Edmund Homes, Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1981

255 N.L.R.B. 809 (N.L.R.B. 1981)

EDMUND HOMES. INC. 809
Edmund Homes, Inc. and Hospital and Nursing
Home Employees Union Local No. 113. Case
18-CA-6416
April 9, 1981
DECISION AND ORDER
On September 10, 1980, Administrative Law
Judge James L. Rose issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief supporting the Administrative
Law Judge's decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,l and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Edmund
Homes, Inc., Minneapolis, Minnesota, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order except
that the attached notice is substituted for that of
the Administrative Law Judge.
I Respondent 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 18 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT threaten our employees with
shutting down the facility or otherwise dis-
courage their activity on behalf of the Union.
255 NLRB No. 106
WEI Wl. NOT interrogate our employees
concerning their interest in or activity on
behalf of the Union.
WE WILL NOT promise our employees bene-
fits in order to discourage their support for the
Union.
WE WIL NOT reduce working conditions of
employees in order to retaliate against them
for their support of the Union.
WE WILL NOT discharge or otherwise discr-
minate against our employees because of their
interest in or activity on behalf of the Union.
WE WILL NOT refuse to bargain with Hospi-
tal and Nursing Home Employees Union
Local No. 113 as the duly designated repre-
sentative of a majority of our employees in a
unit appropriate for purposes of collective-bar-
gaining.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them by
Section 7 of the Act.
WE WILL offer immediate reinstatement to
Lynne Kincaid, Kathy Nerison, Carol Deml,
Matthew Leisure, Luke Quinn, Sharon Peter-
son, and Pamela Baltes to their former jobs or,
if those jobs no longer exist, to substantially
equivalent postions of employment, without
prejudice to their seniority or other rights and
benefits previously enjoyed, and WE WILL
make them whole for any losses they may
have suffered as a result of the discrmination
against them, with interest.
WE WILL recognize and bargain with Hospi-
tal and Nursing Home Employees Union
Local No. 113 as the duly designated collec-
tive-bargaining representative of our employ-
ees in a union appropriate for purposes of col-
lective bargaining within the meaning of Sec-
tion 9(b) of the Act and WE WILL embody any
agreement we reach with said labor organiza-
tion in a signed contract.
EDMUND HOMES, INC.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This
matter was heard before me on March 31, and April 1
and 2, 1980, at Minneapolis, Minnesota. The complaint
principally alleges that on various dates between Septem-
ber 29 and October 7, 1979,
1 the Respondent discharged
seven of its employees in violation of Section 8(a)(3) of
the National Labor Relations Act, as amended, 29 U.S.C.
' All dlates are ill 1979, uless othersise indicated
EDMUND HOMES. INC.
810 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
§151, et seq. The complaint also alleges that during the
same period the Respondent engaged in various acts vio-
lative of Section 8(a)(l) of the Act; and finally, it is al-
leged that the Charging Party had been selected by a
majority of the Respondent's employees as their collec-
tive-bargaining representative and the Respondent's re-
fusal to bargain with the Charging Party was violative of
Section 8(a)(5).
While admitting the discharges on the dates alleged,
the Respondent contends that all were for cause; that it
did not engage in any of the alleged violations of Section
8(a)(1); and that it did not, and has not, refused to bar-
gain with the Charging Party as the duly designated rep-
resentative of its employees in an appropriate unit.
Upon the record as a whole, including my observation
of the witnesses, briefs and arguments of counsel, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
At all times material, Edmund Homes, Inc. (herein the
Respondent), has been a Minnesota corporations operat-
ing a facility for rehabilitative care, housing and board-
ing of moderately to mildly retarded and emotionally
disturbed adults. During the Respondent's fiscal year it
derives gross revenue in excess of $200,000 and receives
in excess of $5,000 from various Federal government
welfare and assistance programs. The Respondent
admits, and I find, that it is, and at all times material has
been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, Hospital and Nursing Home Em-
ployees Union Local No. 113 (herein called the Union),
is admitted to be, and I find is, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The president and chief operating officer of the Re-
spondent is Lada Edmund, Sr. Her second-in-command,
and also admittedly an agent of the Respondent, is Elea-
nor Bradway, the program director. It is alleged and ad-
mitted that Kitty Knapp, the Respondent's vice presi-
dent, and Michael Lazarow (Edmund's son), the Re-
spondent's treasurer, are agents within the meaning of
Section 2(13) of the Act, although the parties agree that
Knapp and Lazarow do perform bargaining unit work
and should be included in the bargaining unit described
infra.
As indicated, the Respondent operates a boarding only
facility as well as two homes for which board and lodg-
2 Shortly following the events litigated here, the Respondent split into
two corporations, one operating the board and lodging facility (Edmund
Board & Lodging, Inc.) and the other the resident homes. This was ap-
parently done for bookkeeping purposes and has no affect on the substan-
tive allegations of the complaint, the defenses, or the remedy. The named
Respondent and Edmund Board & Lodging admittedly constitute a single
employer.
ing are provided. While employees of both are included
in the bargaining unit agreed to by the parties, the princi-
pal events in this matter involve employees who work
with the live-in clients.
