Fern Terrace Lodge Of Bowling Green Inc

National Labor Relations Board - Board Decisions

Oct 18, 1989

297 N.L.R.B. 8 (N.L.R.B. 1989)

8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fern Terrace Lodge of Bowling Green Inc and
General Drivers Warehousemen and Helpers
Local Union #89 affiliated with the Interna
tional Brotherhood of Teamsters Chauffeurs
Warehousemen and Helpers of America AFL-
CIO Cases 9-CA-24088 9-CA-24119 9-CA-
24185 9-CA-25151 and 9-CA-25176
October 18 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT HIGGINS AND
DEVANEY
On February 21 1989 Administrative Law
Judge Richard H Beddow Jr issued the attached
decision The Respondent filed exceptions and a
supporting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge s rulings findings 1 and
conclusions 2 and to adopt the recommended
Order as modified 3
The Implication of Futility in the March
Speech
The Respondent is a health care institution pro
viding residential care services for approximately
114 elderly residents with a staff of about 22 em
ployees In January and February 1987 4 some of
the Respondent s employees began a union organi
zational effort On March 1 and 2 Administrator
Molly Banks read a prepared speech to employees
at two mandatory meetings
The judge found that in this speech Banks said
the Respondent would not agree to anything the
Union requested and that it could decrease wages
rather than increase them The judge concluded
that these statements unlawfully implied that the
employees selection of the Union as their bargain
ing representative would be futile The Respondent
excepts to this finding maintaining that its speech
Th R po de t h pted to om f the j dg dblty f d
gs Th B d s eat bl sh d pol cy s ot to o ule dm t t e
law j dg ed b I ty ol t o s 1 th lea p po d of all
th el t e de c e s th t th y e cor t St d dDy
W 11 P oducts 91 NLRB 544 (1950) fd 188 F 2d 362 (3d C r 1951)
W h caeflly m edther od df d ob fo e es g
the f d g
The j dg fou d cert th alleg t o the compl t to b me
tl d ecomm d d they b d m d No pt o we e fled to
these f d gs d we dopt th j dge s omme dat o
W h II mod fy th omm d d 0 de co Sat t w th ou f d
g t fo th els wh th s d a d sh 11 I de th m
m dd0d o t dadl g g to mdy th fsaltob g
iolat o that the Respo de t will if a g e me t is r h d mbody
s g ed w itte g eeme t
All d tea a e 1987 less otherw ot d
was merely an accurate statement of the law We
agree with the Respondent as it appears that the
judge inaccurately reported the comments made by
Banks
A copy of the speech given by Banks was en
tered into evidence at the hearing Our examination
of this document reveals that Banks stated
You should know that voting the union in
does not automatically guarantee any increase
in wages or other benefits because under the
law a company does not have to agree to any
demand or proposal that a union might make
Even if it got in here a union couldn t force
us to agree to anything that we could not see
our way clear to putting into effect from a
business standpoint
[W]e have just as much right under the law to
ask that wages and other employee benefits be
reduced as the union would have to ask that
they be increased
We find that these remarks are an accurate state
ment of the law and as such do not imply that the
employees selection of the Union would be futile
See Clark Equipment Co 278 NLRB 498 499-500
(1986) Accordingly we reverse the judge s finding
that the Respondent violated Section 8(a)(1) in this
regard
The Reference to Permanently Replace
The Respondent also excepts to the judge s find
ing that its statement in the March speech that eco
nomic strikers can be permanently replaced violat
ed Section 8(a)(1) 5 In that speech Banks stated
that [a]n employer has the legal right to perma
nently replace the striking employees and the re
placed striker is not automatically entitled to his
job back just because the strike ends The judge
characterized the tenor of the Respondent s re
marks as implying a strike would result in job loss
through replacement or firing Although the Re
spondent did not state that employees would be
fired we agree with the judge that the Respond
ent s statement unlawfully implied a threat of job
loss as a result of a strike and thus interfered with
employees Section 7 rights
In Eagle Comtronics 6 the Board recognized that
an employer cannot be expected to fully articulate
Memb D ey I ds t cc as y to pass o th s e cept o He s
g me t w th othe f d g of the j dg th t the R po de t o
1 t d S 8( )(1) by t 11 g ts mployees th t th y co Id b p m tly
epl c d fo mply vot g yes t ke ot H the fo s es o
d to pass o th dd t onal as the s
263 NLRB 515 (1982)
297 NLRB No 2
FERN TERRACE LODGE 9
employees' Laidlaw7 rights in every discussion con-
cerning economic strikes The Board stated that an
employer "may address the subject of striker re-
placement without fully detailing the protections
enumerated in Laidlaw, so long as it does not
threaten that, as a result of a strike, employees will
be deprived of their rights in a manner inconsistent
with those detailed in Laidlaw " 8 Here, the Re-
spondent's statement goes beyond a mere recitation
of the employer's right to permanently replace eco-
nomic strikers and states, contrary to Ladlaw, that
as a result of a strike, employees are not automati-
cally entitled to their jobs when the stnke ends
When economic strikers make unconditional
offers to return to work, they are automatically en-
titled to their jobs back If those jobs are not avail-
able, employees do not lose their entitlement to
their jobs, but are simply placed on a preferential
hinng list and wait for openings to occur Thus, by
implying that employees would be deprived of
their Lazdlaw rights, the Respondent's remark con-
stitutes a threat that employees will be retaliated
against for engaging in a strike 9 Accordingly, we
adopt the judge's finding that the Respondent vio-
lated Section 8(a)(1) of the Act
Sowell's Discharge
In adopting the judge's finding that employee
