South Carolina Baptist Ministries

National Labor Relations Board - Board Decisions

Jan 22, 1993

310 N.L.R.B. 156 (N.L.R.B. 1993)

156
310 NLRB No. 28
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 The Respondent’s employment-at-will proposal states:
Notwithstanding any other provision with this Agreement, all
employees are employed at will. This means that an employee
has the right to terminate his employment at any time, with or
without notice and with or without reason, and that the employer
has the same right.
Bethea Baptist Home, a Division of South Carolina
Baptist Ministries for the Aging, Inc. and
United Food and Commercial Workers Union
Local 204, AFL–CIO. Cases 11–CA–13484, 11–
CA–13576, 11–CA–13697, 11–CA–13918, 11–
CA–14056, 11–CA–14182, and 11–CA–14427
January 22, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 1, 1992, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent and the General Counsel filed exceptions,
and the Respondent filed a supporting brief.
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 and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified, and to adopt the recommended
Order as modified.
The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by negotiating in bad
faith with the Union. The Respondent denies that it
bargained in bad faith, contending that it was entitled
to insist on its various proposals and accusing the
Union of frustrating negotiations. We agree with the
judge and find that the Respondent engaged in a bad-
faith attempt to avoid reaching agreement with the
Union.
In determining whether an employer has engaged in
surface or bad-faith bargaining, we examine the totality
of the employer’s conduct, both away from and at the
bargaining table, for evidence of its real desire to reach
agreement. Overnite Transportation Co., 296 NLRB
669, 671 (1989), enfd. 938 F.2d 815 (7th Cir. 1991);
United Technologies Corp., 296 NLRB 571, 572
(1989). We find that the Respondent’s overall con-
duct—i.e., the positions taken by the Respondent
throughout bargaining, the manner in which the Re-
spondent advanced those positions, and the Respond-
ent’s commission of other unfair labor practices—
evinces the Respondent’s desire to avoid its statutory
obligation to bargain in good faith with the Union.
At the outset of negotiations, the Respondent was
evasive in its representations to the Union about its
employment policies, and left the Union in the dark as
to the Respondent’s existing policies and practices,
knowledge of which was necessary for meaningful bar-
gaining by the Union. For example, at the first bar-
gaining session, the Respondent’s negotiators pre-
sented, on the Union’s request, a packet of materials
setting forth its various policies, but admitted that
some policies were not contained in the written docu-
ments and some had not been communicated to em-
ployees. The Respondent’s chief negotiator, Julian
Gignilliat, stated, ‘‘[W]e gave you our policies, but we
didn’t say we followed them.’’ The Respondent also
provided requested job descriptions, but Gignilliat said
that the descriptions were not necessarily accurate as
to the Respondent’s current practices and ‘‘may or
may not be about real jobs.’’ When asked how em-
ployees were supposed to know what their assignments
were, in the absence of job classifications, Gignilliat
responded, ‘‘[T]hey get it by osmosis.’’
The Respondent was unwilling to put into writing
several proposals to which it had agreed or was ame-
nable. For example, the Respondent’s negotiators stat-
ed that they would advise their client to grant the
Union’s request to allow employees to examine their
own personnel files, but refused to include the provi-
sion in the collective-bargaining agreement. Addition-
ally, the Respondent agreed to provide certain areas in
the facility to be used for union business on break pe-
riods, but refused to put the agreement in writing. Fur-
ther, the Respondent indicated that it was agreeable to
providing breaktimes for employees at its discretion
but then stated that ‘‘they didn’t want to have anything
[in the contract] that said the employees were entitled
to anything.’’ Finally, the Respondent was amenable to
providing employee orientation, but Gignilliat refused
to put the agreement in writing because he viewed the
‘‘contract as a promise to do certain things’’ and he
‘‘didn’t want to promise to do it in the contract.’’
The Respondent further impeded the bargaining
process by pretending to make meaningful concessions
to the Union while preserving its proposals in other
parts of the contract. For example, the Respondent in-
sisted on an employment-at-will provision,2 which the
Union found particularly objectionable. The Respond-
ent purportedly agreed to consider dropping the provi-
sion only in response to the Union’s offer to eliminate
arbitration from its proposals. However, the Respond-
ent continued to insist on both omitting arbitration and
including a management-rights clause that contained
the right to terminate an employee without just cause
for actions during work and nonwork hours. Thus, the
157SOUTH CAROLINA BAPTIST MINISTRIES
3 Member Oviatt does not rely on the decision in the above para-
graph in concluding that the Respondent failed to bargain in good
faith.
4 The Respondent was unyielding in its insistence on no arbitration
in combination with sweeping provisions in its management-rights
clause that arrogated to the Respondent the exclusive right to change
or abolish job classifications, to discipline, including discharge, with-
out just cause, to change unilaterally all existing working conditions
and fringe benefits not provided for in the contract, to use leased
employees and nonbargaining unit employees to perform unit work,
and to promulgate and enforce rules governing the work and non-
work conduct of employees both during and outside of working
hours. In addition, the Respondent maintained sole discretion over
the granting of merit pay increases, which had no formal criteria,
and which the Respondent admitted did not involve a ‘‘formal or in-
formal system,’’ and ‘‘didn’t eliminate favoritism.’’ See Harrah’s
Marina Hotel & Casino, 296 NLRB 1116, 1134 (1989) (unilateral
control over merit increases with no recourse to grievance found to
constitute one factor in determining bad-faith bargaining).
5 See Prentice-Hall, 290 NLRB 646 (1988) (‘‘[a]n employer of
course may seek waivers that will eliminate or restrict the exercise
of these rights during the term of a contract, but the Respondent’s
demands for sweeping waivers—viewed in the light of what it was
offering in exchange—simply are not the behavior of an employer
who is trying to achieve a collective-bargaining agreement’’);
Hydrotherm, 302 NLRB 990 (1991) (‘‘the Respondent here was of-
fering little more that the status quo in return for these sweeping
waivers’’).
6 For example, the Respondent proposed increasing the length of
the probationary period, increasing the number of part-time employ-
ees and decreasing the number of full-time employees, imposing
more stringent sick leave requirements, eliminating its perfect attend-
ance bonus day off, and increasing the full-time status requirements.
7 The Respondent offered to grant dues checkoff only if the Union
would agree to the Respondent’s proposals regarding management
rights, employment at will, employee integrity, and testing.
8 The Respondent complains that the Union engaged in bad-faith
bargaining tactics and delayed scheduling meetings, which would ex-
onerate its own behavior. We do not agree. Although the Union may
have proposed an arbitration provision after it had indicated that it
was amenable to dropping the provision, the Union’s arbitration pro-
posal was made after the Respondent had embarked on its bad-faith
course of conduct. We cannot conclude that this conduct and the
scheduling delays warrant declining to find evidence of bad faith in
the Respondent’s pattern of conduct at and away from the bargaining
table in the 17 months the parties were in negotiations. Radisson
Plaza Minneapolis, 307 NLRB 94 fn. 13 (1992).
Respondent in effect preserved its employment-at-will
provision while pretending to make a concession to the
Union.3
Further, we find significant the Respondent’s dec-
laration of impasse at a time when the parties clearly
were not at impasse and its commission of numerous
unfair labor practices away from the bargaining table,
including threatening employees with loss of benefits
if they selected the Union and instituting unilateral
changes fulfilling its threat. We note further that the
Respondent admittedly implemented the changes in
part in order to pressure the Union to make further
concessions and thereby improve its bargaining posi-
tion. We believe that the Respondent’s conduct mani-
fests a mindset at odds with reaching an agreement
with the Union.
Finally, we note that the Respondent insisted on pro-
posals which would leave the Union with fewer rights
than imposed by law without a contract,4 made no sig-
nificant concessions,5 and advanced proposals which
would cut back on existing terms and conditions.6 At
the same time, the Respondent sought through its pro-
posals to ensure that the Union would have no role in
the representation of bargaining unit employees by tak-
ing an intransigent position against including arbitra-
tion, visitation, dues checkoff,7 union security, or any
provision for union postings at the facility. While the
Respondent was not compelled to agree to any par-
ticular proposals by the Union, we find that, viewed in
their totality, the Respondent’s substantive proposals
constitute additional evidence of the Respondent’s bad
faith.
In sum, the Respondent used evasive bargaining tac-
tics to avoid providing clear information about existing
employment policies, refused to put agreements in
writing, pretended to make concessions while pre-
serving its proposals in other parts of the contract, and
insisted on proposals which would leave the Union
with fewer rights than provided by law without a con-
tract. During the same period of time, the Respondent
declared impasse when the parties were not at impasse
and committed several unfair labor practices designed
to ensure that the Union would have no role in rep-
resenting its employees.
We conclude that the Respondent’s conduct in its
totality evinced its contempt for the bargaining process
and violated Section 8(a)(5) and (1) of the Act.8
Hydrotherm, 302 NLRB 990 (1991); Radisson Plaza
Minneapolis, 307 NLRB 94 (1992); Prentice-Hall, 290
NLRB 646 (1988).
The General Counsel has requested a 1-year exten-
sion of the certification year to remedy the Respond-
ent’s unlawful refusal to bargain in good faith. As the
Respondent has from virtually the outset of the certifi-
cation year bargained in bad faith and without an in-
tent to reach agreement, we shall modify the rec-
ommended Order to include specific affirmative lan-
guage extending the certification year for a period of
1 year on the resumption of bargaining. Hydrotherm,
supra, 302 NLRB 990; Glomac Plastics, 234 NLRB
1309 (1978).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Bethea
Baptist Home, a division of South Carolina Baptist
Ministries for the Aging, Inc., Darlington, South Caro-
lina, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘(c) On request, bargain collectively in good faith
concerning wages, hours, and other terms and condi-
tions of employment with the United Food and Com-
mercial Workers Union Local 204, AFL–CIO, as the
designated representative of the employees in the
above-described appropriate unit, as if the initial year
of certification has been extended for an additional 1
year from the commencement of bargaining pursuant
to the Board’s Order in this case and, if an under-
standing is reached, embody it in a written, signed
agreement.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten our employees with loss of
benefits, loss of jobs, and more strict enforcement of
work rules if they select United Food and Commercial
Workers Local 204, AFL–CIO or any other labor orga-
nization as their bargaining representative.
WE WILL NOT coercively interrogate our employees
about their union activities.
WE WILL NOT threaten our employees with unspec-
ified reprisals if they select the Union as their bar-
gaining representative.
WE WILL NOT discharge, suspend, refuse to accord
employees full-time status, and issue warnings to our
employees because of their protected activities.
WE WILL NOT refuse to bargain with the Union as
the duly designated representative of a majority of its
employees in the bargaining unit appropriate for pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act:
All service and maintenance employees, includ-
ing all regularly scheduled non-professional em-
ployees, including nursing assistants, orderlies,
couriers, activities assistants, dietary employees,
housekeeping and laundry employees, ward secre-
taries and groundsmen employed by us at our
Darlington, South Carolina facility located at 3500
S. Main Street but excluding all office clerical
employees, registered nurses, licensed practical
nurses, professional and technical employees,
painters, independent contractors, department
heads, temporary, casual and on-call employees,
guards and supervisors as defined in the Act.
WE WILL NOT unilaterally implement terms and con-
ditions of employment during the course of collective
bargaining without the parties having reached a gen-
uine impasse.
WE WILL NOT refuse to provide access to our facili-
ties and refuse to furnish in a timely manner the Union
with the information requested, which is necessary for
the Union to perform its function as a representative
of employees in the above-described unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL offer to Robert Dargan immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, and im-
mediately restore Patricia Harrison to a full-time posi-
tion as nurses assistant, without prejudice to her se-
niority or any other rights or privileges previously en-
joyed, and make them whole for any loss of earnings
or benefits, plus interest, they suffered as a result of
our illegal actions.
WE WILL rescind our discharge, suspension, refusal
to accord full-time status, and illegal warnings issued
to Robert Dargan, Patricia Harrison, and Carol Bishop
and remove from our files any references to the illegal
actions and notify each of those employees in writing
that this has been done and that evidence of our un-
lawful actions will not be used against them in any
way.
WE WILL grant retroactively wage increases which
were illegally withheld from bargaining unit employees
in January 1990 and January 1991.
WE WILL, on request, bargain collectively in good
faith concerning wages, hours, and other terms and
conditions of employment with the Union as the duly
designated representative of the employees in the ap-
propriate unit described above, as if the initial year of
certification has been extended for an additional 1 year
from the commencement of bargaining pursuant to the
Board’s Order, and, if an understanding is reached,
embody it in a written, signed agreement.
WE WILL, on request by the Union, revoke the uni-
lateral changes in the rates of pay, wages, and other
terms and conditions of employment that were placed
into effect among employees in the appropriate bar-
gaining unit, until such time as we negotiate with the
Union in good faith and an impasse in negotiations is
reached.
159SOUTH CAROLINA BAPTIST MINISTRIES
WE WILL furnish the Union with the information re-
quested and provide the Union access to our facility,
which is necessary for the Union to perform its func-
tion as a representative of employees in the above-de-
scribed unit.
BETHEA BAPTIST HOME, A DIVISION OF
SOUTH CAROLINA BAPTIST MINISTRIES
FOR THE AGING, INC.
Patricia L. Timmins, Esq., and Joseph Timothy Welch, Esq.,
for the General Counsel.
Stephen T. Savitz, Esq. (Gignilliat, Savitz & Bettis), of Co-
lumbia, South Carolina, for the Respondent.
Renee L. Bowser, Esq., of Washington, D.C., for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge. This
matter was heard in Darlington, South Carolina, on Sep-
tember 23 through 26 and December 9 and 10, 1991.
A sixth order consolidating cases and consolidated com-
plaint issued on July 31, 1991. On September 6, 1991, the
complaint was amended. The earliest of the charges involved
in this matter was filed on August 25, 1989. General Counsel
contends that Respondent engaged in unlawful conduct in
opposing the Union during an organizing campaign, that Re-
spondent unlawfully discriminated against some of its em-
ployees because of the union activity, and that, following the
Union’s election victory, Respondent engaged in unlawful
bargaining and that it made illegal unilateral changes in
working conditions.
Respondent admitted the jurisdiction and commerce allega-
tions. It is a South Carolina corporation with a facility in
Darlington, South Carolina, where it is engaged in the oper-
ation of a residential and nursing facility. During a represent-
ative period Respondent, in the course and conduct of its
business, received goods and materials at it Darlington facil-
ity valued in excess of $50,000 from locations within the
State of South Carolina from enterprises which were directly
engaged in interstate commerce. Respondent admitted that it
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the National Labor Relations Act
(Act). Respondent also admitted that the Charging Party
(Union) is a labor organization within the meaning of Section
2(5) of the Act.
In 1989, Respondent’s employees engaged in a campaign
to organize Respondent’s facility to be represented by the
Union.
The record proved that Respondent learned of its employ-
ees’ union organizing campaign when it received a letter on
the Union’s letterhead, signed by 26 employees dated June
15, 1989. The Union prevailed during an August 3, 1989
election by a vote of 50 for and 14 against. The Union was
then certified as bargaining representative of the following
described unit, on August 11, 1989.
All service and maintenance employees, including all
regularly scheduled non-professional employees, includ-
ing nursing assistants, orderlies, couriers, activities as-
sistants, dietary employees, housekeeping and laundry
employees, ward secretaries and groundsmen employed
by the Respondent at its Darlington, South Carolina fa-
cility located at 3500 S. Main Street but excluding all
office clerical employees, registered nurses, licensed
practical nurses, professional and technical employees,
painters, independent contractors, department heads,
temporary, casual and on-call employees, guards and
supervisors as defined in the Act.
Respondent admitted that the Union has since August 11,
1989, been the exclusive collective-bargaining representative
of Respondent’s employees in the above-described appro-
priate collective-bargaining unit.
The 8(a)(1) Allegations
Eddie Gregg—June 26, 1989
Threatened Loss of Benefits
Nathaniel Gregg, who is employed in the grounds keeping
department with Respondent, testified that his supervisor
Eddie Gregg held a meeting at work with the employees on
June 26, 1989.
Gregg recalled that other employees, Ernest Bridges and
Robert Samuel, were present. Supervisor Eddie Gregg is not
related to Nathaniel Gregg.
Supervisor Gregg told the employees that it would not
profit them to have a union because his wife was in the
Union and it ended up getting her fired. Also, with the Union
our insurance benefits and our lunch benefits would be cut.
At that time the employees received free lunches. Gregg told
the employees that if they went for the Union they would
lose their friendship with supervisors and it could cause hard-
ships.
Robert Samuel, who formerly worked in Respondent’s
grounds keeping department, also attended the June 26 meet-
ing held by Supervisor Eddie Gregg. Samuel agreed with Na-
thaniel Gregg that Eddie Gregg told them they would prob-
ably lose their benefits if the Union came in including their
insurance, food privileges, and some of their benefits.
Ground Maintenance Supervisor Eddie Gregg testified that
he did not recall the June 26 meeting described by Nathaniel
Gregg and Robert Samuel. Gregg did admit to one conversa-
tion with employee Ernest Bridges, about the Union. Gregg
testified that Bridges asked him what he thought about the
Union and Gregg told Bridges that he did not want to get
involved. However, Bridges asked again for Gregg’s
thoughts. Gregg testified:
I told him at the time that—that I specifically do not
like (unions) because it was a right to work state and
I felt like it was not be—it would not value in a right
to work state as it would be in a closed shop state,
form [sic] my knowledge of what I knew about Unions
and then he asked me also, so I—do I—do—I know
anything else about it and I said my wife works in the
Union.
And—and I told him that my wife were [sic] in the
Union there and she was a shop steward there before
it’s closed down Electric Motor was a shop steward
there and I told him that before as of the things that
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I’ve seen through the years and time that, that was the
reason why I personally from experience and also
knowledge of what’s going on, that I felt like it was
not the best of interest—it was not in his best interest.
. . . .
Benefits was not talked about whatsoever. Not with
him and I, the only thing I told him and I talked
about—only one thing I said, in negotiations I said, the
company and the Union negotiate and I said, I’m not
in the position to tell you anything other than that.
Findings
I was not convinced that Eddie Gregg was truthful in his
denials. The subjects he admittedly discussed with Ernest
Bridges were similar to those he allegedly brought up during
his June 26 meeting. I was not impressed with Eddie Gregg’s
demeanor whereas I was impressed that both Nathaniel
Gregg and Robert Samuel were being truthful in their ac-
count of the June 26 meeting.
I find that the credited evidence proved that Supervisor
Eddie Gregg threatened his employees that they would prob-
ably lose their benefits including free lunch and insurance if
the Union was selected.
Respondent in its brief argues that regardless of factual
findings regarding the alleged 8(a)(1) violations, in truth, Re-
spondent placed a clamp on all supervisory conversations on
the subject of the Union immediately on discovering its em-
ployees were involved in a union campaign. On that basis
Respondent argues that any comments by Supervisors Gregg
and McKenzie were isolated and had no effect on the em-
ployees. Respondent cited Telex Communications, 294 NLRB
87 (1989), and Color Tech Corp., 286 NLRB 476 (1987).
I have considered the allegations in this instance against
all the circumstances as revealed through record evidence
and I find that the record shows that this was not a case of
isolated activities which had no effect on the employees.
Those threats constitute a violation of Section 8(a)(1) of
the Act. Standard Products, 281 NLRB 141 (1986); Minette
Mills, 305 NLRB 1032 (1991).
Jerome McKenzie
Threatened Loss of Benefits
Janice Lunnon, a former housekeeping employee for Re-
spondent, testified that she attended a meeting at work of the
housekeeping employees on June 26, 1989. Supervisor Je-
rome McKenzie held the meeting which included employees
William Pierce, Michael Johnson, Elizabeth Fox, Jeramy
Dargan, and Vivian Linen.
Lunnon recalled McKenzie talked about the Union, telling
the employees that if the Union came in that their benefits
may be cut, and their meals may be cut and that if they got
tough with him, he would have to get tough with the em-
ployees.
William Pierce, who until recently worked in house-
keeping for Respondent, testified about the June 26 meeting
held by Supervisor Jerome McKenzie. As shown below
McKenzie talked some about Carol Bishop. As to the Union
itself, McKenzie told the employees that before they get their
money the Union would get theirs, and that the home did not
have much to offer the Union. McKenzie told them that their
free meals would probably be cut and their benefits would
be cut out.
Threatened Loss of Jobs
As shown Janice Lunnon testified about a meeting held by
Supervisor McKenzie with the housekeeping employees on
June 26, 1989. Lunnon recalled that McKenzie also talked
about another employee named Carol Bishop. McKenzie told
the employees:
[McKenzie] said they don’t have enough evidence
anyway, and Carol Bishop probably will be fired. . . .
I don’t know exactly what [Carol Bishop] does, but she
works at the desk in the infirmary.
William Pierce, whose testimony is discussed above re-
garding Jerome McKenzie’s June 26 meeting, recalled that
McKenzie commented some about Carol Bishop:
. . . the Union. He says they was not enough evi-
dence to prove anything on the Home anyway. And
then, after that most of the person would lose in this
case would be Carol Bishop. . . . She work at Bethea
Baptist Home and she was one of the Job Stewart, rep-
resented the Union. . . . He said, after this was over
with, she would probably get fired after this.
Threatened More Strict Enforcement of Rules
Both Janice Lunnon and William Pierce recalled that dur-
ing the June 26 meeting Supervisor McKenzie while talking
about the Union said that if they got tough or hard on him
that he would have to get tough on the employees.
Interrogated its Employees
Former housekeeping employee Janice Lunnon testified
that her supervisor Jerome McKenzie spoke to her a couple
of days after June 26, 1989:
He asked me how many meetings have I attended,
what did the Union promise me, and what were the
Union dues. I told him I had been to one meeting and
if he wanted to know anything else he would have to
ask Carol Bishop.
Lunnon testified that she did not openly support the
Union.
William Pierce testified that he had a conversation regard-
ing the Union with Supervisor Jerome McKenzie about a
week or two after the June 26 meeting held by Pierce:
[H]e asked me did I attend the Union meetings and
I told him yes, I did.
Findings
Director of Housekeeping Jerome McKenzie admitted that
he occasionally held meetings with his employees. However,
he denied that he ever held a meeting to discuss the Union
and he did not recall whether he held a meeting on June 26.
According to McKenzie the only conversations he had with
his employees about the Union occurred one morning when,
in separate incidents, he asked employees William Pierce and
Vivian Linen if they had heard anything about a union meet-
161SOUTH CAROLINA BAPTIST MINISTRIES
ing. He recalled that Vivian Linen responded to him that she
had attended the union meeting and if he wanted to know
more about it he could ask Carol Bishop.
I was impressed with the demeanor of Janice Lunnon and
William Pierce. Their testimony was clear as to Jerome
McKenzie’s meeting with his employees. I am convinced
that McKenzie was not truthful in his denials. I was espe-
cially concerned with McKenzie’s demeanor when he was
asked about his position regarding the Union. McKenzie was
obviously uncomfortable when he testified to the effect that
he had little interest in the union issue.
I credit the testimony of Janice Lunnon and William
Pierce.
Moreover, as shown above McKenzie admitted that he
questioned two employees about their attendance at union
meetings.
As noted above, Respondent in its brief argued that re-
gardless of factual findings regarding the alleged 8(a)(1) vio-
lations, in truth Respondent placed a clamp on all super-
visory conversations on the subject of the Union immediately
on discovering its employees were involved in a union cam-
paign. On that basis Respondent argues that any comments
by Supervisors Gregg and McKenzie were isolated and had
no effect on the employees. Respondent cited Telex Commu-
nications, 294 NLRB 87 (1989), and Color Tech Corp., 286
NLRB 476 (1987).
