Nicholas County Health Care

National Labor Relations Board - Board Decisions

Aug 9, 2000

331 N.L.R.B. 970 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 970
Nicholas County Health Care Center, Inc. and Dis-
trict 1199, the Health Care and Social Service
Union, SEIU, AFL–CIO and Wanda Proctor.
Cases 9–CA–33210–2, 4, 5, 9–CA–33491, 9–CA–
33650–1, 2, 3, 9–CA–33681–1, 2, 3, 4, 9–CA–
33750, 9–CA–33805, 9–CA–33919–3, and 9–CA–
33520
August 9, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND HURTGEN
On September 30, 1997, Administrative Law Judge
Richard A. Scully issued the attached decision. The Re-
spondent filed exceptions,1 a supporting brief, and an
answering brief in response to the cross-exceptions. The
General Counsel filed cross-exceptions,2 a supporting
brief, and an answering brief in response to the excep-
tions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,3
and conclusions and to adopt the recommended Order as
modified.4

1 The Respondent excepts only to the judge’s finding that the March
4, 1996 strike was an unfair labor practice strike; his 8(a)(1) findings
that the Respondent threatened to fire the strikers; his 8(a)(3) and (1)
findings that the Respondent unlawfully refused to reinstate the March
4, 1996 strikers; and his 8(a)(5) and (1) findings that the Respondent
unilaterally abandoned the contractual grievance procedure, unlawfully
withdrew recognition from the Union, and unilaterally implemented an
employee wage increase.
2 The General Counsel excepts only to the judge’s dismissal of the
8(a)(5) and (1) allegations based on the Respondent’s unilateral discon-
tinuation of checking off union dues upon the expiration of the contract.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We adopt the judge’s findings, which are set forth in sec. III,E,1 and
2, of his decision, that the March 4, 1996 strike was an unfair labor
practice strike and the Respondent unlawfully refused to reinstate the
strikers. Thus, we find it unnecessary to pass on the judge’s alternative
findings, which are set forth in sec. III,E,3 of his decision, that the
Respondent retaliated against the strikers even if the March 4, 1996
strike was an economic strike.
We also adopt the judge’s findings, which are set forth in sec. III,F,1
of his decision, that the March 12, 1996 decertification petition was
tainted by the Respondent’s unfair labor practices. Thus, we find it
unnecessary to pass on the judge’s alternative findings, which are set
forth in the last paragraph of the same section of his decision, that this
petition was also tainted because it contained the handwriting of Gene
Underwood, the Respondent’s administrator and part owner.
Relying on our recent decision in Hacienda Resort Hotel & Casino,
331 NLRB No. 89 (2000), we adopt the judge’s dismissal of the 8(a)(5)
and (1) allegations involving the Respondent’s unilateral discontinua-
tion of checking off union dues upon the expiration of the contract.
For the reasons set forth in her joint dissenting opinion with Member
Fox in Hacienda, supra, Member Liebman would reverse the judge’s
dismissal of the alleged 8(a)(5) and (1) discontinuation of dues check-
off, and would find that violation.
We agree, for the reasons fully set forth in Caterair In-
ternational, 322 NLRB 64 (1996), that an affirmative
bargaining order is warranted in this case as a remedy for
the Respondent’s unlawful withdrawal of recognition
from the Union. We adhere to the view, reaffirmed by
the Board in that case, that an affirmative bargaining
order is “the traditional, appropriate remedy for an
8(a)(5) refusal to bargain with the lawful collective-
bargaining representative of an appropriate unit of em-
ployees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir.
1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248
(D.C. Cir. 1994). In the Vincent case, the court summa-
rized the court’s law as requiring that an affirmative bar-
gaining order “must be justified by a reasoned analysis
that includes an explicit balancing of three considera-
tions: (1) the employees’ § 7 rights; (2) whether other
purposes of the Act override the rights of employees to
choose their bargaining representatives; and (3) whether
alternative remedies are adequate to remedy the viola-
tions of the Act.” 209 F.3d 738.
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, we have
examined the particular facts of this case as the court
requires and find that a balancing of the three factors
warrants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the em-
ployer’s withdrawal of recognition. In contrast, an af-
firmative bargaining order, with its attendant bar to rais-
ing a question concerning the Union’s continuing major-
ity status for a reasonable time, does not unduly preju-
dice the Section 7 rights of employees who may oppose
continued union representation because the duration of
the order is no longer than is reasonably necessary to
remedy the ill effects of the violation.
Moreover, we note that, in addition to unlawfully with-
drawing recognition, the Respondent’s other unfair labor
practices were serious and numerous. These included
threatening to terminate and permanently replace employ-
ees if they engaged in an unfair labor practice strike;
threatening to deny unfair labor practice strikers their
rights to be reinstated; failing to fully reinstate unfair labor
practice strikers; unlawfully terminating and issuing disci-

4 We shall modify the judge’s recommended Order in accordance
with our decision in Excel Container, Inc., 325 NLRB 17 (1997).
331 NLRB No. 122
NICHOLAS COUNTY HEALTH CARE CENTER 971
plinary warnings to employees; threatening employees
with termination and/or disciplinary action if they dis-
cussed the Union while at work; restricting the access of
employee union representatives to break areas and to the
facility during nonwork time; discontinuing the contractual
grievance procedure provisions; unilaterally granting a
wage increase; referring to an employee union supporter
as a nuisance and saying it would like to get rid of her;
telling employees not to discuss the Union or the National
Labor Relations Board while at work; coercively interro-
gating employees about their protected activities and tell-
ing them to cease such activities; creating the impression it
had surveilled a strike vote and interrogating an employee
about her vote; telling an employee not to voice any com-
plaints while at work; offering an employee her choice of a
position if she did not participate in the strike; and an-
nouncing and enforcing a no-solicitation rule applicable
only to the collection of union dues. Although several
years have elapsed since these unfair labor practices were
committed, many of them were of a continuing nature and
would likely have a long-lasting effect.
We further note that, as found by the judge, the March
12, 1996 decertification petition did not reflect employee
free choice under Section 7, but rather the effect of the
Respondent’s most serious prewithdrawal unfair labor
practices described above. We find that these additional
circumstances further support giving greater weight to
the Section 7 rights that were infringed by the Respon-
dent’s unlawful withdrawal of recognition.
(2) The affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining or to engage
in any other conduct designed to further discourage sup-
port for the Union. It also ensures that the Union will not
be pressured, by the possibility of a decertification peti-
tion, to achieve immediate results at the bargaining table
following the Board’s resolution of its unfair labor prac-
tice charges and issuance of a cease-and-desist order.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent’s violations because it would permit a decerti-
fication petition to be filed before the Respondent had
afforded the employees a reasonable time to regroup and
bargain through their representative in an effort to reach
a collective-bargaining agreement. Such a result would
be particularly unfair in circumstances such as those
here, where litigation of the Union’s charges took several
years and many of the Respondent’s unfair labor prac-
tices were of a continuing nature and were likely to have
a continuing effect, thereby tainting any employee disaf-
fection from the Union arising during that period or im-
mediately thereafter. We find that these circumstances
outweigh the temporary impact the affirmative bargain-
ing order will have on the rights of employees who op-
pose continued union representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the violations in this
case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Nicholas
County Health Care Center, Inc., Richwood, West Vir-
ginia, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
Substitute the following for paragraph 2(i).
“(i) Within 14 days after service by the Region, post at
its facility in Richwood, West Virginia, copies of the at-
tached notice marked Appendix.42 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
on receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by
the Respondent at any time since June 8, 1995.”

Donald A. Becher, Esq. and Andrew Lang, Esq., for the General
Counsel.
Mark M. Lawson, Esq., of Bristol, Virginia, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On
charges1 filed by District 1199, The Health Care and Social
Service Union, SEIU, AFL–CIO (the Union) and by Wanda
Proctor, an individual, the Regional Director for Region 9 of
National Labor Relations Board (the Board) issued a consoli-
dated complaint and amended complaints2 alleging that Nicho-
las County Health Care Center, Inc. (the Respondent) had
committed certain violations of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act (the Act). The Respondent
filed timely answers denying that it had committed any viola-
tion of the Act.
A hearing was held in Richwood, West Virginia, on 12 dates
between July 23 and October 3, 1996, at which all parties were
given a full opportunity to examine and cross-examine wit-

1 The original charges were filed as follows: Case 9–CA–33210–2
on August 28, 1995; Cases 9–CA–33210–4 & 5 on September 11,
1995; Case 9–CA–33491 on January 9, 1996; Case 9–CA–33520 on
January 19, 1996; Cases 9–CA–33650–1, 2, & 3 on February 27, 1996;
Cases 9–CA–33681–1, 2, & 3 on March 5, 1996; Case 9–CA–33681–4
on March 7, 1996; Case 9–CA–33750 on March 21, 1996; Case 9–CA–
33805 on April 11, 1996; and Case 9–CA–33919–3 on May 29, 1996.
2 The original complaint was issued on April 10, 1996, and amended
complaints were issued on May 10 and 22, June 21, and July 3, 1996.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 972
nesses and to present other evidence and argument. Briefs sub-
mitted on behalf of the General Counsel and the Respondent
have been given due consideration. On the entire record, and
from my observation of the demeanor of the witnesses, I make
the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a corporation en-
gaged in the business of operating a nursing home in Rich-
wood, West Virginia. During the 12-month period preceding
April 1996, the Respondent in the conduct of its business
operations derived gross revenues in excess of $100,000 and
purchased and received at its Richwood, West Virginia facility
goods valued in excess of $5000 directly from points outside
the State of West Virginia. The Respondent admits, and I find,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and a health care facility
within the meaning of Section 2(14) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all times material,
the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since 1986, the Union had been recognized by the Respon-
dent as the collective-bargaining representative of certain of its
employees in a unit consisting of:

All full-time and regularly scheduled part-time service and
maintenance employees employed by the Employer at its
Richwood, West Virginia facility including nurses aides,
housekeeping aides, laundry aides, dietary employees and
maintenance assistants; but excluding all office clerical em-
ployees, all Licensed Practical Nurses, all Registered Nurses
and professional employees, all guards, the department heads
of nursing, laundry, housekeeping, dietary, activities, social
services and maintenance and all other supervisors as defined
in the Act.

The most recent of a series of collective-bargaining agreements
between the parties covered the period from December 1, 1992,
through December 31, 1995. The parties engaged in negotia-
tions for a new contract between December 1995 and February
1996 without reaching an agreement. On March 4, 1996, cer-
tain employees represented by the Union engaged in a 1-day
strike against the Respondent which was designated as an un-
fair labor practice strike. The Respondent contends that it was
an economic strike and it hired permanent replacements for all
of the employees who participated in the strike. By letter dated
March 14, 1996, the Respondent withdrew recognition from the
Union, based on the assertion that it no longer represented a
majority of the employees in the bargaining unit and that the
Respondent had a good-faith doubt that it represented a major-
ity of those employees.
B. The 8(a)(3) and (1) Allegations
1. Allegations concerning Eula Carden
Eula Carden began working at the Respondent’s facility in
October 1988 in the housekeeping and laundry department.
After 5 years, she became a certified nursing assistant (CNA) in
the nursing department. Carden was a union delegate for sev-
eral years and in 1994 became grievance chairperson. In that
position she assisted and counseled employees concerning the
filing of grievances and, with the assistance of Union Adminis-
trative Organizer Frank Hornick, presented the grievances to
management, usually, administrator and part owner of the facil-
ity, Gene Underwood.
During the spring of 1995, the Union became concerned over
what it felt was an attempt by the Respondent to change some
bargaining unit positions from full time to part time, resulting
in a reduction in wages, benefits, vacation, and scheduling
rights. In May 1995, the Respondent had announced that it was
sponsoring an “appreciation dinner” for its CNAs to be held at
the facility on June 1. Hornick discussed with Carden and
Wanda Proctor, a CNA, who held the highest ranking union
position among the unit employees, that of union executive
board member, their concerns that the employees felt they were
not really appreciated by management and they decided to call
for a boycott of the dinner. To inform the employees of this,
Carden prepared a mock invitation ridiculing the dinner as a
“Brown Nosing Dinner” and characterizing it as an attempt “to
bust the Union” and “to fatten you up and take your full time
position down to part time.” On the afternoon of May 31, 1995,
Carden, who was on vacation at the time, went to the facility
and passed out copies of the “invitation” to incoming evening-
shift workers in the breakroom and to day-shift workers in the
area where they were clocking out. She testified that she did not
give them to employees until after they had clocked out, but
that some may have taken one out of her hand.
While at work on June 8, Carden was told by Underwood to
come to his office where Assistant Administrator Pam Dobson
was also present. Carden testified that Underwood handed her a
copy of the “invitation” and asked if she knew what it was. Be-
fore she could answer, Underwood told her not to lie to him and
that he had people who said she did. Carden responded that she
was not lying, but that he had not given her an oppotunity to
answer. She told him that she had passed out the “invitations.”
Underwood asked her how many she had passed out and if Hor-
nick was involved but she did not respond. He also asked for an
explanation of the language on the “invitation” and she told him
it referred to taking away full-time positions that were needed to
get the work done. Carden testified that Underwood was very
angry with her and told her to get out of his office. Underwood
testified that during the meeting he asked why she had distrib-
uted the “invitations,” what her purpose was and who was in-
volved. Carden admitted passing them out to employees at the
timeclock between shifts, then, “refused to answer any questions
at all.” He testified that he expressed to Carden his problem with
her actions, which he described as “creating a morale situation”
and “creating a disciplinary situation.”
When Carden arrived for work on June 17 her timecard was
missing but she was told by a supervisor to go to work. During
her shift, Dobson and Director of Nursing Agnes Carpenter
came to her and told her to come to Dobson’s office. In the
office she was given six employee warning notices accusing her
of (1) on May 31, intimidating and coercing other employees
from attending the appreciation dinner and distributing material
containing false statements and allegations; (2) on May 31,
soliciting and distributing unauthorized material to employees
while on worktime and in a work area; (3) on May 31, loitering
in the facility at an unauthorized time and conducting unauthor-
ized business; (4) on May 31, interference with and purposeful
distraction of another employee in performance of his/her
NICHOLAS COUNTY HEALTH CARE CENTER 973
work; (5) on May 31, refusal or inability to support the facil-
ity’s goals and programs; and (6) on June 5, interfering with an
investigation of a possible infraction of a facility policy. After
Carden wrote a response to the accusations in each notice and
returned them, she was told that she was fired and was given a
letter signed by Underwood stating that, “due to continuous
violations of policy and procedure,” she was terminated, effec-
tive June 15, 1995.
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act by coercively interrogating Carden on June 6,
1995, and Section 8(a)(3) by issuing the six disciplinary warn-
ings to her and terminating her on June 17 because of her sup-
port for the Union and having engaged in activity protected by
the Act. The Respondent contends that Carden’s actions in
protesting the appreciation dinner were beyond the bounds of
protected activity, violated its rules, and caused dissention and
ill-will among employees that it had a right to curtail.
Analysis and Conclusions
In cases where the employer’s motivation for a personnel ac-
tion is in issue, it must be analyzed in accordance with the test
outlined by the Board in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). Under Wright Line, the General
Counsel must make a prima facie showing sufficient to support
the inference that protected activity was a motivating factor in
the employer’s decision. Once that has been done, the burden
shifts to the employer to demonstrate that it would have taken
the same action even in the absence of protected activity on the
part of the employee. The Wright Line analysis is required even
where the employer’s asserted reasons for its actions are pretex-
tual. Bridgeway Oldsmobile, 281 NLRB 1246 fn. 2 (1986).
The General Counsel’s prima facie case is established by
proof of protected activity on the part of the employee, employer
knowledge of that activity, and employer animus toward the
Union. W. R. Case & Sons Cutlery Co., 307 NLRB 1457, 1463
(1992); and Associated Milk Producers, 259 NLRB 1033, 1035
(1982). All of those elements are present here. Carden was a
longtime supporter of the Union who had served as a delegate
for several years and since 1994 had been the grievance chair-
person at the Respondent’s facility. In the latter position, she had
handled and presented four or five grievances with Underwood
usually representing management. The “invitations” which led
to Carden’s disciplinary warnings and discharge specifically
asserted that the Employer was trying to replace full-time posi-
tions with part time, an issue the Union had previously raised,
and that it was trying to break the Union at the facility. There is
ample evidence in the record of the Respondent’s animus toward
the Union and toward Carden, personally. The numerous viola-
tions of Section 8(a)(1) of the Act, found herein, constitute evi-
dence of animus on its part. Pincus Elevator & Electric Co., 308
NLRB 684, 693 (1992). Cleo Sandy, a housekeeping department
employee since 1991, testified that during the early part of the
summer of 1995, in a conversation she had with Underwood, he
told her that “he would get rid of troublemakers as he had in the
past.” He did not identify anyone by name, but indicated that the
“troublemakers” were those who “filed grievances” and “kept
stuff stirred up all the time.” Underwood testified that he had no
recollection of this conversation but did not deny it. I credit the
testimony of Sandy, a current employee, who would be unlikely
to fabricate such a conversation. See Stanford Realty Assoc., 306
NLRB 1061, 1064 (1992); K-Mart Corp., 268 NLRB 246, 250
(1983); and Shop-Rite Supermarket, 231 NLRB 500, 505 fn. 22
(1961). Carden was the Union’s grievance chairperson during
the year preceding her discharge.
The final question is whether Carden’s actions in preparing
and distributing the “invitations” are protected by the Act. The
purpose of the “invitations” was to urge CNAs in the bargain-
ing unit to boycott the appreciation dinner in order to to protest
the dissatisfaction that the Union and its officers, Carden and
Proctor, felt about what they considered an overall lack of ap-
preciation of the CNAs by the Respondent, as well as its efforts
to reduce full-time bargaining unit positions and to undermine
the Union.3 These are clearly matters related to the employees’
terms and conditions of employment and their rights to “assist
labor organizations,” protected by Section 7 of the Act.
Carden’s actions were directly related to mutual aid and protec-
tion and were not so outrageous, egregious or disruptive as to
lose the protection of the Act. E.g., Wolkerstorfer Co., 305
NLRB 592 fn. 2 (1991); and Martin Marietta Corp., 293 NLRB
719, 725 (1989). Likewise, the fact that she chose to express
herself through the literary technique of satire or irony does not
render her actions unprotected. Pontiac Osteopathic Hospital,
284 NLRB 442, 452 (1987). The decision in New River Indus-
tries v. NLRB, 945 F.2d 1290 (4th Cir. 1991), cited by the Re-
spondent, is clearly distinguishable. There, the Fourth Circuit
held that a satirical letter written by two employees to mock the
employer’s distribution of free ice cream cones to employees in
appreciation for a new contract with a supplier was not pro-
tected activity because it was not intended to enlist the support
of other employees for the purpose of correcting what they
considered an inadequacy in their conditions of employment,
but was written solely for the purpose of belittling the com-
pany’s gesture. The court also noted that the employer’s disci-
plinary decision was not taken in the context of union activity,
as there had been none at its plant in about 8 years, and could
not have served as a motivating factor in its action. Here,
Carden’s “invitation” called on bargaining unit employees to
stand with the Union, their longtime collective-bargaining rep-
resentative, by boycotting the appreciation dinner in order to
protest actions by the Respondent it perceived as adversely
affecting the unit. I find that Carden’s actions were protected by
the Act and that the General Counsel has established a prima
facie case under Wright Line concerning these allegations.
I also find that the Respondent has failed to establish that it
would have taken the same disciplinary action against Carden
in the absence of protected activity on her part. On the contrary,
the evidence as a whole shows that that the Respondent’s al-
leged reasons were pretextual and/or that Carden was the victim
of disparate treatment. Although then-Director of Nursing
Agnes Carpenter, signed and presented all of the disciplinary
warnings notices issued to Carden at the time of her discharge,
neither she nor Underwood gave any testimony concerning
their content. Consequently, there is nothing the record to ex-
plain the conclusions reached in several of the notices or why it
was necessary to issue five separate warnings for a single inci-
dent on May 31. The first warning notice states that, on that
date, Carden was guilty of “intimidating” and “coercing” other
employees from attending a facility function and distributing