Reva Sowell's discharge violates Section 8(a)(3) of
the Act, we note that his conclusion is supported
by evidence of disparate treatment The General
Counsel elicited testimony concerning an incident
involving employee Lachiel Thompson, which oc-
curred 1 or 2 weeks after Sowell was discharged
On the day at issue, Thompson reported for work
and called Banks to ask if she should distribute the
medication that morning Banks told her that she
should Thompson then encountered employee
Brenda Cline, who was already distributing the
medication The two employees exchanged some
heated words, and Thompson left the facility
Thompson did not call Banks before she departed
Thompson was called into work later that day to
7 Laid/ow Corp, 171 NLRB 1366 (1968) Under Laid/ow, permanently
replaced stnkers who have made unconditional offers to return to work
"are entitled to full reinstatement upon the departure of replacements
unless they have in the meantime acquired regular and substantially
equivalent employment Id at 1370
9 263 NLRB at 516
9 See Hajoca Corp, 291 NLRB 104, 105 (1988) (employees told that if
they went on strike they could be permanently replaced and they would
no longer have jobs with the respondent), Emerson Electric Co 287
NLRB 1065 (1988) (employees told that that if they went out on strike
the respondent could hire permanent replacements and did not have to
take an employee back when the strike settled), Gino Morena Enterprises,
287 NLRB 1327 (1988) (employees told It would do them no good to
strike because the respondent would bring in other employees and the
strikers would probably lose their jobs) See also Eagle Comtronics, supra
at 516 fn 8
fill in for an employee on the afternoon shift The
fact that Thompson left her shift without calling
Banks first and suffered no repercussions indicates
that the Respondent's rule in this area was not one
that was followed in all circumstances We find
that this difference in the treatment of Thompson
and Sowell is evidence of disparate treatment
Banks testified that the reason Thompson was
not disciplined for the incident was because Banks
had made a scheduling error and one too many
persons was assigned to the morning shift that day
Clearly, Banks felt that the circumstances in
Thompson's situation justified a suspension of the
Respondent's rule that if an employee left work
without calling an administrator, the employee
would be fired Sowell's situation presented an
equally unique set of circumstances Banks was
aware of Sowell's nervous condition and the fact
that Sowell had particular reason to be , afraid of
working the "11 to 7" shift in light of a recent as-
sault on another employee working that shift
Banks had promised Sowell that security would be
provided on the night in question, but in fact no se-
curity was provided
Banks also contrasted the Thompson incident
with the Sowell incident by contending that, unlike
Sowell, Thompson had not created a situation in
which part of the facility may have been uncov-
ered Although Sowell did not call an administra-
tor or direct another employee to do so, she was
aware that employee JoAnn Vice intended to call
Banks and inform her of the situation 10 Vice did
call Banks, and Banks was able to find replace-
ments for Sowell so that no part of the facility was
left uncovered at any time Accordingly, we find
that this difference in the treatment of Thompson
and Sowell, in light of the extenuating circum-
stances of Sowell's decision to leave work, further
indicates the Respondent's application of a different
standard to an employee it had identified as a union
"troublemaker" than to an employee whose posi-
tion on the Union was not known Accordingly,
we find that the Respondent violated Section
8(a)(3) by discriminatorily discharging Sowell "
10 The judge Incorrectly characterized Vice s testimony as stating that
Sowell requested Vice to call Banks for her In fact, Vice testified that
Sowell stated she was going home, and Vice responded by saying, Well,
Reva, let me know if you re going home or not because we need to tell
Molly [Banks] and we need to get somebody in here to cover your
floor' Vice further testified that Sowell refused to call Bank„s herself, but
that she, Vice, did call Banks at that time and informed her of the situa-
tion
" In finding that the discharges of employees Sowell and Pulliam vio-
lated Sec 8(a)(3) and (1) of the Act, the judge Inadvertently misstated
the standard for the General Counsel s establishment of a prima facie case
in Wright Line, 251 NLRB 1083, 1089 (1980), which states 'we shall re-
quire that the General Counsel make a prima facie showing sufficient to
support the inference that protected conduct was a motivating factor in
the employer's decision"
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Fern Terrace Lodge of Bowling Green,
Inc. Bowling Green, Kentucky, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order as modified
1 Substitute the following for paragraph 1(a)
"(a) Interrogating employees about union activi-
ties, implying to employees that the selection of a
union would be futile, creating the impression that
union activities are under surveillance, promising
benefits during the course of a union campaign,
and threatening employees with loss if jobs of they
choose to be represented by a union or if they
voted in support of union activities"
2 Substitute the following for paragraph 2(b)
"(b) Bargain in good faith with the Union, on its
request, as the employees' exclusive bargaining rep-
resentative by meeting and negotiating at reason-
ably frequent times, and if an agreement is reached,
embody it in a signed written agreement"
3 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us -to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
'To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT interrogate you about your union
activities
WE WILL NOT imply to you that the selection of
a union would be futile
WE WILL NOT give the impression that your
