Northway Nursing Home

National Labor Relations Board - Board Decisions

Jul 18, 1979

243 N.L.R.B. 544 (N.L.R.B. 1979)

DI)('ISI()NS OF( NATIIONA. I.ABOR RL.AT'IONS BOARI)
Carrawav Geriatric Centers, Inc. d/h/a Northway
Nursing Home and Hotel and Restaurant Employ-
ees and Bartenders Union, Local 886, AFL-CIO.
Case 10 CA 13633
July 18. 1979
DECISION AND ORDER
BY ICHAIRMAN :ANNIN( ANI) M MIE RS JI NKINS
ANI) MURPIY
On January 15, 1979, Administrative law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter Respondent filed exceptions
and a supporting brief'.
Pursuant to the provisions of' Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional abor Relations Board had delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief'
and has decided to affirm the rulings, findings' and
I Respondent has ecepted tol certain credibility indings made bhs the Ad-
minislrative Law Judge. It is the Bard's established polilcy not to o'errule
an admini'tra li'e law judge's resolutions with respect to credibility unless
the clear preponderance of all f the relevant ev idence cons nces us that the
resolutions are incorrect. Standard Dn 1t/all Prdlu, 1. In . 91 N Rb 544
(1950}. enfd. 188 F.2d 362 (3d ('ir. 19511 We have carefully examined the
record and find no basis ir reversing his findings.
The Administrative Law Judge in discrediting Irihhble found a major in-
consistency as to when Glodt interviewed 'Tribble as a further indication o a
lack of credibility on Tribble's part. The record, however. does not support a
finding that the testimony is necessarily inconsistent or contradictory. Since
the credibility finding on Tribble also was based on her deameanor, evasive-
ness. and exact duplication of Armstrong's testimony, the apparent error h
the Administrative Law Judge concerning the inconsistent or contradiclory
testimony does not affect the result.
One further credibility issue also deserves comment. (;ills allegedly was
discharged lor threatening picket line violence The Administrative l.aw
Judge credited Gills' and employee Lee's version of the alleged threat. (ills
and ee testified that employee Brooks was nearhb when the conversation
occurred and could possibly have overheard it Respondent's witnesses,
Armstrong and ribble, whom the Administrative l.aw Judge discredited for
numerous reasons. but specifically for demeanor. denied Brooks was present.
Brotxks was not called as a witness. Respondent, in contending that the
Administrative I.aw Judge should have drawn an adverse inlirence from the
General ('ounsel's failure to call Brtoks. insists it did not call Brooks be-
cause it did not know of her alleged presence at the incident until the hearing
began In rejecting Respondent's contention, the Adninistratie l.aw Judge
concluded that since neither party offered to explain Brooks' bsence it
would be speculative to conclude Brooks was in the cntrol of the General
Counsel. Respondent excepts to the Administrative law Judge's failure to
draw an adverse inference.
With regard to Respondent's contentention, a Iw ohbservations appear war-
ranted. If Respondent considered Brt)iks' testimonly necessary or important.
it could have called Broo)ks even if it meant asking for a pstponement.
Moreover. i Brooks had been called and testified to the version of the inci-
dent most lIavorable t Respondent (which would he the result if drasing
the inference). would this nol. i fact. further discredit Respondent's it-
nesses who insisted Brooks was not present'? It ially. we are constrained to
note that the rea son Resplondent did nt know about BHrooks' alleged pres-
ence is because in "investigating" the incident it did not find it necessary to
obtain the versions of Lee or Gills The failure to iobtain their versions. In
fact. is one of the reasons we find (;ills' discharge was pretextual in nature.
Had Respondent obtained both sides of the story. t presumably would have
learned of Brotks' presence from (;ills and Lee and could have called
conclusions of the Administrative i.aw Judge and to
adopt his recommended Order.
ORD)tR
Pursuant to Section IO(c) of the National L.abor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative l aw Judge and hereby or-
ders that the Respondent. ('arrawav (;eriatric
Centers. Inc. d/b/a Northway Nursing Home, Bir-
mingham. Alabama, its officers, agents, successors,
and assigns, shall take the action set Itrth in the said
recommended Order.
iBrooks is witnless. [ ur this reason. it seeni prticil.rl tlltlLgrtlUs lit
Resplondent. n olne hand. It cnlend it had no knowledget I Brok' pres-
ence and yet Insisl that the adverse inlerence he dra. n.
Nonetheless. even if we were Itl draw the requested inlerence. hlch in
light of the abose we find unnecessary) I do. we wiould still find the alleged
threat amiounted to nothing molre than prestrike rhetoric which Respondent
seized upon as li pretext to discha;rge (;ills, ; uiniln achlisl, and thereby
warn the employ ees it did nt look l'awra bly uptpn the Unio n or the p .sslbil-
it) o1 a strike. Thus. as found hb the Adniiiustrral, e l.aw Judge, I ribhhle
brought up the subject of a strike, which had heen rumored rom Sepembniher
to I)ecemher (bargaining began i June) In ddiltun. I rlhbbhic and Armi-
strong apparently considered the incident so nsignificantl that the cxtlent o1
Iheir conversatitn on the subject. lthough the rde hmnie toIgether, as
I rlhle's comment shorll alter the incident tht "I' think ,,e'vse hecn threatc
enied," to which Armstrong replied, "' thinLk s" Neither rihhble nr Arm-
strong considered the incident significanl enough to ntulit Respondent.