3 There is nothing in the record to suggest that they did not have a
good-faith belief that the Respondent was attempting to do so or that
these statements were so reckless or maliciously untrue as to lose the
protection of the Act. See Hertz Corp., 316 NLRB 672, 692 (1995); and
Delta Health Center, 310 NLRB 26, 36 (1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 974
material “containing false statements and allegations.” The
evidence shows only that Carden handed out her “invitations,”
i.e., flyers urging CNAs to boycott the Respondent’s apprecia-
tion dinner, to employees in a lounge and near the timeclock.
There is no evidence that she said or did anything that was
threatening or coercive.4 Although the Respondent presented
the testimony of a number of CNAs concerning their negative
subjective feelings about the “invitation,” including, Kim Wil-
son who was not given one, none provided any objective evi-
dence of intimidation or coercion on Carden’s part.5 There is
nothing in the record to establish that anything in the “invita-
tion” constituted a false statement or accusation or was not
protected by the Act. Accordingly, I find that there was no basis
for this warning and it was a pretext for disciplining Carden.
A second warning notice states that in the same incident
Carden violated the Respondent’s policies by solicitation and
distribution of unauthorized material to employees in a work
area during working time. Although there is no dispute but that
the employee handbook contains a provision prohibiting solici-
tations for any purpose during worktime and in work areas,
there is overwhelming evidence establishing that this rule was
regularly and routinely ignored and/or violated by employees,
supervisors, and other persons without disciplinary action being
taken against them before and after the issuance of this warning
to Carden. Numerous employees gave credible and uncontra-
dicted testimony about their participating in or witnessing a
wide variety of solicitations and sales of food, personal, and
commercial items throughout the facility, while on and off the
clock, in work and nonwork areas. Often the transactions were
conducted at the nurses’ station in the presence of supervisors.
Solicitations included invitations to baby showers, a weight-
loss pool, raffles, contributions for charities and other purposes,
dinners to raise money to aid employees with health or other
problems, and collections for flowers for employees who were
ill or had a death in the family. Employees and supervisors also
sold items such as handicrafts, blankets, dolls, Girl Scout cook-
ies, trick or treat bags, eggs, shirts with school logos on them,
Tupperware, and other catalog items. Numerous witnesses testi-
fied about employees and supervisors purchasing Avon prod-
ucts from a nonemployee who regularly visited the facility. The
Respondent apparently does not dispute that its no solicitation
rule was routinely ignored or violated with impunity but at-
tempts to distinguish Carden’s actions as causing “ill-will and
resentment” among some employees while the other solicita-
tions and sales activities did not.6 As discussed above, Carden’s

4 The evidence shows that in at least two cases, Kim Wilson and
Jennifer Bragg, Carden deliberately avoided offering an “invitation” to
employees who were not union supporters.
5 CNA Tammy Mullins testified that, immediately after being given
an “invitation” by Carden, she stopped Underwood in the hallway at the
facility to tell him she felt “intimidated” because she had to choose
between the Union and the Respondent and it was “too much pressure.”
Underwood, however, claimed he first learned about the “invitations”
when CNA Nikki Hatcher brought one to his house. In any event, Mul-
lins’ subjective reaction did not deprive Carden’s otherwise lawful
activity of the protection of the Act.
6 Several times during his testimony Underwood referred to the fact
that he was attempting to build harmony and teamwork at the facility
and that he considered anything that generated controversy or ill will
among the employees interfered with that goal should be prevented. It
appears that this only applied to ill will allegedly generated by support-
ers of the Union. The evidence shows that in March 1996 Supervisor
Sharon Amick taped to one of the nurses desks a copy of a newspaper
actions were protected by the Act and cannot lawfully be sin-
gled out for disciplinary action by the Respondent because it or
certain of its employees did not like or agree with them. Issu-
ance of the warning under these circumstances constituted
unlawful disparate treatment of Carden because she engaged in
protected activity. See Keco Industries, 306 NLRB 15, 18–19
(1992); and Thomas Steel Corp., 297 NLRB 1025, 1032 (1990).
A third warning notice was issued to Carden because she al-
legedly violated policies prohibiting loitering at the facility and
conducting unauthorized business. The unauthorized business
allegation clearly relates to Carden’s engaging in prounion
activity by handing out her “invitations” As discussed above,
this involved activity protected by the Act and cannot lawfully
serve as a grounds for disciplinary action against her. As for the
alleged violation of its policy against loitering, the evidence
establishes that Carden was the victim of unlawful disparate
treatment. It is undisputed that Carden distributed her “invita-
tions” while she was on vacation and not working at the facil-
ity. The Respondent’s work rules prohibit loitering at the facil-
ity when not working. However, as in the case of the solicita-
tion rule, the evidence shows the loitering rule was routinely
violated by employees without disciplinary action being taken.
Carden credibly testified to having gone to the facility on other
occasions when she was not working just to visit with her su-
pervisor and to having been invited by nursing supervisors to
stay over after work to attend parties at the facility. She also
testified that she observed employee LeAnn Chambers regu-
larly visit the facility, when not working, to talk and smoke
cigarettes because she was not allowed to smoke at home. Envi-
ronmental services employee, Richard Glover, credibly testified
that he had observed fellow employee Linda Williams come
into the facility when she was not scheduled to work and go to
the laundry to converse with other employees and Supervisor
Bill Miller. Cleo Sandy testified that Williams came into the
facility during nonwork hours on numerous occasions and that
she has seen CNA Susan Greene come in on nonwork hours to
visit with Willams and other employees, often staying through-
out the entire lunchbreak. Williams, who appeared as a witness
for the Respondent, confirmed that she has come to the facility
during her off-hours to visit a relative, Jean Fisher, who works
there, sometimes accompanied by Fisher’s babysitter and
daughter, and that she has been there to discuss nonwork-
related personal problems with Miller and with Fisher. Sandy
testified that Greene regularly came to the facility an hour be-
fore her shift began on days when she was scheduled to work.
Greene confirmed this in her testmony, saying, she usually

article concerning the strike by the Union against the Respondent’s
facility and other West Virginia nursing homes. The article was accom-
panied by a photograph that included Charging Party Wanda Proctor, a
former union representative at the facility, and contained statements by
another Union representative that the facilities were understaffed and
that made reference to “horror stories happening inside West Virginia
nursing homes.” Amick attached a note saying: “This is the care your
union reps. say your residents are getting in this facility. Is this what
you want people to think about you and the work you do?” There was
evidence that several employees were upset and expressed anger after
reading Amick’s posting. Although the Respondent’s management was
aware of the posting, no adverse action was taken against Amick over
it. Similarly, Underwood was apparently unconcerned about any poten-
tial for ill will or divisiveness among employees when, in March 1996,
employee Pattie Price came into the facility on her dayoff to seek his
assistance in drafting a decertification petition, which was then circu-
lated throughout the facility. See discussion, infra.
NICHOLAS COUNTY HEALTH CARE CENTER 975
came to work prior to 2 p.m. for her shift (which started at 3
p.m.) sat down, had a drink, and smoked a cigarette or two
before clocking in. She testified that supervisors observed her
doing this, but “there has not been a word been said about it.”
Former CNA Patty Mullins testified that she has frequently
observed Kim Wilson at the facility during her off-hours. Mul-
lins also testified to going to the facility on a nonwork day,
herself, to pick up the Girl Scout cookies she had ordered from
LPN Melinda Bartlett and hanging around for about 20 minutes
until Bartlett returned. She was not told to leave or subjected to
any disciplinary action. CNA Wendy Holcomb testified that she
visited the facility on several occasions when she was not
scheduled to work to visit residents and/or to talk to fellow
employees in the breakroom. She was never disciplined for
doing so. CNA Patricia Brooks testified that she had visited the
facility during nonwork hours to visit her boyfriend, who also
worked there, or to talk to other workers and was never told not
to do so. CNA Mabel Bailes testified that she has visited the
facility when not scheduled to work and has taken grandchil-
dren and her dogs to visit residents and has never been warned
or told she could not do so. Apart from the warning to Carden,
the only evidence that anyone was ever spoken to by manage-
ment concerning the loitering rule was that, on September 13,
1995, Wilson was counseled about spending excessive time at
the facility during the 11 to 7 p.m. shift when she was not
scheduled to work. Counseling is not considered by the Re-
spondent to be disciplinary action.7 According to the counseling
form, she was sitting at the nurse’s desk while the nurse was
supposed to be working, was going through confidential infor-
mation about residents and the nurse’s communications book
concerning resident care. It states that her actions were disrup-
tive to the care of residents by the people who were working.
After receiving this counseling, Wilson went to the facility on
March 12, 1996, at a time when she was not scheduled to work,
in order to sign a petition to decertify the Union after being
called at home and told about it, without any action being taken
against her. Based on the foregoing, I find that the warning
issued to Carden for allegedly loitering at the facility was a
pretext and another example of the Respondent’s disparate
application of its work rules to punish her for engaging in
prounion activities. Except for the fact that it involved such
activity, Carden’s visit to the facility for a brief period to pass
out her “invitations” was no different than numerous instances
of visits by other employees during their off-hours for non-
work-related purposes and could not lawfully be the basis for
disciplinary action against her.
A fourth warning notice was issued to Carden arising out of
the same incident for “interfering with or purposeful distraction
of another employee in performance of his/her work duty.” The
evidence establishes that Carden handed out her “invitations” in
the lounge to employees who were not working and in a hall-
way near the timeclock to a number of day-shift CNAs as they
were clocking out at the end of their shifts. There is no evi-
dence that she interfered with the work of any employee who

7 In its brief, the Respondent asserts that the counselling form issued
to Wilson constituted disciplinary action. The credible and uncontra-
dicted testimony of former Union Chapter President Patricia Brooks
establishes that when the Union requested that it be given copies of all
disciplinary actions, it was informed by then-Director of Nursing Ruby
Polk, in the presence of Underwood, that counselling was not discipli-
nary action but an educational tool to prevent a potential problem from
happening. There is no evidence to the contrary.
was actually working. On the contrary, the Respondent’s wit-
ness, Nicki Hatcher, who went to Underwood’s home that day
to give him a copy of the “invitation,” testified that her work
was not interfered with nor was she threatened in any way. Its
witness, Kim Wilson, in response to a question about what
work Carden interfered with, testified: “There was no work, we
were clocking out.” I find that the stated basis for this warning
was a pretext and that the real purpose was to punish Carden
for engaging in protected activity.
A fifth warning notice relating to the same incident cites
Carden for refusal or inability to support the facility’s goals and
programs. Since Carden was engaged in activity protected by
the Act, the Respondent could not lawfully punish her for such
activity because it disagreed with it or did not like it.
The sixth warning notice issued to Carden states that on June
5, 1995, she interfered with an on-going investigation of a pos-
sible infraction of facility policy. This apparently relates to
Underwood’s questioning her about the incident on May 31 in
his office, which the complaint alleges violated Section 8(a)(1).
In determining whether an employer’s interrogation is coercive
and violates the Act, all the surrounding circumstances must be
taken into consideration. Sunnyvale Medical Clinic, 277 NLRB
1217 (1985); and Rossmore House, 269 NLRB 1176 (1984).
Here, Underwood, the highest ranking official at the facility,
angrily interrogated Carden about her activities, her reasons for
engaging in such activities and who else was involved. Even if
the meeting were considered as offering Carden an opportunity
to give her side of the story as to what occurred when she dis-
tributed her “invitations,” once Underwood went beyond what
she did in the time clock area and started inquiring into her
subjective reasons for doing so, demanding to know who else
was involved and telling her she had adversely affected morale
and had “created a disciplinary situation,” the interrogation was
coercive and a violation of Section 8(a)(1). Medical Center of
Ocean County, 315 NLRB 1150 (1994); and Dlubak Corp., 307
NLRB 1138, 1146 (1992). Since the interrogation was unlaw-
ful, Carden could not be disciplined for refusing to participate
in it or answer questions concerning her protected activities.
Consequently, the disciplinary warning issued to her as a result
was also unlawful. Earle Industries, 315 NLRB 310, 315
(1994).
I find that the Respondent has failed to establish that it would
have terminated Carden in the absence of protected activity on
her part. The weakness of an employer’s explanation is a factor
to be considered in determining its motivation. Briarwood Hil-
ton, 222 NLRB 986 (1976). Here, there is little in the record
that gives a straightforward statement of the Respondent’s rea-
son(s) for the termination. The dismissal letter given to Carden
states only that she was terminated “due to continuous viola-
tions of policy and procedure.” A separation notice, prepared
for the Respondent’s files, states only that she was dismissed
for “unacceptable conduct.” Although at one point, he testified
that it was Carpenter’s decision to terminate Carden, Under-
wood acknowledged that it he made the decision after confer-
ring with Carpenter, co-owner, Steve Ferguson, and an attor-
ney.8 When asked on what his decision was based, Underwood
gave an unfocussed, rambling response. As best as I could de-
cipher it, he considered Carden’s coming to the facility while
8 According to Carpenter, her only involvement was presenting the
writeups and dismissal letter to Carden on a day that Underwood was
out of town.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 976
on vacation and passing out the “invitations” urging employees
to boycott the Respondent’s appreciation dinner constituted
“direct defiance of management” which had a negative impact
on the facility and its goals. Consequently, he did not feel that
Carden “was going to be a productive employee.” He also made
reference to complaints about Carden’s absenteeism and said:
“There was a whole list of things and it was a real problem.”
I find that Carden was terminated because of the May 31 in-
cident involving the distribution of the “invitations,” which the
Respondent made an exhaustive effort to catalog in the six
disciplinary warnings issued to her in connection with that inci-
dent. As has been discussed above, her actions were protected
by the Act, not one of the warnings constituted lawful discipli-
nary action, and all were discriminatorily motivated. The Re-
spondent’s reliance on the same incident as grounds for dis-
missing her is, likewise, unlawful. Underwood’s apparent at-
tempt to bolster his position, by implying that Carden’s absen-
teeism and other alleged problems were involved in his deci-
sion to terminate her, does just the opposite. While claiming
that there were a whole list of things about Carden that were
creating “a real problem,” he failed to identify anything on that
list. As for absenteeism, the record shows that in May 1994
Carden was given disciplinary warnings for having had three
absences within a 30-day period during April 1994.9 On Sep-
tember 14, 1994, she was given another warning for excessive
absenteeism occurring in June 1994.10 The warning notice
states that “any further absence will result in termination.”
There is no evidence that Carden had any absences after that or
that she was the subject of any other disciplinary action prior to
June 1995. I find that Underwood’s attempt to imply that a
nearly year-old instance of absenteeism was an issue causing a
problem in June 1995 or was a consideration in her discharge is
a pretext and that it had no bearing on his decision to discharge
her. I find that the Respondent has failed to establish that it
would have issued these disciplinary warnings to Carden and/or
discharged her in the absence of protected activity on her part.
Accordingly, I find that these actions violated Section 8(a)(3)
and (1).
2. Allegations concerning Wanda Proctor
a. Alleged coercive statements
Wanda Proctor has been employed by the Respondent as a
CNA since 1982. Since the Union became the bargaining repre-
sentative at the facility in 1986, she has been an active member,
serving as a delegate for 4 years, as president of the Union Lo-
cal for 4 years, and on its executive board for 9 years. She testi-
fied that during the year preceding her termination on August
19, 1995, in her capacity as a union representative, she had
assisted in processing approximately 20 grievances for employ-
ees of the facility. Proctor testified that during May or June
1995, while shopping with her husband, Danny, in a depart-
ment store in Summersville, West Virginia, she encountered
Pam Dobson, who was then the assistant administrator of the
facility. Dobson introduced Proctor to her boyfriend, who was
also named Danny, by saying, “[T]his is Wanda Proctor, our
union nuisance,” and said, “[W]e’d like to get rid of her be-
cause she causes all the problems at the nursing home.” Proctor