union activities are under surveillance
WE WILL NOT promise benefits during the course
of a union campaign, and threaten you with loss of
jobs if you choose to be represented by a union or
if you vote in support of union activities
WE WILL NOT suspend or discharge any of you
for engaging in activities protected by Section 7 of
the Act •
WE WILL NOT refuse to bargain in good faith
with General Drivers, Warehousemen and Helpers,
Local Union #89, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of Amenca, AFL-CIO as the
certified collective-bargaining representative of the
employees at its Bowling Green, Kentucky facility
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of your rights guaranteed by Section 7 of the
Act
WE WILL offer Ann Pulliam and Reva Sowell
immediate and full reinstatement and make them
whole for the losses they incurred as a result of the
discrimination against them, with interest
WE WILL bargain in good faith with the Union,
on request, as the employees' exclusive representa-
tive by meeting and negotiating at reasonably fre-
quent times, and WE WILL, If an agreement is
reached, embody it in a signed written agreement
FERN TERRACE LODGE OF BOWLING
GREEN, INC
Damon W Harrison, Esq , for the General Counsel
John T Lovett, Esq and Wells T Lovett, Esq , of Owens-
boro, Kentucky, for the Respondent
James K Howell, of Louisville, Kentucky, for the Charg-
ing Party
DECISION

A ,A . .1
STATEMENT OF THE CASE
RICHARD H BEDDOW, JR , Administrative Law Judge
This matter was heard in Bowling Green, Kentucky, on
May 25 through 27, 1988 Briefs subsequently were filed
by the General Counsel' and Respondent The proceed-
ings are based on charges filed March 13 and 19 and
Apnl 7, 1987, 2 and February 25 and March 4, 1988, by
General Drivers, Warehousemen and Helpers, Local
Union #89, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO The Regional Directoi's third con-
solidated complaint and order consolidating the several
cases issued April 8, 1988, alleges that Respondent, Fern
Terrace Lodge of Bowling Green, Inc , of Bowling
Green, Kentucky, violated Section 8(a)(1) of the Nation-
al Labor Relations Act, by implying that the selection of
a union as collective-bargaining representative would be
futile, by coercively interrogating employees about the
- ' In his brief, General Counsel reviewed his motion to amend the
pleadings to confirm with the proof, a motion madvertantly not ruled on
at the hearing The motion is granted See White Plains Lincoln Mercury,
288 NLRB 1133 at fn 21 (1988)
2 All following dates will be in 1987 unless otherwise indicated
FERN TERRACE LODGE 11
employees' union activities, impliedly threatening em-
ployees with a loss of jobs, by coercively requesting an
employee to vote against the Union, impliedly threaten-
ing employees with unspecified reprisals if they engaged
in union activities, by creating the impression that the
employees' union activities were under surveillance, by
impliedly threatening employees by accusing employees
who engaged in union activities of being "troublemak-
ers," by promising to transfer an employee to more desir-
able working hours if the employee would read library
books on the history of the Teamsters Union and report
on the reading material to the employees, by impliedly
promising increased benefits and improved terms and
conditions of employment during the course of the union
campaign by telling an employee that if she needed any-
thing she should see management, and by threatening
employees with loss of employment if they voted yes at
a union strike-vote meeting It is further alleged that Re-
spondent violated Section 8(a)(1) and (3) of the Act by
suspending and discharging employee Ann Pulliam and
by discharging employee Reva Sowell and that it also
violated Section 8(a)(1) and (5) of the Act by canceling
and/or failing to attend scheduled bargaining meetings
On a review of the entire record in this case and from
my observation of the witnesses and their demeanor, I
make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is a health care institution engaged in the
operation of a nursing home providing residential care
services for the elderly in Bowling Green, Kentucky It
annually denves gross revenues in excess of $100,000 and
it annually purchases and receives goods and matenals
valued in excess of $50,000 directly from points outside
Kentucky It admits that at all times material, it has been
an employer engaged in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act It also admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
Respondent's Bowling Green facility is a personal care
home for approximately 114 elderly residents with a staff
of 22 employees It is licensed and regulated by the State
and, among other things, must comply with certain mini-
mum staffing requirements and housekeeping cleanliness
standards The residents generally do not require a high
level of medical supervision or the critical or intermedi-
ate treatment given patients in a traditional nursing
home, however, they are given meals and assistance with
medical and personal care
Day-to-day operations of the home are supervised by
Molly Banks, who has been administrator at Bowling
Green since August 1986 During 1987 Monica Blair,
who is qualified and experienced as a licensed practical
nurse, served as assistant administrator to Banks Banks
reports directly to Carol Edwards, the general manager
of Dayco Rest Home of Owensboro, Kentucky, which
company owns and operates Respondent and four other
similar facilities
In the latter part of January and first part of February
1987, some of Respondent's employees began union orga-
nizational efforts and some employees, including
"Shelle" Lawrence, began wearing Teamsters Local 89
union buttons to work
On February 28 (a Saturday), Lawrence went to the
front office to check the schedule Administrator Banks
pointing to her union button which said "Smile The
Teamsters are coming," and asked Lawrence what it
