Fountain-View Place

National Labor Relations Board - Board Decisions

Aug 8, 1986

281 N.L.R.B. 26 (N.L.R.B. 1986)

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beverly Enterprises-Indiana, Inc. d/b/a Fountain-
view Place and United Food and Commercial
Workers Union Local 917, a/w United Food
and Commercial Workers International Union,
AFL-CIO, CLC. Cases 25-CA-17436, 25-CA-
17457, and 25-RC-8208
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
8 August 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 3 April 1986 Administrative Law Judge Phil
W. Saunders issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in response to
the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Beverly En-
terprises-Indiana, Inc. d/b/a Fountainview Place,
Indianapolis, Indiana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order, except that the attached notice is substi-
tuted for that of the administrative law judge.
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discriminatorily transfer employ-
ees to the laundry room because of their union ac-
tivities.
WE WILL NOT threaten employees to start bar-
gaining from scratch and/or from fresh in event
they select the Union as their bargaining represent-
ative.
WE WILL NOT threaten employees with dis-
charge if they continue to support the Union.
WE WILL NOT discriminatorily set up and then
transfer employees to the night shift in the laundry
room because of their union activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
BEVERLY ENTERPRISES-INDIANA,
INC. D/B/A FOUNTAINVIEW PLACE
Steve Robles, Esq., for the General Counsel.
Peyton Hairston, Esq., and Byron Myers, Esq., for the Re-
spondent.
Jairus Gilden, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Chairman Dotson agrees with the judge that the evidence establishes
that the Respondent was aware of Vasquez' union sympathies and activi-
ties prior to her transfer to the laundry However, Chairman Dotson does
not adopt the judge's alternative finding relying on the small -plant doc-
trine Member Babson finds it unnecessary to pass on the judge 's reliance
on the small-plant doctrine in the circumstances of this case
2 In its brief the General Counsel requests that the Board modify the
judge's recommended Order to include a visitatonal clause authorizing
the Board, for compliance purposes, to obtain discovery from the Re-
spondent under the Federal Rules of Civil Procedure under the supervi-
sion of the United States court of appeals enforcing the Order We have
concluded that under the circumstances of this case such a clause is not
warranted
PHIL W. SAUNDERS, Administrative Law Judge. Based
on charges filed by United Food & Commercial Workers
Union Local 917, a/w United Food & Commercial
Workers International Union, AFL-CIO, CLC (the
Union or Local 917),' a consolidated complaint was
issued on September 20, 1985 , against Beverly Enter-
prises-Indiana, Inc. d/b/a Fountainview Place (the Re-
spondent or Beverly), alleging violations of Section
8(a)(1) and (3) of the Act. The Respondent filed an
answer to the consolidated complaint denying it had en-
gaged in the alleged matter. Both the General Counsel
and the Respondent filed briefs in this matter.
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
' The original charge in Case 25-CA-17436 was filed by the Union on
August 26, 1985, and the original charge in Case 25-CA-17547 was filed
by the Union on September 4, 1985
281 NLRB No. 8
FOUNTAINVIEW PLACE - 27
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Respondent is a corporation duly organized and
existing under the laws of the State of California, and at
all times material has maintained its principal office and
place of business at Pasadena , California, and a place of
business at Indianapolis , Indiana, the facility here in-
volved, at which it is engaged in the operation of a con-
valescent hospital that provides skilled and intermediate
nursing care.
During the 12-month period ending August 1, 1985, a
representative period, the Respondent received gross
revenues in excess of $100,000 and received in excess of
$5000 in medicare or medicaid payments at the facility.
The Respondent is now , and has been at all times ma-
terial , an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now , and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
It is alleged that on July 4, 1985 ,2 the Respondent
transferred Janet Vasquez to the laundry room at the fa-
cility here in question ; that on August 7 the Respondent
threatened employees that if they selected the Union,
bargaining with the Union would begin from scratch;
that on August 12 the Respondent interrogated its em-
ployees regarding their union membership , activities, and
sympathies ; that on August 14 the Respondent threat-
ened employees that if they selected the Union they
would no longer be allowed to talk directly to manage-
ment, and that they would lose the privilege of having a
credit union; that on August 27 the Respondent threat-
ened its employees with discharge if they continued to
support the Union; and that on August 27 the Respond-
ent transferred Janet Vasquez to the 11 p.m. shifts
The Respondent 's facility involved in this proceeding
is a 223-bed health care facility and, at the time of the
hearing , it had approximately 180 employees . The staff is
organized into 10 departments-nursing, dietary, house-
.keeping, activities , social service, occupational therapy,
physical therapy , speech therapy, bookkeeping, and ad-
ministration.
Residents of this facility receive one of three levels of
care . Residential care is the lowest level and people in
this level receive only basic maintenance. Residents in
the intermediate level of care receive medication and
other treatments in addition to basic maintenance, and
residents in the skilled level of care receive around-the-
clock intensive medical care as well as basic mainte-
nance . The Respondent points out that in May or June
46 additional skilled care beds were added to the facility.
2 All dates are in 1985 unless specified otherwise
9 I have considered only those briefs filed on or before February 14,
1986, and no others.
