De Paul Community Health Center

National Labor Relations Board - Board Decisions

Nov 26, 1975

221 N.L.R.B. 839 (N.L.R.B. 1975)

ST. ANNE'S HOME 839
St. Anne's Home , Division of De Paul -Community
Health Center and Service and Hospital Employ-
ees Union, Local No. 50, affiliated with Service
Employees International Union , AFL-CIO. Cases
14-CA-8149 and 14-RC-7675
November 26, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
On June 12, 1975, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, St. Anne's Home, Division of De Paul
Community Health Center, St. Louis, Missouri, its
officers, agents, successors, and assigns, shalltake the
action set forth in said recommended Order, as so
modified:
1. Delete from paragraph 1(g) of the Administra-
tive Law Judge's recommended Order the words "or
give parties as a reward for rejecting the Union "
2. Substitute the attached notice for that of the
Administrative Law Judge.
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F.2d 362 (C A. 3, 1951) We have
carefully examined the record and find no basis for reversing his findings
2 Contrary to the Administrative Law Judge we find that the "victory
party" at which hot dogs; potato chips, and punch were served by
Respondent following the election was not a reward for having rejected the
Union . The record shows that the party was a spontaneous gesture and was
open to everybody who wanted to come, apparently during their lunch
hour, whether they voted for the Union or not . Respondent gave the party
because it wanted the employees to know that , it was "one large family" and
that they were still St. Anne's employees . Respondent has given free lunches
in the past, such as an employee appreciation day, a Christmas party, a
picnic for residents and employees, and for the United Fund drive
221 NLRB No. 131
The facts in this proceeding cannot he equated to the facts of Rnvieia
Manor Nursing Home. Inc, 186 NLRB 806 (1970), and Shulman 't Inc of
Norfolk. 208 NLRB 772 (1974), cases cited by the Administrative Law
Judge, wherein employees were given increased economic benefits and other
improvements in working conditions following an election Noi is there any
contention that the party extended beyond the lunch hour of any of the
employees who may have attended Cf Edro Corporation and Anasco Gloves,
Inc, 147 NLRB 1167, 1176 (1964) Accordingly, we find that this conduct
was not a violation of Sec 8(a)(1) of the Act, and we shall dismiss that
portion of the complaint
Respondent contends that the Administrative Law Judge erred to not
permitting it to rebut certain evidence offered by the General Counsel and
by refusing to permit an offer of proof as to the expected testimony of a
witness, and moves to reopen the record. We hereby deny the motion
because Respondent has not stated the nature of the evidence that it seeks
to introduce, or the contents of the offer of proof,- to enable us to determine
its relevance
Respondent also contends that the Administrative Law Judge erred by
refusing the Respondent the right to make a motion (a) to challenge the
appropriateness of the stipulated unit and (b) to dismiss the petition, and
moves to reopen the record We find no merit in Respondent's motion on
the ground that it is untimely and beyond the scope of the complaint and
the order consolidating Case 14-RC-7675 with the unfair labor practice
proceeding Accordingly, we deny the motion Wen Hkea Ltd d/b/a The
Oceania Floating Restaurant, 208 NLRB 828 (1974) ,
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT suspend or discharge you or
threaten to suspend'or discharge you because you
engage in or, support, union or other lawful
concerted employee activities.
WE WILL NOT discourage you from support of
or membership in the Union, or other labor
organization, by discharge or other discrimination
affecting tenure and conditions of your employ-
ment.
WE WILL NOT threaten to close the nursing
home if you, select the Union as your bargaining
agent.
WE WILL NOT threaten you with loss of,benefits
or privileges if you vote for the Union.
WE WILL NOT stress the futility of your
choosing the Union as bargaining agent.
WE WILL NOT coercively interrogate you con-
cerning the Union or voting for it.
WE WILL NOT promise benefits for your
rejecting the Union. _
WE WILL NOT solicit from you grievances and
promise or implicitly promise to. correct) them
while union organizing, or campaigning is in
progress. -
WE WILL NOT maintain or enforce a rule
prohibiting you from soliciting each other for self-
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizational purposes in nonworking areas of
the nursing home on nonworking time. ,
WE WILL NOT in any other manner interfere
with your rights to belong to or to be active for a
labor union, or to refrain-therefrom.
Because the Board found that we unlawfully
suspended and discharged employee Olivette
Mondaine and unlawfully discharged employee
Bedell Stribling in August and September 1974,
WE WILL offer both employees their former or
likejobs.
WE WILL give each backpay with interest from
the time of suspension or discharge.
ST. ANNE'S HOME,
DIVISION OF DEPAUL
COMMUNITY HEALTH
CENTER
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 210 North 12th Boulevard, Room 448, St.
Louis, Missouri 63101, Telephone 314-425-436 1.
DECISION
issued the complaint in the unfair labor practice case
November 15, 1974, later amended December 20, 1974.
The Regional Director's report of September 20, 1974,
would have recommended to the Board, in the alternative,
either the setting aside of the election' and conduct of a
rerun election (on the Union's objection B plus "other acts
and conduct" found by the Regional Director), or
reference back to the Regional Director for hearing and
taking testimony (on the Union's objections A and G).
Respondent filed exceptions on October 1, 1974, to the
Regional Director's report and recommendations, and on
November 26, 1974, filed a motion to consolidate the
Regional Director's report and recommendations with the
complaint of November 15, suggesting that the claimed
objectionable conduct affecting the election and alleged
conduct under the complaint were substantially `the same
and that a single trial would be economical. In a
supplemental report of December 3, 199742 the Regional
Director treated this motion to consolidate as a motion for
reconsideration of his prior recommendations, and ordered
consolidation of the C case and R case for hearing, ruling,
and decision by the Administrative Law Judge.
Respondent has denied commission of any'conduct that
violated the Act or that interfered with the holding of a fair
election.
The consolidated cases were tried in St. Louis, Missouri,
on January 20, 21, and 22, 1975. General Counsel and
Respondent have filed briefs.
Upon the entire record in the case,' including my
observation of the witnesses and consideration of the
briefs, I make the following:
HERZEL H. E. PLAINE, Administrative Law Judge: The
consolidated unfair labor practices case and representation
case raise three questions:
First, whether the Respondent-Employer (hereafter
Respondent) nursing home engaged in violations of
Section 8(a)(1) of the National Labor Relations Act (the
Act), before and after the representationelection of August
8-9, 1974, in which the Charging Party-Petitioner
(hereafter Union) was defeated. The allegations include
threats of closing the nursing home or other reprisal if the
Union won' and promises of benefits if the Union were
rejected, employer solicitation of employee grievances and
promises to correct them, and employer maintenance of an
unlawful no-solicitation rule.
Second, whether Respondent engaged in violations of
Section 8(a)(3) and (1) of the Act by discharge of two of the
Union's supporters followingthe election.
Third, whether the alleged violations of the Act prior to
the election, together with other conduct of Respondent
allegedly affecting the results of the election, deprived the
employees of a fair election requiring that the results be set
aside.