Railher. Iribble's aunt cnitacted Respondent alter Iribble mentioned the
incident to her MoNreover. on cross-esalmination I rihle and Armlstromn
acknowledge that (;ills explicilly stated that she ould not be the one to
calrr out the alleged threa;t inlly, ot pralmounlt significance is the tact
that Respondent. in the course ol "investigating" the alleged threat, did not
even find it necessary to obtain (ills' and I .ee's versions of the incident
Since (;ills was ahout to lose her job, it oultId appea;r onl, lair in attemlpting
to determine the truth. i. i1t act, that :ere the purpose ot the invsligatinm.
that Responident vitld at least have sked (;ills and tee for their sversions ot
the incident hefore taking such drastic action
D)L('ISI()N
St I I l Il ( i tiI1 ( AStl
NiIRMAN ZANK:I Adtnllistrative I.aw Judge: l'his case
was heard bef'ore mcin ()October 25 1978. ailt Birmingham.
Alabama.
Upon ;a charge filed on Mayi 2. 1978. b Holtel and Res-
tauranl tnmplotees and Bartenders Union. laocal 886,
AFL ('10 (hereinafter the Ulnion) a complaint Issued on
May 25. 1978, by the Acting Regional l)irector for Region
10 of' the National abor Relations Board hereinafter the
Board) against ('arraway (ieriatric ('enters Inc. d/b/a
Northway Nursing Home (hereinafter the Respondent).
In essence. the complaint alleges that Respondent dis-
criminated against employees in violation of Section 8(a) I)
and (3) of the National abhor Relations Act as amended
(nereinafter the Act), by discharging its ciplot , cc letia
(ills.
'he Respondent iled a timel ansuer to the comnplainlt,
admitting certain allegations. hilt deitn ig the substanlivce
allegations that it committed an, unfair lahbor practice.
243 NlRB No. 98
544
NORTHWAY NURSING HOME
All issues were fully litigated at the hearing: all parties
were represented by counsel and were aflforded full oppor-
tunity to examine and cross-examine witnesses, to introduce
evidence pertinent to the issues, and to engage in oral argu-
ment. Post-hearing briefis have been received from the
Board's counsel for the General Counsel and from Respon-
dent's counsel.' Those briefs have been considered care-
fully.
Upon the entire record. and from my observation of the
witnesses2 and their demeanor in the witness chair, and
upon substantial, reliable evidence "considered along with
the consistency and inherent prohbabhility of testimony"
('niversal (lamera C(orp. . .I.R... 340 .S. 474. 496
I1951)). I make the lollowing:
FINDIN(;S ANt) CoN(T I SINS
I. lit IPI ()Y R'S BUSINSS
Respondent. an Alabama corporation ith an office and
place of business in Birmingham. Alabama. is engaged in
the operation of a nursing home for the elderly. During the
calendar year immediately preceding issuance of the com-
plaint. a representative period, Respondent provided non-
profit nursing home services from which it received gross
revenue in excess of $100.000. of which 75 percent was re-
ceised from Medicaid.
Based upon the foregoing. I conclude that the Respon-
dent satisfies the Board's jurisdictional standards (see I nl-
vervit Nursing Home. nc.. 168 NI.RB 263. 264 (1967)) and
it will effectuate the purposes of the Act to assert jurisdic-
tion herein.
Respondent admits, the record reflects. and I find that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
I1I. Ilil lAB()R OR(,A\IZ.AIt)tN IN) t it)
The parties agree, the record reflects, and I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
itt. it Al t G(iEi) NtAIR I AB(OR RA( ('S
A. (rcedibilitv
Credibility of the respective witnesses is the crucial issue
herein and determines whether the General Counsel's or
Respondent's version of the facts should be adopted. The
ultimate choice in making my findings of fact is based upon
my observation of the demeanor of the witnesses, the
IOn November 28. 1978 (10 days after briefs were due). I receised a
supplemental brief from counsel for the General Counsel N prior request
to file such a brief had been made The supplemental brief for the first time
requests that any backpay found to be due herein be awarded at the interest
rate of 9 percent. I consider the supplemental brief to have been late-filed
Accordingly. its contents hase been given no substantive consideration In
any event, I see no reason to depart from the Board's recent pronouncement
regarding interest payments made in Florda Stel (rporautn. 231 NI.RB
651 (1977).
2 Upon Respondent's motion. which I granted. all emploee witnesses
were sequestered
weight of the respective evidence provided b them. estab-
lished or admitted facts, and inherent probabilities and rea-
sonahle inferences which may be drawn from the record as
a whole. Northridge AKnittig Mills. Inc.. 223 NLRB 230
(1976): Warren L. Rose Castings, Inc. d/ha 'l I & 1f (ast-
ings, 231 N LRB 912 (1977): see also Goll Sltantdrd Enter-
prises. Inc., 234 NLRB 618 11978X).
Moreover. I have weighed all the testimony carefully,
bearing in mind the tendency of witnesses in general to
testitfy as to their impressions or interpretations of what was
said rather than attempting to give verbatim accounts: and
also that even the person testitfing about his own remarks
may well tend to elucidate or express what he said or in-
tended to say in language more explicit or clear than he
used in the actual speech or discussion.