The Union was certified as the representative of the
employees at the facility after a Board -conducted elec-
tion in 1978 (the Respondent did not own the facility at
this time), and the only collective-bargaining agreement
between the Union and the prior owners became effec-
tive in 1978 and expired some 4 to 5 years later . Howev-
er, after the Respondent purchased the facility in 1983,
the Union lost its representative status, but later the
Union sought to represent the employees again, and a
representation election was held at the facility on July
11, 1984, but the Union lost this election.
By letter dated June 21 from Al Sanford , business rep-
resentative of the Union , to Fred Taylor, the Respond-
ent's administrator , the Union therein alleged that it rep-
resented a majority of the employees in an appropriate
unit and requested recognition . The Union then filed a
petition on July 2, and a second election was held on
August 16, but which the Union again lost . The Union
then filed its objections to the second election on August
22, and the charges in Cases 25-CA-17436 and 25-CA-
17547 were filed in August and in September , as afores-
tated . The complaint on the unfair labor practice charges
issued on September 20 and the Report on Objections
issued on October 3. The Report on Objections consoli-
dated the objections case with the unfair labor practice
case because the Respondent 's acts claimed as objection-
able are the same as, and coextensive with , the allega-
tions of the complaint . Janet Vasquez was an observer
for the Union in both the 1984 and 1985 elections.
It appears that during the pendency of the August 16
election , the Respondent held a series of meetings with
its employees to discuss the upcoming election. The
meetings were conducted by Michael Plott, human re-
sources representative of Beverly 's eastern division, Ad-
ministrator Fred Taylor, and Beverly Landis, director of
nursing . These meetings were held once every other
week , and there were three "sets " of meetings (a "set" is
a series of meetings that covered the same subject). The
majority of the meetings were . held in the in-service
room of the facility and the final set of meetings was
held in the dining room . The employees were divided by
department and shift when attending the meetings, but
employees were not required to attend any of them.
What was said at the meetings on August 6 or 7, and
on August 14, is in issue here , and will be detailed subse-
quently herein.
Turning first to the allegation that on July 4 Vasquez
was transferred to the laundry room.
Janet Vasquez was hired in April 1982 and was as-
signed work from 7 a .m. until 3 p.m. in the project group
of the housekeeping department.4
Vasquez was responsible for cleaning , buffing, and po-
lishing the floors in the administrative wing of the facili-
4 The housekeeping department is divided into three employee
groups-housekeeping , projects, and laundry Employees in the house-
keeping group clean patient rooms and common areas . Employees in the
project group maintain the facility's floors, and employees in the laundry
group do the facility's laundry . At the time of the hearing, there were 10
employees in the housekeeping group , 3 in the projects group , and 4 in
the laundry group
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ty. On a few occasions , Vasquez also worked in the laun-
dry room.
Byron (Barney) Miles is the housekeeping and laundry
supervisor of the Respondent . Miles has held this posi-
tion since July, and he supervises the employees in the
housekeeping and laundry department . Miles had previ-
ously worked for Beverly in various housekeeping and
maintenance-related supervisory positions at other loca-
tions , and had also been the facility 's maintenance super-
visor from June 1981 through January 1983.
Miles testified that when he assumed his current posi-
tion in July, employees assigned to the laundry worked
on haphazard schedules , and as a result there was a
major backlog in the operation of the laundry, and that
he received numerous complaints about the lack of clean
linens and the long turn-around time in the cleaning of
the personal clothing of residents . He testified that resi-
dents receiving skilled care must have their linens
changed more often than residents receiving other levels
of care , and that the complaints about the laundering of
the personal clothing of residents were of particular con-
cern because many items were thought to be lost when
they simply had not been returned from the laundry, and
if personal items are not laundered and returned in a
timely fashion , the residents have nothing to wear.
Miles further testified that not only was the facility's
laundry poorly operated, but the work performed by the
project group was also unacceptable , and that the poor
condition of the floors was evidenced by the results of
evaluations of the facility's housekeeping and laundry de-
partments conducted by the eastern division 's internal
quality assurance department done on a quarterly basis-
that an evaluation conducted on June 28 , just before
Miles came to the facility, specifically noted that the
condition of the floors was unacceptable, and because of
the poor condition of the floors , the facility here in ques-
tion received a rating of 74 percent of a possible 100 per-
cent , and this is well below the 80-percent rating consid-
ered to be acceptable.5
Miles also testified that the particular areas which Vas-
quez was assigned to (floor care ) were dirty and "the
baseboards, the corner, the edges between the baseboards
and floors were filthy."
It appears that Miles, according to his testimony, then
decided to assign Vasquez to the laundry group for two
reasons. First of all, Vasquez had prior experience in the
laundry and, secondly , Miles had determined that Vas-
quez ' performance in the project group (cleaning floors)
was unacceptable based on the quality assurance evalua-
tion and on his own observations , as aforestated, and for
these reasons Vasquez was assigned to the laundry begin-
ning on July 18. After this change in assignment was
made, Vasquez was still scheduled on the same shift, 7
a.m. to 3 p.m., and was also paid at the same wage rate
she received in her previous assignment.
Miles testified that the decision to move Vasquez to
the laundry was made by him without consulting other
supervisors concerning her selection, and specifically
denied that the decision to reassign Vasquez to the laun-
dry was related to any activities in which she may have
engaged in on behalf of the Union. Moreover, the Re-
spondent denies that it had any knowledge about the
union activity of Vasquez at the time she was transferred
to the laundry room in July.