9 According to its employee handbook this could not be the basis of
disciplinary action after 12 months.
10 Carden testified without contradiction that these absences had re-
sulted from her involvement in an automobile accident.
responded that although Dobson was joking, she really meant
it. Dobson also said that she had gotten up one morning and
turned on the television and there was Proctor on “Good Morn-
ing America.” Proctor said that she and Union Official Teresa
Ball had appeared on the program and had expressed the Un-
ion’s concern about funds being cut for an OSHA program
involving the health and safety of nursing home workers. Proc-
tor’s husband also testified to meeting Dobson and her boy-
friend and hearing Dobson refer to his wife as a union nuisance
that they would like to get rid of if they could and as “Miss
Good Morning America.” The complaint alleges that Dobson’s
comments about Proctor being a union nuisance that the Em-
ployer would like to get rid of were coercive and violated Sec-
tion 8(a)(1).
Dobson and her boyfriend, Danny Woolums, appeared as
witnesses for the Respondent. Dobson testified that she encoun-
tered Proctor at the department store in Summersville and they
exchanged greetings and discussed the clothing on sale. She
introduced Proctor to Woolums as someone who worked at the
nursing home and later Proctor’s husband came by and was
introduced. Woolums testified that while shopping with Dob-
son they met Proctor in the store and Dobson introduced her as
someone from work. They talked about clothing and then Proc-
tor’s husband came along and was introduced to them.
Analysis and Conclusions
I credit the testimony of Proctor, which was corroborated by
her husband, that Dobson referred to her as “a union nuisance”
that they would like to be rid of because of the problems she
caused at the nursing home. Although recognizing that Proctor
has a financial interest in the outcome of this proceeding, hav-
ing observed the demeanor of all four witnesses to the incident,
I found no reason to doubt the testimony of the Proctors as to
what occurred or to believe that they fabricated any part of the
conversation.11 Their testimony was mutually corroborative but
was not so similar as to suggest collusion.12 I also believe that,
more than a year later, Proctor would be more likely to remem-
ber the details of such an incident than would the others, par-
ticularly, Woolums, a casual witness to a brief and apparently
jocular exchange between Dobson and a person who was a
complete stranger to him. Significantly, while they both gave a
generalized description of the conversation between Dobson
and Proctor, neither Dobson nor Woolums was specifically
asked about the allegedly unlawful statements attributed to
Dobson by the Proctors. Consequently, the Proctors’ credible
testimony that those statements were made was not directly
contradicted nor did Dobson deny making them.
The remaining question is whether Dobson’s comments were
coercive and unlawful. The Board considers all of the surround-
ing circumstances and uses an objective standard in determin-
ing whether a statement violates the Act. E.g., Mediplex of
Danbury, 314 NLRB 470, 471 (1994); Interstate Truck Parts,
312 NLRB 661, 663 (1993); and Sunnyside Home Care Pro-
ject, 308 NLRB 346 fn. 1 (1992). I find that Dobson’s referring
to Proctor as a union nuisance who caused problems and saying
11 If Proctor had fabricated Dobson’s remarks, it is unlikely that she
would attribute them to her in a conversation witnessed by Dobson’s
boyfriend.
12 I do not find the fact that in his testimony Danny Proctor said that
Dobson made the “nuisance” remark when he was introduced to her
rather than when Woolums was introduced casts any significant doubt
on the testimony of either of the Proctors.
NICHOLAS COUNTY HEALTH CARE CENTER 977
that the Employer would like to get rid of her would cause a
reasonable person to believe that her job was in jeopardy be-
cause she had engaged in protected activity. See, e.g., Jay Met-
als, 308 NLRB 167 (1992); and Garrison Valley Center, 246
NLRB 700, 708–709 (1979). The fact that the statements were
made away from the facility and in a somewhat jocular manner
did not lessen their coercive effect. It was Dobson who raised
the subject of Proctor’s union activity for no apparent reason
other than to make it clear that the Employer did not approve of
it. At the time, Proctor said that she knew it was not really a
joke and Dobson made no response. The unlawful effect of a
coercive statement is not blunted by the fact that it is accompa-
nied by laughter or made in a humorous way. Meisner Electric,
Inc., 316 NLRB 597, 599 (1995); NLRB v. Intertherm, Inc., 596
F.2d 267, 272–273 (8th Cir. 1979). I find that Dobson’s com-
ments were coercive and violated Section 8(a)(1).
b. Warnings and discharge
On August 30, 1995, Proctor was issued six disciplinary
warnings and was informed that she had been terminated by the
Respondent. Three of the warnings involved her alleged har-
assment and intimidation of a coworker and three concern al-
leged safety violations, negligence, and abuse of residents dur-
ing restorative feeding on August 19, 1995. The complaint
alleges that these disciplinary actions were discriminatory and
violated Section 8(a)(3) and (1).
Proctor testified that on August 19, she was assigned as usual
to the restorative feeding program in which approximately 10
residents who have problems eating are taken to the East Wing
residents’ lounge for their meals and are encouraged and as-
sisted to feed themselves. Marsha Bailey, a CNA who had re-
cently finished LPN training but had not been licensed, was
also assigned to the restorative feeding program that day. As
they were taking residents to the lounge for breakfast, they
encountered CNA’s Janet Tinney and Melissa Roach in an
apparent argument. Proctor asked Bailey what was going on
and she responded that they were talking about a rumor that
Roach and Bailey, who had both taken the LPN course, were
being paid $8.50 per hour although they were still working as
CNAs. When they got to the dining area, Proctor asked Bailey
if the rumor was true. Bailey responded that they were making
“nursing wages,” which she later admitted to be $8.50 per hour.
Proctor said that was not fair as she had been a CNA for nearly
15 years and was making only $6.67 per hour for doing the
same job as Bailey and Roach. Bailey said that they were only
doing the CNA work to help out with short staffing, which
would be alleviated in a couple of weeks when a new CNA
class would be finished. Later that morning, Proctor took her
break in the employees’ lounge where Bailey and CNA’s
Velma Hoover, Clarice Holcomb, and Delores Whittington
were present. Proctor asked if they knew that Roach and Bailey
were being paid $8.50 per hour and Hoover responded that it
had been going on for at least 2 weeks. Proctor asked Bailey to
confirm that she was making $8.50 per hour. Bailey responded
that she had not said that, but only that she was making nursing
wages. When Proctor said that it was not fair that Bailey was
making $8.50 for doing the same work as the CNAs, Bailey got
up and left the room, leaving behind her drink and snack.
Proctor testified that, during the midday feeding that same
day, Bailey left the lounge to take a telephone call at the front
desk, leaving Proctor alone with the residents for 5 to 10 min-
utes. While Bailey was gone, the pay telephone in the lounge
rang and Proctor got up to answer it. When she picked up the
receiver, there was nobody on the line. It took her approxi-
mately 20 seconds to walk to the phone and back. During her
afternoon break, Proctor used the pay telephone to attempt to
call union representative Hornick to discuss what she consid-
ered to be a violation of the collective-bargaining agreement,
but was unable to reach him. During the workday, Proctor in-
jured her shoulder. She reported it to a supervisor and filled out
an incident report before leaving the facility. That evening she
sought medical assistance at the local hospital. The shoulder
was ex-rayed and she was given medication and told to see her
personal physician. She was not scheduled to work on Sunday
and that evening called the facility to say that she would be
unable to work on Monday. On Monday, she took a doctor’s
excuse and a worker’s compensation form to the facility and
was told by Carpenter, without elaboration, that she might need
to talk to her during the week. On Tuesday morning, Carpenter
called and said Proctor had to come to the facility because there
was an investigation going on. Proctor said that she was going
to contact Hornick and Carpenter said that would not be neces-
sary. Later that day, she received a call from Underwood who
said she had to come to the facility because of the investigation.
He asked her if she wanted the investigation to be done by the
Respondent or the State and Proctor said the State. Underwood
responded that he did not want to talk to her then and hung up.
On Wednesday, Carpenter called and told her to come to the
facility at 10:30 that morning. She arrived at the facility with
Hornick. Underwood told them that it was an investigation of
abuse and said there was no need for Hornick to be there. When
Hornick said that Proctor was entitled to be represented, Un-
derwood said he could not be present and asked if Proctor
wanted to talk to them alone. She said she did not want to do so
without Hornick and left. Proctor and Hornick went to the local
department of human services office to see if any abuse charges
had been filed against her and were told there were none pend-
ing. She was never subsequently informed of any charges being
filed against her or of any investigation. Her CNA license was
renewed by that department in December 1995. Proctor re-
ceived in the mail copies of the six disciplinary warning notices
issued by the Respondent and the termination letter, dated Au-
gust 30, 1995.
Bailey testified that during a morning in August 1995, while
they were taking residents to the lounge for restorative feeding,
Proctor asked her how much she was making and she re-
sponded that it was nobody’s business. While they were doing
the breakfast feeding, Proctor said that Bailey was making
$8.50 per hour. Bailey denied it and said it was nobody’s busi-
ness what she was making. Proctor said that it was unfair to be
making that much while working as a CNA. Bailey responded
that it was her decision and her business only. Proctor said that
she was going to call Hornick about it and file a grievance.
Bailey testified that after the feeding was finished and she was
transporting residents to their rooms, she observed Proctor us-
ing the telephone in the lounge. Three different times, when she
returned to the lounge after transporting a resident, she saw
Proctor with her hand on the telephone receiver. She did not
hear the telephone ring before she observed Proctor near it.
Each time Bailey entered the lounge, Proctor would hang up the
receiver and go back to feeding residents. After the third time,
Bailey asked Melissa Roach to come and be a witness for her
that Proctor was using the telephone. During her morning
break, Bailey went to the employees’ lounge where Proctor and
three others were present. Proctor said that she was making
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 978
$8.50 per hour and she denied it. Proctor said that Bailey had
told her she was making $8.50 per hour, Bailey denied it, got
up and left the room. Bailey went to Supervisor Katherine
Hamrick and told her she wanted to file a complaint over being
harassed. Hamrick told her they needed to talk to Underwood
and tried to call him at his home, but he was not there. She had
no additional confrontations with Proctor during the day. That
evening she called Underwood at his home and reported what
had occurred.
Melissa Roach testified that around lunchtime on a day in
August 1995, while she was transporting residents from the
dining room, Bailey asked her to keep an eye on the residents in
restorative feeding while she was transporting some to their
rooms. Roach stepped into the lounge and observed Proctor at
the pay phone with her hand on the receiver. When Proctor saw
Roach, she took her hand off the phone and returned to the
residents. She had not heard the phone ring before she observed
Proctor near it. Later that afternoon, at the east wing desk, she
saw Bailey who was upset and crying. Kathy Hamrick asked
her to write down everything she knew about any conversation
between Proctor and Bailey and she did so.
LPN Supervisor Katherine Hamrick testified that she was
called in to work as a replacement on the morning of Saturday,
August 19. Shortly after she arrived, Bailey came to her and
said that Proctor had harassed her about her wage rate and that
she wanted to file a complaint. Hamrick told her to write down
what had happened and not to get into any confrontation with
anyone or she would have to send her home. She testified that
Roach, who was also present, confirmed that what Bailey had
said about Proctor had happened. She told them to write down
what had happened, but neither gave her a written statement
that day. Hamrick also testified that neither Bailey nor Roach
ever reported that Proctor had done anything neglectful or abu-
sive of any resident or said anything about her using the tele-
phone.
Agnes Carpenter testified that she was informed by Hamrick
that there had been some harassment and conflict at the facility
on the weekend. She spoke to Bailey and Roach and had them
write out statements. Bailey alleged that she had been harassed
by Proctor in the breakroom and that Proctor had left the re-
storative feeders while she used the telephone. She also spoke
with and obtained written statements from Hoover, Holcomb,
and Whittington. She testified that she invited Proctor to come
to the facility to give her side of the story, but she never came
in to make a statement. She determined that Proctor’s actions
constituted neglect of patients and she sent a report to the CNA
neglect and abuse registry in Charleston. Carpenter testified
that she made the decision to discharge Proctor, that she pre-
pared six disciplinary warning notices and composed a letter
informing her that she was discharged and mailed them to her.
Underwood testified that after he received a complaint about
Proctor from Bailey he instructed Carpenter to investigate the
matter. He said that he reviewed the statements that had been
given and that he was concerned that they did not have Proc-
tor’s side of the story. She was invited to come in and he re-
ceived a communication from Hornick that he wanted to repre-
sent Proctor during “this investigation hearing.” After confer-
ring with his counsel, Underwood refused to let Hornick repre-
sent her and gave Proctor the option of being interviewed alone
or not at all. She chose the latter option. Underwood reviewed
the results of the investigation, conferred with an attorney and
Ferguson and made the decision to discharge Proctor.
Analysis and Conclusions
I find that the General Counsel has made out a prima facie
case under Wright Line, supra, that the disciplinary action taken
against Proctor was discriminatory. Proctor was the most
prominent representative of the Union among the employees at
the facility. There is ample evidence of the Respondent’s ani-
mus toward the Union and toward Proctor, individually, includ-
ing, Underwood’s threat to get rid of the troublemakers who
filed grievances and Dobson’s statement that the Respondent
would like to be rid of Proctor because she was a union nui-
sance and always causing trouble. In addition, former employee
Brenda Triplett credibly testified, without contradiction, that
during the summer of 1995 she had a conversation with Un-
derwood in his office in which he commented that he had got-
ten rid of Eula Carden and that he “needed one more thing to
get rid of” Proctor. While the Respondent seeks to dismiss Un-
derwood’s statement as merely “gossiping to an outsider about
common acquaintances,” considering all of the surrounding
circumstances, I find it is additional evidence of the Respon-
dent’s animus toward Proctor because of her protected activity
and that it was seeking an excuse to get rid of her. I also find
that the excuses it used a short time later to discharge her, the
alleged harassment of Bailey and neglect of residents, were
pretexts.
The “evidence” relied on by the Respondent in support of its
findings concerning the allegations against Proctor on August
19 came from primarily two sources, Bailey and Roach. Both
were recent graduates of an LPN course that they had financed
through loans from the Respondent. In August 1995, although
they had not yet obtained LPN licenses and were working as
CNAs, both were being paid by the Respondent at LPN wage
rates, which were substantially more than what even longtime
CNAs were being paid.13 I find these factors, coupled with the
discrepancies in their testimony discussed below, cast serious
doubt on their motives and veracity. The above-described tes-
timony of Proctor as to what occurred between her and Bailey
that day was credible, was corroborated in large part and was
uncontradicted by any credible evidence. I find that the inci-
dents occurred as stated in the testimony of Proctor.
The three disciplinary warnings issued to Proctor relating to
Bailey assert that she (1) intimidated and threatened Bailey, (2)
interfered with her ability to perform her work, and (3) verbally
harassed and made discriminating statements to her. The credi-
ble evidence establishes that, after Bailey voluntarily admitted
to her that the Respondent was paying her $8.50 to perform
CNA work, Proctor told her that it was unfair and that she was
going to file a grievance. Later, in the lounge, when Proctor
asked her to confirm that she was making $8.50 per hour, Bai-
ley denied it, got upset and left the room. There is no evidence
that Proctor ever spoke to Bailey in anything other than a con-
versational tone, that she was in any way rude, loud or boister-
ous, or that she did any finger pointing or made any other ges-
tures toward her. None of the three CNA’s who were present in
the employees’ lounge that day, Holcomb, Whittington, or
Hoover, who appeared as a witness for the Respondent, testi-
fied to observing anything about Proctor’s conduct or demeanor
that was intimidating or abusive. In Hoover’s words, Proctor
was “calm, but inquisitive” and the conversation lasted no more

13 This was apparently through a special arrangement with Under-
wood since Director of Nursing Carpenter testified that she had no idea
what they were being paid.
NICHOLAS COUNTY HEALTH CARE CENTER 979
than one or two minutes. All three gave statements to Carpenter
as to what they observed before her decision to terminate Proc-
tor was made. I find that there was no reasonable, objective
basis on which Carpenter could have concluded that Proctor
had harassed or intimidated Bailey by asking her what she was
being paid. Contrary to Bailey’s opinion, that it was nobody’s
business what she was being paid, as a member of the bargain-
ing unit, Proctor had a right to inquire as to whether the Re-
spondent was complying with the contract provisions concern-
ing the CNA’s wage rates. As the highest ranking union repre-
sentative at the facility, it was her responsibility to do so. She
was engaged in protected activity when she did so. NLRB v.
City Disposal Systems, 465 U.S. 822 (1984); and Tillford Con-
tractors, 317 NLRB 68, 69 (1995). There is no evidence that
anything in her conduct was so flagrant, violent or extreme as
to remove it from the protection of the Act.
There is no evidence that Bailey was in any way impeded or
prevented from performing any of her duties on August 19 or
that she failed to perform any; consequently, the disciplinary
warning purportedly based on that assertion is a pretext. Simi-
larly, there is no evidence of Proctor making any “discrimina-
tory” statements to Bailey. According to Carpenter, the action
of Proctor that “threatened” Bailey was her saying that she was
going to file a grievance over the fact that the Respondent was
paying Bailey more than the contract wage rate for working as
a CNA. Proctor’s statement of her intent to take action to en-
force the collective-bargaining agreement was protected by the
Act and could not lawfully be the basis for disciplinary action
against her. NLRB v. City Disposal Systems, supra. I find that
all three disciplinary warnings issued to Proctor arising from
her questions and statements to Bailey on August 19 were pre-
texts, were intended to penalize her for engaging in protected
activity, and violated Section 8(a)(3) and (1) of the Act.
The other three disciplinary warnings underlying Proctor’s
discharge concern her alleged neglect of residents by using the
telephone three times during restorative feeding on August 19.
These warnings are based solely on the accounts of what oc-
curred given by Bailey and Roach. I find that there are serious
questions about their motivation in making these allegations
against Proctor. At the time of the alleged incident, both were
financially indebted to the Respondent and were being ac-
corded preferential wage treatment by virtue of a special ar-
rangement they had with Underwood. Although she was not a
party to or even a witness to any of the conversations between
Proctor and Bailey that day, Roach joined Bailey in complain-
ing to supervisor Hamrick about Proctor’s conduct. According
to the testimony of Hamrick, Roach implied that she was a
witness to Proctor’s alleged harassment of Bailey and she told
both to prepare written statements about what had occurred.
Ironically, Proctor’s discussion with Bailey about the wage rate
she was being paid was little different than that between Janet
Tinney and Roach on the same day except that it was appar-
ently less acrimonious than the Tinney/Roach discussion. How-
ever, Roach made no complaint about the practically identical
conduct of Tinney. Moreover, although Bailey claimed she was
so concerned over Proctor’s using the telephone during the
restorative feeding that she asked Roach to keep an eye on the
residents and Roach, too, claimed she saw Proctor neglect them
in the same manner, neither said anything about it to Hamrick
when they went to her to complain about Proctor or to anyone
else even though both were aware of their obligation to report
abuse or neglect of residents, immediately.14 According to
Roach, although she considered Proctor using the phone and
not attending to the residents “neglectful,” she did not know
there was “an issue” about her using the telephone until she had
a meeting with Underwood, Carpenter, and Dobson, 3 days
later. As for Bailey, despite her alleged concern over Proctor’s
neglect of the residents, she failed to mention it in the written
report she prepared which led to the “investigation” of Proctor.
I find all of the foregoing casts substantial doubt on the truth of
their allegations against Proctor.
I also find that the discrepancies in their versions of what oc-
curred lead to the conclusion that their story about Proctor us-
ing the telephone was untrue. Apart from the absurdity of the
scene their story depicts, Proctor continually going to the
phone, but each time being unable to complete a call because of
the reappearance of Bailey or the appearance of Roach, there is
a blatant discrepancy as to when the incident occurred. Bailey
claimed it was at the end of the breakfast feeding, apparently, in
order to imply that Proctor was calling Hornick about filing a
grievance as she had told Bailey during the feeding that she
intended to do. Roach, however, in her testimony and in a writ-
ten statement she prepared for the Respondent, dated August
22, 1995, said, it occurred during the luncheon feeding. An-
other discrepancy involves how Roach came to observe Proctor
at the telephone. She testified that as she was coming down the
hallway, Bailey, who was transporting a resident, asked her to
watch the remaining residents. After Bailey went by her, she
went to the lounge and looked in. However, Bailey claimed that
she took Roach to the lounge and together they observed Proc-
tor at the telephone for what, according to her version, would
have been a fourth time. Their versions cannot be reconciled.
Having observed their demeanor while testifying, much of
which involved answers to leading questions by the Respon-
dent’s counsel, I did not believe them and I find that the entire
incident was a fabrication.
The Respondent’s action in disciplining Proctor for engaging
in protected activity was clearly unlawful. I also find that the
disciplinary action against her based on the fabricated allega-
tions of abuse or neglect of residents was also unlawful. The
Board considers an employer’s failure to make a meaningful
investigation of alleged misconduct or to inform an employee
of the allegations against them and to permit them to explain
their actions to be significant evidence of discrimination. E.g.,
Burger King Corp., 279 NLRB 227, 239 (1986); and Syncro
Corp., 259 NLRB 161, 171–172 (1981). I find that the evidence
establishes that the Respondent’s “investigation” of Proctor’s
alleged actions was so deficient as to constitute a sham and that
it provides no reasonable basis for taking disciplinary action
against her. Although Underwood testified that he recognized
that it was important to have Proctor’s side of the story before
reaching any conclusions, he effectively precluded her from
giving it by refusing her request to have union representation at
the investigatory interview he scheduled. He gave no reason for
doing so other than that he acted on the advice of legal counsel.
While the Respondent may have acted in accordance with
NLRB v. Weingarten, Inc.,15 by foregoing an interview with
Proctor when she insisted on representation, an investigation of

14 Bailey’s failure to say anything to Proctor about her repeatedly
neglecting the residents, while it was allegedly occurring, and her fail-
ure to mention it in the written statement she prepared for the Respon-
dent indicates it never happened.
15 420 U.S. 251 (1975).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 980
the incident which did not include her side of the story was
admittedly deficient. Moreover, its conclusion that Proctor was
guilty of neglect, based solely on the questionable and contra-
dictory stories of Bailey and Roach, indicates that it was willing
to use any excuse to justify terminating her. As noted, although
it was Bailey’s complaint which led to the “investigation” of
Proctor’s conduct, her written report makes no mention of the
telephone incident. The lack of depth and accuracy of the Re-
spondent’s “investigation” is apparent from the conclusions
stated in the warning notices prepared by Carpenter and the
report she made to the abuse registry. That report identifies
Bailey as the complainant, it states that the incident occurred at
about noon, and that it involved all of the ten residents in the
restorative feeding program. According to Bailey’s testimony,
the incident happened at breakfast after a number of residents
had left the lounge. Carpenter obviously made no effort to get
her facts straight to resolve the obvious conflicts between the
versions of Bailey and Roach, or to ascertain what really hap-
pened.16 I also find that the Respondent’s failure to even dis-
cuss with Bailey and Roach that they were required to immedi-
ately report the neglect of residents they claimed to have ob-
served, let alone take any disciplinary action against either of
them, is further evidence that it never happened.17 Having con-
cluded that the warnings issued to Proctor were pretexts, I find
that the Respondent has not established that it would have dis-
ciplined or terminated her in the absence of protected activity
on her part and that by doing so it violated Section 8(a)(3) and
(1) of the Act.
3. Allegations concerning Mabel Bailes
a. Interrogation
Mabel Bailes testified that she has worked for the Respon-
dent as a CNA for over 6 years. She is a member of the Union
and has has served as a delegate. In January 1996, she made
telephone calls to several other employees in the course of
which she discussed personal and family matters, but also ex-
pressed her concern that if the Union was broken by the Re-
spondent, Underwood could knock down the pay of the CNAs
to the minimum wage. She was later called into Underwood’s
office where Dobson and Sandra Amick were also present.
Underwood questioned her about her calls to employees and
asked if she had harassed them or threatened their property.
Bailes denied harassing or threatening anyone and told him it
was none of his business what she did on the telephone at her
home. During the conversation, Underwood referred to Proctor
and said that while he couldn’t do anything about Proctor, who
was no longer working there, he would fire Bailes if she con-
tinued to make such calls. The complaint alleges that Under-
wood’s interrogation of Bailes was coercive and violated Sec-
tion 8(a)(1).
Underwood testified that he received an informal complaint
from the head of the dietary department that Bailes and Proctor
were calling employees at their homes. He spoke to Bailes to
make her aware of their concerns and alleviate the problem.