As mentioned above, the record shows that this was not
a case of isolated activities which had no effect on the em-
ployees.
The evidence proves that McKenzie threatened his em-
ployees with loss of benefits; loss of job by union supporter
Carol Bishop; and more strict enforcement of work rules.
Standard Products, 281 NLRB 141 (1986); Minette Mills,
supra.
Shirley Young—June 23, 1990
Threatened Unspecified Reprisals
Nurses Aide Emma Jean Ford testified that she and two
other nurses aides were called over by Shirley Young on the
morning of June 23, 1990:
Ms. Young was coming up the hall and she had a cart
where she, you know, keeps the medicine on that she
gives out to the patients. I thought she was calling us
to call our attention to something, you know, that was
dealing with the patients. But it was about—She was
saying, ‘‘Let me tell you something.’’ Gathering us all
up or calling us all back. We were all there putting
trays on a buggy. ‘‘Well, tell me something, do you all
hate [Director of Nurses] Ms. McIntyre?’’
. . . .
She said, ‘‘You all hate her. Is this why all of this
union mess is going on?’’
At the time, nobody said anything because we
thought it was all about work, but when she brought up
about a union, then we looked at her and she said, ‘‘Is
that why it is, all this staying out? Is this it?’’
. . . .
Then she said, ‘‘Don’t you know that if this was an-
other nursing home and you had been gone or if I was
the supervisor, I’d done fired the whole lot of you.
Anyway, when this union mess is over, we are going
to clean house.’’
Shirley Murray, who has worked for Respondent for 24
years, also testified about the June 23 incident involving
Young. Murray recalled that Patricia Harrison and Imogene
Foley were also present at the time she talked with Young.
Murray recalled that among other comments, Shirley Young
told them that when this union mess is over McIntyre was
going to clean house.
Shirley Young testified that she did not recall the above
incident and that she felt she would have recalled it had it
happened. Young testified that Shirley Murray did not like
her because Young had called Murray down on several occa-
sions; that Murray was rude to patients and Murray was one
that would always talk back to Young.
Findings
I was not impressed with the demeanor of Shirley Young.
Her testimony as to this particular allegation was evasive.
Although she did recall one conversation where she ques-
tioned why the nurses aides did not like the director of
nurses, she testified that she could not recall a statement that
McIntyre would clean house after this union mess. In that re-
gard Young’s testimony conflicted with two other witnesses.
Respondent pointed out that General Counsel failed to call
two other witnesses that were present when Young allegedly
made statements about cleaning house. That is true. How-
ever, that argument cuts both ways, neither did Respondent
call anyone else.
Respondent also argues that the failure to ask Patricia Har-
rison who was an alleged discriminatee and did testify about
other matters, about the alleged violation by Shirley Young
illustrates that if asked, Harrison would have testified con-
trarily to Murray and Ford.
I have taken Respondent’s argument into account in mak-
ing my credibility determinations. However, in view of what
Shirley Young admittedly said, and the accounts of the inci-
dents by Murray and Ford, I am convinced they testified
honestly and credit their testimony.
In making my credibility determinations I have considered
demeanor plus the fact that Shirley Young’s testimony con-
flicts with several other witnesses regarding this allegations
as well as the allegations involved in the discharge of Robert
Dargan. I find that I cannot credit her testimony to the extent
it conflicts with other evidence. I do credit the testimony of
Emma Ford and Shirley Murray to the effect that they were
told by Shirley Young, an admitted supervisor, that the direc-
tor of nurses would clean house after the union mess was
over.
I find that statement by Young constitutes a threat to the
employees of discharge because of the employees’ union ac-
tivities in violation of Section 8(a)(1) of the Act. Minette
Mills, 305 NLRB 1032 (1991).
The 8(a)(3) Allegations
Carol Bishop
The first signature on the June 15 letter on the Union’s let-
terhead to Respondent advising of the organizing campaign
was Carol K. Bishop.
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In addition to signing the June 15 letter, Carol Bishop as-
sisted employees signing union authorization cards; sched-
uled meetings for the employees with the Union; talked to
employees about the Union while at break at work; met with
employees in the parking lot after work and discussed the
Union; passed our union leaflets to employees; was selected
head steward for the Union; and was the union observer at
the August 3, 1989 election.
Carol Bishop’s job was ward secretary.
Janice Lunnon and William Pierce testified that during a
talk against the Union, their supervisor told them during a
June 26, 1989 meeting at work, that Carol Bishop would
probably be fired.
August 4, 1991
Carol Bishop signed in for her shift on August 3 at 6 a.m.
On the sign in sheet Bishop testified that she wrote in, in pa-
renthesis ‘‘(election in Chapel).’’ Bishop did not notify su-
pervision that she was serving as union observer during the
election. However, several supervisors including Jerome
McKenzie, housekeeping supervisor, and Fran Greer, activity
director, as well as Julian Gignilliat, Respondent’s attorney,
saw her during her activities as observer.
During the times on August 3 when Bishop was not in-
volved in her role of union election observer, she reported
to her work station and performed her job duties. No one
said anything to her about that practice on August 3.
On her next workday, Bishop was called into the office of
Director of Nursing Linda McIntyre and handed a sealed en-
velop. She opened the envelop and asked what it was about.
McIntyre replied that she could not talk about it. The en-
velop contained a warning to Bishop, for ‘‘leaving work area
without permission.’’ The warning which was signed by
Linda McIntyre reads:
On Thursday August 3, 1989 I arrived at work at
7:15 a.m. and did not find Mrs. Bishop at the nurses
desk on main nor on the hall and no one knew where
she was at that time. Mrs. Bishop arrived on the floor
at 7:45 a.m. I later was informed that Mrs. Bishop had
been working at the election process in the chapel be-
tween the hours of 6:30 a.m.-7:30 a.m. She was sched-
uled to work from 7 a.m.-3:00 p.m. and had not re-
quested nor informed the director or asst. director of
nurses of this change in her plans. The same situation
occurred in the afternoon as she left the floor at 2:00
p.m. and did not return.
Mrs. Bishop signed in on the Bethea time sheet at
6:00a.m. Mrs. Bishop failed to follow proper steps to
report out of work or tardiness.
Mrs. Bishop should have requested time off. She is
a part off [sic] the Bethea staff and must adhere to the
same guidelines as others.
Linda McIntyre testified that when she came into work on
August 3, Carol Bishop was not at her work station and the
sign in sheet showed ‘‘Carol 6:00.’’ According to McIntyre
there was no entry referring to the chapel or to the NLRB
election. Later that day an entry was made next to ‘‘Carol
6:00.’’ That entry appears to be ‘‘2:00 in Chapel.’’ Carol
Bishop worked as union observer during the morning session
and again during the afternoon session which started at 2
p.m.
McIntyre testified that the procedure at that time was for
employees to not leave their work station without letting
someone know and to make sure that everything was alright
on the floor before leaving.
Carol Bishop testified that before August 3, 1989, she oc-
casionally left her work station without permission including
times when she and other employees would leave and attend
yard sales. Those yard sales included sales conducted by
residents of the cottages and, on occasion, by Respondent’s
former administrator Horace Hawes. Bishop recalled attend-
ing yard sales during 1988, 1989, and 1990. Although she
did not notify anyone she was leaving to attend the yard
sales during her work shift, Bishop testified that supervisors
were oftentimes aware of her absence; that some supervisors
attended the yard sales themselves and, on occasion, the em-
ployees rode to the sales with supervisors. Bishop testified
that she stayed 25, 30 minutes or more, at the yard sales.
Bishop testified that neither she, nor, to her knowledge,
any other employee was ever disciplined for leaving their
work station until August 4. She testified to several other ex-
amples of employees leaving their station without notice to
supervision.
On cross-examination, Bishop was shown a warning which
she signed on February 2, 1986, for leaving her work station
for 1-1/2 hours to 1 hour 45 minutes.
Nurses Aide Emma Ford testified that employees occa-
sionally attend yard sales during working hours without noti-
fying supervision. Ford testified that she attended yard sales
during 1988 and 1989 during working hours without signing
out or otherwise notifying supervision and that she was not
disciplined for leaving her work area.
Shirley Murray testified that she has attended garage sales
on several occasions including one in 1991. On that occasion
she, along with Marie Mack and Carol Bishop, left work dur-
ing working hours. Murray did not notify supervision that
she had left and she was gone for 15 or 20 minutes. Accord-
ing to Murray it was the custom to leave and attend garage
sales provided someone else was on the floor to cover while
the aides were at the garage sale. Murray testified that nurses
as well as nurses aides, attended the sales and that someone
was left to cover the patients but that nothing was said to
supervision. Murray has seen supervisors at the garage sales.
Murray also testified about an incident in May 1991 when
Pat Freeman, a supervisor nurse, phoned her and asked her
to send two couriers (employees) back to the main nurses
station. Freeman told Murray that the couriers had left their
station without permission. Murray told the two couriers
about Freeman’s call and they left to return to the main
nurses station.
Nurses Assistant Marie Ann Mack testified that she has at-
tended yard sales away from work without notifying super-
vision and that she has occasionally seen her supervisors at
the sales.
Respondent called Sadie Stewart, who formerly worked for
Respondent as a licensed practical nurse (LPN). Stewart tes-
tified that it was the practice for the employees to always get
permission before leaving their assigned floor.
163SOUTH CAROLINA BAPTIST MINISTRIES
Findings
The general facts do not appear to be in dispute regarding
this particular allegation. There were some minor disputes
such as what did Carol Bishop write on the clock in log and
whether she wrote comments in the log at 6 a.m. or after
lunch. In that regard it appears that Bishop was incorrect in
her recollection of the time log entry. Although she recalled
that she wrote in election in the chapel when she originally
clocked in that morning at 6 o’clock, the log itself shows
what appears to be 2 p.m. in chapel.
Respondent attacked evidence of disparate treatment by ar-
guing that supervisors either approved employees leaving
work to attend garage sales or the supervisors never knew
the employees had left. In either case, according to that argu-
ment, disparity is not shown since no supervisor approved
Carol Bishop’s absence and supervision did learn that she
was absent.
However, the evidence does not support Respondent’s ar-
gument. As shown above, some of the employees testified to
instances where they went to garage sales without notifying
their supervisor and actually saw their supervisors while at
the sale. None of those people were disciplined.
Respondent did argue that occasionally employees are dis-
ciplined for being away from their duty station. In fact the
only example of such discipline involved Carol Bishop.
Bishop was awarded a personnel incident report in February
1986 for being away from her duty station for 1-1/2 hours
without authorization.
No one else has received a written disciplinary action in-
cluding the two couriers that were called back to their duty
station by Pat Freeman. Neither was anyone ever disciplined
because they attended a garage sale.
Respondent also argued that common courtesy should have
prompted Bishop to give advance notice before leaving her
work station.
In fact, the record is replete with examples of both super-
visors and employees engaging in conduct which illustrated
that they oftentimes refused to practice common civility to-
ward one another. Common courtesy and, in fact even civil-
ity, appear to be lacking among the employees and super-
visors of Respondent.
Be that as it may, it is not my job to correct or to admon-
ish either party in that regard. What I must determine is
whether Respondent engaged in unlawful action as alleged in
the complaint. In regard to this particular allegation I must
determine if Carol Bishop was disciplined because of her
union activity and would she have been so disciplined in the
absence of her union activity.
Respondent in support of its defense cited Mulay Plastics,
291 NLRB 708 (1988); Elston Electronics Corp., 292 NLRB
510 (1989); United Cloth Co., 278 NLRB 583 (1986); and
Cherokee Heating Co., 280 NLRB 399 (1986).
I am mindful of the fact that an Respondent must be able
to rely on its employees to man their work stations. How-
ever, in this instance the record shows that employees were
routinely permitted to leave their work stations for periods as
long as the two occasions on which Bishop left her station
to act as election observer, and no one was ever disciplined.
The only instance of disciplinary action involved Carol
Bishop in February 1986 and that involved a much longer
absence—1-1/2 hours.
In instances where an employee is disciplined for engaging
in union activities the test to be applied includes questioning
whether the employer reasonably believed that the employee
engaged in misconduct of the type which is not normally
condoned by the employer; and, if so, whether the employee
actually engaged in the misconduct. (Rubin Bros. Footwear,
99 NLRB 610 (1952); NLRB v. Burnup & Sims, 379 U.S.
21 (1964).
In determining whether the employer reasonably believed
that the employee engaged in misconduct, I must consider
the question of disparity.
In that regard it appears that Carol Bishop was treated dif-
ferently than employees that absented themselves from their
work for other than union activities. I find that Bishop was
disciplined because of her activity as union observer and the
evidence illustrated that Respondent did not reasonably be-
lieve that she had engaged in activity of the type it did not
normally condone.
September 8, 1989
The Warning for Lying
Carol Bishop received two warnings on September 8. One
was for ‘‘lying,’’ and it read:
Yesterday I asked if you had called Lisa McPhail
(your sister) about working 3–11 as we were short
staffed. You told me that she was out of town. Not
more than 15 minutes later I called Ms. McPhail’s
number and she answered and agreed to come to work
after her check-up appt. that was scheduled for 2:00
p.m. She reported to work at 5:10 p.m. In my opinion
you intentionally lied to me. This is a warning and if
problems of this sort arise in future, you will be dis-
charged.
/s/ Linda McIntyre
Carol Bishop testified that she was asked by Linda McIn-
tyre why her sister had switched days with another employee
and she was asked if she thought her sister would agree to
come in and work that day. Bishop told McIntyre no she did
not believe her sister would agree to come in that day. Ac-
cording to Bishop, McIntyre did not ask Bishop to phone her
sister.
Nurses Assistant Billie Ann Ellerbe testified that she was
present during the conversation between Carol Bishop and
Linda McIntyre. Ellerbe recalled that McIntyre asked Bishop
if she thought her sister would come in to work that after-
noon. Bishop replied no because Lisa McPhail, Bishop’s sis-
ter, had phoned her and asked her to pick up her check.
Ellerbe testified that McIntyre did not ask Bishop to phone
her sister.
Lisa McPhail testified that she was not working on Sep-
tember because she had a 2 p.m. appointment. She phoned
the home and asked her sister, Carol Bishop, to pick up her
check. According to McPhail nothing was said about whether
McPhail could work that day nor was anything said about
McPhail going out of town. McPhail testified that later that
same day she was phoned by Director of Nurses McIntyre.
McIntyre asked McPhail if she could work in place of an-
other nurses aide. When McPhail explained that she had a
2 p.m. appointment, McIntyre asked her to come in when-
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ever she could after the appointment. McPhail did come in
beginning at 5:15 p.m.
McPhail testified that McIntyre did not ask her about
whether she had talked with her sister Carol Bishop about
working that day or about her plans for that day.
Linda McIntyre presented a different version. According to
McIntyre she had asked Carol Bishop to try and get someone
to work the 3 to 11 shift. When Bishop came in the office
to pick up her check she also asked for her sister’s check.
At that time according to McIntyre, McIntyre asked Bishop
if she had called her sister and Bishop replied that she had
not phoned Lisa McPhail because her sister was out of town.
Shortly thereafter McIntyre phoned McPhail who answered
the phone. McIntyre arranged with McPhail for her to come
in after she finished a doctor’s appointment that afternoon.
Findings
I was not impressed with the demeanor of either Carol
Bishop or Linda McIntyre. I find that both occasionally ex-
aggerated their testimony. However, I was impressed with
the testimony of Billie Ellerbe and Lisa McPhail. Their testi-
mony convinced me that Linda McIntyre fabricated the dis-
ciplinary notice alleging that Carol Bishop had lied about her
sister leaving town.
As shown above, Carol Bishop was the most visible union
supporter at Respondent’s facility. Moreover, as shown
above, even Respondent’s supervision thought that Respond-
ent would discharge Bishop because of her union activity. Je-
rome McKenzie told his employees that Respondent would
discharge Bishop after the union mess was over.
In view of the above evidence and especially Respondent’s
announced animus toward Carol Bishop’s union activities
and Linda McIntyre’s falsification of the basis for the dis-
ciplinary action, I find that Carol Bishop was disciplined on
this particular occasion because of her union activities. Re-
spondent failed to show that it would have awarded this dis-
ciplinary action in the absence of protected activities. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983); Delta Gas,
283 NLRB 391 (1987), enfd. 840 F.2d 309 (5th Cir. 1988);
Southwire Co. v. NLRB, 820 F.2d 453 (D.C. Cir. 1987);
Yaohan of California, 280 NLRB 268 (1986).
The Warning for Insubordination
Respondent issued another warning to Bishop on Sep-
tember 8 for ‘‘inappropriate conduct’’:
On September 7, 1989 a report on the patients was
being given on Main hall. The report was being given
to the oncoming staff. Carol Bishop, ward clerk, was
filing materials in the metal file cabinet at the nurses
desk. This cabinet contains patients files. She was con-
tinually opening and closing the cabinet doors. Sadie
Stewart, LP.N asked Ms. Bishop not to do this while
report was being given. Ms. Bishop responded, ‘‘If you
can tell me some way to do this quietly, I will.’’ Mrs.
Stewart then asked Ms. Bishop to wait until report was
finished to complete her filing. Ms. Bishop then stated
to Mrs. Stewart, ‘‘You have your work to do and I
have mine.’’ With this Ms. Bishop continued to open
and close the cabinet doors loudly. The nurses at the
desk were Ruth Alstrom, L.P.N., Patricia Henningsen,
L.P.N., Sadie Stewart, L.P.N. and Pat Freeman, R.N.
This conduct was most inappropriate and will not be
tolerated in the future. It in fact verged on insubordina-
tion. This is a warning.
/s/ Linda McIntyre/Patricia L. Freeman
Bishop testified that she was filing two confidential reports
from physicians regarding patients while a report was being
given. Bishop testified that she was filing the confidential re-
ports in accordance with her outstanding instructions. She
was asked to wait until the report was completed to finish
her filing but she went ahead and filed the two confidential
reports.
Carolyn McPhail testified that she was present listening to
the report as Carol Bishop was filing and that Bishop was
not disruptive of the meeting. McPhail admitted that when
she gave a prehearing affidavit she testified that the em-
ployee that was giving the report had a soft voice and we
could not hear her anyway. McPhail now recalls that par-
ticular employee, Ms. Coker, did not give that report and
was not at that report meeting.
Sadie Stewart, formerly an LPN for Respondent, testified
regarding the incident. Stewart testified it occurred during a
nurses’ meeting conducted for the purpose of the outgoing
shift informing the incoming shift of nurses as to ongoing
conditions. Four nurses were involved in the meeting. Stew-
art testified that she asked Bishop to please be quiet after
Bishop interrupted the meeting by opening and closing file
drawers. Bishop responded to Stewart, do you know of a
quieter way to do it and Stewart asked her to wait until the
report was over. Bishop then said, ‘‘Ms. Stewart, you have
your work to do, and I have my work to do,’’ and she con-
tinued to file.
Stewart testified that she wrote up the incident imme-
diately after it occurred and gave that report to Director of
Nurses McIntyre.
Patricia Freeman, who was then assistant director of
nurses, testified that she was present during the report and
observed the incident involving Carol Bishop. Freeman testi-
fied in accord with the testimony of Sadie Stewart.
Findings
Unlike the warning for ‘‘lying,’’ the record evidence here
does support the factual basis for Respondent’s action. The
evidence including that of General Counsel’s witnesses in-
cluding Carol Bishop, illustrates that she was asked but re-
fused, to stop disrupting the between shifts nurses’ meeting.
In view of the evidence regarding Respondent’s animus
against Carol Bishop because of her union activities, a prima
facie case may be made that Bishop’s protected activities
were considered in awarding her this particular warning.
However, even if I should so find, I also find that Respond-
ent proved that this warning would have issued in the ab-
sence of Bishop’s union activities. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982); NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983); Delta Gas, 283 NLRB 391
(1987), enfd. 840 F.2d 309 (5th Cir. 1988); Southwire Co.
v. NLRB, 820 F.2d 453 (D.C. Cir. 1987); Yaohan of Cali-
fornia, 280 NLRB 268 (1986).
165SOUTH CAROLINA BAPTIST MINISTRIES
Changed Nature of Carol Bishop’s Work Assignments
January 23, 1990
Carol Bishop testified that on January 23, 1990, she was
told by Director of Nursing Linda McIntyre that her duties
were being changed that day to include taking vital signs on
all the patients. Before that time the responsibility for taking
vital signs from the patients, had been limited to nurses as-
sistant employees. Bishop, in her position as ward secretary,
had not been given that assignment before.
Linda McIntyre admitted that she did assign Carol Bishop
the duty of taking vital signs even though that was a duty
handled by the nurses assistants. On occasion, according to
McIntyre, she had assigned that duty to the couriers. But
under routine circumstances vital signs were always taken by
the nurses assistants.
McIntyre testified that on that occasion they were running
short in nurses assistants and Bishop had missed several days
over the past few weeks. McIntyre testified that during
Bishop’s absences the nurses had been able to handle
Bishop’s duties. Because of that knowledge and her knowl-
edge that Bishop could perform the vital signs since she had
been hired originally as a nurses assistant, McIntyre did in-
struct that Bishop was to take the vital signs.
January 25, 1990
When Carol Bishop came in to work on January 25, she
was told by the night nurse (supervisor), Elizabeth Kinley,
that Director of Nurses McIntyre had phoned and instructed
her to assign Bishop a group of patients. There were seven
to nine patients in the group assigned to Bishop, which is the
normal size of a full patient load.
Before that time patient groups had been assigned to
nurses assistants and not to ward secretaries.
Elizabeth Kinley was called by Respondent. Kinley agreed
with Carol Bishop’s testimony. According to Kinley she was
phoned by Director of Nurses McIntyre about 2 a.m. and told
to assign Carol Bishop to work as a nurses aide when Bishop
reported to work for the 7 a.m. to 3 p.m. shift. Kinley said
that in the past before that incident, she knew that occasion-
ally couriers were assigned nurses assistant’s duties and that
Carol Bishop, as ward clerk, was the only other nurses type
personnel other than nurses aides and nurses.
According to Bishop there were no changed conditions
such as shortage of normal work in her duty as ward sec-
retary or increase in number of patients or shortage of nurses
assistants, which would necessitate the changes in her job
duties on January 23 and 25.
Shirley Murray who has worked for Respondent for 24
years testified that it was not customary for Respondent to
assign any of the nurses aide’s duties to ward secretaries and
that nurses aide’s duties included taking vital signs.
Director of Nurses McIntyre testified there was a shortage
of nurses aides on that occasion, that she felt the duties of
nurses aides were more important than those of Carol
Bishop’s regular job, and for those reasons she instructed the
reassignment of Bishop on that occasion.
October 31, 1991
Carol Bishop testified that after she testified in these pro-
ceedings on September 23, 1991, during the break between
sessions on October 31, 1991, while she remained employed
as ward secretary, she was told by Assistant Director of
Nurses Pat Freeman that the Director of Nurses Kay Mat-
thews wanted her (Bishop) to take all the patients vital signs
that morning. Freeman told Bishop that she had told Mat-
thews that the nurses aides could do the vital signs because
that is what they normally do but that Matthews insisted that
Bishop take the vital signs that day.
Nurses Assistant Linda Pauley testified that on October 31,
1991, she was asked by Director of Nurses Matthews to go
to the chapel to assist with the residents. She told Matthews
that she had not finished taking the vital signs of her eight
patients. Matthews responded to her that Carol Bishop would
take the vital signs.
Pauley said that she routinely helps patients in activities
such as bingo and Bible quizzes and that this was the first
time when she was told that someone else would take the
vital signs. Normally Pauley takes her patients vital signs re-
gardless of other patient activities.