First of all , it must be noted that Vasquez ' campaign
activity on behalf of the Union was open , obvious, and
known to the Company . She served as the observer
during the July 11, 1984 election and she was the em-
ployee contact with the Union between the 1984 and
1985 elections . She also passed out and received numer-
ous union authorization cards and signed an authoriza-
tion card herself, and while at work spoke on behalf of
the Union to other employees . Moreover , admittedly
Frederick Taylor , the Respondent 's administrator, was
aware of general union activity as early as May and he
received this information from then Supervisor Betty
Archer who was Vasquez' supervisor at the time.6 The
authorization cards gotten or received by Vasquez
reached a total of 25 and, therefore , must have served as
the main basis for the initial June 21 union demand letter
to the Respondent , and as the basis for the petition filed
in Case 25-RC-8208 on July 2, as aforestated.
I am in agreement that it cannot seriously be argued
that the Respondent , when it first transferred Vasquez to
the laundry in early July (Respondent witness Miles
places the transfer effective on July 18), did not know of
Vasquez ' union sympathies and activities . Moreover, an
employer's knowledge of an employee 's union activities
is inferred when such activities are conducted at a small
plant , and are carried on in such a manner , or at such
times , that it may be presumed that the respondent must
have noticed them, see generally Coral Gables Convales-
cent Home , 234 NLRB 1198 (1978). Vasquez ' open union
talk and her activities in getting numerous cards while at
work have been noted herein, and she never sought to
hide her union talk and card solicitation-thus, the Re-
spondent 's knowledge can also be inferred when , as here,
the employee has engaged in overt union activities, such
as soliciting signatures on union authorization cards. Liz-
dale Knitting Mills, 211 NLRB 966 (1974). Because Vas-
quez was the first , primary , and continuing employee
contact with the Union , knowledge can also be inferred
when, as here , an employee was the instigator of union
activity . International Baking Co., 245 NLRB 2.20 (1979).
About July 4 (Miles places this around July 18), Miles
told Vasquez that she was being taken off her current
job and reassigned to the laundry . When Vasquez asked
why, Miles replied that she would find that he (Miles)
did things like that , that he made changes like that on
"sudden notice" and Vasquez would just have "to get
used to it," and the transfer was to take effect immediate-
ly.
As indicated, it is quite obvious that the Respondent
was seeking to take Vasquez "out of circulation," and at-
tempting to isolate her from other employees. Vasquez'
isolation in the laundry would, and did, significantly
affect her ability to speak with a variety of employees.
Once in the laundry, Vasquez' contact with a cross-sec-
6 Taylor testified that in late May, Betty Archer told him "there's a lot
See R Exh 2 of sentiment for the Union here "
FOUNTAINVIEW PLACE
tion of employees was considerably limited by her job
and,.in fact, contact with employees outside the laundry
was restricted to times when she would make deliveries
of linens, and even this chore was limited as it was
shared with three other employees and, as indicated, the
performance of repetitive chores within the confines of
one room (laundry) can be seen as , less desirable work
than what Vasquez was performing prior thereto-on
project floor work Vasquez could move throughout con-
siderable areas of the facility from room to room, but
once in the laundry she had to mainly "stay put," in one
room performing repetitive chores.
The Respondent attempted to establish that alleged
poor performance by Vasquez of her project work was a
motivating factor in Miles' decision to transfer Vasquez
to the laundry, and asserts , as another motivating factor,
"problems" in the laundry prior to the transfer . Regard-
ing this second factor it must be noted that no written
complaints about the laundry or other documentation re-
garding laundry problems were submitted into evidence,
and no one was called to testify in efforts to corroborate
Miles' testimony regarding laundry problems. Regarding
the first factor-Vasquez' alleged poor performance on
project floor work-management introduced Respond-
ent's Exhibit 2 to attempt to justify its transfer of Vas-
quez . However, Respondent's Exhibit 2 is an "outside"
evaluation of all housekeeping work for the period
ending June 28. As pointed out, if this evaluation showed
that Vasquez ' project work was, in fact, unsatisfactory,
then no reason is proffered to explain the delay in her
transfer until July 18 . Moreover , nowhere in Respond-
ent's Exhibit 2, or in Miles ' testimony , can the poor re-
sults, of this exhibit be attributed specifically to Vas-
quez-Respondent 's Exhibit 2 does not identify any spe-
cific employee or shift, but rather reflects on all house-
keeping responsibilities generally, and at no point in
Miles' testimony could he credibly establish that any de-
ficiency in rating was due to any specific employee.
It is submitted , and I find , that the asserted reasons for
Vasquez ' July transfer to the laundry are pretextual in
nature . One possible justification for an employee's dis-
charge (or, as here, discriminatory transfer), is dissatis-
faction with the employee 's work. If, however, there is
evidence that an employer gave the employee a recent
wage increase or a good evaluation, the Board will then
find the alleged dissatisfaction a pretext. In the instant
case, Vasquez , in late spring , received both a,very favor-
able evaluation and a wage increase and such were ap-
proved by both her department head Betty Archer and
by Administrator Fred Taylor.' In fact , Vasquez' project
work was viewed favorably by both levels of supervision
even prior to 1985 .8 Thus, as further indicated, the
timing of Vasquez ' discriminatory July transfer to the
laundry is also damaging to the Respondent as it regular-
ly gave favorable evaluations and wage increases to Vas-
quez, but as soon as it realized that Vasquez was again
engaging in union activities in late May , it sought to iso-
7 See G .C. Exhs. 3(a), (b), and (c)
8. See G .C. Exhs 3(d), (e), and (f)-documents reflecting Vasquez'
1984 favorable evaluation and wage increase, and also approved by both
levels of supervision.