16 At one point, Bailey testified that she had never talked to Carpen-
ter about the incident.
17 There is a striking contrast between the Respondent’s lack of ac-
tion against Bailey and Roach and the fact that, in January 1995, it
disciplined and suspended for 3 days Supervisor Sandra Amick because
she had “messed up” what Underwood apparently considered an oppor-
tunity to terminate Proctor.
Analysis and Conclusions
Bailes’ testimony about what occurred at this meeting with
Underwood was credible and uncontradicted. Amick testified
that she had no recollection of the meeting. Dobson confirmed
that she was at the meeting and that Underwood talked to
Bailes about telephone calls to employees, but nothing in her
testimony contradicted that of Bailes as to what was said. Un-
derwood admitted being concerned that Bailes and Proctor
were making telephone calls to employees in which they were
discussing union matters and that he spoke to Bailes about it.
He did not deny interrogating her about the content of the calls
or threatening her with being fired if she continued to make
them. There is nothing in the record beyond the self-serving
testimony of Underwood that Bailes in any way harassed or
threatened any other employee on the telephone.18 Considering
all of the surrounding circumstances, I find that Underwood’s
interrogation of Bailes in his office in the presence of two other
supervisors concerning protected activity she engaged in away
from the facility on her own time, which included a threat to
fire her if she continued such activity, was coercive and vio-
lated Section 8(a)(1). E.g., Mediplex of Wethersfield, 320
NLRB 510, 513 (1995); and Yerger Trucking, 307 NLRB 567,
571 (1992).
b. Disciplinary warning
As is discussed in detail below, on March 4, 1996, the Union
conducted a 1-day strike at the Respondent’s facility and sev-
eral CNAs were hired as permanent replacements for strikers.
Bailes, who worked on the day shift, testified that she did not
participate in the strike but took March 4 off due to a family
situation and was replaced. She returned to work on March 13.
On the morning of April 3, while on a break, she had a conver-
sation in the breakroom with Jennifer Bragg and Velma Hoo-
ver, two employees who had not gone out on strike. During the
conversation, Bailes said that “the Labor Board had ruled on
two things in our favor” and that she thought that “Frank Hor-
nick ought to check into it and see if charges couldn’t be filed
against the girls who went ahead and worked (during the
strike).” Later that morning, she was called to Underwood’s
office where Dobson was also present. He asked what she was
talking about in the breakroom. When she tried to explain Un-
derwood got angry, said she didn’t appreciate having her job
back and left the office. After he left, Dobson told her to be
careful what she talked about, that it was a bad time to talk
about the Labor Board or the Union, and that she was a good
worker and she didn’t want to lose her. At the end of her shift,
Bailes was called to meet with Dobson and Carpenter. When
she got to the office, she was given a written warning for alleg-
edly making “false statements that threatened employees’ job
security.” Carpenter told her that the writeup was for talking
about the Union in the breakroom. The testimony of Jennifer
Bragg, who appeared as a witness for the Respondent, essen-
tially corroborates that of Bailes as to what she said in the
breakroom that day.19 Bragg, who was a part-time employee
18 On the contrary, one of the Respondent’s witnesses, Velma Tyler,
testified that Bailes had called her and talked about many things, in-
cluding the Union, that she may have mentioned it to Underwood, but
that she did not complain about it and Bailes did not harass her.
19 Hoover said that Bailes said that “the Union had won,” that all of
them would be getting their jobs back and that the Union would file
suits against those who worked on March 4. I credit the consistent
testimony of Bragg and Bailes as to what was actually said.
NICHOLAS COUNTY HEALTH CARE CENTER 981
that got a full-time position by replacing one of the strikers,
testified that although Bailes did not say anything about what
would happen to replacement workers, she felt intimidated and
harassed by what Bailes did say.20 Carpenter testified that she
told Bailes that her remarks constituted harassment because that
is the way Hoover and Bragg perceived them and that in the
future she should not “get on that subject if they are construing
it as harassment.” The complaint alleges that Dobson’s telling
Bailes not to talk about the Union violated Section 8(a)(1) and
that the warning given her as a result of this incident violated
Section 8(a)(3). The Respondent contends that it had a bona
fide interest in maintaining the morale of its workers and
Bailes’ action was contrary to that interest.
Analysis and Conclusions
It is not clear what the Respondent claims Bailes said that
constituted a “false statement.” Even if she was technically
incorrect in saying that the Board had “ruled” in favor of the
Union, apparently, because the Regional Director had deter-
mined that the Union’s charge that alleged that the March 4
strike was an unfair labor practice strike had merit, there is no
evidence that her statement was made with knowledge that it
was false or with reckless disregard of whether it was true or
false so as to remove it from the protection of the Act. Mediplex
of Wethersfield, supra at 513. Likewise, her statement that she
felt the Union should look into taking action against members
who worked during the strike, advocated its doing something it
had a legal right to do. See NLRB v. Allis Chalmers Mfg. Co.,
388 U.S. 175 (1967). The fact that other employees may have
subjectively considered her remarks to be offensive or intimi-
dating is not controlling. It is well settled that an employer
cannot lawfully take disciplinary action to stop subjectively
offensive activity without regard to whether that activity is
protected by the Act. E.g., McCarty Foods, Inc., 321 NLRB
218 (1996); Almet, Inc.; and 305 NLRB 626, 628 (1991). Under
the circumstances, Bailes’ statements constituted protected
activity. By disciplining her for engaging in such activity, the
Respondent violated Section 8(a)(3) and (1). Dobson’s telling
Bailes she should not talk about the Union or the Board and
implying that doing so would result in her discharge was coer-
cive and violated Section 8(a)(1).21
c. The 8(a)(1) allegations
(1) Allegations concerning Jim Mike Ward
Betty Scott testified that in August 1995 she attended a meet-
ing at the facility with seven or eight other employees from
several different departments conducted by Jim Mike Ward.
Ward introduced himself as a psychologist and asked about any
problems the employees might be having. During the course of
the meeting, Ward asked about how the Union came to be at the
facility and if they were satisfied with it. Scott told him that the
employees had contacted the Union about representation and
some of the employees expressed their feelings that it didn’t do
much for them. He also asked why they needed a union and
what it would be like there without a union. Scott responded

20 Underwood claimed that Bragg came to him and complained that
Bailes was spreading rumors that Bragg would lose her job. I credit the
testimony of Bragg.
21 The complaint alleged that this incident occurred on March 13,
1996. I find that the difference in dates is not significant, that the Re-
spondent was not prejudiced thereby, and that the matter was fully
litigated.
that, if it were not for the Union, Underwood would get rid of
the older workers who were making more money.
Ward testified that he is an ordained minister with counsel-
ing experience and has conducted “Quality Circle” meetings at
the facility in order to get employees’ ideas about better ways
to do things to care for the residents. He has also served as a
member of the Respondent’s bargaining team during the most
recent contract negotiations. He denied that the subject of the
Union was ever discussed at any of the quality circle meetings.
He said that he kept no notes of those meetings and had no
specific recollection of any of them.
Analysis and Conclusions
I credit the testimony of Scott, who was a credible witness
and had a specific recollection of the meeting she testified
about, over the general denial of Ward, who said he had no
specific recollection of any of the meetings he conducted and
was not asked about the remarks attributed to him at the meet-
ing in August 1995. However, after considering all the sur-
rounding circumstances, I find that Ward’s general inquiry to a
group of employees concerning how the Union came to be at
the facility and how they felt about it was not coercive or
threatening and did not constitute a violation of the Act. Scott’s
testimony does not really provide any context as to how the
subject of the Union came up. It does not appear to have been
anything more than an innocuous off-hand inquiry by Ward,
who was not directly connected with the facility. There were no
supervisors present at the meeting and Ward neither expressed
an opinion about the Union nor made any threats or promises.
Although the General Counsel argues that this was part of the
Respondent’s effort to foment dissatisfaction among the em-
ployees, which culminated in the circulation of a decertification
petition in March 1996, I find there is nothing to indicate that
Ward spoke about or suggested decertification or to connect
this meeting or his remarks to the effort which began nearly 6
months later. I shall recommend that this allegation be dis-
missed.
(2) Meeting in December 1995
In December 1995, while contract negotiations were going
on, Underwood held a meeting with employees on the night
shift to discuss the negotiations and a rumor going around the
facility that, if the Union were not present, the pay of the CNAs
was going to be reduced to the minimum wage. Underwood
said that the rumor was not true and that he could not do that.
During the meeting, CNA Barbara Spencer asked Underwood if
he could contract directly with the employees. He said he could
not discuss it at that time. After two CNAs, Karen Griffith and
Kim Wilson, left the meeting to attend to a resident, Under-
wood stated that now that a certain person had left the room,22
he could address the question. He said that he could not enter
such a contract because the Union represented the employees,
but that he could do so if it was not present. He said nothing
about getting rid of the Union or that he wanted it gone. The
General Counsel contends that, by expressing a willingness to
contract directly with the employees, Underwood unlawfully
encouraged them to get rid of the Union.
Analysis and Conclusions
Considering all of the circumstances surrounding the meet-
ing, I find that Underwood’s remarks did not violate the Act.
22 An apparent reference to Griffith whom he knew to be a union
supporter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 982
Although Underwood arranged the meeting, the remarks in
issue were made in response to a question raised by one of the
employees. Several witnesses gave consistent testimony about
what was said at the meeting but none of the versions purported
to quote Underwood, verbatim. There was general agreement
that he stated that he could not contract with the employees
because they were represented by the Union. However, al-
though there was testimony that he also stated that he “could”
do so if it were not present, he said nothing to indicate or imply
that he “would” do so, that he would like to have the opportu-
nity to do so, or that such a contract would be more favorable
than one with the Union. I shall recommend that this allegation
be dismissed.
(3) Alleged disparate application of no-solicitation rule
After the collective-bargaining agreement expired on De-
cember 31, 1995, the Respondent informed the Union that it
would no longer deduct and pay over union dues for employees
who had signed checkoff authorizations. As a result, nion offi-
cer, Patricia Brooks, began collecting dues by directly contact-
ing employee-members. In early January 1996, Underwood
called Brooks to a meeting in his office. CNA Annabel Justice
and Supervisors Kathy Hamrick and Dobson were also present.
Among matters discussed was how union dues were to be col-
lected at the facility. Underwood informed Brooks that while he
preferred that dues not be collected at the facility, if she were to
do so, it had to be done in nonwork areas during nonwork time
for all parties involved in the transaction. There is no real dis-
pute about what was said about dues collection. The General
Counsel contends that by announcing this policy with respect to
the collection of union dues at that time, the Respondent prom-
ulgated a new rule directed solely at union activity. The Re-
spondent argues that its restrictions were justified by allega-
tions of union representatives’ harassment of employees over
dues collections.
Analysis and Conclusions
As has been discussed above, in the discussion concerning
the discharge of Eula Carden, prior to January 1996, the Re-
spondent’s employee handbook contained a provision prohibit-
ing solicitations for any purpose during worktime and in work
areas. However, there was overwhelming evidence to establish
that this rule was regularly and routinely ignored and/or vio-
lated by employees, supervisors and other persons without any
disciplinary action being taken. Although in the handbook, the
almost universal disregard for its provisions and lack of any
enforcement for many years, in effect, rendered the no-
solicitation rule a nullity. With the exception of the attempt to
enforce the rule against Carden, which I have found to be
unlawful, there is no evidence that there was any effort to rees-
tablish or enforce the existing rule at any time prior to January
1996, or thereafter. Accordingly, I find that by announcing a
rule directed at and applicable only to the collection of union
dues, the Respondent violated Section 8(a)(1) by instituting a
new policy “for the purpose of interfering with and restraining
employees in the exercise of their Section 7 rights.” Nashville
Plastic Products, 313 NLRB 462 (1993); and American Com-
mercial Bank, 226 NLRB 1130, 1131 (1976).
(4) Alleged isolation of employee union officials
Wendy Holcomb worked for the Respondent as a CNA until
she was permanently replaced for participating in the strike at
the facility on March 4, 1996. Prior to becoming a CNA, she
had worked in the dietary department and was the union dele-
gate for that department. She testified that, even after she be-
came a CNA, she often took her breaks in the breakroom used
by the dietary employees when their breaktimes coincided and
that she had never been told that she could not do so. During
the first week of February 1996, Holcomb and Patricia Brooks
were sent to Underwood’s office, where Carpenter and Dobson
were also present. Underwood told Holcomb that he had heard
that she was harassing the dietary workers. Holcomb told him
that she was the delegate for that area of the facility and had a
right to go there and speak to the employees about union mat-
ters. Underwood accused her of threatening to have employee
Nancy Case fired if she did not pay her union dues. Holcomb
was told that she was not to enter the dietary area except to get
ice or something needed for the residents and she and Brooks
were told not to go into the dietary breakroom at all. They were
told that they would be disciplined if they did so. Brooks testi-
fied that she had previously visited with dietary employees in
their breakroom during break periods without ever being told
she could not do so. Underwood also told both that they were
not to arrive at the facility more than 15 minutes before the start
of their shifts. Holcomb testified that from the time she was
first employed, in January 1993, she had always arrived about a
half-hour before she clocked in and Brooks testified she usually
arrived 45 minutes ahead of time. Nothing had ever previously
been said to either about the time they came to work. These
findings are based on the consistent, specific, and detailed tes-
timony of Brooks and Holcomb, both of whom were credible
and persuasive witnesses. The testimony of Underwood, Car-
penter, and Dobson was for the most part not inconsistent with
that of Brooks and Holcomb, except that they denied that
Brooks and Holcomb were told that they could not go into the
dietary break area. Rather, they were told that they could go
there if someone asked them to come back to talk to them, but
they could not go back there against the wishes of any dietary
employee. I find that the evidence establishes that the Respon-
dent imposed restrictions on the access of Brooks and Holcomb
to the dietary area and to the facility prior to their shifts solely
because of their status as union representatives. The complaint
alleges that this violated the Act, while the Respondent con-
tends that its actions were a lawful effort to protect its employ-
ees from harassment.
Analysis and Conclusions
Again, the problem with the Respondent’s position on this
and many other issues in this case is that it fails to distinguish
what it calls “harassment” from activity that is not only lawful
but is protected by Section 7 of the Act. In essence, it contends
that if any employee subjectively perceives that what a union
supporter says or does is objectionable in some way, that con-
stitutes harassment, and the latter can be restricted or prohibited
from doing it. Carpenter testified that Underwood told Hol-
comb that dietary workers had complained that she was “going
back there on their break time and harassing them.” Dobson
gave similar testimony, while Underwood claimed that he was
merely attempting to defuse a “confrontational” situation. In
fact, the evidence establishes only that one dietary employee,
Nancy Case, had complained to the head of the dietary depart-
ment, Dottie Davis, about a conversation that she had with
Holcomb. Holcomb, in explaining why the employees needed
the Union, told Case, hypothetically, that if the Union were not
there to represent them and Case’s child got sick and she had to
NICHOLAS COUNTY HEALTH CARE CENTER 983
stay home and take care of her, and the Respondent fired her or
wrote her up for being excessively absent, it could do whatever
it wanted to do and she would have none to stand up for her.
Case testified that, although Holcomb is her aunt and was
“nice” to her, she did not like to hear her talking about the Un-
ion because it made her “nervous.” So she asked Davis to get
Underwood to prohibit Holcomb from talking “about Union
stuff” in the dietary breakroom. Although Case testified that
she had told Davis “several different times” that talk about the
Union made her nervous and she did not want to hear it, there is
no evidence that she ever said anything to Holcomb about it or
asked her not the talk to her about it. She was apparently too
reticent or polite to tell Holcomb that she did not want to dis-
cuss the Union. For example, Case described one incident in
which she was approached by Union Representative Brooks
about signing something. Although it made her “nervous” and
she did not want to be there, Case stayed in the breakroom lis-
tening to Brooks for 15 or 20 minutes, rather than telling her
she was not interested. As she put it: “I was just nervous. I
didn’t want her to think I was rude, but I didn’t want to hear
about it neither. I [was] just like stuck—just listening.”
I find there is no evidence that Holcomb had done anything
to harass Case or any other dietary worker. Since her discus-
sions concerning the Union were protected by the Act, I also
find that the Respondent violated Section 8(a)(1) by Under-
wood’s using Case’s unhappiness over a conversation with
Holcomb to pretextually accuse Holcomb of harassing dietary
workers. Peck, Inc., 269 NLRB 451, 459 (1984). It further vio-
lated Section 8(a)(1) by discriminatorily restricting the access
of Holcomb and Brooks to the dietary area, solely because of
their status as union representatives.23 E.g., Miller Group, 310
NLRB 1235, 1238 (1993); and Florida Tile Co., 300 NLRB
739, 741 (1990). It also violated Section 8(a)(1) by discrimina-
torily restricting them from arriving at the facility more than 15
minutes before the start of their shifts. Underwood admitted
that this was done because, in his opinion, they were “infring-
ing” on employees’ rights by talking to them about union mat-
ters and seeking to collect union dues that the Respondent had
ceased withholding.
(5) Alleged supervisory surveillance
The complaint alleges that around the latter part of Decem-
ber 1995, the Respondent created the impression of surveillance
and conducted surveillance of employees’ protected activity by
means of an increased presence of certain of its supervisors in
employee breakrooms. In addition to a break area used by die-
tary employees, there is a large breakroom in which smoking is
allowed and which has a refrigerator and a microwave oven and
a smaller nonsmoking breakroom that has some vending ma-
chines. There was evidence that Union President Brooks used
the smoking breakroom to communicate with employees con-
cerning union business before work and during breaks. Brooks
testified that prior to December 1995, supervisors were not in
the room very often when she was taking breaks, but that be-
ginning about that time whenever she took a break there, Car-
penter and staff development coordinator, Elizabeth Beckett,
would be present and would stay there until she left. Brooks