Carol Bishop testified that something was occurring in the
chapel that day and she remembered Kay Freeman saying
that she wanted the residents in the chapel. Bishop believed
it may have been a Halloween party. Bishop observed no ef-
fect on the nurses aides because of the occurrence in the
chapel. Nurses aides do assist with events in the chapel such
as bingo and Bible quizzes, and it does not normally impact
on their taking of vital signs according to Bishop.
Bishop testified that she took vital signs of some 30 to 32
patients in accordance with Matthews’ instructions. She was
not limited solely to Linda Pauley’s patients.
Bishop testified that she continued to perform her normal
duties in addition to taking vital signs as time allowed
throughout the day. Due to the added work caused by her
taking the vital signs, Bishop was unable to take either of
her two breaks that day.
Director of Nurses Matthews agreed with the above evi-
dence. However, Matthews testified that on one occasion
during a staff meeting, Carol Bishop suggested assigning the
taking of vital signs to specific employees and Bishop sug-
gested that either she or the couriers would be good ones for
that assignment. Additionally, Matthews testified that she in-
tended that Bishop would only take the few vital signs left
by Linda Pauley being reassigned to assist with the Hal-
loween party. Matthews did not intent for Bishop to take the
vital signs for all the patients.
Patricia Freeman testified that the incident involving Carol
Bishop being asked to do vital signs, came about because
Linda Pauley had to go somewhere with one of the residents.
Pauley told Freeman that she had caught up all her work ex-
cept for vital signs. Freeman planned to ask one of the other
nurses aides to take Pauley’s vital signs but Director of
Nurses Matthews told her to have Carol Bishop take the vital
signs because they had not been completed.
On cross-examination, Bishop testified that she has on oc-
casion been asked by Kay Matthews to aid in passing out
food trays to the residents and that she has done so on those
occasions. Bishop recalled those occasions happened during
1991.
On one occasion during the summer of 1991, Bishop told
Matthews that she could assist the aides during an emergency
but Matthews told her that she wanted her to remain at her
work station where she could answer the phone.
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Findings
As to the January 23, 1990 incident, Director of Nursing
McIntyre admitted given the instructions to Bishop. McIntyre
justified her action by testifying that the nurses had been able
to handle Bishop’s duties during Bishop’s absence during
several days over the 2 months before January 23 and that
freed up Bishop to assist in problems caused by a shortage
of nurses assistants. Bishop had missed several days because
of her involvement in an auto accident.
As to past practice, before January 23 Carol Bishop, as
ward secretary, was never assigned nurses assistant duties.
Despite testimony that Kay Matthews intended that Carol
Bishop should take the remaining vital signs for Linda
Pauley, the record does show that the instructions to Bishop
were to take vital signs. I credit the testimony of Carol
Bishop in that regard.
As noted above, Carol Bishop was known by Respondent
as an outspoken advocate for the Union. Bishop was the
Union’s election observer and served on the Union’s negoti-
ating committee. As shown below, the parties met and bar-
gained on January 18, 1990. As to related activity before Oc-
tober 31, 1991, Carol Bishop had testified on September 23,
1991, during the first session of these proceedings.
I find that General Counsel proved a prima facie case by
showing that Respondent changed Carol Bishop’s job duties
during her obvious union activities at a time when there were
ongoing contract negotiations in the first two instances, and
during the break between hearing sessions on the third occa-
sion shortly after Bishop had testified. Respondent failed to
show that those change in duties would have occurred in the
absence of Bishop’s protected activities. In the past those du-
ties had routinely been assigned to nurses assistants or, in ex-
traordinary situations according to the testimony of former
Director of Nursing McIntyre, to couriers. Respondent did
not show why it did not follow those established practices
on these three occasions. Respondent failed to prove that it
would have changed Bishop’s work assignments in the ab-
sence of her protected activities. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982); NLRB v. Transportation Management
Corp., supra; Delta Gas, supra; Southwire Co. v. NLRB,
supra; Yaohan of California, supra.
Refused to Accord Patricia Harrison Full-Time
Employee Status
General Counsel contends that Respondent imposed more
difficult working conditions on employee Patricia Harrison
by denying her requests to convert from part-time to full-
time employee. According to that contention, Respondent for
the first time during 1990, imposed an additional condition
which necessitated Patricia Harrison to agree to make herself
available to work shifts in addition to her former shift, in
order to become a full-time employee. Before that time, ac-
cording to General Counsel, there was no requirement that
employees work several shifts in order to qualify for full
time status. General Counsel contends that that additional
condition was required because of the employees’ union ac-
tivities. Although it was General Counsel’s position that Re-
spondent discriminated against Harrison continuously from
around August 1990, the complaint which alleges this viola-
tion occurred in July 1991, was prompted both by an affirm-
ative action against Harrison at that time and by Section
10(b) which prevented the complaint alleging a violation
from August or September 1990.
This particular allegation and its 10(b) complexities were
discussed on the record. The record reflected discussions
showing that this matter was first brought out in relevant
charges against Respondent in a June 3, 1991, amendment to
the charge in Case 11–CA–14427. At that time on the record,
around page 280 of the transcript, I pointed out to the parties
the possibilities of findings regarding the period of time be-
ginning 6 months before the June 3 amendment and that the
parties should be aware of Section 10(b) of the Act and the
June 3 time of the first allegation regarding this matter.
As shown below, Eileen Hanson testified that Respondent
gave the Union copies of some postings for jobs during the
December 18, 1990 negotiating session. One of those post-
ings was for nurses assistants and that posting indicated that
in order to qualify for full-time status the applicant must
work all three shifts. Hanson testified that was the first time
the Union was advised that was Respondent’s policy at that
time and that constituted an unilateral change in violation of
Section 8(a)(5) of the Act. The discussion of that allegation
below bears on the issues in the allegation regarding Patricia
Harrison.
Patricia Harrison testified that before the union activity at
Respondent’s facility, she was classified as a full-time nurses
assistant. At that time Harrison had worked from 7 to 3 on
the first shift for 4 years. Before the union activities, Har-
rison had not been required to work shifts other than the first
shift.
During the union campaign, Harrison wore union pins to
work. She appeared on TV news and attended a union
march. She talked to other employees about the Union.
Additionally, after the union organizing campaign Harrison
enlisted the assistance of the Union by having Union Steward
Carol Bishop go with her to talk about her replacing former
full-time employee Lula Byrd on first shift. Harrison and
Bishop talked with Director of Nursing Matthews in the fall
of 1990.
According to Harrison, Respondent’s practice before the
union campaign for permitting part-time employees to con-
vert over to full time was simply to permit part-time employ-
ees the option of converting over in order of seniority, when-
ever a full-time opening occurred.
From September 1989 for several months, Harrison was
out of work on maternity leave. After returning to work, Har-
rison noticed in January 1990 that she was scheduled on both
the first and second shifts. She protested to Director of
Nurses McIntyre that she had arranged a babysitter for the
first shift but could not find one for the second shift. Har-
rison agreed to McIntyre’s request that she try and find a sit-
ter for the occasions when she was scheduled to work the
second shift.
However, Harrison was unable to find a sitter for the sec-
ond shift and she had to miss all her assigned second shifts
during January and February. On March 12, McIntyre
phoned her and told her that she was being placed in part-
time status because she had been unable to work her as-
signed second shifts.
By being placed on part-time status, Harrison lost all her
benefits including vacation, sick pay, and insurance.
167SOUTH CAROLINA BAPTIST MINISTRIES
Linda McIntyre testified that she was director of nurses for
Respondent from January 1989 until July 1990. According to
McIntyre she never promised a new hire a particular shift.
At one point, according to McIntyre, because they were as-
sisted by student nurses from a local program, she had too
many people on 7 a.m. to 3 p.m. but not enough on 3 to
11 p.m. Due to that problem she started rotating staff begin-
ning with the least senior and moving back up seniority, to
the 3 to 11 p.m. or the 11 p.m. to 7 a.m. shifts as needed,
maybe four or five shifts per 5-week period. McIntyre agreed
that during the progression of that practice she assigned Har-
rison, along with several others, to work three shifts at var-
ious times during assignment periods. McIntyre also agreed
that Harrison came to her on March 2, 1990, and asked for
reassignment because she could not find an babysitter and
could not work the 3 to 11 p.m. shift. McIntyre refused Har-
rison’s request.
McIntyre testified that she phoned Harrison on March 12,
1990, and told Harrison that she was being placed on part-
time status because of her inability to work the 3 to 11 p.m.
shift.
According to McIntyre she was phoned by Harrison on
June 19, 1990, and told that Harrison could work ‘‘some
. . . 7 to 3, 11 to 7,’’ because she had gotten a babysitter.
McIntyre scheduled Harrison for some, according to her tes-
timony, but Harrison did not work those times.
On cross-examination, McIntyre admitted that Alma Good
was hired during November 1988 to work on the third shift.
McIntyre was asked if she did not know that at that time
Alma Good had a second job during the day taking care of
a retired judge and McIntyre responded that she knew that
Alma Good had a second phone number where she could be
reached during days.
Linda McIntyre was asked about former full-time nurses
aide Lula Byrd. After being shown work schedules for Janu-
ary 22 through May 6, 1990, McIntyre admitted that Lula
Byrd had worked the first shift exclusively before she re-
signed. McIntyre admitted that Byrd’s resignation created an
opening on the first shift. However, even though she admit-
ted that Byrd had been a full-time employee, McIntyre de-
nied that her resignation necessarily created a full-time va-
cancy.
Patricia Freeman, who started working for Respondent in
August 1989, and became assistant director of nurses on Oc-
tober 1, 1990, testified that while she was assistant director
of nurses she assigned Harrison to work only two shifts after
Harrison complained about working three shifts. Freeman
testified that being relatively new she was unaware of any
policy which placed limitations on working part-time em-
ployees on different shifts and she thought Patricia Harrison
was part time. Harrison complained to Freeman that she
could not work more than two shifts. Freeman agreed to Har-
rison’s request. However, Freeman was subsequently told by
Director Matthews that full-time employees were required to
work all three shifts and that Harrison wanted to be full time.
Freeman testified as to what she learned to be Respond-
ent’s policy for qualifying to move from part time to full
time:
You work all three shifts. You’re—you know, some
them don’t really have to, but the ones that work full-
time, have to be available to be pulled into those shifts,
if you need them any shift.
After first shift aide Lula Byrd resigned in August 1990,
Harrison asked Director of Nurses Matthews for that position
as a full-time employee. She was denied the position. Mat-
thews told Harrison that she was not going to fill the posi-
tion. However, after Harrison was assigned to work that va-
cant position on several occasions, she again asked about
being given the position full time.
At that time Harrison attended a conference including
Carol Bishop and both the Assistant Director of Nurses Free-
man and the Director of Nurses Matthews. During that con-
ference Pat Freeman said there was a new policy which re-
quired anyone wanting to convert to full time to demonstrate
a willingness to work all three shifts. At that time the Union
had not been advised of a change in policy or practice.
Carol Bishop testified that during the fall of 1990 after
former employee Lula Byrd resigned, Patricia Harrison asked
Bishop to go with her to talk with the then director of nurs-
ing, Matthews. Matthews had replaced Linda McIntyre.
Bishop testified:
she reminded Mrs. Matthews that Lula Byrd had
worked full time, 7:00 to 3:00, and she was requesting
that position. Mrs. McIntyre responded by saying she
wasn’t going to fill that vacancy.
Director of Nurses Matthews posted a notice of full-time
vacancies for nurses assistants on November 21, 1990:
Two (2) additional full time Nursing Assistant posi-
tions will be filled January 1, 1991. These positions
will require that the Nursing Assistant work all three
shifts as assigned. Interested Nursing Assistants should
apply in writing to me by November 28, 1990.
The employees who are given full time status must
work their scheduled hours beginning immediately. If
the scheduled hours are not worked, the employee will
be returned to part time status and will lose full time
benefits and someone else will be changed to full time
status.
On cross-examination, Matthews was unable to recall
whether on any occasion before November 21, 1990, a post-
ed vacancy required working all three shifts with provisions
for return to part time if three shifts were not worked. When
shown a posting for an orderly position Matthews admitted
that posting said nothing about working three shifts or about
being restored to part-time status if the employee failed to
work all three shifts.
In December 1990, Harrison was placed on full-time status
but she was assigned all three shifts during the monthly
schedules.
In January 1991, Harrison complained to Assistant Direc-
tor Freeman that she was unable to work the 11 p.m. to 7
a.m. shift then return to work again at 3 p.m., because of her
three children. Harrison was then converted back to part-time
status.
Harrison talked with Director Matthews and pointed out
that Respondent was hiring some new employees full time
and that she needed to work full time on first shift. Matthews
told her that she would have to show a willingness to work
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at least two of the three shifts before she could qualify to
convert to full time.
Harrison then met with the administrator, Hendrix, and ex-
plained her need to work full time on first shift. Harrison
pointed out three new employees that she said were working
more first shift than she was. Hendrix asked Harrison when
this problem started and when Harrison replied it was under
Director McIntyre, Hendrix replied that he could not do any-
thing because it happened before he came to the home.
In late April 1991, Harrison told Assistant Director of
Nurses Freeman that she could arrange to work two shifts,
first and third, if that would enable her to convert to full
time. Freeman told Harrison that she would pass that along
to Director Matthews.
Subsequently Harrison made an appointment to discuss her
request with Director Matthews. However, when Harrison ar-
rived at the home for her appointment Matthews sent her
word that she was sorry but she had forgotten a meeting and
would not be able to meet with Harrison.
Harrison was involved in an auto accident and missed
work from May 28 to July 2, 1991. Shortly before she re-
turned to work Harrison went to the home for her paycheck
and to review the schedule for July. She noticed that she was
scheduled for the two shifts she preferred and she asked Di-
rector Matthews if that was full time. Matthews replied ‘‘um-
hum,’’ which, according to Matthews signified yes.
Carol Bishop also testified about the summer of 1991:
There was another occasion when Patricia Harrison
came to pick her check up. This was 1991, this year.
If I remember correctly, I believe it to be in July. It
was sometime just here recently. Patricia was looking
at her time schedule and Mrs. Matthews walked to the
desk, the Director of Nurses, and Patricia looked over
at her and said—she noticed that she had four to five
days each week. Patricia said is this full time, and Mrs.
Matthews responded by saying, uh-hum, and she
walked off.
Q. Okay. Until say September or October of 1989,
what was your observation with respect to how people
that had been working part time began full time?
A. If there was a full time position available, for ex-
ample, on that 7:00 to 3:00 shift, and if that employee
wanted to work that 7:00 to 3:00 shift, and if she was
next in line, meaning—I mean seniority usually—if she
was there longer than the other employees, she would
be given that shift.
When Harrison returned to work in July 1991 after her
auto accident, she asked Assistant Director Freeman if her
returning to full time meant her benefits had been restored.
Freeman told Harrison she would have to talk with Mat-
thews. Harrison brought up the same question in a conversa-
tion with Director Matthews around July 8 and Matthews
told her that she was not full time. When Harrison reminded
Matthews about their conversation a few days earlier when
Matthews indicated ‘‘um-hum’’ to Harrison’s question as to
whether she was then full time, Matthews said that she did
not remember that conversation.
Harrison reminded Matthews that Matthews had said that
she had to work two different shifts in order to qualify for
full time and that she was scheduled to work two shifts. Mat-
thews showed Harrison the schedule. Harrison testified that
the conversation continued,
[The schedule] showed several employees working 2
different shifts and she said, you had already tried to
work the 2 different shifts and I’ve already been
through that and I’m not going to go through it again
and she said, that in order to work—she said you can
work 2 shifts but, you have to be able to work still all
three, and she was showing me the schedule but, each
person had 2 different shifts and it wasn’t—it wasn’t—
it was different names.
Harrison testified that the schedule showed that no one
was scheduled three different shifts.
Director of Nurses Kay Matthews testified that she did not
recall any conversation in which she told Harrison that she
was full time and she agreed that during the subsequent con-
versation which Harrison placed on July 8, she and Harrison
had a disagreement over whether Matthews had told Harrison
that she was full time.
According to Matthews the question during all her con-
versations with Harrison regarding full time was whether
Harrison could work the 7 to 3 shift full time and, according
to Matthews, she always told Harrison that she wasn’t hiring
anybody for straight 7 to 3 shift.
The record showed that Respondent has hired four full-
time nurses assistants, two full-time orderlies and one full-
time housekeeper since January 1, 1991. The nurses assist-
ants were all hired during April 1991 and two of those new
hires as nurses assistants have since quit.
The record also includes a letter from Respondent to the
Union dated July 11, 1991 which includes the following:
In that same letter you asked if Patricia Harrison has
been reclassified to full time. No, she has not. You
asked if she has not been so reclassified, why not
‘‘since she has indicated her availability to work two
shifts?’’
The reason Patricia Harrison has not been reclassi-
fied as full time is that since the last time she was put
on the schedule as a full-time employee and asked to
be removed from that schedule because she was unable
to work any shift other than the first shift, there has
been no vacancy for a full-time nursing assistant. When
next Bethea decides to make an existing part-time nurs-
ing assistant full time, or to hire a new full-time nurs-
ing assistant, Ms. Harrison will be considered. As I
have told you previously, if Ms. Harrison has dem-
onstrated her ability to work on the shifts on which she
is needed, she may very well be given another oppor-
tunity to serve in a full-time capacity. It will not be suf-
ficient for her to ‘‘indicate her availability’’ to work
such other shifts, since she has done that before and
then not been reliable on any shift other than the first
shift.
I suggest that you advise Ms. Harrison to work what-
ever second and third-shift assignments she may be
given as a part-time employee, and to volunteer for oth-
ers. If she demonstrates that she can be relied upon to
report for work on the less desirable shifts, then I
would certainly be inclined to advise Bethea to award
169SOUTH CAROLINA BAPTIST MINISTRIES
her full-time status before any other nursing assistant is
newly awarded such status.
Marie Ann Mack, a nurses assistant, testified as to at least
six nurses assistants she recalled by name, that have been
placed on full-time status since Patricia Harrison. Mack testi-
fied that she has observed from the posted schedules that
those new employees are scheduled for two shifts. According
to Mack, at least one of those new assistants, Angela Cribb,
frequently trades off one of her shifts.
Lisa McPhail testified that she has not worked for Re-
spondent for as long as Patricia Harrison. McPhail testified
that she normally works the first shift and only on infrequent
occasions does she work on another shift.
Carolyn McPhail testified that she started as a part-time
employee 3-1/2 years ago. In June 1988, she asked for and
became a full-time employee. McPhail testified that she was
not told that she was required to work a specific number of
shifts in order to become full time. McPhail also testified
about an employee named Desi Lewis who quit then came
back a week later. When Desi Lewis returned she returned
as a full-time employee. Moreover, according to McPhail,
Lewis only worked second and third shifts. McPhail recalled
that incident of Lewis quitting and returning happened this
past year.
In March 1991, McPhail was asked if she could work a
shift other than her regular shift and McPhail declined to
work the different shift which would have been the first
shift. Her supervisor was Pat Freeman and Freeman said
nothing to McPhail about shift requirements.
McPhail admitted on cross-examination that new employ-
ees are now required to be willing to work all three shifts.
However, she does not know how long that requirement has
been in effect. She testified that she has noticed on the
schedule that the employees that work all three shifts are
mostly the new employees.
Nurses Aide Emma Ford testified that she was formerly
part time and that she was not required to agree to work any
or all shifts before she was permitted to convert to full time.
She testified that she has worked the same shift for about 15
years.
Shirley Murray who has worked at Respondent for 24
years testified there were no requirements to work several
shifts at the time she was converted from part to full time.
Lisa McPhail testified there was no requirement that em-
ployees work more than one shift when she converted from
part-time to full-time status during 1988.
Findings
I was not impressed with the testimony of Linda McIntyre.
She was evasive and, on several occasions, not responsive to
questions under cross-examination. Moreover, portions of her
testimony including especially her responses that she did not
remember whether she discussed the union campaign with
her nurses was not believable.
As shown above, I was impressed with the testimony of
Assistant Director of Nursing Patricia Freeman. I credit her
testimony.
The unrebutted evidence shows that Patricia Harrison sup-
ported the Union.
At a time after director of nurses admittedly limited two
recently employed nurses aides to a single shift, she told her
assistant director of nurses that Patricia Harrison could not
satisfy the full-time requirements by working only two shifts.
Instead, according to the testimony of Assistant Director
Freeman, McIntyre required Harrison to work all three shifts
in order to be restored to full-time status.
From at least as early as the summer of 1990 when Lula
Byrd resigned her full time nurses aide position on the first
shift, there was a vacancy on the first shift. Linda McIntyre
conceded that a vacancy existed on the first shift when Byrd
resigned. Before her maternity leave Patricia Harrison had
worked the first shift exclusively.
McIntyre testified about the assistance she received by
using students on the first shift, but she offered no expla-
nation regarding the vacancy created by Byrd’s resignation
and how it was a vacancy but not a full-time vacancy.
Finally in December 1990, Harrison was returned to full-
time status.
However, as to the issue here, the events before December
1990 cannot be considered as violative conduct. As noted
above, a 10(b) problem was discussed on the record. It was
apparent to all parties that because of Section 10(b), none of
the above action before December 3, 1990, fell within the
scope of the complaint in this matter. Therefore it is only
from that point in time, that the question of illegal discrimi-
natory action may commence.
In January 1991, when Harrison had trouble making her
third-shift assignments, she was returned to part-time status.
In April 1991, Harrison told Respondent that she was will-
ing to work a two-shift schedule if that would qualify her for
full-time status. Despite that request Respondent has contin-
ued to deny full-time status to Harrison.
The evidence indicated that Respondent has routinely al-
lowed employees with less seniority than Harrison to main-
tain full-time status while working no more than two-shift
schedules.
Linda McIntyre testified that employees are assigned to ro-
tation schedules on the basis of seniority. Nevertheless, ac-
cording to the testimony of Marie Mack, at least six nurses
aides hired after Harrison have been placed on full-time sta-
tus and are working no more than two shift schedules and,
at least one of the six, frequently trades out one of her two
shifts.
Lisa McPhail, who has less seniority than Harrison, nor-
mally works only the first shift and, only infrequently, works
another shift.
As shown above, Carolyn McPhail refused to work an ad-
ditional shift after being asked to do so, and she was not pe-
nalized.
The above illustrates a prima facie case of disparity. Since
the 10(b) period commenced in early December 1990 and be-
fore, Respondent has discriminatorily refused to restore Patri-
cia Harrison to full-time status. Despite requests from Har-
rison to comply with Respondent’s changed requirements re-
garding full-time status, which she has made during and after
December 1990, Respondent has continued to deny Harrison
full-time status.
However, there remains the question of whether Respond-
ent would have denied Harrison full-time status in the ab-
sence of her protected activities.
Respondent in its brief, argues that it is utter nonsense for
Harrison to believe that it could work her full time on one
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shift, arguing that nursing homes must work around the clock
and man all shifts.
It is necessary to staff the home around the clock. How-
ever, despite that requirement the record evidence did show
that Respondent has consistently worked many of its employ-
ees on either a single shift or regularly on one shift with oc-
casional assignments to only one of the two remaining shift.
With that evidence in mind the obvious question becomes
why couldn’t Harrison have a similar arrangement.
What the record does show is that Harrison continued to
request first a single shift then on occasions including during
March 1991, a regular shift with less frequent assignments
to only one of the remaining shifts.
From the evidence it is apparent that Respondent eventu-
ally took the position that despite Harrison’s requests and her
assurances that she could work two shifts, the fact was that
she had tried that on several occasions and failed. In that re-
gard Respondent’s attorney wrote the Union on July 11,
1991, regarding the Union’s effort to have Harrison rein-
stated as a full-time employee. In a material portion the letter
stated:
In that same letter you asked if Patricia Harrison has
been reclassified to full time. No, she has not. You
asked if she has not been so reclassified, why not
‘‘since she has indicated her availability to work two
shifts?’’