The Union's objections to conduct affecting the results
of the election were filed August 14, 1974, and the
Regional Director's report thereon was issued September
20, 1974. The Union filed a charge against Respondent on
September 25, 1974, upon which the Regional Director
On motion of General Counsel to correct the record in certain respects,
not objected to by the parties, and supported by my notes of the trial, I
FINDINGS OF FACT
1. JURISDICTION
De Paul Community Health Center ` is a nonprofit
corporation authorized to do business under the laws of
Missouri. The Center comprises three divisions, St. Anne's
Home, St. Vincent's, and De Paul Hospital, all located` in
St. Louis. St. Anne's is a nursing, home and is the only
facility directly involved in this proceeding.
,In the year ending December 31, 1973, a representative
period, Respondent derived gross revenues in excess of
$100,000 from the operation of the nursing home and had
goods delivered to the home directly from points outside
Missouri valued in excess of $50,000.
Respondent is, as the parties admit; an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The Union is, as the parties also admit, a labor
organization within' the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Respondent's Pertinent Business Operations
Respondent's nursing home provides care for elderly or
sick women usually unable to care for themselves. The
home has three wings described as main, east, and west,
order that certain errors in the transcript of the testimony be hereby
corrected
ST. ANNE'S HOME
and maintains seven nursing units, described by location,
such as One Main, Two West, or Three East. The nursing
units are operated round-the-clock, 7 days-per week, in
three shifts, by nurses and nurses aides, and there are
additional service units, such as the dietary, laundry,
sewing, and other units. All told, according to employee
Karen Milton, a nurses aide and charging nurse for the
past 7 years, there are about 120 employees. (Sister Patricia
Garland, administrator -of the home since July 1972,
testified to having had individual interviews in June and
July 1974 with 169 persons comprising the staff of the
home, but the larger number included supervisory and
management personnel.)
The De Paul Community Health Center has a board of
directors and an executive director, Anthony Bunker, in
overall charge of its three facilities, including the nursing
home. Immediately in charge of the nursing home is
Administrator Sister Patricia Garland. Under her is the
director of nursing, Sister Mary Ann (succeeded by Sister
Aileen after the events of this case). Below the director of
nursing are the supervisors who are in charge of one or
more units. For example, Supervisor Alma Kinsella, who
was involved in some of the events of this case, was in
charge of nursing units One Main and One West for the
day and afternoon shifts, comprising 20 employees. The
home also had its own._personnel director, Jacqueline
Jones, and recreational director, Willie Mae Moore. All of
these persons were acknowledged supervisors within the
meaning of the Act.
B. Union Activity and Employer Counteraction
The employees of the nursing home are not unionized. In
1972 the Union unsuccessfully sought to organize the
employees, and tried again in 1974, starting in June and
culminating in the election held August 8 and 9, 1974,
where the Union lost on a vote of 50 in favor, 57 against,
and 4 challenged ballots.
The organizing for the Union was done by employees at
the nursing home on the several floors, in the halls, and in
various rooms. Employee Helen McGee, a nurses aide on
night shift, testified that she learned of the campaign and
was recruited for getting some signatures on union
authorization cards by employees Olivette Mondaine and
Bedell Stribling, who were also nurses aides and worked
together in the One Main nursing unit on the day shift.
According to Mondaine, Stribling, and employee Ora
Rozelle, a seamstress, Rozelle was the contact with the
union representative for bringing to the nursing home the
blank authorization cards and news of the union meetings,
and she interested employees Mondaine and Stribling in
passing out the.cards and information to employees and
getting employee signatures. According to the testimony
(Rozelle , Mondaine, Stribling, McGee), employee Mon-
daine got about 15 signatures and employee Stribling
obtained about 5 signatures; and employee McGee, who
took about 12 cards from the other 2, turned her signed
cards back to one or the other of them, for ultimate return
to employee Rozelle. There was further testimony of
informal meetings of groups of employees on breaktimes in
the breakfast or tea room, increasingly as the election time
approached, when the Union was discussed among them
841
and some of the card passing and signing took place.
Employee McGee identified an occasion when Supervisor
Kinsella came into the breakfast room for coffee while a
discussion and card signing was taking place, and
remarked that she thought the girls needed the Union the
way things were going at the Home.
Supervisor Kinsella denied getting her information about
the Union from the employees but conceded she knew
about the union activities of the employees because the
Sisters, who ran the nursing home, were aware of, and
discussed , the union activities of the employees with her.
As she said , her supervisor, the director of nursing, Sister
Mary Ann, always knew what was going on and knew
everything that was going on at the Home. Interestingly,
Sister Mary Ann's superior, Administrator Sister Patricia
Garland, testified to hearing about employee sentiment
and activities by rumor and from "the grapevine."
Supervisor Kinsella testified that the Home was opposed
to the Union . The activities by the Home's management in
June-July-August 1974 made unmistakeably clear its
strong opposition to the Union.
Administrator Garland , who admitted to learning of the
Union organizing in June 1974, testified that she em-
barked , in June and July, upon a series of individual
interviews with each employee , including the supervisory
staff, to face them ,, she said , with the rumor she had
gathered that she didn't like Blacks and to let the Blacks
know she had no feelings against them . Administrator
Garland said she asked each employee two questions, how
do you look at and how do you like St. Anne 's, and do you
think I like the personnel of St. Anne's or do you think I'm
prejudiced. She denied discussing the Union in these
interviews, even though , she said , several employees raised
a point about getting a letter from the Union. However she
could not identify anyone who raised the point or recall the
specifics of any one individual meeting with an employee.
Administrator Garland further testified that, more or less
contemporaneously, in July and up to August 7 (the day
before the election) she made speeches , about 10 , to groups
of employees in the , various departments following 2
written speeches as her guide . (The written speeches are
Exh. 2 and 3, respectively , supplied by Administrator
Garland to the Regional Director, and attached to the
Regional Director's report on, the objections to the
election , Exh. G .C. lbb.)
In her testimony , concerning her speeches and actions in
June, July, and August , Administrator Garland insisted
that she had not opposed the Union, and that she had not
tried to influence the employees to vote against the Union.
The undisputed facts, including some admissions by her
under probing, together with the testimony of the employ-
ees, indicatedJust the opposite ; namely, that she strongly
opposed the Union, and tried strenuously to influence the
employees to vote against the Union . The unfolding of the
total contradiction, together with her lapses of memory,
has persuaded me that Administrator Garland was not a
reliable witness and I have not given credence to her
testimony that was in conflict with the testimony of others.
In the speeches (Exh. 2 and -3 attached to Exh . G.C. I-
bb), Administrator iGarland said , among other things:
. . I am strongly opposed to a union because I do not
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
want to^ see your wages going for union dues, fees and
assessments to support union outsiders who have not
contributed one thing to St. Anne's . . . I want you and
your family to benefit from your wages and benefits-not
union officers and the relatives they have on the pay-
roll...." 2
"Third, I am also opposed to having a union here
because I know that strikes can and do occur with unions.
This is exactly what .,can happen when a union is
recognized as a representative of the employees and the
union seeks things the Employer cannot agree to .. .
Strikes are horrible things, particularly in an institution like
this . . At Christian Welfare Hospital, for example,
employees lost wages for ten weeks. There was violence,
rocks through windows, gasoline thrown at the Hospital,
and people injured...."
"Fourth, I am opposed to having a union at St. Anne's
because from what I know of institutions that have unions,
they just are not as desirable a place from the standpoint of
employees and the residents...." "Two years ago in a
similar election, the St. Anne's Home employees rejected
this same union by a large margin. . . . I hope you
continue to have confidence in us, and that you will
express that confidence by again voting against the union.
