Liberty House Nursing Home

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1194 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Liberty Nursing Homes, Inc., d/b/a Liberty House
Nursing Home of Lynchburg and United Food and
Commercial Workers International Union, Local
278, AFL-CIO. Cases 5-CA-8847-1, 5-CA-8891,
and 5-RC-10171
September 28, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On September 22, 1978, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a brief in support thereof.
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
conclusions2 of the Administrative Law Judge, as
modified herein.
Contrary to the Administrative Law Judge, we find
that Respondent promulgated and maintained an un-
lawful rule prohibiting all discussion about the Union
at all times in those areas of the nursing home, other
than immediate patient care areas, where patients or
visitors could overhear such conversations.
The record herein reveals that prior to the com-
mencement of union activities employees were per-
mitted to converse freely. Even after the advent of the
Union Respondent permitted discussion on other top-
ics in those areas where discussion about the Union
was forbidden under the rule in question. A rule
which restricts only conversations related to unions is
discriminatory and therefore unlawful.
Accordingly, we find that Respondent violated Sec-
tion 8(aX)(1) of the Act by promulgating and maintain-
ing the aforesaid rule.
I Respondent has excepted to certain credibility findings made by the Ad-
mnnistrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 In adopting the holding of the Administrative Law Judge that Respon-
dent unlawfully discharged Margaret Martin. we place no reliance upon his
conclusion that the discipline meted out to her bore "no reasonable relation-
ship to any business justification," as it is neither necessary nor proper for us
to substitute our business judgment for that of an employer in determining
the issues raised by Martin's discharge.
' In these circumstances we find it unnecessary to evaluate Respondent's
AMENDED CONCLUSIONS OF LAW
Insert the following after paragraph 4 of the Ad-
ministrative Law Judge's Conclusions of Law and re-
number the subsequent paragraph accordingly:
"5. By promulgating and maintaining a rule pro-
hibiting its employees from engaging in conversations
concerning unions on its premises, other than in im-
mediate patient care areas, where patients and visi-
tors might overhear such conversations, the Respon-
dent has engaged in unfair labor practices in violation
of Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Lib-
erty Nursing Homes, Inc., d/b/a Liberty House
Nursing Home of Lynchburg, Lynchburg, Virginia,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union activities.
(b) Engaging in surveillance of employees in a
manner impeding their exercise of rights conferred in
Section 7 of the Act.
(c) Promising benefits to employees in order in in-
duce them to refrain from designating the Union as
their representative.
(d) Threatening employees with less desirable
working conditions if the Union is designated.
(e) Instructing employees to report on the union
activity of their fellow employees.
(f) Discouraging membership in any labor organi-
zation by discharging, refusing to reinstate, or in any
other manner discriminating against employees with
regard to their hire, tenure of employment, or any
term or condition of employment.
(g) Promulgating and maintaining a rule prohibit-
ing employees from engaging in conversations con-
cerning unions on its premises, other than in immedi-
ate patient care areas, where patients and visi-tors
might overhear such conversations.
(h) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their right to self-organization, to form, join, or assist
the aforesaid Union or any other labor organization,
to bargain collectively with representatives of their
own choosing and to engage in concerted activities
for the purpose of collective bargaining and other
mutual aid or protection, or to refrain from any or all
such activities.
rule under the rationales set forth in Beth Israel Hospital v. N.L.R.B., 437
U.S. 483 (1978), and N.L.R.B. v. Baptist Hospital, Inc.. 442 U.S. 773 (1979).
245 NLRB No. 153
1194
LIBERTY HOUSE NURSING HOMES
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer immediate reinstatement to Margaret
Martin to her former position or, if not available, to a
substantially equivalent position, discharging any re-
placement if necessary, and make her whole for all
earnings lost by reason of the discrimination against
her as set forth in the remedy section of the Adminis-
trative Law Judge's Decision.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Rescind its rule restricting the areas in which
employees may discuss unions insofar as it applies to
other than immediate patient care areas.
(d) Post at its place of business in Lynchburg, Vir-
ginia, copies of the attached notice marked "Appen-
dix."4 Copies of said notice, on forms provided by the
Regional Director for Region 5, after being duly
signed by a representative of Respondent, shall be
posted by it immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
violations of the Act not herein found.
[Direction of Second Election and Excelsior footnote
omitted from publication.]
4 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice "Posted by Order of the National
Labor Relationa Board" shall read "Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board, having found
after a hearing that we violated the National Labor
Relations Act, ordered us to post this notice and to
carry out its provisions.
WE WILL NOT coercively interrogate employ-
ees concerning their union activities.
WE WILL NOT promise benefits to discourage
our employees from designating a union as their
representative.
WE WILL NOT threaten our employees with
more onerous conditions at work should they
designate a union as their representative.
WE WILL NOT tell our employees to report on
the union activity of their coworkers.
WE WILL NOT engage in surveillance of em-
ployees in a manner precluding their right to en-
gage in union activity protected by Section 7 of
the Act.
WE WILL NOT discourage employees from en-
gaging in activity on behalf of United Food and
Commercial Workers International Union, Local
278, AFL-CIO, or any other labor organization,
by discharging and refusing to reinstate, or by in
any other manner discriminating against em-
ployees with regard to their hire, tenure, or any
other term or condition of employment.
WE WILL NOT promulgate, maintain, or en-
force any rule or regulation which prohibits our
employees from engaging in conversations con-
cerning unions on the nursing home premises,
other than in immediate patient care areas,
where patients and visitors might overhear such
conversations.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form, join, or assist United Food and Com-
mercial Workers International Union, Local 278.
AFL-CIO, or any other labor organization, or to
engage in concerted activities for the purpose of
other mutual aid or protection as guaranteed in
Section 7 of the Act or to refrain from any and
all such activities.
WE WILL offer immediate reinstatement to
Margaret Martin, to her former position or, if
such position no longer exists, to a substantially
equivalent position, without prejudice to her se-
niority or other rights and privileges, and WE
WILL make her whole for any loss of pay she may
have suffered by reason of our discrimination
against her, with interest.
LIBERTY NURSING HOMES, IN(., D(B(EA
LIBERTY HOUSE NURSING HOME OF LYNCH-
BURG
DECISION
STATESMEN1 OF Til CASE
JOEL A. HARMATZ. Administrative Law Judge: Upon an
initial unfair labor practice charge filed on September 6.
1195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1977, a consolidated complaint was issued on November
23, 1977, alleging that Respondent engaged in various in-
dependent violations of Section 8(a)(1) of the Act and vio-
lated Section 8(a)(3) and (1) of the Act by discharging and
refusing to reinstate employee Margaret Martin. In its duly
filed answer Respondent denied that any unfair labor prac-
tices were committed.