The various testimony presented herein is replete with
instances of witnesses for each litigant providing testilony
in direct opposition to that presented bh those of opposing
litigants. I shall discuss only those conflicts of testimony
which are relevant. On the other hand. I have neither g-
nored all such testimony nor the arguments of counsel.
In the credibility contest between the witnesses presented
bh the General Counsel and those on behalf of Respondent.
a fair assessment of the testimony presented b each per-
suades me that the versions presented by the General C(oun-
sel's witnesses are most reliable. In this regard. I alt not
unmindful of the conflicting evidence pertaining to the pre-
cise locations of the employee participanits to the conxersa-
tion during which Giills is supposed to have issued the
threat fo)r which Respondent discharged her. I find it un-
necessary to resol,, e this conflict because precisely where
each stood is irrelevant to the issue of whether or ot the
threat actuaill was made. Moreover, there exist substantial
other means. described below b which to test and resolve
the veracity of the respective witnesses. I attribute the dif-
tferences among the witnesses who testified where each of
the participants in the discussion stood or sat to their per-
sonal predilections nd individual differences in powers of
observation. Thus. I give such testimony little probative
value. More important is the demeanor, inherent consis-
tency. and probability of the sum of their testimony.
The General Counsel presented two employee witnesses.
Thus. Gills and former employee Herbert I.ee testified.
Each impressed me as forthright and candid. Viewed in-
dividually, each testified in a spontaneous and direct man-
ner. As will be demonstrated below. their testimony is con-
sistent, inherently probable. and logical. Neither oft' them
attempted to embellish his or her narration of events. Gills
and Lee had no patent relationship to each other. On the
other hand, Respondent witnesses Bridgette L. Tribble and
Ora L. Armstrong drove together to and from work. I note
that there are minor variations between Gills' and Lee's
recitation of what was said during the conversation where
Gills is supposed to have threatened employee Tribble.
However. as a whole I find the testimony of Gills and Lee
substantially mutually corroborative. The variations reflect
normal differences in individual perception. In contrast.
Tribble and employee witness Armstrong and witness
James Glodt (Respondent's Administrator) appeared re-
hearsed beyond mere coincidence. For example. Respon-
dent sought to show that employees had been warned by
Respondent that it wouhl not tolerate threats by striking
545
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to nonstrikers. To prove this. Glodt testified
that, at a meeting of employees conducted in November
19771 "we (Respondent) would not tolerate" such threats.
When asked to recall whether or not employees had been
warned about threats, both Tribble and Armstrong testified
in hec verha that Glodt advised the employees that the
employer "would no tolerate" any threats. This consistency
might be considered mere coincidence. However, I do not
pass this matter off in such a perfunctory manner. As noted.
Tribble and Armstrong rode to work together. All but three
of Respondent's employees had voted in favor of union rep-
resentation. Armstrong and Tribble did not strike, and each
freely admitted they were not favorably disposed toward
the Union. Each was instrumental in providing information
to Glodt upon which he based Gills' discharge. In these
circumstances, and those to be described below. I consider
this duplication of testimony a factor detracting from their
credibility.
In general, I found Tribble haughty. inconsistent, and
self-contradictory: Armstrong nervous, hesitant, inconsis-
tent, and self-contradictory: and Glodt inherently inconsis-
tent and implausible in critical areas. The specific issues
upon which I base these conclusions follows.
Tribbble was self-contradictory. An example is her narra-
tion of the first thing that occurred during the confrontation
between her and Gills. Tribble, during direct examination.
insisted that Gills came into the nursing home and immedi-
ately was "talking loudly." I)uring her cross-examination,
however, when asked to repeat the sequence of events.
Tribble testified (;ills came into the employer's premises
"mumbling" something about a strike.
Next, Tribble demonstrated evasiveness and an attempt
to obscure all the relevant facts. When recounting the al-
leged threat, Tribble, on direct examination, omitted to
state she heard Gills say that she would not be the one to
implement the alleged threat. However, during cross-exani-
nation. ribble admitted that Gills said "she would not be
the one to do it. She (Gills) said that she would not be the
one to give the beatings, etcetera, but they had people for
that." I consider that Tribble's omission to present the en-
tire discussion between her and Gills during her direct ex-
amination reflects adversely upon Tribble's credibility. Ad-
ditionally, Tribble ascribed the phrase "et cetera'" to Gills. I
conclude those Latin words, in fact, belong to Tribble, not
Gills. I carefully observed and listened to all witnesses.
Also. I have analyzed the testimony as it appears in the
transcript. The composite of those tasks makes it clear that
Gills' vocabulary and manner of speaking does not reason-
ably suggest the use of such phrases by Gills. The use of
that Latin phrase is more reasonably attributed to Tribble.
I consider Tribble's account of this matter as an attempt on
her part to distort the facts.
I find Tribble's description of what occurred after the
alleged threat was made by Gills improbable. Iribble testi-
fied that she was "real upset" and "scared." Armstrong.
who drove home with Gills immediately after the alleged
threat was issued, testified the two of' them were in transit
fbr as much as 10 minutes. However. Armstrong testified
that not one word regarding the alleged threat was said by
'All dates hereinalter are In 1977, unless olher'lsc indicatcd
either of them. Indeed, Armstrong testified the alleged
threat was mentioned but briefly. Thus, she said that as
Tribble and she walked out of the employer's premises.
