Gold Leaf Convalescent Home

National Labor Relations Board - Board Decisions

Sep 18, 1975

220 N.L.R.B. 421 (N.L.R.B. 1975)

GOLD LEAF CONVALESCENT HOME
American Care Centers , Inc., d/b/a Gold Leaf Conva-
lescent Home and Public Service and Industrial
Employees Union , Local No. 1239, affiliated with
the Laborers ' International Union of North Ameri-
ca, AFL-CIO. Case 19-CA-7228
September 18, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On March 11, 1975, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified below.
We find merit in the General Counsel's exceptions
to the Administrative Law Judge's finding that Re-
spondent did not violate Section 8(a)(3) in discharg-
ing Debra Halverson allegedly for poor job perfor-
mance . The Administrative Law Judge concluded
that the General Counsel had failed to meet his bur-
den of proving that Respondent discharged Halver-
son because of her union activities in the absence of
evidence that Lynn Campbell, manager of opera-
tions , knew of Halverson's views or activities prior to
the discharge. We disagree.
Respondent operates a nursing home in the State
of Washington. Halverson was hired as activities di-
rector in May 1973 to stimulate and/or to motivate
the patients to participate in the various activities. In
the performance of these duties she moved con-
stantly about the home contacting patients and staff
personnel throughout. Her job also required the
preparation and maintenance of certain records.
Halverson was very active in the early stages of the
union organizing drive. Thus, she signed a union au-
thorization card, attended union meetings, and freely
disclosed her support of the Union to other employ-
ees including telling them whom to see about signing
authorization cards and inviting a number of em-
ployees to attend a union meeting at her home on
May 22, 1974, the day she was discharged.
Although Campbell conferred with Halverson
421
about her job duties on two occasions after his arriv-
al on May 20, 1974, he did not convey to her any
inkling that he was dissatisfied with her job perfor-
mance, and during the entire period of her employ-
ment, she was never reprimanded, disciplined, or
criticized over the quality or quantity of her work.
On May 21, 1974, however, at an employee meeting,
Campbell, in addition to expressing his antiunion
views, indicated that some employees were trouble-
makers and that they were going to be fired. Respon-
dent had knowledge before Halverson's discharge
that the sole issue to be resolved at a representation
hearing was whether or not she should be included in
the unit. The Administrative Law Judge found that
Respondent was hostile to the plans of employees to
have a union. He also found that Respondent's ad-
ministrator, John Bragg, on July 17, 1974, stated that
two union organizers were no longer employed by
the Respondent and would never return. The only
two employees who had been fired at that time were
Halverson and Green, also an active union support-
er. We find, in these circumstances, ample evidence
that Respondent knew or believed that Halverson
was actively engaged in union activity.
In view of the above, and especially the fact that
Halverson was never warned about her alleged fail-
ure to do her work properly, we reject the Adminis-
trative Law Judge's conclusion that Halverson was
not unlawfully discharged. Consequently, in view of
Respondent's threats, and other coercive conduct
which was 'directed towards its employees for sup-
porting the Union, we are persuaded that
Respondent's asserted reliance on Halverson's inade-
quate job performance as the reason for discharging
her was a pretext and that the discharge of Halver-
son, a staunch union activist, was a discriminatory
act against Halverson for supporting the Union and,
thus, violated Section 8(a)(3) and (1) of the Act.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 3(b) from the Adminis-
trative Law Judge 's Decision and substitute therefor
the following:
"(b) Section 8(a)(1) and (3) of the Act by discharg-
ing Frances Stanley and Debra Halverson because
they engaged in union activities."
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 as modified
below and hereby orders that Respondent, American
220 NLRB No. 44
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Care Centers, Inc., d/b/a Gold Leaf Convalescent
Home, Ellensburg, Washington, its officers, agents,
successors, and assigns, shall take the action set forth
in the said Order as modified below:
1. Delete paragraph 2(a) and substitute the follow-
ing therefor:
"(a) Offer Frances Stanley and Debra Halverson
immediate and full reinstatement to their former
jobs, or substantially equivalent jobs if their former
jobs no longer exist, without prejudice to their senior-
ity and other rights and privileges, and make them
whole in the manner set forth in the section of the
Decision entitled `The Remedy.' "
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT prohibit union solicitation
among our employees during their nonworking
time on our premises.
WE WILL NOT threaten to cease making quar-
terly wage reviews and granting wage increases
to those of our employees who support or sup-
ported Public Service and Industrial Employees'
Union, Local No. 1239, affiliated with the La-
borers' International Union of North America,
AFL-CIO, or any other labor organization.
WE WILL NOT threaten to refuse to negotiate
with the above Union (or any other labor orga-
nization, in the event such labor organization is
designated as the exclusive collective-bargaining
representative of an appropriate unit of our em-
ployees).
WE WILL NOT prepare, circulate, and solicit sig-
natures to petitions to decertify the above-
named Union or any other labor organization
duly designated as set out above.
WE WILL NOT discharge or discipline our em-
ployees for engaging in union activities.
WE WILL offer Frances Stanley and Debra
Halverson full reinstatement to their former
jobs, restoration of all their rights and privileges,
and WE WILL make them whole for any wage
losses they may have suffered in the period be-
tween the date we discharged them for engaging
in union activities and the date we reinstate
them.
AMERICAN CARE CENTERS, INC., d/b/a
GOLD LEAF CONVALESCENT HOME
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN , Administrative Law Judge: On Oc-
tober 10 and 11 , 1974,' I conducted a hearing at Ellens-
burg , Washington , to try issues raised by a complaint 2 is-
sued on September 13 on the basis of a charge and an
amended charge filed by the Public Service and Industrial
Employees ' Union, Local No. 1239, affiliated with the La-
borers' International Union of North America , AFL-CIO 3
on July 22 and August 6.