The reason Patricia Harrison has not been reclassi-
fied as full time is that since the last time she was put
on the schedule as a full-time employee and asked to
be removed from that schedule because she was unable
to work any shift other than the first shift, there has
been no vacancy for a full-time nursing assistant. When
next Bethea decides to make an existing part-time nurs-
ing assistant full time, or to hire a new full-time nurs-
ing assistant, Ms. Harrison will be considered. As I
have told you previously, if Ms. Harrison has dem-
onstrated her ability to work on the shifts on which she
is needed, she may very well be given another oppor-
tunity to serve in a full-time capacity. It will not be suf-
ficient for her to ‘‘indicate her availability’’ to work
such other shifts, since she has done that before and
then not been reliable on any shift other than the first
shift.
I suggest that you advise Ms. Harrison to work what-
ever second and third shift assignments she may be
given as a part-time employee, and to volunteer for oth-
ers. If she demonstrates that she can be relied upon to
report for work on the less desirable shifts, then I
would certainly be inclined to advise Bethea to award
her full-time status before any other nursing assistant is
newly awarded such status.
General Counsel argued that rather than showing that Har-
rison was denied full-time status on grounds other than her
union activity, what the above letter demonstrates is that Re-
spondent is applying a different standard for Harrison.
The record supports General Counsel in that regard.
Throughout the record, there is evidence that nurses assist-
ants frequently swap out shifts and oftentimes it is necessary
for people at the home including Ward Secretary Carol
Bishop, to phone other nurses assistants to replace someone
that was unable to work their assigned shift. Respondent
failed to show that it has taken action against anyone except
Harrison, because of an inability to work one or more assign-
ments. Moreover, Respondent failed to show that it has re-
quired anyone other than Harrison, to demonstrate an ability
to work more than one shift before placing that employee on
full-time status.
Even Respondent’s November 21, 1990 job posting which
resulted in a finding of an 8(a)(5) violation, showed that em-
ployees were not being required to demonstrate their ability
to work more than one shift before being placed in full-time
status. That posting stated:
Two (2) additional full time Nursing Assistant posi-
tions will be filled January 1, 1991. These positions
will require that the Nursing Assistant work all three
shifts as assigned. Interested Nursing Assistants should
apply in writing to me by November 28, 1990.
The employees who are given full time status must
work their scheduled hours beginning immediately. If
the scheduled hours are not worked, the employee will
be returned to part time status and will lose full time
benefits and someone else will be changed to full time
status.
Under the terms of the posting, employees would be
placed in full-time status and then, if they illustrated an in-
ability to work all shift assignments, they would lose their
full-time status. Director of Nursing Matthews admitted that
she knew of not other instance where Respondent imposed
those requirements. However, as to Harrison, Respondent
went further. According to Respondent’s attorney’s letter re-
garding Harrison, Respondent was requiring her to dem-
onstrate an ability to work all shift assignments before she
would receive full-time status.
I find that Respondent failed to prove that Harrison would
have been denied full-time status in the absence of her pro-
tected activities. Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); Delta Gas, 283 NLRB 391 (1987), enfd.
840 F.2d 309 (5th Cir. 1988); Southwire Co. v. NLRB, 820
F.2d 453 (D.C. Cir. 1987); Yaohan of California, 280 NLRB
268 (1986).
Mary Bess
Mary Bess worked for Respondent on two occasions from
June 1987 to March 1988 and from February 1989 until Sep-
tember 1991. During her most recent employment she
worked as a full-time nurses assistant.
Bess supported the Union during the 1989 campaign by
passing out union leaflets and she was observed in that activ-
ity by Supervisor Elizabeth Kinley; she helped employees
sign union authorization cards; she had a union meeting at
her mother’s house; she wore a union button to work the day
before the election which was seen by supervisor kinley and
she served on the union negotiating committee.
In October 1989, Mary Bess received a warning after she
worked four consecutive shifts. The warning dated October
2, 1989, read:
171SOUTH CAROLINA BAPTIST MINISTRIES
1 During the hearing Respondent requested that the names of pa-
tients be omitted. Even though patients were, on occasion, named
during the hearing, I have deleted patients’ names whenever I could
conveniently do so without injury to the substance of the decision.
On Friday Sept. 29, 1989 you were scheduled to
work 11–7 (Saturday). On Saturday you were scheduled
to work a ‘‘double’’ 3–11 and 11–7 (Sunday).
When another aide was absent for the 7–3 shift Sat-
urday, you volunteered to fill in for her. The 11–7 su-
pervisor told you that you could not do so, but after she
left you stayed and worked the shift anyway and this
was insubordination.
During the 7–3 shift a patient in your care com-
plained that you had not given her a bath. You said that
you had. The supervisor concluded from the patient’s
body odor that you had not. You made a false state-
ment to your supervisor.
The same patient also complained that you had
‘‘jerked her around and been mean to her.’’ This is pa-
tient abuse.
You were directed not to work your previously
scheduled 11–7 shift Saturday night since your unau-
thorized working the 7–3 shift on Saturday meant that
you would have worked for 24 consecutive hours at the
end of the 3–11 shift. You worked the 11–7 shift de-
spite this instruction. This is insubordination.
You have the ability to be an excellent worker, but
these problems are unacceptable and must not be re-
peated. You are suspended for two days. You next re-
port to work on Oct. 15, 1989 at 11 p.m. which is your
next scheduled shift.
The purpose of this suspension is to impress upon
you the seriousness of your conduct. If there is a repeti-
tion you should expect to be discharged.
Sincerely,
/s/ Linda C. McIntyre, R.N.
Director of Nurses
Mary Bess testified that after working the 11 p.m. to 7
a.m. shift she talked to Supervisor Elizabeth Kinley, who
was the supervisory nurse on the 11 to 7 shift. After request-
ing from Kinley that she be permitted to work the next shift
in view of Kinley asking for volunteers to work over, Bess
told Kinley that she had planned to work a double shift.
Kinley, as recalled by Bess, told Bess that Bess should not
do that. Later Bess talked with Kinley again and again,
Kinley told Bess that she should not work the first shift.
Elizabeth Kinley testified in accord with Bess that on
learning that Bess planned to work a double shift beginning
at 3 p.m., she told Bess not to work the 7 a.m. to 3 p.m.
shift.
Bess left work and went home after the 11 to 7 shift.
However, after arriving at home she was phoned by Carol
Bishop and asked if she could come in and work the first
shift because of a shortage of nurses aides. Bess told Bishop
that Kinley had discouraged her working because she
planned to work a double shift. Bishop told Bess that if she
would come back and work that Bishop would try and get
someone else to work the second shift in place of Bess. Bess
then returned and worked the first shift.
Although Bess saw Elizabeth Kinley, Kinley did not say
anything to her about working the first shift after their pre-
vious discussions. However, Bess did overhear a conversa-
tion between Kinley and one of her supervisors on the first
shift, Carolyn Bryant, in which Kinley told Bryant that she
felt Bess should not be working the first shift after having
worked the night before. Neither Bryant nor any other super-
visor said anything to Bess other than, on one occasion, Pat
Freeman asked Bess if she was doing okay being as how she
had worked the third shift. Bess told Freeman that she was
fine.
Carol Bishop testified that on occasions when Respondent
anticipated nurse assistant shortage on a particular shift, it
was Bishop’s job to phone potentially available assistants to
fill in the shortage. There does not appear to be a dispute
regarding the practice of Carol Bishop phoning other nurses
aides when it was necessary to replace an aide that was un-
able to work their regular shift. Emma Jean Ford, who is a
nurses aide and has worked for Respondent for 17 years tes-
tified to that practice.
It was in that capacity that Carol Bishop phoned Mary
Bess, a nurses assistant, and asked Mary Bess to come in and
fill in during the 7 to 3 shift. Bishop called Bess because
some of the assistants did not report for work.
Bess agreed but pointed out to Bishop that she was also
scheduled to work the 3 to 11 shift that day. Bishop told
Bess that she would try and have someone else come in and
fill in on a later shift if Bess could come back in to relieve
the immediate shortage.
Bishop went to the supervisor, Pat Freeman, and told her
that Mary Bess had agreed to come in for the 7 to 11 shift.
According to Bishop, it was routine for her to be advised
by memo, note or comment, if there were employees that
should not be contacted. On this particular day she was not
advised to not phone anyone. In particular Bishop was never
told that she should not contact Mary Bess to fill in the 7
to 11 shift. Moreover, according to Bishop, she had never
been told that employees were limited as to working straight
shifts. She was not restricted in her searches for fill-in em-
ployees by whether the particular employee had worked the
previous shift or whether the particular employee was, as
Mary Bess on this occasion, scheduled to work the next fol-
lowing shift.
As Mary Bess neared completion of the evening shift, she
learned that two assistants scheduled for the next shift in-
cluding Cindy Dubose who had been lined up by Carol
Bishop to work that shift and release Bess, were not going
to report. Bess testified that in accordance with Respondent’s
policy it was necessary for her to work the remaining shift
because her planned replacement did not show up for work.
Consequently Mary Bess worked 32 consecutive hours.
On that same day during the 7 to 3 shift, Bishop overheard
Supervisor Pat Freeman ask Mary Bess about (a patient).1
Freeman told Bess that she believed Bess had already bathed
(the patient) but since (the patient) was complaining that she
had not had a bath, would Bess bath (the patient) again. Bess
agreed that she would give (patient) another bath.
Bishop described (the patient) as being in her late 80s or
early 90s and somewhat peculiar in that she frequently in-
sisted on a particular assistant, Lula Byrd, and she insisted
on not having new linen on her bed.
Mary Bess testified regarding the incident involving the
patient’s complaints about not having a bath. The nurse that
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was the supervisor on that shift Pat Freeman asked if Bess
had bathed a patient that was complaining about not having
had her bath. Bess explained that she had already given the
patient a whirlpool but, on request of Pat Freeman, Bess sub-
sequently gave that patient another whirlpool.
Later that afternoon Pat Freeman again came to Mary Bess
and said the same patient was complaining that she had not
as yet had her bath. On that third occasion Pat Freeman ac-
companied Bess in giving the patient another whirlpool. Dur-
ing the whirlpool Freeman had another assistant, Nancy
Hamm, replace Bess in order to permit Bess to go to lunch.
After lunch Bess returned and as she entered the whirlpool
Supervisor Pat Freeman told her that the patient did not even
realize the change when Nancy Hamm came in and that she
knew the patient was confused.
Mary Bess testified that that particular patient complains
when she does not have her regular aide and, since Bess was
working an abnormal shift for her, she was not that patient’s
regular aide.
In defense Respondent called Patricia Freeman who was
assistant director of nurses. Freeman agreed with the testi-
mony of Bess except Freeman testified that after the patient
complained to her on the second occasion, she was close
enough to notice that the patient smelled sour. From that
Freeman felt that the patient had not had a bath that day
even though Bess claimed that she had bathed the patient
twice.
Although, according to Bess, she was giving the patient a
third whirlpool pursuant to Freeman’s direction, Freeman
heard the patient calling. When she went into the whirlpool
room the patient was in the lift over the tub, caked with
powder, wet but with her gown hanging over her head. At
that point Freeman assigned another nurses aide with direc-
tions to rinse, dry, and dress the patient. She instructed Bess
to go to her meal and she wrote up the incident regarding
the patient’s complaints and her observations.
On October 3, Bess was called into the office of Linda
McIntyre and given a written warning in a sealed envelop.
McIntyre did not question Bess about any of the incidents in-
cluded in the warning, nor did she offer any explanation
about the warning.
After her suspension, Mary Bess was phoned by Director
of Nurses McIntyre and asked to fill in as assistant. Bess re-
minded McIntyre of her suspension and McIntyre said she
had forgotten.
Findings
I was impressed with the demeanor of Elizabeth Kinley
and Patricia Freeman. Both appeared responsive in their an-
swers to questions from opposing counsel.
Moreover, as to the issue of Mary Bess working four con-
secutive shifts despite being told not to work the second con-
secutive shift by Supervisor Kinley, the evidence is not in
dispute. Regardless of Bess being phoned by nonsupervisor
Carol Bishop and asked to work the second consecutive shift,
Bess had been told before that call not to work the shift.
Bess did so without clearing up the question of contrary in-
structions from Supervisor Kinley. In view of that evidence
I am persuaded that Respondent would have disciplined Bess
in the absence of her protected activity. Wright Line, supra;
NLRB v. Transportation Management Corp., supra; Delta
Gas, supra; Southwire Co. v. NLRB, supra; Yaohan of Cali-
fornia, supra.
As to the incident regarding the patient and the whirlpool,
as shown above, I credit the testimony of Patricia Freeman.
The evidence illustrates that Freeman had a reasonable basis
for believing that the patient in question had not been bathed
despite assertions to the contrary from Bess. Here, too, I am
convinced that Bess would have been disciplined in the ab-
sence of protected activity. Wright Line, supra; NLRB v.
Transportation Management Corp., supra; Delta Gas, supra;
Southwire Co. v. NLRB, supra; Yaohan of California, supra.
The record does not support the allegations that Bess en-
gaged in patient abuse. As shown in this decision, it was not
uncommon for patients to complain about abuse. Custom-
arily, as shown, Respondent did not take action based solely
on a patient complaint.
Despite my finding as to the patient abuse question, that
appears almost as an afterthought in Respondent’s action
against Bess. I am convinced that the same punishment
would have resulted against Bess absent the patient abuse al-
legations. Therefore, I am unable to find a violation in that
regard.
Suspended and Discharged Robert Dargan
General Counsel contends that although Respondent alleg-
edly suspended then discharged Robert Dargan for patient
abuse, Dargan was actually suspended and discharged be-
cause of his union and protected concerted activities.
Dargan worked for Respondent for 10 years and 8 months.
He was an orderly.
Dargan testified that he was the only orderly that sup-
ported the Union. Dargan signed a union authorization card,
attended meetings, and wore a union button at work. Like
Carol Bishop and 24 other employees, Robert Dargan signed
the June 15, 1989 letter to Respondent’s administrator advis-
ing of the union organizing campaign.
Additionally as shown below, on June 22, 1990, Dargan
joined with other employees in signing a letter to the director
of nurses complaining of what they felt were racist activities
of a supervisor.
In regard to the patient Dargan was accused of abusing,
Dargan admitted that he cared for that particular patient for
3 or 4 years. After the patient’s wife died, the patient’s con-
dition worsened and he was transferred to Respondent’s in-
firmary. Dargan took care of the patient’s health care, he
washed him, dressed him, combed his hair, placed him in a
chair, and fed him each day. Dargan estimated that he spend
5 hours a day with that patient.
That patient had what Dargan and others described as bad
days. Occasionally the patient, who was formerly a preacher,
would say that he had to go to Charleston to preach. Occa-
sionally the patient had to be restrained for his own protec-
tion.
On one occasion before his suspension, Dargan was told
by Director of Nurses McIntyre that the patient had accused
Dargan of abusing him. In a prehearing affidavit Dargan re-
called that occasion was in March 1990 but he testified that
he could have been mistaken on the date.
Linda McIntyre testified that incident occurred on May 11,
1990, when a patient complained to her that Robert Dargan
had hit him five times over a period of 3 months, and that
Dargan had threatened to hurt him. McIntyre interviewed
173SOUTH CAROLINA BAPTIST MINISTRIES
Dargan about that complaint on May 11, 1990. Dargan told
her that he had not hit the patient. McIntyre told Dargan that
she believed him but that he would be terminated if she dis-
covered that he was abusing a patient.
Kay Matthews testified that while she was assistant direc-
tor of nurses on March 27, she was involved in an incident
during which Robert Dargan told her that the patient had told
him to leave the room. Dargan and Matthews went into the
patient’s room and found the patient had spilled milk. While
Dargan was out of the room the patient told Matthews in re-
sponse to her question of why he would not let Dargan help
him, ‘‘[h]e hits me . . . he pushes me, he yells at me.’’
On June 27, 1990, Dargan was again confronted by McIn-
tyre with a report that the same patient had complained to
Nurse Shirley Young. Young submitted the following report
to McIntyre:
6–26–90
At approximately 2 pm today I was working on
charts at the nurses station on Norris Wing along with
our ward clerk Carol. When [the patient], a pt. who re-
sides in #44 came up via pushing himself—he mo-
tioned to me to come over to where he was. He then
told me that the restrainer that was around him was too
tight—I proceeded to loosen the tie restraining device
which was tied around him and also around the back
of the wheelchair the restrainer was indeed too tight in
my opinion. The following conversation took place at
this time between my self and [the patient]—He then
said to me the orderly Robert was a very mean person
who treated him very badly. He said that he was work-
ing on some things in his room when the orderly came
in and ‘‘put this thing around me and pushed me out
into the hall’’ which was apparently against his wishes.
I asked him if he wanted to go back and he replied yes.
He also proceeded to tell me that in the past he had
been hit on the head and slapped in the face by this
person. I asked him if he had been hit recently to which
he said no but he was treated very badly by this person
every day. I then asked him to repeat these things to
the ward secretary.
[The patient] hesitated saying that he would prefer
not to create a fuss as he was afraid the orderly would
beat him up. I told him we would not allow this to hap-
pen. He then repeated some of the things he had said
to the ward secretary. I reassured him that I would take
care of things. I then pushed him back to his room as
he had wanted earlier. A short time later he returned to
desk, he then told me ‘‘as an example of how this man
operates I was in my room earlier looking through
some things in my closet when the orderly came in and
asked me what I was doing. He then told me that the
closet was not mine but belonged to him and to get
away from his things. He then pushed my chair away
from closet and into hall. (He then said that he had
studied peoples characters for many years as a minister
and that he [the orderly] was a dangerous man.) I then
asked [the patient] if he was afraid of Robert and he
replied yes he was. I feel that [the patient] knew ex-
actly what he was saying during our conversations.
[The patient] has appeared completely orientated, coher-
ent and without confusion at all times when in my pres-
ence today. I reported what I have written to Pat Free-
man RN who instructed me to write these notes and re-
turn to Mrs. McIntyre RN. I would like to add that this
is a situation which I think should be corrected as soon
as possible.
/s/ Shirley Young LPN
When McIntyre confronted Dargan, Dargan told McIntyre
that he had not abused the patient.
After hearing the report from Shirley Young, McIntyre
wrote an account of her meeting with Dargan:
I told Mr. Dargan about the complaints from [the pa-
tient] yesterday and the fact that the waist restraint was
to [sic] tight according to [the patient] and Mrs. Young.
I also told Mr. Dargan that [the patient] had been mean
to him by saying that [the patient]’s closet belonged to
him [Mr. Dargan] and that [the patient] must stay out
of it. I told Mr. Dargan that in view of past reports and
this most recent report that I must ask him to explain.
Mr. Dargan said ‘‘I haven’t touched him since we
talked last time.’’ I ask if that meant that he had hit
him before and he said no. He stated that the waist re-
straint was probably to [sic] tight but he was told never
to have [the patient] in the wheelchair without it. He
said he wouldn’t hit [the patient] or anyone because it
wasn’t a matter of just losing a job that you could go
to jail and ‘‘Nobody white is worth going to jail for.’’
Ms. Bishop then stated that Ms. Young called her into
the smoke room and told her that she didn’t want Ms.
Bishop to think that she was trying to get Mr. Dargan
in trouble. They [Ms Young and Ms Bishop] took [the
patient] into an empty room and Ms. Young questioned
him in Ms. Bishop’s presence. Ms. Bishop stated that
[the patient] wanted authority. At this point I called Ms.
Young into my office and she seemed to tell a similar
story. I ask her if [the patient] appeared to be fright-
ened when talking in front of Ms. Bishop and she said
no. At this point I told Mr. Dargan that in view of all
the reports of verbal and/or physical abuse that I was
suspending him indefinitely. He ask for how long and
I told him until he hears from me.
Dargan testified that he never did abuse his patient. Occa-
sionally it was necessary to use force necessary to restrain
the patient and Dargan admitted that on one occasion when
the patient threatened to hit Dargan with his cane, Dargan
told him that if he hit him with the cane he would hit the
patient. Dargan testified that he was not seriously threatening
the patient but was attempting to calm the patient and that
the patient did in fact, calm down.
Lisa McPhail testified that the patient frequently asked for
Robert Dargan and told others that Dargan understood his
needs. McPhail testified that Dargan exercised good practices
when dealing with the patient and did not abuse him to her
knowledge.
McPhail testified that that patient did frequently complain
about nurses assistants without just cause.
Dargan along with 14 other employees signed a June 22,
1990 letter to Director of Nurses McIntyre under the signa-
ture of Carol K. Bishop. The letter stated:
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For the last few years I have been humiliated and
embarrassed by a staff member of Bethea Home. Each
time I utilized the telephones, staff member Ms. Sadie
Stewart take an alcohol cloth and clean the mouth piece
of the phone.
I feel very strongly that this is done because of my
race Black. I respectfully request that this kind of dis-
crimination cease to exist immediately.
Around June 27, 1990, Dargan was called in and told by
Director of Nurses McIntyre, that Nurse Shirley Young had
accused him of abusing the patient. Dargan denied ever abus-
ing the patient and offered to take a lie detector test. McIn-
tyre told him that she wanted him off the property. Dargan
was suspended.
Subsequently Dargan received a letter from Respondent
dated June 27, 1990, which stated:
For the reasons that we discussed I find that it is
necessary to terminate you from Bethea Baptist Home.
Sincerely,
/s/ Linda C. McIntyre, R.N.
Shirley Murray testified that she was with Robert Dargan
while he restrained the patient on June 26 and that Dargan
did not abuse the patient. Moreover, Murray testified that she
overheard several segments of a conversation in which Shir-
ley Young questioned the patient as to whether he had been
hit by Robert Dargan. According to Murray, Young was un-
aware that Murray could overhear the conversation between
Young and the patient. Murray testified that the only re-
sponse the patient made to Young’s questions was that Rob-
ert Dargan wanted authority.
Murray testified that Robert Dargan was a good employee
and that he had a good relationship with the patient. Murray
testified that the patient never complained about Robert
Dargan to her even though she worked with the patient every
day. Murray never did see any bruises or other indications
that the patient had been abused.
Carol Bishop testified to an incident that involved the pa-
tient, who was 85 to 90 years old, and LPN Shirley Young.
Shirley Young wheeled the patient near Bishop and told the
patient to tell Carol Bishop what the patient had told her.
Young asked the patient if Robert Dargan had slapped him
and, as she asked the question, Young slapped the patient on
the side of his head. The patient replied that he wanted to
go back to his room and work on his papers. Young repeated
to the patient that he should tell Bishop what he told her but
the patient never responded to those requests.
Carol Bishop testified that she was again involved in the
matter regarding Shirley Young and the patient the next day.
Bishop was questioned by Director of Nurses McIntyre in the
presence of Shirley Young, as to her conversation with
Young and the patient regarding whether the patient had
been abused. Bishop told McIntyre that the patient did not
say that he had been abused.
Later that day Carol Bishop was again called into a room
by Shirley Young and Young again questioned the patient,
slapping the patient to emphasis her questions as to whether
he had been abused. Bishop finally asked Young what it was
she was trying to have the patient say. Young again asked
the patient if Robert had abused him but the only response
Bishop heard from the patient was that Robert wants author-
ity. During that conversation, Bishop was paged to director
of nurses office.
Carol Bishop testified about what occurred in McIntyre’s
office:
When I went there, McIntyre and Reverend
Yarbrough was there. She paged Robert. Robert did not
come in immediately so she walked outside to page
him again. A few seconds after that, Robert and Ms.
