Southdown Care Center

National Labor Relations Board - Board Decisions

Apr 25, 1994

313 N.L.R.B. 1114 (N.L.R.B. 1994)

1114
313 NLRB No. 196
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On August 13, 1992, the Board issued a Decision and Order
granting motion to reopen record for further hearing at 308 NLRB
225.
2 The Charging Party has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
Southdown Care Center and Local 100 Service Em-
ployees International Union, AFL–CIO. Case
15–CA–11288
April 25, 1994
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On February 12, 1993, Administrative Law Judge
Richard J. Linton issued the attached supplemental de-
cision on remand.1 The Charging Party filed excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
the light of the exceptions and has decided to affirm
the judge’s rulings, findings,2 and conclusions and to
adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent Southdown Care Center,
Houma, Louisiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the complaint allega-
tions linked to the July 11, 1990 demonstration in the
residents’ sitting lounge are dismissed.
Keith R. Jewell, Esq., for the General Counsel.
Stephen D. Ridley, Esq. (McCalla, Thompson, Pyburn & Rid-
ley), of New Orleans, Louisiana, for Southdown.
Nina Schulman, Lead Organizer (Local 100), of Baton
Rouge, Louisiana, for the Charging Union.
SUPPLEMENTAL DECISION ON REMAND
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. The
Board remanded this case to hear the testimony of a recant-
ing witness, Della Landry. After hearing and considering
Landry’s new version, and disbelieving it, I reaffirm my
original decision.
The General Counsel advances a new and alternative the-
ory that the July 11, 1990 demonstration involved here was
protected conduct even if the demonstration was as loud and
threatening as I found in my original decision. That alter-
native legal theory is not available to the Government here
because, I find, the General Counsel (then represented by a
different trial attorney) waived it at the original hearing.
On August 13, 1992, the Board severed certain allegations
in this case and remanded them to me for further hearing.
308 NLRB 225, 227. These are the allegations which turn on
the disputed July 11, 1990 presentation/demonstration at
Southdown Care Center, a nursing home in Houma, Louisi-
ana. In my May 17, 1991 decision I largely credited the ver-
sion of Patricia Reed Fruge, Southdown’s administrator, over
that of the Government’s witnesses—employees of the nurs-
ing home—respecting the July 11 incident. I also credited
Della Landry, a Southdown resident whose testimony cor-
roborated that of Fruge. Based on these findings, I concluded
that the July 11 demonstration by the group of off-duty em-
ployees was unprotected, and I dismissed the complaint alle-
gations which rested on the General Counsel’s evidence that
the employee group calmly presented their petition and with-
out demonstration.
The facts are described in the underlying case, 308 NLRB
225, 226 (1992). Although I shall not repeat the description
here, the following excerpts from the Board’s opinion high-
light the event:
The Respondent operates a residential care and nurs-
ing home in Houma, Louisiana. In late June 1990, the
Respondent’s employees became involved in efforts to
unionize the facility. On July 11, 1990, a group of em-
ployees, with Tarshelda Green as their spokesperson,
presented Administrator Fruge with a petition. The peti-
tion listed assorted grievances and stated that the sign-
ers had formed a union and filed for a Board election.
Within days of this July 11 meeting, The Respondent
issued written warnings to six employees and dis-
charged eight employees at least in part because they
had participated in the presentation of this petition.
. . . .
As recognized by the judge, the threshold question to
determining whether the discharges and warnings were
unlawful is whether the employees were engaged in
protected concerted activity for which they were dis-
ciplined. The judge found that the employees’ activity
was not protected, and thus that the discipline and
warnings were not unlawful.
At around 3 p.m. on July 11, shift-change time at the
facility, the off-duty employees entered the nursing
home and met Fruge in a lounge area near the main en-
trance. Three or four of the home’s residents were also
present. The events surrounding the presentation of the
petition and the exit of the employees were recounted
by six employee witnesses, Fruge, and a resident who
had been in the lounge at the time, Della Landry. The
accounts of the General Counsel’s witnesses and the
Respondent’s witnesses differ.