The complaint alleged that the American Care Centers,
Inc. d/b/a Gold Leaf Convalescent Home 4 violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act, as
amended (hereinafter called the Act), by:
1. Discharging two union activists during the Union's
preelection campaign because of their union activities.
2. Restricting , prior to the election , union solicitation
among its employees during nonworking time.
3. Threatening employees , both prior to and after the
election , with job loss , termination of business operations,
withholding of wage increases , and other reprisals if they
persisted in supporting the Union.
4. Initiating, sponsoring , and circulating a decertifica-
tion petition among unit employees after the Union won
the election.
5. Harassing a union supporter over her support of the
Union subsequent to the election.
The Company denied the commission of the acts alleged
and denied committing any violation of the Act.
The issues are: (1) Whether the two discharged employ-
ees were discharged for engaging in union activity; (2)
whether the Home restricted union solicitation among its
employees during nonworking time ; (3) whether the Home
threatened employees with job loss , termination of busi-
ness operations , withholding of wage increases , and other
reprisals if they persisted in supporting the Union; (4)
whether the Home initiated , sponsored, and circulated a
decertification petition among the unit employees follow-
ing the election ; (5) whether the Home harassed a union
supporter over her support of the Union ; and, if any of the
above occurred, (6) whether by such act or acts the Home
violated the Act.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, to examine
and cross-examine witnesses, to argue and file briefs . Briefs
have been received from the General Counsel and the
Home.
Based upon my review of the entire record ,5 observation
of the witnesses , perusal of the briefs and research , I enter
the following:
Read 1974 after all further date references omitting the year.
2 At the outset of the hearing, I permitted the General Counsel to amend
pars. 10 and I I of the complaint to renumber paragraphs 10 and I I as pars.
10(A) and II(A) and to add two new paragraphs numbered 10(B) and
11(B), setting out additional alleged 8(a)(1) violations committed by the
Home.
3 Hereafter called the Union.
4 Hereafter called the Home or the Company
s Errors in the transcript have been noted and corrected.
GOLD LEAF CONVALESCENT HOME 423
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged , the answer admitted , and I find
that American Care Centers, Inc., is an Oregon corpora-
tion engaged in Ellensburg , Washington , and other loca-
tions in Washington and Oregon in the operation of nurs-
ing homes caring for the elderly for profit , that it annually
does a gross volume of business exceeding $ 100,000 and
purchases in excess of $50,000 worth of goods , materials,
and services delivered to it from firms located outside
Washington and Oregon state . The answer further admits
and I find that the corporation conducts such operations at
Ellensburg , Washington , under the name of Gold Leaf
Convalescent Home and that at all times pertinent, it was
engaged in commerce or in a business affecting commerce,
and the Union was a labor organization , as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Chronology of Events
In late April the Union began an organizational cam-
paign among the Home's employees . On May 6 , the Union
filed a petition (Case 19-RC-7119) with the Regional Of-
fice for certification as the exclusive collective-bargaining
representative of the Home 's employees in a unit consisting
of:
All employees employed by the employer at its 1015
East Mountain View , Ellensburg, Washington loca-
tion who are working as Nurses' Aides , Housekeepers,
Laundry Employees , Orderlies, Building Maintenance
Employees, Dishwashers, Traygirls, Kitchen Employ-
ees, Cooks and Activity Directors, excluding office
clerical employees , professional employees, Registered
Nurses, Licensed Practical Nurses , Dieticians , guards
and supervisors , as defined by the Act.
On May 8 the Union notified the Home that it repre-
sented a majority of the employees within the unit and
asked the Home to recognize it as the exclusive collective-
bargaining representative of the unit employees and to
meet and to negotiate with the Union for a contract cover-
ing their rates of pay, wages , hours, and working condi-
tions.
On Monday, May 20, Lynn Campbell, the parent
corporation's manager of operations ,6 arrived at the Home.
As his first act, he discharged the incumbent administrator
(Denny) and assumed Denny's duties . Not long thereafter,
he replaced Denny's secretary, Diane Green, an active
union supporter , with a former secretary?
Two days after his arrival on the premises, Campbell
discharged Debra Halverson, the Home's activities direc-
tor. The complaint alleges that Campbell discharged Hal-
verson because of her activities on behalf of the Union and
thereby violated the Act.
On May 25, a hearing was held on the Union's Petition
for Certification. The sole issue was whether or not the
activities director classification was includable within the
unit.
On May 27, John Bragg 8 reported for work as Denny's
replacement. Campbell continued to share with Bragg the
duties of administrator at the Home until shortly after the
election conducted pursuant to the Petition (the election
was held on July 19).
On June 19, the Regional Director issued his Decision
and Direction of Election in the representation case where-
in he found the activities director an includable classifica-
tion within the unit and directed a July 19 election.
On July 17, Bragg met with unit employees . It is alleged
in the complaint that, in the course of those meetings,
Bragg threatened employees with closure of the Home in
the event they chose union representation, told the employ-
ees they could not engage in union solicitation on the
premises , stated no raises could be given without union
approval, stated the Union's two major supporters were no
longer employed at the Home, and stated that the parent
corporation would not negotiate with the Union, thereby
violating the Act.
July 17 was Stanley's last day of work; the complaint
alleges that the Home discharged her because of her union
activities and thereby violated the Act; the Home alleges
she voluntarily terminated her services.