This is important to me, and I believe it is also important to
you and all others associated with our home... .
"To vote against union representation at St. Anne's all
you need to do is put an Yin the no box...
"By this time you all know where I stand on the question
of bringing an outside union into St. Anne's. I have made
no secret of my opposition to bringing a union in here
because I believe that it could be the worst thing that could
happen to the Home and to you. . . . Let there be no
question about it, the future of St. Anne's Home and your
jobs may ultimately be decided in this election."
"I am not threatening to close St. Anne's down if a union
is voted in, but I want to emphasize to each and every one
of you that if a union is voted in, and if that union makes
demands which we cannot meet, then I see no other way
than to shut our doors forever. This is not a threat, it is a
fact."
"You do not need an outside union to represent you here
at St . Anne's Home. . . . When you go to vote I hope you
will again show that same loyalty and confidence by voting
no to union representation."
i
On August 1, 1974, Executive Director Anthony Bunker
of De Paul Community Health Center, in overall charge of
Respondent's Home, wrote to each employee of the Home:
"I feel it is important to let you know that De Paul
Community Health Center fully supports Sister Patricia
and the rest of the St. Anne's Administrative Staff. We feel
just as strongly as they do that a union has no place
whatsoever in De Paul Community Health Center."
He noted that St. Anne's is going to be included in
whatever improvements in wages, benefits, and working
conditions may be made in the future by De Paul, and
said, "I do not feel that it is in the best interest of anyone to
bring a union into St. Anne's since this will result in
separating St. Anne's employees from other employees of
De Paul Community Health'Center."
"We have great plans for the future that should benefit
you and everyone else associated with De Paul Community
Health Center. I hope you will agree with me that bringing
a union into St. Anne's will only result in slowing down the
progress of these plans which we are trying to make a
reality for us all." (Exh. G.C. 6, also Exh. 4-attached to
Exh. G.C. lbb.)
Administrator Garland testified that she endorsed the
Bunker letter, which, as the text indicated, specifically
supported her expressed opposition to the Union and
threatened the employees with retardation if not loss of
improvement in wages, benefits, and working conditions if
they brought the Union into the Home.
Employee Rozelle, a seamstress with Respondent since
May 1972, testified that she was interviewed privately on
June 24, 1974, in the office of Administrator Sister Patricia
Garland, which was the first time Rozelle had been there
(except once to hang some draperies). Sister Patricia asked
her if she had heard rumors of employee dissatisfaction
and did she know why. Rozelle ventured the opinion that it
might be a matter of salary. Sister Patricia said she had
heard the Union was trying to get in, and if Rozelle heard
about anyone being dissatisfied to let her know; and if
Rozelle had any problems, Sister Patricia's door was
always open and to come to her. On cross-examination,
Rozelle recalled that she was asked if she thought Sister
Patricia was prejudiced.
On July 30, 1974, said employee Rozelle, she and two
other employees in the sewing room (Rivers and Heags)
were sent by their Supervisor Catherine Craig to meet with
Sister Patricia in her office. According to Rozelle, Sister
Patricia gave the three of them a history of the Home, and
told them they should be dedicated like the founders had
been. She said the Union was trying to come into the
Home, but that no one could come in and tell the Home
what to do. She asked that the employees vote against the
Union, and said if the Union got in St. Anne's would have
to close. Sister Patricia said that the Home was poor and
could not afford to pay the employees any more than they
were getting. She told them further that if they didn't like
their jobs, the door swung both ways, and she would be
glad to give them recommendations elsewhere for another
job. Rozelle noted that Sister Patricia had a typewritten
paper in her hand which she glanced at as she,talked.
There, was still another office meeting, on August 7, 1974,
of the same three employees with Sister Patricia. This time
their .immediate Supervisor Catherine Craig, was also
present. According to employee Rozelle, Sister Patricia
said she wanted to tell them some things about unions she
didn't think they knew. She told them of the Christian
Welfare Hospital where the union had won an election but
didn't do any good-the employees did not get what they
wanted, they went on strike, and violence broke out. If the
Union got in St. Anne's, the employees wouldn't get what
2 Administrator Garland conceded giving this portion of the speeches in -concerned about this union matter. I have been concerned, frankly, that it is
her oral presentations , indeed made the claim of onutting -only one brief a result of things I have done here For this reason , I have talked
paragraph of the total eight pages (and didn't tell this to the Regional individually with each of you, in the hope that I could get a better feel for
Director when she gave him the material), beginning : "I have been very you and your problems, and you of me 11
ST. ANNE'S HOME 843
they wanted, all would suffer-the patients, and the
employees and their children-and the union officials
would still be .riding in their big cars; the Home would
have to close, it could not meet the Union's monetary
demands. She urged them to vote no for the Union and
vote yes for St. Anne's. This was the second occasion Sister
Patricia talked of closing the Home if the Union came in,
said employee Rozelle. (Sister Patricia denied making the
statements attributed to her by employee Rozelle, but I do
not credit these denials, for the reasons already noted
above.)
Employee Sylvia Rivers, a laundry aide, testified that she
was called into a private meeting with Administrator Sister
Patricia Garland, in her office, on July 23, 1974. This was
employee Rivers' first time in the administrator's office
Rivers testified that she was asked how she was doing and
was she satisfied with her job. She replied yes, but that she
was , having a problem with the salary. Sister Patricia told
her the Home could not pay any more, it was having
problems with the patients paying more. Sister Patricia
then said, according to employee Rivers, that if she had
any problem she should come to Sister Patricia with it. No
one had suggested this to her before, said Rivers.
On July 30, employee Rivers was among three employ-
ees-Rozelle and Heags were the other two-called into
Sister Patricia's office for a meeting. According to
employee Rivers, Sister Patricia told them she had heard of
the Union trying to come into the Home, that she could
not stand for that, to have a union tell St. Anne's how to
run the Home, and that if they loved St. Anne's they would
vote against the Union. Sister Patricia further told them,
said employee Rivers, if they had problems to come to her
about them. Employees Rivers and Rozelle testified that
they learned of similar group or departmental meetings
with Sister Patricia from other employees.
On August 7, the day before the election, employee
Rivers was called into a second meeting of the same three
employees with Sister Patricia. According to Rivers, Sister
Patricia told them the Union was still trying to get in, and
told them of the election date. She said if they loved St.
Anne's, they would vote against the Union; and if the
Union did come in they (the management) would have to
close St. Anne's. Sister Patricia invited them again, if they
had any problems, to come to her about them.
Employee Rivers testified to Administrator Garland's
use of a paper, looking at it more in the first than in the
second group meeting; and recalled in her private meeting
with Sister Patricia a reference to rumors of prejudice
(While Sister Patricia apparently did not directly deny
employee Rivers' testimony, she made general denials of
the substance thereof, which I have not credited for
reasons already given.)
Employee Anne Beals Bennett, employed since 1971 as a
nurses aide and charge nurse, testified that about two
weeks before the election she was called into a private
interview for about thirty minutes with Sister Patricia in
her office (the only time Bennett was in that office, she
said). Employee Bennett said she was asked three questions
in the course of the interview, did she think Sister Patricia
was prejudiced, what did she think of St. Anne's, and what
did she think of her salary.