The homes are staffed on a 24-hour-a-day basis by in-
dividuals designated as assistant unit coordinators.
Monday through Friday, these assistant unit coordinators
work 8-hour shifts (7 a.m. to 3 p.m. 3 p.m. to 11 p.m.; 11
p.m. to 7 a.m.). There are also assistant unit coordinators
for weekends, but they apparently work more than 8-
hour shifts. In any event, the assistant unit coordinators
are in charge of the residences during the time of their
shifts and are responsible for keeping the homes clean,
instructing the clients in keeping their various rooms or-
derly, helping them with their dress and other matters,
cooking for them and dispensing such medicines as are
required.
In addition to the assistant unit coordinators, who are
directed by a unit coordinator, the Respondent also em-
ploys counselors, an activities coordinator, a nurse, two
caretakers, a maintenance man, and a cook.
In early September, Lynne Kincaid, one of the assist-
ant unit coordinators, began discussing the possibility of
forming a union with fellow employees and she contact-
ed Lorne Johnson, an agent for the Union. On Sunday,
September 25, Johnson, Kincaid, and Unit Coordinator
John Makepeace met at a local restaurant. Then on Sep-
tember 27, several of the Respondent's employees met at
Kincaid's apartment, at which time authorization cards
were passed out. Between September 26 and 28, 11 em-
ployees in the agreed-to bargaining unit of 16 signed au-
thorization cards. On September 28, Johnson wrote
Edmund, demanding recognition. The demand was sent
by certified mail and was delivered on September 29; but
the Respondent, through Eleanor Bradway, decided not
to accept the letter and returned it to the sender unopen-
ed.
On September 29 Kincaid and Kathy Nerison were
discharged. The Respondent discharged Carol Deml on
September 30, Matthew Leisure, Luke Quinn, and
Sharon Peterson on October 4, and Pamela Baltes on
October 7.3
The General Counsel contends that the discharge of
these seven employees, all of whom had signed authori-
zation cards, was motivated by their support of the
Union, and was violative of Section 8(a)(3) of the Act. In
addition, as will be discussed more fully, the Respondent
is alleged to have engaged in certain acts violative of
Section 8(a)(l), including interrogation, threats, promises
of benefits, and the like during the period of September
27 through early October.
The Respondent contends that the employees were
discharged because of incompetency, as Edmund testi-
fied:
3 The Respondent contends, through the testimony of Edmund, that
Baltes resigned because the Respondent could not give her as many
hours as she wanted. However, the complaint alleged, and the Respond-
ent admitted in its answer, that Bales in fact was discharged on October
7. Based upon the Respondent's admission, on which the General Coun-
sel could rely. I find that Baltes was in fact discharged. Further, Ed-
mund's testimony concerning this was conclusionary. and generally not
credible.
ED)MUND HOMES. INC. 8tl
Q. OK. This group of people that was terminated
around the end of September. the beginning of Oc-
tober, why were they terminated?
A. For being very, very inefficient.
Q. Inefficient in what way?
A. In so many ways.
Edmund, as well as other of the Respondent witnesses,
described in some detail the alleged areas of inefficiency
of the employees who were discharged.
B. Analysis and Concluding Findings
1. The discharges
It is fundamental that an employer may discharge an
employee for any reason, good or bad, or for no reason
at all other than were motivated by that employee's
union or other activity protected by the Act. Thus, the
gravamen of an alleged violation of Section 8(a)(3) is the
Respondent's motive, where, as here, the fact of the dis-
charges is admitted.
Although some discussion concerning the reasons ad-
vanced by the Respondent is appropriate, infra, I con-
clude that but for the fact they had engaged in activity
on behalf of the Union, this group would not have been
discharged, regardless of their employment performance.
The Respondent's motivation is amply demonstrated by
the credible, and undenied, testimony of two individuals
who were not members of the bargaining unit, and who
are no longer employees of the Respondent. 4
Martha Czech and Charlene Boyle were caretakers.
They did a variety of jobs primarily involving light
maintenance. The parties stipulated that Czech and
Boyle were maintenance employees and thus excluded
from the bargaining unit.
Czech testified that sometime prior to the discharge of
Lynne Kincaid, she and Boyle were called to Edmund's
residence. She testified:
She (Edmund) wanted to know if we knew any-
thing about the union, about who had signed up
with the union and if we were ever approached and
I said, "No," which we weren't. She had a list in
front of her and she had names checked off and she
said, "Well, I'm going to have to'get rid of these
people fast, because they're trying to get a union in
here."