The election was held on July 19; it was won by the
Union. Following the election, Campbell and Bragg pre-
pared a petition wherein the signatories disclaimed any de-
sire for representation by the Union, circulated the petition
among unit employees, and requested that they sign it. The
complaint alleges by so doing they violated the Act.
On July 23, the Home filed objections to the election.
On July 30, 31, and August 2, Bragg allegedly addressed
harassing remarks to an outspoken union supporter over
her support of the Union. On or about the latter date,
Bragg conducted an employee meeting . It is alleged that
during that meeting Bragg threatened to withhold from
union supporters, the regular, periodic increases normally
granted employees during wage reviews each 3 months un-
der the Home's wage policy, while granting same to non-
supporters of the Union. It is alleged that, by those actions
and statements , the Home violated the Act.
On August 10, it is alleged that Bragg repeated his Au-
gust 2 remarks regarding wage increases and again stated
that the parent corporation would not negotiate with the
Union, thereby violating the Act.
On September 12, the Regional Director overruled the
Home's objections to the election and certified the Union's
tary during a period in the fall of 1973 when he acted as administrator at the
Home during an interim period which began when Denny's predecessor
6 An admitted supervisor and agent of the Home acting on its behalf at all (Hogan) was terminated and ended when Denny began work as Hogan's
times pertinent . successor.
7 Green refused to return to her former job within the unit and accepted 8 An admitted supervisor and agent of the Home acting on its behalf at all
termination rather than return . Campbell had worked with the former secre- times pertinent.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status as the exclusive collective-bargaining representative
of the unit employees.
On September 13 the complaint issued.
The alleged unfair labor practices shall be taken up in
chronological order.
B. The Halverson Discharge
The earliest alleged unfair labor practice committed by
the Home was Halverson 's May 22 discharge.
Halverson was hired by Hogan as activities director on
May 1, 1973. At the time of her hire, she had a bachelor's
degree in sociology from Central Washington State College
at Ellensburg . Halverson's job duties consisted of provid-
ing entertainment (movies, music , games , etc.), conducting
exercise classes , and providing arts and crafts classes and
activities . Part of her job was to stimulate or motivate the
patients to participate in the various activities she offered.
Since a portion of her activities required her to work eve-
ning hours, she did not have a regular work shift. The per-
formance of her job duties required that she move about
constantly , contacting patients and staff throughout the
Home. Her job also required the preparation and mainte-
nance of certain records?
Prior to April, Halverson worked part time ; due to a
state requirement that the Home have a full-time activities
director, commencing in April, Halverson worked full
time.
During the period of her employment at the Home, Hal-
verson worked under Administrators Hogan, Denny, and
Campbell. Until the time she was discharged, she was nev-
er reprimanded, disciplined, or criticized over the quality
or quantity of her work.10
Halverson signed a union authorization card either in
late April or early May. She attended a May 15 union
meeting , along with approximately 24 other employees.
Halverson freely disclosed her support of the Union in
conversations with other employees during the month of
May, told several employees to contact Stanley if they
wished to sign union authorization cards, and invited a
number of employees to attend a union meeting at her
home on the evening of May 22.
The sole issue at the May 25 representation hearing (of
which the Home had notice prior to Halverson's May 22
discharge) was whether or not Halverson should be includ-
ed within the unit.
Campbell denied having any knowledge of Halverson's
union activities prior to discharging her. No direct evi-
dence was produced that he did possess such knowledge."
As noted heretofore, prior to Campbell's arrival at the
9 A state inspection not long prior to her discharge resulted in instructions
from the state inspector to commence a card file and chart on each patient,
to record names, birthdates , physical conditions , and activities participated
in.
10 While Campbell testified he was dissatisfied with Halverson's job per-
formance during the period he filled in as administrator at the Home during
the fall of 1973 and instructed Denny to advertise for a replacement for her,
he conceded he did not communicate his alleged dissatisfaction to Halver-
son and did not make any effort to see that Denny carried out his instruc-
tions.
11 To establish Campbell 's knowledge of Halverson's union activities
prior to discharging her, the General Counsel relies on: (1) evidence that the
Home on Monday, May 20, Halverson had never received
any reprimand, discipline, or criticism of her work.
Campbell conferred with Halverson during the af-
ternoon of Monday, May 20. He asked Halverson how
long she had been working full time and she replied she
had been working full time since April 1. He inquired what
she was doing in her activities program and she told him
she had just completed a training session , she had received
some new ideas , and she was instituting a new exercise
class. Campbell brought up the recent state inspection and
the inspector's directions with regard to records. Halverson
stated she was preparing patient cards and they were al-
most completed, but she wasn't sure just exactly what was
wanted on the cards . Halverson also advised Campbell she
intended to chart the patients ' activities on their medical
charts . Halverson asked for Campbell's suggestions con-
cerning patient activities . He suggested she have those pa-
tients who were not mobile make scrapbooks and mobiles.
The next day, Campbell asked Halverson to bring her
cards and come into his office . He also called in Gina Bak-
er, the director of nurses. Campbell and Baker inspected
the cards. Neither Campbell nor Baker made any com-
ments concerning the cards.12
Campbell did suggest that Halverson make up a weekly
report listing the activities conducted each day and the
names of patients who participated in them, as a supple-
ment to the card file. Halverson agreed to comply with his
suggestion.
Campbell began to look for Halverson about 9 a.m. on
the following day (Wednesday, May 22). At or about 10
a.m., he saw Halverson walking down the hall next to his
office. He went to his secretary's office, from where he
could watch her destination through the glass, and saw her
go into the TV room. The TV set was on and two patients
were watching it (Mr. and Mrs. William Wells). Campbell
went to get Baker and asked her to come into his office.13
On Baker's arrival, Campbell went to the TV room and
requested that Halverson accompany him to his office.