Regarding the question of prejudice, employee Bennett
answered she didn't think Sister Patricia was prejudiced.
Regarding St. Anne's, employee Bennett indicated that it
was nice and she had no working problems. Regarding
salary, employee Bennett said she needed more pay. Sister
Patricia replied, 'according to Bennett, that if the Union got
in, she would have to close the Home down, because it
could not pay more in salary than it was paying now. Sister
Patricia also told employee Bennett that if she was not
pleased with her salary, she knew where the door was.
On August 6, 2 days before the election, according to
employee Bennett, she and five other nurses aides attended
a meeting at One Main conducted by Sister Patricia.
Employee Bennett testified that Sister Patricia asked them
to vote for the Home, if the Union got in she guaranteed
she would have to close the Home down, it could not pay
more. (Though admitting conversations with employee
Bennett, Sister Patricia denied threatening to close the
Home if the Union came in, or suggesting that Bennett
might quit. I have not credited these denials, for reasons
already given.)
Employee Catherine Watson testified that she had an
individual meeting in Sister Patricia's office on July 18,
1974, pursuant to a call to come to the office. This was her
only time in that office. Employee Watson testified that she
was asked did she enjoy working and how was she treated.
She was also asked if she had heard of the Union, and
replied no, though she had heard of the Union, she
testified. Employee Watson testified that Sister Patricia
then told her not to vote for the Union because it was not
good. (Sister Patricia did not directly deny this testimony
but made a general denial of talking about the Union in
the individual interviews or meetings. I have not credited
that denial, for reasons already stated.)
Employee Olivette Mondaine, who worked for Respon-
dent for 6 years, first as a maid and then as a nurses aide,
testified to an individual meeting and a group meeting with
Sister Patricia in July 1974. Employee Mondaine had been
a leader among the employees; since about 1969, represent-
ing about 20 of them on a council for employee problems
that had been established by and -that met with the
previous administrator of the Home, Sister Michael. After
Sister Patricia became administrator in 1972, she terminat-
ed Mondaine's membership on the council, claiming she
wanted different representation at each meeting, and then
terminated the council after a few meetings.
In the individual meeting in July 1974 with employee
Mondaine, Sister Patricia asked questions' about prejudice,
rumors of prejudice, and how she could improve herself,
according to Mondaine. Mondaine's replies were along the
line that only Sister Patricia would know if she were
prejudiced, that Mondaine had not heard any rumors of
prejudice, and that she could not tell Sister Patricia how to
improve herself, but that Sister Patricia would have to find
the way. There was no talk of the Union in this meeting,
said employee Mondaine.
The group meeting that took place near the end of July
1974, conducted by Sister Patricia, involved seven or eight
nurses aides and Supervisor Kinsella, according to employ-
ee Mondaine. Sister Patricia talked about the Union and
about what St. Anne's could do for the employees, said
844 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
Mondaine. Mondaine testified that Sister Patricia told
them that St. Anne's had no place for the Union, that it
could not afford it or higher wages, and would have to
close if the Union came in. She said they were trying to do
something for the employees, and Mondaine spoke up and
asked Sister Patricia what had she planned on doing for the
employees. Sister Patricia replied, according to Mondaine,
that the Home could only afford a 10-cent cost-of-living
raise.
Administrator Garland did not contradict employee
Mondaine's testimony except that in conceding that she
referred to closing the Home in several talks with the
employees she claimed she did not say if the Union comes
in St . Anne's will close, 'rather that she said, if the Union
makes demands that St. Anne's cannot fulfill St. Anne's
will close. This nuance was part of Administrator Gar-
land's general self-serving position at trial, that she did not
oppose the Umon or try to influence the employees to vote
against it, which position, as already noted, was incredible
in light of the admitted speech material to the contrary.
The several employees who testified on this subject, in
addition to Mondaine, testified (as already summarized
above) that they were told by Administrator Garland that
the Home would be closed if the Union came m.3 In the
light of Respondent's antiunion attitude, the employees
who listened to Administrator Garland could ,reasonably
have interpreted her statements on closing the Home as the
threats or intimidation forbidden by the Act, see Hendrix
Mfg. Co. v. N.LR.B., 321 F.2d 100, 103-104 (C.A. 5, 1963).
Moreover, all of them, other than Mondame, were in the
vulnerable position of current employees testifying ad-
versely to their employer, and their credibility was entitled
to added support, Formed Tubes, Alabama, 211 NLRB 509
(1974), and cases cited.
Two other matters of preelection conduct by Respondent
in countering union activity are worthy of note. Employee
Karen Milton, who for the past 7 years was a nurses aide
and charge nurse with Respondent, testified (and Respon-
dent stipulated in agreement therewith)-that Respondent
maintained a blanket no-solicitation rule that prohibited
any solicitation by anyone, anytime, unless approved by
the administrator of the Home (see personnel manuals,
Exhs. G.C. 4 and G.C. 5.) There was no showing of
necessity for such a sweeping rule, that on its face
prohibited employees, without express consent, from
engaging in union solicitation on Respondent's property
even during nonworking time or in nonwork areas 4
Moreover, there was testimony by employee Milton
(affirmed by Respondent's stipulation) that notwithstand-
ing the rule, moneys were solicited and collected in the
halls and other places for the new building fund by
supervisors , and for flower funds, for the United Fund, and
for commercial products (such as Avon products) by
employees. Fund, and for commercial products (such as
Avon products) by employees.
3 Respondent brought in one employee, Harriet Bates, who testified that
in her unit, Sister Patricia gave a speech just before the election in which she
said, there would be an election that week, and if the Union made
requirements that the Home could not meet it would have to close its doors.
However, on cross-examination, employee Bates admitted that just before
trial Sister Patricia showed her (Bates) a wntten copy of a speech which
Bates glanced through , and that she was testifying as to what was said in
Employee Rozelle testified that she had several conversa-
tions with Respondent's Recreation Director Willie Mae
Moore, an admitted statutory supervisor, in July 1974. In
one of the conversations, said Rozelle, Recreation Director
Moore told her (Rozelle) that she had had bad experiences
with Local 50 (the Union) at state hospitals, that the
employees would lose their cost-of-living raises and other
benefits if they kept trying to get the Union into the Home,
and that the employees were only making things worse for
themselves. Moore added, said Rozelle, that if the Union
came in, the Home would start policing and would strictly
enforce the time limitations for breaks and lunch breaks
(something it had not been doing, according to Rozelle).
Recreation Director Moore denied ever discussing the
Union with employee Rozelle, though she admitted talking
to employees about the Union but couldn't remember with
whom, or what was discussed, other than telling an
employee she could not identify, that she didn't think
much of the Union.
Employee Rozelle's credibility was not impeached. In
the vulnerable position of a current employee testifying
adversely to her employer, her credibility was entitled to
added support, Formed Tubes, Alabama, supra, and I credit
her testimony over Recreation Director Moore's denials.
C. 8(A)(1) Preelection Findings
The foregoing summary of activity by Respondent's
management, in opposing the Union and seeking to
influence the choice of the employees against the Union, is
a record of conduct, well beyond the permissible, that
entered into the area of coercion and interference with the
rights of the employees to organize and to freely choose a
collective-bargaining representative.