[The Board then summarizes the testimony—the
General Counsel’s witnesses asserting that the employ-
ees were calm and orderly, and Fruge and Landry de-
scribing them as loud, disruptive, and threatening, with
Landry adding that the employee group was so situated
that Landry could not move her wheelchair.]
. . . .
1115SOUTHDOWN CARE CENTER
1 Exhibits are designated GCX for the Government’s and RX for
Respondent Southdown’s. Only two exhibits were received in the re-
opened hearing, and the number sequence was retained from the first
hearing.
2 References to the transcript are by volume and page. As noted
at footnote 3 of my original decision, the transcript of the original
hearing consists of two volumes. The reopened hearing lasted but
half a day, and I have marked the transcript of testimony for the re-
opened hearing as volume 3. (3:521.)
Although noting that the Respondent’s witnesses re-
sponded at length to excessively leading questions by
the Respondent’s counsel, and further discounting some
of Fruge’s testimony concerning the July 11 event as
exaggerated, the judge credited Fruge’s and Landry’s
version. He found that the employee group engaged in
a loud, mass demonstration lasting approximately 1
minute, in the presence of residents, and that they
blocked at least one resident. He concluded that an in-
ference could be drawn that the demonstration was rea-
sonably calculated to disturb and frighten the nursing
home residents. He further concluded that because of
the employees’ actions, particularly the noisy dem-
onstration after the presentation which made the resi-
dents frightened, confused, upset, and crying, the em-
ployees’ action was not protected under the Act. He
therefore dismissed the 8(a)(3) allegations concerning
the warnings and discharges. [Footnote 3 omitted.]
A month after my decision in this case, Della Landry gave
a seven-page affidavit (RX 18, dated June 18, 1991) to
NLRB Region 15.1 In her June 1991 affidavit, Landry re-
cants her sworn testimony at the February 1991 original
hearing, practically line by line. In the process of recanting,
Landry offered a new version, one which corroborates the
version given at the hearing by the Government’s witnesses.
Landry stated that she had lied at the hearing because she
‘‘felt that Patti Fruge would make it hard on me as a resident
if I did not say what I felt she wanted me to say,’’ (RX 18
at 6), and (RX 18 at 7) ‘‘because I was afraid of retaliation
by Fruge and Southdown management if I did not say what
they wanted. Now that I live in an apartment Fruge cannot
hurt me so it’s time to tell the truth.’’ A paraplegic, Landry
testified from her wheelchair, both at the original hearing and
at the reopened hearing.
By motion dated July 3, 1991, the General Counsel moved
to reopen the record and to remand the case for further hear-
ing based on Landry’s June 1991 affidavit, a copy of which
was attached to the motion.
Under established Board law, when newly discovered evi-
dence is presented showing perjury in the first hearing about
a material fact (that is, apparently affecting the outcome), the
Board reopens the record to receive the newly discovered
evidence so that the matter can be reevaluated. Southdown
Care Center, supra; Waterbed World, 301 NLRB 589 and fn.
5 (1991) (although the printed volume shows the publication
date as Jan. 5, 1990, that is the date of the JD; the slip opin-
ion dates the Board’s decision as Feb. 7, 1991); Kanakis Co.,
293 NLRB 435, 436 and fn. 11 (1989). As I noted, the
Board severed and remanded this issue.
I presided at the reopened trial in Houma, Louisiana, on
December 8, 1992. The General Counsel called Della Landry
and rested after she testified. (3:586.)2 Respondent
Southdown called three witnesses (Janie Boudreaux, David
Carlos, and Patricia Fruge) and rested. (3:621.) No rebuttal
was presented.
The General Counsel and Southdown have filed
posthearing briefs. I have considered the General Counsel’s
brief (received on the due date), but not Southdown’s be-
cause Company’s brief was filed untimely. The due date,
originally January 12, 1993 (3:622), was extended to the
close of business on Tuesday, January 26. Under the Board’s
Rules, 29 CFR § 102.111(b), briefs would be considered
timely filed if postmarked on or before Monday, January 25.