When Halverson and Campbell were seated in
Campbell's office, Campbell informed Halverson she was
terminated . She asked why. Campbell said he was termi-
nating her because he had seen her walking aimlessly in the
halls and had just seen her watching television instead of
working. She denied she was watching television and stated
her job required that she walk through the halls to contact
pros and cons of union representation were discussed among the employees
in May and it was generally known among them which employees support-
ed the Union and which did not ; (2) the small size of the unit (32 employ-
ees); (3 ) Campbell 's awareness prior to May 22 that the sole issue ( to which
he and Halverson testified ) at the May 25 representation hearing was
whether or not Halverson should be included in the unit , with the Union
supporting , and the Home resisting, such inclusion; (4) evidence that Camp-
bell and Bragg following Halverson 's discharge referred to her as a "trouble-
maker" and "union organizer" who had been fired.
12 They both testified they were shocked at the paucity of information on
the cards . While Campbell testified he expressed his dissatisfaction to Hal-
verson and gave her instructions concerning what he wanted , both Baker
and Halverson testified he did not make any comments or suggestions.
Their testimony on this point is credited
13 Campbell testified he had Baker observe Halverson in the TV room
from the secretary's office when she responded to his request; Baker testi-
fied she entered his office and attended the subsequent discharge interview
with Halverson, but did not observe Halverson in the TV room . Baker's
testimony is credited.
GOLD LEAF CONVALESCENT HOME 425
patients and staff. Campbell then commented that her card
file was not being properly maintained and he did not
think she was doing an adequate job.
While Campbell's stated reasons for terminating Halver-
son are weak , inasmuch as he had little opportunity to ob-
serve Halverson 's work performance in the 2 days he was
on the job as administrator after firing Denny, he obvious-
ly could not have known whether she was on trips connect-
ed with her job when moving about the halls during the
times he did observe her on the 2 days in question, and her
stay in the TV room was brief, in my judgment the General
Counsel has failed to meet his burden of proving that
Campbell discharged her because of her union views and
activities in support of the Union in the absence of evi-
dence that Campbell knew of such views or activities prior
to the discharge.14 The discharge may as readily be attri-
buted to pique over Denny's failure to carry out his in-
structions the previous fall as to Halverson 's union activi-
ties.
I therefore shall recommend that those portions of the
complaint alleging Halverson was fired for union activities
be dismissed.
C. The Alleged July 17 Threats
In chronological sequence , the next unfair labor practice
allegedly occurred on July 17 when Bragg allegedly threat-
ened employees with closure of the Home in the event they
chose union representation , told them they could not en-
gage in union solicitation on the premises , stated no raises
could or would be given without union approval , stated
that the Union's two major organizers among the employ-
ees were no longer employed , and stated the parent corpo-
ration would not negotiate with the Union.
Bragg and several unit employees verified that Bragg
called a meeting of approximately 20 unit employees in the
large dining room at the Home on July 17.
Employee Gary Chapton testified that , in the course of
the meeting, Bragg announced the Home's opposition to
union representation of its employees ; stated that he doub-
ted the main office would negotiate with the Union if the
Union came in; stated that, if the Union did come in, it
might be necessary to close the Home; and stated that, if
the Union was certified , any raises due the employees
would be frozen and employees would have to get any sub-
sequent raises through the Union ; 15 after holding up a pa-
per announcing a meeting at Halverson's home the next
evening, stated that the ntoice was posted in the lounge,
that he had removed it, and that it was illegal for the em-
ployees to engage in union solicitation on the premises.
14 There is no evidence establishing that Campbell was made aware of the
union discussions and views of the employees during the 2 days preceding
the discharge; the fact the Union favored inclusion of the activities director
classification in the unit does not necessarily mean that the incumbent
therein was prounion ; postdischarge statements by Campbell and-Bragg
labeling Halverson as a union supporter do not establish that Campbell
possessed such knowledge prior to the discharge , inasmuch as Halverson
campaigned heavily for the Union after her discharge and their knowledge
of her prounion views could have resulted therefrom.
is It was undisputed that the Home reviewed wages quarterly and granted
increases based on those reviews.
Employees Debra Erickson and Frances Stanley substan-
tially corroborated Chapton's testimony.
Employee Stanley also testified that Bragg also com-
mented that the Union's two major organizers were no lon-
ger employed by the Home and would never be rehired.
Employee Kathy Peacock testified that in a meeting in
Bragg's office about the same date, attended by approxi-
mately eight employees, Bragg stated the parent corpora-
tion would not negotiate with the Union if it was voted in.
Bragg conceded he made statements to the effect that it
would not be in the employees' best interests to have union
representation and he stated reasons for his position. He
also corroborated employee testimony that he produced
the union meeting notice, which he had removed from the
employee lounge, but stated he commented that the em-
ployees could not engage in union solicitation on company
premises during working time. 16 He denied he made any
mention of possible closure of the Home or that two union
organizers were no longer employed and would not be re-
hired. With reference to negotiations, he testified that he
commented that negotiations would be conducted between
the parent corporation and the Union concerning the em-
ployees' wages , hours, and working conditions if the Union
won the election and he would no longer be able to deal
with the employees directly concerning these subjects.
With reference to raises, Bragg stated it was his belief that,
if the Union won the election and negotiated an open shop
contract, that contract would only cover those employees
who were union members, their raises would be governed
by that contract, and he would be free to make whatever
adjustments in wages he desired concerning those employ-
ees who were not union members and he may have so stat-
ed.