McIntyre came into the office. She said to Robert that
it had been reported that he had abused [patient] and
that she was going to suspend him. And, I immediately
said to her that I had just spoke with Mrs. Young and
[patient] did not say that Robert abused him. And, she
immediately stopped and asked me when and I said
that’s where I was when you paged me. And, I ex-
plained to her what Shirley Young had asked [patient]
in my presence and she then paged for Shirley Young
to come. And, she asked Shirley about the incident that
I had mentioned to her to confirm what I was saying
and Shirley responded by saying yes, I did tell this to
Carol because I didn’t want her to think that, you
know, I was a dirty person, two faced or something like
that. Anyway when Shirley did tell her that we had the
conversation, she said, Robert you’re still suspended
and Robert said, for how long. She said maybe till the
end of the day, maybe a week, maybe a month, and we
left.
Carol Bishop testified that the patient involved was often-
times confused. Occasionally he required restraint to a
wheelchair. The patient could not feed, clean, or shave him-
self and it was up to the assigned orderly, oftentimes Robert
Dargan, to perform those functions, as well as dress the pa-
tient.
Emma Jean Ford, who has worked for Respondent for 17
years as a nurses aide, testified that the particular patient in-
volved in these incidents was frequently abusive to employ-
ees. Ford testified that occasionally that patient would either
threaten to hit or, on occasion, actually hit or attempt to hit
employees with his cane. Ford testified that she observed that
patient and Robert Dargan. According to Ford, Dargan fre-
quently assisted that particular patient and the patient would
ask for Dargan. Ford recalled that Dargan used considerable
care and compassion in assisting that particular patient who
was in his late 80s.
Ford testified that she never did observe Dargan abuse the
patient.
Carolyn McPhail testified that she was familiar with Rob-
ert Dargan’s work with the patient in question and that
Dargan exercised care in working with that patient. McPhail
described the patient as one of having both good and bad
days and that on occasion the patient would try and fight the
employees and would have to be restrained.
On cross-examination, Kay Matthews who became director
of nurses on October 1, 1990, admitted that she has received
allegations of patient abuse by Nurses Assistant Desi Lewis
from Pat Thornton, an LPN. Desi Lewis remains employed
by Respondent. Matthews admitted that Desi Lewis is en-
gaged to marry the dietary supervisor’s son but Matthews de-
nied knowing that Desi Lewis is opposed to the Union.
175SOUTH CAROLINA BAPTIST MINISTRIES
Respondent in defense of the allegations regarding Dargan,
called LPN Shirley Young. Although Young agreed that the
elderly patient at issue was very hard of hearing, her testi-
mony in other regards as to the patient and his relationship
with Robert Dargan disagreed with the testimony of other
witnesses.
According to Young’s testimony, after she started working
for Respondent in April or May 1990, she frequently ob-
served the patient and Robert Dargan. Young’s testimony
was that the patient was very cooperative but that the patient
feared Dargan and was uncooperative with Dargan especially
when Dargan bathed the patient.
Young testified that while she was working at a desk with
Carol Bishop the patient wheeled himself up in his wheel-
chair and asked to speak to someone in authority. According
to Young, the patient told her that Robert Dargan was dan-
gerous; that Dargan had hit him on his head; had slapped his
face and the patient said that he had been studying people’s
characters for 40 years and that Dargan was a dangerous
character. Young testified that the patient went on to tell her
that while he was going through his things in the closet in
his room, Dargan came in and told him those were not his
things and Dargan pushed him out into the hall.
Young admitted that when she asked Carol Bishop if
Bishop had heard what the patient had said that Bishop told
her she had not. Young then tried without success to have
the patient repeat for Carol Bishop what he had said about
Dargan. Young denied that she slapped the patient while ask-
ing him if Dargan had hit or slapped him.
Young asked the patient if he would like to go back to
what he had been doing. The patient replied that he did and
Young pushed him back to the closet in his room.
Shirley Young reported the incident to Assistant Director
of Nurses Freeman who told her to write the incident up.
That night at home, Young wrote up a report on what she
had been told by the patient. She turned in the report to the
director of nurses.
On cross-examination, Young admitted that she had never
seen Robert Dargan abuse the patient and Young admitted
that the patient was occasionally confused.
Subsequently, Young was called into the director’s office.
Robert Dargan, Carol Bishop, Dee Auger, and McIntyre were
present. McIntyre told Young that Carol Bishop said that she
did not hear the patient say what Young claimed in her re-
port. McIntyre asked Young, ‘‘do you stand by what you
wrote?’’ Young replied, ‘‘word for word.’’
Young testified that before that incident she had observed
the patient alone in his room with his food tray where he
could not reach it, the patient would be trying to get the food
and would have food all over him. Young said she had no
idea where Robert Dargan was. According to Young, Dargan
seldom spent time with the patient.
Findings
As shown above, I found that I could not credit disputed
testimony of Shirley Young and Linda McIntyre.
As to the suspension and discharge of Robert Dargan, the
record appears to support a prima facie case of discrimina-
tory action.
One patient complained on occasion that he had been hit
by orderly Robert Dargan.
On March 27, 1990, that patient told Assistant Director of
Nurses Kay Matthews that Robert Dargan hits, pushes, and
yells at him. Nevertheless the record showed that Dargan
was not disciplined for that incident. According to the
unrebutted testimony of Dargan, the question of whether he
had abused the patient occurred on only two occasions and
on the second of those two occasions he was suspended then
fired.
The first occasion on which Dargan was confronted with
claims by the patient that he was abused by Dargan evidently
occurred on May 11, 1990. Although Dargan recalled March
as the date, he testified that he could be mistaken and, in
fact, the records show it happened in May. On that occasion
Director of Nurses McIntyre told Dargan that she believed
his claim that he had not abused the patient despite the fact
that the patient had complained directly to McIntyre that
Dargan had hit him five times over a period of 3 months.
During the following month, on June 22, Dargan joined
with 14 other employees in signing a written complaint sub-
mitted to Respondent, alleging racist actions by Nurse Super-
visor Sadie Stewart.
Five days after the June 22 letter, another nurse told Di-
rector McIntyre that the same patient that had complained to
McIntyre in May, had made the same complaint to her. Ad-
ditionally, that nurse, Shirley Young, added that the patient
made an additional complaint that Dargan had restrained him
in his wheelchair and pushed him out of his room into the
hall.
It was allegedly on the basis of that report that McIntyre
decided to discharge Dargan. However, the evidence shows
that McIntyre was aware of other evidence which called the
accuracy of Young’s report into question. Carol Bishop who
was present during the first occasion the patient talked with
Young, told McIntyre that she did not hear the patients make
the claims attributed to him by Young and both Young and
Bishop agreed that on a second occasion when Young asked
the patient to confirm to Bishop what he had allegedly said
to Young about Dargan, the patient refused to do so.
Moreover, as was the case in March and May, there was
no evidence of patient abuse other than the word of the pa-
tient and the patient was known to be confused on occasion.
As to the claims of the patient, the claims that he was hit
by Dargan on several occasions are, of course, serious. How-
ever, that patient made those claims to Kay Matthews in
March and no action was taken; and that patient made those
claims to Linda McIntyre in May and McIntyre told Dargan
that she believed his denials. The complaints allegedly made
to Shirley Young apparently involved the same claims of
being hit by Dargan that the patient had made to McIntyre.
Shirley Young in her written report stated that the patient
claimed that in the past he had been hit by Dargan. In the
note she made shortly after she talked with the patient Shir-
ley Young wrote:
I asked [the patient] if he had been hit recently to
which he said no
Respondent offered no evidence as to why it elected to
discharge Dargan in June even though no additional claim
had been made of abuse other than an indication that the pa-
tient’s wheelchair restraint was ‘‘too tight,’’ and the patient
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
claimed that Dargan had told him that the patient’s room
closet was not the patient’s but belonged to Dargan.
In contrast to the treatment of Dargan, General Counsel
pointed to the admission of Director of Nursing Kay Mat-
thews that she has received reports of patient abuse by
Nurses Assistant Desi Lewis but that Lewis has not been dis-
charged. Matthews testified that she did not know if Lewis
opposed the Union even though Lewis is engaged to marry
the dietary supervisor’s son. That evidence shows, at the
least, that Matthews, unlike the case of Dargan, was unaware
that Lewis supported the Union. There was no evidence
showing that Desi Lewis was ever involved in any protected
activity.
In view of the above record evidence, I find that General
Counsel proved a prima facie case that Robert Dargan was
suspended then discharged, because of activities protected
under the provisions of the Act. I am especially impressed
by the fact that Respondent knew of the patients allegations
that Dargan hit him as early as March and May, but told
Dargan that they believed him when he denied the patient’s
allegations. However, a few days after Dargan joined other
employees in complaining about a supervisor’s allegedly rac-
ist activity, Dargan was discharged when the same patient
made essentially the same claims. By signing that letter
along with several other employees, Dargan was engaged in
protected concerted activities.
The record illustrated that Respondent did not show that
Dargan would have been suspended or discharged in the ab-
sence of his protected activities. As shown above, Respond-
ent waited until after Dargan engaged in protected activities
on June 22 before suspending him on June 27 even though
it knew about the allegations of physical abuse over a month
earlier. Dargan’s June 22 concerted activity followed his
overt union activities during the union organizing campaign.
The record showed that Respondent knew of Dargan’s union
activities. In fact he was one of the employees that signed
the letter that gave Respondent its first knowledge of the
union organizing drive. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983); Delta Gas, 283 NLRB 391
(1987), enfd. 840 F.2d 309 (5th Cir. 1988); Southwire Co.
v. NLRB, 820 F.2d 453 (D.C. Cir. 1987); Yaohan of Cali-
fornia, 280 NLRB 268 (1986).
The 8(a)(5) allegations
Negotiated in Bad Faith Since September 26, 1989
General Counsel contends that Respondent engaged in
bad-faith bargaining with the intent of avoiding agreement.
General Counsel argued that Respondent’s intent was dem-
onstrated by evidence showing that Respondent during nego-
tiations refused to agree to union proposals other than mat-
ters of no substantive effect and other matters which it al-
ready had a legal obligation to perform; by evidence showing
that its spokesperson stated that Respondent intended to
leave employees with no more, and perhaps, with less, than
they had before the Union; and by Respondent’s insistence
during negotiations on contract provisions which would de-
prive employees of legal rights.
The parties met in negotiating sessions on September 6
and 29, 1989; October 20, 1989; November 2 and 21, 1989;
December 12, 1989; January 18, 1990; February 6 and 23,
1990; March 7, 1990; June 20, 1990; November 8 and 21,
1990; December 18, 1990; and February 14, 1991. Addition-
ally, on dates specified below the parties exchanged relevant
letters.
September 6, 1989
Business Agent Eileen Hanson testified that the Union and
Respondent have had 14 bargaining sessions beginning on
September 6, 1989. During that session, the Union presented
a contract proposal to Respondent. Prior to that session the
Union had received from Respondent pursuant to the Union’s
request, a packet showing various policies of Respondent.
Hanson testified that the discussion during that first ses-
sion included Respondent admitting that some policies were
not contained in written documents. Some of those policies
were communicated to the employees including some that
were probably communicated to employees only on a need-
to-know basis. Hanson gave as an example Respondent’s at-
torney Gignilliat’s comments that the policy regarding jury
leave may not have been communicated unless a particular
employee informed Respondent he or she had been selected
for jury duty.
Respondent at the first bargaining session, asked the Union
to appoint temporary stewards and, after a caucus, the Union
informed Respondent’s representatives that the members of
the negotiating committee would act as temporary stewards.
Gignilliat informed the Union that he would prepare a con-
tract proposal for Respondent to submit to the Union and that
he would be sending his proposal to Respondent’s executive
committee of their board of directors. He felt that would take
about 3 weeks.
The Union questioned Gignilliat about one of the printed
policies regarding investigation before taking disciplinary ac-
tions against an employee. Gignilliat admitted that policy had
not been followed in a situation involving Zamanda Harrell.
In that regard, Gignilliat told the Union, ‘‘We gave you our
policies, but we didn’t say we followed them.’’
September 29, 1989
The next negotiating session occurred on September 29,
1989. Before the session, the Union received a contract pro-
posal from Respondent.
Also, before the bargaining session Respondent advised
the Union of their intent to institute a retirement plan for
nonbargaining unit employees beginning October 1, 1989,
and the Union was asked if they wished to have unit employ-
ees included in that plan. The Union agreed that they would
like to have unit employees included in the retirement plan.
At the bargaining session the Union asked to be provided
with information regarding the retirement plan. That was
subsequently provided by Respondent.
Respondent provided the Union with job descriptions
which had been requested by the Union. Respondent’s attor-
ney explained that the job descriptions may not be accurate
as to current practices.
During the meeting, the Union went over Respondent’s
contract proposal and asked questions regarding the proposal.
Among the matters discussed was whether employees
would be classified as full or part time and it was Respond-
ent’s position that only those employees scheduled for 80
hours’ work in a 2-week period would be considered full-
177SOUTH CAROLINA BAPTIST MINISTRIES
time employees. Respondent also took the position that they
would prefer to pay the employees on a 2-week basis rather
than the current policy of paying on a weekly basis.
October 2, 1989
Respondent furnished the Union materials the Union had
requested on the issues of sick leave and retirement. The
Union informed Respondent that it had decided to oppose
immediate implementation of timeclocks. That had been a
previous matter of discussion. Respondent’s took the position
that even though it did not use timeclocks it reserved the
right to install timeclocks. The Union was responding to a
question of whether Respondent could implement use of
timeclocks during negotiations.
The parties discussed several issues under the contract pro-
posals. Respondent opposed including job descriptions in the
contract. Respondent’s position was that job descriptions in
the contract would limit their current practice of having the
employees perform all duties assigned at the beginning of the
shift.
Hanson testified that Respondent’s chief spokesperson,
their attorney, said that Respondent came to the table want-
ing to give the Union as few rights as possible in negotia-
tions.
Respondent’s position on contract duration was to limit
any contract to 1 year because the budget was approved by
the directors each year. Respondent disagreed with the
Union’s proposed grievance procedure including arbitration.
Respondent proposed a two-step procedure with the adminis-
trator having the final say in any grievance.
November 2, 1989
Respondent gave the Union some information the Union
had requested regarding an annuity program. Respondent
agreed that stewards could use holidays or vacation time for
a steward training program scheduled in December.
Respondent presented the Union with a counterproposal as
to the Union’s proposed contract provisions regarding
‘‘Stewards,’’ and ‘‘Grievance Procedure.’’
The Union objected to a letter Respondent had sent the
residents alleging that negotiations had been slowed because
of absence of the Union’s negotiator. The Union pointed out
that Eileen Hanson had full negotiating authority and that she
had been present even though Davis had been out with a bro-
ken arm. On cross-examination, Hanson agreed that her notes
reflected that Respondent was told by the Union that as of
that meeting Hanson has full authority to negotiate.
As to a union proposal that the contract provide that em-
ployee may look at their own personnel files, Respondent re-
plied that was subject to abuse and that the negotiators would
advise Respondent to permit employees to see their own files
but that they did not want to include that in the collective-
bargaining agreement.
The Union’s request for visitation rights at the home was
rejected by Respondent on the grounds it upset the residents.
The Union pointed out there were already many visitors at
the home and that the Union would not be disruptive and
would not visit the residents but only unit employees. Re-
spondent continued to oppose visitation rights for the Union.
The parties discussed Respondent’s contract proposal item
by item. Among other things Respondent agreed to amend its
definition of full-time employee from an employee that is
scheduled to work 80 hours during a 2-week period to an
employee that is scheduled to work 75 hours during a 2-
week period. The practice was for employees to normally
work 37-1/2 hours each week.
November 21, 1989
The Union presented a proposed management-rights
clause.
The Union presented a handwritten proposed grievance
procedure provision which included a step three and a provi-
sion for resolution in the event the grievance was not re-
solved at step three. Respondent said they did not want the
grievance procedure to go beyond step two which involved
final determination by the home’s administrator.
December 12, 1989
The parties went over the Union’s proposed contract item
by item. Respondent presented a package proposal involving
acceptance of the union dues check off in exchange for the
Union agreeing to incorporation of Respondent’s proposed
provisions on management rights, employment at will, and
employment integrity. Respondent refused to agree to union
proposals including continuation of free meals in view of the
upcoming increase in the minimum wage by law, Respondent
was considering charging for meals; although the Union indi-
cated a willingness to agree to the current probationary pe-
riod of 60 days, Respondent would not agree indicating they
may want to increase it to 90 days; Respondent said they
wanted to increase the number of part-time employees and
decrease full-time employees and that they did not want to
agree to firm rules for determining part as opposed to full
time but wanted that determination left to the discretion of
the administrator; Respondent opposed permitting job bid-
ding for vacant jobs on seniority as not being consistent with
their desire for employment at will; Respondent would not
agree to include anything in the contract which would entitle
the Union to seniority lists after negotiations concluded; and
Respondent continued to oppose any visitation rights by
union officials. Respondent continued to oppose inclusion of
job descriptions; and they opposed inclusion of provisions
for union bulletin boards or rights to posting of notices on
other bulletin boards.
January 18, 1990
Respondent provided a proposed grievance procedure and,
in addition to its earlier two step proposals, stated its willing-
ness to include a paragraph stating that the Union could send
a 10-day letter to Respondent and Federal Mediation of the
existence of a labor dispute in the event the grievance was
not resolved by the determination of the administrator (Re-
spondent’s proposed second step).
Respondent told the Union they would have some revi-
sions in their previous positions on leave of absence. Al-
though the current policy was for Respondent not to force an
employee out for sickness that had used all his or her sick
leave, to be permitted to continue out without pay but not
to be forced to use unused vacation time, Respondent ex-
pressed a desire to change that so that it could force the ex-
haustion of all vacation time before permitting an employee
to go on sick leave without pay.
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As to meals and breaks, Respondent opposed inclusion of
a break period provision even though it indicated a willing-
ness to grant breaks at its discretion and Respondent said it
would probably discontinue its free lunch policy whenever
the new minimum wage law went into effect.
The Union asked if Respondent had given a raise to any-
one in the bargaining unit and Respondent replied no. The
Union said they would propose a wage increase for unit em-
ployees for 1990 during the next negotiating session. Re-
spondent said they would agree only as part of the entire
contract but that they were willing to discuss the matter dur-
ing the next session.
February 6, 1990
The Union asked that the employees be given a wage in-
crease effective January 1990 on the basis of past practice.
Some of Respondent’s negotiating team admitted that it was
their practice to grant annual increases each January. Their
attorney said Respondent had presented the Union with a
contract proposal in September and that that proposal con-
tained a wage increase.
Respondent agreed to include in its grievance procedure
proposal that stewards could attend disciplinary meetings and
that employees would be required to sign disciplinary
writings. Respondent gave the Union new proposals regard-
ing discipline and vacations.
Respondent stated it intended to include its rights to take
disciplinary action for actions of an employee off the job. As
an example they wanted the right to discipline someone that
was abusive to their parent.
February 23, 1990
There was discussion regarding some new hires by Re-
spondent at the rate of $4 per hour. The parties discussed
and Respondent explained its position on employment at will
which was explained to exclude anything that would con-
stitute a violation of Federal law but that Respondent wanted
to reserve the right to discharge at will. The Union asked
about the employee integrity clause and Respondent’s past
explanation of its desire to include employee surveillance
measures. The Union asked why they wanted this now in
view of the fact those measures had not been taken in the
past. Respondent said they had had the right to do that in
the past but the law said these matters must be negotiated
and Respondent wanted to have these rights included in the
contract or in a side letter.
The management-rights proposal of Respondent was again
discussed and particularly Respondent’s desire for the right
to discipline employees for off-work activities. Respondent
explained that they wanted the right to discipline someone
even if that person was found not guilty of the allegations,
in a court of law. Respondent also contended they wanted
the right to take action against an employee if a patient com-
plained about the employee even if the patient was confused
and the patient’s accusation was false.
Respondent’s attorney, its chief spokesperson, stated he
would not be surprised if it did not get something similar to
employment at will in the contract and he would be surprised
if the Union was able to get arbitration. The following testi-
mony is included in the testimony by Eileen Hanson:
[Union spokesperson] Mr. Day said that the Union
was not going to give up the right that they had to rep-
resent people and to have a redress of grievances. That
we were here to negotiate a contract and we thought
that they should have the right to have an unbiased
viewpoint, such as a third party. Referring to arbitra-
tion.
Mr. Gignilliat said, ‘‘Is that your firm position?’’
Mr. Day said, ‘‘We may have an impasse here.’’
Mr. Gignilliat said, ‘‘We gave the Union a complete
proposal for a contract, including a wage proposal.’’
Mr. Day said that the minimum wage was going up
April 1st and we wanted to know how they were going
to—how that was going to impact on the wage pro-
posal.
Again, Mr. Gignilliat said that they did not want to
have a third party involved in settling grievances. And
Mr. Day said he thought that the Company was holding
the issue of the Union dues as ransom in order for them
to get a Management Rights clause and that we weren’t
interested in that. We weren’t interested in the Manage-
ment Rights clause that took away employee protec-
tions.
March 7, 1990
Julian Gignilliat, Respondent’s attorney and chief negotia-
tion spokesperson, testified that although there were no nego-
tiating sessions between February 23 and June 20, 1990, in
which the full negotiating committees were present, there
was a negotiating session on March 7 when he met with
Union Agents Ed Davis and Dave Day. That meeting was
confirmed by Gignilliat’s letter to the Union which is dis-
cussed under the following topic.
It was Gignilliat’s understanding that after the March 7
meeting during which the parties discussed the entire con-
tract, that seven issues remained in dispute. The parties had
reached tentative agreement on all other issues.
A meeting was scheduled for April but, according to the
testimony of Julian Gignilliat, that meeting was postponed
because of the Union’s request based on their involvement
in a dispute with Kroger.
March 9, 1990
By letter dated March 9, Respondent’s attorney wrote the
Union and enclosed a copy of a proposed contract. The letter
indicated it was the attorney’s understanding there were
seven areas of disagreement and that he understood the
Union was willing to recommend ratification of a contract
which was largely composed of Bethea’s present proposals.
June 20, 1990
Hanson testified in a prehearing affidavit:
I do not think anything was scheduled for April. [Union
negotiator] Day was involved in Kroger negotiations in
April and May. A meeting was scheduled June 1st but,
the union cancelled due to a strike at Kroger possibility,
it was re-scheduled for June 20.
There was discussion about two grievances. Respondent
and the Union discussed the issue of leaves of absence and
whether an employee would be guarantee his or her old job
179SOUTH CAROLINA BAPTIST MINISTRIES
on return. Respondent took the position the employee could
return to the former job if that job was vacant.
During the meeting the Union presented Respondent with
a written proposal to pay all employees a minimum of $4 an
hour in view of Respondent having recently hired employees
at that rate.
August 3, 1990
On August 3, Respondent’s attorney wrote the Union ad-
vising that he had received a letter from an attorney rep-
resenting some of Respondent’s employees in a civil suit,
which included a proposal to settle the civil suit and to re-
solve the collective-bargaining dispute with an agreed-on
contract. The letter asked the Union if that lawyer’s letter
represent the Union’s best offer to resolve the collective-bar-
gaining contract issues.
August 9, 1990
On August 9, the Union responded to Respondent’s Au-
gust 3 letter stating that the attorney’s letter did in fact rep-
resent the Union’s best offer.
September 13, 1990
On September 13, Respondent’s attorney wrote the Union:
This is to confirm our earlier conversation regarding
the status of negotiations at Bethea. I have absolutely
no doubt that we are at an impasse. Frankly, I think
that we have been there since February, but it is crystal
clear now.
We are quite willing to have a contract with the
UFCW. You have our terms. They are still available to
you. I hope that the union will agree to these proposals
so that we can begin to build the teamwork and cooper-
ative spirit which is in the mutual best interest of your
members and my client.