Pursuant to a representative petition filed in Case 5-RC-
10171 on August 24, 1977, the Acting Regional Director for
Region 5 issued a decision and direction of election on No-
vember 11, 1977, resulting in a secret-ballot election held on
December 2, 1977. The tally of ballots showed that of ap-
proximately 58 eligible voters, 25 cast valid ballots for and
29 against, the Petitioner, with 4 nondeterminative chal-
lenges. Thereafter, the Petitioner filed timely objections to
the election. Subsequently, on January 25, 1978, the Re-
gional Director for Region 5 issued a "Supplemental Deci-
sion, Order Consolidating Cases and Notice of Hearing," in
which he overruled all of petitioner's objections except
those numbered 1, 2, 3, 4, 6, 14, 15, 16, and 17. With respect
to the latter, he concluded that material issues of fact ex-
isted that were best resolved on the basis of record evi-
dence. Accordingly, the Regional Director ordered that Ob-
jections 1, 2, 3, 4, 6, 14, 15, 16, and 17 be consolidated with
the issues raised in the consolidated complaint in Cases 5-
CA-8847-1 and 5-CA-8891 for hearing and Decision by
an administrative law judge.
Pursuant thereto, a hearing was conducting before me on
April 17 and 18, 1978, in Lynchburg, Virginia. After close
of the hearing briefs were filed on behalf of the General
Counsel and Respondent.
Upon the entire record in this consolidated proceeding,
including my personal observation of the witnesses while
testifying and their demeanor and consideration of the post-
hearing briefs, I hereby find as follows:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT EMPLOYER
Respondent is a Virginia corporation engaged in the op-
eration of nursing homes at various locations including
Lynchburg, Virginia, the sole facility involved in this pro-
ceeding. During the 12-month period preceding issuance of
the complaint, a representative period, Respondent re-
ceived gross revenues in excess of $ 100,000 from said opera-
tion and purchased products valued in excess of $50,000
delivered from points located outside the Commonwealth
of Virginia.
The complaint alleges, the answer admits, and I find that
at all times material herein Respondent is and has been an
"employer" as defined in Section 2(2) of the Act engaged in
"commerce" and in operations "affecting commerce" as de-
fined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
at all times material herein Retail Clerks International
Union, Local 278, AFL-CIO, is and has been a labor or-
ganization within the meaning of Section 2(5) of the Act.
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
This case is essentially concerned with alleged unfair la-
bor practices during the critical period preceding an elec-
tion lost by the Union by a four-vote margin. The com-
plaint sets forth a number of independent 8(a)(1)
allegations which are also subject of objections filed by the
Petitioner Charging Party in Case 5-RC-10171. Apart from
the challenge to the validity of the election, a further vital
issue is presented by the discharge of Margaret Martin, the
sole act of discrimination charged against Respondent
herein.
B. Background
The nursing home involved here is one of several oper-
ated by Respondent. It is located in Lynchburg, Virginia,
where Respondent employs some 50 nonsupervisory em-
ployees. There is no history of collective bargaining for any
of these employees.
Union activity began at the Home in midsummer 1977;
on August 16, 1977,' the Union effected a formal demand
for recognition. On August 18 employees were assembled
by Respondent for delivery of a prepared speech which ex-
pressed Respondent's antiunion sentiment and instructed
employees, inter alia, as to circumstances under which they
would be permitted to engage in union solicitation. The
speech also informed employees that threats to coworkers
would not be tolerated and result in discharge.
Thereafter, on August 24, the Union filed its election pe-
tition in Case 5-RC-10171. In later August or early Sep-
tember Respondent's administrator, Justine Stadtherr, em-
barked on an investigation to ascertain whether and the
degree to which acknowledged supervisors had been en-
gaged in the effort to secure the showing of interest support-
ing the aforementioned election petition.
On September 6 Margaret Martin was discharged on the
assigned ground that she had threatened a coworker during
a discussion concerning the Union.
On September 12, 1977, Ralph Lemon delivered another
speech to employees in which he informed employees of the
Martin discharge and again urged employees to report any
threats made to them. Thereafter, on November 31,2 Lemon
gave his final antiunion address. The election was held on
December 2.
C. Concluding Findings
1. Interference, restraint, and coercion
a. The encouragement of employees to report on the union
activity of their coworkers
The allegations of the complaint relative to this subject
matter are predicated upon statements attributed to Ralph
i Unless otherwise indicated all dates refer to 1977.
2 Insofar as the record discloses, except as noted here, no other formal
antiunion speeches were given during the campaign.
1196
LIBERTY HOUSE NURSING HOMES
Lemon, Respondent's executive vice president, and Kathy
Jones, Respondent's in-service director. Stadtherr, the ad-
ministrator, testified that on August 18 Bill and Ralph
Lemon delivered a prepared speech to different groups of
employees.' In relevant part, that speech expressed as fol-
lows:
Furthermore, neither I nor any one else in the nursing
home is going to threaten you or try to scare you. How
you vote is your business. Let me add here that we also
will not allow our employees to be threatened by union
organizers or other employees....
If any of you are threatened we want to know about it.
We will take immediate action to protect you.
On September 12, following the discharge of Margaret
Martin, Lemon delivered another speech in which he in-
formed employees:'
. . .if any of you are threatened we want to know
about it. One of our employees Margaret Martin has
been discharged because she threatened another em-
ployee. We are not going to put up with this. This
union is not going to scare Liberty Nursing Homes
into rolling over and playing dead.
* *
Let me repeat, if any of you are threatened by any one,
we want to know about it. This nursing home is going
to protect your right to make a free choice in this mat-
ter. We are advising our employees to have a tap put
on their phones by the phone company so any threat-
ening calls can be traced.
The above-described allegation also derives support from
Hannah Cabbell's testimony concerning her initial hire in-
terview, which was conducted by Kathy Jones, an acknowl-
edged supervisor. According to the credited uncontradicted
testimony of Cabbell, Jones told her "that the Union was
trying to get in, and that she didn't want any one harrassing
me to vote for the Union, or whether not to vote for the
Union." Jones informed Cabbell that she was to report such
harrassment to Jones, whereupon the individual responsible
would be discharged.