.29
late her in the laundry . If, as Miles claims, Vasquez'
work prior to her July transfer was unsatisfactory, one
would assume that management would have (or should
have) made some sort of complaints to Vasquez-how-
ever, Miles admitted that he never, prior to the July
transfer, made any complaints to Vasquez about her
work . The Board, in discussing discharges, has stated
that discharges without prior warnings as to the serious-
ness of the conduct are suspect as a pretext . Certainly,
the same rationale applies in the instant case when Vas-
quez, considering the favorable evaluations and pay
raises, was never even warned before the July transfer
about her alleged unsatisfactory work.
I am also in . agreement that the Respondent 's attempt
to keep Vasquez away from other employees during this
critical period did not consist solely of transferring her
to a more isolated job , but the Respondent 's intentions
are further shown on the day before her transfer when
Miles held an employee meeting with laundry employ-
ees, but told Vasquez she did not need to attend. More-
over , on the day of the transfer here in question (or the
day after), Miles held an employee meeting with house-
keeping employees , and again told Vasquez that she need
not attend.9
In essence, the Respondent is contending that their
laundry situation was in such disarray and on such a hap-
hazard schedule that it was causing major backlogs in
clean linens and personal clothing, and as a result Janet
Vasquez, an employee who supposedly did unacceptable
work in the project group , as contended by the Re-
spondent , was then selected and assigned to the impor-
tant task in the laundry room . It appears to me that such
contentions are basically in conflict with one another,
and if Vasquez was so unacceptable in her prior duties, it
is then highly unlikely she would have been selected to
help correct the serious difficulties in the laundry room.
It is alleged that about August 7 the Respondent,
acting through Mike Plott , threatened its employees that
if they selected the Union to represent them collective
bargaining. with the Union would begin from scratch.
Employee Marcia Arthur testified that at a meeting on
August 7 the Respondent's personnel director, Mike
Plott, reviewed some of the issues relative to the upcom-
ing election, and when he spoke about future negotia-
tions stated that if the Union was voted in, the bargain-
ing "starts out fresh"-"you don't start out with what's
in the handbook ," and that while making these state-
ments Plott was holding up the employee handbook and
"waving it" to bring attention to 10
When Plott • was asked at the hearing about the con-
tents of his presentation during the August 6 (or 7) meet-
ing with employees, he testified:
I . . . started off by telling the employees that the
law was very clear . . . the collective bargaining
9 Miles claimed that Vasquez was excluded from these meetings be-
cause she told everything to Riena McRae and Betty McRae -as this
record shows these two individuals closely identified themselves with the
union effort.
10 The handbook in question contains , among other items , all the
present employee benefits. '
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
process required neither party to . . . agree to any
proposals, the . . . legal requirement was to bargain
in good faith.
When asked about the statement concerning the effect of
the collective-bargaining process on employee benefits,
Plott then stated that he told the employees:
They could either gain, lose, and/or stay the same.
The collective bargaining process was like a horse
trading session at the bargaining table.
These statements cited above present a conflict be-
tween Arthur and Plott. Counsel for the Respondent
argues that Plott's testimony was supported by Fred
Taylor who stated that Plott never told the employees
that bargaining would start from scratch (or fresh), and
it is submitted that Plott and Taylor should be credited
over Arthur because their testimony is consistent and
corroborated while Arthur's is not.
Based on demeanor and other antiunion aspects of this
case, I will accept Marcia Arthur's testimony regarding
what Mike Plott stated at the meeting here in question. i I
An employer's statement that bargaining will start
from "scratch" (or starts out fresh) if the employees
select a union to represent them, violates Section 8(a)(1)
of the Act when it conveys the impression that the em-
ployer will require the union to give up existing employ-
ee benefits. Lancer Corp., 271 NLRB 1426 (1984).
Counsel for Respondent argues that in several cases
the Board has concluded that remarks and statements by
an employer that reasonably communicate that a union
cannot compel concessions nor guarantee retention of all
present benefits during negotiations are permissible state-
ments within Section 8(a)(1) of the Act. Moreover, main-
tains the Respondent, even if Arthur's testimony is cred-
ited over Plott's, the cases demonstrate that such state-
ment was not illegal as Arthur's version of such state-
ment contains no implied threat that the Respondent
would unilaterally take away an employee's benefits, and
it was merely a description of the realities of the collec-
tive-bargaining process.
The phrase that bargaining between the parties "starts
out fresh," standing alone or in itself, as indicated in
Board decisions, might well be a permissible statement,
but holding up and waving the employee handbook in
context with the above remarks and at the same time
adds considerable emphasis to what Plott was saying,
and certainly conveys the reasonable impression that the
Respondent will require the Union to give up existing
employee benefits. It is also noted that this statement by
Plott here in question was made following the discrimi-
natory transfer of the principal union activist Janet Vas-
quez and, accordingly, and in consideration of all the cir-
cumstances, must be deemed an implied threat.
It is alleged that about August 12, 1985, the Respond-
ent, acting through Fred Taylor, interrogated its employ-
ees regarding their union membership, activities, and
sympathies.