Tribble commented "I think we've been threatened," to
which Armstrong replied "I think so." It stretches credulity
to imagine that. after having been told by Goldt the Re-
spondent "would not tolerate'' any threats, there would not
have been further discussion between Armstrong and
Tribble. Similarly, it is not unreasonable to expect that one
as distraught as Tribble claimed to have been would not
have manifested her emotions in a more vigorous and vocal
manner. Further reason to discount Tribble's characteriza-
tion of the event is the fact that it was her aunt (with whom
Tribble resided), not Tribble. who suggested reporting the
incident to Respondent.
Perhaps the most glaring instance of what I consider to
be Tribble's studied effort to present her testimony in a light
most favorable to Respondent is the inconsistency between
her and Glodt regarding when it was that she personally
appeared before Glodt to describe the alleged threat. Thus.
Tribble testified that she did lol wvork for the 2 dtai'. imme-
diately succeeding the allged threat. Both Tribble and
Gilodt testified that Tribble had an in-person interview with
Gilodt to report the incident. During the interview, Tribble
provided Glodt with a written statement of her version of
what had occurred.' 'ribble testified that because she was
not scheduled to work on the 2 dass immediately succeed-
ing the alleged threat, the interview with Glodt was con-
ducted on the third day after (ecember 9). Glodt, how-
ever, testified that he interviewed Tribble on the dav
ioltclilatev llowing tlhe ( a/leged i ibdent. As noted, parts of
Tribhle's 'ritten statement provsided Respondent were read
into the record. hut the document itself is not included.
There is no indlication swhether or not Irihhble's written
statement had been daled. hus, the record is left with the
contraldictory verslons of' Irihhle and Glodt. In my view.
those :. ri;ations inipair the rliablils of ''ribhle and (;lodt.
I find Armslrong inherently iplausible in her testimony
that she andl Iribble commented to one another that they'
believed the , had been threatened. As with Tribble if Gills
actually threatened them (or they believed so), it is not rea-
sonable to believ the two o them did not further discuss
the situation dllring their drive home. Also, Lee and Gills
testified that the conversation in which the alleged threat
wais nmade began hb (iills' invitation to I.ee to attend a
scheduled union meeting on the following day. No chal-
lenge has been made to G(ills' testimony in which she told
Lee that she could not attend the union meeting because of
a death in her family. It is logical that L.ee expressed his
sympathy to Gills. as he testified. Armstrong however, ada-
mantly denied that Lee said n'tihing at any time during the
conversation. In all the circumstances. I conclude this is
iniplausible and adversely affects her credibility.
With regard to Glodt, I have already noted the inconsis-
tency between his and Tribble's ersions as to the date
Tribble reported the alleged threat. Additionally, I find his
account of the basis for G(ills' termination spurious. Glodt
testified, consistent with, and supported by. his self-serving
' I hl slalcmecni was marked a (.( [xh. 5 I hc General (ounsel nter-
rogatled (;Iod con crning Iis conltents, but did notl ofler the document Into,
es dence
546
NOR IW\ A' NI: RSIN(, I O()M
termination letter to (ills. that he conducted an "investiga-
tion" ot the alleged threat. and it ,as this "investigation"
that formed the basis of the termination. Mere superficial
analysis of the totalit of e idence belies the contenliion that
the alleged threat was the sole cause or the disciplinary
action. Thus. the written statements provided b Armstrong
and Tribble to (ilodt reflect that (iills explicitly told them it
would not be she who would implement the alleged threat.
That language alone, if given a lair evaluation, vitiates
whatever threatening impact Gills' other remarks might
have contained. Indeed. Tribble's statement possesses a
broader disavowal. agreeing with G(ills' oral testionotn that
she said none of Respondent's employees would implement
the alleged threat.
Yet another reason exists for discounting (ilodt's testi-
mony, in general, and his explanation of the reason for ter-
mination, in particular. The extent of the so-called "investi-
gation" is extremely shallow. When questioned from the
bench, Glodt said he attempted to communicate with Lee.
whom, Glodt knew was a participant in the conversation
between Tribble and Gills. Glodt testified that he tele-
phoned Lee at home. hut received no response. Ihis was
the total extent of his effort in that connection. (;lodt testi-
fied that he made no effort to determine whether or not lee
might have been at work.
Finally, if it were concluded that Tribble gave her written
statement to Glodt on the day following the alleged threat.
that statement would have been in Glodt's possession on
December 7. It was then that the investigation apparentl1
was complete. This was before Glodt orally informed Gills
that she was suspended "pending the investigation." In this
context, the 2-day hiatus between the suspension and termi-
nation is unexplained. If, on the other hand. Tribble's testi-
mony that she gave the written statement to Glodt on IDe-
cember 9 is credited. then that statement would have been
given him on December 9. This would be more consistent
with the date which appears on Gills' termination letter. but
would not excuse the inference, which I make from Glodt's
failure to make a coniplete investigation, that he was satis-
fied with the presentations made by Tribble and Arm-
strong clearly two employees whose anti-union sentiments
could not have avoided his attention. Thus. I consider
Glodt's actions to have been baseless in the circumstances
and a revelation of his anxiety to trap a known vigorous
union proponent.