Citing a number of Board decisions, the General Counsel
contends that the statements attributed to Lemon and Jones
were so vague as to invite employees generally to inform on
fellow workers who were engaged in union activity. I agree
with General Counsel that the request by Jones that Cab-
bell report in the case of "harrassment" violated Section
8(a)(I). That statement "was broad enough to cover mere
attempts by union proponents to persuade employees to
sign cards." See, e.g., Bank of St. Louis, 191 NLRB 669, 673
(1971), enfd. 456 F.2d 1234 (8th Cir. 1972).' However, I am
3 See G.C. Exh. 7.
4 See G.C. Exh. 8.
5
See also Sunnyland Packing Company, 227 NLRB 590 (1976), enfd. 557
F.2d 1157 (5th Cir. 1977); Lutheran Hospital of Milwaukee. Inc., 224 NLRB
176, 178 (1976); Poloron Products of Mississippi, Inc., 217 NLRB 704, 707
(1975).
In his brief the General Counsel points out an "apparent inconsistency" in
the Board's approach to this issue in view of its holding in Whircroft House-
boat Division, North American Rockwell Corporation, 195 NLRB 1046 (1972).
There, Chairman Miller and Member Jenkins, with Member Fanning dis-
not persuaded that the same result is warranted with re-
spect to the statement made in the prepared speeches deliv-
ered by Ralph Lemon. It is true that Lemon did not afford
specific guidance as to the nature of conduct which would
be regarded as amounting to "threats." and hence, as the
General Counsel correctly observes, that definition was left
to employees. Of concern, however, is the fact that while
reasonable minds differ as to what constitutes a threat, such
a standard does approach a level of specificity which,
though not without pitfall, must be assessed with a iew to
the pragmatics of maintaining order and plant discipline in
the course of a union campaign. The General Counsel's
position raises grave concern as to whether employers, in
the interest of supressing such conduct should it emerge.
may elicit employee cooperation in this regard at all. For,
as the argument goes. he would condition the legitimacy of
such communication with employees upon detailed explica-
tion which beyond ambiguity specifies the threats to be re-
ported. Such a requirement is sufficiently onerous as to be
tantamount to effective denial of management's right to en-
force plant discipline in this respect.
On balance, it is my view that absent clear precedent to
the contrary that the use of the term "threatened" was suf-
ficiently specific to require in this instance any potential
infringement of Section 7 of the Act to yield to the right of
employers to assure that its work force, in the course of an
organizational campaign, is insulated from this form of co-
ercion at the hand of employee organizers.'
Accordingly, I find that Respondent violated Section
8(a)( ) of the Act by virtue of the statement made by Kathy
Jones but dismiss insofar as that allegation rests upon the
prepared speeches given by Ralph Lemon.'
b. Ralph Lemon ' "loyqaltv" statement
The complaint alleges that Respondent violated Section
8(a)(l) through Raplh Lemon's expression of appreciation
for the loyalty of those employees who had expressed to
Respondent their opposition to the Union.
On November 31 Ralph Lemon delivered a prepared
speech to employees of the nursing home. (See G.C. Exh.
9.) Included in his remarks was the following:
Many of you have told us of your support for the
Nursing Home. We appreciate you loyalty. It looks
like the Union's going to lose.
The General Counsel contends that said comment equated
loyalty with union opposition, thereby implying that union
senting, reversed an administrative law i udge's finding of such a violation. As
the full context in which the statement under question in that case was made
is not apparent either from the Board's decision or the judge's Decision. the
clear mandate manifested in the overwhelming thrust of Board decisions in
this area is considered the more forceful precedent.
I This view derives some suppon from Bank of St. Louis. supra, where
similar language was involved. In that case, at 673. the Administrative Law
Judge found the 8(aXI) violation but did so solely on the employer's refer-
ence to "constant badgering." The reasoning and conclusion of the judge did
not reach the fact that employees were also urged to report if they were
"threatened in any way."
7 The General Counsel. in his brief, urges that the statements in the
speeches be considered in the light of the discharge of Margaret Martin as
well as the discharge of an employee at another location I fail to ee hos
these references alter the result.
1197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity was synonymous with disloyalty. In my opinion
this statement failed to exceed protected guarantees af-
forded by Section 8(c) of the Act. It was a general reference
made in a formal speech to a group of employees.8 It did
not imply that past benefits conferred might stand in jeop-
ardy,9 nor did it suggest that those who were disloyal might
be prejudiced in their work relationship.' In sum, absent
precedent deeming such expressions of gratitude to be per
se violations of the Act it is my conclusion that this abstract
reference did not violate Section 8(a)(1).
c. The "vote no" badge
It is undisputed that on the day of the election represen-
tatives of management prepared badges bearing the mes-
sage "vote no," which were worn by supervisors that day.
Betty Pritchett, a housekeeping employee, relates that on
the morning of the election her immediate supervisor, Essie
Branham, asked her if she wanted to wear a "vote no"
badge. Pritchett declined. When examined by Respondent's
counsel as to whether she had ever offered a "vote no"
badge to Pritchett, Branham simply testified, "I can't recall
whether I did or not." I credit Pritchett. Inasmuch as Bran-
ham's offer constituted a proscribed form of interrogation
likely to bare an employee's union sentiment, Respondent
thereby violated Section 8(a)(Xl1) of the Act.
d. The promise of benefits to dietary employees
Respondent, in operating the dietary departments in its
nursing homes, utilizes the services of an independent con-
tractor, Dietetic Consultants. The extent of Dietetic Con-
sultants. The extent of Dietectic Consultants involvement
varies. In several homes it actually employees dietary em-
ployees and their supervisor, who are directly responsible to
Delbert May of Dietetic Consultants. At Lynchburg, how-
ever, Diatetic Consultants is responsible only for the man-
agement of the dietary department. It employs directly
Shirley Correia, an admitted agent of Respondent, who in
conjunction with Administrator Stadtherr, supervises die-
tary employees. The latter are on the payroll of Respon-
dent. Correia, on the other hand, is on the payroll of Di-
etetic Consultants.
With this background in mind, the evidence germaine to
the instant allegation reveals that on December 1 employee
Francis Ford of the dietary department telephoned Correia
concerning a personal matter. According to Ford, Correia
stated that she had been planning to call Ford. She went on
to inform Ford that Delbert Mays was thinking about tak-
ing over the entire kitchen, in which case the employees
'Cf. Radio Station WISN, Division of Hearst Corporation, 169 NLRB 699.
701 (1968). In that case a panel majority (Members Fanning and Brown,
with Chairman McCulloch dissenting), found an (a)(1) violation where a
known employee organizer was told. in what appeared to have been a pri-
vate interview concerning the latter's conduct during working hours, that the
employer knew that the employee was "out to get us."
' Cf. Oscar Enterprises, Inc., Omco, Inc., Halvin Products, Co., 214 NLRB
823 (1974), where such a violation was found where the employer first re-
minded employees that they were allowed to work in the past when things
were slow but then stated: ". . .in the end all of you are turning against me."