Employee Katie Stingley corroborated Bragg's testimo-
ny that his remarks concerning solicitation were limited to
statements to the effect that employees were barred from
talking about the Union while they were working. She did
not testify concerning the balance of his July 17 talk.
I credit the corroborative testimony of Chapton, Erick-
son, and Stanley that on July 17 Bragg, after displaying the
union meeting notice he had removed from the employees'
restroom, announced that it was unlawful for the employ-
ees to engage in union solicitations on the premises, with-
out qualification, thereby violating the Act. Their testimo-
ny was unhesitating and convincing. I do not credit the
testimony of Bragg and Stingley (the Home's observer at
the election) to the contrary, particularly since Bragg's pre-
trial statement corroborates the testimony of Chapton, et
al.
I also credit employee testimony recited above that
Bragg stated on July 17 that employees would cease to
receive the periodic wage adjustments they had custom-
arily received upon quarterly wage reviews and would have
to look to the Union for any future adjustments in the
event they chose to be represented by the Union, which
was indirectly corroborated by Bragg.
In the absence of corroboration by Stanley and Peacock
and a denial by Bragg of Chapton's testimony that Bragg
16 Though his written statement did not contain that qualification and he
also testified he still believed all union solicitation on the premises was
unlawful
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated it might be necessary to close the Home if the Union
won the election , Chapton's testimony to that effect is not
credited.
I credit Stanley's testimony that Bragg stated two union
organizers were no longer employed by the Home and
would never return , inasmuch as Bragg 's denial is contro-
verted by his pretrial statement , in which he states he re-
ferred to at least one former employee as a union activist
during his talk, with Halverson in mind. I do not, however,
find that statement coercive.
As to the alleged threat to refuse to negotiate with the
Union in the event the Union won the election, I credit
employee testimony heretofore recited that Bragg stated he
doubted that the parent corporation would so negotiate
and I do not credit Bragg's ingenious explanation that he
meant that he would not be able to deal directly with the
employees.
I find and conclude that, by coupling a statement that he
doubted the parent corporation would negotiate with the
Union with a statement that the employees would cease to
receive periodic wage adjustments according to past prac-
tice in the event the Union came in, Bragg 's July 17 state-
ments to the latter effect interfered with, restrained, and
coerced the employees ' exercise of their right to freely
choose whether or not they desired union representation.
I further find and conclude that by his July 17 statement
that the employees were barred from any union solicitation
on the Home 's premises , without qualification , Bragg fur-
ther violated Section 8(a)(1) of the Act, despite evidence
that the Home did not discipline employees for engaging in
union activities during break and lunch periods , inasmuch
as his statement may well have inhibited such activities
during the crucial period preceding the July 19 election.
D. The Stanley Discharge
Chronologically, the next unfair labor practice alleged is
that, on or about July 19, the Home discharged Frances
Stanley for engaging in union activities.
Frances Stanley was employed as a laundress by the
Home between May 1973 and July 17, her last day of
work.
Stanley was the moving force in the Union's campaign
to organize the Home's employees. She initiated contact
with the Union in late April, led the Union's organizational
campaign among the employees through late April and
early May, distributing union authorization cards to em-
ployees , actively soliciting signatures to those cards among
the employees and their support of the Union, and secur-
ing 10 to 15 signed authorization cards from employees by
May 5-which cards supported the Union's May petition
for certification and May 8 request for recognition and
bargaining. By his own testimony, Bragg was assigned by
Campbell immediately after his hire (May 27) to maintain
a surveillance of Stanley (plus Kim and Chapton, two
other union activists ) for the ostensible purpose of seeing
they devoted all their paid time to work.
Sue Sarchin , who replaced Halverson as activities direc-
tor, testified that on June I Bragg told her the Home had
several "troublemakers," specifying Frances , Diane, and
Kim. Frances Stanley was the only employee at the Home
with the first name of Frances . Elaine Kim was the only
Kim employed at the Home."
Debra Erickson also testified that , about the same date,
Bragg told her there were "troublemakers" supporting the
Union who would soon be gone . About the same time,
Campbell made a statement , in the presence of Baker and
Kim, that Stanley was a "troublemaker". 18
Between May 27 and July 17, Bragg carried out
Campbell's May 27 instructions to maintain a surveillance
over Stanley and testified he observed Stanley conferring
with Chapton and other employees for what he believed to
be excessive periods of time.19
Stanley was scheduled to work on Wednesday , July 17,
and worked that day . She was scheduled to be off Thurs-
day, July 18, and Friday , July 19 , returning to work on
Saturday , July 20, and Sunday , July 21.
On July 18, Halverson telephoned employee Barbara
Holman to request that Holman attend a union meeting at
her home that evening . Holman was noncommittal. Hal-
verson was insistent that she attend . Holman was vague
about whether or not she would 20
When Holman reported for work that afternoon (she
was on the evening shift), she went to Bragg and Campbell,
told them that Stanley had telephoned her to request she
attend a union meeting that evening and called her a vul-
gar name when she expressed reluctance, and asked Bragg
and Campbell whether she had to undergo such treatment
and attend the union meeting . Campbell and Bragg as-
sured her she did not have to go to the meeting.
Stanley voted at the election conducted by the Board on
the following day, July 19, her first day off.
That same day, Bragg told Laundress Shelia Cram to get
in touch with Stanley and tell her not to come to work as
scheduled the following 2 days, Saturday and Sunday (July
20-21), and to see him the following Monday , July 22.21
When Stanley received Cram's message, she interpreted
it as a termination . She came to the Home to see Bragg, as
instructed, on the morning of July 22 ; Bragg was not in.