Whether we have an agreement or not, or prior to
entering into one, there are certain changes and condi-
tions which we have proposed to the union and which
we have now decided to put into effect. The first of
these is to go to a bi-weekly pay day. This is a change
which had been planned last summer but which was
shelved because of the election petition. I enclose a
memo to employees which explains the details of the
change.
We are ‘‘moving forward’’ with the purchase of time
clocks, which is another change planned prior to the pe-
tition being filed. I do not know when the clock(s) will
be purchased, but it should be soon. This, too, I think
is in the mutual interest of the employees and Bethea.
The perfect attendance bonus day off is eliminated
effective immediately.
Effective October 1, we will begin paying sick leave
on the second and subsequent consecutive days of each
absence because of sickness and we may require a phy-
sician’s statement before making sick leave payments.
Effective October 1, 1990, employees must regularly
work five days (37 1/2 hours) per week or ten days/75
hours biweekly to be eligible for full time status and
full time employee benefits. The immediate significance
of this change is that Bethea will no longer pay for
health insurance coverage of a small number (a half
dozen or less) of employees who presently work only
4 days a week (30 hours). These employees will still
have whatever remains of their sick leave and vacation
from its accrual January 1, 1990, but will not earn addi-
tional sick leave and vacation on January 1, 1991. Nor
will they be eligible for holidays after October 1, 1990.
If these employees wish, we will attempt to maintain
their full time status by offering them an additional day
of work each week, although not necessarily on the
same shift or in the exact same job.
We are investigating the purchase of video cameras,
etc., but will notify you before they are installed, as-
suming that a decision is made to install them.
We are in the process of revision work rules, but
will send you a copy before they are announced to the
employees.
I hope to discuss our contract proposals with the new
administrator before he actually takes over at Bethea.
Although he will have no authority to change our pro-
posals (that is now the prerogative of the Executive
Committee), he may very well want to institute other
changes consistent with our proposals. In such event, I
will notify you.
If you have any questions, please call me.
With best personal regards and good wishes, I re-
main
October 4, 1990
The Union wrote Respondent’s attorney on October 4:
We have discussed your letter of September 13,
1990, with David Day, our International Collective Bar-
gaining Representative, and we believe that the Em-
ployer and the Union are not at impasse on many items.
Mr. Day has tried to contact you about setting up future
negotiations, which you have refused.
The Union objects to the unilateral changes in poli-
cies, the pay day and past practices as outlined in your
letter, some of which you have already instituted. We
believe that the policy changes without giving the
Union further opportunity to bargain are illegal and in
violation of the National Labor Relations Act, and are
directed at the employees in retaliation for their union
activity. We have already filed charges with the Na-
tional Labor Relations Board.
Again we are requesting an opportunity to bargain
with the Employer over these and any other changes in
policy or past practices, as well as an entire collective
bargaining agreement. We are available October 15, 16
or 18.
October 10, 1990
On October 10, Respondent’s attorney wrote the Union ex-
pressing his willingness to meet.
Julian Gignilliat testified that Respondent expressed a will-
ingness to resume negotiations despite their having declared
an impasse because he felt there was a greater likelihood of
success in negotiating a contract after implementation of
some changed working conditions.
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
October 29, 1990
On October 29, Respondent’s new administrator, Ronald
Hendrix, posted a memo to employees. That memo included
the following paragraph:
In order to reduce conflict, I have recommended to
the Board of Trustees, and the Board has agreed, that
one of the several lawsuits involving our employees be
settled. This means that we will put into effect a new
pay plan which combines the principles of guaranteed
rates of pay based upon length of service and qualifica-
tions with the opportunity to earn higher rates of pay
based on merit. Since I am new here, I have decided
that all employees who were employed on January 1,
1990, and have not received a wage increase of three
percent since December 15, 1989, merit an increase of
at least three percent or of whatever amount is nec-
essary to bring their total 1990 increases up to a three
percent raise over their December 15, 1989 rates. These
increases will go into effect October 29, 1990.
November 8, 1990
The parties discussed the administrator’s notice (above) re-
garding the October 29 pay increase. Respondent advised the
Union that by that action they were putting their April 1,
1990 proposal of a new pay plan, into effect.
The Union disagreed with Respondent’s unilateral imple-
mentation of the pay increase, they disagreed with the
amount of the increase and they disagreed on the fact that
it had not been granted effective January 1, 1990. Respond-
ent would not agree to make the pay plan retroactive to Janu-
ary 1.
The Union stated that they were not at impasse despite Re-
spondent’s expression that they were.
The Union stated they had proposed implementation of the
pay plan back in January and February and Respondent re-
plied that was the only leverage they had to get a contract
with the Union.
The Union made new proposals on wages, attendance
bonus, and timeclocks. That written proposal was for a 6-per-
cent pay increase, a day’s pay but not a day off, for 6
months’ perfect attendance, and the immediate implementa-
tion of timeclock proposal.
The above proposal regarding timeclocks was, according
to Hanson, an agreement to the Respondent’s proposal on
timeclocks.
Respondent’s spokesperson said that he would not submit
the Union’s pay proposal and that he was rejecting that pro-
posal. The parties discussed Respondent’s new policy of pay-
ing for sick leave on the second day and the Union pointed
out that encouraged employees to stay out at least 2 days.
The Union made a counterproposal that employees that
worked at least 37-1/2 hours a week be considered full time
even though the hours were all worked during 4 days. The
Union went over their proposed contract and made modifica-
tions to some of those proposals including withdrawing some
provisions. The Union told Respondent that they would be
sending a new wage proposal since their proposal of that day
had been rejected.
November 15, 1990
On November 15, the Union wrote Respondent indicating
they had reserved a room for the next negotiating session on
November 21, 1990, and including some new counter-
proposals and modifications of old collective-bargaining con-
tract proposals.
November 21, 1990
The parties met on November 21. Respondent gave the
Union a list of employees that had received the October 29
pay increase noting that some of the employees had incor-
rectly received increases in excess of the scheduled increase
and that those errors would be corrected. Respondent advised
the Union that they were unwilling to agree to any of the
counterproposals which the Union had included in their No-
vember 15 letter. The parties then went over all the out-
standing items from Respondent’s contract proposal, noting
whether there was agreement or not on each item and the
Union modified some of their former positions, including in
many instances noting they would agree to Respondent’s
proposed items.
The Union requested information on the current cost of
single and dependent health insurance coverage.
As to the grievance procedure the Union continued to in-
sist in disagreement with Respondent, on arbitration.
December 18, 1990
Respondent told the Union they had no proposed changes
in their previous positions. The Union asked about their re-
quests for areas for union activity. Respondent said they
were willing for them to use some areas that were not used
by residents and those were specified, however, Respondent
was unwilling to include anything in that regard in the con-
tract. Respondent gave the Union copies of some postings for
job vacancies including one dated November 21 for two full-
time nursing assistant positions. That posting noted that the
applicant must work all three shifts. The posting also in-
cluded the following paragraph:
The employees who are given full time status must
work their scheduled hours beginning immediately. If
the scheduled hours are not worked, the employee will
be returned to part time status and will lose full time
benefits and someone else will be changed to full time
status.
Eileen Hanson testified that this was the first time the
Union had received notice that Respondent’s job postings
would require employees to work all three shifts in order to
qualify for full-time status.
The Union verbally proposed that all employees re-
ceive a 5-percent pay increase effective January 1,
1991. Respondent did not respond to that proposal.
February 14, 1991
The Union asked what impact the anticipated increase in
the minimum wage law would have on April 1 when the
minimum was scheduled to go to $4.25. Respondent replied
that the only impact was that employees paid below that fig-
ure would go to $4.25. Respondent told the Union there had
been no wage increase for anyone in the bargaining unit for
181SOUTH CAROLINA BAPTIST MINISTRIES
1991. The parties discussed several of the items on the pro-
posals.
The Union made a verbal proposal for a review of each
employee for merit increase consideration during the quarter
of the year in which the respective employee’s anniversary
date fell and that merit increases would fall from 3 to 5 per-
cent. Respondent did not respond to the Union’s proposal.
The Union proposed that all employees receive a 5-percent
increase in pay effective February 1, 1991. There was discus-
sion regarding the Union’s proposals.
Respondent asked for the Union’s position on grievance
procedure and the Union responded they may be willing to
have a three person panel rather than an arbitrator.
Hanson then testified as follows:
[Respondent’s attorney] then outlined what he felt
were three (3) outstanding issues that were—where we
were still in disagreement.
. . . .
And those issues were the Pay Plan. He said that he
would recommend to his client our proposal about the
four (4) review periods with the three (3) to five (5)
percent merit raise. But that he could not imagine that
they would do the five (5) percent across the board
raise.
The second issue was Employment-at-Will and the
third issue was Arbitration. He said that his client was
not going to sign any contract that had arbitration in it.
. . . .
Well, Mr. Davis [Union] said if—we would consider
going with the Administrator if they would drop their
provision for Employment-at-Will. And that he thought
that Mr. Hendrix would be fair minded.
Mr. Gignilliat outlined two (2) issues then, that if
Bethea gave up employment-at-will, that—if the Em-
ployment-at-Will issue and the merit raise the five (5)
percent. He also indicated that they had given a three
(3) percent merit raise to the non-bargaining unit em-
ployees at January 1, 1991. He said that he would still
be talking about a contract of one (1) year and that he
would have to deal with the finance committee.
Q. Did the Union agree with the Company’s—with
Mr. Gignilliat’s assessment that there were then just
two (2) issues between them?
A. We did not agree with that. He asked if we would
go—I’m sorry. The Union said that—he said he would
like a final proposal from the Union. And we said that
we would go through—that Mr. Davis and I would get
together and we would go through all the different Arti-
cles and provisions that we had agreed on and the
things that we had made movement on and things that
we had taken off the table. That we would work to get
up a final proposal and that we would get back with
them.
Q. When Mr. Davis indicated that the Union might
be willing to go along with the Administrator as the
final determiner of fact if the Company would drop the
Employment-at-Will provision was there any response
from the Union on that—uh, from the Company on
that?
A. They did not indicate that they were willing to do
that.
Q. Was that basically the end of that bargaining ses-
sion?
A. Yes.
Q. When was the next bargaining session?
A. That was the last bargaining session we had.
Julian Gignilliat testified in substantial agreement with
Hanson’s above testimony.
February 18, 1991
Respondent’s attorney wrote the Union on February 18
and enclosed a copy of a contract which he stated he would
recommend to Respondent’s board of trustees. The letter in-
cluded a request that the Union indicate if they were willing
to accept the proposal objecting to only the employment-at-
will language in which case the Union may strike that lan-
guage and stating that their acceptance is conditioned on a
5-percent pay raise effective retroactively on February 1,
1991. Gignilliat mentioned in the letter that although settle-
ment of an ongoing lawsuit would not be part of the collec-
tive-bargaining agreement, he mentioned that settlement
would affect the voting of the trustees.
The letter continued that Gignilliat would recommend that
contract to the trustees but he felt they would not agree to
any pay increase over what the nonunit employees had re-
ceived.
Near the end of his letter Gignilliat stated:
I do not know that I would persuade the Board, but if
this would not do it, I cannot imagine what would. By
the same token, it may be that your membership would
not ratify such an agreement, but if it did not, then it
would be obvious to both of us that we would never
get any closer together.
May 1, 1991
On May 1, the Union wrote Respondent asking for a meet-
ing on May 15 and for a list of new hires and relevant infor-
mation regarding those hires. The Union also requested that
Respondent place Patricia Harrison and Patricia Kelly on
full-time status.
May 3, 1991
On May 3, Respondent wrote the Union:
This is in response to your letter dated May 1, 1991.
At the close of our last bargaining session on February
14 of this year, I understood Ed Davis to have made
a proposal from the union which substantially narrowed
the issues which separated us. A few days later, I wrote
Ed a letter which represented the final offer which
Bethea would make but in which I indicated to him that
if the union made a counterproposal along certain spec-
ified lines, I would advise my client’s board of trustees
to make a change in its position which would achieve
a contract. Several weeks later, Ed asked me to meet
him and union president Muncus for lunch to discuss
a contract. Our meeting was congenial, but Mr. Muncus
returned to a position which was further away than the
last position which Ed Davis had taken.
You have our final offer. We are at an impasse and
further meetings will accomplish nothing. For that rea-
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
son, Bethea declines to negotiate further unless and
until the union agrees to the terms set forth in my last
letter to Ed Davis.
Bethea’s position regarding further negotiations is
not a withdrawal of recognition. You have asked for
copies of nursing and dietary schedules from March
18th to the present and they will be provided to you.
We will provide future schedules in response to your
written requests.
You have also asked for a list of new hires, includ-
ing dates of hire, part-time and full-time status, rate of
pay, job classification and address. It will be provided,
as will be a list of terminations since the last list given
to you.
You have asked that Patricia Harrison and Patricia
Kelly be given full-time status immediately. That re-
quest is denied. Patricia Harrison was given full-time
status several months ago but found that she continued
to be unable to work night shifts. Unless and until she
demonstrates persuasively that she is actually able to
work night shifts on a regular basis, she will not be
considered for full-time status. As you have previously
been told, Patricia Kelly was considered and rejected
for full-time status because of her atrocious record of
attendance. Shortly after her recent direct request for
full-time status she was observed sleeping at work. Ms.
Kelly will not be considered again for full-time status
unless and until she demonstrates reliability by a pro-
longed period of time without absences and without in-
attention to her duties when she is at work.
Respondent’s attorney and chief spokesperson Gignilliat
testified that during the April meeting which he attended
with Ed Davis from the Union and Local Union President
Tony Muncus, Muncus stated it was the Union’s position
that they would not sign a contract that did not contain a
clause limiting discipline to just cause and containing an ar-
bitration clause. Gignilliat responded that the parties were
further apart in that case because Respondent was not going
to sign a contract that contained that language.
Findings
Bargaining in Bad Faith Since September 28, 1989
General Counsel cited several cases including A-1 King
Size Sandwiches, 265 NLRB 850, 859, enfd. 732 F.2d 872,
877 (11th Cir. 1984); Reichhold Chemicals, 288 NLRB 69,
71 (1988); Prentice-Hall, Inc., 290 NLRB 646 (1988); Mod-
ern Mfg. Co., 292 NLRB 10 (1988); Harrah’s Marina, 296
NLRB 1116 (1989), and argued that Respondent continually
insisted on proposals which, if accepted, would have put the
employees in worse position than they would have been
without a contract and, thereby, engaged in bad-faith bar-
gaining. General Counsel especially argued that Respondent
was unwilling to agree to any meaningful offer by the Union;
that its spokesperson expressed its intent to give the employ-
ees fewer rights than they had before they selected the
Union; and that it insisted on management rights, grievance,
and employment-at-will provisions that would have left the
employees virtually without any union representation; and
thereby illustrated an intent never to enter into a collective-
bargaining agreement with the Union.
Respondent raises several points in its defense. Respond-
ent, from shortly after the Union’s certification and request
to commence bargaining, met and negotiated with the Union.
Although there were lapses in the regularity of negotiating
meetings, those were not caused by Respondent but by the
Union.
In that regard, Respondent argued that the record evidence
proved that from February 23 through November 8, 1990,
only one full fledged negotiating session was held because
of the Union’s involvement in a dispute with another em-
ployer.
A full committee attended negotiating session was held on
February 23, 1990. Thereafter although a meeting was held
involving Respondent Negotiator Gignilliat and Union Nego-
tiators Ed Davis and David Day on March 7, there were no
full committee attended negotiating sessions until June 20,
1990.
Union Negotiator Eileen Hanson testified in a prehearing
affidavit that nothing was scheduled in April or May because
Union Negotiator David Day was involved in negotiations
with another employer, Kroger, and that a scheduled June 1
negotiation session was postponed because of the possibility
of a strike at Kroger.
Respondent argued that there was another lapse in negotia-
tions after the June 20 negotiation session because it heard
nothing from the Union until after it received a letter dated
July 25 from an attorney representing several of its employ-
ees in a civil suit in which the attorney proposed a settlement
of that civil suit coupled with settlement of the contract dis-
pute. Respondent contends that it would have been a viola-
tion of Section 8(a)(5) if it had proposed such a settlement.
Instead Respondent wrote the Union on August 3, advised
the Union of the attorney’s proposal, and asked if that rep-
resented the Union’s best offer. The Union responded that
the attorney’s proposal did represent their best offer. Re-
spondent contends that the Union’s best offer which was
coupled with settlement of the civil suit, and which was re-
jected by Respondent, placed the parties at impasse. Re-
spondent cited Chesapeake Plywood, 294 NLRB 201 (1989);
Laredo Packing Co., 254 NLRB 1 (1981); Good GMC, Inc.,
267 NLRB 583 (1983).
The attorney in the civil suit suggested to Respondent a
specific settlement of the civil suit. His letter to Respondent
outlined issues that he felt may lead to settlement of the col-
lective-bargaining negotiations, including:
2. Implementation of a union contract to include the
following provisions, as well as those already agreed
upon between the company and the union:
(a) Just cause for disciplinary actions and griev-
ances
(b) Reasonable work rules
(c) Reasonable access by union representative
(d) Standard check-off language
(e) Weekly dues deductions; remit to local month-
ly
(f) Drop employment at will, physical and mental
condition and surveillance (employee integrity) lan-
guage.
(g) Three year contract duration
(h) Return to company’s former policy as to vaca-
tions, sick leave, meals and other benefits.
183SOUTH CAROLINA BAPTIST MINISTRIES
(i) Maintain current policy on health and welfare
for a three year term.
(j) Grievance and arbitration per union proposal
(k) Pay Plan as follows:
After Respondent’s attorney wrote the Union on August 3
asking if the above did in fact represent the Union’s best
offer, the Union responded on August 9, 1990:
In response to your letter dated, August 3, 1990, and
after discussions, contact and deep consideration with
all parties involved with respect to the issues, we are
confirming that this is the offer for settlement in all
areas both contractual and legal. We would request that
you submit this offer for consideration to the Board of
Directors of the South Carolina Baptist Council.
We believe strongly that this proposal is no more
than what the nursing home is presently doing with re-
spect to fairness and reasonableness in most issues. It
would go a long was to correct the discrimination pres-
ently existing in the area of wage rates.
We would appreciate your reviewing your calender
and notifying us of available future dates for negotia-
tions. We look forward to hearing from you so that I
can make arrangements to attend those negotiations.
On September 13, 1990, Respondent’s attorney wrote the
Union. That letter included the following:
This is to confirm our earlier conversation regarding
the status of negotiations at Bethea. I have absolutely
no doubt that we are at impasse. Frankly, I think that
we have been there since February, but it is crystal
clear now.
We are quite willing to have a contract with the
UFCW. You have our terms. They are still available to
you. I hope that the union will agree to these proposals
so that we can begin to build the teamwork and cooper-
ative spirit which is in the mutual best interest of your
members and my client.
Whether we have an agreement or not, or prior to
entering into one, there are certain changes and condi-
tions which we have proposed to the union and which
we have now decided to put into effect. The first of
these is to go to a bi-weekly pay day.
The record does show that the parties were progressing
during negotiations before September 13, 1990. Respondent’s
attorney expressed an understanding that in the March 7
meeting during which Respondent’s attorney met with Ed
Davis and Dave Day of the Union, the parties discussed the
entire contract and that seven issues remained in dispute and
that the parties had reached tentative agreement on all other
issues. Respondent’s attorney repeated his belief that seven
issues remained in dispute, in a March 9, 1990 letter to the
Union.
Respondent is correct that with the exception of a June 20
negotiating session, the parties did not meet over a lengthy
period. That delay was due to Union’s involvement in an-
other labor matter.
However, despite the time lag, the record failed to reveal
that anything occurred during that period which supported a
belief that impasse had occurred until, as noted above, Re-
spondent received the employees’ attorney’s letter.
The case law cited by Respondent does not support the po-
sition that Respondent may declare an impasse if the Union
offers settlement contingent on settlement of a civil suit. In
Chesapeake Plywood, 294 NLRB 201 fn. 3 (1989), the
Board stated:
While the Respondent could not lawfully insist on
modifications in their specified Title VII settlement
agreement provisions before the 5 years was up, it was
of course permitted to propose such modifications to
the Union.
In Chesapeake Plywood the Board again illustrated that
the question rest on whether the Union negotiated to impasse
over the question of coupling settlement of the civil suit with
agreement to a collective-bargaining contract.
In Laredo Packing Co., 254 NLRB 1, 19 (1981), the ad-
ministrative law judge indicated that the mere proposing of
settlement of a lawsuit is not per se illegal. Again, the ques-
tion turned to was there an insistence on settlement of the
civil suit to the point of impasse.
In Good GMC, Inc., 267 NLRB 583 (1983), the Board re-
versed on finding that the evidence did not show that the
parties reached impasse solely because they were unable to
agree on settlement of a former grievance. Again the matter
turned on whether the employer in that case had insisted on
the nonmandatory bargaining subject to impasse. There the
Board explained it is necessary to examine the record to see
if there would have been agreement on all contractual issues.
The record here shows that the parties did not bargain to
impasse on a nonmandatory issue, i.e., settlement of the civil
lawsuit. As to that question the record failed to show that
matter was even in dispute. As shown below on February 18,
1991, Respondent’s attorney in a letter to the Union indi-
cated that a settlement of the civil lawsuit would influence
Respondent’s board of directors favorably when they consid-
ered the Union’s collective-bargaining contract proposal.
Additionally, as shown above, there were seven matters in
dispute according to Respondent’s attorney which did not in-
volve nonmandatory issues.
After Respondent Attorney Gignilliat met with two rep-
resentative of the Union on March 7, there remained accord-
ing to Gignilliat, seven issues in dispute. The parties met
again on June but there was no showing of impasse at that
time.
The parties did not meet again until Respondent declared
an impasse on September 13. At the time of the letter from
the employees attorney, according to the understanding of Ju-
lian Gignilliat, the parties had reached tentative agreement on
all but seven mandatory issues. The record does not show
that the parties were at impasse on those seven issues.
Therefore, I do not agree with Respondent’s argument that
the Union brought the parties to impasse when it offered to
settle both the contract dispute and a civil lawsuit brought
against Respondent by some of its employees. It is clear that
that nonmandatory issue did not cause an impasse.
The parties did resume negotiations after Respondent de-
clared an impasse and instituted unilateral changes in work-
ing conditions. Following a letter from the Union dated Oc-
tober 4 requesting continued negotiations, Respondent agreed
and negotiations were renewed on November 8, 1990.
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent argued that agreement was close when the par-
ties met on February 14, 1991. Respondent in its brief argued
that only two issues divided the parties at that time. There
was a difference in the amount of a pay increase with the
Respondent willing to grant 3 percent while the Union in-
sisted on 5 percent and there was a dispute as to whether the
contract would contain an employment-at-will or a just-cause
provision.
However, Respondent argued that when Respondent met
with the Union again in April, Local President Tony Muncus
was involved for the first time during the negotiations and
Muncus indicated that the Union would not agree to a con-
tract that did not include arbitration and just cause even
though the Union had indicated in February that they were
willing to consider such a contract. At that point Respondent
broke off negotiations. Respondent argued that further nego-
tiations would be pointless. Respondent cited NLRB v. Big
Three Industries, 497 F.2d 43, 48 (5th Cir. 1974); NLRB v.
Tomco Communications, 567 F.2d 871, 881 (9th Cir. 1978);
L. W. LeFort Co., 290 NLRB 344 (1988).
It does appear that Muncus’ position was regressive. At
that point the parties were as close to agreement as they had
been. Obviously, as Respondent argues, the gulf widened
when Muncus announced the Union would not agree to a
contract without arbitration.