Q. Did she ask you anything more?
A. She wanted to know if I knew all that had
signed up for it and I said "No." Then she came out
and asked me if the cook, I knew the original chef,
had been approached (sic) and I said, "I do not
know." She said, "Would you please find out for
In argument, the Respondent contends that these individuals should
not be credited because they are "disgruntled" ex-employees who had
some kind of mental problem There is no showing on the record, how-
ever. why these individuals should not he credited. To the contrary, I
found their demeanor to be quite positive and their recollection consist-
ent with the time elapsed between the events to which they were testify-
ing and the hearing. Beyond that, as noted above, their testimonlly 'was
not denied from which I can and do infer that the substance of their testi-
mony was accurate.
me." I said, "Yes, I will." I asked him and he told
me no. I went back and told her what he said.
Q. Did she say anything else about that list of
names, that you recall? Other than what you testi-
fied to?
A. Yes, well first she said Lynne was the main
name she needed to know, Lynne Kincaid had start-
ed it.
Q. Did she talk about any other names that you
recall?
A. Matt (Leisure) and Kathy (Nerison) and Luke
(Quinn). Those I remember.
Boyle similarly testified to the meeting she and Czech
had with Edmund. Boyle testified:5
A. Well, she asked if I was confronted by the
union. And I told her I was not. And she said she
had a list of 13 people and she could only account
for II people. So she called Martha and I over and
wanted to know if we were the other two. And I
had no knowledge of the Union.
Q. OK, what, if anything, did she say then?
A. She turned around and she told Martha and I
that she was going to have to fire some, because
they had signed for the union to join the union.
Boyle went on to testify that the names Edmund men-
tioned that she could remember were Luke Quinn and
Lynne Kincaid. Finally, Boyle testified that during the
period just after the discharges she was told by Edmund
to go through the logbooks that are kept at the homes:
"Lada Edmund asked me to go through them. She
wanted me to find certain items in the log book to go
against the ones she had fired."
Boyle testified that she did go through the logbooks
and took the information to Edmund who then had Kitty
Knapp type it.
Whatever complaints the Respondent may have had
concerning each individual's work performance, it is
clear from the credible, mutually corroborated, and un-
denied testimony of Czech and Boyle that the reasons
these individuals were singled out for discharge was be-
cause of their known or suspected union activity. Thus,
in discharging them, the Respondent clearly violated
Section 8(a)(3) of the Act.
Beyond this, the Respondent's main protestations re-
garding the various discharged employees and Edmund's
claim that none were discharged because of their union
activity simply did not ring true.
There is nothing in the Act which requires the Re-
spondent to be rational or consistent. However, experi-
ence suggests that employers do in fact conduct their af-
fairs generally in an orderly fashion. Thus, where acts
and statements of purpose are inconsistent or where a
' The Respondent argues that Boyle ought to be discredited because
she placed the time of the conversation at "several weeks" before Kin-
caid's discharge. Clearly the conlverstioln happened closer to Kincaid's
discharge than "several sweeks"; however. given my observation of
Boyle, I do not believe that this is a sufficient basis to discredil her other-
wise credible testimony concerning the substance of the conversation. I
conclude that her testimony in this respect was her best effort to place in
time an event which occurred some months prior to her testimony.
EDMUND HOMES. INC it
. , _ . . _
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge, for instance, is unreasonable given all the cir-
cumstances, then such is evidence that the proffered
motive is untrue, "[m]ore than that, he (the trier of fact)
can infer that the motive is one that the employer desires
to conceal-an unlawful motive-at least where, as in
this case, the surrounding facts tend to reinforce that in-
ference." Shattuck Denn Mining Corporation (Iron King
Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966).
The testimony of the Respondent's witnesses, particu-
larly that of Edmund and Bradway, not only lead me to
disbelieve their conclusionary statements that none of the
individuals was discharged for union activity, but gener-
ally to discredit them. For instance, Edmund testified:
They [the individuals discharged] were hired ba-
sically all at the same time. It was a new thing.
Before that we only had two people, a day person
and a night person which worked beautifully. And
you can take your time on hiring one or two people
and know what you have. But when you have to
have a new staff in a hurry you take the best you
can and trust to God whoever.
In short, Edmund testified and the Respondent argued
that, because of a change of operation in late 1978, the
Respondent was required to hire a large number of new
staff in a short time and thus could not be selective;
hence, those hired turned out to be incompetent, which
necessitated their discharge in 1979.
In fact, however, the Respondent hired only four em-
ployees in late 1978 two of whom were among those dis-
charged (Nerison and Quinn). The others were hired
sporadically throughout 1979. Deml was hired in
August. In short, Edmund's testimony concerning the
hiring of the staff that she ultimately discharged is not
even close to the reality demonstrated by her records.
Though testifying that the employees discharged were
incompetent from the inception of their employment,
Edmund, nevertheless, gave bonuses during early 1979.