Company’s certificate of service by ‘‘United States mail’’ is
dated January 26. Thus, even by the certificate of service,
and aside from the stamp by the U.S. Postal Service,
Southdown’s brief was mailed a day late. By the U.S. Postal
Service’s postmark of January 27, Southdown’s brief was
mailed 2 days late. I shall not consider Southdown’s brief.
After considering the entire record, the demeanor of the
witnesses, and the brief filed by the General Counsel follow-
ing the reopened hearing, I make the following
FINDINGS OF FACT
A. The Evidence
1. Why did Della Landry cry?
At the reopened hearing Della Landry testified, in essence,
that at the July 11, 1990 presentation/demonstration
Tarshelda Green and the employees accompanying her did
not engage in a loud demonstration, and in fact were calm
and quiet.
At the original hearing Landry described the sequence of
events, following the July 11 demonstration, as follows.
Landry went to her room where she cried. About an hour
later she went to Janie Boudreaux, the social services direc-
tor, and discussed the matter with her. The following morn-
ing she made a formal complaint (RX 5) to Boudreaux about
the demonstration. Later that July 12 she went to Fruge to
express her concerns and to ask whether the demonstrators
would be returning to work at Southdown. (1:278, 280, 283,
285–287.)
At the original hearing Landry testified that, in her room,
she cried because the demonstration had scared her. (1:278.)
Landry’s July 12 formal complaint (RX 5) is consistent with
that explanation. At the reopened hearing Landry seemingly
reconfirmed that explanation, testifying (3:550), ‘‘I was just
scared and wondering what was happening.’’ Later, however,
Landry’s explanation moved from blaming the demonstrators
for her fright to assigning the basis for her fear to ‘‘the way
Patty was acting.’’ (3:559.) From this Landry, experiencing
difficulty remembering even the sequence, apparently moved
up her July 12 conversation with Fruge to a point on July
11 after the demonstration but before Landry went to her
room.
That is, when Landry asked Fruge, in this July 11 con-
versation, why the employees had come, Fruge replied that
they were there ‘‘because of this Union thing.’’ Fruge,
Landry asserts, ‘‘acted like she didn’t like that they were
there.’’ (3:559–560, 579.) Landry later testifies that she can-
not remember whether Fruge said anything, but Fruge ap-
peared upset. Then, ‘‘She said she just didn’t like the idea
that they were there.’’ Landry cried in her room because ‘‘I
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
just was upset to see that Patty was upset when she said
what she said.’’ (3:580–581.) Fruge asserts that Her con-
versation with Landry was not until after Boudreaux reported
(presumably on July 12) that Landry had filed a formal com-
plaint about the July 11 demonstration. (3:609.)
David Carlos has lived at Southdown for 16 years.
(3:600.) A paraplegic, like Landry Carlos (not a witness at
the original hearing) testified from his wheelchair. Carlos
(3:604) and Landry (3:558) agree that they conversed most
every day. Carlos testified that on July 12 Landry told him
about the demonstration, that the hollering and marching by
a group of employees had upset her so much she later cried
and spoke with the social worker. (3:601, 604–605, 607.)
2. Landry asserts that she lied to Boudreaux
At the reopened hearing Landry testified that after crying
in her room she went to Boudreaux’s office to ask, out of
curiosity, why all the employees had come into the nursing
home. (3:541-542.) Although at the reopened hearing Landry
does not give the time of her visit to Boudreaux, at the origi-
nal hearing she fixed the time as about an hour after the
demonstration. (1:286-287.) When Landry told Boudreaux
the following morning, July 12, that she wanted to make a
formal complaint (1:281, Landry; 3:593, 596, Boudreaux),
Boudreaux wrote a short statement (RX 5) which, as her for-
mal complaint, Landry confirmed. (1:280–281; 3:543.)