Administrator Garland's reiterated statements to the
employees, in group and individual meetings, that Respon-
dent would close the Home if the employees chose the
Union to represent them, like statements described by the
Supreme Court in N.L.R.B. v. Gissel Packing Co., 395 U.S.
575, 619 (1969), "were not cast as a prediction of
`demonstrable economic consequences' ... but rather as a
threat of retaliatory action," if the employees brought the
Union into the Home. As the Court said, "an employer is
free only to tell `what he reasonably believes will be the
likely economic consequences of unionization that are
outside his control', and not `threats of economic reprisal
to be taken solely on his own volition.' " The threats to
close the Home rather than accept the Union constituted
interference and restraint in violation of Section 8(a)(1) of
the, Act. Marshfield Steel Co. v. N.L.R.B., 324 F.2d 333, 336
(C.A. 8, 1963).
The stress by Administrator Garland on the futility of
the employees joining and choosing the Union, N.L.R.B. v.
Realist Inc., 328 F.2d 840, 843 (C.A. 7, 1964), cert. denied
377 U.S. 994, and the destructive effect on their lives and
that portion of the - written copy of the speech; she could recall nothing else
of the speech In the circumstances, employee Bates ' testimony on direct
was not worthy of belief.
4 Well after the election, on January 16, 1975, Respondent changed the
rule to limit the prohibition (for both solicitation and distribution of
literature) to working time and areas available to the public and (for
distribution) any work area, Exhibit G C 2
ST. ANNE'S HOME 845
economic status of strikes as their alleged sole bargaining
implement, Daniel Construction Co. v. N.LR.B., 341 _F.2d
805, 811 (C.A. 4, 1965), cert. denied 382 U.S. 951, were also
violations of Section 8(a)(1) of the Act.
Interviewing of the employees individually by the
administrator in her office, while the union campaign was
in full swing and ' an election- was imminent,, without
explanation of the purpose of the interviews, mixing
interrogation concerning rumors of race prejudice of the
administrator and rumors of the Union or warnings about
the Union or voting for it,-had the appearance of attempts
to intimidate the employees, without any assurance-against
reprisal, and was coercive interrogation in violation of
Section 8(a)(1) of the Act. N.L.R.B. v. Varo, Inc, 425 F.2d
-293,298 (C.A. 5, 1970).
In the context of the administrator discussing the Union
with employees and importuning them to vote against the
Union, her-invitation to those who didn't like their jobs to
leave, was an implied threat of discharge orother reprisal,
Loggins Meat Co., 199 NLRB 291, 294 (1972), in violation
of Section 8(a)(1). "
The letter to all employees, from Respondent's' Executive
Director Bunker, warning them that bringing in the Union
would result in slowing down their receipt of benefits
contemplated for them, was a threat of reprisal if the
employees supported the Union, and an implied promise of
benefits if they rejected the Union, Felsa Knitting Mills, 208
NLRB 504 (1974), in violation of Section 8(a)(l) of the Act.
A similar violation` was Recreation Director, Moore's
warning to employee Rozelle about loss of benefits and
privileges if the employees brought the Union into the
Home.
In the preelection meetings, the solicitation, of employee
grievances by'Admimstrator Garland in both the individu-
al and group meetings with employees, a practice' not
previously- adopted by'Respondent, held-out the implicit
promise that Respondent, would' correct- any inequities, it
discovered and therefore make union representation
unnecessary, Reliance Electric Co., 191 NLRB 44;' 46
(1971), constituting the conduct a violation of Section
8(a)(1) and interference with the freedom of choice of the
employees in the election.5
Respondent's maintenance prior to the-election of a rule
prohibiting all 'solicitation, -'anywhere at the Home by
anyone, without approval 'by the Administrator, was a
violation of Section 8(a)(1) of the Act, because an
employer's rules that prohibit employees from soliciting
fellow employees for self-organizational and other purpos-
es under Section 7 of the Act in nonworking areas on
nonworking time are presumptively invalid as an unreason-
able impediment on the freedom of communication
essential to exercise, of , the employees' Section 7 rights,
absent special circumstances evidencing necessity of such
rules to maintain production or discipline., Republic
Aviation Corp. v. N.L.R.B., 324 U.S. 793, 796-797, 801-804
(1945); Miller Charles and Co., 148 NLRB 1579, 1580-81
(1964). There was no showing of need for the restrictive
rule, indeed it was revised to eliminate some-of the
restrictions after the election.
5 Respondent did not rebut the inference that it was making such a
D. Postelection Actions of Respondent,
The,election at the Home,was conducted on August 8
and 9, 1974, and the ballots were counted, on August-9.
Employee Karen Milton, a nurses aide and relief charge
nurse for the past, 7 years, testified that she saw and talked
with Administrator Sister Patricia Garland on-the morning
that the ballots were counted. (Employee Milton correctly
described the day by the event, -but also erroneously
referred to it as August 10 instead of August 9.) According
to employee Milton, Sister Patricia was standing in her
office door 'when she engaged'' employee Milton in
conversation. Sister Patricia 'told employee Milton . the
ballots were going to be `counted and she hoped the result
came out in favor of St. Anne's and not the Union.
Further, 'she said, there had not been any confusion before
and now people had come iii trying to start confusion in
the Home; St. Anne's didn't look for them, they came'to
St. Anne's for employment, and the door, could swing both
ways.
Administrator Garland first denied talking'to employee
Milton but- it became clear as the questioning progressed
that she denied talking to Milton on August 10' because
that'was a Saturday, when 'she was not normally at the
Home. Then she conceded talking' to' employee Milton but
couldn't remember when, and ultimately remembered
talking to Milton on August 9 inviting,her and her mother
to, the victory party that followed the' Ballot counting. I
credit employee Milton's testimony. '
The ballots were counted on the morning' of August 9,
and according 'to employees Bennett, Rivers,-add Milton,
Sister'Patricia announced the result to the employees, over
the public address system. According to the employees,
Sister Patricia thanked those who, voted for the-Home and
expressed her appreciation that the Union did not win,, and
announced that there would be a luncheon or party in 'ihe
front parlor starting at I 1 a.m. According to the testimony
there. was no practice to celebrate occasions with the
employees in August, 'normally there is an annual ,Christ-
mas dinner and an annual "appreciation day" party; both
_preplarined functions.
Employee Milton testified that Director of Nursing Sister
Mary Ann was helping to serve the food at the party and as
she did, said that all of the old people had to stick together
and she was glad that the Home won.
E. Additional 8(a)(1) Findings.
As a continuation of the pattern of preelection threats of
reprisal, section B and C, supra 'the statement of Admmis-
trator Garland to employee Milton on the day the election
ballots were counted, that the door could swing both ways
for employees who brought confusion to the Home by
bringing in the Union, was a further threat of discharge for
supporters of the Union, of a piece with the similar threat
to a group of employees on July 30, 1974. Loggins Meat
Co., 199 NLRB at 294.
The victory party given by Respondent on the same day,
after the ballots were counted, in light of the supervisors'
contemporaneous statements to the employees and the
promise, as was held to be the case in Uarco Inc , 216 NLRB No 2 (1975)
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior conduct of Respondent in violation ; of theAct, was in
the nature of a reward for having rejected the Union,
Shulman s Inc:-of luorfolk, 208 NLRB 774 , (1974), motivat-
ed by, Respondent 's desire to defeat the Union 'rather than
a legitimate business consideration , Riviera Manor Nursing
Home, Inc.,' 186 NLRB 806, 815 ( 1970), and a" violation of
Section • 8(a)(1) of the Act.