Nowhere in this record is there any evidence that
Taylor had a conversation with employees on August 12.
In fact, none of the witnesses offered by the General
Counsel testified concerning any such statements of con-
versation on this date. In accordance, this allegation is
dismissed.
It is alleged that about August 14 the Respondent,
acting through Fred Taylor, threatened employees that if
they selected the Union to represent them they would no
longer be allowed to talk directly to management, and
they would lose the privilege of having a credit union.
Janet Vasquez testified that she attended an employee
meeting on August 14, and after the Respondent' s admin-
istrator Fred Taylor, had asked those in attendance to
take a "good look" at their existing benefits-showing
them the employees' handbook-he then stated:
[S]omething about if we elected the Union in we
would not be able to take our problems to them
anymore, we would have to have a Union rep do
our speaking for us, that we would not be able to
come to managmeent , the Union rep would have to
do our speaking for us.
Vasquez also stated that during this meeting employee
Edie Collins asked Taylor, "If we voted the Union in,
would we lose our Credit Union?" and that Taylor re-
sponded, "he really couldn't say on that. That this was a
point that was negotiated upon."
Vasquez further testified that right after the meeting
she heard another employee, Bettye Johnson, ask Fred
Taylor if he really thought the employees could lose the
credit union, and it was Vasquez' testimony that Taylor
replied that the employees would lose the credit union.
Vasquez also testified that Johnson then told other em-
ployees present that Taylor said they would lose the
credit union if they voted for the Union.
Employee Bettye Johnson also attended the August 14
meeting , but testified for the General Counsel that
during this meeting Taylor told the employees that there
was "a possibility" that they would close the credit
union . Johnson further testified that after the meeting she
asked Taylor, "If the Union gets in, would we lose the
Credit Union?" and it was Johnson's testimony, in con-
tradiction to that of Vasquez, that Fred Taylor respond-
ed, "Yes, it's a possibility." Johnson further testified that
Taylor also told them that if the Union came in "we
couldn't come to him and talk to him as one person, we
would have to send a representative from the Union to
him."
Janet Vasquez testified that at the meeting on August
7 Supervisor Mike Plott told them that if the Union were
voted in employees would no longer be able to speak to
them (management), and they would have to rely on the
Union to speak for employees.
Marcia Arthur also testified that at the meeting on
August 7 Plott stated that if the Union were voted in
employees would no longer be able to ask or speak to
' I The attempted impeachment of Arthur was ineffective and her testi-
mony on cross-examination is consistent with her direct testimony
FOUNTAINVIEW PLACE
management regarding their problems-that employees
would have to rely on the Union to speak for them.' 2
It appears that on August 14 the Respondent held a
meeting of the employees during working hours and on
working time to discuss the upcoming election and its
views thereon , and in this meeting Taylor discussed the
Respondent 's views concerning the election, and about
50 of the Respondent 's employees attended this meeting.
Taylor testified that he discussed the Respondent's
open-door policy, but that he never said that the Re-
spondent would discontinue such policy if the employees
selected union representation . Taylor stated that he told
the employees at this meeting that in the event of union
representation his open-door policy would remain, and
anyone could come and talk to him.
Even accepting the testimony of the General Counsel's
witnesses relative to remarks by Taylor and Plott that
employees could no longer talk with management , I still
find no violation or threat under the particular circum-
stances here.
In NLRB v. Gissel Packing Co., 395 U.S. 575 ( 1969),
the Supreme Court established that "an employer is free
to communicate to his employees any of his general
views about unionism or any of his specific views about
a particular union , so long as the communications do not
contain a 'threat of reprisal or force or promise of bene-
fit."' Further, an employer may attempt to influence the
outcome of an election by presenting facts and even
making predictions based on fact, as long as the employ-
er avoids using its influence to interfere with employee
rights of free association . It is also well , established that
employers are free to hold meetings with their employ-
ees in response to a union campaign regardless of wheth-
er a past practice existed.
The statements by Taylor and Plott, crafted in lay-
man's terms, simply explicates one of the changes that
occur between employers and employees when a statuto-
ry representative is selected . There is no threat, either
explicit or implicit , in a statement that explains to em-
ployees that, when they select a union to represent them,
the relationship that existed between the employees and
the employer will not be as before. Section 9(a) of the
Act contemplates a change in the manner in which em=
ployer and employee deal with each other, and for an
employer to tell its employees about this change during
the course of an election campaign , cannot be character-
ized as an objectionable retaliatory threat to deprive em-
ployees of their rights, but rather is nothing more or less
than permissible campaign conduct.' 3 As the Ninth Cir-
cuit has observed, "[I]t is a 'fact of industrial life' that
when a union represents employees they will deal with
the employer indirectly, through a shop steward."
NLRB v. Sacramento Clinical Laboratory, 623 F.2d 110,
112 (9th Cir. 1980).
I turn now to the allegation that on August 14 Taylor
stated that employees would lose their credit union if
they selected the Union.
12 The references concerning what Plott stated at the meeting on
August 7, although not specifically alleged , were very fully litigated at
the hearing.
13 See Eagle Comtromcs, 263 NLRB 515 ( 1982). Also Bahama Joe's,
Inc., 270 NLRB 1377 (1984).