was Lawrence testified that she said she could not talk
about it at the time and Banks then asked Lawrence if
she had ever dealt with unions before Lawrence replied
"no" and Banks explained that she had and that they
were a mess, Banks asked Lawrence what they had
promised her, and Lawrence again she said she could not
talk about it at this time Banks repeated that she had
dealt with unions before and that all they could offer
was union wages and no benefits and Lawrence then re-
sponded that given time, the Union could be good for
the Company and for the employees
Banks, who testified that she has a masters degree in
public administration and had dealt with another union
in her previous position, acknowledged that she asked
about the button but asserts that she then realized that
she could not ask that question and said, "forget I said
that"
Banks next called General Manager Carol Edwards in
Owensboro to report her observations on the union orga-
nizing effort Edwards instructed her to call Hamp
Moore and David Broderick, Respondent's local attor-
neys in Bowling Green The next evening, Sunday,
Banks and Edwards met with the attorneys, and Banks
was instructed to give a speech to the employees A
speech prepared by the attorneys was delivered to Banks
by Attorney Moore on Monday afternoon and, after a
brief discussion, it was agreed that she would also name
the four employees she thought were the main union
supporters She read the speech to one shift of employees
at a mandatory meeting around 2 p m on Monday and
then to the other group of employees the following day
Copies of the prepared speech given to employees and
the speech included in the following remarks
Now, I am not trying to engage in scare tactics, but
I think the union is scary I sincerely believe that
the union here could spell TROUBLE in great big
capital letters I think the best way to avoid trouble
is to stay away from the troublemakers—mainly, the
union organizers
•At this point, Banks read from a 'separate sheet of paper
and stated that she had been informed that the union or-
ganizers were Kevin Bailey, Reva Sowell, Peggy Con-
ners, and Shelle Lawrence and that the employees
should stay away from them
In accordance with the recommendation of Attorney
Moore, Banks and Edwards (who attended the group
meeting but did not speak) began calling employees one
at a time into the office for individual meetings, for the
admitted purpose of persuading them that Respondent
did not want a third party in the relationship between
the employee and management
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The content of these conversations and several other
occurrances form the basis for a number of unfair labor
practice charges otherwise discussed below The union
organizational effort continued two employees were dis
charged during March and April (as discussed below in
detail) an election was held on May 14 and the Union
was certified as collective bargaining representative on
May 27
Contract negotiations began August 11 and continued
at various dates through November 2 Attorney Moore
was the Company s chief spokesman and the individual
with the authority to speak and act on behalf of the
Company Banks and Edwards however also attended
most of the sessions The Union s representative and bar
gaining spokesman was Business Agent James (Kenneth)
Howell and Moore and Howell arranged the scheduling
of bargaining sessions
The specific allegation of the complaint regarding a
violation of Section 8(a)(5) relates to Respondent s can
cellation of meeting and failure to attend scheduled meet
ings between the dates of November 2 1987 and the
April 8 1988 On the latter date the complaint was
issued in the embraced proceeding which alleges a fail
ure to bargain in good faith Subsequently the Respond
ent resumed bargaining with the Union under the repre
sentatton of a successor attorney
The parties last met for negotiations in 1987 on No
vember 2 at which time it was agreed that the next bar
gaining session would be on November 17 That Novem
ber 17 meeting did not take place because Attorney
Moore canceled it late the afternoon of November 16
The location for the various meetings that occurred or
were scheduled was the courthouse in Bowling Green
less than 2 blocks from Attorney Moore s office Busi
ness Agent Howell s office is in Louisville Kentucky
approximately 120 miles from Bowling Green
Cancellation of the scheduled November 17 meeting
occurred after Howell already had traveled to Bowling
Green On November 24 Howell wrote to Moor, and
stated among other things that it looks like another
stalling tactic and suggested four dates for further meet
ings On November 30 Moore wrote to accept the date
of December 10 and Howell informed the state mediator
of the meeting however Moore then subsequently can
celed with a phone call December 9 to Howell s Louis
vine office Again after Howell had traveled to Bowling
Green Howell wrote a firmly worded letter to Moore
on December 18 Moore replied by letter dated January
7 1988 stating that he would contact General Manager
Edwards after January 11 to obtain possible dates A
meeting then was scheduled for February 4 at 9 a m At
approximately 9 a m Attorney Moore advised the union
representatives present that he had business to tend to
and would be back in a few minutes About 9 15 a m
Banks stuck her head in the door and left At approxi
mately 10 am a v. oman (apparently Moore s secretary)
said Moore would be there in about 15 minutes At ap
proximately 10 30 a m the union representatives left
however state mediator Barry Hogan remained and later
told Howell that he had waited until 11 a m before leav
ing No negotiations occurred that day Edwards also
traveled from Murry Kentucky to Bowling Green for
that meeting and she expressed her unhappiness with that
and all other cancellations
During this period of time the Union also attempted to
secure financial information from the Respondent A
meeting between Respondent s accountant and the