F. Postelection Discharges
On August 27;,1974, Respondent suspended employee
Olivette' Mondaine , and thereafter on September 10, 1974,
converted the, suspension into a discharge.
On September ' 19, 1974 , Respondent discharged einploy-
ee,Bedell Stribling.,,
,As already ,indicated (section B, supra), both were nurses
aides who worked in the same unit , One Main, on the
daytime shift, under Supervisor ,Alma Kinsella . Mondaine
had ,been ` an, employed since 196$ , Stribling had been an
employee since 1970.
Both employees , Mondaine and Stribling , were good
workers and dependable 'employees , according to Supervi-
sor Kinsella (and see Exhibit Resp . 7b, re - employee
Stribling), and 'the personnel manager of the Home,
Jacquelyn Jones, and Personnel Coordinator, Harold
Hearing of the De Paul Center , were aware of their good
rating . Neither employee had had any disciplinary prob-
lems with Respondent ; nor, had "there been an r violations
of rules problems until-the alleged violation in connection
with their discharges in September 1974.
As already described , employees Mondaine and Stribling
were active in organizing the employees for the Union in
June-July ' 1974 , and there was evidence that their union
activity was known to Supervisor Kinsella , to Director of
Nursing Sister, Mary , Ann, and to Administrator Sister
Patricia Garland '(see section B, supra), although there was
no admission on Respondent 's side of specific knowledge
concerning the union activities of Mondaine and Stribling.
Also, as already noted (under section B, supra), employee
Mondaine had been a leader' among the employees since
1969, representing a ' group of them on a council for
employee problems established under the previous admin-
istration of the ' Home, but 'disbanded after current
Administrator Garland took charge of the Home.
`On' July 31 , 1974, `both employees Mondaine and
Stribling were injured in a common accident on the floor of
the Home . Mondaine was helping Stribling (a very slight
person) move , a very heavy patient out of bed into a
wheelchair , when the chair flipped out and both employees
fell to the floor , each hurting her back . Both were given
emergency treatment at Respondent 's De Paul Hospital.
6 Dr. Payne gave each' if report for the employer, saying that he was
treating her for, a low back injury and that she was unable^to return to work
(G C. 7 dated August 7, for Mondame; G.C. I I dated August 13, for
Stribling). which each employee turned in to Supervisor Kinsella or
Personnel Manageriones
'7 This, qualification would not have constituted any substantial change in
employee Mondame's duties since her principal function'pnorto the injury
of July 31, had been washing and setting the hair of the,women patients and
recreation work with them
iA The testimony of employees Mondaine and Stribling and -Supervisor
Kinsella indicated. that in her several telephone conversations with the two
employees over the period of their inability to work, Kinsella gave each of
them indications that their discharges were being prepared In this
Each made an unsuccessful attempt to return to duty
thereafter and as a result were sent back for additional
medical treatment at the Hospital, in the ensuing week for
Mondaine and to August 12 for Stribling. Each employee
decided she wanted treatment by her personal physician,
Dr. Vaughn Payne, and went under his care and treatment
with the knowledge and consent of Supervisor Kinsella and
Personnel Manager Jones (though Jones gave each the
dubious advice that they were covered by workmen's
compensation only as long as they were being treated by
Respondent's physician). Employee Mondaine started
treatment with Dr. Payne commencing August 7, 1974, and
employee Stribling began treatment with Dr. Payne
commencing August 13; 1974.6
Personnel Manager Jones testified that she kept in touch
with Dr. Payne and learned from him on August 20 that
neither employee was able to return to work but he would
keep her informed of progress. On August 23, Jones was
informed by Dr. Payne that he had seen employee
-Mondaine on August 21 and that she could return to light
duty on August 26, and thereafter to regular duty. Jones
also got the same , information from Supervisor Kinsella
who had heard from employee Mondaine that Dr., Payne
had given her a certificate saying she could return to work
August 26 (Exh. G.C. 8, dated August 21, 1,974, which
suggested she do no heavy lifting for 2 weeks).?
However, as Personnel Director Jones and- Supervisor
Kinsella, testified, Kinsella did not tell employee Mondaine
tq, report to work August 26;, instead Kinsella told
Mondaine to telephone in, on August 26. This was because,
said Jones, for some time previous Director of Nursing
Sister Mary Ann had been insisting on firing employee
Mondaine (and employee Stribling) and the, discussions
between Sister Mary Ann, -Supervisor Kinsella , and, Jones
had been, to rind justification under personnel policies for
discharges At the same time , however, according to, both
Jones and Kinsella, the Home,was running shorthanded of
help, . and many employees who put in overtime were
complaining.
When employee Mondaine telephoned as directed on
Monday, August 26, she was told by Supervisor Kinsella to
come in the next day, Tuesday, August 27, to see Director
of Nursing Sister Mary Ann and Kinsella. Mondaine came
in with the doctor's certificate saying she could return to
work (which all present already knew about), but was, told
by Sister Mary Ann that she, was suspended for not
following personnel policy rules concerning calling in when
she, was not able to work,9 according to Supervisor
Kinsella . Sister Mary Ann, 'who was allegedly" the moving
force in the discharges of Mondaine and Stribling, did not
connection, Kinsella testified that Director of Nursing Sister Mary Ann had
her prepare specific chronologies on the two employees, including making
notations , not normally included in her usual chronologies , such as that the
employee did not call in today. The entries were not necessarily
contemporaneous but included some made later and some by direction of
Sister Mary Ann. Usually, said Kinsella, when an employee is out under
doctor's care there is no need for a chronological report. In the light of her
testimony, Kinsella admitted that the chronologies were not wholly
accurate'
9 Suspension, rather than discharge at this point, was the result of advice
from Harold Hearing, the overall coordinator of personnel services of the
De Paul Community Health Center, according to Personnel Manager Jones,
ST. ANNE'S HOME
testify, and what was said about her actions came mainly
from Jones and Kinsella.
The suspension of employee Mondame was followed
shortly by discharge. She was called in on September 10,
1974, and told she was discharged by Supervisor Kinsella.
On both the occasion of her suspension and discharge,
employee Mondame refused to sign papers she was asked
to sign, on the ground that they misstated matters relating
to alleged,, actions or inactions. As Kinsella testified,
between the suspension of August 27 and discharge of
September 10 there was no additional offense with which
Mondaine was charged.
Turning to the discharge of employee Stribling, this
occurred on September 19. Supervisor Kinsella testified
that at the Home we knew all along she was really under
doctor's care and not able to go back to work . Nevertheless
pursuant to Nursing Director Sister Mary Ann's order,
Kinsella kept a special chronology on employee Stribling,
as in the case of employee Mondaine . Stribling testified
that after her hospital treatments she kept in regular touch
with Supervisor Kinsella by call once or twice a week
telling of her visits to Dr. Payne and that she would return
to work when the doctor released her . Kinsella confirmed
that Stribling was faithful about calling, calling in at least
once a week . Kinsella also confirmed that she told Stribling
not to come back to work until she was able to work, but
that she was needed.