Several other factors bearing on credibility are notewor-
thy. With regard to Tribble, I find the record contains yet
another example of evasiveness. During her direct testi-
mony, Tribble said that when Gills made the alleged threat.
she (Gills) pointed her finger at Tribble. During cross-ex-
amination. Tribble said she was "ash.ohatel. sure" that (iills
did this. When confronted with her pretrial affidavit.
Tribble acknowledged that she told the Board's investigator
that she was uncertain whether Gills pointed her finger.
Tribble attributed this variation to having been nervous
during the interview in which she gave the affidavit to the
Board's investigating agent. I reject this explanation as un-
characteristic of Tribble's overall demeanor when testifying
before me. Afterwards, she was self-assured. Thus, her ex-
planation fails. Instead, I attribute her professed testimonial
certainty to her general desire to distort her testimony in an
unfavorable way against Gills
In m assessment of the :ilness' credlhilit I have
placed little significance on the testimons of I ribble and
Armstrong to the effect that the (ills-ribble conversation
w:as proloked I, Gills' h;laing irst commented that there
would be a strike on D)ecember 15. Gills denied that she
made such a; reference and also that she even kncv such a
date was contemplated for a strike. I credit G(ills. In makin
this determination, I have considered the contents of dcu-
ments received in e, idence ater the close of the heariIng. I
note that the December 5 letter does not constitute an olfi-
cial notice that a strike sould ensue on )December 15. Next.
there s nol direct c'idence that G(ills actuall' knev that the
letter had been dispatched. The actual strike vote. , hich
resulted in sending the I)ecember 19 oflicial notice to strike.
was taken on )ecember Is. In this posture and in iev, of,
G(ills' denial and rnm overall credibility resolutions, I col-
sider the letters of little probative alue.
Finall, in resolsing credibility. I am not unmindful that
ernployee Brooks did not testift. Both Gills and I.ce testi-
fied that Brooks wvas present during the Gills-lribble en-
counter. Tribble and Armstrong denied that Brooks ,.as
present. Respondent urges these circumstalnces permit an
adverse inference against the General (ounsel's cause for
his failure t produce Brooks at the hearing. I disagree. In
appropriate circumstances. such inferences are permissible.
Intcrviallt (Circuit, Ic. v. l lilted SItates, 306 U.S. )08 ( 1939):
),1onahwtl F)rd Corporation o!/ Flu.shimg, 173 NLRB 204
(1968). -lowever. it must be demonstrated that the absent
witness was in the control of the party against whom the
inference is to be made. 2 Wigmore. Evivdence §286(a).
Hlerein no party offered to present an explanation for
Brooks' absence. In these circumstances, it would he specu-
lative to conclude that Brooks was within the control of the
General ('ounsel. c\ccordingls I find no proper predicate to
make the requested inlerence.
B. 1 I/acrie
As noted. the comnplaint alleges Gills' termination on De-
cember 9 as discrilinatror r in violation of Section 8(a)1(3
of the Act. The facts set forth below are a composite of the
credited testimon and undisputed facts.
The Union won a Board-conducted representation elec-
tion and Wias certified as the collective-bargaining repre-
sentative of Respondent's employees on June 6. Collective-
bargaining negotiations ensued. No contract was reached
by September. Rumors of a strike then began and appar-
ently became quite prevalent into December. Actuall,. in
September. the bargaining unit emplosees voted to autho-
rize a strike, but no date was arranged. On December 5.
' After the hearing closed. Respondenl's counsel submitted an "unorpposed
motion to supplemen the record" to add lettlers dated )ecember 5 and 19
from t nion Representative Race to Respondent I cnsider hls motuin as a
motion to reopen the record or the limited stated purpose he mo tion is
herebh granted because witnesses during the hearing ere exlmined con-
cerning the suhject matter of the letters, hut the documents were not thin
asallable More, ser. I conclude the record reflects the parties' ntention to
hase offered these documents n es idence at the hearing had the' been avail-
able Internilonol Birtherhoi ol Elctril tl H orAers Fl. L. 1/0. Irocl J64
F;ithdilEir call('orpiratiton) 1 82 NlRB 66. 9 (1970) 1 have marked the
motion and each oI the ehiits (Resp l-xhs. 4. 5. and 6. respectivelv . and
have made themn a part oI the official transcript
q47
I)I!('ISIONS O() NAII()NAI. LABOR Rl.AI IONS BO()AR)
Race wrote the employer that unless agreement were
reached on a collective-bargaining agreement by December
16. "the Union will take whatever steps open to it, includ-
ing a work stoppage."b
On December 6. the disputed 'I ribble-Gills consersation
took place. The credited testimony reflects that the conver-
sation occurred at approximately 10:50 p.m. at the so-
called hack nurses station. Gills, who was scheduled to be-
gin her work shift at I p.m.. was talking to L.ee. A union
meeting was scheduled to be held December 7. G(ills re-
minded Lee of the meeting. She asked him to attend. G(ills
told Lee she personally could not attend because she had to
go to a funeral of a family member.
While Gills and Lee were talking (in the presence of em-
ployees Armstrong and Brooks) Tribble approached.