Nevertheless, General Counsel argued that Respondent had
continually bargained in bad faith and, because of Respond-
ent’s bad-faith bargaining, the parties were not at legal im-
passe on February 14, 1991.
Before the September 29, 1989 bargaining session, Re-
spondent submitted a proposed collective-bargaining agree-
ment. Among other things that proposed contract included an
employment-at-will provision which provided:
Notwithstanding any other provisions of this Agree-
ment, all employees are employed at will. This means
that each employee has the right to terminate his em-
ployment at any time, with or without notice and with
or without reason, and that the Employer has the same
right.
The proposed contract included a grievance procedure that
included at step 1 a meeting between the grievant and, if de-
sired, a representative of the Union, and the grievant’s de-
partment head; and at step 2, final resolution of the grievance
by Respondent’s administrator.
In that regard there appeared to have been several signifi-
cant negotiating sessions. Some of those significant sessions
include the following:
On December 12, 1989, the parties met and as noted
above,
Respondent presented a package proposal involving ac-
ceptance of the Union dues checkoff in exchange for the
union agreeing to incorporation of Respondent’s proposed
provisions on management rights, employment at will, and
employment integrity. Respondent refused to agree to union
proposals including continuation of free meals in view of the
upcoming increase in the minimum wage by law. Respondent
was considering charging for meals. Although the Union in-
dicated a willingness to agree to the current probationary pe-
riod of 60 days, Respondent would not agree indicating they
may want to increase it to 90 days. Respondent said they
wanted to increase the number of part-time employees and
decrease full-time employees and that they did not want to
agree to firm rules for determining part as opposed to full-
time employment status but wanted that determination left to
the discretion of the administrator (as shown below, Re-
spondent subsequently engaged in an illegal unilateral change
in its practice of qualifying employees for full-time status).
Respondent opposed permitting job bidding for vacant jobs
on seniority as not being consistent with their desire for em-
ployment at will. Respondent would not agree to include
anything in the contract which would entitle the Union to se-
niority lists after negotiations concluded. Respondent contin-
ued to oppose any visitation rights by union officials. Re-
spondent continued to oppose inclusion of job descriptions in
the contract. Respondent opposed inclusion of provisions for
union bulletin boards or the right of the Union to post no-
tices on other bulletin boards.
The parties met and negotiated on January 18, 1990, and,
as shown above,
Respondent provided a proposed grievance procedure and,
in addition to its earlier two-step proposals, stated its willing-
ness to included a paragraph stating that the Union could
sent a 10-day letter to Respondent and Federal Mediation of
the existence of a labor dispute in the event the grievance
was not resolved by the determination of the administrator
(Respondent’s proposed second step).
Respondent told the Union they would have some revi-
sions in their previous positions on leave of absence. The
current policy was for Respondent not to force an employee
out for sickness that had used all his or her sick leave, to
use accrued vacation time. Under the policy employees
could, after exhausting their sick leave, go on a leave without
pay status instead of using their vacation time. Respondent
expressed a desire to change that so that it could force the
exhaustion of all vacation time before permitting an em-
ployee to take sick leave without pay.
As to meals and breaks, Respondent opposed inclusion in
the contract, of a break period provision even though it indi-
cated that it may grant breaks at its discretion and Respond-
ent said it would probably discontinue its free lunch policy
when ever the new minimum wage law went into effect.
The Union asked if Respondent had given a raise to any-
one in the bargaining unit and Respondent replied no. The
Union said they would propose a wage increase for unit em-
ployee for 1990 during the next negotiating session. Re-
spondent said they would agree only as part of the entire
contract but that they were willing to discuss the matter dur-
ing the next session.
The February 23, 1990 meeting was also significant. As
shown above,
There was discussion regarding some new hires by Re-
spondent at the rate of $4 per hour. The parties discussed
and Respondent explained its position on employment at will
which was explained to exclude anything that would con-
stitute a violation of Federal law but that Respondent wanted
to reserve the right to discharge at will. The Union asked
about the employee integrity clause and Respondent’s past
explanation of its desire to include employee surveillance
measures. The Union asked why they wanted this now in
view of the fact those measures had not been taken in the
past. Respondent said they had had the right to do that in
the past but the law said these matters must be negotiated
185SOUTH CAROLINA BAPTIST MINISTRIES
and Respondent wanted to have these rights included in the
contract or in a side letter.
The management-rights proposal of Respondent was again
discussed and particularly Respondent’s desire for the right
to discipline employees for off-work activities. Respondent
explained that they wanted the right to discipline someone
even if that person was found not guilty of the allegations,
in a court of law. Respondent also contended they wanted
the right to take action against an employee if a patient com-
plained about the employee even if the patient was confused
and the patient’s accusation was false.
As shown above, I find that Respondent declared an im-
passe prematurely on September 13, 1990.
The November 21, 1990 session was also significant in
considering General Counsel’s contention of bad-faith bar-
gaining, in that session Respondent advised the Union that
they were unwilling to agree to any of the counterproposals
which the Union had included in their November 15 letter.
In a December 18, 1990 meeting, Respondent told the
Union they had no proposed changes in their previous posi-
tions.
On February 14, according to Eileen Hanson’s testimony:
[Respondent’s attorney] then outlined what he felt
were three (3) outstanding issues that were—where we
were still in disagreement.
. . . .
And those issues were the Pay Plan. He said that he
would recommend to his client our proposal about the
four (4) review periods with the three (3) to five (5)
percent merit raise. But that he could not imagine that
they would do the five (5) percent across the board
raise.
The second issue was Employment-at-Will and the
third issue was Arbitration. He said that his client was
not going to sign any contract that had arbitration in it.
. . . .
Well, Mr. Davis [Union] said if—we would consider
going with the Administrator if they would drop their
provision for Employment-at-Will. And that he thought
that Mr. Hendrix would be fair minded.
Mr. Gignilliat outlined two (2) issues then, that if
Bethea gave up employment-at-will, that—if the Em-
ployment-at-Will issue and the merit raise, the five (5)
percent. He also indicated that they had given a three
(3) percent merit raise to the non-bargaining unit em-
ployees at January 1, 1991. He said that he would still
be talking about a contract of one (1) year and that he
would have to deal with the finance committee.
Q. Did the Union agree with the Company’s—with
Mr. Gignilliat’s assessment that there were then just
two (2) issues between them?
A. We did not agree with that. He asked if we would
go—I’m sorry. The Union said that—he said he would
like a final proposal from the Union. And we said that
we would go through—that Mr. Davis and I would get
together and we would go through all the different Arti-
cles and provisions that we had agreed on and the
things that we had made movement on and things that
we had taken off the table. That we would work to get
up a final proposal and that we would get back with
them.
Q. When Mr. Davis indicated that the Union might
be willing to go along with the Administrator as the
final determiner of fact if the Company would drop the
Employment-at-Will provision was there any response
from the Union on that—uh, from the Company on
that?
A. They did not indicate that they were willing to do
that.
Q. Was that basically the end of that bargaining ses-
sion?
A. Yes.
Q. When was the next bargaining session?
A. That was the last bargaining session we had.
On February 18, 1991, Respondent’s attorney wrote the
Union and enclosed a copy of a contract which he stated he
would recommend to Respondent’s board of trustees. The
letter included a request that if the Union was willing to ac-
cept his proposed contract, objecting to only the employ-
ment-at-will language, the Union may strike that language
and state that their acceptance is conditioned on a 5-percent
pay raise effective retroactively on February 1, 1991.
Gignilliat mentioned in the letter that although settlement of
an ongoing lawsuit would not be part of the collective-bar-
gaining agreement, settlement of the lawsuit would affect the
voting of the trustees.
The contract enclosed in Gignilliat’s letter included a
broad managements-rights clause which continued to include,
among other things, the right of Respondent to hire and fire
without showing just cause (as noted above Respondent had
explained that the right to discharge included the right to dis-
charge an employee for activities at or away from work with-
out regard to whether that employee was found innocent in
a court of law); the right to select the number of employees
and increase or decrease that number; and, among other
things, the right to promulgate rules and regulations gov-
erning the conduct and acts of employees. Penciled in were
additional management rights as follows:
19. Change the terms of or to eliminate any working
conditions or fringe benefits not expressly provided for
in this agreement, including but not limited to annual
bonuses and the provision of free food and beverages
to employees.
20. Use leased employees, volunteers and/or non-bar-
gaining unit members to perform bargaining unit work.
Also included was a side letter which included the em-
ployment-at-will provision which was quoted earlier in this
decision, along with the employee integrity clause which
would give Respondent the right to monitor employee activi-
ties with television or film cameras, invisible dyes and pow-
ders, and to use polygraph and other deception devices.
The letter continued that Gignilliat would recommend that
contract to the trustees but he felt they would not agree to
any pay increase over what the nonunit employees had re-
ceived.
On May 3, Respondent wrote the Union:
This is in response to your letter dated May 1, 1991.
At the close of our last bargaining session on February
14 of this year, I understood Ed Davis to have made
a proposal from the union which substantially narrowed
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the issues which separated us. A few days later, I wrote
Ed a letter which represented the final offer which
Bethea would make but in which I indicated to him that
if the union made a counterproposal along certain spec-
ified lines, I would advise my client’s board of trustees
to make a change in its position which would achieve
a contract. Several weeks later, Ed asked me to meet
him and union president Muncus for lunch to discuss
a contract. Our meeting was congenial, but Mr. Muncus
returned to a position which was further away than the
last position which Ed Davis had taken.
You have our final offer. We are at an impasse and
further meetings will accomplish nothing. For that rea-
son, Bethea declines to negotiate further unless and
until the union agrees to the terms set forth in my last
letter to Ed Davis.
Bethea’s position regarding further negotiations is
not a withdrawal of recognition. You have asked for
copies of nursing and dietary schedules from March
18th to the present and they will be provided to you.
We will provide future schedules in response to your
written requests.
You have also asked for a list of new hires, includ-
ing dates of hire, part-time and full-time status, rate of
pay, job classification and address. It will be provided,
as will be a list of terminations since the last list given
to you.
You have asked that Patricia Harrison and Patricia
Kelly be given full-time status immediately. That re-
quest is denied. Patricia Harrison was given full-time
status several months ago but found that she continued
to be unable to work night shifts. Unless and until she
demonstrates persuasively that she is actually able to
work night shifts on a regular basis, she will not be
considered for full-time status. As you have previously
been told, Patricia Kelly was considered and rejected
for full-time status because of her atrocious record of
attendance. Shortly after her recent direct request for
full-time status she was observed sleeping at work. Ms.
Kelly will not be considered again for full-time status
unless and until she demonstrates reliability by a pro-
longed period of time without absences and without in-
attention to her duties when she is at work.
Respondent’s attorney and chief spokesperson Gignilliat
testified that during the April meeting which he attended
with Ed Davis from the Union and Local Union President
Tony Muncus, Muncus stated it was the Union’s position
that they would not sign a contract that did not contain a
clause limiting discipline to just cause and containing an ar-
bitration clause. Gignilliat responded that the parties were
further apart in that case because Respondent was not going
to sign a contract that contained that language.
In considering allegations of bad-faith bargaining, the
Board examines the content and reasonableness of a party’s
contract proposals to determine whether they were advanced
with an open mind or with intent to frustrate agreement.
Harrah’s Marina, 296 NLRB 1116 (1989); NLRB v. Wright
Motors, 603 F.2d 604 (7th Cir. 1979); A-1 King Size Sand-
wiches, 265 NLRB 850 (1984), enfd. 732 F.2d 872 (11th Cir.
1984), cert. denied 469 U.S. 1035 (1985).
In Harrah’s Marina, supra, Administrative Law Judge
Giannasi wrote:
The Board, with court approval, has consistently
found unlawful an employer’s rigid and uncompro-
mising attempt in bargaining to retain unilateral control
over wages. See A-1 King Size Sandwiches, supra, 265
NLRB at 857–861; Tex-Tan Welhausen Co., 172 NLRB
851, 879–880 (1968), enfd. 419 F.2d 1265 (5th Cir.
1969); Alba-Waldensian, Inc., 167 NLRB 695, 696
(1967), enfd. 404 F.2d 1265 (4th Cir. 1968). See also
A. H. Belo Corp. v. NLRB, 411 F.2d 959, 968 (5th Cir.
1969), cert. denied 396 U.S. 1007 (1970). An employ-
er’s conduct in this respect not only precludes bar-
gaining on the most important issue in negotiations, but
it renders bargaining a pretense. Employees would be
better off without a contract for the statute itself pre-
cludes unilateral action in the absence of a legitimate
impasse after good-faith bargaining. But a clause such
as that herein would permit unilateral action on wages
that would be prohibited absent a contract. See Eastern
Maine, supra, 253 NLRB at 246, and cases there cited;
and Reichhold Chemicals, [288 NLRB 69] discussing
A-1 King Size Sandwiches, supra.
Here, Respondent did not take the adamant position taken
by Harrah’s Marina by insisting on retaining unilateral con-
trol over wages but Respondent continually insisted on re-
taining unilateral control over the size and use of the bar-
gaining unit employees; unilateral control over disciplinary
action including discharges and unilateral control over em-
ployees’ activities both at and away from work without re-
gard to whether allegations against employees were dis-
proved in a court of law. As in Marina, Respondent here by
its continual position in bargaining, and by its illegal unilat-
eral changes in working conditions noted below, rendered
bargaining a pretense. Its employees would have been better
off without a contract than they would have been under the
contract proposed by Respondent because the ‘‘statute itself
precludes unilateral action in the absence of a legitimate im-
passe after good-faith bargaining.’’ And the statute itself pro-
vides better recourse to grievance practices than that pro-
posed by Respondent.
Despite Respondent’s insistance on ultimate control over
working conditions, it appeared that the parties approached
agreement on February 14, 1991. However, even then the
Respondent did not relax its insistence on unilateral control
over its employees’ working conditions. It did hold out the
possibility that if the Union was willing to accept all its pro-
posals and the parties could agree on wages, then it may
consider dropping its employment-at-will provision. Never-
theless, Respondent never did specifically offer to relax em-
ployment at will.
As stated in A-1 King Size Sandwiches, Inc., 265 NLRB
850, 860–861 (1982):
In the instant case, as in Wright Motors, Respond-
ent’s proposals, if accepted, would have left the Union
and the employees with substantially less rights and
protection than they would have had if they had relied
solely upon the certification. Without agreeing to Re-
spondent’s proposal, the Union had the right to prior
notice and bargaining concerning all changes or modi-
187SOUTH CAROLINA BAPTIST MINISTRIES
fications in terms and conditions of employment and it
retained the right to strike in protest of such actions and
in protest of conduct violative of the employees’ other
legal rights. Acceptance of Respondent’s proposal
would have denied the Union even of the right to notice
concerning such fundamental matters as the elimination
of some or all of the unit jobs. Could sophisticated
counsel have any reasonable expectation of agreement
to proposals which would delete those rights, particu-
larly when there was not even the offer to maintain the
status quo in regard to existing working conditions? I
do not believe so and I must therefore conclude that
Respondent intended ‘‘to frustrate and insure the failure
of the collective-bargaining process.’’
I find that Respondent engaged in bad-faith bargaining.
Unilaterally Changed Working Conditions
General Counsel argued that no legally cognizable impasse
existed when Respondent declared an impasse on September
13, 1990, and again on May 3, 1991. Shipbuilders v. NLRB,
320 F.2d 615 (3d Cir. 1963); Massillon Community Hospital,
282 NLRB 675 (1987).
Respondent defended against this overall allegations on the
grounds there was an impasse in negotiations and that the ac-
tual unilateral changes were changes it had proposed during
negotiations.
Withheld Wage Increases
Shirley Murray who has worked for Respondent for 24
years testified that for approximately 15 years before 1990,
Respondent granted the employees a pay increase each Janu-
ary. She testified that she did not receive an increase in 1990
after the Union was elected.
Carol Bishop testified that Respondent’s employees rou-
tinely received a wage rate increase during January of each
year until after the union campaign in 1989. Since that time
the employees did not receive a wage increase in 1990 or
1991.
Bishop, who is on the Union’s negotiating committee, tes-
tified that Respondent did not mention any changes in its
policy regarding annual raises during negotiations.
Carolyn McPhail testified that their last pay increase was
in January 1989 and that she was increased from $3.35 to
$3.50 per hour.
Nurses Aide Emma Ford testified that the aides have re-
ceived a raise every year since she started working for Re-
spondent in 1974 except for the last 2 years. Ford testified
that Respondent has not granted wage increases in 1990 and
1991.
Business Agent Hanson testified that the Union was told
during the first negotiating session that Respondent generally
granted their raises to employees on the first of the year and
that raises were voted on by Respondent’s board of directors.
Additionally, the testimony of Eileen Hanson illustrated
that the matter of 1990 and 1991 wage increases for unit em-
ployees was discussed during negotiating sessions and Re-
spondent did not dispute the Union’s statements that unit em-
ployees had not received their customary wage increases in
January 1990 and 1991.
The evidence illustrated that during the January 18, 1990
bargaining session the Union asked if Respondent had given
a raise to anyone in the bargaining unit and Respondent re-
plied no. The Union said they would propose a wage in-
crease for unit employee for 1990 during the next negotiating
session. Respondent said they would agree only as part of
the entire contract but that they were willing to discuss the
matter during the next session.
Respondent does not dispute that it did withhold a wage
increase for unit employees in January 1990 and January
1991, while its nonunit employees were granted wage in-
creases on those occasions or that it withheld those increases
without having reached an impasse in negotiations. Respond-
ent argues that it had proposed a formal pay plan in Sep-
tember 1989 negotiations with the Union and that it would
have been inconsistent with that proposal for it to grant wage
increases to unit employees in 1990 and 1991. Respondent
cited McGraw Edison Co., 172 NLRB 1604 (1968); Postal
Service, 261 NLRB 505 (1982).
General Counsel, in arguing that Respondent unilaterally
changed its practice without bargaining about the change
pointed out that Respondent’s September 1989 contract pro-
posal included minimum and maximum pay rates for unit po-
sitions and increases not to exceed 3 percent annually based
on merit.
General Counsel argued that the record established that it
was Respondent’s regular practice of several years standing
to grant all employees annual wage increases and, by failing
to do so in 1990 and 1991 Respondent violated Section
8(a)(5) of the Act. General Counsel cited Guy Gannett Pub-
lishing Co., 295 NLRB 376 (1987); Carolina Steel Corp.,
296 NLRB 1279 (1989); Rocky Mountain Hospital, 289
NLRB 1347 (1988); Uarco Inc., 283 NLRB 299 (1987);
Southeastern Michigan Gas Co., 198 NLRB 1221 (1972);
Gas Machinery Co., 221 NLRB 862 (1975); Allied Products
Corp., 218 NLRB 1246, 1252–1253 (1975).
Additionally, General Counsel argued that Respondent’s
action in withholding the wage increases violated Section
8(a)(3) of the Act because it was taken because its employ-
ees selected the Union.
Findings
The record supports General Counsel. Respondent had an
established long standing practice of granting annual wage
increases to its employees during January of each year. In
1990 and 1991, Respondent unilaterally withheld a wage in-
crease for bargaining unit employees even though it granted
its customary wage increase to its nonunit employees.
As shown in the above cases cited by General Counsel,
the Board had long held that an employer may not unilater-
ally change its established practices without bargaining to a
contract or to impasse. Here, there was no question of im-
passe. Respondent withheld wage increases in 1990 and 1991
without regard to whether there was an impasse and, in fact,
there was no impasse, and, Respondent did not negotiate re-
garding its actions prior to January 1990 or January 1991.
The cases cited by Respondent do not support a contrary
finding. In McGraw Edison the Board found a violation
where the employer unilaterally changed incentive wage rates
and in Postal Service the Board found the employer acted in
accord with established practice by randomly granting wage
increases to nonunit employees.
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I find that Respondent engaged in conduct violative of the
Act by withholding wage increases from employees rep-
resented by the Union in January 1990 and January 1991.
Changed Pay Periods (Around September 13, 1990)
In a September 13, 1990 letter to the Union Respondent’s
attorney advised the Union of the following:
Whether we have an agreement or not, or prior to
entering into one, there are certain changes and condi-
tions which we have proposed to the union and which
we have now decided to put into effect. the first of
these is to go to a bi-weekly pay day. This is a change
which had been planned last summer but which was
shelved because of the election petition. I enclose a
memo to employees which explains the details of the
change.
Julian Gignilliat admitted that Respondent did change its
pay periods from payment each week to payment every other
week.
Findings
As discussed above, I find that Respondent engaged in il-
legal activity by declaring an impasse on September 13,
1990. An employer may not legally implement unilateral
changes in working conditions without negotiating to con-
tract or impasse, regarding those changes. Here, that did not
occur.
Installed Timeclocks for Employees
Respondent’s attorney continued in his September 13 letter
to the Union:
We are ‘‘moving forward’’ with the purchase of
timeclocks, which is another change planned prior to
the petition being filed. I do not know when the
clock(s) will be purchased, but it should be soon. This,
too, I think is in the mutual interest of the employees
and Bethea.
Julian Gignilliat testified that Respondent did not actually
install timeclocks until later after the Union informed Re-
spondent that they wanted them to install the timeclocks.
Findings
Counsel for Respondent moved to dismiss the allegation of
unilateral installation of timeclocks on the grounds there had
been no evidence introduced other than to show there had
been agreement on the installation of timeclocks. General
Counsel argued in opposition to that motion, that the record
supported the allegation. In that regard General Counsel re-
ferred to Respondent’s letter declaring an impasse as evi-
dence of this particular allegation.
As shown above, the portion of that letter which refers to
timeclocks does not actually illustrate a unilateral change in
working conditions. What the letter indicates is that Re-
spondent is moving forward with the purchase of timeclocks
and that the date of the purchase of the timeclocks is un-
known.
I am not convinced that illustrates a unilateral change in
working conditions. In fact if the letter had included a date
certain for the purchase of timeclocks it is doubtful that
would constitute an unilateral change absent some showing
of action in installing and putting into effect the timeclocks.
Nothing is said in the letter regarding either installation or
effective date of the implementation of a timeclock system.
Therefore, I agree with Respondent and grant the motion to
dismiss this allegation.
Eliminated Perfect Attendance Bonus
The September 13 letter from Respondent’s attorney in-
cluded:
The perfect attendance bonus day off is eliminated
effective immediately.
Julian Gignilliat admitted that Respondent did eliminate
the perfect attendance bonus. After the Union brought the
perfect attendance policy to Respondent’s attention, Respond-
ent researched the question and discovered the bonus had
never been paid. However, at that point Respondent paid
those employees that had qualified with perfect attendance.
It was that short-lived practice that Respondent eliminated on
September 13, 1990.
Findings
As discussed above, I find that Respondent engaged in il-
legal activity by declaring an impasse on September 13,
1990. An employer may not legally implement unilateral
changes in working conditions without negotiating to con-
tract or impasse, regarding those changes. Here, that did not
occur.
Despite the fact that Respondent’s practice was short-lived,
the record does show that was an established practice and the
change does support the finding of a violation.
Changed Sick Leave Payment Policy
As above, the following was included in Respondent’s at-
torney’s September 13 letter:
Effective October 1, we will begin paying sick leave
on the second and subsequent consecutive days of each
absence because of sickness and we may require a phy-
sician’s statement before making sick leave payments.
Julian Gignilliat testified that the change in sick leave pay-
ment was never implemented.
Findings
As discussed above, I find that Respondent engaged in il-
legal activity by declaring an impasse on September 13,
1990. An employer may not legally implement unilateral
changes in working conditions without negotiating to con-
tract or impasse, regarding those changes. Here, that did not
occur.