Union s attorney was arranged for February 11 in Owen
boro but was rescheduled at the request of the Union s
attorney to a conference call for the next day but then
was rescheduled to February 15 Edwards testified that
Respondent s counsel suggested that negotiation could
continue at that same time and that Howell s agreed The
actual letter from counsel however merely concluded
that counsel and Edwards would be present at that
time and I hope further negotiation can continue Ed
wards reluctantly admitted that she concluded that
Howell had agreed to negotiate on February 11 because
he had not affirmatively disagreed to the remark in
Moore s letter
A letter from Moore to Howell on February 26 pro
posed a meeting on March 11 however Howell testified
that a March 10 date had been set up and that on March
2 he sent a letter to Moore saying that March 11 was not
acceptable but that any day in the 2 weeks following
March 21 would be acceptable Howell also asked that
Moore present the Company with their best and final
offer at the next meeting
Attorney Moore was not called as a witness however
a letter from him to the Board dated March 24 asserted
that on March 7 the Company had proposed additional
dates and that an agreement finally was reached to meet
on April 15 As noted the complaint regarding this alle
gation was issued on Apnl 8 and when negotiation did
in fact resume on April 15 Attorney Moore s firm was
replaced by another law firm as representative for the
Respondent
III DISCUSSION
The issues in this case arose from the events surround
ing a union organizational drive at Respondent s Bowling
Green care facility and the Union s subsequent certifica
tion as the employee s bargaining representative As Ind'
cated herein the Company responded with a series of ac
lions including the discharge of two employees alleged
ly violative of employee s rights And after the employ
ees voted in favor of the Union the process of collec
tive bargaining was marred by difficulties connected
with the scheduling of and actual meeting for negotia
tions allegedly caused by Respondent s failures and ap
parent reticence to bargaining in good faith
A Alleged Violation of Section 8(a)(I)
The first reaction by Administrator Banks after she
saw employee Lawrence wearing a union button on Feb
ruary 28 was to inquire about her union activities and
those of the other employees The attempt was resisted
by the employee but Banks persistence in pursuing the
inquiring Banks comments and questions were calculat
ed to compel a response which would likely disclose the
employees union activities and sentiments Banks admit
ted that she realized her questions were Improper how
ever the questions were persistent and I credit Law
FERN TERRACE LODGE 13
rence's testimony that Banks also remarked that the
Union could only offer union wages and no benefits,
thereby unlawfully implying that the selection of the
Union as collective-bargaining representative would be
futile Rood Industries, 276 NLRB 160, 164 (1986) Under
these circumstances, Banks' action reasonably tended to
restrain, coerce, or interfere with employees' rights, con-
sistent with the decision in Rossmore House, 269 NLRB
1176 (1984), and I find that Respondent is shown to have
engaged in unlawful interrogation and , expression of the
futility of union representation, both in violation of Sec-
tion 8(a)(1) of the Act, as alleged
The day following the Lawrence incident Banks called
employee Anna Pulliam to her office Manager Edwards
also was present Pulliam, who is not a high school grad-
uate, started working for Respondent in October 1984
and, as was typical of many employees at various times,
held different positions as nursing aide, medical assistant,
cook, housekeeper, or dishwasher, as needed, and was
paid $3 35 an hour Shortly prior to that day, she had
signed a union authorization card and she began to wear
a union button to work Edwards asked Pulliam where
she had gotten her union button Pulliam said she had
found it because she did not want employee Kevin
Bailey, who had given her the button, to get in trouble
Banks then specifically asked if Bailey had given it to
her and Pulliam denied that he had Pulliam testified that
Banks asked if she knew anything about unions and what
she knew about what would 'happen if a union came in
Banks then told Pulliam that if a union came in and the
employees went on strike, the Employer did not have to
give the employees their jobs back, that they could , be
replaced, and told her that the Employer did not have to
do anything the Union asked and that they did not have
to give a pay increase but could give a pay decrease
Pulliam was also told that she would not be able to draw
any kind of assistance such as unemployment or food
stamps for a period of 90 days and that, if she were fired,
she could be replaced with no problem
On March 2, in Respondent's parking Jot, Banks spoke
with Lawrence a second time at approximately 1 30 or 2
p m prior to the announced mandatory staff meeting
Banks told Lawrence about a prior incident in which she
thought the brake lines of her truck had been cut by a
union member Banks asked Lawrence why she felt a
union was needed to represent the employees When_
Lawrence replied that problems which the employees
were having were brought about by the administration
prior to Banks, Banks said she felt that the Union would
drive a wedge between "the office" and the employees
As noted, Banks called a meeting of employees and
read a prepared speech which stated that the employees
should stay away from troublemakers, the union organiz-
ers, and had then read the names of employees Law-
rence, Conners, Bally, and Sowell By naming these four
employees, Banks clearly created the impression that the
employees' union activities were under surveillance
Banks did not merely name individuals she had seen
wear union buttons at work, &hers who had worn such
a button were not singled out for identification and Con-