Tribble commented to the effect that the employees did not
have a union because it had not yet done anything for
them. Tribble observed they had not paid any dues and said
"therefore, we didn't have a union." Gills said the employ-
ees did have a union, but they were still bargaining. Tribble
then declared that she would not strike and "would walk
over the picket line." (iills responded "I wouldn't advise
you to walk over the picket line because there may he some-
thing or someone to stop you." Gills added that no em-
ployee of Respondent would perpetrate such an event. G(ills
further discussed the efficac of the Union. stating "It's or
poor Blacks and Whites. It will help us all." That ended the
conversation. and Tribble left the premises with Armstrong.
(Tribble's version of the conversation is substantially dil-
lerent. 7 Tribble testified that she was standing at the back
station at approximately 10:40 p.m., )ecember 6. Lee and
Armstrong were in the vicinity. Gills entered the premises
"talking loudly something about a strike." (Gills, still talk-
ing, punched her timecard and approached the back sta-
tion. Tribble then testified that (Gills looked at her and an-
nounced a strike was scheduled to begin on December 15.
According to Tribble. GCills then said if Tribble tried to
cross the picket line "they would" "beat my a-s and put me
on the side of the road." Tribble testified that Gills was
pointing her finger at Tribble while speaking. Tribble testi-
fied she Responded "If they did that, they had better have
somebody to get them out of jail." Tribble testified Gills
replied "We have people for that. too. We mean business."
Tribble acknowledged that Cills told her she was making
her comments for her own welfare. Additionally, as noted
herein, during her cross-examination. Tribble admitted
Gills explicitly disavowed that it was not she nor any other
employee of Respondent who might carry out the alleged
threat.)
As Tribble and Armstrong walked out of the facility.
Tribble said (as already noted) "I think we've been threat-
ened." to which Armstrong responded, "I think so." Tribble
'This letter was not sent pursuant to Sec. 8(g) of the Act, Hence, as
previously stated I do not consider It an official or formal strike notice.
(Compare the December 5 and 15 letters.)
I As indicated. I do not accept Tribble's account. It is set forth herein to
clarify and explain the discussion of credibility. section III. A. supru.
I Armstrong's version also specified vulgar language was used by Gills. I
consider this reference another example of uncanny duplication of testimony
between Armstrong and Tribble.
aid Armstrong then drove home without further reerence
to the alleged threat.
According to l'ribble and lodt, sometime near mid-
night. ecember 6. ribble's aunt telephoned (lodt to ad-
vise him of the alleged threat. As already noted. I ribble
vwas equivocal on this issue. She testified. also. that she was
not sure whether she telephoned (ilodt that night. At best.
whether or not the incident was reported to (ilodt that
night is uncertain. What is certain is that on the next day.
I)ecember 7. Armstrong had an in-person discussio ni with
(ilodt and gave him her written account of the alleged
threat. (As already indicated. it is not clear whether or not
Fribble also was interviewed by (ilodt thai day).
On December 8. when (ills appeared at Respondent's
premises to begin her usual I I p.m. shill. (ilodt and Re-
spondent's Director Estes met her at the timeclock. Gilodt
told her to leave the premises. lie said he learned that she
threatened some employees. G(lodt told (Gills she was sus-
pended until he further investigated. (I he nature of the "in-
vestigation" already has been discussed).
On December 9, (lodt wrote Giills she was terminated
effective that date because he had "completed (Resptmn-
dent's) . . . investigation of' the threats . . . (ills) . .. . made
to the employees . . . and concluded that . . . (ills) . . .
made threats of hodils harm or serious injury to the em-
ployees of this facility if they did not participate in a strike
being called by the Union."
On December IS the union membership voted to strike.
The Union forwarded a strike notice. pursuant to) Section
8(g) of the Act. to Respondent. The strike began on l)ecem-
her 29.
Gills, at all times material herein, was an active union
proponent and served on the I:nion's bargaining commit-
lee.
('. Dnimlitoi
The issue before me is to determine. from the totalit of
evidence, whether the asserted reason for (;ills' termination
actually is the one 'hich motivated it. Signal Delilvr Ser-
ice. nc . 226 N LRB 843 1976).
I find that Respondent had knowledge of Gills' union
sympathies and activity by virtue of her having participated
in face-to-Iace collective-bargaining negotiations with Re-
spondent's representative.
With regard to motivation, Respondent argues that the
record is devoid of evidence of its union animus. It is true
the General Counsel presented no direct evidence of prec-
edent improprieties by the Respondent. The complaint al-
leges no independent acts of interference, restraint. or coer-
cion which might be violative of Section 8(a)(I ) of the Act.
However, the Supreme Court has noted: "Specific evidence
of intent to encourage or discourage (union activity) is not
an indispensable element of proof of violation of Section
8(a)(3)." Radio Offi(er.v' Union /' the Conmmercial Telegra-
phers Union, A FL/A. H. Bull Steatmxship C(ompan v.
N.L. R. B.. 347 U.S. 17. 44 (1954).
The Ninth Circuit Court of Appeals observed that in
8(a)(3) cases:
. . .the trier of fact mav inler motive from the total
circumstances proved. Otherwise no person accused of
548
N()RI WA'.\Y N RSIN( H()ME
unlawflul motive who took the stand and testified to a
lawful moti e could be brought to book . .. If he finds
that the stated motive for a discharge s false, he cer-
tainly can infer that there is another motime. More
than that, he can infer that the motive is one that the
employer desires to conceal an unlawful motive at
least where, as in this case, the surrounding facts tend
to reinforce that inference.