O Cf. Super Thrift Markets, Inc., tia Enola Super Thrift, 233 NLRB 409
(1977).
would not have to punch timecards. She also expressed that
Mays had expressed the view that warning slips had been
given to dietary employees under unfair conditions. Correia
concluded by indicating that the change in management
could come about if the employees "would reconsider."
Ford then questioned, Correia, "reconsider what?" To this
Correia allegedly responded, "just reconsider.""
Correia admitted to such a phone call. She claimed, how-
ever, when examined by Respondent's counsel, that the ref-
erence to May was inspired by a conversation that day at
work in which Ford expressed that May was a nice guy and
that she would like to work for him. In this earlier conver-
sation Correia stated that she made no comment. Later that
night during the telephone conversation Correia told Ford
that she had mentioned Ford's earlier comment to May,
who responded "that maybe when everything is over and
everything is settled . . . everybody will go on my payroll
because they are in the other nursing homes." Correia de-
nied making any statement that if this occurred dietary em-
ployees would not have to punch a timeclock, and she also
denied making any statement that with this change employ-
ees would not receive nitpicking or ridiculous warning slips.
I credit Ford, who was actively employed by Respondent
at the time she testified. Correia had prepared a notation on
December 2, the very next day, with respect to the subject
matter of their conversation. On cross-examination of Cor-
reia it was disclosed that on the previous day Administrator
Stadtherr ordered Correia to issue warning notices to two
employees, including Ford. Correia's record of the conver-
sation also reveals that May appeared at the Lynchburg
home on December I and inquired as to whether there were
any problems. May told Correia to inform the dietary em-
ployees that after everything was over he was going to put
everyone in the department on his payroll. Correia's note
reveals that with such a change she would pull and check
timecards of dietary employees. She acknowledged that un-
der this arrangement these timecards would not actually be
seen by Respondent.
As a witness Correia was defensive and lacking in can-
dor. On the other hand, stripped of self-serving matter, her
diary entries enforce the probability of Ford's account.
Based on the latter I find that Correia held out to Ford the
prospect that with rejection of the Union, May would take
over the dietary department and bring about a more lenient
policy with respect to warnings concerning tardiness. Re-
spondent thereby violated Section 8(a)(1) of the Act.
e. Threats of more onerous working conditions
The complaint alleges that Respondent violated Section
8(a)(1) through statements by Stadtherr to the effect that
working conditions would be more difficult upon designa-
tion of the Union. In support, the General Counsel pre-
sented three witnesses: Carol Friess, a former employee
who had been discharged in October, and Eva Smith and
Ruby Johnson, both of whom were actively employed by
Respondent at the time of the hearing.
' Ford credibly testified that she had been a member of the employee
organizing committee. Correia admitted that she was mindful of Ford's pro-
union leanings.
1198
LIBERTY HOUSE NURSING HOMES
Friess testified that in September. during a lunchbreak,
certain employees, in the presence of Stadtherr, were dis-
cussing the tension that accompanied the union campaign
when Stadtherr interjected "you ain't seen nothing yet ...
things are going to get more up tight, and you all are going
to be more nervous." Eva Smith testified to a second inci-
dent, in which Stadtherr assertedly made a similar state-
ment during a break in the dining room.
Johnson testified that during the course of an investiga-
tion by Respondent into the possibility of supervisory par-
ticipation in the organization campaign she was called into
the office by Stadtherr. In the course of the ensuing inter-
view, Stadtherr allegedly told Johnson that if the Union
was voted in that during negotiations sick time and paid
holidays would he held up for possibly as long as 12 to 15
months. Stadtherr, in a fashion not inconsistent with the
above statements attested to by Friess and Smith, went on
to indicate that "if the Union came in, times would be even
worse."
Stadtherr admitted to coversations in the dining room
with employees in which the "tension" in the nursing home
was discussed. She also admits to telling employees that in
the event of collective bargaining there would be a freeze on
benefit increases pending negotiations. The testimony of the
General Counsel's witnesses attributes statements to Stad-
therr which are of common stripe, reflecting a common pat-
tern. In the circumstances I regard their testimonies as the
more reliable. I credit them, and since the statements did
not dispel the implication that the adversities would emerge
from sources other than the Employer I find that Respon-
dent thereby violated Section 8(a)(1) of the Act.
f. The polling of employees
Shortly after the Union filed its representation petition
Stadtherr, acting on a report that LPNs were engaging in
union activity, conducted an investigation pertaining to the
involvement of these statutory supervisors. The interviews
were not limited to the LPNs but extended to 15 to 20
nonsupervisory employees who were eligible to participate
in the election.
Precautions were taken designed to furnish a noncoercive
format to these interviews. Thus, at the outset of each Stad-
therr read a statement informing employees as to the Em-
ployer's purpose and expressly disavowing any intention of
probing the individual's union sympathy. Assurances were
given that no attempt was being made to threaten or scare
the employee involved, and all were informed that no repri-
sals would be taken no matter what the interview revealed.
The LPNs and others were told that participation in the
interview was voluntary.
Each of those interviewed was asked the following ques-
tions:
1. What supervisors signed cards?
2. Did the supervisor attempt to get employees to
sign?
3. Did the employees use the supervisor's name to
get the card signed?'
2 See G.C. Exh. 5(a) and (b).
In addition to the foregoing, Stadtherr admitted to advising
certain of the interviewed employees that she knew that
three LPNs had signed cards, while going on to question if
the employee could reveal the identity of any LPNs within
this group.'
The legitimacy of employer polls has been dealt with
rather extensively in precedent. Such cases as Blue Flash
E.press, Inc., 109 NLRB 591 (1954):; Johnrnie's Poulro Co.
and John Bishop Poultry Co., Successor. 146 NLRB 770
(1964) enfd. 344 F.2d 617 (8th Cir. 1965): and Srucksnes
Construction Co., Inc., 165 NLRB 1062 (1967), on remand
from 353 F.2d 852 (D.C. Cir. 1965), attest to the continuing
effort on the part of the Board to accomodate the tension
between employee and employer interests in this area. In its
most recent pronouncement the Board adopted the follow-
ing as its present standard:
Absent unusual circumstances, the polling of employ-
ees by an employer will be violative of Section 8(a) 1)
of the Act unless the following safeguards are ob-
served: (I) the purpose of the poll is to determine the
truth of the Union's claim of majority,'4 (2) this pur-
pose is communicated to the employees. (3) assurances
against reprisals are given, (4) the employees are polled
by secret ballot, and (5) the employer had not engaged
in unfair labor practices or otherwise created a coer-
cive atmosphere.