23 While I credit the testimony of Holcomb and Brooks that Under-
wood told them they could only enter the dietary area if their work
required it, the restriction described by Carpenter—they could only
enter if invited and could only discuss the Union if no employee ob-
jected—was no less of an infringement on their rights.
and others testified that Carpenter did not smoke and some-
times appeared to be uncomfortable as she sat fanning herself
with a newspaper or asked to have the window opened. Brooks
said that the increased presence of supervisors in the room in-
hibited her and other employees from discussing the Union.
Wendy Holcomb testified that on one occasion while in the
breakroom she had composed a poem concerning supporting
the Union which she had shown only to people in the room and
was thereafter questioned about it by Underwood. The General
Counsel cites this as evidence of actual surveillance of pro-
tected activity. There was a great deal of testimony by wit-
nesses who were supporters of the Union that they noticed an
increase in the presence of various supervisors in the
breakroom when employees were taking their breaks.
On the other hand, the Respondent presented the testimony
of numerous employees that they had noticed no significant
change in the number of supervisors or the frequency of their
visits to the breakrooms during the period in question. The
breakrooms have always been available to and used by supervi-
sors who do not have any break area of their own and the smok-
ing breakroom is the only break area in the building where
employees can smoke. Witnesses on both sides testified that,
even though they do not smoke, they use the smoking
breakroom because it is larger and is used by more people than
the nonsmoking room. There was also evidence that use of the
smoking breakroom increased during the winter months when
employees could not go outside for breaks. Carpenter testified
that although she rarely smokes, it does not bother her, that she
usually used the smoking breakroom and that her usage did not
change. Sandra Amick testified that has worked at the facility
for over 11 years, that she does not smoke, but has used the
smoking breakroom for her breaks at times because it has a
window and her usage has not changed. Elizabeth Beckett testi-
fied that depending on the weather she takes her breaks outside
or in the smoking break room and that her usage of the room
has not changed. She said that Carpenter is her mother and that
they often took their breaks together. She also testified that she
has observed no change in the utilization of the smoking
breakroom by other supervisors.
Analysis and Conclusions
The testimony of numerous witnesses as to their observa-
tions concerning usage of the smoking breakroom by supervi-
sors established nothing conclusively. For every witness who
testified that the supervisors’ use of the room had increased as
alleged in the complaint, there was another who testified to
observing no change in the number of supervisors using it or
the frequency of their use. None of the supervisors who ap-
peared as witnesses for the Respondent admitted to any in-
crease in their usage of the room. I find that the testimony of
Linda Cogar does not support a finding that supervisors were
directed to monitor employees during their breaks, as the Gen-
eral Counsel contends. Cogar is an LPN who had worked at the
facility for about 6 years until March 21, 1996, when she re-
signed. At the time she left, she was a charge nurse on the 3 to
11 p.m. shift who supervised CNAs. Cogar testified that Car-
penter had asked her if she would work on one of her days off.
She did not specify a date but the testimony of Carpenter estab-
lishes it to be a day or two before the strike. Cogar assumed
that she was to replace someone who was off, but Carpenter
told her she did not want her to do anything but “walk around
and watch the girls” and that when they took a break, she was
to take a break with them. She did not work a regular shift but
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 984
was there from about 8 a.m. to 5 p.m. and all of the regularly
scheduled LPNs were also working. Carpenter told her she did
not want the girls talking about the Union on company time and
if she heard them doing so she was to break it up. While she
was told to go into the breakroom with the CNAs, she was not
told to monitor their conversations in the breakroom or to re-
port back to Carpenter what she observed. Carpenter testified
that she asked Cogar to work that day because she “needed
beefed up supervision” because of the planned walkout. Car-
penter credibly denied telling Cogar that she was to take her
breaks with the CNAs. After considering the testimony of Co-
gar and Carpenter, I find that it while it may establish that Co-
gar’s presence that day was intended to inhibit employees from
talking about union matters while working, it does not establish
that supervisors had been directed to monitor employee conver-
sations in the breakroom on that day or any other. On the con-
trary, the fact the she was not directed to do so on that day or at
any time before is consistent with a finding that there was no
such effort by the supervisors. I find that the General Counsel
has failed to establish by a preponderance of the evidence the
allegation that the Respondent created the impression of sur-
veillance of protected activity through an increase in the num-
ber or frequency of supervisory visits to the breakrooms.
I also find that the allegation concerning actual surveillance,
in the case of Wendy Holcomb’s poem, has not been estab-
lished. As noted, the breakrooms were regularly used by super-
visory and nonsupervisory employees alike. The smoking
breakroom where union members sometimes conducted busi-
ness was the only place in the building where smoking was
permitted and had often been used by supervisors, even those
who did not smoke. When protected activity is conducted in
such a public area, to be unlawful, the alleged surveillance must
be something other than the result of “fortuitous” circumstances
and must involve suspicious behavior or untoward conduct.
Hoyt Water Heater Co., 282 NLRB 1348, 1357 (1987); and
Goosen Co., 254 NLRB 339, 353 (1981). Here, Holcomb
showed or, perhaps, read her poem to people present in the
breakroom. From all that appears, it was a spontaneous event
and not part of a union meeting. It is entirely possible that this
may have been observed by a supervisor who was “fortui-
tously” taking a break at the time. Under the circumstances, I
find that a violation of Section 8(a)(1) has not been established.
(6) Alleged threats to fire strikers
(a) February 16, 1996
Linda Wright has been employed at the facility as a CNA for
about 8 years. She testified that on February 16, 1996, she and
Linda Williams went to the facility to pick up their paychecks.
While there, they encountered Underwood. Williams asked him
what would happen if there was a strike and they did not show
up for work. Underwood responded that they would be fired.
Underwood testified that sometime before the union issued the
strike notice on February 20, he spoke with Wright and Wil-
liams. He said he was asked by Williams if they went on strike
was he going to fire them. He said he was not going to fire
them and that she had the wrong “terminology.” He went into
an explanation of the meaning of “permanently replaced,” in-
cluding, the fact that employees who were replaced would be
put on a preferential recall list.
Analysis and Conclusions
Wright was a credible witness and her version of what oc-
curred and what Underwood actually said is essentially cor-
roborated by Williams, a former member of the union negotiat-
ing committee, who did not participate in the strike, later signed
the decertification petition, and appeared as a witness for the
Respondent. Williams testified that when she asked Underwood
if they would be fired if they went on strike, he said yes. Then
he turned around and said he would have to check with his
lawyers before he could definitely say yes or no. However, in a
note about the incident she made about the incident on Febru-
ary 25, 1996, she wrote: “His answer was, ‘yes I will fire you.’”
Neither Wright nor Williams mentioned Underwood’s saying
anything about or attempting to define “permanently re-
placed”24 or discussing recall rights or procedures. I credit
Wright’s version of the incident over the self-serving testimony
of Underwood. As a current employee testifying contrary to her
employer’s interest, Wright was unlikely to fabricate such an
incident and her testimony was corroborated by the Respon-
dent’s own witness, Williams. I also reject the Respondent’s
argument that the incident was de minimus and that any coer-
cive effect of Underwood’s statement was remedied and had no
effect on employees. Although there was evidence that the
Respondent on a number of occasions advised employees that
they would be “permanently replaced” in the event they partici-
pated in the strike, there is none that Underwood’s statement to
Wright and Williams was ever specifically repudiated.25 The
testimony of several employees establishes that before the
strike there was more than a little confusion over the meaning
of the term “permanently replaced.” There was unlikely to be
any confusion over Underwood’s unequivocal, “I will fire
you.” I find that such an unrepudiated threat from the highest
official at the facility was coercive and interfered with employ-
ees’ rights in violation of Section 8(a)(1). E.g., Caterair Inter-
national, 309 NLRB 869, 879 (1992); and Western Publishing
Co., 269 NLRB 355, 357–358 (1984).
(b) Week of February 26, 1996
Patsy Davis has been employed at the facility as a CNA
since April 1989. She testified that during the week before the
strike on March 4, 1996, Supervisor Sharon Amick26 came to
her work area and asked her if she was going to work on March
4. When Davis said, “[N]o,” Amick told her that “Gene said”
she would lose her position if she didn’t. On another occasion
that week, they had a similar conversation in which Amick
added that she “hated to lose a good care nurse.” During the
same week, Underwood came up to her and asked her if she
was going to work on March 4. She told him she could not

24 In its brief, the Respondent’s counsel refers to the fact that the
General Counsel did not recall Wright or Williams to rebut Under-
wood’s version of the conversation and implies that an adverse infer-
ence should be drawn. They had both fully described the conversation
and it was neither necessary nor appropriate to recall them to rebut
Underwood’s testimony.
25 Even under Williams’ version of the incident there was no repu-
diation of the unlawful threat, as there is no evidence that Underwood
ever corrected his statement or spoke to them about it after checking
with his lawyers. Also, as is discussed below, this was not the only
instance in which a supervisor told employees they would be termi-
nated if they went on strike.
26 The complaint allegation concerning these incidents refers to Su-
pervisor “Sharon Richardson.” There is no dispute but that Sharon
Amick is the same person.
NICHOLAS COUNTY HEALTH CARE CENTER 985
cross the picket line. He told her she would lose her position if
she went on strike. As she was leaving to go home on the last
day that she worked before the strike, Underwood again ques-
tioned her about whether she was going to work on the day of
the strike. She said, “[N]o” and this time in addition to telling
her she would lose her position, he also said she would be per-
manently replaced and put on a callback list.
Amick testified that sometime before the strike she saw
Davis crying. She asked her what was wrong and Davis asked
if it was true that people were going to be replaced if they did
not show up for work. Amick told her as far as she knew that
was true. Underwood testified that he “probably” had a conver-
sation with Davis about what would happen to her if she went
on strike. He said that he thought she had asked him what
would happen to her and that he told her it was his intention to
replace those workers who did not come to work the day of the
strike.
Analysis and Conclusions
Having observed their demeanor while testifying, I credit the
testimony of Davis over that of both Amick and Underwood.
She was a credible witness and is a current employee of the
Respondent. Amick’s antipathy toward the Union was apparent
from her demeanor as a witness, her testimony, and her posting
at the facility a note calling attention to a newspaper article
containing statements by a union representative she found of-
fensive. Davis admitted to being upset during a conversation
with Amick. The Respondent apparently contends that she was
upset after reading the letter that it sent to employees informing
them that they would be permanently replaced if they went on
strike. However, Davis credibly denied that the letter was in-
volved in her conversation with Amick. I find it likely that
Davis was upset by Amick’s telling her that she was going to
lose her job. In the case of Underwood, he appeared to have no
real recollection of the conversations with Davis and testified to
what he “probably” said to her. Their versions of what was said
in the second conversation Davis described did not differ
greatly. However, while Davis said that he again sought her out
to ask if she would work on the day of the strike, Underwood
implied that it was Davis who had initiated the exchange by
asking what would happen to her if she went on strike. This
was in response to a leading question from the Respondent’s
counsel after Underwood had just finished saying that he had
been out on the floor talking to employees in order to get an
indication as to whether they were going to work or not. I find
that the conversations occurred as described by Davis and es-
tablish that on two occasions Amick came to her to inquire if
she was going to join the strike. When Davis said that she
would, Amick told her flatly that she would lose her job if she
did. Her statements violated Section 8(a)(1). Underwood’s
statement in their first conversation that she would lose her job
if she went on strike was a similar violation. Since the strike
was an unfair labor practice strike Underwood’s threat in the
second conversation to permanently replace the strikers also
violated the Act. E.g., Capitol Steel & Iron Co., 317 NLRB
809, 814 (1995); and Storer Communications, 294 NLRB 1056,
1093 (1989).
(c) February 29, 1996
Joy Bragg was employed at the facility from June 1994 until
March 1995 as a part-time CNA working the swing shift, cov-
ering for other CNAs who were off. She has since moved and
now resides in Akron, Ohio. Bragg testified that before the
strike she received a telephone call at home on her day off from
Elizabeth Beckett. Beckett asked her if she was going to work
during the strike and Bragg said that she didn’t know. Beckett
told her that if she did not come to work she would be termi-
nated, but that if she did not strike she could have her pick of
any position on any shift that she wanted. Beckett also said that
anyone who left the facility or did not show up on the day of
the strike would be terminated. Bragg responded that she didn’t
think that they could do that since the strike was an unfair labor
practice strike. Thereafter, Beckett used the phrase “perma-
nently replaced.” Beckett acknowledged that she had a tele-
phone conversation with Bragg in which she asked if Bragg
was going to work on the day of the strike and that she said that
she was undecided. Beckett told her that she could be perma-
nently replaced if she didn’t show up for work, but said nothing
more.
Analysis and Conclusions
I credit the testimony of Bragg who was a believeable and
persuasive witness who gave a detailed description of this tele-
phone conversation.27 Beckett’s testimony about the conversa-
tion did not purport to describe what transpired other than to
say she asked if Bragg was going to work and to assert that she
told her only that she could be “permanently replaced.” Beckett
was responsible for seeing that the facility was staffed on the
day of the strike. She admitted that she contacted swing-shift
CNAs to see if they would fill in for those who were not going
to work that day, talked to them about the possibility of getting
a full-time position and discussed their shift preferences. This is
exactly what Bragg described her doing in their telephone con-
versation. I find that Beckett’s testimony fails to establish what
she actually said during the conversation or to effectively con-
tradict Bragg’s credible testimony. Beckett’s telling Bragg that
she and other employees would be terminated if they joined the
strike violated Section 8(a)(1). Her subsequent reference to
their being permanently replaced did not purport to repudiate
her earlier statements and, as it was made in the context of the
rights of unfair labor practice strikers, it was also incorrect and
coercive. I find that the Respondent also coerced and interfered
with rights protected by the Act when it joined its illegal threat
to terminate strikers with an offer to give Bragg a full-time
position and her choice of shifts if she refrained from striking.
This constituted an unlawful promise of benefits intended to
dissuade her from engaging in protected activity and support
for the Union. Pincus Elevator & Electric Co., 308 NLRB 684,
692 (1992).
(d) Letter to employees
On February 26, 1996, the Respondent posted and distrib-
uted to employees a letter from Underwood in which he re-
ferred to receipt of a notice from the Union about a strike on
March 4, 1996. The letter states that all employees are expected
to work their scheduled shifts and that “any employee not at
work that day may be replaced permanently.” Whether or not
the threat of permanent replacement in the letter violated the
Act depends on whether or not the strike was an unfair labor
practice strike. Trading Port, Inc., 219 NLRB 298, 299 (1975).

27 I find the fact that in describing the conversation in an affidavit
taken by a Board agent, Bragg, used the phrase “legal strike” rather
than “unfair labor practice strike” does nothing to undermine her credi-
bility. She may have had the terminology wrong, but her point was that,
legally, strikers who were unfair labor practice strikers could not be
fired.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 986
As is discussed below, I find that the strike was an unfair labor
practice. Accordingly, by threatening to permanently replace
unfair labor strikers, the Respondent violated Section 8(a)(1).
Capitol Steel & Iron Co., supra.
(7) Alleged impression of surveillance and interrogation
Prior to the strike, the Union held a secret-ballot strike vote
on February 17, 1996, away from the Respondent’s facility at
the City Hall in Richwood, West Virginia. Cleo Sandy testified
that a couple of days after the strike vote she went to Under-
wood’s office with another employee to attend a quality circle
meeting. After they were told that there would be no meeting
until later in the day and began to leave, Underwood asked
Sandy to remain in the office as he wanted to ask her a ques-
tion. Ward was also present. Underwood said that he under-
stood that she had voted not to strike. Sandy responded that she
had not told anyone whether she had voted yes or no. Under-
wood said that less than half the people had voted for the strike
and Sandy said that everyone had the same opportunity to vote.
Underwood testified that he did not recall having a conversa-
tion with anyone about the strike vote. Ward was not asked
about this incident. The complaint alleges that Underwood’s
action created the impression that union activity was under
surveillance and constituted an unlawful interrogation of Sandy
concerning how she voted.
Analysis and Conclusions
As discussed above, I found Sandy who is a current em-
ployee to be a credible witness. Underwood’s lack of recollec-
tion does not contradict her and the Respondent’s failure to
question its witness Ward about the incident creates the infer-
ence that his testimony would not have supported its position.
An employer creates an unlawful impression of surveillance by
remarks which would reasonably lead employees to assume
that their activities were under surveillance or that it has
sources of information about their activities. E.g., Lucky 7 Lim-
ousine, 312 NLRB 770, 771 (1993); and United Charter Ser-
vice, 306 NLRB 150, 151 (1992). By implying to Sandy that it
not only knew that she had voted in the secret-ballot strike vote
but also knew how she voted, the Respondent violated Section
8(a)(1). E.g., Capitol EMI Music, 311 NLRB 997, 1006 (1993);
and Stanford Seed Co., 245 NLRB 1064, 1067 (1979). It also
by coercively interrogated Sandy in violation of Section 8(a)(1)
by telling her this, thereby, attempting to get her to confirm or
deny Underwood’s assertion that she had voted not to strike.
E.g., D. J. Electrical Contracting, 303 NLRB 820, 826 (1991);
and Artcraft Iron Co., 271 NLRB 829, 833 (1984).
(8) Prohibition against discussing union matters
(a) March 6, 1996
Mary Hammonds is a CNA who participated in the strike but
was not replaced because March 4 was her day off. When she
went to work on March 6, she met with Underwood who told
her he wanted to leave what was going on the outside (a refer-
ence to some employees who had been replaced and were
standing outside that morning) out there and to take care of the
residents. He said he knew she had friends out there and had
feelings for them, but she was not to discuss them while work-
ing. At about noon, Hammonds was summoned to the office to
meet with Underwood, with Supervisors Becky Price and San-
dra Amick also present. He referred to their meeting that morn-
ing in which she had been told not to discuss union matters and
said that two people had told him that she had been “talking
union on the floor.” When she denied it, Underwood said that
she had been talking about the Union. The conversation in
question involved her asking another employee, John Tenney,
if he had watched the news on television, a reference to an in-
terview of striking employees that had been on the television
news the previous night. She asked him how her conversation
was any different than employee Patty Price coming to the
timeclock and asking employees who were clocking in if they
had watched the same interview on the news. Underwood said
that was “different” and Hammonds asked, “[H]ow?” He said,
“[I]it just was,” got angry and threw a pencil across the desk
onto the floor. He told her if he any more about her talking
about “anything union,” she “would be out there with them.”
He also told her that “it took a lot of nerve to stand on the
picket line and then come back into work.” The conversation
ended with him telling her, “if you want your job, get your ass
out there and get back to work.” Underwood admitted to being
upset when he spoke to Hammonds and did not deny her testi-
mony.
John Tenney has worked at the facility as a maintenance em-
ployee for over 16 years. He is a member of the Union and has
served as a delegate. He was not scheduled to work on the day
of the strike and was not replaced. On the afternoon March 6,
1996, Tenney was called into the office of his Supervisor Bill
Miller. Miller said that there were rumors that Tenney had been
“talking shop on the floor,” meaning he had been talking about
the Union. Tenney denied it and Miller told him if he kept it up
he would be written up and that he hated to lose Tenney be-
cause he was such a good worker. Tenney said the only conver-
sation he had about the Union was with Mary Hammonds about
employee Richard Glover being interviewed about the strike on
the television news. Miller testified that he had told Tenney that
he could not talk union business on company time or on the
floor when he was supposed to be working. He also told him
that he could not discuss the Union in the breakroom if any
employee present did not want to hear it. The complaint alleges
that the statements made to Hammonds and Tenney were coer-
cive and unlawful threats that interfered with protected rights.
The Respondent contends that its actions were lawful attempts
to insure harmony in the workplace.
Analysis and Conclusions
There is no evidence that employees had ever been prohib-
ited from talking about any topic while working prior to the
strike, with the exception of its unlawful attempt to prohibit
supporters of the Union from discussing it in the dietary
breakroom if any employee objected. Underwood’s telling
Hammonds not to talk about the Union or anything related to
the strike was discriminatory and violated Section 8(a)(1) be-
cause “talk on other topics while employees were working was
tolerated.” Litton Systems, 300 NLRB 324, 325 (1990). Ac-
cord, Kenmore Mercy Hospital, 319 NLRB 345, 346 (1995);
and Industrial Wire Products, 317 NLRB 190 (1995). Like-
wise, Miller’s telling Tenney he could not talk about the Union
while working, violated the Act, as did his saying that, if some-
one present objected, he could not even discuss it in the
breakroom. There is no probative evidence of any “special
circumstances” to support the Respondent’s self-serving claims
that mere discussion of the Union, the strike or any related
matter was so disruptive as to justify the ban on statutorily pro-
NICHOLAS COUNTY HEALTH CARE CENTER 987
tected activity it attempted to impose.28 See DeMuth Electric,
316 NLRB 935 (1995); and Capitol EMI Music, Inc., supra at
1006.
(b) March 13, 1996
On March 13, 1996, CNAs’ Joy Bragg, Patty Mullins, and
Mabel Bailes were recalled to work after the strike. Underwood
met with them in Carpenter’s office with Supervisor Nancy
Henline also present. He told them that they were not allowed
to discuss the Union while they were in the facility and if they
were caught doing so they would be fired. The foregoing find-
ing is based on the uncontradicted, credible testimony of Bragg
and the consistent and corroborating testimony of Mullins and
Bailes. Underwood said that he did not recall the conversation
but did not deny that it occurred. Henline said she recalled only
some of what was said and did not contradict the testimony of
the three CNAs.
Analysis and Conclusions
The Respondent relies on its claims that supporters of the
Union engaged in “intimidation and harassment” of other em-
ployees which necessitated the restrictions it imposed on dis-
cussing union-related matters. However, with the exception of
some anecdotal testimony from some employees, most of
whom had signed the decertification petition, concerning their
subjective feelings about and reactions to the activities of union
supporters at the facility, there is a complete failure of proof of
anything on their part that could reasonably or objectively be
found to constitute misconduct or which was so outrageous,
egregious or disruptive as to place them outside the protection
of the Act.29 Here again, the prohibition against discussing the
Union at the facility at any time, announced by Underwood,
was not only overly broad in scope, but was unlawfully focus-
sed on union-related matters while permitting the discussion of
other topics. I find that Underwood’s statements violated Sec-
tion 8(a)(1). Litton Systems, supra.
(c) March 23, 1996
Cleo Sandy testified that she was recalled to work after the
strike on March 23, 1996. On that day she was called to the
office of Assistant Director of Nursing Sandra Amick who told
her that she was glad to see her back but that they had to get