Shattuck Dnn ,WIitng ('orporation (Iron King Branch) .
N. L. R B.. 362 F.2d 466. 470 (9th Cir. 1966).9 See also Heath
International. Inc.. 196 NLRB 318 1 972).
The total circumstances present here give rise to an inter-
ence that G(ills' termination was motivated. at least in part.
b a desire to discourage union activity. A discharge is un-
lawful if it is only partially motivated by discriminators
animus. Florida Medical Center, hIn. d/h/ a Lallierdal-
Lakes General o.spital, 227 NLRB 1412. 1414 (1977):
N. L. R.B. v. Dant, et ail. 207 F.2d 165. 167 (9th Cir. 1953].
conclude that Glodt's "investigation" was wholly unilateral.
lie made no serious effort to elicit the facts from all known
participants to the G;ills-Tribble conversation. It is even
doubtful that the investigation was initiated by a report
from Tribble or her aunt. Tribble's aunt did not appear as a
witness. This situation presents a stronger circumstance far
making an adverse inference against Respondent than e-
ists for making an adverse inference against the General
Counsel. because Brooks did not testif'. It is fair to pre-
sume that since Tribble resides with her aunt, there is some
element of "control" over her. Despite this. I make no ad-
verse inference from the failure of Tribble's aunt to testif.
Nonetheless. I take note that her failure to testify com-
pounds the tenuous nature of Respondent's defense.
In short. I discredit the defense because the record fails to
show that Respondent gave anything but perfunctory atten-
tion to the alleged threat. Accordingly. I conclude that the
asserted reason fr Gills' termination is a subterfuge to dis-
guise Respondent's unlawful motivation.
As indicated, I consider the words which Gills testified
(in a straightforward manner) that she used to be ambigu-
ous and comprise legitimate pre-strike rhetoric among em-
ployees.' 0 Assuming. arguendo. that Gills' words actually
constitute an unlawful threat. I find that there exists suffti-
cient evidence to demonstrate the issuance of such a threat
is but a factor entering in Respondent's determination to
terminate her. It is well established that even if a partial
reason for a discharge is one proscribed by the Act. a viola-
tion must be found. N.L.R.B. v. 7ml Wood Pontiac,. 1i(..
9The Shattuck Denn principle was expressl adopted by the Board n
Atlantic Metal Products. Inc. 161 NLRB 919. 922 (1966)
'oSee Hickors Springs Manufacturing Co(mpaun. 239 NLRB 641 (19781.
where, in the context of a preelection campaign. similar remarks ere found
insufficient to set aside representation election resul:s In so holding. the
Board commented "we have found .. no cases . . which hold that a
union's preelection threat of possible physical violence in the event emplo-
ees cross a picket line at some future remote time constilutes conduct pro-
scribed by . .. the Act." The instant case is not as strong as HtcrA ,n Springs
because. herein, there has been no evidence that G(ills as an agent ol the
Union. Although Gills' remarks were uttered in a strike coniet less remote
than present in H,n Springs, Gills' lack of agenc. coupled ith her
disclaimer that anyone connected with the instant employer would commni
violent acts, remove any coerci e impact
447 F.2d 383 (7th (lr. 1971 ): Dcllne .4sltlcirinl Sertt cl. nc1(
222 NI.RB 462 (1976).
Upon the filregoing. I find that the General ( ounsel has
sustained his burden of proof that (ills was terminated bh
Respondent on December 9 for discritmtinator rea:sons in
violation of Section 8(a)(3) and (I) of' the Act. ;s alleged.
UIpon the basis of the aboe findings off lact and upon the
entire record in the case. I make the fillowing:
('i(N l t Sl(t) s ()I l.aS
1. Respondent is an employer engaged in commrlerce
within the meaning of Section 2(2). (6). and (7) of1 the ct.
2. The [Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. B terminating its employ ec. letta (iills, on D)ecem-
her 9 1977. Respondent discriminated against emniplo, ees in
violation of' Section 8(a(3) and ( 1) of the Act.
4. The aresaid unfiair labor practices aflect crnilcrce
within the meaning of Section 2(6) and (7] o' the Act.
T R )
Having fund that b the abhove-described conduct Re-
spondent iolated Section 8(a)3) and ( ) of the Act. I shall
recommend it cease and desist from engaging in such con-
duct i the future and affirmativels take such action as ill
dissipate the effects of its unfair labor practice.
The Order shall require Respondent to offer letta (ills
full and immediate reinstatement to her former or substan-
tially equivalent job. without prejudice to her semnorit or
other rights and privileges. and to make her whole for an!
loss of earnings she mas have suffered as a result o' the
discrimination b pay ment ofa sum equal to that hich she
would have earned, minus the discrimination. to the date of
Respondent's offer of reinstatement. The hackpa, and in-
terest thereon shall he computed in accordance ith the
Board's established standards contained in I'. It /-
o rth ( ompactc, 9(0 N LRB 289 (195()). nd fortda Steel
('orporlziott, 231 NIRB 651 1977)1}
Discriminator) terminti ns of emploees go to the ery
heart of the Act and indicate a purpose to thwart the em-
ployees' statutory rights. he instant unfair labor practices
committed b\ Respondent potentiall\ are related t other
unfair labor practices proscribed by the Act, and the danger
of its commission in the future is to be anticipated fromn
Respondent's conduct in the past. The preventive purposes
of the Act will he thwarted unless the recommended Order
herein is coextensive \with the threat. Accordingl-,. to make
effective the interdependent guarantees of Section 7 and
thus effectuate the policies of the Act. the Order herein shall
require Respondent to cease and desist from in an other
manner infringing upon the rights of emploees guaranteed
in the Act. .L R.B. . Fpres Puhli.hlng C(ompavln. 312
U.S. 426 (1941) .. L.R.B. . Entwitctle o.. (.. 120 F.2d
532 (4th Cir. 1941 ): Pan .4 ne1riian Elterntcittinltg Co., Iti..