ners was named even though she had not overtly indicat-
ed her support of the Union Banks thereby gave the im-
pression that she knew the extent of the employees' ac-
tivities and was keeping informed of them Under these
circumstances, I conclude that the General Counsel has
shown that Respondent created the impression that the
union activities were under surveillance, in violation of
Section 8(a)(1) of the Act as alleged
After the meeting, at approximately 6 or 6 30 p m,
employee Peggy Conners went to the office to ask about
some W-2 forms Edwards asked her to sit down and
then asked if she was aware of what was going on and
what she thought a union could do for her Conners re-
plied that she had never worked for a union before and
that she thought there were iwo sides to everything and
she then asked why they had accused t . er of being a
"troublemaker" and a union organizer Edwards made no
reply to her questions but said that if Conners had any
problems or if there were anything she needed, to let
Edwards know As noted, Conners was one of the em-
ployees named in Bank's speech as a troublemaker and
union organizer She had been an employee since 1980
and quit in May 1987 to move to another State She said
she was shocked to be named as a union "troublemaker"
as she had not openly engaged in union activities at Fern
Terrace but had only met with the union representative
at another location
Here, I can not conclude that the characterization of
the suspected union organizers as "troublemakers,"
standing alone, is so independently coercive as to consti-
tute a threat in violation of the Act, compare Studio
S J T , 77 NLRB 1189, 1200 (1985), which Involved an
accusation of being "saboteurs" Accordingly, I find that
the General Counsel has not supported his allegation that
this statement was a separate violation of the Act
The speech given by Banks also stated that Respond-
ent would not agree to anything the Union requested and
that it could decrease wages rather than grant an in-
crease and thereby implied that the employees' selection
of the Union would be futile See Rood Industries, 276
NLRB 160 at 164 (1986) Banks also stated that in the
event of a strike the employees could lose their jobs and
be replaced, remarks that constituted a threat of job loss
because of employees' union activity This remark was
underscored by Banks' assertion that the employees
would not be entitled to unemployment or food stamps
The tenor of Banks' remarks was that the selection of a
Union would result in no benefit to the employees and
that a strike was inevitable and would result in job loss
through replacement or firing Similar remarks were
made independently to employee Pulliam the previous
day and I find that the remarks reasonably tend to inter-
fere with the free exercise of t employees' rights See
Southern Mouldings, 255 NLRB 839, 861 (1981), I there-
fore conclude that they are shown to violate Section
8(a)(1) of the Act, as alleged
As noted, Lawrence was subjected to a second ques-
tioning by Banks prior to the meeting following her in-
quiries of Pulliam about where Pulliam had gotten her
union button and because of the persistent nature of the
questioning, the additional threats and implications in-
volved, and the reasons previously noted above, I find
that these additional incidents of interrogations were co-
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ercive and in violation of Section 8(a)(1) of the Act as
alleged
On or about March 3 1987 Pulliam was called to
Banks office over the intercom She was asked if she
had decided whether she wanted a Union Pulliam re
plied that she was undecided at the time and wanted to
know what the Union could offer so they could have
more money and more benefits Banks then asked Pul
ham to vote against the Union if it ever came to a vote I
find that Banks again unlawfully interrogated Pulliam
about her union activities and sympathies Although the
General Counsel argues that the request to vote against
the Union also amounted to a directive that interfered
with the employee s Section 7 rights I find no attendant
circumstances that contain related threats that would
specifically raise this request to a level of interference
that would restrain or coerce employees Accordingly I
do not find that it constitutes a separate violation of Sec
tion 8(a)(1) of the Act as alleged
During the April 1 evening shift aide Reva Sowell
became upset because the person acting as a security
guard left at 2 a m She and the other employee on duty
heard noises and called the police and eventually the
other employee s boy friend came and stayed for the rest
of the shift Sowell came back the next day to speak
with Banks and said that she was very upset and nervous
and could not take it (It was generally acknowledged
that Sowell suffered from an apparent nervous condi
tion ) Banks response was to indicate that well Reva
you brought them in and your going to have to deal
with it Sowell understood this to be a reference to the
Union Sowell said she would not work without a secun
ty guard until this ordeal was over and that if you
make me work you can fire me now Banks replied that
she did not want to fire her as she was a good worker
Then Banks said Reva III tell you what Ill make you
a deal if you go to the library and read up on the Team
sters Sowell testified that she replied Do you want
me to make you a report? and Banks said No Just tell
the employees about the Union Sowell agreed and
Banks then promised her that she would have security
the next two nights and then would be off of the night
shift permanently
Under these circumstances I agree with the General
Counsel s contentions that Respondent promised a bene
fit conditioned on actions by Sowell that interfered with
Sowell s right to engage in or to refrain from engaging
in union activities See Phoenix Glove Co 268 NLRB
680 685-686 (1984) Accordingly Banks action thereby
interfered with the employee s free exercise of Section 7
