Respondent, is an employer engaged in commerce within
the meaning of'Section 2(6) and (7) of the Act.
2. Service Employees International Union, Local 150T,
AFL-CIO, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
3. By interfering with, restraining, and coercing its
employees at Memphis and at Collierville, Tennessee, in
the exercise of rights guaranteed in Section 7 of the Act,
Respondent engaged in unfair labor practices proscribed
by Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The facts establish, as alleged in Objections 1 and 4,
that the Employer has interfered with the holding of a free
election on April 14, 1972, in Case 26-RC-4159 (Collier-
ville, Tennessee).
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.
First in Case 26-CA-4341, I issue the following recom-
mended:
ORDER25
A. Respondent, Mississippi Extended Care Center,
Inc., d/b/a Care Inn, Collierville, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their and other
employees' union activities and desires in a manner
constituting interference with, restraint, and coercion of
employees within the meaning of Section 8(a)(1) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at Respondent's facility at Collierville, Tennes-
see, copies of the attached notice marked "Appendix A." 26
Copies of said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
.defaced, or covered by any other material.
IT IS FURTHER ORDERED that the allegations of unlawful
25 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.
26 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
conduct in Case 26-CA-4341 not specifically found to be
violative herein be dismissed.
B. Respondent , Mississippi Extended Care Center,
d/b/a Care Inn, Memphis , its officers , agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees concerning their and other
employees ' union activities and desires in a manner
constituting interference with restraint and coercion of
employees within the meaning of Section 8 (a)(1) of the Act.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of, their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at Respondent 's facility at Memphis , Tennessee,
copies of the attached notice marked "Appendix 'B."27
Copies of said notice , on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent 's representatives , shall be posted by it immedi-
ately upon receipt thereof , and be maintained by Respon-
dent for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(b) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of receipt of this
Decision , what steps the Respondent has taken to comply'
herewith.
IT IS FURTHER ORDERED that the allegations of unlawful
conduct not specifically found to be violative in Case
26-CA-4377 herein be dismissed.
IT IS FURTHER RECOMMENDED in Case 26-RC-4159
(Collierville, Tennessee) ( 1) that Objection 5, the unnum-
bered objection relating to the question of a defaced
sample official ballot , and the unnumbered objection
relating to the Employer's holding small group meetings,
be overruled , and (2) that Objections 1 and 4 be sustained.
It is also further recommended that the NLRB representa-
tion election in Case 26-RC-4159, held'on April 14, 1972,
be set aside.
IT IS FURTHER RECOMMENDED that the Board direct in
Case 26-RC-4159 that a second election by secret ballot be
conducted among the employees in the appropriate unit, at
such time as the Regional Director for Region 26 deems
appropriate and under his direction and supervision and
pursuant to the National Labor Relations Board Rules and
Regulations , Series 8, as amended . It is recommended that
the eligibility of voters shall be in accord with the eligibility
of voters ' requirements set forth in J. P. Stevens & Co., Inc.,
167 NLRB 266.28
IT IS FURTHER RECOMMENDED that the Employer shall be
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
27 See fn . 26, supra.
28 The appropriate bargaining unit in Case 26-RC-4159 is "All full-time
and regular part-time nonprofessional employees , including nurses aides,
clerk-aides , housekeeping employees . dietary employees and kitchen head,
excluding the administrative assistant . guards and supervisors ( including
licensed practical nurses) within the meaning of the Act."
CARE INN, COLLIERVILLE 1085
required to file an election eligibility list with the Regional
Director in accord with and for the purposes set forth in
Excelsior Underwear Inc., 156 NLRB 1236.
APPENDIX A
.NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concerning their
and other employees ' union activities and desires in a
manner constituting interference with , restraint, and
coercion of employees within , the meaning of Section
8(a)(1) of the Act.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
MISsIssIPPI EXTENDED CARE
CENTER, INC. D/B/A CARE
INN, COLLIERVILLE
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Clifford Davis Federal
Building, Room 746, 167 North Main Street , Memphis,
Tennessee 38103, Telephone 901-534-3161.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concerning their
and other employees' union activities and desires in a
manner constituting interference with restraint, and
coercion of employees within the meaning of Section
8(a)(1) of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
MISSISSIPPI EXTENDED CARE
CENTER, INC. D/B/A CARE
INN, MEMPHIS
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Clifford Davis Federal
Building, Room 746, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-3161.