Stanley asked Bragg's secretary to give her a written state-
ment of the reasons for her discharge . The secretary was
noncommittal , but did not inform her she had not been
discharged . After waiting a while , Stanley left Bragg's of-
fice and went to file for unemployment compensation.
Stanley telephoned Bragg the following afternoon and
asked when she could come in and get her paycheck. In the
interim , Bragg received a copy of Stanley 's application for
unemployment compensation and reports from other em-
17 Kim and Stanley made the initial contact with the Union and were
active in its campaign . While Diane Green left the Company's employ prior
to June I , she remained active with fellow exemployee Halverson in the
union campaign.
18 The employee testimony to this effect is credited.
19 Bragg testified the employees received a one-half hour lunch period
and two 15-minute break periods each day, one break in the morning and
one in the afternoon; he further testified there was no time specified for
taking the breaks . They were to be taken at a time the workload permitted.
20 Halverson testified without contradiction that she invited Holman to
attend the meeting without revealing her identity ; Holman verified that the
caller did not reveal her identity but she believed the caller to be Stanley,
although conceding she did not know Stanley well.
21 Bragg left Ellensburg on July 19 to spend the weekend with his family
in Portland
GOLD LEAF CONVALESCENT HOME 427
ployees that Stanley had telephoned them to complain
about her discharge . Bragg stated she could come in and
get her check the following day, Wednesday, July 24. Stan-
ley saw Bragg on July 24 and asked him why she was fired.
Bragg stated he had not intended to fire her , he simply did
not want her to return to work until he had an opportunity
to talk to her concerning reports that Stanley had been
taking excessive breaks and calling employees who were
not supporters of the Union vulgar names . Stanley denied
taking excessive breaks or calling employees vulgar names
and asked that he identify and confront her with those who
stated to the contrary, so she could prove such reports were
untrue . Bragg did not identify the alleged complainants.
Bragg commented that he knew the identity of the 17 em-
ployees who voted for the Union and thought Stanley put
up the union meeting announcement at the time he re-
moved it (July 17), but learned since it was another em-
ployee . He stated he earlier had intended to give Stanley an
opportunity to present her story, but, by this time, she had
the employees so stirred up he had no choice but to termi-
nate her . Bragg testified that in view of the fact Stanley had
already filed for unemployment compensation , he had de-
cided to go along with her belief that she had been termi-
nated.
Certainly Bragg did not schedule Stanley for any work;
he also told Shelia Cram shortly thereafter that he did not
want Stanley back because, inter alia, Stanley was responsi-
ble for getting the Union together .22 Bragg later told Debra
Erickson there was no way he would ever permit Stanley to
come back.
Bragg also testified that, while he believed Stanley took
excessive breaks, this alone did not warrant a discharge, he
conceded he knew of others who took what he thought
were excessive breaks , but never disciplined anyone. He
testified it was because the alleged profanity attributed to
Stanley by Holman had occurred that he contemplated
Stanley's discharge. 3
Based on the foregoing , I find and conclude that the
Home, by Bragg , discharged Stanley and that Bragg was
motivated at least in part by Stanley's active role in the
Union's campaign in deciding to discharge her as demon-
strated by Bragg's surveillance of Stanley from the time he
came on the job, his and Campbell's reference to Stanley as
a "troublemaker," his and Campbell's seizure upon the
Holman report as justification for suspending and later ter-
minating Stanley, and Bragg's comment to Cram after
Stanley's termination that he did not want Stanley em-
ployed at the Home because of her role in "getting the
Union together." I further find and conclude that, by so
discharging Stanley , the Home violated Section 8 (a)(1) and
(3) of the Act.
22 Cram's testimony to this effect is credited.
23 While Bragg denied at some point in his testimony he discharged Stan-
ley, he stated in his pretrial affidavit that he discharged her for excessive
breaks and cursing an employee, told her on July 24 her calls to employees
caused him to change his decision from one to temporarily suspend her to a
decision to terminate her, and told both Cram and Erickson he would not
recall her.
E. The July 19 Petition
The next alleged unfair labor practice was Bragg and
Campbell's July 19 preparation and July 19-23 solicitation
of, employee signatures to a petition disavowing any desire
for continued representation by the Union.
Bragg and Campbell admitted that, shortly after the July
19 election resulted in a union victory by a vote of 17 to 15,
they prepared a petition containing the following state-
ment:
We, the undersigned employees of Gold Leaf Conva-
lescent Home, 1050 Mountain View Avenue, Ellens-
burg, Washington, do not wish to be represented by
the Public Service and Industrial Employees Union,
Local 1239, affiliated with the Laborers International
Union of North America, AFL-CIO.
Bragg and Campbell also admitted that between July
19-23 they solicited unit employees to sign the petition,
with considerable success? They further conceded they
submitted the petition to the Regional Office on the latter
date as part of the Home's objections to the election.
The Home contends, however, that Campbell and Bragg
were acting in good-faith reliance upon advice given to
them on July 19 by the Board agent who conducted the
election, to the effect that the Home could nullify the elec-
tion results by filing a petition within 5 days after the elec-
tion supported by not less than 30 percent of the unit em-
ployees disclaiming any desire for union representation.