Boudreaux asserts that Fruge had not told her about the
July 11 demonstration before Boudreaux wrote Landry’s
statement on July 12. (3:593.) Contradicting this, Fruge ac-
knowledges that in fact she told Boudreaux the evening of
July 11. (3:615.) As I have noted, Landry’s statement, or
complaint, is consistent with her testimony at the original
hearing. As Boudreaux testified (3:593) that Landry signed
the statement (RX 5; written by Boudreaux in the third per-
son), the document in evidence apparently is a copy made
after Boudreaux had signed but before Landry signed.
Although confirming that the statement expresses her
words (1:281; 3:567), Landry now asserts that her statement
(RX 5) to Boudreaux is false. (3:543.) Asked why she
‘‘signed’’ the statement if it was not correct, Landry initially
answered that she did so because she wanted to get ‘‘some
answers out about what this was all about,’’ ‘‘some answers
about this union thing.’’ (3:544.)
Moments later Landry, again (now on redirect examina-
tion) asked why she said the words in the statement, testified
(3:582): ‘‘I—I guess I—I really don’t know.’’ The General
Counsel then asked (3:582) if Landry thought anything
would happen if she said those things. Landry answered that
she guesses she made the statement to Boudreaux on the
thought it might help Terry Eaton, her friend and later room-
mate, obtain a job at Southdown. Eaton, Landry explains,
had applied for a job at Southdown and had been unsuccess-
ful. Landry does not know, cannot explain, why she thought
this statement would help Eaton get a job. However, later
Landry apparently spoke to Fruge on Eaton’s behalf, al-
though the results are not described. (3:581–583.) Landry
never discussed her motive with Fruge. (3:585–586.)
Boudreaux worked one year at Southdown, leaving in Jan-
uary 1991. She was the Social Services Director. In that ca-
pacity she was available to discuss with residents their prob-
lems or complaints, and to counsel them on such matters.
(3:589–590.) Boudreaux is Fruge’s sister. (3:595.) Not a wit-
ness at the original hearing, at the reopened hearing
Boudreaux testified that she had counseled Landry on several
occasions before July 11–12, 1990. (3:598-599.) Boudreaux
testified that there is no doubt Landry was sincere when she
complained about the July 11 conduct of the group of em-
ployees. (3:594.) And in subsequent counselings Landry
never indicated that she had different thoughts about her for-
mal complaint of July 12. (3:595.)
3. Did Patricia Fruge nod?
About a week after the July 11 lobby incident, Landry tes-
tified, Southdown’s attorney in this case, Stephen D. Ridley,
interviewed Landry in Fruge’s office in Fruge’s presence.
According to Landry, when Attorney Ridley asked her ques-
tions she would look at Fruge who would nod or shake her
head to indicate a yes or no answer for Landry to give.
Landry did this, and answered accordingly, because she
feared that if she did not cooperate Fruge would retaliate and
make Landry’s living conditions very uncomfortable at the
nursing home. Although Fruge had never threatened her in
the past, on one or more previous occasions Fruge had not
sent help when she said she would. (3:545–546, 559, 569.)
From this Landry apparently concluded that Fruge could
really make life miserable for her if Fruge had a motive to
retaliate.
Fruge denies giving any such head signals, testifying that
Ridley sat at her desk, and Landry sat facing him. Not only
did Fruge never nod, she does not recall Landry’s ever look-
ing at her during the interview, testifying that she sat away
and to the rear of Landry. (3:617–620.) In fact, Landry con-
cedes in her June 1991 recanting affidavit that the head sig-
nals had not been planned in advance, but that Landry
‘‘could just tell by watching’’ Fruge that, apparently, such
was Fruge’s desire. (RX 18 at 7). Nevertheless, Landry con-
cedes that Fruge never asked Landry to lie. (3:576.)
A week or two later, Landry gave a pretrial affidavit to
the Board agent investigating the charge in this case. (3:547.)