31
Taylor testified that immediately after the August 14
employee meeting, Bettye Johnson asked him if the
Union were selected would the employees lose the credit
union, and he responded by stating that "there is a possi-
bility because all benefits must be negotiated ." Johnson
then turned and walked back to a table where she had
been sitting and told a group of employees , "Did you
hear that, we could lose the Credit Union."
I am in agreement that Taylor's statement was merely
an explanation of what could happen as the result of col-
lective-bargaining negotiations and, on this occasion, was
an attempt to explain that all current benefits were sub-
ject to negotiation if the Union won the election.
As noted, the General Counsel offered Johnson and
Vasquez to testify concerning Taylor's statement on this
matter, but Bettye Johnson 's testimony actually corrobo-
rated that of Administrator Taylor-Johnson testified
that Taylor said that if the Union was successful , "there
was a possibility we would lose the Credit Union," and
then Johnson further testified that after the meeting was
over, she approached Taylor and asked him-"if the
union gets in, will we lose the Credit Union?" and John-
son testified that Taylor then replied , "Yes, it is a possi-
bility." (Emphasis added .) Thus, Johnson 's testimony is
consistent with that of Taylor.' 4
In accordance with the above , I dismiss the allegations
about threats by the Respondent's agents in the loss of
the credit union and that employees could no longer talk
directly to management.
It is alleged that about August 27 the Respondent,
acting through Miles, threatened its employees with dis-
charge if they continued to support the Union and
engage in union activities.
Janet Vasquez testified that about August 27 she had a
conversation with Miles about her changing of shifts in
the laundry room , and after she had registered her objec-
tions and mentioned other complaints to him , Miles then
told her that she had "a very bad attitude" and that he
"could fire" Vasquez on that alone, and that he had doc-
umented proof that the laundry did 50 percent less work
on the days when Vasquez was working.
Miles denied making any statement about her bad atti-
tude and that she could be fired because of such , or that
he threatened her with discharge if she continued to sup-
port the Union. Miles testified that about the time (a day
or so before Vasquez was moved to a new shift), Re-
spondent 's administrator , Fred Taylor, was in the break-
room of the facility along with a group of employees in-
cluding Vasquez, and at this time Vasquez had informed
Taylor that she "hated to work" at the Respondent's fa-
cility, and Taylor then informed Miles of this statement.
14 Concerning this incident, I do not credit the testimony of Vasquez
(all the testimony of a witness need not be discredited simply because a
portion of it is not believed) as her testimony is in direct contradiction to
the testimony of both Johnson and Taylor-the two people who actually
had the conversation . Vasquez' account of Taylor's reponse to Johnson is
illogical in that Johnson admits that Taylor stated that it was "possible"
that the employees could lose the credit union as the result of the Union
coming in . It is highly unlikely that Taylor would first state that the loss
of the credit union was a possibility and then immediately reverse himself
and say that the employees would definitely lose the credit union if the
union was selected
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miles testified that he then spoke to Vasquez in an effort
to find out what her problem was, and Vasquez replied
that she would voice her opinion any place she felt like
it, and again repeated that she hated to work at the facil-
ity, and would do anything to be able to work else-
where. According to Miles, he then told Vasquez that
because she hated to work for the Respondent, he would
be happy to recommend her to anyone else interested in
her employment as he felt she was a good employee.
In making my credibility findings about this allegation,
it must be remembered that Vasquez had been openly
active for the Union and, in fact, had just recently served
as the observer for the Union at the election on August
16, and her second time in so doing (also in the 1984
election). With this development, background, and con-
nection with the Union, it appears to me that Miles
would be concerned about "her attitude" and that she
could "be fired" because of it.
In crediting Vasquez, I have found the Respondent
threatened discharge if Vasquez continued her union ac-
tivities. 15
It is finally alleged that about August 27 the Respond-
ent transferred Janet Vasquez to the 11 p.m. shift.
It is pointed out by the Respondent that from July 8
through September 19 the Respondent purchased in
excess of $4000 worth of additional linens , and this, cou-
pled with the addition of 46 skilled care beds, caused an
overload in the laundry department (previously, the laun-
dry could wash, dry, and fold approximately 1600
pounds of laundry per day), but after the purchase of the
new linens, the laundry was required to launder 2500
pounds of linens per day, and this increase in the work-
load for the laundry created the need to increase its daily
production, and because there was no room in the laun-
dry for additional machinery, the only way to increase
its production was to operate the laundry over a longer
period of time each day and, to do this, Miles decided
that another shift had to be added.
It appears that at the time the Respondent decided to
add an evening shift, Janet Vasquez, Riena McRae,
Brenda Underhill, and Tammy Coleman worked in the
laundry. McRae worked from 5 a.m. until 1 p.m., and
Underhill, Coleman, and Vasquez all worked from 7 a.m.
until 3 p.m. It further appears that McRae was the most
senior employee and was assigned to clean the personal
items of residents. Miles testified that the cleaning of per-
sonal items is an important task because the residents of
the facility must have their personal items laundered and
returned to them rather quickly and only a well-trained
employee can handle such assignment and McRae had
worked in the laundry for approximately 9 years and
15 All the facts found herein are based on the record as a whole and
on my observation of the witnesses The credibility resolutions herein
have been derived from a review of the entire testimonial record and ex-
hibits with due regard for the logic of probability, the demeanor of the
witnesses, and the teaching of NLRB v Walton Mfg. Co„ 369 U S 404
(1962) Concerning those witnesses testifying in contradiction to the find-
ings herein, their testimony has been discredited , either as having been in
conflict with the testimony of credible witnesses or because it was in and
of itself incredible and unworthy of belief All testimony has been re-
viewed and weighed in the light of the entire record In general in-
stances, heretofore and subsequently herein, I have also stated my specif-
ic reasons for either crediting certain testimony or rejecting same
was the only employee who laundered personal items.