Thus Luke Quinn, who was singled out for discharge not
only because of his gross incompetency but because he
often reported to work late, received a $1,000 bonus,
even though at that time he was considered to be a mar-
ginal employee. Marginal employees are simply not
given bonuses of such a large amount. But, Edmund tes-
tified, in effect, that she gave bonuses in inverse propor-
tion to the competency of the employee. Thus, according
to her, she gave the bonuses in order "to encourage
better work from these particular people. Somebody got
less than others, it's because they didn't need as much
encouragement." Without more, I simply cannot accept
this unusual assertion that larger bonuses were given in
accordance with the employees' incompetency. The
bonus to Quinn is just simply inconsistent with Edmund's
claim that he had always been a poor employee.
Similarly, in early September Kincaid asked for a raise
in pay and was given 25 cents an hour, even though
Edmund contends she had already determined to dis-
charge Kincaid for incompetence and inefficiency.
Edmund testified that she hoped the raise would induce
Kincaid to change her ways. Again, to grant a pay raise
to an employee whose discharge has been determined is
totally inconsistent with the way employers normally
conduct their affairs, so much so that I must infer that
Edmund had not in fact decided to discharge Kincaid at
that time.
Then there is the matter of the class B drivers' license.
It is contended that a number of the discharged employ-
ees were required to have a class B drivers' license so
that they could drive the Respondent's 10-passenger van,
and their failure to procure such a license was one of the
reasons why they were discharged. Thus, Bradway testi-
fied that from the beginning of Quinn's employment in
September 1978 she asked him "every month" to get a
class B license but he did not do so.
However, in testifying, and on behalf of the Respond-
ent, Michael Lazarow said that the van which requires
the operator to have a class B license was purchased in
the spring of 1979. Further, he testified that he had
driven that van for several months before he obtained his
class B license, which he did following the events in this
matter. I therefore must conclude that the alleged failure
of any of these individuals to have a class B license
could not have been a real reason for their discharge,
and that the testimony of Edmund and Bradway on this
subject was an attempt to mislead on a material issue.
The timing of the decision to effect the discharges, as
alleged by the Respondent, was also inconsistent. For in-
stance, Edmund and Bradway place the determination to
discharge the individuals in question at sometime in late
summer and certainly no later than early September,
prior to any union activity. Thus, Edmund testified that
she reached the decision to discharge Quinn in August.
She did not in fact discharge him until October 4, some
2-months later, because "I was waiting for a miracle."
There was a meeting of employees on September 27,
at which Edmund told them there were going to be
some staff changes. Bradway testified that the decision to
discharge certain employees was made in early Septem-
ber but they did not want to fire anybody until after they
had had a staff meeting; and, the earliest date on which
the entire staff could be present was September 27. Brad-
way testified that had they been able to get the staff to-
gether earlier (inferentially on September 1) the dis-
charges would have been effected then. It is noted that,
of the 16 employees in the bargaining unit, only 10 were
present at the September 27 meeting. In short Bradway's
claimed reason for delaying the staff meeting is simply
not consistent with the record of that meeting kept by
the Respondent.
Finally, whatever inadequacies these individuals may
have demonstrated, Nerison and Quinn had been em-
ployed for a year and others for several months. This
shows that the Respondent has a practice of tolerating
individuals who occasionally come into work late, and
who from time to time have to be corrected with regard
to their cleaning and other duties. Indeed, Bradway testi-
fied that never before had there been a discharge of so
many individuals in such a short period. In fact, Brad-
way testified that there had never been a discharge of
more than one individual at a time. Or as Edmund testi-
fied, "I've had staff in my Board and Lodging that I've
EDMUND HOMES, INC. 813
helped for five years before they were good. And now
they're very good."
In short, the Respondent's policy until the end of Sep-
tember was not to discharge staff members because they
did not perform their duties as adequately as Edmund
would have liked; but rather to encourage and work
with them. From this I can and do infer that changing
the policy and discharging several individuals within a 2-
week period was caused by reasons other than their al-
leged poor performance. I conclude that the reason was
the organizational campaign.
No doubt the Respondent had a concern that the as-
sistant unit coordinators kept their respective homes
clean and performed their duties. Certainly it is reason-
able that Edmund would inspect the homes from time to
time and when discrepancies were found to bring them
to the attention of the responsible employee. Thus, it is
not unreasonable Edmund would have an inspection in
August and another on September I and would tell the
employees of the results. Nevertheless, I conclude that
the discrepancies found during those inspections were
not a reason for the employees' discharges. The Re-
spondent's past practice generally, and with these em-
ployees in particular, demonstrates that there was no
intent on Edmund's part to discharge any of them.