28 There is no credible evidence to support Underwood’s self-serving
testimony that the conversation in question took place in a resident’s
room. Hammonds credibly testified it took place in a hallway (as did
the similar, condoned incident involving Price) and that Underwood
refused to tell her who had reported them. In its brief, the Respondent
states that “Underwood received a complaint from [Velma] Hoover that
Hammonds and Tenney were in one of the resident rooms discussing
the Union situation, including the strike.” I find nothing in the record to
support that statement. Moreover, Hoover was called as a witness by
the Respondent but was not asked about this matter, which creates the
inference that her testimony would not have supported its position.
Sandra Amick testified that it was Supervisor Becky Price who had
reported that Hammonds was in a resident’s room talking “other than
business in front of the resident.” Price was not called as a witness and
I do not credit Amick’s hearsay testimony as to what Price allegedly
said as she also claimed that Underwood did not get angry during the
meeting with Hammonds, which even he did not deny.
29 The weakness of the Respondent’s position is demonstrated by its
attempt to rely on hearsay evidence concerning the alleged intimidation
of employees by two former employees, Carolyn Phares and Pat Myers,
which apparently occurred sometime in 1993. There is no evidence that
either was even employed at the facility when any of the matters in-
volved in this proceeding took place.
some things straight. Amick said that if Sandy was in the
breakroom “talking union” and some one objected to it, she had
to quit talking about it. She also said if someone was “talking
company” and Sandy did not want to hear it, she could ask
them to stop. Sandy was a credible witness and Amick’s testi-
mony does not contradict her. I find that Amick’s statements
prohibiting only talking about the subject of the Union violated
Section 8(a)(1), for the reasons discussed above.
(d) Last week of March 1996
Sandy testified that during the last week of March 1996, Un-
derwood called her to the office to speak to her, with Dobson
also present. He told Sandy that he was glad she was back at
work and that she should consider herself lucky because she
was one of the few that would be called back and that he would
not let the replacement workers go in order to bring back those
who went on strike. He also said that what was in the past
should be kept in the past and that he did not “want to hear any
whining, bitching or complaining.” Underwood said he did not
recall having this conversation with Sandy but he “probably”
had the same type of conversation he had with other returning
strikers. Although he claimed he would not normally have used
the terms, “whining, bitching or complaining,” he did not deny
using them. Dobson was not asked about this meeting and
Sandy’s credible testimony is uncontradicted.
Analysis and Conclusions
I find that under the circumstances Underwood’s telling
Sandy he did not want any “whining, bitching or complaining”
was overly broad and coercive in violation of Section 8(a)(1).
By saying this to a returning striker in the context of delineating
what she could or could not do at the facility, he implied that
any statements or complaints that the Employer did not approve
of would not be allowed, even those that related to her terms
and conditions of employment and were protected by the Act.
The General Counsel contends that telling Sandy she was
lucky to be one of the few strikers who would be called back
and that replacement workers would not be let go in order to
reemploy strikers was coercive because it evidenced an intent
to deny strikers their rights to be reinstated. After considering
all of the surrounding circumstances, I find that Underwood’s
statement was coercive inasmuch as it implied that Sandy got
her job back because of luck and/or the Employer’s largesse
and not because she had a right to it and that other strikers,
even unfair labor practice strikers, would not be reinstated and
because it was accompanied by a coercive and unlawful restric-
tion on her right to engage in protected activity.
D. The 8(a)(5) and (1) Allegations
1. Alleged failure to keep contract terms in effect
a. Dues-checkoff provision
The collective-bargaining agreement that expired on Decem-
ber 31, 1995, contained a union-security clause and a checkoff
provision whereby the Respondent agreed to deduct union dues
and initiation fees from the pay of employees who executed
checkoff authorizations and to remit to the Union the amounts
withheld. Negotiations for a new contract began on December
5, 1995, but no new agreement has been reached.30 At the ne-
gotiating session on December 27, the Union made a request
that the contract be extended beyond the expiration date. The
30 There is no contention that the negotiations for a new agreement
ever reached an impasse.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 988
Respondent rejected the request and Steve Ferguson informed
the Union that upon expiration of the contract, the Respondent
would no longer deduct and remit union dues. The Union did
not agree to this but, as it had announced, the Respondent
stopped collecting and remitting union dues upon expiration of
the contract. The complaint alleges that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by so doing and that
Ferguson’s threat to do so violated Section 8(a)(1). The Re-
spondent contends that its obligation to deduct and remit union
dues expired with the contract on December 31, 1995.
Analysis and Conclusions
Although the General Counsel has presented an extensive
argument as to why the Respondent’s discontinuation of check-
ing off union dues should be considered an unlawful unilateral
change in the terms and conditions of employment, it is an
argument that must be directed to the Board,31 inasmuch as it
calls for reconsideration of the well-settled rule that “an em-
ployer’s duty to check off union dues is extinguished upon the
expiration of the collective-bargaining agreement which created
that duty.” Robbins Door & Sash Co., 260 NLRB 659 (1982).
Accord; 87-10 51st Avenue Owners Corp., 320 NLRB 993
(1996); and Bethlehem Steel Co., 136 NLRB 1500, 1502
(1962), remanded 320 F.2d 615 (3d Cir. 1963), cert. denied 375
U.S. 984 (1964). Since the Respondent could lawfully discon-
tinue the checkoff of dues, Ferguson’s telling the Union it
would do so was not an unlawful threat. I shall recommend
that these allegations be dismissed.
b. Grievance and arbitration procedure
The expiring collective-bargaining agreement also contained
a grievance and arbitration provision, involving a three-step
procedure prior to arbitration. At the same meeting in which
Ferguson informed the Union that the Respondent would no
longer deduct and remit union dues upon expiration of the con-
tract, he also said that it would not extend the grievance provi-
sion beyond expiration. Patricia Brooks testified that at the
early January 1996 meeting in which Underwood imposed
limitations on how she could collect union dues at the facility,
he also told her that since the grievance procedure provisions
had expired, the time limits in the contract didn’t mean any-
thing. He said that he would not take any grievances, but if
there was a problem, he wanted her to discuss it with him. After
the early February 1996 meeting in which Underwood re-
stricted the access of Holcomb and Brooks to the dietary area,
they went to his office to attempt to file a grievance over those
restrictions. After reading the grievance, Underwood asked why
there were no contract articles listed and Brooks said that be-
cause he had told her the contract had expired, there was no use
putting it on the grievance. Underwood asked what the griev-
ance was about and she told him it pertained to his isolating
them from the dietary department. He told them that the griev-
ance ought to go in the trash, but then said he would keep it and
he put it in a folder. Brooks’ credible testimony is corroborated
by that of Holcomb. Underwood’s testimony about the incident,
in which he said he told them that “with the contract expired we
were not going through the mechanisms of the grievance pro-

31 It is the duty of an administrative law judge to apply established
Board precedent which it or the Supreme Court has not reversed. E.g.,
Herbert Industrial Insulation Corp., 312 NLRB 602, 608 (1993); Los
Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979); and Iowa Beef
Packers, Inc., 144 NLRB 615, 616 (1965).
cedure,” does not contradict theirs. Ward’s testimony, that upon
receiving the grievance Underwood said he would place it with
other grievances that were waiting to be processed, was simply
not believable and I do not credit it. Underwood subsequently
made a written response to the grievance addressed to Holcomb
and Brooks, dated February 21, 1996, which stated:

As previously stated, we are no longer processing
grievances thru [sic] the steps of our expired collective
bargaining agreement. As you know, our contract expired
Dec. 31, 1995.
However, I am concerned and I am willing to discuss
any of our employees concerns, complaints, grievances, or
questions that may be voiced. I will be willing to attempt
to find a remedy or solution for any of the above.
Therefore, if you would like to discuss further this
situation, please make arrangements with me to do so.

The complaint alleges that the Respondent violated Section
8(a)(5) and (1) by unilaterally abandoning the contractual
grievance procedure. The Respondent contends that there is no
evidence that it failed to process any grievance other than that
presented by Brooks and Holcomb, which did not reference any
contractual right, and that since it had no obligation to arbitrate
the grievance, it was not unlawful to refuse to apply the steps of
the grievance procedure.
Analysis and Conclusions
The Respondent’s contention that the grievance was defec-
tive because it did not contain any reference to the contractual
provisions involved is not persuasive. Although Underwood
asked about it when the grievance was presented, he never sug-
gested that was the reason the grievance would not be proc-
essed or that he did not understand or was misled as to on what
it was based. The reason this grievance was not processed was
because, once the contract had expired, the Respondent stopped
accepting grievances and processing them according to the
procedure in the contract. I also find that its contention there is
no proof that it refused to process grievances has no merit.
There is uncontradicted evidence that both Ferguson and Un-
derwood informed representatives of the Union, orally and in
writing, that the grievance provision would not be followed
once the contract expired. It offered no reason for doing so
beyond its contention that the procedure lapsed upon expiration
of the contract. The testimony of numerous employees, called
as witnesses by the Respondent that they did not attempt to file
any grievances was essentially meaningless. It had always been
the responsibility of the Union to prepare and present griev-
ances. I find that by telling the Union that the grievance proce-
dure would not be followed and its grievances could “go in the
trash,” the Respondent repudiated that procedure. Its offer to
discuss problems and to attempt to find a solution merely indi-
cates that the grievance procedure was to be unilaterally re-
placed by a mechanism of its choosing. I find that the Respon-
dent’s unilateral abandonment of the contractual grievance
procedure after the contract expired violated Section 8(a)(5)
and (1). CBC Industries, 311 NLRB 123, 128 (1993); and Indi-
ana & Michigan Electric Co. 284 NLRB 53, 54–55 (1987). Cf.
Columbia Portland Cement, 294 NLRB 410 (1989) (while an
employer may unilaterally change the grievance procedure
through implementation of a proposal after reaching a valid
impasse, the grievance procedure of the expired contract re-
mains in effect until that proposal is lawfully implemented).
NICHOLAS COUNTY HEALTH CARE CENTER 989
E. Issues Related to the March 4, 1996 Strike
1. The nature of the strike
By letter dated February 20, 1996,32 the Union gave notice to
the Respondent that bargaining unit employees would engage
in a 1-day strike, commencing at 6 a.m. on March 4 and con-
cluding at the start of the dayshift on March 5. The evidence
shows that prior to the strike, in addition to the Respondent, the
Union was conducting contract negotiations with approxi-
mately eight other nursing homes in West Virginia. It was also
attempting to get the West Virginia legislature to pass legisla-
tion to increase wages and staffing levels at nursing homes in
the State. Union Representative Hornick testified that the Union
called for a strike at several West Virginia nursing homes on
March 4, as part of a coordinated effort in support of its goals.
He testified that while the Union proposed the strike, under its
bylaws, each individual chapter had to decide by means of a
secret-ballot vote whether its members would participate. A
secret-ballot vote was conducted at the Richwood City Hall
throughout the day on February 17, which resulted in a 37 to 1
vote to strike. Hornick testified that there were also meetings
concerning the strike on February 10 and 21. At the meetings,
he characterized the strike as an unfair labor practice strike and
explained what an unfair labor practice strike involved and
what the employees’ rights were, as there had been discussions
during negotiations concerning the possibility of engaging in an
economic strike. He passed out literature stating that the strike
was an unfair labor practice strike and answered employees’
questions about the strike and the unfair labor practices. In
discussing reasons for the strike with employees, he talked
about the discharges of Union Representatives Eula Carden and
Wanda Proctor, unfair treatment and harassment of union dele-
gates by denying them access to the kitchen area and by pres-
suring them not to file grievances or to talk about the Union,
supervisory surveillance, short staffing, lack of supplies, poor
patient care, and health and safety issues, including, a generator
that was constantly breaking down. Another meeting was held
on March 3, the day before the strike. A flyer that Hornick
prepared for distribution to announce that meeting referred to
the strike as an unfair labor practice strike and advised employ-
ees that they could not be replaced for striking. On March 4,
there was picketing outside the facility from about 6 to 6:45
a.m. with signs bearing “Unfair Labor Practice Strike,” “Health
and Safety,” “Patient Care,” “Unjust Terminations,” and “Un-
fair Suspensions” on them. After picketing, some strikers went
to Charleston to meet with legislators. Picketing resumed that
evening. Hornick’s testimony about these matters was credible,
was corroborated by numerous employee witnesses, and was
not contradicted.
The Union had filed a number of unfair labor practice
charges against the Respondent prior to the strike. Many em-
ployees testified to attending one or more of the union meetings
before the strike commenced in which alleged unfair labor
practices by the Employer were discussed. At least 12 employ-
ees who attended the strike vote meeting testified that in dis-
cussing reasons for going on an unfair labor practice strike the
discharges of Carden and/or Proctor were discussed. At least
five of those employees testified to the Respondent’s refusal to
follow the contractual grievance procedure being discussed. At
least three testified that the restrictions on Union Representa-
tives Brooks and Holcomb from entering the dietary area were

32 Hereinafter, all dates are in 1996.
discussed. Many witnesses testified to discussions about super-
visors conducting surveillance in the breakroom and the Re-
spondent’s refusal to withhold union dues at the meeting. While
I have found those allegations did not constitute unfair labor
practices, the testimony about those subjects is further evidence
that perceived unfair labor practices were discussed as reasons
for voting to strike. Underwood testified that he was aware that
the Union was asserting that the strike was an unfair labor prac-
tice strike no later than March 2. The General Counsel contends
that the strike was an unfair labor practice, while the Respon-
dent argues that it was an economic strike.
Analysis and Conclusions
In order to be an unfair labor practice strike, it is not enough
that an employer’s unfair labor practices and the strike coincide
in time, there must be a finding that the employer’s unlawful
conduct was a contributing cause of the strike. Tufts Bros. Inc.,
235 NLRB 808, 810 (1978). However, the employer’s unfair
labor practice(s) “need not be the sole or even the major or
aggravating cause of the strike; it need only be a contributing
factor.” “The dispositive question is whether the employees, in
deciding to go on strike, were motivated in part by the unfair
labor practices committed by their employer, not whether,
without that motivation, the employees might have struck for
some other reason.” (Emphasis in original.) Teamsters Local
515 v. NLRB, 906 F.2d 719, 723 (D.C. Cir. 1990). I find that
the Respondent’s argument, that the evidence fails to establish
that the employees even considered the possibility of engaging
in an unfair labor practice strike at the vote on February 17, has
no merit. The argument is based primarily on its assertion that
the testimony of the many employees who attended the union
meetings at which reasons for striking were discussed, particu-
larly, the strike vote meeting, should be disregarded because
they went on strike and were permanently replaced and, there-
fore, have an interest in the outcome. At the same time, it
claims that the employees it called as witnesses have no interest
in testifying one way or the other about the strike. This, of
course, ignores the fact that at least five of those employees
were hired as replacements for strikers. While the strikers’
interest in the matter is a consideration, I found their mutually
corroborative testimony about what was discussed at the meet-
ings believable and persuasive. While most had different recol-
lections of the details of the meetings, their credible testimony
as a whole overwhelmingly establishes that the subject of an
unfair labor practice strike was considered and discussed exten-
sively, as were the specific unfair labor practice allegations
they considered in making their almost unanimous decision to
strike.
I found that evidence to be far more probative than the testi-
mony of the employees called by the Respondent, who said
they had not heard that it was an unfair labor practice strike. It
is obvious why most had not, as they did not support the Union,
did not participate in the strike, and did not attend any of the
union meetings at which the strike was discussed. The few who
did attend a union meeting said nothing to contradict the Gen-
eral Counsel’s witnesses. Typical, is the testimony of David
Chapman, a housekeeping employee who did not strike and
attended one union meeting in February. In answer to a leading
question by the Respondent’s counsel, he said that while at the
meeting he had not heard any reason why employees should
strike. On cross-examination, he acknowledged that he felt that
“the Union wasn’t doing right by me” and that he had heard
talk before the strike began that it was an unfair labor practice
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 990
strike. The Respondent’s witness, Tammy Mullins, testified
that she attended the strike vote meeting. According to Mullins’
direct testimony, Hornick said only that “if we wanted better
wages and better treatment to vote yes,” he “did not say any-
thing about a strike vote,” and he did not give any reasons for
going on strike. On cross-examination, when asked if that was
all Hornick had said while she was at the meeting, she re-
sponded, “[T]hat’s all he said to me.” Mullins did not say how
long she was at the meeting or what she may have heard Hor-
nick say to the others present. Her claim that Hornick said to
vote yes for better wages and treatment, but said nothing about
“a strike vote” is incomprehensible. Cheryl Carr testified that
she attended the strike vote meeting, but was there only for “a
short period,” “long enough to vote,” because she had to go
somewhere else. While there, she heard Hornick say, “[T]hat if
you want better jobs, better benefits to vote yes to strike.” This
testimony in no way contradicts that of the employees who
testified to hearing other reasons for striking discussed. Nancy
Case testified to attending a union meeting on March 3 and
being present for at least an hour. She testified to hearing Hor-
nick talk for about half the time she was present but could only
remember him giving as reasons for striking, “better wages,”
“benefits,” and “rights and dignity for the residents and our-
selves as workers.” On cross-examination she stated that she
had her little girl with her and was chasing after her while Hor-
nick was speaking. She could not be sure if he talked about
unfair labor practices or not. She did hear him talk about
Wanda Proctor and Eula Carden but could not recall what was
said. He may have also mentioned the grievance procedure and
union dues but she could not be sure. Susan Greene said she
attended one union meeting before the strike, which was not the
meeting at which a vote was taken, and heard Hornick give
reasons for striking. The only ones she could recall were “dig-
nity, rights and respect.” On cross-examination, she testified
that before the strike she heard that it was an unfair labor prac-
tice strike. None of this testimony purports to establish all that
was said at the union meetings preceding the strike or directly
contradicts the credible testimony of the General Counsel’s
witnesses as to what was discussed about the strike at those
meetings. I find that the evidence establishes that the Respon-
dent’s alleged unfair labor practices were discussed and consid-
ered by the employees as reasons for striking prior to their mak-
ing the decision to engage in the strike.
The fact that the Union designated the strike an unfair labor
practice strike is not conclusive. All of the circumstances that
pertained at the facility at the time must be considered in de-
termining the nature of the strike. Trading Port, Inc., supra.
There is evidence that during negotiations Hornick had dis-
cussed the possibility of an economic strike in support of a
contract. No contract had been agreed to prior to the strike vote.
There is evidence that the strike date of March 4 was chosen in
order to coincide with a coordinated effort by the Union to
strike other nursing homes in West Virginia and to seek support
for favorable legislation in the West Virginia legislature, as part
of its on-going campaign for “dignity, rights and respect,”
thereby, increasing its impact. These factors are also circum-
stances to be considered, as is the length of time that had
elapsed between two of the reasons considered at the strike
vote, the discharges of Carden and Proctor. The fact that there
may have been other considerations, such as wanting a contract
or to support for the Union’s “dignity, rights and respect” cam-
paign, is not dispositive. Although the discharges of Carden and
Proctor had occurred 8 and 6 months prior to the strike vote,
respectively, Hornick testified that he had not called for a strike
to protest their firings before the contract expired because it
contained a no-strike clause. I find those firings, which were
unlawful and had not been remedied, were not so remote in
time as to render them irrelevant, particularly, in light of the
unlawful threats and restrictions the Respondent had recently
imposed on Brooks and Holcomb, their successors among the
union leadership. The evidence also indicates that the Respon-
dent’s unlawful repudiation of the contractual grievance proce-
dure was part of their motivation. Considering all of these fac-
tors, I find that the employees were motivated at least in part by
the Respondent’s unfair labor practices when they voted to
strike; consequently, the strike was an unfair labor practice
strike from its inception.
2. Failure to reinstate unfair labor practice strikers
On the morning of March 5, Hornick and a number of em-
ployees, who had participated in the strike, were met in the
parking lot by Underwood to whom Hornick delivered a letter
containing an unconditional offer to return to work on behalf of
all strikers. Underwood told the employees that they had been
permanently replaced and no longer had positions at the facil-
ity, as he had warned them would happen before the strike. This
was confirmed in letters, dated March 5, that Underwood sent
to all employees, who did not work as scheduled on the day of
the strike, informing them that they had been permanently re-
placed. Unfair labor practice strikers cannot be permanently
replaced and are entitled to immediate and full reinstatement
upon making an unconditional offer to return to work. NLRB v.
Fleetwood Trailer Co., 389 U.S. 375, 379 fn. 5 (1967); and
Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278 (1956). By
failing to fully reinstate unfair practice strikers to their former
positions immediately upon receipt of their unconditional offer
to return to work, the Respondent violated Section 8(a)(3) and
(1) of the Act. E.g., Capitol Steel & Iron Co., 317 NLRB 809,
814 (1995); and Walnut Creek Honda, 316 NLRB 139, 142
(1995).
3. Retaliation against strikers
The complaint also alleges in the alternative that, even in the
event the strike was not an unfair labor practice strike, the Re-
spondent’s action in replacing and refusing to reinstate employ-
ees who participated in the strike was discriminatory and in
retaliation for their having engaged in the strike and support for
the Union.
Analysis and Conclusions
The law is clear that an employer may lawfully hire perma-
nent replacements for striking employees during the course of
an economic strike and is not required to reinstate strikers if its
failure to do so is due to legitimate and substantial business
justifications. One such recognized justification is where the
jobs claimed by the strikers are occupied by workers hired as
permanent replacements during the strike. NLRB v. Fleetwood
Trailer Co., 389 U.S. 375, 378 (1967). The Board recognizes
that an employer has a legal right to replace economic strikers
at will and has held that, ordinarily, the employer’s motivation
for hiring replacements is immaterial, unless there is evidence
of “an independent unlawful purpose.” Hot Shoppes, Inc., 146
NLRB 802, 805 (1964). The evidence establishes such a pur-
pose was present here.
NICHOLAS COUNTY HEALTH CARE CENTER 991
I find that the General Counsel has made a prima facie show-
ing under Wright Line, supra, that is sufficient to support the
inference that the Respondent used their participation in the
strike as a means of ridding itself of certain employees who
were union supporters and punishing others by recalling them
to part time positions or to different shifts. There is ample proof
in the record of its animus toward the Union and its supporters,
as evidenced by the numerous violations of the Act found
herein, including, several just prior to the strike in which Un-
derwood and two other supervisors threatened employees with
termination if they went on strike. There is also evidence that
the Respondent has made a concerted attempt to undermine
support for the Union by unlawfully discharging and otherwise
harassing union leaders among its employees. These factors
coupled with the evidence showing that the Respondent’s al-
leged replacement of some strikers before their offer to return
was in effect a sham, support the inference that the hiring of
replacements was the result of an independent unlawful pur-
pose.
The fact that the Respondent was required to meet minimum
staffing levels prescribed by the State or that, in the case of an
economic strike, it could lawfully replace strikers does not
resolve the matter.33 The issue here is one of motivation and I
find the Respondent has not overcome the inference that it was
motivated by animus toward the Union. Although the Respon-
dent distributed a notice to employees informing them that
anyone not at work on March 4 “may be permanently re-
placed,” the testimony of Underwood and Ferguson shows that
before the strike commenced, they had already made a decision
to replace everyone who failed to report for work on the day of
the strike, regardless of whether or not the replacements were
needed or even available to work on March 4. There is no evi-
dence that it considered any other approach even though the
statutorily required strike notice it received from the Union
stated the strike would last for only 1 day. Underwood admitted
that he had enough employees and volunteers available to staff
the facility on March 4 that he did not need to call on all of
them.34 While the Respondent claims that it did not trust Hor-
nick and could not be sure that the strike would not last longer
than 1 day, that might explain why it needed to have a pool of
replacements available, but it does not explain why it replaced
employees who offered to return to work on March 5 with ones
who did not even start working until after that date.
According to the Respondent’s records (a series of memos
addressed to replacement workers allegedly constituting offers
of employment on March 4), Shirley Mullins, previously a part-
time employee, was hired on March 4 as a full-time replace-
ment for striker Clarice Holcomb. However, Mullins did not
begin to work as a replacement until March 7 and she testified
that she was not offered the full-time position until March 5,
after the strike had ended and the strikers had offered to return
to work. I find that Mullins’ case establishes that the Respon-
dent’s records concerning when the replacements were hired
are unreliable and were probably fabricated. Underwood admit-
ted that the memos were never shown to those to whom they