Therefore, Miles did not approach McRae about being
transferred to the new shift for those reasons. Moreover,
neither Underhill nor Coleman was approached about
being transferred to the new shift for those reasons.
Miles also testified that Underhill was too immature to
work without constant supervision, which could not be
provided on the new shift, and Coleman was recently
hired in July, and as a result Miles did not feel she was
qualified to work alone on the new shift because of her
inexperience.
Miles testified that he then decided to approach Vas-
quez about working from 3 until 11 p.m. because she was
the employee best suited to be reassigned. On August 28,
Miles asked Vasquez if she would be willing to work on
the new shift (this conversation took place at approxi-
mately 7:30 a.m. that day). Miles testified that he ex-
plained to Vasquez that the tremendous laundry backlog
created the need to add an evening shift in the laundry,
and that he had decided she was a dependable person
and the best suited to work on this new shift. Vasquez
asked if someone else could be reassigned to that shift,
and Miles then reviewed the qualifications of the other
three employees in the laundry with Vasquez.
Miles told Vasquez that McRae could not be reas-
signed to the new shift because she was needed to laun-
der the personal items of residents, and Vasquez agreed.
Miles then said that Underhill did not work well without
supervision, therefore, she could not be so assigned, and
Vasquez also agreed with Miles' assessment of Underhill.
Miles then said that Coleman was a new employee and
that she was too inexperienced to work alone and Vas-
quez agreed with this statement. Vasquez then said she
would work from 3 until 11 p.m. on the new shift and
left the office, but returned to the office approximately
15 minutes after their initial conversation. She entered
the office crying and Miles asked what was wrong, and
Vasquez then said that she did not want to work on the
3 to 11 p.m. shift because she would not be able to see
her son after he got out of school, and stated that any
other shift would be better and even the hours of 11 p.m.
to 7 a.m. Miles then agreed to this arrangement even
though it would have been more efficient to keep the
laundry operating continuously from 5 a.m. until 11 p.m.
as it takes about 1 to 1-1/2 hours to restart the laundry.
At Miles' suggestion, Vasquez clocked out and went
home, but then returned to work at 11 p.m. that night.
Miles testified that the decision to reassign Vasquez to
the night shift was made by him without consulting with
any other supervisors, and specifically denied that this
action was taken in retaliation against Vasquez' support
of the Union. Vasquez then worked this new shift until
she voluntarily quit her employment in September.
Counsel for the Respondent argues that the need to in-
crease production and efficiently operate the laundry
became acute when the facility received additional linens
and additional skilled care beds were added, and to get
more production from the laundry, Miles was faced with
the need to add an additional shift and he had no other
choice because he could not add any more machinery to
the laundry. In late August Miles decided that he had to
FOUNTAINVIEW PLACE
add an additional shift in order to achieve the necessary
production . Moreover , maintains the Respondent, after
deciding to add a new shift in the laundry , Miles next
had to decide which employee would be assigned to that
shift, and Miles decided that McRae could not be moved
because she was the only employee assigned to launder
the personal clothing of residents and, therefore, it was
logical 'for Miles to conclude that the employee already
satisfactorily performing that important function should
not be reassigned . Miles also decided , as aforestated, that
neither Underhill nor Coleman could be reassigned.
According to the Respondent, Miles then examined
Vasquez' qualifications , and noted that Vasquez was a
long-term employee whose work record in the laundry
was good , and that she could work well without supervi-
sion , and for these reasons Miles decided to place Vas-
quez on the new shift and Vasquez agreed with Miles'
reasoning acknowledging that she was the only logical
choice out of those working in the laundry.
In summary, counsel for the Respondent argues that
the assignment of Vasquez - to the night shift was based
solely on the business need to place a capable employee
in a responsible position in its laundry . Additionally, the
assignment of Vasquez occurred 11 days after the elec-
tion and, therefore, there could be no motivation on the
part of the Respondent to isolate Vasquez so as to inhibit
any union activity on her part . Moreover, argues the Re-
spondent, Miles initially planned to establish the new
shift from 7 until 11 p.m., during which hours a substan-
tial number of other employees are at work . It was Vas-
quez who requested that she be allowed to work from 11
p.m. to 7 a .m. instead , but had Vasquez agreed to work
the shift offered by Miles, she would have still had
access to many of the same employees she had access to
prior to being transferred to that shift . It was the effort
to accommodate Vasquez that resulted in her working
the hours here in question.
In making my final decision about this allegation in
question , it is again noted that ' Vasquez served as the
union observer in the August 16, 1985 election . Howev-
er, subsequent to the election it is obvious that the Re-
spondent took further steps to isolate Vasquez for 'her
open union partisanship, as detailed previously herein,
and then in late August, Miles called Vasquez into his
office and told her he needed a dependable person to put
in the laundry , as aforestated , and also told Vasquez that
she had a very bad attitude and he could fire her on that
alone, but (in addition) he had documented proof that
the laundry did 50 percent less work on the days Vas-
quez was in there, and putting her on nights was a way
of giving her a second chance to prove that she "was
doing [her] part in the laundry."