rights and constitutes a violation of Section 8(a)(1) of the
Act as alleged
Fonda Jewell is a medical aide for the Respondent In
early October a union notice was circulated which de
scribed a union meeting to be held on October 13 and
said that a strike vote was to be discussed On October
12 at approximately 11 p m Banks telephoned Jewell at
home apologizing for calling so late and asked if Jewell
knew about the possible strike vote at the union meeting
the next day Jewell said she had heard about it and that
Banks then said it was in her best interest to vote against
a strike and that she could be permanently replaced if
she voted for a strike Jewell questioned Banks saying
you mean you re saying if we go and vote yes that we
could be permanently replaced? and Banks replied in
the affirmative Employee Patty French testified that
Banks had a substantially identical conversation with her
at nearly the same time and employee Mary Gayden tes
tified that on the morning of October 13 in the dining
room at work Banks told her that if she valued her job
she would vote no in the strike vote to be taken at the
meeting
Banks testified that after negotiations ended for the
day on October 12 she went bowling at 6 15 p m and
learned about the upcoming strike vote the next day and
said she was in total shock however it was not until 3
hours later after finishing bowling that she went back to
Respondent s facility and called Edwards to tell her
about the vote Edwards then told her to call Attorney
Moore She received instructions from Moore to tell em
ployees that those who did not come to work could be
permanently replaced because it would be an economic
strike In response to a leading question by Respondent s
counsel which asked Did you state or imply that Fern
Terrance would take any action against employees based
upon how they voted at the stnke7 to any of the
employees called She answered she did not
Respondent called two employees as witnesses and
asked them if they had been called by Banks and told
how to vote or told that those who did not vote no
would be discharged Both answered in the negative
Here I find that the showing that Banks failed to ask
two employees about voting against a strike does not
warrant any inference that her conduct was the same
with all employees and I do not find that the testimony
of employees Jewell French and Gayden should be dis
credited
Banks testimony in this and many other respects was
often evasive or argumentative and It frequently was
merely an affirmation or a denial as it was in this specif
ic instance of a leading question or statement by Re
spondent s counsel rather than a freely expressed descnp
tion in her own words of her recollection of events The
demeanor and testimony of witnesses Jewell French
and Gayden was straightforward and unenhanced by
self interest (they were not discrimmatees and except for
Gayden were still employees of the Respondent)
French was especially forthright in clarifying that Banks
said could not get their jobs back rather than a conclu
sive use of the word would Under these circum
stances I do not credit Banks testimony and I specifical
ly find that Jewell French and Gayden accurately and
credibly testified that Banks made statements to each of
them that implicitly threatened them with the loss of
their jobs or permanent replacement if they voted for a
strike at the union meeting This action clearly infringed
on employee s rights to freely engage in union activities
and I find that Respondent s conduct in this respect vio
lated Section 8(a)(1) of the Act as alleged
B Discharge of Employees Pulham and Sowell
On March 16 at noon employee Pulliam was sum
moned to Banks office and told that she was being writ
FERN TERRACE LODGE
i 15
ten up for things she had done wrong that day. and
throughout the week before Banks then described a
dirty mirror, a floor which had not been mopped a week
or so before, a man who had not been shaved, setting the
dining room up too early, watching TV for 15 minutes,
talking to another employee for 5 minutes, and talking to
a new employee Banks then told Pulliam she was being
suspended Pulliam was perplexed and upset but asked
whether she should leave at that time or should stay for
the remainder of her shift Banks said that if Pulliam
stayed, she (Banks) would have her removed and if Pul-
liam left, she would be fired Pulliam placed her keys on
the desk and proceeded to leave She testified that as she
left she heard Banks tell Assistant Administrator Monica
Blair that "there went another vote which made three
down" A few days later, when Pulliam , called to find
out when she was to return to work, Banks said that Pul-
liam was not to return because she had quit
As noted above employee Sowell had been upset by
evening security at the facility and had received a prom-
ise from Banks that there would be a security guard
there if she would go to the library and read up on the
Teamsters Union On April 2 at approximately 9 30
Sowell phoned Banks to ask about security and was told
that a Curtis Birch would be there and that she should
go in to work Sowell reported at approximately 10 30
p m and thereafter learned that Birch had called to say
he was not coming Sowell became highly upset and said
she was not going to stay She left without notifying
Banks or any other supervisor that she was not going to
stay However, employee JoAnn Vice (who no longer
works for Respondent), testified that Sowell "had me
call Molley" (Banks) One of the employees from the
earlier shift remained on the job until the arnval of an-
other aide and the shift was covered by the necessary
two employees At noon the next day, Sowell went to
the facility picked up her paycheck and went to Banks'
office Banks, said, "Reva, you leave me no choice," and
Sowell asked if she 'was fired, Banks said, "yes, because
you walked out on your shift," and handed her a paper
to sign, however, Sowell refused to sign anything
In discharge situations of this nature, applicable la'.'