33 The evidence concerning minimum staffing levels applies only to
the facility’s nursing staff and aides. Some of the employees who were
permanently replaced were enviromental services and dietary workers.
34 This was confirmed by Elizabeth Beckett, who was responsible for
scheduling the CNAs. She testified that several of those who were hired
as replacements for strikers did not work on March 4 because she had
sufficient staff and they were not needed.
are purportedly addressed. Although these memos imply that in
each case employment was discussed with the replacement
worker prior to the strike, and that March 4 was the date of hire,
Mullins’ testimony shows that is untrue. There is also a memo
stating that CNA Ginger Leonhard was hired on March 4 as a
replacement for striker Terry White. Leonhard testified she had
never seen the memo, had never discussed being a replacement
worker before she was hired and had been told that she did not
replace anyone. Similarly, Susan Greene, who allegedly re-
placed Keith Meadows, had never discussed becoming a re-
placement worker before the strike, did not know she was a
replacement, and could not say definitely whether she was of-
fered a full time position on March 4 or 5. I find the evidence
shows the claim that these three employees were hired as per-
manent replacements on March 4, amounts to a sham. The evi-
dence also shows that replacement worker Connie Jervis was
hired as a replacement for CNA Delores Whittington. Whitting-
ton was among those included in the unconditional offer to
return to work on March 5, but not allowed to return because
she had allegedly been replaced. Not only did her replacement,
Jervis, not begin to work for the Respondent until March 13,
the reason was that she was working elsewhere and had to give
2-week notice to her employer. Replacements Joyce Blake and
Shonnet Brooks did not begin working until March 6, after the
strikers they allegedly replaced had offered to return to work.
At least three part-time employees who were offered full-time
positions as replacements, Leota Adkins, Tammy Marcum, and
Sarah Stowers, did not work on the day of the strike because it
was their scheduled day off. Stowers testified that, although she
accepted the full-time position she was offered, she could not
start work immediately because she was already scheduled to
work on her second job with another employer. Generally, it is
not necessary for a replacement worker to have actually started
work before an offer to return to work is made in order for the
striker’s position to be considered filled. Solar Turbines, 302
NLRB 14 (1991). However, all of these instances show that the
Respondent had no real need for the services of the alleged
replacements during the 1 day of the strike and support a find-
ing that it was more concerned with cutting off the strikers’
rights to their jobs than with staffing the facility.
Also relevant to the question of the Respondent’s motivation
is the fact that 8 of the 22 replacement workers it allegedly
hired were members of a 4-week CNA class being conducted at
the facility between February 13 and March 12. According to
the class schedule, the students were engaged primarily in
classroom and some clinical training until March 1. On March
4, they began a clinical phase called, “activities of daily living
(ADL),” in which they were required to perform the tasks they
had been studying, under the supervision of their instructor.
This lasted until March 12, with the exception of March 8,
which was a full-day classroom session. According to the class
instructor, Sandra Amick, as of March 4, the students had not
completed the course and were not qualified as CNA’s at that
point. In order to complete the course and become certified,
they had to perform their ADL work and pass the certification
test. I find it questionable that a certified CNA can be perma-
nently replaced by a noncertified student who has not com-
pleted the required training for such a position or that such a
person would qualify in meeting the State’s staffing require-
ments. Moreover, to complete their courses, the students had to
work the hours of ADL prescribed in the class protocol be-
tween March 4 and 12. If there had been no strike, they would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992
have worked in addition to those they allegedly replaced, not
instead of them. Between those dates they remained students
finishing their required training. They were not converted to
fully qualified CNA’s, able to serve as permanent replace-
ments, simply because the Respondent designated them as
such. But aside from the issue of whether these students were
qualified or able to replace certified CNA’s, the Respondent
has offered no reasonable explanation as to why it would want
to have its residents cared for by such persons when the certi-
fied and experienced CNA’s who had offered to return to work
were available. I find this is further evidence that the Respon-
dent was more concerned about removing union supporters
than the quality of their replacements.
Considering all of the foregoing evidence, I find that the Re-
spondent has failed to establish that it would have taken the
same action in replacing all of the employees who participated
in the strike, absent their protected activities and support for the
Union, or to overcome the inference that its actions in replacing
them was the result of union animus. On the contrary, the evi-
dence shows that it rushed to hire a replacement for each and
every employee who went on strike (or otherwise failed to
work as scheduled) on March 4 in order to rid its self of those
employees without regard to whether a replacement was needed
or even available to work before the strike ended.
F. Other 8(a)(5) and (1) Allegations
1. Withdrawal of recognition from the Union
On March 12 employees Pattie Price and Marc Case deliv-
ered a petition signed by 49 employees which stated that they
no longer wished to be represented by the Union. Based on that
petition, by letter dated March 14, the Respondent informed the
Union that it was withdrawing recognition from it on the
grounds that it no longer represented a majority of the employ-
ees in the bargaining unit. The General Counsel contends that
the withdrawal of recognition was unlawful because the peti-
tion was tainted by the Respondent’s unfair labor practices and
by supervisory involvement in the initiation and circulation of
the petition.
Price testified that when she decided to mount an effort to
decertify the Union she informed Underwood of her intention
and asked him how to go about it. Underwood referred her to
Joseph Lawson, one the Respondent’s labor relations consult-
ants. Lawson told her how many signatures she needed to get a
decertification election and gave some wording to use. Based
on the information Lawson gave her, she prepared a number of
cards on which she obtained employees’ signatures and submit-
ted them to the Board’s Cincinnati Regional Office. On March
10, she was informed by a Board representative that the lan-
guage on the cards she had submitted would not support a de-
certification election and suggested some language that would
be sufficient. On the following day, which was her day off,
Price went to see Underwood at the facility. She told him what
had happened and that she had to get all the signatures again
and asked him what language she should use. Underwood took
the legal pad she had with her and wrote out what appears at the
top of the first page of the petition. She took the pad and left the
office. In the facility parking lot, she met employee Beverly
Russell and discussed the petition, which Russell then signed.
Marc Case came along and they discussed the petition. Because
it was Price’s day off, Case offered to take the pad and get sig-
natures. Case returned the petition to her the following day.
Price signed it and they took it to Underwood, told him they
thought they had enough signatures to decertify the Union, and
left a copy with him. Marc Case testified that he had assisted
Price by passing out to employees some of the decertification
cards she had prepared. He subsequently talked to her about the
petition which he took and circulated among the employees. At
the time he received it form Price in the parking lot, the heading
and numbers were on the petition along with one signature. He
put in Miller’s office, where employees came to sign it, and he
left it with another employee to get signatures on the night
shift. He returned it to Price the next day and they took it to
Underwood.
Underwood was called as a witness by the General Counsel
before Price testified. When asked what he knew about the
petition, he denied any knowledge or involvement other than a
single conversation he had with Price. He said Price came to
him, on a date he could not recall, and offered her services “to
do a petition,” which he refused. He further testified that the
first time he ever saw the petition was when Price and Case
delivered it to him with the signatures on it. He said that he had
heard rumors that a petition was being circulated but that he
had never seen it and “honestly thought it was just a rumor.”
When shown the original petition and asked if it bore his hand-
writing, he refused to admit that it was his, repeatedly saying
that it was possible that it was his because he had “scribbled”
out something for Price at her request. When pressed about the
handwriting on the petition, Underwood refused to acknowl-
edge that it was his, because he was “not a handwriting expert.”
He testified that when Price left his office with the pad on
which he had written the decertification language for her, he
did not know what she intended to do with it. He also at first
said he did not know that Price had already submitted a petition
to the Board. He later admitted that he had been informed by
the Board that a petition had been filed and that he knew from
Price that it had been rejected by the Board but continued to
insist that he did not know she was going to circulate the peti-
tion. Underwood later appeared as a witness for the Respondent
after he had heard Price’s testimony. In that testimony he ac-
knowledged two conversations with Price about her desire to
decertify the Union. In the first he referred her to Lawson and
to the Board for information. The second was after the Board
representative told her that the petition language was insuffi-
cient. When Price told him she wanted to make another attempt
at decertification he cautioned her that she could not solicit for
the petition in work areas or on company time. At Price’s re-
quest, he wrote out something on the pad she had, while cau-
tioning her that she had to rewrite in her own handwriting or
type it. He also said that, after meeting with Price, he made a
particular effort to see if there was any solicitation going on in
the building, but saw none.
Analysis and Conclusions
A union enjoys an irrebuttable presumption of majority
status for 1 year after its certification and, after the certification
year has ended, while a collective-bargaining agreement is in
effect. Belcon, Inc., 256 NLRB 1341, 1346 (1981). After the
contract expires, it enjoys a rebuttable presumption of contin-
ued majority status. The employer remains obligated to bargain
with the union unless it can rebut that presumption by establish-
ing (1) that on the date recognition was withdrawn the union
did not in fact enjoy majority status, or (2) that its withdrawal
of recognition was predicated on an objectively based good-
faith doubt as to the union’s majority status. E.g., Suzy Cur-
NICHOLAS COUNTY HEALTH CARE CENTER 993
tains, Inc., 309 NLRB 1287, 1288 (1992); Hollaender Mfg.
Co., 299 NLRB 466, 468 (1990); and Terrell Machine Co., 173
NLRB 1480 (1969). The Respondent has the burden of proof,
by a preponderance of the evidence, that it has met that stan-
dard. Rock-Tenn Co., 315 NLRB 670, 678 (1994); Laidlaw
Waste Systems, 307 NLRB 1211 (1992). Although the Respon-
dent’s evidence of loss of majority support is a decertification
petition with the signatures 49 employees in a unit of 76, the
law also requires that the petition arise in a context free of un-
fair labor practices of the sort likely, under all the circum-
stances, to affect the union’s status, cause employee disaffec-
tion, or improperly affect the bargaining relationship. Lee Lum-
ber & Bldg. Material Corp., 322 NLRB 175, 177 (1996); and
Guerdon Industries, 218 NLRB 658, 661 (1975). In cases in-
volving unfair labor practices other than a general refusal to
recognize and bargain, there must be a causal relationship be-
tween the unlawful acts and the ensuing events indicating a loss
of support. The Board considers the following factors to be
relevant in determining whether such a causal relationship ex-
ists: (1) the length of time between the unfair labor practices
and the withdrawal of recognition; (2) the nature of the illegal
acts, including the possibility of their detrimental or lasting
effect on employees; (3) any possible tendency to cause em-
ployee disaffection from the union; and (4) the effect of the
unlawful conduct on employee morale, organizational activi-
ties, and membership in the union. Williams Enterprises, 312
NLRB 937, 939 (1993); and Master Slack Corp., 271 NLRB
78, 84 (1984).
In the present case, the event, which led to the withdrawal of
recognition, the decertification petition, arose within a matter of
days after one of the most flagrant of the Respondent’s unfair
labor practices, its permanent replacement of and refusal to
reinstate unfair labor practice strikers. Such a violation of the
Act has an obvious detrimental effect on the morale and sup-
port for the Union of employees who saw coworkers lose their
jobs because they exercised such support. Moreover, the many
petition signers who were hired as permanent replacements for
the strikers were direct beneficiaries of the Respondent’s
unlawful actions. Similarly, its unlawful prestrike threats to
terminate employees who engaged in the strike and poststrike
prohibition on talking about the Union under threat of termina-
tion, clearly undermined support for the Union. While the Re-
spondent contends that there was longstanding and continuing
disaffection with the Union among the bargaining unit, the
evidence shows that when Price began her first effort to decer-
tify the Union in early 1995, she obtained only 25 signatures.
On February 17, unit employees voted 37 to 1 to approve the
strike called by the Union. Price’s second decertification effort,
shortly after the most serious unfair labor practices took place,
resulted in 49 signatures to decertify the Union. I find there
was a direct causal link between these unfair labor practices
and employee disaffection from the Union. Other of the Re-
spondent’s unlawful acts, while not as far reaching, also served
to undermine union support. Its unlawful restrictions on the
access of union representatives Brooks and Holcomb to the
dietary area and to the facility before work interfered with their
ability to communicate with employees about union matters
and with Brooks’ efforts to collect union dues. Its unlawful
unilateral abandonment of the contractual grievance procedure
made the Union appear weak and ineffective.
None of the unfair labor practices committed by the Respon-
dent during the period between the expiration of the collective-
bargaining agreement and circulation of the decertification
petition had been remedied. Inasmuch as there was a direct
causal relationship between these unfair labor practices and the
employees’ expression of dissatisfaction with the Union
through the petition, the Respondent cannot rely on the petition
to establish a loss of majority support where its unfair labor
practices have contributed to that loss of support.35 I find that
the Respondent violated Section 8(a)(5) and (1) by withdrawing
recognition from the Union. E.g., Detroit Edison Co., 310
NLRB 564, 565–566 (1993); and Geurdon Industries, supra.
A remaining question is whether the decertification petition
was also tainted by supervisory assistance. An employer vio-
lates Section 8(a)(1) by actively soliciting, encouraging, pro-
moting, or providing assistance in the initiation, signing or
filing of an employee petition to decertify a bargaining repre-
sentative. E.g., Central Washington Hospital, 279 NLRB 60, 64
(1986); and Placke Toyota, Inc., 215 NLRB 395 (1974). How-
ever, it will not be considered to have violated the Act where it
merely answers questions of employees who have already de-
cided to pursue a decertification effort and/or provides assis-
tance that is strictly ministerial in nature. Amer-Cal Industries,
274 NLRB 1046, 1051 (1985).
The demeanor and evasive and dissembling testimony of
Underwood about his involvement with the petition, when
called as a witness by the General Counsel, was such as to raise
considerable suspicion that he was trying to hide something,
particularly, when contrasted with his later testimony on behalf
of the Respondent. In his first appearance, he first claimed his
only involvement with Price consisted of his refusing her offer
to try to get the Union decertified. He denied knowing that a
petition had been circulated or ever having seen it before Price
delivered the signed petition to him. Even when shown the
petition (which the evidence as a whole conclusively estab-
lishes contains his handwriting) he adamantly refused to admit
that it was his handwriting, sparring with counsel about how it
was “possible” that it “could” be his.36 He also denied knowing
that Price had already mounted a decertification effort or that
she intended to make another one. However, the only reason
Price went to see him was to tell him that her first effort, which
he had been informed about in a letter from the Board, was
unsuccessful and she wanted him to give her the wording for a
new petition. When he later testified, after having heard Price’s
testimony about the matter, Underwood was much more expan-
sive, and self-serving. Not only did this testimony appear re-
hearsed, it also appeared to be fabricated. Notwithstanding the
suspicions this raises, I find there is no probative evidence that
Underwood initiated or encouraged Price to undertake her de-
certification efforts or that he provided anything beyond per-

35 The Respondent called as witnesses numerous petition signers
who testified, generally, in response to leading questions by its counsel,
that they were not asked by a management representative to sign the
petition and that management did not do anything that caused them to
sign it. Under the circumstances, I find that the unremedied unfair labor
practices of the extent and seriousness involved here were likely to
have undermined support for the Union and influenced the employees
to reject it as their bargaining representative. See Columbia Portland
Cement Co., 303 NLRB 880, 882–883 (1991), enfd. 979 F.2d 460 (6th
Cir. 1992).
36 While many people may sometimes encounter difficulty decipher-
ing their own handwriting, few adults would fail to recognize their own
handwriting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 994
missible ministerial assistance.37 However, his testimony about
this matter confirms my conclusion that much of his testimony
is unworthy of belief.
Despite the foregoing, I find that the decertification petition
was tainted because it contained Underwood’s handwriting and
that it cannot be used to establish that the Union had lost majority
support. A decertification petition is tainted when the employer
creates a situation where employees would tend to feel peril in
refraining from signing the petition. E.g., Williams Enterprises,
301 NLRB 167, 173 (1991); and Indiana Cabinet Co., 275
NLRB 1209, 1210 (1985). The evidence shows that the first page
of the petition was in the handwriting of Underwood and I find it
likely that the signers, many of whom were long-time employees
who had worked at the facility throughout Underwood’s tenure
as administrator, would recognize his handwriting. I also find that
seeing Underwood’s handwriting on the petition would create the
impression that he was responsible for its preparation and circula-
tion, that he would know who had signed it and that, if they did
not sign, they did so at their peril. The burden of proof on this
issue was the Respondent’s. Rock-Tenn Co., supra, Laidlaw
Waste Systems, supra. While a few employees were asked on
cross-examination by counsel for the General Counsel if they
recognized the handwriting, and said they did not, most were not
asked and it appeared that to me that the Respondent’s counsel
was avoiding asking the question. I find that, under these circum-
stances, the Respondent has not established that the petition was
untainted by the fact that it contained Underwood’s handwriting.
By withdrawing recognition on the basis of a tainted decertifica-
tion petition, the Respondent violated Section 8(a)(5). E.g.,
Caterair International, 309 NLRB 869, 880 (1992); and Ameri-
can Linen Supply, 297 NLRB 137, 138 (1989).
2. Unilateral grant of wage increase or bonuses
There is no dispute but that after the Respondent withdrew
recognition from the Union, it implemented a wage increase and
apparently gave some employees a lump-sum bonus without
giving the Union notice or an opportunity to bargain before
doing so.38 Although the Respondent had withdrawn recognition
before implementing the wage increase, I have found that the
withdrawal was unlawful. Accordingly, I find that the Respon-
dent violated Section 8(a)(5) and (1) by unilaterally implement-
ing a wage increase for employees in the bargaining unit.
Caterair International, supra, T.L.C. St. Petersburg, 307 NLRB
605 (1992).
3. Alleged direct dealing with employees
After withdrawing recognition from the Union, the Respon-
dent held a number of meetings with a group of employees from