The Board's Rules and Regulations (Sec. 102.69) permit
the filing of objections to an election or to conduct affect-
ing an election within 5 days following the furnishing of a
tally of ballots; its rules (Sec. 102.60) also permit an em-
ployer to file a petition for investigation of a question con-
cerning representation when faced with a request for recog-
nition and bargaining and an employee or group of
employees, or any individual or labor organization acting
on their behalf, and also permits an employer to file a peti-
tion for decertification of a currently certified union on the
ground it no longer represents a majority of the employees
within the unit covered by the certification.
However, the Board has ruled that an employer may not
petition for such an investigation during the year following
the certification of a union as the duly selected bargaining
representative of an appropriate unit of his employees and
may not participate in any manner in the preparation or
circulation or filing of a petition for decertification of a
previously certified collective-bargaining representative.
I find and conclude that Bragg and Campbell' s testimo-
ny that the Board agent advised them they might file what
in essence is a decertification petition within 5 days after
the election is incredible and I do not credit their testimony
to that effect. Rather, I find and conclude that Campbell
and Bragg misunderstood and confused the Board agent's
advice concerning the time and procedure within which to
follow objections to the election or conduct affecting the
election with his advice concerning the Home's right at a
later date (the end of the certification year) to question the
Union's majority representative status.
24 More than a majority of the employees within the unit signed
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However honest their confusion, it is clear their prepara-
tion of a petition for decertification and subsequent aggres-
sive solicitation of employees to sign same restrained , inter-
fered with, and coerced the employees' exercise of their
right to freely choose and support the Union, and I so find
and conclude. I further find and conclude that, by such
action, the Home violated Section 8(a)(1) of the Act.
F. Bragg's Alleged Postelection 8(a)(1) Violations
1. Alleged employee harassment
The complaint alleges that on July 30 and 31 and August
2 Bragg harassed an outspoken union supporter (Patty
Nevins) because of that support and thereby violated Sec-
tion 8(a)(1) of the Act.
Nevins was employed by the Home as a kitchen aid. She
testified that, on July 30, Bragg approached her and said
that, "At least we got rid of the one"; that she replied,
"Yes, but you still have me." And he closed with the com-
ment, "Yes, we have you and Gary." Bragg testified he did
speak to Nevins about the time in question but made the
statement that at least we got rid of the president (referring
to Nixon) and denies making the statements attributed to
him by Nevins.
At the time of the alleged exchange, Stanley had been
recently terminated. Gwen Bentley, another union activist,
had terminated her employment, and union activists Gary
Chapton and Nevins were still in the Home's employ.
Nevins also testified that on the following day Bragg
approached her again in the kitchen, stating he had inter-
viewed a man for a kitchen job and that, if he hired him,
that man would step all over Nevins , since he was anti-
union and Nevins was prounion . Nevins testified she re-
sponded by stating she was tired of hearing about the
Union all the time. Bragg denied the exchange.
Nevins further testified that, on August 2, she received a
telephone call from Bragg at her home; that while Bragg
did not identify himself, she recognized his voice. She testi-
fied Bragg stated: "This is the Union calling. There is a
meeting tonight. We are going to bomb the Home and
since you are so devoted to the Union, we are going to stick
dynamite in your nose and ears and light you up." She
testified that she laughed and Bragg closed the conversa-
tion by advising her to come in later the following day than
scheduled.
Another employee of the Home, Eva Liggitt, testified she
was with Bragg at the time he telephoned Nevins and that
Bragg stated: "This is the Union; we are going to bomb
Gold Leaf; can we count on you; you will be the bomb; we
will put dynamite in your nose and ears and throw you in."
Liggitt further confirmed Nevins' testimony that Bragg
then instructed Nevins to report later the following day
than her normal schedule. Bragg did not deny this ex-
change.
Both Nevins and her coworker in the kitchen, Kathy
Peacock, testified that Bragg regularly kidded and joked
with employees . Bragg also testified this was his normal
manner in maintaining what he believed to be good em-
ployee relations.
While I credit Nevins' testimony concerning the July 30
and 31 and August 2 Bragg statements , I do not find that
his comments constituted sufficient restraint, interference
with, and coercion with Nevins' exercise of her 8(a)(1)
rights to warrant a finding that, by those comments, the
Home violated that section of the Act. I therefore shall
recommend that those portions of the complaint so alleg-
ing be dismissed.
2. Bragg's alleged postelection renewal of his threats to
withhold wage increases from union supporters and
refusal to negotiate with the Union
The complaint alleges that, on or about August 2, Bragg
renewed his July 17 threat to withhold from union support-
ers the regular periodic increases granted to employees
upon the Home's quarterly wage reviews while continuing
to grant them to nonsupporters of the Union, and that, on
August 10, he repeated that threat and his July 17 threat to
refuse to negotiate with the Union.
Nevins testified that, on approximately August 8, Bragg
conversed with her in his office and that, in the course of
that conversation stated if the Union came in, those who
signed up with the Union would not receive any further
raises at the quarterly wage reviews while those who were
against the Union would continue to receive them.
Debra Erickson was supported by Kathy Peacock in her
testimony that, on August 10 in his office, Bragg stated if
the Union came in , there would probably be an open shop
and those with the Union would not receive any further
raises while those who were against the Union would con-
tinue to receive periodic increases and also stated he did
not think Portland would negotiate with the Union.
Bragg conceded he commented that, if an open shop
contract were to result from negotiations between the cor-
poration and the Union, the union employees' wages
would be governed by contract, while the nonunion em-
ployees' wages would continue to be adjusted quarterly by
him. Bragg denied that he also said the corporation would
not negotiate with the Union, but rather stated that all
negotiations would be conducted by representatives of the
parent corporation and the Union and he would no longer
deal directly with the employees concerning their rates of
pay, wages, hours, and working conditions.