The General Counsel challenges the legality of the inter-
views on several grounds. First, it is argued that the scope
and breadth of the investigation exceeded what was reason-
ably necessary to vindicate the Employer's interest. Second,
the General Counsel urges that the investigation, having
been preceded by the August 18 antiunion speech given by
Ralph Lemon and in view of the subsequent unfair labor
pratices, was conducted in a coercive atmosphere and hence
in no event could be considered legitimate.
Although the avowed purpose of the poll in this case was
not an assessment of "the truth of a union's claim of major-
ity" the effort by the Employer to determine the degree
supervisory taint, in the face of a pending representative
petition, involved a matter of legitimate concern and
formed an acceptable premise for what transpired. Con-
trary to the General Counsel, I have no quarrel with the
scope, extent, or manner in which the Employer elected to
develop the information relevant to such purpose. '
' The testimony of employee Ruby Johnson, insofar as she attrinbutes an-
tiunion statements or threatening remarks to Attorney Robrecht. Ralph
Lemon, or Stadtherr. in the course of these interviews is rejected. Although I
have credited certain portions of Johnson's testimony where she was cor-
roborated, it was my impression that Johnson had no clear capacity for
recalling precisely when or under what circumstances statements were made.
While I do not necessarily disbelieve that the various statements she attri-
butes to Respondent's representatives were actually made, it was m distinct
impression that Johnson was not capable of accurately isolating the particu-
lar statements to any of such representatives other than Stadtherr or to par-
ticular interviews or speeches.
14 Although the stated condition is qualified, precedent reveals that it is
met where the poll is conducted for a purpose which generally is considered
legitimate under statutory policies.
'' While Stadtherr, perhaps, played a guessing game with employees by
asking whether they knew the identity of three supervisors who had been
reported as card signers this aspect of the interviews was hardly calculated to
elicit information as to employee union leanings or attitudes. It represented a
(Continued)
1199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The crucial issue relates to the General Counsel's claim
that Respondent failed to meet the condition that "the em-
ployer has not engaged in unfair labor practices or other-
wise created a coercive atmosphere." In my opinion, the
evidence does not disclose that a coercive atmosphere ex-
isted at the time of the poll. It is true that on August 18 an
antiunion speech was made to employees, but insofar as
this record discloses the speech was devoid of any unlawful
pronouncements. No unfair labor practices were committed
in the interim. 6
On the other hand, it is clear that in the period that fol-
lowed the poll the Employer engaged in various unfair la-
bor practices. No precedent is cited to the effect that an
otherwise legitimate employee polling is deemed unlawful
by subsequent unfair labor practices. Further, a distinction
might be recognized between prefatory unfair labor prac-
tices and those occurring after the polling. Thus, in the case
of the former employees might well in the course of the
interview be laboring upon the effects of unlawful coercion,
thereby justifying remedies which condemn private inter-
views conducted by employees against such a foreground.
With respect to post polling unfair labor practices, however.
the employer's right to conduct investigations in areas of
legitimate concern should not be denied ipsofacto because
it engaged in unfair labor practices which neither impugned
the noncoercive nature of the poll nor revitalized the poll as
a coercive tool interwoven with a subsequent unlawful cam-
paign to defeat organization. Considering the poll which
took place in light of the unfair labor practices found
herein, I am not persuaded that the poll subsequently as-
sumed a coercive character, that it had a tendency to do so,
or that the fact that it was conducted in any way impeded
employee rights guaranteed by Section 7 of the Act. Ac-
cordingly, I shall dismiss the allegations that Respondent
violated Section 8(a)(1) in this regard.
g. The no-solicitation rule
The speech delivered by Respondent to employees on
August 18 included the following reference:
Union solicitation is not permitted on company time,
but is allowed on your own time or break time and
lunch time, not on work time.
This expression is not challenged by the General Counsel
as presumptively unlawful. However, the General Counsel
points to concessions by Stadtherr that she considered and
in fact informed employees that the rule extended to mere
discussions of the Union. While there is no evidence that
employees were restricted by virtue of any orally promul-
gated rule or policy from discussing the Union during break
periods, and while it appeared that they were so informed,
form of interrogation somewhat akin to cross-examination, and, insofar as
appears on this record, Stadtherr used this ploy on an isolated basis. I am
unwilling to find that it posed a sufficient threat to employee rights to taint
the legitimacy of the interview.
"ICf. Eastern Washington Distributing Company, Inc., 216 NLRB 1149,
1154 (1975), where in the words of the Board, "immediately preceding the
poll, Respondent made an illegal offer of an alternative insurance plan to the
employees if they rejected unionization." Also Cf. Schreiber Freight Lines,
Inc., 204 NLRB 1162, 1164 (1973). where the interrogation of employees was
unaccompanied by any of the safeguards against coercion.
employees were informed that they were not to talk about
the Union in areas where the public or patients could hear
such communication. This did not reach the dining room or
areas in which employees took their breaks or worked in
isolation from the public and patients."
The restrictions imposed on union activity by virtue of
the rule announced in the prepared speech and articulated
in individual confrontations with employees by Stadtherr
did not offend the policy endorsed by a majority of the
United States Supreme Court in Beth Israel Hospital v.
N.L.R.B., 46 U.S.L.W. 4764, June 22, 1978. This is so de-
spite the rule's application to mere discussion of the Union
in patient care and public areas of the home. The claim by
the Respondent that the Union issue was emotional and
one which could be potentially disruptive of health care
was neither farfetched nor subject to challenge by evidence
which would tend rationally to negate Respondent's appre-
hension in that regard. I find that Respondent did not vio-
late Section 8(a)(l) of the Act in this respect.'8
h. The presence of supervisors at employee breaks
It is undisputed that beginning in September Stadtherr,
together with Supervisors Jones, Organ, and Lenihan, de-
parted from the practice of taking breaks in the private
dining room. Instead, they deliberately mingled with em-
ployees in the dining area utilized by the latter during their
break and lunch periods. Indeed, the degree of supervisory
involvement is marked by two incidents whereby Supervi-
sor Organ followed two employees who left the dining area
to seek the privacy of a "TV lounge" on one occasion, and
on another where she followed two employees who elected
to change tables because of the presence of supervisors.
This change was admittedly prompted by Respondent's in-
terest in communicating with employees during their free
time as to the Union issue.
This preemption of nonworking time possessed all ele-
ments of unlawful surveillance and beyond that constituted
a pronounced impediment to the employees' right to utilize
the only opportunity during working hours in which they
could engage in Section 7 activity at the home without risk
of violating Respondent's announced rules. I find that Re-
spondent thereby violated Section 8(a)(1) of the Act.
i. Increased supervision
The complaint alleges that Respondent violated Section
8(a)(1) by the increased supervision of employees on the
part of Stadtherr, Organ, and Jones during the course of the
union campaign.