Despite the fact that the record through the testimony of
Julian Gignilliat which I credit, shows that this change was
not actually implemented, Respondent announced to its em-
ployees that it was being implemented. That announcement
constitutes a change in policy which must be remedied. I
find that Respondent engaged in an illegal unilateral change
in policy by announcing a change in its sick payment prac-
tice.
189SOUTH CAROLINA BAPTIST MINISTRIES
Changed Full-Time Status, Sick Leave, and Vacation
Benefits for Certain Employees
The September 13 letter from Respondent’s attorney in-
cluded:
Effective October 1, 1990, employees must regularly
work five days (37 1/2 hours) per week or ten days/75
hours biweekly to be eligible for full time status and
full time employee benefits. The immediate significance
of this change is that Bethea will no longer pay for
health insurance coverage of a small number (a half
dozen or less) of employees who presently work only
4 days a week (30 hours). These employees will still
have whatever remains of their sick leave and vacation
from its accrual January 1, 1990, but will not earn addi-
tional sick leave and vacation on January 1, 1991. Nor
will they be eligible for holidays after October 1, 1990.
If these employees wish, we will attempt to maintain
their full time status by offering them an additional day
of work each week, although not necessarily on the
same shift or in the exact same job.
Julian Gignilliat testified that the change in full-time sta-
tus, sick leave, and vacation benefits was never implemented.
Findings
As discussed above, I find that Respondent declared an
impasse prematurely September 13, 1990.
Despite the fact that the record through the testimony of
Julian Gignilliat, which I credit, shows that this change was
not actually implemented, Respondent announced to its em-
ployees that it was being implemented. That announcement
constitutes a change in policy which must be remedied. I
find that Respondent engaged in an illegal unilateral change
in policy by announcing a change in its sick payment prac-
tice.
Announced Future Implementation of Revised but
Unspecified Work Rules
The September 13 letter from Respondent’s attorney in-
cluded:
We are investigating the purchase of video cameras,
etc., but will notify you before they are installed, as-
suming that a decision is made to install them.
We are in the process of revision work rules, but
will send you a copy before they are announced to the
employees.
Julian Gignilliat testified that Respondent never has writ-
ten up revised work rules despite his comments in the Sep-
tember 13 letter.
Findings
I see nothing here which constitutes an actual change in
working conditions or a notice of change. Therefore, I find
that the record does not support a finding of a violation in
this instance.
Changed Health Insurance Coverage
As shown above, Respondent’s attorney included the fol-
lowing in his September 13 letter:
Effective October 1, 1990, employees must regularly
work five days (37 1/2 hours) per week or ten days/75
hours biweekly to be eligible for full time status and
full time employee benefits. The immediate significance
of this change is that Bethea will no longer pay for
health insurance coverage of a small number (a half
dozen or less) of employees who presently work only
4 days a week (30 hours). These employees will still
have whatever remains of their sick leave and vacation
from its accrual January 1, 1990, but will not earn addi-
tional sick leave and vacation on January 1, 1991. Nor
will they be eligible for holidays after October 1, 1990.
If these employees wish, we will attempt to maintain
their full time status by offering them an additional day
of work each week, although not necessarily on the
same shift or in the exact same job.
Julian Gignilliat testified that there was no actual change
made in health care coverage despite the above comments in
his letter.
Findings
Despite the fact that the record shows that this change was
not actually implemented, Respondent announced to its em-
ployees by notice to the Union, that it was being imple-
mented. That announcement constitutes a change in policy
which must be remedied. I find that Respondent engaged in
a illegal unilateral change in policy.
Implemented Merit Wage Increase on October 29, 1990
As shown above, on October 29 Respondent’s new admin-
istrator, Ronald Hendrix, posted a memo to employees. That
memo included the following paragraph:
In order to reduce conflict, I have recommended to
the Board of Trustees, and the Board has agreed, that
one of the several lawsuits involving our employees be
settled. This means that we will put into effect a new
pay plan which combines the principles of guaranteed
rates of pay based upon length of service and qualifica-
tions with the opportunity to earn higher rates of pay
based on merit. Since I am new here, I have decided
that all employees who were employed on January 1,
1990, and have not received a wage increase of three
percent since December 15, 1989, merit an increase of
at least three percent or of whatever amount is nec-
essary to bring their total 1990 increases up to a three
percent raise over their December 15, 1989 rates. These
increases will go into effect October 29, 1990.
Respondent Attorney Gignilliat testified that Respondent
did implement a pay increase that amounted to what the em-
ployees would have received had they received a 3-percent
increase on January 4, 1990. That included implementing the
pay plan proposed to the Union which included minimums
according to job classifications and length of service and, as
a result, some employees received pay increases in excess of
3 percent.
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union complained, according to Gignilliat, that some
employees were not properly increased in pay in accord with
their pay classification or length of service, and, in those in-
stances, the matters were corrected.
Findings
As discussed above, I find that Respondent engaged in il-
legal activity by declaring an impasse on September 13,
1990. An employer may not legally implement unilateral
changes in working conditions without negotiating to con-
tract or impasse, regarding those changes. Here, that did not
occur.
Required Nurses Assistants to Work all Three Shifts in
Order to Qualify as Full-Time Employee on or About
December 18, 1990
As shown above, Eileen Hanson testified that Respondent
gave the Union copies of some postings for jobs during the
December 18 negotiating session. One of those postings was
for nurses assistants and that posting indicated that in order
to qualify for full-time status the applicant must work all
three shifts. Hanson testified that was the first time the
Union was advised of that was Respondent’s policy at that
time.
Director of Nurses Matthews had posted a notice of full-
time vacancies for nurses assistants on November 21, 1990:
Two (2) additional full time Nursing Assistant posi-
tions will be filled January 1, 1991. These positions
will require that the Nursing Assistant work all three
shifts as assigned. Interested Nursing Assistants should
apply in writing to me by November 28, 1990.
The employees who are given full time status must
work their scheduled hours beginning immediately. If
the scheduled hours are not worked, the employee will
be returned to part time status and will lose full time
benefits and someone else will be changed to full time
status.
Matthews admitted that she was unaware of any prior in-
stance where it had posted those requirements for full-time
nurses assistants positions.
Findings
Unlike the situation regarding other unilateral changes,
there was no evidence that Respondent brought this matter
to the Union’s attention until after the change had been im-
plemented. As shown above, the Union was given the job
posting on December 18, 1990, after it had been posted for
the employees on November 21, 1990.
Therefore, regardless of the issue of impasse, the evidence
supports the finding of a violation as to this issue. The
record, including evidence mentioned above regarding Patri-
cia Harrison, illustrated that Respondent had changed its pol-
icy as to new hires and, according to Director of Nursing
McIntyre, to others on a descending seniority scale, regard-
ing assignments. Nurses were frequently assigned shifts other
than what they considered their regular shift. However, there
was no showing of specific requirements for hire, or restora-
tion of full-time status, until the above posting.
I find that Respondent engaged in an 8(a)(5) violation by
unilaterally changing its requirements for an employee to be
employed as a full-time nursing assistant.
Refused to Meet and Bargain Since May 3, 1991
As shown above on May 3, Respondent wrote the Union:
This is in response to your letter dated May 1, 1991.
At the close of our last bargaining session on February
14 of this year, I understood Ed Davis to have made
a proposal from the union which substantially narrowed
the issues which separated us. A few days later, I wrote
Ed a letter which represented the final offer which
Bethea would make but in which I indicated to him that
if the union made a counterproposal along certain spec-
ified lines, I would advise my client’s board of trustees
to make a change in its position which would achieve
a contract. Several weeks later, Ed asked me to meet
him and union president Muncus for lunch to discuss
a contract. Our meeting was congenial, but Mr. Muncus
returned to a position which was further away than the
last position which Ed Davis had taken.
You have our final offer. We are at an impasse and
further meetings will accomplish nothing. For that rea-
son, Bethea declines to negotiate further unless and
until the union agrees to the terms set forth in my last
letter to Ed Davis.
Bethea’s position regarding further negotiations is
not a withdrawal of recognition.
Respondent argues that it was correct, the parties were at
impasse, and further bargaining was futile. It cited NLRB v.
Big Three Industries, 497 F.2d 43 at 48 (9th Cir. 1974);
NLRB v. Tomco Communications, 567 F.2d 871 at 881 (9th
Cir. 1978); L. W. LeFort Co., 290 NLRB 344 (1988).
Findings
As discussed above, I find that Respondent has engaged
in bad-faith bargaining and illegal unilateral changes in
working conditions. In view of those findings, I also find that
Respondent’s refusal to continue to meet and negotiate with
the Union, constitutes an additional violation of Section
8(a)(1) and (5) of the Act.
Since May 1, 1990, Refused to Provide the
Union Access
Union Business Agent Eileen Hanson testified that Re-
spondent has continually denied the Union access to the
home even though the Union requested access for the pur-
pose of investigating an incident which led to a grievance.
The Union grieved over the discharge of Mildred Bruce.
Respondent accused Bruce with stealing milk and cake. Han-
son spoke to Administrator Horace Hawes about the griev-
ance on May 1, 1990. Hawes told Hanson that the allegedly
stolen items were found in Bruce’s locker in Respondent’s
dietary locker room. Hanson asked Hawes if she could go
down to the dietary and look at the area in investigating the
grievance. Hawes told Hanson that he could not do that at
that time but that he would get in touch with her.
At that time the Union did not have a steward present in
the dietary area and other stewards were not permitted in that
area of Respondent’s facility.
191SOUTH CAROLINA BAPTIST MINISTRIES
Subsequently Hanson renewed her request for access to
the locker area during a phone conversation with Respond-
ent’s attorney. The attorney told Hanson that he would do
everything legally possible to keep her from viewing the
locker area. Respondent has continued to deny the Union ac-
cess to the locker area despite the fact that the Union has
written Respondent renewing its request.
According to Hanson, she told Respondent that she needed
to view the locker area to investigate the possibility that the
allegedly stolen items had been planted in Mildred Bruce’s
locker. It was Hanson’s understanding that the lockers were
left unlocked. Hanson also needed to check where the food
items were normally stored.
Respondent took the position that it recognized there was
a possibility that the food could have been planted in Bruce’s
locker.
In that regard, Respondent cited a paragraph of its letter
to the Union denying the Union access:
The only reason (Administrator) Hawes called Ms.
Bruce to his office (with Carol Bishop as union rep-
resentative) to discuss the matter was because of the
possibility that the goods had been planted in that lock-
er. In other words, Ms. Bruce was interviewed by Mr.
Hawes because the goods were in her locker. She was
discharged because her statements, omissions, and ac-
tions during that interview convinced Mr. Hawes that
she had, in fact, put the goods in that locker.
Therefore, Respondent argued that Union access was irrel-
evant to the grievance. Despite Respondent’s argument that
it recognized the possibility of a plant, it decided to termi-
nate Bruce on the grounds she had stolen food.
Respondent also pointed out in its letter to the Union that
one of the Union’s committee members worked in the dietary
department and was familiar with the area. It developed that
Respondent was in error as to that point. That person was
off work due to a disability.
Respondent nevertheless, in its brief, argued that the com-
mittee member could have supplied information regarding
the dietary department from her home.
Findings
General Counsel cited National Broadcasting Co., 276
NLRB 118 (1985); Holyoke Water Power Co., 273 NLRB
1369 (1985), in arguing that the Union was entitled to access
and view the dietary area pursuant to their request.
The Board held in Holyoke Water Power Co., 273 NLRB
1369 (1985), that in cases involving a union’s request for ac-
cess to an employer’s premises for informational purposes, it
will apply a balancing test, derived from NLRB v. Babcock
& Wilcox Co., which seeks to accommodate both the em-
ployer’s common law right to control its property and the
employees’ statutory right to proper representation by their
union. In Holyoke, the Board stated that this balancing test
applies as follows:
Where it is found that responsible representation of em-
ployees can be achieved only by the union’s having ac-
cess to the employer’s premises, the employer’s prop-
erty rights must yield to the extent necessary to achieve
this end. However, the access ordered must be limited
to reasonable periods so that the union can fulfill its
representation duties without unwarranted interruption
of the employer’s operations. On the other hand, where
it is found that a union can effectively represent em-
ployees through some alternative means other than by
entering on the employer’s premises, the employer’s
property rights will predominate, and the union must
properly be denied access. National Broadcasting Co.,
276 NLRB 118 (1985).
I am convinced that responsible representation of the em-
ployees can be achieved only by the Union having access in
this case. Although Respondent contended that it recognized
the possiblily of a plant in Bruce’s locker, it did not accept
that a plant actually occurred. Indeed Respondent decided, on
the basis of the administrator’s interview with Bruce, that no
plant had occurred.
Perhaps the administrator was correct. However, the
Union, by being denied the right to view the area and con-
sider for itself the opportunities for a plant, was left in a po-
sition of being handicapped in arguing the point.
Moreover, it is apparent that no alternative approach to
this matter would have given the Union full opportunity to
investigate the incident.
Therefore, I agree with General Counsel and find that Re-
spondent engaged in conduct violative of the Act by denying
the Union access.
Respondent may not, by simply announcing that it under-
stands there is a possibility that food was planted in Bruce’s
locker, foreclose the possibility that the Union may be able
to support that possibility with evidence gained by viewing
the premises.
From May 1, 1991, to June 17, 1991, Refused to
Supply the Union with Requested Information Which
was Relevant
On May 1, the Union wrote Respondent asking for a meet-
ing on May 15 and for a list of new hires and relevant infor-
mation regarding those hires. Eileen Hanson testified that the
Union did not receive that information on new hires until the
middle of June after they made a second request.
Julian Gignilliat admitted there was a delay in supplying
information to the Union after the Union made a request.
Gignilliat relayed the request to the home and, apparently,
the administrator simply forgot the request.
General Counsel cited Timkin Roller Bearing, 138 NLRB
15 (1962), enfd. 325 F.2d 746 (19 ); DePalma Printing Co.,
204 NLRB 31, 33 (1973); Pennco, Inc., 212 NLRB 677
(1974); Safeway Stores, 252 NLRB 682 (1980), in arguing
that Respondent engaged in illegal activity by delaying pro-
duction of the requested information.
Findings
Perhaps, as Respondent argues, this is a technical allega-
tion. However, despite the possibility that Respondent may
be innocent of any actual intent and may have, in fact, sim-
ply temporarily overlooked the Union’s request, the Union is
entitled to compliance with its request for relevant informa-
tion in a timely manner. Here, that did not occur. I find that
Respondent violated Section 8(a)(1) and (5) by failing to
supply the requested information in a timely fashion.
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Bethea Baptist Home, a Division of South Carolina
Baptist Ministries for the Aging, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Food and Commercial Workers Union Local
204, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent by threatening its employees with loss of
benefits; by threatening its employees with loss of jobs; by
threatening its employees with more strict enforcement of
work rules; by coercively interrogating its employees; and by
threatening its employees with unspecified reprisals because
of the activities on behalf of United Food and Commercial
Workers Union Local 204, AFL–CIO, a labor organization,
Respondent has engaged in conduct in violation of Section
8(a)(1) of the Act.
4. Respondent, by issuing disciplinary warnings to its em-
ployee Carol Bishop on two occasions; by changing the na-
ture of Carol Bishop’s work duties on three occasions; by re-
fusing to accord its employee Patricia Harrison full-time sta-
tus; by suspending and discharging its employee Robert
Dargan; and by changing the requirements for employees to
qualify as full-time employees by working more than one
shift; because of its employees’ activities on behalf of United
Food and Commercial Workers Union Local 204, AFL–CIO,
has violated Section 8(a)(1) and (3) of the Act.
5. United Food and Commercial Workers Union Local
204, AFL–CIO has been at times material, the exclusive rep-
resentative for the purposes of collective bargaining of the
following employees:
All service and maintenance employees, including all
regularly scheduled non-professional employees, includ-
ing nursing assistants, orderlies, couriers, activities as-
sistants, dietary employees, housekeeping and laundry
employees, ward secretaries and groundsmen employed
by the Respondent at its Darlington, South Carolina fa-
cility located at 3500 S. Main Street but excluding all
office clerical employees, registered nurses, licensed
practical nurses, professional and technical employees,
painters, independent contractors, department heads,
temporary, casual and on-call employees, guards and
supervisors as defined in the Act.
6. By bargaining with United Food and Commercial
Workers Union Local 204, AFL–CIO with no intention of
reaching agreement, Respondent has violated Section 8(a)(1)
and (5) of the Act.
7. By unilaterally implementing changes in working condi-
tions of employees in the above-described bargaining unit by
failing and refusing to grant bargaining unit employees pay
increases in accord with established practice on January 1990
and on January 1991; by changing its employees pay peri-
ods; by eliminating its perfect attendance bonus; by changing
its sick leave payment practice; by changing full-time status
as to the number of hours of work required, sick leave, and
vacation benefits; by announcing future implementation of
revised work rules; by changing health insurance coverage
on September 13, 1990; by implementing a merit wage in-
crease on October 29, 1990; by changing its requirements as
to the number of shifts its employees must work in order to
qualify as full-time employees during December 1990; with-
out bargaining to an agreement, or to impasse, with United
Food and Commercial Workers Union, Respondent has vio-
lated Section 8(a)(1) and (5) of the Act.
8. By failing and refusing to furnish United Food and
Commercial Workers Union Local 204, AFL–CIO requested
information in a timely manner, which information was nec-
essary for the United Food and Commercial Workers Union
to fulfill its bargaining responsibilities, and by refusing the
provide the Union access to its facility in order to fully in-
vestigate a matter which resulted in disciplinary action
against a bargaining unit employee, Respondent violated Sec-
tion 8(a)(1) and (5) of the Act.
9. By failing and refusing to bargain with United Food and
Commercial Workers Union Local 204, AFL–CIO as exclu-
sive collective-bargaining representative of the above-de-
scribed bargaining unit of employees, Respondent has en-
gaged in conduct violative of Section 8(a)(1) and (5) of the
Act.
10. Respondent by refusing to meet and negotiate with the
above-mentioned Union, pursuant to the Union’s request,
since May 3, 1991, has engaged in conduct violative of Sec-
tion 8(a)(1) and (5) of the Act.
11. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent has illegally suspended and
discharged its employee Robert Dargan and has illegally re-
fused to accord full-time employee status to its employee Pa-
tricia Harrison in violation of sections of the Act, I shall
order Respondent to offer Dargan immediate and full rein-
statement to his former position, or, if that position no longer
exists, to a substantially equivalent position, and to imme-
diately place Harrison in a full-time nurses assistant position,
without prejudice to their seniority or other rights and privi-
leges. I further order Respondent to make Dargan and Har-
rison whole for any loss of earnings and loss caused by loss
of benefits, they suffered as a result of the discrimination
against them and that Respondent remove from its records
any reference to the unlawful actions against its employees
Dargan, Harrison, and Carol Bishop and notify Dargan, Har-
rison, and Bishop in writing that Respondent’s unlawful con-
duct will not be used as a basis for further personnel action.
Backpay shall be computed as described in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as described in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
As I have found that Respondent engaged in illegal activ-
ity by unlawfully bargaining in bad faith with United Food
and Commercial Workers Union Local 204, AFL–CIO with
no intention of reaching a collective-bargaining agreement,
by unilaterally implementing changes in working conditions
when it had not bargained to impasse; by denying the Union
access to its facility for the purpose of investigating an inci-
dent which led to disciplinary action against a bargaining
unit employee, and by refusing to supply United Food and
Commercial Workers Union with relevant information nec-
essary to United Food and Commercial Workers Union’s
193SOUTH CAROLINA BAPTIST MINISTRIES
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
3 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
bargaining responsibilities in a timely fashion, I shall rec-
ommend that Respondent be ordered to restore terms and
conditions of work for bargaining unit employees to the sta-
tus quo of August 11, 1989, and that it grant increased wages
which were illegally withheld from bargaining unit employ-
ees in 1990 and 1991; that on request, it permit the Union
access to its facility for the purpose of investigating discipli-
nary action taken against a bargaining unit employee; that it
supply United Food and Commercial Workers Union with in-
formation relevant to United Food and Commercial Workers
Union’s bargaining responsibility; and on request, bargain in
good faith with United Food and Commercial Workers
Union. It appears that the remedy may include make-whole
requirements resulting from Respondent’s illegal implementa-
tion of its final order. Storer Communications, 294 NLRB
1056 (1989). If necessary, the extent of Respondent’s make-
whole obligation should be set through compliance pro-
ceedings.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Bethea Baptist Home, a Division of
South Carolina Baptist Ministries for the Aging, Inc., Dar-
lington, South Carolina, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Engaging in conduct in violation of Section 8(a)(1) of
the Act by threatening its employees with loss of benefits;
loss of jobs and more strict enforcement of work rules; by
coercively interrogating its employees about their union ac-
tivities; and by threatening its employees with unspecified re-
prisals because of its employees’ union activities.
(b) Discharging, suspending, refusing to accord employees
full-time status, and issuing warnings to its employees be-
cause of their protected activities.
(c) Refusing to bargain with United Food and Commercial
Workers Union Local 204, AFL–CIO as the duly designated
representative of a majority of its employees in the bar-
gaining unit appropriate for purposes of collective bargaining
within the meaning of Section (b) of the Act.
All service and maintenance employees, including all
regularly scheduled non-professional employees, includ-
ing nursing assistants, orderlies, couriers, activities as-
sistants, dietary employees, housekeeping and laundry
employees, ward secretaries and groundsmen employed
by the Respondent at its Darlington, South Carolina fa-
cility located at 3500 S. Main Street but excluding all
office clerical employees, registered nurses, licensed
practical nurses, professional and technical employees,
painters, independent contractors, department heads,
temporary, casual and on-call employees, guards and
supervisors as defined in the Act.
(d) Unilaterally implementing terms and conditions of em-
ployment during the course of collective bargaining without
the parties having reached a genuine impasse.
(e) Refusing to provide access to its facilities and refusing
to timely furnish United Food and Commercial Workers
Union Local 204, AFL–CIO with information requested,
which is necessary for United Food and Commercial Work-
ers Union Local 204, AFL–CIO to perform its function as
a representative of employees in the above-described bar-
gaining unit.
(f) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Robert Dargan immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, and immediately restore Patricia
Harrison to a full-time position as nurses assistant, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make Dargan and Harrison whole
for any loss of earnings or loss caused by Harrison being il-
legally deprived of benefits, plus interest, they suffered by
reason of its illegal actions.
(b) Rescind its discharge, suspension, refusal to accord
full-time status, and illegal warnings issued to Robert
Dargan, Patricia Harrison, and Carol Bishop and remove
from its files any reference to its illegal actions and notify
each of those employees in writing that this has been done
and that evidence of its unlawful actions will not be used
against them in any way.
(c) On request, meet and bargain with United Food and
Commercial Workers Union Local 204, AFL–CIO, as the
duly designated representative of its employees in the above-
described appropriate unit.
(d) On request by United Food and Commercial Workers
Union Local 204, AFL–CIO revoke the unilateral changes in
the rates of pay, wages, and other terms and conditions of
employment that were placed into effect among employees in
the appropriate bargaining unit, until such time as the Re-
spondent negotiates with United Food and Commercial
Workers Union Local 204, AFL–CIO in good faith or an im-
passe in negotiations is reached.
(e) Furnish United Food and Commercial Workers Union
Local 204, AFL–CIO with the information requested and
provide the Union access to its facility, which is necessary
for United Food and Commercial Workers Union Local 204,
AFL–CIO to perform its function as a representative of em-
ployees in the above-described bargaining unit.
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, and timecards, personnel
records, reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Order.
(g) Post at its facility in Darlington, South Carolina, copies
of the attached notice marked ‘‘Appendix.’’3 Copies of the
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notice, on forms provided by the Regional Director for Re-
gion 11, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.