The contentions with regard to Kincaid, Nerison, Lei-
sure, Quinn, and Peterson, namely, sloppiness in house
work, not being good with patients, not having a class B
drivers' license and so on, while general was to a greater
or lesser extent factually supported. Nevertheless, I con-
clude that such was not the true reason for the dis-
charges. In concluding the Respondent acted with an an-
tiunion motive, I have also considered the timing with
the employees' union activities; that only card signers
were discharged; the credible and mutually corrobora-
tive and unrebutted testimony of Boyle and Czech; and
the Respondent's past history of tolerating a certain
degree of what might be termed "inefficiency" among
employees. Whatever objections Edmund may have had
concerning any of the discharged employees, none was
the motivating cause for that employee's discharge.
Rather, from the totality of the record, it is clear that the
motivating cause for the discharges was the employees'
union activity. Although protesting that she is "a union
person" and has no objection to bargaining with the
Union, Edmund's assertion in this regard is belied by the
substantial union animus demonstrated by the 8(a)(1)
conduct by her and other management personnel.
It should also be noted that in what appears to be an
effort to disguise the Respondent's knowledge of union
activity among the employees, Bradway refused to sign
for and accept on behalf of the Respondent the regis-
tered letter sent by the Union, and delivered on Septem-
ber 29. Bradway incredibly testified that although second
to Edmund as an operating officer of the Company, she
did not have the authority to sign for certified mail. This
testimony was in juxtaposition to her further testimony
that Matthew Leisure, an assistant unit coordinator, did
have the authority to sign for and receive a health in-
spection report. Although initially testifying that she did
not have the authority, subsequently, Bradway testified
that she did not accept the latter after consultation with
Edmund or Kitty Knapp on grounds that the sender was
the Union, and that union had "nothing to do" with
Edmund Homes.
Carol Deml was a full-time schoolteacher: hired in
August to work the II p.m. to 7 a.m. shift. The Repon-
dent contends that Deml was discharged primarily be-
cause she slept on the job. Deml, on the other hand, cre-
dibly testified that she was furnished a bedroom (unden-
ied) and was allowed to sleep. Her job was to clean the
house, which she was able to do in a short period after
reporting to work, and then arise in time to cook break-
fast for the house residents. Based on her demeanor as
well as the probability of truthfulness of her substantive
testimony, I conclude that, in fact, Deml was allowed to
sleep during some portion of the night she was working.
I specifically discredit the testimony of Edmund and
Bradway to the contrary. Undenied is the testimony of
Terrance Paulson, who also worked on the night shift;
and was told in February by Edmund that her policy al-
lowed those working this shift to sleep as long as he did
not neglect his duties. Thus I conclude that the reason
given for discharging Deml was a fabrication: that she
was in fact discharged because of her union activity.
Finally, for the reasons outlined above, I also conclude
that Baltes' discharge was violative of Section 8(a)(3).
With regard to Baltes, there was no specific assertion
that she was inefficient, the Respondent contending
simply that she quit, a conclusion I reject, supra.
2. The Respondent's 8(a)(l) conduct
Among other matters discussed below, it is alleged
that the Respondent threatened to reduce an employee's
hours, and did so; increased an employee's wage rate;
threatened an employee with blacklisting, all in order to
discourage employees' union activity. The only evidence
offered to support these allegations of 8(a)(1) conduct
(and additional allegations of threatening facility closure)
was the investigatory affidavit of Pamela Baltes who at
the time of the hearing was out of the country and un-
available as a witness. The Respondent's objection to re-
ceiving the affidavit on grounds that it is hearsay was
sustained, reconsideration of which the General Counsel
now urges. I reaffirm my rejection of the affidavit, and
dismissal of these paragraphs of the complaint, 6(b), (c),
(n), (o), and (p), because the affidavit is the only proof to
support them.
If the relevance of an out-of-court statement depends
on the credibility of the declarant, the statement is hear-
say. Here in order for the statements in the affidavit to
prove the substantive allegations of the complaint, Baltes
must be credited. Thus, the statements are hearsay. Hear-
say is generally not admissible as evidence because the
credibility of the declarant cannot be tested, a right
which is fundamental to our jurisprudence and is the es-
sence of fair play in a trial.
Nevertheless, the hearsay rule is not per se applicable.
Georgetown A4ssociates d/h/a Georgetown Holiday Inn, 235
NLRB 485 (1978). Indeed, a proffered fact is not false
simply because it is sought to be proven by hearsay. It
may be true and if not objected to will be received and
given appropriate weight. .4vin J. Bart and Co.. Inc., 236
EDMUND HOMES, INC.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 242 (1978). Where objected to, however, hearsay
is excluded not because the statement is necessarily
untrue, but because the method of proof is deficient-as
opposed to live testimony, the trustworthiness of the de-
clarant cannot be examined.
However, sometimes the hearsay offer is surrounded
by sufficient indicators of trustworthiness to lead one to
conclude that the fact is more probably true than not. In
such siutations, the right to examine the declarant in
open court seems less important than having the fact in
evidence. Thus a number of hearsay exceptions have
been devised, now codified in the Federal Rules of Evi-
dence, Sections 803 (where the declarant is available)
and 804 (where the declarant is unavailable). The essence
of each exception, whether or not the declarant is availa-
ble as a witness, is the inherent probability that the state-
ment is true.