"7 That Respondent did not contemplate extension of the rule to mere
discussion of the Union under conditions where the public or patients were
not a consideration is evident from the discharge of Margaret Martin. Thus,
although Martin was known to have engaged in a worktime conversation
concerning the Union, Respondent advances no claim that her participation
therein was unprotected or offensive to the Employer's policies. The conver-
sation occurred under conditions and in an area remote from patient or
public contact.
B1 The fact that Respondent, prior to inception of the union campaign, had
no rule restricting union activity does not alter the result. While it mght be
said with accuracy that only union activity inspired promulgation of the rule,
this does not mean that the operators of a nursing home are unable to
control such activity legitimately simply because organization activity was
not anticipated.
1200
LIBERTY HOUSE NURSING HOMES
The evidence establishes that beginning in early Septem-
ber and continuing through to the election the named su-
pervisors spent more time in work areas observing employ-
ees while at work than they had in the past. The General
Counsel contends that a violation is substantiated by virtue
of Respondent's failure to produce evidence that this inno-
vation was predicated upon legitimate considerations. In
this regard, Stadtherr testified without contradiction as to a
number of unusual events which occurred in the course of
the campaign including questionable performance of equip-
ment, damage to property of the home and individuals, as
well as a general decline in the quality of patient care.
Without belaboring the issue it is noted that while some of
Stadtherr's testimony was lacking in persuasiveness, her ob-
servations stood unchallenged. On balance, consistent with
my general impression from the record as an entirety, I am
convinced that this action was taken only because of unto-
ward incidents arising in the course of the campaign. I
therefore conclude that Respondent did not violate Section
8(aX1) in this respect.
j. Miscellaneous interrogation
(1) By Allie Nichols
Nichols was a LPN and an admitted supervisor. It ap-
pears that in August Nichols was solicited and signed a
union authorization card. Incumbent employee Geraldine
Keatts testified that Nichols was her immediate supervisor.
She testified to a conversation in which Nichols asked if
Keats had signed the card, and when Keats responded affir-
matively Nichols expressed, "I did too." Considering Keats'
uncertainty as to the precise timing of this incident against
other matters of record, it is not unlikely that this incident
occurred at a time when LPNs similarly situated to Nichols
were actively involved in union organization. Keats herself
admitted that it was not until after her conversation with
Nichols that she learned that the LPNs were supervisors
and therefore "could not be in the Union." Although Keats
testified that at the time of this incident she did not get the
impression that Nichols was prounion, her testimony is dif-
ficult to understand in the light of Nichols' admission that
she too had signed a card. Considering the entire circum-
stances I am not convinced that this was anything more
than an innocuous discussion involving a low level supervi-
sor and an employee, who had both manifested their sup-
port of the Union. I find that the question put to Keats did
not constitute coercive interrogation violative of Section
8(aX)(1) of the Act.
(2) By Stadtherr
Employees, Frances Ford and Ruby Johnson testified to
two incidents in which they were questioned by Stadtherr.
Ford testified that in late August when she was on her sup-
per break Stadtherr, in the presence of employee Delores
Cox, asked how Ford felt about the Union. Stadtherr de-
nied this, pointing out that she considered Ford to be anti-
union and therefore had no occasion to pose such an in-
quiry to her. Cox, when called as a witness for Respondent,
denied ever hearing Stadtherr ask Ford how she felt about
the Union. I credit Ford 9 and find that Respondent thereby
engaged in unlawful interrogation violative of Section
8(a)(1) of the Act.
Ruby Johnson testified that sometime in September she
was called to Stadtherr's office and interviewed concerning
her solicitation of a fellow employee to sign a union card.
At that time Stadtherr asked Johnson if she had given a
card to employee Patricia Pannell. Johnson indicated that
she had, whereupon Stadtherr admonished that Johnson
could only solicit cards while Johnson was on break or at
lunch. Johnson first admitted and then denied that Stad-
therr in their conversation expressed concern for the loca-
tion at which Johnson had solicited the authorization cards.
Johnson claims that the solicitation occurred in a public
area while she was en route to the dining room to take her
break. Stadtherr testified that she had received a report
from Pannell that she was solicited by Johnson in a pa-
tient's room, and that her interview with Johnson was
prompted by that fact. She claims that she informed John-
son that she was not to solicit for the Union on working
time, particularly not in a patient's room. In this instance I
believe Stadtherr. Johnson did not impress me as the most
perceptive witness. Her capacity for recollection was vague,
and in this instance, on the overall record, I consider the
testimony of Stadtherr as the more probable. I find that the
entire incident was a justified and perfectly legitimate effort
on the part of Stadtherr to police Respondent's lawful re-
striction on employee solicitation of a nature potentially
disruptive to patient care. Accordingly, I shall dismiss the
8(a)(1) allegation based thereon.
(3) By Shirley Correia
Employee Frances Ford testified that in late November,
approximately I week before the election, employee Char-
lotte Waller asked Correia when the election was scheduled.
Correia afforded the information but added, "but I know
you girls won't vote for the union." Ford volunteered "yes
ma'am, I will vote for the union." Correia went on to ask
Ford why she would vote for the Union.20 This prompted
an argument, with Correia addressing Ford as to why she
should vote against the Union and Ford responding as to
the soundness of her choice. Correia denied questioning
Ford as to why she wanted to vote for the Union. As be-
tween them, I regarded Ford as the more reliable witness. I
credit her and find that Respondent thereby violated Sec-
tion 8(a)( ) of the Act.
2. The discharge of Margaret Martin
Martin was initially hired in May 1974. She worked as a
housekeeper under the supervision of Essie Braham until
September 9, 1977, the day of her discharge.
19 It is noted that Ford was an incumbent employee at the time she testi-
fied. Her testimony impressed me favorably. Cox, as a corroborating witness
to Stadtherr, was considered unreliable. She impressed me as willing to give
whatever testimony was necessary to support her Employer's position. Her
effort in this regard tended toward denials of matters conceded by Respon-
dent's own witnesses. Although I have credited certain aspects of Stadtherr's
uncontradicted testimony, she did not impress me as thoroughly trustworthy.
In this instance I consider the testimony of employee Ford as the more
believable.
20 Employees Charlotte Waller and Peggy Beverly were named by Ford as
present during this incident. Neither was called as a witness.
1201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to her termination Martin was not among the more
active employee organizers. She attended a union meeting
and signed a union card but professed a lack of knowledge
concerning union matters during the period proximate to
her discharge.
The discharge of Martin grew out of an incident which
occurred on Saturday, August 27. Respondent claims that
during a conversation between Martin and coworker Edith
Wade on that date Martin threatened Wade. According to
Respondent, the discharge of Martin almost 2 weeks later
on September 9 was motivated solely by Martin's alleged
misconduct in this regard.