37 Considering all of the circumstances and her testimony as a whole,
I find that employee Jeannie Donaldson was probably mistaken when
she testified that Underwood was present when she signed the petition.
I find the testimony of CNA Bobbie Spencer that, before she clocked in
for the night shift, Supervisor Jane Mantz told her to go to the laundry
where she would find the petition and to sign it, does not establish
supervisory involvement. Mantz was a credible witness and she testi-
fied that, at the start of a shift on a date she could not recall, she told
Spencer that employee Bertha Cummins had left something for her in
the laundry room. Spencer responded that she already knew about it.
Mantz testified that she had a suspicion about what was being refered to
but that she was not told what it was. I credit her denial.
38 Although Underwood testified that the increase was similar to that
in its last (but not necessarily final) contract offer, no bargaining im-
passe had occurred and the Respondent was not free to act unilaterally.
various departments at the facility. The complaint alleges that
through these meetings the Respondent unlawfully dealt directly
with employees concerning terms and conditions of employ-
ment, thereby bypassing the Union when it remained the em-
ployees’ statutory bargaining representative. The Respondent
denies that the meetings involved “dealing” with the employees
and contends that the meetings involved permissible communi-
cation between employer and employees.
CNA Wilden Overbaugh previously worked for the Respon-
dent, but had left its employ before the strike. She returned as a
replacement for a striker. Overbaugh testified that during the
second or third week of May she was approached by Marc Case
about attending what she initially thought was a quality circle
meeting, dealing with care of the residents. Although there was a
quality circle meeting at the facility that day, the meeting she
attended was different. It was attended by Underwood and Fer-
guson and several employees from different departments and/or
shifts. She testified that Ferguson began the meeting by saying
that it was being held to lay the basis for a new contract and that
he wanted to keep it as close to the old one as possible. The
meeting was held after the wage increase had been imple-
mented, but the subject of raises was discussed. Ferguson said
that he wanted all the CNA’s wages to be in a close range but
that if he gave them a big raise it would put them in the LPN
wage range. He also commented that everything he tried to do
about wages had taken a long time because it had to go through
the Union. Underwood stated that he could make changes faster
if he didn’t have to take everything through the Union. She said
they were told not to say anything about what went on during
the meeting because if it got out the Union would claim they
were being bribed. Each employee was asked to get their co-
workers opinions on what they wanted to be in the contract.
Employee Kim Wilson complained about an unidentified union
supporter that had returned to work that she said was harassing
her and Underwood said that he could do something about it
only if it involved a verbal or physical threat. There was a ques-
tion raised about whether the facility was for sale. Ferguson said
that he was not looking for a buyer but that did not mean he
would not sell if the right offer came along. There was also a
question about sick days. Another meeting was scheduled to
held in June, but she did not attend because she was away.
Marc Case testified that sometime after he had solicited for
the decertification petition, he spoke to Underwood about hold-
ing a meeting with employees to keep them abreast of what was
going on and he agreed. Case spoke to some employees about
being on a committee to attend the meeting which was held in
April or May. He said that at first they were going to call it a
negotiation committee, but did not do so. He said that he did not
recall whether he used the term “negotiation” when he spoke to
Underwood. He also said he did not recall anything that oc-
curred at the first meeting of the committee but then said that
Ferguson did most of the talking and the some problems on the
floor may have been discussed. He said there was no mention of
a contract at this meeting. Case testified that at a second meeting
involving the committee, the biggest part of the meeting in-
volved a discussion about a picketing incident at Ferguson’s
church. Pattie Price testified that on a date she did not recall
Case told her some employees wanted to have a meeting with
management and they went to Underwood to see if they could
set it up. Although they did not tell him what they hoped to ac-
complish in the meeting, he agreed to it. She did not recall when
the meeting was held but Underwood and Ferguson were pre-
NICHOLAS COUNTY HEALTH CARE CENTER 995
sent. She also did not remember what was discussed at this
meeting except that there was no mention of a contract. She
attended a second such meeting and had no recollection of what
was discussed except an incident outside Ferguson’s church
where Hornick was passing out literature. Janet Tinney testified
that she attended two or three meetings with management after
the strike, but she did not know when they were or how they
came about. At the first meeting, she thought that Ferguson said
the meeting was not about a contract but to improve the facility
and morale. She asked Ferguson if he was going to sell the facil-
ity and if he would consider starting a credit union. He said he
had no plans to sell and that he would have see what he could
find out about a credit union. He later told her he was still
checking on it but that it sounded like a good deal. She said
there was no mention of entering into a contract and that Fergu-
son said they would be going by the old one until everything
was settled. At a later meeting, she recalled suggesting that there
be dinner to raise morale and that Price asked that she be pro-
vided with an assistant. At the last meeting she attended, the
employees made a bunch of suggestions but there had been no
meeting since and they had not heard back by the time of the
hearing. Velma Hoover testified that she was asked to be on a
committee of employees to meet monthly with management.
She testified that she initially thought it was to talk contract. She
attended the first meeting on May 22, at which Ferguson spoke
for most of the meeting, telling them what he hoped to accom-
plish at the facility. Underwood also spoke and the employees
offered comments. There was no discussion of a contract but
Ferguson did talk about increasing wages and benefits although
he did not give any specifics. She said that the employees were
to talk to the people in their departments and make a list of what
they were concerned about. Linda Williams testified that she
attended all of the meetings of employees with management
which she said were to discuss problems concerning their work-
ing conditions such as work schedules and supply shortages. She
did not recall any discussion of a contract and there was no dis-
cussion of pay and benefits. She said she had been involved in
some contract negotiations and these meetings were not similar.
She could not recall if they were to go back to their departments
and see what other employees wanted discussed at the meetings.
Charlotte Thomas testified she was asked by Case to attend a
meeting with management, as a representative of the dietary
department, to find out where they stood with respect to the
rules they were to go by since the Union was no longer there.
Ferguson was asked about selling the facility. There was a ques-
tion about whether there was going to be a contract set up for
them and Underwood responded that they would go by the rules
in the old contract. She described it as similar to the Quality
Circle meetings she had attended. Ferguson testified that he was
told that the employees had a lot of questions and he agreed to
meet with them to try to answer their questions. At the meeting,
there was no discussion of entering into a contract with the em-
ployees. He was asked if he had plans to sell the facility and said
there were no plans to do so. They discussed ways to improve
the facility and questions were asked about scheduling, pins for
years of service and the possibility of starting a credit union and
a pension plan. He said that a pension plan was something he
would look into in the future but that they were going to imple-
ment the same package that was on the table when the old con-
tract expired on January 1. He told them he was not there to
bargain with them or to enter a contract and if they were unsure
about their status they should look to the existing employee
manual. He attended a second meeting where they discussed the
incident outside his church. There were few questions and it
lasted only a short time.
Analysis and Conclusions
There is no evidence that the Respondent had any involve-
ment in forming the committee of employees or in selecting its
members. While it appears that Case, who formed the commit-
tee, may have initially believed it would be a “negotiation”
committee, it does not appear that the Respondent shared that
belief. I credit the testimony of Ferguson that he made it clear
from the outset that he was not going to negotiate a contract.
While the accounts of the several employee witnesses who at-
tended one or more meetings differ widely, it appears that the
term “contract” was mentioned only in the context of Ferguson’s
saying they would generally follow the provisions of the expired
contract or the Respondent’s last contract offer. While I found
Overbaugh to be a generally credible witness, given the fact that
none of the other witnesses remembered Ferguson saying any-
thing about laying the basis for a new contract and Ferguson’s
credible testimony to the contrary, I find it likely that she mis-
understood what he was saying about that subject.39
The evidence establishes that the employees on the committee
discussed with management matters directly relating to the terms
and conditions of their employment. However, it does not estab-
lish a pattern or practice whereby over a period of time the em-
ployees made proposals to which management responded to by
word or deed. The committee did not appear to have any definite
structure, membership fluctuated and there was no agenda for the
meetings. I find that the meetings involved sharing information
with the employer and were in the nature of brainstorming ses-
sions in which the committee members put forth questions and/or
a whole host of ideas of their own or which they passed on for
the employees in their departments. There is no evidence that the
committee arrived at any consensus as to what would or would
not be passed on to management of in any way limited what indi-
vidual participants could ask or propose. Under the circum-
stances, I find the these committee meetings did not involve
“dealing” with the Respondent on statutory subjects. See E. I. du
Pont & Co., 311 NLRB 893, 894–895 (1993). I shall recommend
that this allegation be dismissed.
CONCLUSIONS OF LAW
1. The Respondent, Nicholas County Health Care Center,
Inc., is an employer engaged in commerce within the meaning
of Section 2(2), (6) and (7) of the Act and a health care facility
within the meaning of Section 2(14) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.

39 I find nothing to support the Respondent’s gratuitous attack on
Overbaugh’s credibility. As a replacement worker, signer of the
decertification petition and current employee, there is no reason to believe
she was biased against the Respondent or in favor of the Union. She was
not, as the Respondent asserts, evasive and appeared to be attempting to
give a true account of what she recalled having occurred, much of which
was confirmed by the Respondent’s own witnesses. The contrast between
her straightforward testimony on this issue and that of the Respondent’s
witnesses, Davis and Case, the moving forces behind the decertification
petition and the committee, respectively, who feigned almost complete
lack of memory about these meetings, could not be much sharper. Case,
in particular, in response to leading questions from the Respondent’s
counsel, had a clear memory of what was not said at the meetings, but
was generally unable to state in his own words what was discussed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 996
3. All full-time and regularly scheduled part-time service and
maintenance employees employed by the Employer at its Rich-
wood, West Virginia facility including nurses aides, housekeep-
ing aides, laundry aides, dietary employees and maintenance
assistants; but excluding all office clerical employees, all Li-
censed Practical Nurses, all Registered Nurses and professional
employees, all guards, the department heads of nursing, laundry,
housekeeping, dietary, activities, social services and maintenance
and all other supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material, the Union has been the exclusive rep-
resentative of all employees in the above-described unit for the
purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and conditions of
employment within the meaning of Section 9(a) of the Act.
5. The Respondent violated Section 8(a)(1) of the Act by:
(a) Referring to an employee who supported the Union as a
nuisance and saying it would like to get rid of her.
(b) Telling employees not to engage in discussions involving
the Union or the Board at its facility.
(c) Coercively interrogating an employee about her union ac-
tivity.
(d) Coercively interrogating an employee about telephone
calls she made from home concerning the Union and attempting
to stop her from making similar calls.
(e) Isolating two employees who were representatives of the
Union by restricting their access to the dietary break area and to
the facility before work.
(f) Threatening employees with termination if they engaged
in a strike.
(g) Creating the impression that it had surveilled a strike vote
held by the Union and interrogating an employee concerning
how she voted.
(h) Telling employees they would be permanently replaced if
they engaged in an unfair labor practice strike.
(i) Threatening employees with disciplinary action and/or
termination if they discussed the Union while at work.
(j) Telling an employee not to voice any complaints while at
work.
(k) Threatening to deny unfair labor practice strikers their
rights to be reinstated.
(l) Offering an employee her choice of positions if she did
not participate in the strike.
(m) Announcing and enforcing a no-solicitation rule applica-
ble only to the collection of union dues.
6. The Respondent violated Section 8(a)(3) and (1) of the
Act by:
(a) Issuing disciplinary warnings to and terminating Eula
Carden because of her protected activities and support for the
Union.
(b) Issuing disciplinary warnings to and terminating Wanda
Proctor because of her protected activities and support for the
Union.
(c) Issuing a disciplinary warning to Mabel Bailes because of
her protected activities and support for the Union.
(d) Failing and refusing to fully reinstate unfair labor prac-
tice strikers to their former positions immediately upon receipt
of their unconditional offers to return to work on March 5,
1996.
7. The Respondent violated Section 8(a)(5) and (1) of the
Act by:
(a) Failing and refusing to continue in effect the grievance
procedure provisions of the collective-bargaining agreement
after expiration of that agreement.
(b) Withdrawing recognition from the Union as the collec-
tive-bargaining representative of unit employees on March 14,
1996, and thereafter refusing to meet and bargain in good faith
with the Union.
(c) Granting a wage increase and/or bonus to employees
without first giving the Union notice and the opportunity to
bargain.
8. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
9. The strike engaged in by the Respondent’s employees on
March 4, 1996, was caused by the Respondent’s unfair labor
practices and was from its inception an unfair labor practice
strike.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent unlawfully failed and re-
fused to reinstate unfair labor practice strikers upon their uncon-
ditional offers to return to work on March 5, 1996, it shall be
required to reinstate them immediately to their former positions
or, if those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority and other rights and
privileges, discharging if necessary all replacements hired after
the March 4, 1996 commencement of the strike. The Respondent
shall also be required to make those employees whole for any
loss of earnings and other benefits they may have suffered by
reason of the refusal to reinstate them, from the date of their of-
fers to return to work. Backpay shall be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest, computed as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
Having found that the Respondent discriminatorily termi-
nated employees Eula Carden and Wanda Proctor, it shall be
required to offer them immediate and full reinstatement to their
former positions or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their senior-
ity and other rights and privileges and make them whole for any
loss of earnings and other benefits they may have suffered by
reason of the discrimination against them, in the manner de-
scribed above.
The Respondent’s numerous and flagrant unfair labor prac-
tices, involving its highest levels of management, demonstrate a
proclivity for violating the Act and a general disregard for its
employees’ Section 7 rights. Accordingly, I find that a broad
cease-and-desist order is appropriate. See Clark Manor Nursing
Home Corp., 254 NLRB 455, 459 (1981); and Hickmont Foods,
Inc., 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended40

40 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
NICHOLAS COUNTY HEALTH CARE CENTER 997
ORDER
The Respondent, Nicholas County Health Care Center, Inc.,
Richwood, West Virginia, its officers, agents, and assigns, shall
1. Cease and desist from
(a) Referring to employees who support the Union as nui-
sances and telling them it would like to get rid of them.
(b) Telling employees not to engage in discussions involving
the Union or the Board at its facility.
(c) Coercively interrogating employees about their union or
other protected activity and telling them to cease such activi-
ties.
(d) Isolating employees who are representatives of the Union
by restricting their access to break areas and/or to the facility
before work.
(e) Threatening employees with termination if they engage in
a strike.
(f) Creating the impression that it had surveilled votes held
by the Union and interrogating employees concerning how they
voted.
(g) Telling employees they will be permanently replaced if
they engage in an unfair labor practice strike.
(h) Threatening employees with disciplinary action and/or
termination if they discuss the Union while at work.
(i) Telling employees not to voice any complaints while at
work.
(j) Threatening to deny unfair labor practice strikers their
rights to be reinstated.
(k) Offering employees their choice of positions or other
benefits if they do not participate in a strike.
(l) Announcing and enforcing a no-solicitation rule applica-
ble only to the collection of union dues.
(m) Issuing disciplinary warnings to and/or terminating em-
ployees because they engage in protected activities and/or sup-
port for the Union or any other labor organization.
(n) Failing and refusing to fully reinstate unfair labor prac-
tice strikers to their former positions immediately upon receipt
of their unconditional offers to return to work.
(o) Failing and refusing to continue in effect the grievance
procedure provisions of the collective-bargaining agreement
after expiration of that agreement.
(p) Withdrawing recognition from the Union as the collec-
tive-bargaining representative of unit employees and refusing to
meet and bargain in good faith with the Union.
(q) Granting a wage increase and/or bonus to employees
without first giving the Union notice and the opportunity to
bargain.41
(r) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Eula
Carden and Wanda Proctor full reinstatement to their former
jobs or, if those job no longer exists, to a substantially equiva-
lent positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.

41 Nothing in this Order shall be construed as requiring the Respon-
dent to withdraw the wage increase and/or bonus granted to any em-
ployee in or after March 1996, without a request from the Union. See
Elias Mallouk Realty Corp., 265 NLRB 1225 fn. 3 (1982); Taft Broad-
casting Co., 264 NLRB 185 fn. 6 (1982).
(b) Make Eula Carden and Wanda Proctor whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of this Order, offer Jane
Alderman, Mabel Bailes, Vera Bennett, Joy Bragg, Patricia
Brooks, Patty Clevenger, Patsy Davis, Connie Dearfield,
Margie Dillard, Richard Glover, Karen Griffith, Patricia
Groves, June Harris, Clarice Holcomb, Wendy Holcomb, An-
nabelle Justice, Keith Meadows, Patty Mullins, Bessie Rice,
Cleo Sandy, Betty Scott, Mary Vance, Terry White, Delores
Whittington, Linda Wright, and Evelyn Young full reinstate-
ment to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(d) Make Jane Alderman, Mabel Bailes, Vera Bennett, Joy
Bragg, Patricia Brooks, Patty Clevenger, Patsy Davis, Connie
Dearfield, Margie Dillard, Richard Glover, Karen Griffith,
Patricia Groves, June Harris, Clarice Holcomb, Wendy Hol-
comb, Annabelle Justice, Keith Meadows, Patty Mullins,
Bessie Rice, Cleo Sandy, Betty Scott, Mary Vance, Terry
White, Delores Whittington, Linda Wright, and Evelyn Young
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set
forth in the remedy section of the decision.
(e) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful warnings issued to Mabel
Bailes, Eula Carden and Wanda Proctor and the unlawful dis-
charges of Eula Carden and Wanda Proctor and, within 3 days
thereafter notify the employees in writing that this has been
done and that the warnings and discharges will not be used
against them in any way.
(f) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(g) Recognize and, on request, bargain in good faith with the
Union as the exclusive representative of the employees in the
appropriate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the under-
standing in a signed agreement.
(h) On request of the Union, reinstate and continue in effect
the grievance procedure provisions of the collective-bargaining
agreement that expired December 31, 1995.
(i) Within 14 days after service by the Region, post at its fa-
cility in Richwood, West Virginia, copies of the attached notice
marked “Appendix.”42 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
42 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 998
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since August 28, 1995.
(j) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
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 has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT refer to our employees who support the Union
as nuisances or tell them we would like to get rid of them.
WE WILL NOT tell our employees not to engage in discussions
involving the Union or the Board at the facility.
WE WILL NOT coercively interrogate our employees about
their union or other protected activity or tell them to cease such
activities.
WE WILL NOT isolate our employees who are representatives
of the Union by restricting their access to break areas and/or to
the facility before work.
WE WILL NOT threaten our employees with termination if
they engage in a strike.
WE WILL NOT create the impression that we have surveilled
votes held by the Union or interrogate our employees concern-
ing how they voted.
WE WILL NOT tell our employees they will be permanently
replaced if they engage in an unfair labor practice strike.
WE WILL NOT threaten our employees with disciplinary ac-
tion and/or termination if they discuss the Union while at work.
WE WILL NOT tell our employees not to voice any complaints
while at work.
WE WILL NOT threaten to deny unfair labor practice strikers
their rights to be reinstated.
WE WILL NOT offer our employees their choice of positions
or other benefits if they do not participate in a strike.
WE WILL NOT announce or enforce a no-solicitation rule ap-
plicable only to the collection of union dues.
WE WILL NOT issue disciplinary warnings to and/or terminate
our employees because they engage in protected activities
and/or support for the Union or any other labor organization.
WE WILL NOT fail or refuse to fully reinstate unfair labor
practice strikers to their former positions immediately upon
receipt of their unconditional offers to return to work.
WE WILL NOT fail or refuse to continue in effect the grievance
procedure provisions of the collective-bargaining agreement
after expiration of that agreement.
WE WILL NOT withdraw recognition from the Union as the
collective-bargaining representative of employees in the appro-
priate unit or refuse to meet and bargain in good faith with the
Union.
WE WILL NOT grant a wage increase and/or bonus to our em-
ployees without first giving the Union notice and the opportu-
nity to bargain.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order,
offer Eula Carden and Wanda Proctor full reinstatement to their
former jobs or, if those job no longer exists, to a substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Eula Carden and Wanda Proctor whole for
any loss of earnings and other benefits suffered as a result of
the discrimination against them, plus interest.
WE WILL within 14 days from the date of the Board’s Order,
offer Jane Alderman, Mabel Bailes, Vera Bennett, Joy Bragg,
Patricia Brooks, Patty Clevenger, Patsy Davis, Connie Dear-
field, Margie Dillard, Richard Glover, Karen Griffith, Patricia
Groves, June Harris, Clarice Holcomb, Wendy Holcomb, An-
nabelle Justice, Keith Meadows, Patty Mullins, Bessie Rice,
Cleo Sandy, Betty Scott, Mary Vance, Terry White, Delores
Whittington, Linda Wright, and Evelyn Young full reinstate-
ment to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
WE WILL make Jane Alderman, Mabel Bailes, Vera Bennett,
Joy Bragg, Patricia Brooks, Patty Clevenger, Patsy Davis, Con-
nie Dearfield, Margie Dillard, Richard Glover, Karen Griffith,
Patricia Groves, June Harris, Clarice Holcomb, Wendy Hol-
comb, Annabelle Justice, Keith Meadows, Patty Mullins,
Bessie Rice, Cleo Sandy, Betty Scott, Mary Vance, Terry
White, Delores Whittington, Linda Wright, and Evelyn Young
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, plus interest.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful warnings
issued to Mabel Bailes, Eula Carden, and Wanda Proctor and
the unlawful discharges of Eula Carden and Wanda Proctor,
and within 3 days thereafter notify the employees in writing
that this has been done and that the warnings and discharges
will not be used against them in any way.
WE WILL recognize and, on request, bargain in good faith
with the Union as the exclusive representative of our employees
in the appropriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the un-
derstanding in a signed agreement.
WE WILL on request of the Union, reinstate and continue in
effect the grievance procedure provisions of the collective-
bargaining agreement that expired December 31, 1995.
NICHOLAS COUNTY HEALTH CARE CENTER, INC.