I credit the testimony of Nevins, Erickson, and Peacock,
as partially corroborated by Bragg, and find and conclude
that Bragg, on two occasions in August, noted, repeated his
July 17 comments that there would not be any negotiations
between the Union and the Company and that, in the
event any negotiations did occur, an open shop would re-
sult and those employees who supported the Union would
have their wages governed by the contract, while he would
be free to continue to grant periodic adjustments to non-
supporters of the Union.
I further find and conclude that, by so commenting,
Bragg restrained, interfered with, and coerced those em-
ployees' exercise of their Section 7 rights and thereby vio-
lated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. At all times pertinent, the Home was an employer
GOLD LEAF CONVALESCENT HOME 429
engaged in commerce in a business affecting commerce
and the Union was a labor organization, as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
2. At all times pertinent, Lynn Campbell and John
Bragg were supervisors and agents of the Home acting on
its behalf.
3. The Home violated:
(a) Section 8(a)(1) of the Act by (1) Bragg's July 17 pro-
hibition of union solicitation on the premises of the Home;
(2) Bragg's July 17 and August 2 and 10 threats to cease the
Home's previous practice of granting quarterly wage re-
views and increases to employees supporting the Union;
(3) Bragg's July 17 and August 10 threats that the parent
corporation would not negotiate with the Union; and (4)
Bragg and Campbell's July 19-23 preparation of a decerti-
fication petition and solicitation of employee signatures
thereto.
(b) Section 8(a)(1) and (3) of the Act by discharging
Frances Stanley because she engaged in union activities.
4. The Home did not otherwise violate the Act.
The aforesaid unfair labor practices affect interstate
commerce as defined in the Act.
THE REMEDY
Having found that the Home engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act,
I shall recommend that the Home be directed to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the purposes of the Act.
It shall be recommended that the Home be ordered to
cease and desist from prohibiting its employees' engage-
ment in union solicitation during their nonworking periods
on the premises of the Home, threatening to withhold and
withholding quarterly wage reviews and increases from
those of its employees who support or supported the
Union, threatening to refuse to negotiate with the Union
(or any other labor organization which is certified as the
exclusive collective-bargaining representative of the
Home's employees) concerning their rates of pay, wages,
hours, and working conditions, 5 preparing petitions to de-
certify the Union (or any other labor organization previ-
ously certified as the exclusive collective-bargaining repre-
sentative of its employees) and soliciting its employees'
signatures thereto, and discharging or otherwise disciplin-
ing its employees for engaging in activities on behalf of the
Union or any other labor organization.
It shall also be recommended that the Home be ordered
to offer Frances Stanley immediate and full reinstatement
to her former job or, if her former job no longer exists, to a
substantially equivalent job without prejudice to her se-
niority and other rights and privileges, and to make her
whole for any wage losses she may have suffered by pay-
ment to her of the sum of money she would have earned
25 On February 7, 1974, the Regional Director for Region 19 issued an
order granting the Union's petition to revoke its September 12, 1974, certifi-
cation upon its disclaimer of any continued interest in representing the
Home's employees.
from the date of her discharge to the date she is reinstated,
less any ret earnings she may have received during the
period. Her lost wages shall be computed in accordance
with the formula prescribed in F. W. Woolworth Company,
90 NLRB 289 (1950), with interest at 6 percent per annum,
computed in accordance with the formula prescribed in
Isis Plumbing and Heating Co., 138 NLRB 716 (1962).
It shall be further recommended that those portions of
the complaint alleging unfair labor practices other than
those found heretofore be dismissed.
Upon the basis of the foregoing findings of fact, conclu-
sions of law and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 26
Respondent, American Care Centers, Inc., d/b/a Gold
Leaf Convalescent Home, Ellensburg, Washington, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Prohibiting its employees from engaging in union so-
licitation during their nonworking hours on the premises of
the Home.
(b) Threatening to withhold and withholding quarterly
wage reviews and increases from those of its employees
who support or supported the Union or any other labor
organization.
(c) Threatening to refuse to negotiate with the Union (or
any other labor organization when and if certified) as the
exclusive collective-bargaining representative of an appro-
priate unit of the Home's employees concerning their rates
of pay, wages, hours, and working conditions.
(d) Preparing, circulating, and soliciting signatures to
decertification petitions designed to nullify the previous
certification of the Union or any other labor organization
as the exclusive collective-bargaining representative of an
appropriate unit of the Home's employees.
(e) Discharging or otherwise disciplining its employees
for engaging in union activities.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Offer Frances Stanley immediate and full reinstate-
ment to her former job or, if her former job no longer
exists, to a substantially equivalent job without prejudice to
her seniority and other rights and privileges, and make her
whole in the manner set forth in the "Remedy" section of
this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all rec-
ords necessary for the determination of the amount of
backpay and other payments and obligations due under
this recommended Order;
26 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its Ellensburg, Washington, premises copies upon receipt thereof, and be maintained by it for 60 con-
of the enclosed notice marked "Appendix B." 27 Copies of secutive days thereafter, in conspicuous places, including
said notice, on forms provided by the Regional Director all places where notices to employees are customarily post-
for Region 19, after being duly signed by an authorized ed. Reasonable steps shall be taken by the Home to ensure
representative of the Home, shall be posted immediately that such notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
27In the event that the Board 's Order is enforced by a Judgment of a dent has taken to comply herewith.
United States Court of Appeals, the words in the notice reading "Posted by IT IS FURTHER ORDERED that the complaint be dismissed
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of insofar as it alleges violations of the Act not specifically
the National Labor Relations Board" found.