Statements of fact contained in the investigatory affi-
davit of Baltes do not withstand the test of probable
trustworthiness. There is no showing that the affidavit
exhausted Baltes' memory on the subject matters dis-
cussed. There is no showing that the affidavit is com-
plete. Further, the affidavit was taken by a Board agent
who testified that in part, at least, statements in the affi-
davit were his interpretation of what Baltes told him and
not in every instance her statement verbatim. Thus, it is
unknown whether the facts asserted are indeed facts or
are the Board agent's conclusions. The investigatory affi-
davit, I believe, is simply not sufficiently reliable to sup-
port a finding of the unfair labor practices alleged, par-
ticularly where there is no direct corroborative evidence
concerning those matters. Cf. RJR Communications, Inc.,
248 NLRB 920 (1980). Nor is trustworthiness established
simply because similar unfair labor practices were proven
by direct evidence.
It should be noted that Baltes' affidavit need not be
considered in order to find that she was discharged in
violation of Section 8(a)(3) of the Act. In its answer, the
Respondent admitted that Baltes was discharged; and the
surrounding circumstances show that she was discharged
under circumstances substantially identical to those of
the other individuals who signed authorization cards as
did Baltes. Further, as noted above, the testimony of
Edmund is simply not generally credible; and I do in fact
discredit her contention that Baltes quit, rather than
having been discharged.
a. Interrogation
Sharon Peterson testified that on September 29
Edmund requested that she meet with her. When Peter-
son arrived, she heard Kitty Knapp on the telephone
saying that Nerison was to be fired. Following the phone
conversation Knapp left, at which time Edmund said
that she knew of the Union and that she had fired Lynne
Kincaid, "because she was an agitator and trying to
bring a union into the Edmund Home." Edmund further
told Peterson they did not need a union because they
were neither a nursing home nor a hospital and that that
morning she had refused a certified letter. During the
course of this conversation, Edmund asked Peterson "if I
had signed a union card."
Several days later, on October 2, Edmund came to the
resident house in which Peterson was working and after
a short conversation, the essence of which will be de-
scribed infra, she asked Peterson to accompany her
home. During the course of this conversation, Edmund
stated that she was disappointed in Peterson for becom-
ing involved with the Union and kept asking "why, why,
why." This testimony of Peterson is undenied by
Edmund. Further, I found Peterson to be a credible wit-
ness, and I conclude that Edmund, as alleged, did inter-
rogate an employee concerning her union activity.
It is also alleged that on October 2 Michael Lazarow
interrogated an employee. Specifically, Terrance Paulson
testified, credibly I believe, that during a meeting with
Kitty Knapp and Lazarow on October 2, among other
things, Lazarow told him that 13 people had signed
cards and he asked Paulson "if Terry, the cook, had
signed a card, if I knew that Terry, had signed the card.
I said I did not know." Although Lazarow testified gen-
erally to this conversation, stating that the thrust of it
was that he was angry because he had not been informed
of the Union and he considered himself to be a rank-and-
file employee, Lazarow did not deny this statement at-
tributed to him by Paulson.
Although the parties have stipulated that Lazarow
should be included in the bargaining unit because he
sometimes does bargaining unit work, it is also alleged
and admitted that he was an agent of the Respondent.
Thus, his questioning of Paulson was in fact interroga-
tion concerning employees' union activity and was viola-
tive of Section 8(a)(1).
b. Threats
Leisure testified that during the course of a discussion
he had with Edmund on September 27, in which
Edmund said that she intended to discharge Kincaid,
Edmund said, "something to the effect that if this union
were to carry through, she wouldn't be able to afford it
and she would have to close down the facility."
This is alleged to be a threat in violation of Section
8(a)(l), and I find it was. It is alleged in the complaint to
have occurred on October 1, however, the testimony re-
veals that it occurred on September 27, an immaterial
variance. Finally, Edmund did not deny the substance of
this conversation in any event, and I found Leisure to be
a credible witness.
Further undenied is the testimony of Paulson to the
effect that on or about October 2, in a conversation with
Kitty Knapp, she stated that "she was going to be very
frank with me, that they had learned of the union activi-
ties of the staff, that Lada was very disappointed, 6 and
went on to say that the union-if the union became in-
volved that they would quite possibly have to close the
facility down." I find that the statement attributed to
Knapp occurred substantially as testified to by Paulson;
and I conclude that Knapp, as an agent of the Respond-
ent, threatened an employee in violation of Section
8(a)( ) of the Act.
'i Crtilin errors in the Iralscript airt hrchy noled ad corrcred.