Landry concedes that she could have told the Board agent
that she would feel more comfortable if Fruge attended with
her. (3:562.) Fruge acknowledges that she attended when
Landry gave her statement to the Board agent. (3:611.) Her
testimony at the original hearing in February 1991 is consist-
ent with her pretrial affidavit given to the Board agent,
Landry testified. (3:561.) That pretrial affidavit, Landry now
asserts, is false. (3:563.)
Landry does not claim that Fruge suggested to her before-
hand that she tell the Board agent that she would be more
comfortable with Fruge present. With all the other
disavowals Landry now makes, it is clear that, had Fruge in
fact made that suggestion, Landry would have so testified at
the reopened hearing.
4. Landry claims that she lied at the original hearing
At the reopened hearing, Landry testified consistent with
her recanting affidavit of June 1991. According to Landry,
she lied in her February 1991 testimony because she thought
that if she said what Fruge wanted her to say that Fruge
would make living conditions better for her. (3:547.)
Fruge testified that no one ever told her that Landry felt
threatened or coerced by Fruge, and Fruge denies having
done so. (3:612.) Of course, other than the head signaling
1117SOUTHDOWN CARE CENTER
3 Apparently the same Nedra Simmons discussed in part III,C,4,b
of the original JD.
episode during attorney Ridley’s interview, Landry does not
claim at the reopened hearing that Fruge did or said anything
to coerce her. Landry’s recanting testimony is that Landry
lied originally because she perceived that Fruge wanted her
to testify in her support and that Landry believed Fruge
would retaliate against her if she did not testify as she per-
ceived Fruge desired.
David Carlos testified that the day after Landry’s February
1991 testimony she told him about some of her testimony,
and that she said she had ‘‘told it like it was,’’ and that what
she reported to him was consistent with what she had told
him before she testified. At no point, Carlos testified, did
Landry suggest that her testimony had been false. (3:603–
604, 607.) Landry recalls no such conversation or words.
(3:578–579.)
5. Landry moves from Southdown; later recants
In March 1991 Landry left Southdown, moving into an
apartment with her friend, Terry Eaton. (3:525, 548, 553.)
One day thereafter Landry, while at a store near her apart-
ment, saw and spoke with Nedra ‘‘Candy’’ Simmons.3 Sim-
mons asked if Landry knew of the outcome of the hearing,
and Landry said no. Landry invited Simmons to visit her
sometime. A few days later Simmons visited Landry and
Eaton at their apartment. Although Landry thinks they may
have discussed the hearing, she cannot recall the discussion.
A few days later Simmons returned, this time with Union
Organizer Nina Schulman, and they discussed Landry’s testi-
mony at the hearing. Landry told them that the testimony she
gave was false. Landry said this because she was living on
her own and no longer had anything to be afraid of. (3:548–
551, 554–557.)
Although she is not sure, Landry thinks that Simmons and
Schulman may have asked her to go to NLRB Region 15.
Landry volunteered to do so. According to Landry, no one
told her that the case was on appeal and that if she recanted
the employees might get their jobs back. (Disbelieving
Landry, I find that is exactly what they told her.) Thereafter
Schulman drove Landry and Eaton to NLRB Region 15 in
New Orleans where, on June 18, 1991, Landry gave her re-
canting affidavit. (3:551–552, 574–576.) For the last several
months Landry has lived with her parents. (3:553.)
B. Discussion
1. Government waived its new theory
At the original hearing the General Counsel (a different
trial attorney from the one here) took the position that if the
employees demonstrated on July 11 substantially as Fruge
described, then the Government would agree that the dem-
onstration was not protected by the Act. The General Coun-
sel stated that the Government was presenting a factual dis-
pute, not a legal dispute. (2:431–434.) Yet at the Govern-
ment’s resting at the reopened hearing (3:588), and in the
Government’s January 1993 posthearing brief (Br. at 22), the
General Counsel now asserts in effect, that the employees’
conduct was protected regardless.