However, when Supervisor Kinsella heard from employ-
ee Stribling on September 18, according to Kinsella, she
told Stribling to come in the next day, without telling her
she was discharged , and, when Stribling came in on
September 19, gave her discharge papers to sign. Accord-
ing to Stribling , Supervisor Kinsella told her before she
came in that she was to be fired and that Sister Mary Ann
had Kinsella doing the "dirty work" as with Olivette
Mondame. Stribling would not sign the discharge papers
claiming they contained misstatements.
G. 8(a)(3) and (1) Findings
Personnel Manager Jones conceded that Sister Mary
Ann wanted both employees Mondame and Stribling fired,
though the Home was shorthanded.i° Jones also conceded
that in the management decision to discharge them there
was no discussion or consideration that the two employees
were good and dependable employees or that there had
been no previous offense or violation of any rules charged
to either employee. The only consideration, said Jones, had
been whether there was an infraction of personnel policies
by the two employees.
The alleged infraction by each was the same, that each
had failed to call the supervisor when absent, and had
failed to apply for a leave of absence prior to the expiration
of the allowable sick time.
In the case of the alleged call-in violation it was not clear
whether Respondent was interpreting its rules to require
daily call-in, or call-in once every 3 days, or call-in as the
supervisor decided, in this type of absence; in any event,
the rules cited at trial (from the current manual on
on the ground that Jones ought to take her time and assemble and review
the record for discharge
to Jones also indicated that'there was temporary help available to tide
847
personnel policies and benefits, Exh. G.C. 5, p. 3, par. 1, p.
9 par. 2 and 4),stated that when an employee must be
absent he must call the supervisor as soon as possible, and
3 days unexcused absence in a 30-consecutive day period
was grounds , for discipline up to and including discharge.
There was evidence that either daily or 3-day reporting was
not applied to prolonged absences in the cases of named
employees who had undergone operations or, suffered
injury or illness that incapacitated them for a period of
time. Personnel Manager Jones conceded that notification
was the important thing, and that notification of a
supervisor that an employee was not going to report for
work because she was or would be hospitalized would
satisfy the requirement of reporting even though the
employee did not call in every 3 days while in the hospital.
Thus, the discriminatory and artificial application of the
call-in rule to employees Mondaine and Stribling was quite
evident from the admissions (see section F, supra) that
Respondent was well aware from hospital and doctors of
the nature of the injuries , treatment, and incapacitation of
employees Mondaine and Stribling.
In the matter of applying for leave of absence prior to
expiration of the sick time, Personnel Manager Jones
pointed out that compliance with- the rule helps the
employee retain her employee status and seniority, and
helps Respondent keep the employee as an employee. She
admitted, as between , herself and the supervisor, giving
notice and help with application forms to other employees
(e.g. employee Sams ) to apply for and obtain such leave of
absence, but did not provide similar notice or help to
employees Mondaine and Stribling. Indeed Jones didn't
know when, after the injury, of July 31, Mondaine's sick
leave had run out, thought it was in the neighborhood of 4
days, but said it was not noted in Mondaine's file, where it
should have been. In Stribling' s case, Jones thought the
sick leave had been a little longer.
The failure to aid the two incapacitated employees to
maintain employee status by either calling to their
attention or providing the necessary forms for applying for
leave of absence was not only discriminatory but corrobo-
rative of the intention to find the technical basis for firing,
which Personnel Manager Jones ' said she needed to back
up Sister Mary Ann's determination, made well before the
actual discharges, to be rid of the two employees. In this
connection it should be noted that both employees
Mondaine and Stribling came to the Home on August 8,
1974,- to vote in the Board election , and Sister Mary Ann
was heard to observe thereafter to another supervisor, in
the presence of employee Anne Bennett Beals, that Olivette
Mondaine had been too sick to come to work but not too
sick to come to vote and collect her paycheck. In view of
Sister Mary Ann's opposition to the Union (see section D,
supra), this was not a'remark she would have been likely to
make if she thought employee Mondaine was also an
opponent of the Union who had come in to vote against
the Union.
The evidence , already summarized under prior sections
of this Decision , , established the strong union animus of
over the temporary shortage , but that neither Sister Mary Ann nor she
availed' themselves of such, using instead the regular staff on overtime to fill
the shortage , which the regulars preferred , up to a point
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's management (which Personnel Manager
Jones admitted sharing), and the knowledge of manage-
merit, particularly Director of Nursing Sister Mary Ann,
Supervisor Kinsella, and Administrator Sister Patricia
Garland, concerning the union organizing that went on
among the employees at the Home. Employees Mondaine
and Stribling were among the activists for the Union.ii
Respondent's search forfinding of a technical reason in the
personnel rules ' to discharge the two employees rather than
retain them as the admittedly experienced and able
employees they were, suggests that the reason was a pretext
to conceal the antiunion motivation of the discharges.
Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470
(C.A. 9, 1966). The discriminatory application of the rules
to these two employees accentuates the obviousness of the
pretext. None of the alleged faults comprising the claimed
causes for discharge had been the subject of warning or
reprimand to the employees, and, in view of their good
work record and the absence of any previous disciplinary
problems, the severity and finality of the discipline of
discharge is inexplicable alone on the -grounds alleged by
Respondent. Anthony v. N.LR.B., 163 F.2d 22, 26-27
(C.A.D.C., 1947), cert. denied 332- U.S. 773.
The question then is " `not whether there existed a valid
ground for discharge, but whether the stated ground was
the real one ' J. P. Stevens and Co. v. N.L.R.B., 380 F.2d
292, 300 (2d Cir. 1967)." N.LR.B. v. Ulbrich Stainless
Steels, Inc., 393 F.2d 871, 872 (C.A. 2, 1968). In my view
Respondent 's stated ground was designed to conceal the
unlawful motive of reprisal for union support to discourage
further union support and membership among the employ-
ees. Even . assuming that a valid ground for discharge had
existed , it does not constitute a defense to the unfair labor
practice where the discharge was not predicated solely on
that ground but was based, even partly, on a desire to
discourage union adherence, N.L.R.B. v. Nachman Corp.,
337 F.2d 421, 423-424 (C.A. 7, 1964).
H. Objections to Conduct Affecting the Election
The substantial violations of Section 8(a)(1) of the- Act,
committed by Respondent between the filing of the
petition for the representation election (June 10, 1974) and
the holding of the election (August 8-9, 1974), destroyed
the "laboratory conditions," Neuhoff Bros, Packers Inc. v.
N.LR.B., 362 F.2d 611, 613 (C.A. 5, 1966), desirable for
the conduct of a Board election , and interfered with the
free choice of the employees. Indeed, "conduct violative of
Section 8(a)(1) is, a fortiori, conduct which interferes with
11 Knowledge of that fact, though not directly admitted by Respondent,
may be inferred from circumstantial evidence, including the inference of
knowledge drawn from the facts surrounding an obvious pretextual
discharge, N LR B v Wal-Mart Stores, Inc., 488 F 2d 114, 116, 117-118
(C A. 8, 1973).