As argued by the General Counsel , the threat to dis-
charge , described above , coming as it does (1) after open
union activity on Vasquez' part ; (2) after one discrimina-
tory transfer; (3) in the context of a second discriminato-
ry transfer ; and (4) without any employment justification
for the second (or first) transfer is, in the context of its
setting, a threat to discharge Vasquez due to her union
activity, as aforestated , and this is especially true when
one considers the lack of any credible basis for ,Miles' as-
sertion regarding the drop in laundry productivity. As
33
also indicated , if one compares Respondent 's Exhibit 2
(outside evaluation of housekeeping for the period
ending June 28, 1985) and Respondent 's Exhibit 4 (out-
side evaluation for the period ending September 24,
1985), one sees that the efficiency rating for the laundry
went up from 77 percent (R. Exh . 2) to 96 percent (R.
Exh. 4). There is thus no basis in fact for Miles' assertion
that prior to August 27 Vasquez was somehow responsi-
ble for a drop in laundry productivity . Additionally,
Vasquez ' conversation in saying she "hated her job," was
pronounced in late August when a group of employees
(not just Vasquez) were commenting on how things had
changed at work over the summer, and they discussed
generally employee dissatisfaction with the current con-
ditions, but out of this group of dissatisfied employees,
the Respondent chose to punish only Vasquez-the ob-
server for the Union at the recent election.
The Respondent asserts, as a basis for the creation of a
laundry night shift and the transfer of Vasquez to that
shift, the recent purchase of linens which , the Respond-
ent claims, increased the laundry workload by 50 per-
cent.16
Beverly introduced Respondent's Exhibits 5 and 6 in
support of this claim, but I am in agreement , as pointed
out by the General Counsel , that these documents simply
do not support the Respondent 's assertion-Vasquez was
transferred to night shift on August 27 or 28 , yet Re-
spondent 's Exhibit 5 bears a delivery date of September
3, 1985 , and Respondent's Exhibit 6 bears an invoice date
of September 27, which is even subsequent to Vasquez'
resignation. It appears that there was thus no actual in-
crease in the workload of the laundry , if at all , until well
after the discriminatory transfer of August 27. Addition-
ally, as also indicated , even assuming that such subse-
quent purchases of linens necessitated a new night shift,
the Respondent presented no evidence to show that Vas-
quez' new position was ever filled subsequent to her res-
ignation, and thus a reasonable inference that the "new
shift" was created solely to deal with Vasquez and her
repeated union activities.
The Respondent argues that Miles initially planned the
new shift from 7 until 11 p.m., during which hours a sub-
stantial number of employees were at work and, there-
fore, Vasquez would have access to many of the same
people she had access to prior to the transfer.
However, it has been duly established previously
herein that employees working in the laundry have very
few opportunities to see or talk to other employees and,
thus, the hours originally scheduled from 7 to 11 p.m.
would make little difference.
I also find it very doubtful, lacking discrimination, that
the Respondent would assign a good and dependable
laundry worker (admittedly so) to a one -person night
shift, when most of the main laundry operations were ob-
viously done from 7 a.m. to 3 p.m., and especially so be-
cause there is no evidence in this record that the Re-
spondent hired anyone else to take the place of Vasquez
on the main 7 a.m. to 3 p.m. shift (the laundry group re-
16 There is no evidence in this record that ever before had there been
a laundry night shift , and no evidence that any employee had ever before
worked nights in the laundry.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mained at four). Certainly, if the big backlog in laundry
was to the extent as contended by Miles, then, in all
probability, it would have been necessary and mandatory
for him to keep his main staff at full complement.17
I have found that the transfer of Janet Vasquez to the
night shift was discriminatory and a pretextual defense
by the Respondent.
THE REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices , I shall recommend that it be
ordered to cease and desist therefrom , and that the Re-
spondent take the affirmative action provided for in the
Order below, and which I find necessary to effectuate
the policies of the Act.
I have further concluded that this record contains suf-
ficient evidence of unlawful conduct during the critical
period to also warrant the recommendation that the elec-
tion held on August 16, 1985 , be set aside.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in conduct described and detailed in
section III , above , the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
4. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed18
17 Under all the circumstances of this case , I attach no significance in
the fact that Vasquez agreed with Miles that she was the only one quali-
fied to run the new shift It is only additional evidence showing that she
was a good employee and management was aware of it.
18 If no exceptions are filed as provided by Sec . 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ORDER
The Respondent, Beverly Enterprises-Indiana, Inc.
d/b/a Fountainview Place, Indianapolis , Indiana, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discriminatorily transferring its employees from its
project group to the laundry room because of their union
activities.
(b) Threatening employees that if they selected the
Union collective bargaining would begin from scratch
and/or start "from fresh."
(c) Threatening employees with discharge if they con-
tinued to support the Union.
(d) Discriminatorily transferring employees to the 11
p.m. night shift in the laundry room because of their
union activities.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facility in Indianapolis , Indiana, copies of
the attached notice marked "Appendix."19 Copies of the
notice, on forms provided by the Regional Director for
Region 25 , after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced , or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the election held in
Case 25-RC-8208 on August 16, 1985 , be set aside and
that this representation case be referred to the Regional
Director for Region 25 for further proceedings in this
matter as he sees fit and in accordance herewith.
19 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."