Neither Martin nor Wade, from my observation, offered
clear and convincing testimony as to what actually took
place on August 27. Based on a composite of their testimo-
nies I find that on that date both were discussing the pros
and cons of union representation, with Martin expressing a
prounion sentiment while Wade disagreed. At some point
Martin postulated that if Wade failed to join the Union,
Martin could go over her head and have Wade fired for
something she did not like." I also find that Martin made a
statement to the effect that even if Wade did not join the
union dues would be taken out of her paycheck.
Wade did not report the incident that day. She did not
work on the following Sunday and Monday. She admits
that it was not until lunchtime on Tuesday that she went to
see Branham, her supervisor, about the incident. She claims
to have been in disturbed state and crying at the time.
Wade described her emotional state as stemming from her
belief that Martin could have her discharged if the Union
came in. More specifically, Wade claims that at noon on
Tuesday, August 30, she went to the office of Braham,
where Braham was engaged in a conversation concerning
the Union with employee Sowell. Wade asked Braham, "if
someone belonged to the Union, could they go over my
head and have me fired for something?" Braham informed
Wade that this could not occur and inquired as to who told
Wade that this was so. At that time Wade reported that it
was Martin.
Despite Wade's alleged state of upset Braham did not
elect to report this matter to Stadtherr immediately or ap-
parently to even seek her out in this regard. The next day
Braham was summoned to the office of Stadtherr in connec-
tion with Respondent's investigation of supervisory involve-
ment in union activity. It was not until after Braham and
Stadtherr had completed their discussion of Braham's pos-
sible involvement in union activity that Braham mentioned
the Martin-Wade incident. Stadtherr testified that Braham
reported that Edith Wade was "very upset" in that Martin
told Wade that she might lose her job. Braham suggested
that Stadtherr talk to Wade. Stadtherr did so.
According to Stadtherr, Wade was visibly upset and
showed evidence of having been crying when she discussed
the matter with Wade on August 31. Stadtherr relates that
Wade reported that on the previous Saturday she and Mar-
tin were on the side porch sweeping mops, that Martin had
21 Although one might construe Martin's testimony as including a denial
that she made such a statement, I construe her testimony as involving some-
thing less than a denial. It is my interpretation that while she could not deny
that such a statement was made, she did not consider it to be a threat.
been talking to her all day about the Union, and that Mar-
tin stated "well you know, if you don't vote yes for this
Union and I do, and they are voted in, and you do some-
thing I don't like, I can go over your head and have you
fired." Stadtherr went on to testify that Wade reported that
Martin informed her that even if she did not join the Union
they would still take dues from Martin's paycheck.
Later that same day Stadtherr called Martin in. When
Stadtherr confronted Martin with the above Martin voiced
no clear denial but stated that she was not certain whether
she made the statement or not. Stadtherr testified that on
the basis of her interviews with Wade and Martin she was
convinced that Martin made the statement.2
After Stadtherr's interview with Martin she took no im-
mediate action.2 However, on September 6 Martin went on
leave because of an injury to her foot. She did not again
return to Respondent's employ. On September 9 Stadtherr
and Branham went to the home of Martin, where she was
terminated.
Contrary to the General Counsel, I find that Martin
made the statement attributed to her by Wade, and that
Respondent effected the discharge solely on that ground.'
However, the foregoing does not end the inquiry. The
conversation between Wade and Martin on August 27 did
not involve solicitation of authorization cards. It consisted
of discussion between a prounion employee and an em-
ployee whose sympathies lay elsewhere. Although the con-
versation occurred on working time, it did not take place in
a patient care area or under circumstances posing any po-
tential disruption to the functions of the home. At the time
Wade and Martin were cleaning mops outside the side
door, a location which it is fair to presume, would not be
frequented by patients or the general public. Balancing the
normal propensity of employees to engage in conversation
in such circumstances against the rights of employers to
regulate union activity on working time and within its
premises, I am convinced that such conduct in such an area
may not be the subject of legitimate interdict, and that the
discussion constituted protected concerted activity.
Having so concluded it is noted that authority under this
Act does not view the employer as the final arbiter of
whether misconduct which arises in the course of protected
activity can be a legitimate subject for discipline. Thus, the
22 Martin testified that on the day after her interview with Stadtherr she
went to Braham expressing an intention to quit. In the course of their con-
versation Wade asserts that Braham asked her if she liked the Union, to
which she responded, "yes as far as I know about it." This testimony was not
the subject of an 8(aX)(1) allegation. Martin did not strike me as a reliable
witness. I discredit her testimony insofar as she asserts that Braham ques-
tioned her concerning her union sympathy.
21 Evidence was adduced on behalf of Respondent that Stadtherr discussed
another threat made by Martin to employee Sowell. However, that informa-
tion is deemed irrelevant in that it was not until after Martin's discharge that
Stadtherr developed these later assertions against Martin. In any event. I
regard Sowell as a thoroughly unbelievable witness, and my rmstrust is suffi-
cient to reject the entirety of her testimony that any such threat was made.
4 Cf. N. L.R.B. v. Burnup and Simmr, Inc., 379 U.S. 21 (1964). Contrary to
the General Counsel, I also find that the motive for the discharge was not for
reasons other than what transpired on August 27. Martin was not a particu-
larly active union protagonist. I also note in this regard that the General
Counsel's reliance upon testimony by Wade that she reported that on August
27 that Martin had been talking about the Union all day was not believed.
Compare Wade'- testimony in this regard with the account set forth in the
Wade affidavit of September 2. 1977, which is in evidence as G.C. Exh. 1.
1202
LIBERTY HOUSE NURSING HOMES
Act does not license employers to take adverse action
against such employees for inconsequential and trivial
forms of misconduct. To clothe a discharge with legitimacy
in such circumstances would pose a serious impediment to
the exercise of employee rights on the one hand, while, on
the other, simply furnishing employers an offensive weapon
to combat union activity generally, bearing no reasonable
relationship to the need to maintain operations or disci-
pline. The Board, with court approval, has devised policies
which prevent any such imbalance. Thus, in the case of
economic strikers it is now settled policy that "serious acts
of misconduct which occur in the course of a strike may
disqualify a striker from the protection of the Act, while
minor acts of misconduct do not."2 Similar limitations
upon employers exist with respect to other forms of pro-
tected activity. In N.L.R.B. v. Illinois Tool Works, 153 F.2d
811 (7th Cir. 1946), a layoff of a union official because he
refused to correct a misrepresentation concerning wage
scales was deemed violative of Section 8(a)(3) and (I) of the
Act under such a formulation. The test applied in such cir-
cumstances was succinctly set forth by the Circuit Court of
Appeals for the Seventh Circuit in N.L.R.B. v. Thor Power
Tool Company, 351 F.2d 584, 587, as follows:
As other cases have made clear, flagrant conduct of
an employee, even though occurring in the course of
Section 7 activity, may justify disciplinary action by
the employer. On the other hand, not every impropri-
ety committed during such activity places the em-
ployee beyond the protective shield of the Act. The
employee's right to engage in concerted activity may
permit some leeway for impulsive behavior, which
must be balanced against the employer's right to main-
tain order and respect. Initially, the responsibility to
draw the line between these conflicting rights rests with
the Board, and its determination, unless illogical or ar-
bitrary, ought not be disturbed. In the instant case we
cannot say that the Board's conclusion that Tinsley's
remark was within the protection of Section 7 was ei-
ther unreasonable or capricious.