12 The parties at the opening of trial took the position that the basis for
the objections to the election was the same as the basis for the alleged unfair
labor practices (prior to the election), that each "tracked" the-other, and
that a decision on the complaint would cover the objections to the election
As the trial was about to close, General Counsel took the somewhat
different position that the Regional Director's grant of consolidation of the
objections to the election with the unfair labor practice case consti tuted a
grant of reconsideration of the Regional Director's report and recommenda-
tions on the objections, that the report had therefore not matured, and the
entire matter of the objections had been opened for hearing Apparently this
the exercise of a free and untrammeled choice in an
election . . . because the test of conduct which may
interfere with the `laboratory conditions' for an election is
considerably more restrictive than the conduct which
amounts to interference, restraint, or coercion which
violates Section 8(a)(1)." Dal-Tex Optical Co. Inc., 137
NLRB 1782, 1786-87 (1962); Pace, Inc., 167 NLRB 1089,
1098-99 (1967).
A fortiori, the Union has established its Objections A, B,
D, E, and other acts and conduct, listed in the Regional`
Director's report on objections of September .20, 1974
(Exh. G.C. lbb), as conduct of the Respondent affecting
the results of the election unfairly.12
Accordingly, the results of the election of August 8-9,
1974, should be set aside and another election held.
CONCLUSIONS OF LAW
1. Respondent's preelection conduct, that created for
the employees of the nursing home an atmosphere of fear
and futility in selecting the Union as a bargaining agent, by
threat of closing the nursing home if the Union were
chosen, by threat of discharge, loss of benefits - and
privileges, and other- reprisal for voting for the Union, by
stress on the futility of choosing the Union and the
destructive effect of strikes as the alleged sole bargaining
implement, by coercive interrogation concerning the
Union or voting for it, by promise of benefits if they
rejected the Union, by soliciting grievances and implicitly
promising to correct them, and by maintenance of a rule
prohibiting solicitation for self-organizational purposes in
nonworking areas on nonworking time, constituted unfair
labor practices in violation of Section 8(a)(l) of the Act,
and deprived 'the employees of the exercise of a free choice
in the representation election of August 8-9, 1974,
requiring that the results of the election be set aside and
another election held.
2. Respondent's postelection conduct, threatening dis-
charge for supporters of the Union and giving a victory
party to the employees as a reward for having rejected the
Union, constituted further unfair labor practices in
violation of Section 8(a)(1) of the Act.
3. Respondent's postelection suspension and discharges
in August and September 1974 of employees Mondaine
and Stribling because of their support of, and activities for,
the Union and in order to discourage, such activities or
union membership of its employees, constituted unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
view left uncovered by the evidence on unfair labor practices Objection G,
namely, that for a brief period of time the employer had posted a notice of
the election, in addition to the official Board notice, giving incorrect hours
for the voting time The Union was able to produce only one witness,
though it claimed there were others, and only the witness' recollection of the
notice Respondent's Administrator denied the existence or, posting of any
notice that gave the dates and hours for voting other than the Board notice
(Exh. Resp 14) Respondent produced another notice that it said it posted
June 24, 1974 (Exh Resp 15), telling the employees that arrangements had
been concluded with the Board for holding an election on August 8 and 9
(without specifying hours) and that more information would follow In view
of the meagerness of the Union's proof, and the possibility that the witness
for the Union may have confused her claim with Exh Resp 15, 1 have
overruled Objection G
ST. ANNE'S HOME
4. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
In, connection with the unfair labor practices , it will be
recommended that the Respondent
(I) 'Cease and desist from its unfair labor practices.
(2) Offer to reinstate employees`Olivette Mondaine and
Bedell Stribling with backpay from the time of suspension
or discharge, backpay to '-be computed on a quarterly basis
as set forth in F. W. Woolworth Company, 90 NLRB 289
(1950), approved in N.L.R. B. v. Seven-Up Bottling Co., 344
U.S. 344 ( 1953), with interest at 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), approved in Philip Carey Mfg. Co. v. N.L. R.B., 331
F.2d 720 (C.A. 6, 1964), cert. denied 379 U.S. 888.
(3) Post the notices provided for herein.
Because the Respondent violated fundamental employee
rights guaranteed by Section 7 of the Act, and because
there appears from the manner of the commission of this
conduct an attitude of opposition to the purposes of the
Act and a proclivity to commit other unfair labor practices,
it will be further recommended that the Respondent (4)
cease and desist from in any manner infringing " upon the
rights guaranteed by Section 7 of the Act. NL.R.B. 'v.
Entwistle Mfg. Co., 120 F.2d ' 532, 536 (C.A. 4, 1941); P. R.
Mallory and Co. v. N.L.R.B., 400 F.2d 956, 959-960 (C.A.
7, 1968 ),, cert . denied 394 U'.S . 918; N.L.R.B. v: Bama
Company, 353 F.2d 323, 324 (C.A. 5, 1965).
In regard to the representation election of August 8 9,
1974, it will be recommended that the election be set aside
and another election held.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER13
Respondent , its officers , agents, successors , and assigns
shall:
1. Cease and desist from:'
(a) Suspension or discharge or threat of suspension or
discharge of employees because they engage in or support
union activities.
(b) 'Discouraging employees from support'of or member-
ship in the Union or other labor organization by suspen-
sion or discharge or other discrimination affecting their
tenure and conditions of employment. .
(c) Threatening to close the nursing home if the
employees select the Union as bargaining agent.
(d) Threatening 'loss of benefits and privileges if
employees vote for the Union.
(e) Stressing the futility of employees choosing the Union
as bargaining agent.
13 In the event no exceptions are filed as provided by Sec . 1,02 46 of the
Rules and Regulations of the National -Labor Relations Board , the findings,
conclusions, recommendations , and Order herein shall , as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes
849
(f) Coercive interrogation of employees concernin g the
Union or voting for it.
(g) Promising benefits to employees if they reject the
Union or giving parties as reward for rejecting the Union.
(h) Soliciting from employees grievances and promising
or implicitly promising- to correct them, while Union
organizing or campaigning is in progress.
(i) Maintaining or enforcing a rule prohibiting employees
from soliciting for self-organizational purposes in non-
working areas of the nursing home on nonworking time.
(j) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make employees Olivette Mondaine and Bedell
Stribling whole , in the manner set, forth - in the section of
the decision entitled "The Remedy," for any loss of
earnings incurred by each as a result of their suspension or
discharge in August and September 1974.
(b) Offer to employees Mondaine and ,Stribling immedi-
ate and full reinstatement to their former jobs, or, if the
jobs no longer exist, to substantially equivalent positions,
without prejudice to the seniority or other rights and
privileges of each.
(c) Preserve and, upon request,' make available to the
Board and its agents, for examination and copying; all
payroll records , social security payment records , timecards,
personnel records and reports, and all other records
necessary' to ascertain the' backpay due under the terms of
this Order. -
(d) Post in. the nursing home at St. Louis, Missouri,
copies of the attached notice marked "Appendix:" 14
Immediately upon receipt of said notice, on forms to be
provided by the Regional Director for Region 14 (St.
Louis, Missouri), the Respondent shall cause the copies to
be signed by one of its authorized representatives and
posted, the posted copies to be maintained for a period of
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the, date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED in Case 14-RC-7675, that
the Board sustain the Union's Objections A, 'B, D, E, and
"Other Acts and Conduct" listed in the Regional Director's
report, to the conduct of Respondent affecting the results
of the election of August 8-9, 1974; set aside the results of
the election; and, upon the Union's request, hold a new
election , after severance of Case 14-RC-7675 from the
consolidated proceeding.
14 In the event that the Board 's 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."