EDMUND HOMES, INC. 815
During the October 2 meeting Edmund had with a
group of employees she undeniably stated, according to
the testimony of Peterson, "that she knew there was a
union being formed and that she didn't know why they
were trying to get us to join, but unless they wanted us
to lose our jobs." This is alleged to have been a threat of
loss of jobs if the organizational efforts were successful,
and I find that it was. In this respect I also conclude that
Edmund violated Section 8(a)(l) of the Act.
During Edmund's later conversation with Peterson,
following the general discussion with the group of em-
ployees, according to the undenied testimony of Peter-
son, Edmund said, "that they could not afford to operate
Edmund Homes, Incorporation if the union came into
the facility." This is alleged to be, and I find was, a
threat to close the facility in violation of Section 8(a)(l)
of the Act.
c. Promises
During his conversation with Kitty Knapp on or about
October 2 referred to above, Paulson went on to testify
that:
Kitty Knapp told me that Lada was disappointed
that I had signed the card because I was doing a
good job. She had given me a thousand dollar
bonus in February, and I was the only weekend
staff person that received a thousand dollar bonus,
and that she was thinking of, possibly giving me an-
other bonus, because I'd been doing a good job,
painting, et cetera.
By the above testimony, the General Counsel alleges
that the Respondent through Kitty Knapp promised a
bonus to an employee should he cease his union activity.
The employee was reminded that he had been given a
bonus in the past; that he had been the only one in his
situation to have received a bonus, and that the employer
still liked his work but was "disappointed" that he had
participated in the union activity. The only reasonable
conclusion an employee could come to from such a state-
ment was that another bonus would be forthcoming only
if he rejected the Union. Such is clearly a promise of a
benefit in violation of Section 8(a)(1) of the Act, and I so
find.
Paulson testified that during his meeting with Edmund
on October 2, among other things they discussed the va-
cation policy. Edmund said that after I year employees
would get a week's vacation. Paulson checked the em-
ployment manual and found that such was not the case.
The next day he told Edmund about this and she said
she would check with her consultant the next week and
try to get the matter of a vacation policy worked out.
This is alleged to be a promise of benefit to employees
to cease their union activity. Again, the general nature of
the conversation between Edmund and Paulson and the
statements attributed to her are undenied. I therefore
conclude that, as alleged, the Respondent did violate
Section 8(a)(l) of the Act. There is, however, no indica-
tion from Paulson's testimony, as alleged in the com-
plaint, that Edmund actually gave him vacation time.
d. Reduced staff
It is alleged that on October 3 Lazarow told Peterson,
according to Peterson's testimony, that "at no further
time was any board and lodging staff to help me with ac-
tivities." This is alleged to be a reduction of staff availa-
ble to assist in recreation activities and was instituted by
the Respondent to retaliate against employees' union ac-
tivity. By this statement, which is undenied in the
record, it is alleged the Respondent through Lazarow
did interfere with employees' Section 7 rights, and I so
conclude.
e. The employee manual
It is alleged that on October 6 the Respondent intro-
duced a new employee manual, which announced certain
additional benefits to discourage employee support of the
Union. There is no question that the manual was intro-
duced on or about the date indicated. While there had
been a predecessor employee manual, it appears from the
uncontradicted testimony of employees who testified
concerning the manual that it contained some additional
benefits, particularly with regard to vacation policy.
Edmund testified that she contracted with M.R. Serv-
ices, a management consultant firm for the type of facili-
ty the Respondent operates, some months prior to the
events in this matter. One of the services to be per-
formed by M.R. Services was to develop an employee
manual, which Edmund and Bradway testified was re-
ceived in August but, for reasons they were unable to ex-
plain, was not disseminated to employees until immedi-
ately following the advent of the union activity. Finding,
as I must on the state of this record, that this manual in
fact did include certain upgrading of employee benefits,
the timing of its introduction must be found to have in-
terfered with employees' Section 7 rights, even though
these benefits may have been contemplated prior to the
union activity. I accordingly conclude that by introduc-
ing the new employee manual on October 6, the Re-
spondent did violate Section 8(a)(l) as alleged. However,
though I find this to be an unfair labor practice, I will
not recommend that the Respondent rescind the manual
or the benefits contained therein. There is nothing in the
record to indicate that the manual in any other respect is
violative of the Act or in any way diminishes employees
working conditions from those which existed prior to
October 6.
In addition to the 8(a)(1) violations found above, in the
many conversations Edmund, Bradway, Knapp, and La-
zarow had with employees during the period from Sep-
tember 27 through October 5, are other statements
which could be found threatening, interrogation, and
promises of benefits in violation of Section 8(a)(l) of the
Act. None of these, however, was specifically alleged in
the complaint and although litigated, at least to some
extent, I find it is not necessary to make specific findings
with regard to any. To do so would add nothing to
remedy in this matter.
EDMUND HOMES. INC.