On this very point at the original hearing, when I ex-
pressed the understanding that the General Counsel would
not argue in the Government’s brief that the conduct ‘‘was
protected, no matter what,’’ the General Counsel stated
(2:434): ‘‘No, I won’t.’’
Following that clear statement by the General Counsel, I
said (2:434): ‘‘As far as I am concerned, then, the matter is
settled on that point.’’
The Government, I find, waived its new theory. Although
I did not find quite the length or intensity described by
Fruge, clearly my original findings about the demonstration
(a mass demonstration, loud, lasting about a minute, in the
lounge area and physically blocking at least one resident, and
calculated to disturb and frighten elderly and disabled resi-
dents) were substantially as described by Fruge and
Landry—particularly respecting the nature and effects of the
demonstration.
The Government’s new and alternative theory (loud dem-
onstration in residents’ lounge is protected) which the Gen-
eral Counsel now advances is not available to the Govern-
ment. The General Counsel expressly waived it at the first
hearing, and I then, in effect, told Southdown it was not an
issue. Under established Board law, that eliminated the the-
ory from the case. Herman Brothers, 264 NLRB 439, 440
fn. 3 (1982).
Aside from the express waiver represented by Herman
Brothers, the General Counsel is estopped under Peyton
Packing, 129 NLRB 1358 (1961), from advancing its new
theory. As any other party, the Government cannot have a
second bite at the apple simply because the case was re-
manded on the General Counsel’s first theory (that the pres-
entation was calm and there was no loud demonstration or
blocking). Peyton Packing. As the Board there stated, 129
NLRB at 1360, the General Counsel is not a favored litigant
in unfair labor practice proceedings before the Board.
In short, at the first hearing the General Counsel ‘‘stipu-
lated’’ the Government ‘‘out of court’’ on this new and alter-
native theory. The General Counsel is restricted now to its
factual argument, and the Government’s case is restricted to
its single factual theory that the event was calm and orderly.
Failing to obtain those factual findings, the Government
loses. Stated differently, the Government is limited now to
arguing that I should reverse my credibility resolutions and
factual findings. The General Counsel is not at liberty to
argue a new (and waived) legal theory based on factual find-
ings which are adverse to the Government.
Indeed, the whole purpose of the remand is to evaluate my
factual findings about the July 11 event, in light of Della
Landry’s recanting testimony. Had the General Counsel not
waived the alternative theory, the Government could have ar-
gued a dual theory the first time—and possibly have saved
everyone the time and expense of a supplemental hearing.
There would have been no need for the Board to have re-
manded this case if the Board agreed with the General Coun-
sel’s alternative theory. The Board simply would have de-
cided that, even assuming the demonstration occurred as I
found, the demonstration nevertheless was protected. Only if
the Board dismissed the alternative theory would it have had
to remand to hear Della Landry’s recanting testimony. But
the Board never passed on the alternative theory because that
theory was not presented to the Board. It was not argued to
the Board because it was waived at the original hearing.
Now on the remand of the General Counsel’s original factual
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Supplemental 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.
theory, the Government wants to resurrect and advance the
alternative legal theory. Too late.
The Government’s belated attempt to reverse the waiver it
made at the original hearing brings to mind the Red Queen’s
response when Alice sought to correct her own statement that
the cause of lightning is thunder:
‘‘It’s too late to correct it,’’ said the Red Queen:
‘‘when you’ve once said a thing, that fixes it, and you
must take the consequences.’’
Lewis Carroll, Through the Looking-Glass Chapter 9 (1872,
Bantam Books 1981).
In any event, the Government’s (waived) alternative theory
is a strange one, at best. Under that theory of what the stat-
ute permits, off duty nursing home employees would be au-
thorized, whenever they had one or more grievances (thus,
weekly, even daily), to do the following:
(1) loudly enter the nursing home en masse (25
here);
(2) at the sitting lounge of the residents, present a
list of those grievances to the administrator;
(3) in the presence of elderly and disabled residents
seated in the lounge of their home, engage in a loud
and aggressive one-minute demonstration, physically
blocking at least one paraplegic resident confined to a
wheelchair, which demonstration frightens one or more
of the residents, causing them to cry.