Turning to the instant issue, it is first noted that in the heat
of a union campaign dialogue between prounion and anti-
union elements in the work force is inevitable. The forego-
ing principles accomodate that reality and impose a stan-
dard of prudent judgment upon employers before harshly
treating with every employee who makes an untoward
statement in that context. This is not to say that employees
may with impunity threaten reprisals within their capacity
to carry out in quest of their respective positions during the
campaign. But upon analysis of the total circumstances in
this case, the cause assigned for the discharge of Martin
involved discipline so dramatically in excess of rationale
exercise of management authority as to be inherently di-
structive of statutory organizational rights, while bearing no
reasonable relationship to any business justification. Mar-
tin, prior to the discharge, had been employed some 3-1/2
2 See Ohio Power Company 216 NLRB 348, 354 (1975), and cases cited at
fn. 7 thereof. See N. LR.B. v. H. N. Thayer Co., 213 F.2d 748 (Ist Cir. 1954),
for the more stringent standard applied to employers in disciplining unfair
labor practice strikers.
years. Her supervisor attested to her reputation as a good
worker, lacking problems with respect to punctuality or ab-
senteeism. As for the statement made b Martin. it was
more in the nature of an argumentative misrepresentation
than a threat which she had capacity to enforce.' " Her re-
mark was hypothetical, and it would take naively to an
exteme to fail to perceive its inherent absurdity. Martin
might just as well have said that lightning would strike the
home if Wade did not vote for the Union. Against this
background the harsh nature of the discipline invoked here
would serve as a signal to employees that the Employer
would look with little compassion upon those who engaged
in even trivial forms of misconduct in the course of their
prounion activity. In the total circumstances I find that the
statement imputed to Martin was neither a threat nor a
comment of a sufficiently flagrant nature to render her fair
game for disciplinary action. I therefore find that by dis-
charging Martin because she engaged in protected union
activity Respondent violated Section 8(a)(3) and (I) of the
Act.
IV. ('ASE 5-R('-10171
The objections to employer conduct interfering with free
choice in the election conduct on December 2. 1977. remain
for consideration. Many of these objections parallel unfair
labor practice allegations in the complaint which. as hereto-
fore found, have been substantiated by the record. These
findings include Objection I (coercive interrogation), Objec-
tion 2 (threats of more onerous conditions of work). Objec-
tion 6 (the discharge of Margaret Martin), Objection 14
(surveillance of employees during their breaktime). Objec-
tion 15 (asking an employee to wear a "vote no" badge).
and Objection 17 (promises of improved conditions to die-
tary department employees). Accordingly, these objections
together with the general allegations of preelection miscon-
duct embodied in Objections 4 and 16 are hereby sustained
to the extent that they are coextensive with the independent
8(a)(X) and 8(a)(3) allegations found above. Objection 3.
which apparently pertains to threats of job loss, was not
substantiated by credible evidence and therefore is over-
ruled.
Accordingly, having found that the Employer engaged in
conduct described above, it is concluded that Respondent
thereby interfered with the election, and, accordingly, I
shall recommend that the election conducted on December
2, 1977, be set aside and that a rerun election be conducted
at such time as the Regional Director for Region 5 deems
appropriate.
.u The evidence concerning the reaction of Wade was exaggerated to the
point of being enshrouded with suspicion in its entirety. The seriousness with
which she took Martin is somewhat unbelievable as well. Prior to the August
27 confrontation Respondent had clearly communicated its antiunion posi-
tion. Wade herself in her pror employment had joined a union oluntarily
and maintained her membership for a period of some 2 to 3 years Wade and
several other of Respondent's witnesses testified to the emotional reaction of
Wade to this threat, which became manifest to Respondent no earlier than
noon on August 30. Prior to that Wade's husband had nlfrmed her that
Martin did not know what she was talking about. On August 30 Branham
informed Wade to the same effect. Wade allegedly was not comforted by
these assurances from her husband and her supervisor, for it is asserted that
she remained visibly in a state of upset the next day. August 31, when she
first spoke to Stadtherr The testimony of Wade, as corrob)rated bh Braham.
Stadtherr, and Sowell. in this regard did not ring true
1203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
I. Respondent Employer is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Charging Party Petitioner is a labor organization
within the meaning of Section 2(5) of the Act.
3. By coercively interrogating employees concerning
union activities, by engaging in surveillance of union activi-
ties, by instructing employees to report on union activities
of their coworkers, by promising improved conditions of
work if the Union is rejected, and by threatening more
onerous conditions of work if the Union is designated Re-
spondent interfered with, coerced, and restrained employ-
ees in the exercise of their rights guaranteed by Section 7 of
the Act and thereby violated Section 8(a)(1) of the Act.
4. By discharging and refusing to reinstate Margaret
Martin in order to discourage membership in the Union,
Respondent violated Section 8(a)3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
As the unfair labor practices committed by Respondent,
including the act of discrimination, strike at the heart of the
Act, a broad cease-and-desist order shall be recommended
precluding Respondent from "in any other manner" inter-
fering with, coercing, or restraining employees in the exer-
cise of their rights guaranteed by Section 7 of the Act.
Having found that Respondent discriminatorily dis-
charged and refused to reinstate Margaret Martin in viola-
tion of Section 8(a)(3) and (1) of the Act, I shall recommend
that Respondent be ordered to offer her immediate rein-
statement and make her whole for any loss of pay resulting
from the discrimination against her by payment of a sum of
money equal to the amount she normally would have
earned as wages from the date of her discharge to the date
of a bona fide offer of reinstatement, less net interim earn-
ings during that period. Backpay shall be computed on a
quarterly basis in the manner prescribed in F W. Wool-
worth Company, 90 NLRB 289 (1950), and shall include
interest as specified in Florida Steel Corporation, 231 NLRB
651 (1977).21
[Recommended Order omitted from publication.]
"1 See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
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