206 NI.RB 298. n. I (1973).
Upon the above findings of fact. conclusions of law. the
entire record in the case. and pursuant to Section 10c} of'
the Act. I herehb issue the fllowing recommnended:
n See. generall. I Plumh,,,i, g Htltn, g (Co. 138 NI.RH 71h (19'62
I) I('ISI()NS () NAFI()NAI. I.ABOR RI.I.AIIONS BOARI)
ORI)-R'
The Respondent. ('arraway (Geriatric ('enters. Inc. d/h/a
Northway Nursing ome. its officers. agents. successors,
and assigns. shall:
I. ('ease and desist rom:
(a) Discriminating against its employees for engaging in
union activity.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act, except to the extent that such
rights might he affected by a lawful union-security agree-
ment in accord with Section 8(a)(3) of the Act.
2. Take the lollowing affirmative action which will elffec-
tuate the policies of the Act:
(a) Offer Fletta (Gills immediate and full reinstatement to
her former job, or it' that position no longer exists, to a
substantially equivalent position of employmenl, without
prejudice to her seniority or other rights and privileges: and
make her whole for any loss of' pay or other benefits suf-
fered by reason of Respondent's conduct found unlawful in
the manner described ahove in the section entitled "I'he
Remedy .
(b) Preserve and. upon request. make availahle to to he
Board or its agents. fi'r examination and copying. all pay-
roll records. social security payment records, timecards.
personnel records and reports. and all other records neces-
sary to analyze the amount of' hackpay and interest due
under the terms of this Order.
(c) Post at its Birmingham. Alabama facility, copies of
the attached notice marked "Appendix."' Copies of' the no-
tice, on forms provided by the Regional Director for Re-
gion 10, after heing duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof and be maintained for 60 consecutive
days thereafter. in conspicuous places. including all places
1: In the event no excepions are filed, as provided bh Sec. 10246 of the
Rules and Regulations of' the National abor Relations Board. the finding,.
conclusions, and recommended Order herein shall, as provided n Sec 10248
of the Rules and Regulatitns. be adopted by the Board and become t,
findings. conclusions, and Order, and all objections shall be deemed waived
for all purposes.
" In the event that this Order is enforced by a Judgment o a nited
States (ourt of Appeals, the words n the notice reading "Posted by Order of
the National I.ah)r Relations Board shall read "Posted Pursuant to a Judg-
ment of the United States (Court of Appeals Enforcing .an Order of the Na-
tional Labor Relations Board
where notices to employees customaril? are posted. Reatson-
able steps shall he taken hy Respondent to insure that the
notices are not altered. delaced, or covered bh any oher
m;aterial.
(d) Nofity the Regional l)irecto for Regioln 10. in writ-
ing. within 20 daNs from the date of this ()rder what steps
Respondent has taken to comply herewith.
A I'PPN DI X
Nillt ( I IMI'I t('t I1S
P)SII I) iY ORDIR ilI 1111
NAII()NAI. L.AitOR R I A i()NS BIARI)
An Agency of the linited States (ioveFrnillent
After a hearing in which all parties had the opporlunit to
present their eidence, it had been decided we hrolke the
law in certain waNs. We have heen ordered to post tllis
notice. We intend to carr oult the rder of the Board and
ahide h the following:
The National I.ahor Rel;ltions Act gives empliyees the
following rights:
'lo engage ill self-orgalltlaion
'Io foril. join, or assist any uLio111(n
'Io hbargain collectisely Ihrough reprcseLtaties
whom thes themselves select
To engage in acti.ities together bot purposes of'
collective bhargaining or to act together in order to
seek improvemenl in their wa;ges. hours, working
conditions and other terms nd contllditions of' em-
plo yment
To refrain from ;ln alnd all such activities.
\'1 \\11 ii sl discrilinalte a;gainst ;al of' our el-
plosees hecause thcy engage inl union activities.
WI \iit oflcr I letta Gills immediate and full rein-
statement t her tfnrmer jobh with us. without loss of'
senot it or other rights andl henefits or. ift' that job no
longer exists. then wI \\ lt I offer her employment to a
substantial l? equivalent position: and wi \'wit make
her whole. with interest. ibr all loss of pay and other
henefits she suffered as a result of our termination of
her emploment with s oit l)ecemher 6. 1977.
WI- wI I N, illn a' other manner. interfere with.
restrain. or coerce any of' our employees hecause they
engage in any of the protected activities described at
the top of' this notice.
CARRAVAY (jRsIAIRI( (' N t:RS, I . D)/B/A
NO)RIII'\AY NtSIN(; I}(IMI
550i