To describe the Government’s alternative theory is to re-
ject it. If the General Counsel’s alternative theory had not
been waived, and were before me for decision, I would find
it without merit and the demonstration here unprotected. It
was unprotected because the statute does not authorize loud,
aggressive, and physically threatening employee-demonstra-
tions in the presence of elderly and disabled nursing home
residents seated in the tranquility of their sitting lounge. By
adopting this improper means to accompany the presentation
of their list of grievances (regardless of whether the dem-
onstration was planned or spontaneous), the 25 or so employ-
ees here engaged in conduct that is indefensible under Sec-
tion 7 of the Act.
2. Recanting disbelieved
Having closely observed the witnesses testify, I disbelieve
Della Landry in her testimony at the reopened hearing, and
I credit Southdown’s witnesses, Boudreaux, Carlos, and
Fruge. In disbelieving Landry’s December 1992 recanting
version, and reaffirming my belief in her February 1991 tes-
timony, I am well aware that Della Landry (as David Carlos)
must rely on others to assist her for basic living functions.
Even though Landry now lives with her parents, she must
weigh every word in light of where she might have to live
if her parents suddenly, or even later, are not available to
care for her. Unfortunately for Landry, she was caught up in
this case as a witness. But, ‘‘There is an appointed time for
everything . . . a time to be silent, and a time to speak.’’
(Ecc. 3:1,7.) When she spoke the first time, Landry, I find,
spoke truthfully. Later, I find, becoming concerned about the
jobs of those who one day could again be assisting her in
her daily functions, Landry recanted. I do not believe the re-
canting.
In crediting Boudreaux, I recognize the possibility that she
lied about not being told by Fruge about the demonstration
before Landry made her formal complaint on July 12. Of
course, either she or Fruge could have been mistaken. In any
event, however, none of that changes the fact that after the
July 11 demonstration Della Landry went to her room and
cried. The key question is what caused Landry to cry.
Contrary to Landry’s December 1992 recanting version,
offering shifting, strange, and disjointed reasons, Landry’s
February 1991 testimony was vivid, solid, and clear. Landry
cried because the demonstration by a large group of employ-
ees, in the lounge in the presence of elderly and disabled
residents, had been loud, physical, and scary to her. I find
that Landry did not cry because of any looks, conduct, or
words by Fruge.
The General Counsel’s factual theory (orderly presentation,
no demonstration) failing, and the Government having
waived at the first hearing any theory that a loud demonstra-
tion is nevertheless protected conduct, I reaffirm my original
decision dismissing the allegations linked to the July 11
demonstration.
3. Conclusions
The General Counsel having waived, at the original hear-
ing, any theory that a loud demonstration, as found in my
original decision, is protected, the Government is limited
here to seeking a reversal of my credibility resolutions and
factual findings on the single theory the Government ad-
vanced at the original hearing—the factual theory that the
July 11 presentation was calm and there was no loud and
physical conduct. Because I disbelieve the recanting evidence
offered by the General Counsel at this December 1992 re-
opened hearing, I reaffirm my original decision dismissing
the allegations linked to the July 11, 1990 demonstration in
the residents’ lounge. The July 11 mass demonstration was
loud, threatening, and unprotected by the Act.
Should it be determined that the Government’s new and
alternative theory (loud demonstration, as found, is protected)
is before me for decision, then I reject that legal theory on
the same basis—the July 11 mass demonstration in the resi-
dents’ lounge was unprotected because it was loud, physical,
and threatening.
Accordingly, on either of the Government’s theories, I re-
affirm my dismissal of the complaint allegations which rest
on a requested finding that the July 11, 1990 demonstration
was protected by the Act. As I reaffirm my original decision,
I need not address other potential questions which would
have been resolved if the July 11 demonstration were found
to be protected.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The allegations linked to the July 11, 1990 demonstration
in the residents’ sitting lounge are dismissed.