_ _ _ _ . _
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to bargain
It is alleged and admitted that a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act is:
All full and regular part-time employees em-
ployed as unit coordinator, assistant unit coordina-
tors, activities director and counselors by Respond-
ent and Edmund Board & Lodging, Inc., excluding
office clerical employees, professional and manage-
ment employees, and maintenance employees,
guards and supervisors as defined in the Act.
In addition the parties stipulated to certain specific in-
clusions and exclusions from the unit. Thus on Septem-
ber 27, the Respondent had 23 employees (including
Edmund and Bradway), of whom 16 would be included
in the bargaining unit. By September 28, the day the
Union demanded recognition by sending the certified
letter to Respondent, 11 of those employees had signed
authorization cards designating the Union as their collec-
tive-bargaining representative.
The Union had been designated by a majority of the
employees in the bargaining unit and made an appropri-
ate demand for recognition, even though that demand
was not "accepted" by the Respondent. In this respect, it
should be noted that after much testimony with regard
to Bradway's refusing to sign for the demand letter, she
finally testified:
I had called and I am not sure whether it was
Kitty or Lada, saying that this letter was laying on
the desk and where it was from and at that time,
none of us thought that we had anything to do with
the nursing home or hospital thing, so I just wrote
on there "Return to Sender," or whatever. "Not
Opened."
Clearly the Respondent's agents refused to accept a
letter because they knew it contained some kind of a
demand. And indeed, the testimony of Johnson, undenied
by Bradway, is that a few days later he talked to her on
the telephone stating to her that the Union had demand-
ed recognition and that the Union represented the major-
ity of the employees.
There is no question on the record before me that be-
ginning about the time the Respondent learned of the
union activity, which was very early in the organization-
al campaign, it undertook a course of conduct necessarily
designed to undermine the employees' efforts to organize
on behalf of the Union. There were threats, interroga-
tion, promises of benefits, and beginning on September
27, the discharge of 7 of the 11 card signers.
In such circumstances, it is clear that a fair election
would be improbable and in any event, a bargaining
order would be appropriate to remedy the Respondent's
unfair labor practices. N.L.R.B. v. Gissel Packing Co.,
Inc.. et al., 395, U.S: 575 (1969). I shall so recommend.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices found above, occurring in
connection with Respondent's operations, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among several States and tend to lead to labor
disputes burdening and obstructing commerce within the
meaning of Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. I
shall recommend that the Respondent be ordered to bar-
gain with the Union as the designated representative of a
majority of the Respondent's employees in an appropri-
ate bargaining unit, and I shall recommend that the Re-
spondent be ordered to offer to reinstate Lynne Kincaid,
Kathy Nerison, Carol Deml, Matthew Leisure, Luke
Quinn, Sharon Peterson, and Pamela Baltes to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions of employment, without preju-
dice to their seniority or other rights and benefits, and
make them whole for any losses they may have suffered
as a result of a discrimination against them in accordance
with the formula as set forth in F W. Woolworth Compa-
ny, 90 NLRB 289 (1950), with interest as provided for in
Florida Steel Corporation, 231 NLRB 651 (1977).'
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this matter, and pursuant to
the provisions of Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER8
The Respondent, Edmund Homes, Inc., Minneapolis,
Minnesota, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with closing down the fa-
cility, loss of jobs, or other loss of benefits in order to
discourage their support for or activity on behalf of the
Union.
(b) Interrogating employees concerning their support
of or activity on behalf of the Union.
(c) Promising employees benefits to discourage their
interest in or activity on behalf of the Union.
(d) Reducing working conditions of employees in
order to retaliate against them for their activity on behalf
of the Union.
(e) Refusing to recognize and bargain with the Union
as the duly designated representative of a majority of the
employees and a unit appropriate for purposes of collec-
tive bargaining.
I See. generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
8 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 find-
ings, 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.
EDMUND HOMES, INC. 817
(0 Discharging or otherwise discriminating against em-
ployees because of their interest in or activity on behalf
of the Union.
(g)In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Recognize and, upon request, bargain with the
Union as the duly designated representative of a majority
of the employees in the unit described above found ap-
propriate for purposes of collective-bargaining within the
meaning of Section 9(b) of the Act, and embody any
agreement reached in a written, signed contract.
(b) Offer immediate and full reinstatement to Lynne
Kincaid, Kathy Nerison, Carol Deml, Matthew Leisure,
Luke Quinn, Sharon Peterson, and Pamela Baltes to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions of employment and, make
them whole for any losses they may have suffered as a
result of the discrimination against them in accordance
with the formula set forth in the Remedy section above.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its premises in Minneapolis, Minnesota,
copies of the attached notice marked "Appendix.""
Copies of the notice, on forms provided by the Regional
Director for Region 18, after being duly signed by the
Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
(f) The allegations in the complaint not specifically
found herein, particularly including paragraphs 6(b), (c),
(n), (o), and (p), are dismissed.
9 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
EDMUND HOMES, NC.