requires that the General Counsel meet an initial burden
of presenting sufficient evidence to support an inference
that the employees' union or other protected, concerted
activities were the motivating factor in the employer's
decision to terminate the employees Here, ' the record
shows that Sowell was identified in Banks' speech to the
_ employees as being one of the union "troublemakers"
Otherwise, Banks admitted that she also had seen Pul-
ham wearing a union button and she engaged in predis-
charge discussions with Pulliam about the Union which
violated Section 8(a)(1), as discussed above, and I find
that antiunion animus has been established
Under these circumstances, I find that the General
Counsel has met his initial burden by presenting a , prima
facie showing, sufficient to support an inference that Pul-
ham's and Sowell's union activities were the motivating
factor in Respondent's decision to terminate them Ac-
cordingly, the testimony will be discussed and the record
evaluated in keeping with the criteria set forth in Wright
Line, 251 NLRB 1083 (1983), see NLRB v Transportation
Management Corp, 462 U S 593 (1983), to consider Re-
spondent's defense and, in the light thereof, whether the
General Counsel has carried his overall,burden
Respondent's defense is based on' its contention that it
had a good-faith justification for suspending Pulliam for
poor work habits and that Pulliam voluntarily quit as a
result of that suspension It also maintains that Sowell
was properly discharged for leaving work without per-
mission under circumstances that could have placed Re-
spondent in violation of state licensing requirements that
mandate the presence of at least one employee on duty
in each wing of the facility
The Respondent elicited a great deal of information
purporting to show that Pulliam's testimony was incon-
sistent and that her work habits were deficient and had
placed the facility in a tenuous position when a state in-
spector discovered a dried puddle of soap in a resident's
room that had been Pulliam's responsibility Banks admit-
ted that she was embarrassed by the inspector's comment
and was angry at Pulliam when she confirmed that Pul-
ham was responsible for the room The next day, March
16, prior , to taking any disciplinary action, however,
Banks and the assistant administrator closely monitored
Pulliam's actions and observed that she took too much
time setting tables and wasted time talking to other em-
ployees and watching TV (even though it was explained
that Banks had made an announcement on the intercom
that a segment about a resident at the Respondent's facil-
ity would be on and that employees could watch it)
Pulliam testified that at lunchtime on March 16, Banks
called Pulliam to her office and told her about several
things she had done and informed her that she was to be
suspended for an unspecified time Pulliam testified that
she was aware that Assistant Administrator Blair had
been following her around all that day She said she had
an explanation for all her actions and was puzzled and
upset and then asked whether she should leave at that
time or should stay for the remainder of her shift Banks
said that if Pulliam stayed, she (Banks) would have her
removed and if Pulliam left, she would be fired Pulliam
then placed her keys on the desk and left As she was
leaving, she overheard Banks tell Blair "there's another
one vote gone or another which makes three," which
Pulliam understood referred to two proumon employees
that recently had been discharged
Banks and Blair disputed Pulliam's testimony and
assert that Pulliam was given a 2-day suspension and that
she responded by arguing back saying "just fire me Just
get it over with and fire me" They also assert that when
Pulliam put her keys down Banks asked if that meant she
quit and Pulliam replied "yes it does, I'm leaving and I
won't be back"
As pointed out by the General Counsel, Pulliam clear-
ly was not a educated or sophisticated witness She,
however, would not allow Respondent's counsel to put
words into her mouth and her testimony, under vigorous
cross-examination, remained consistent with her direct
testimony Pulliam had credible explanations for what-
ever alleged inconsistencies or discrepancies Respondent
sought to seize upon The demeanor of Respondent's su-
pervisors, however, each demonstrated a somewhat
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
smug superior attitude Edwards and Banks in particu
lar frequently were evasive or otherwise often gave self
serving rationalizations or unresponsive answers that
went well beyond the plain intent of question asked I
find that the testimony of Respondent s supervisors ap
pears to have been qualified or exaggerated in order to
show their own conduct in what they perceived to be
the most favorable light relative to the Respondent s de
fensive position and I therefore conclude that Pulliam s
testimony is the more credible and I find that her testi
mony of the events surrounding her suspension most ac
curately describe what actually occurred
As noted above, Pulliam had been the target of some
of Respondent s 8(a)(1) violations and despite the fact
that Pulliam was not an unflawed employee I find that
Respondent s actions in following her around after the
state inspector s complaint about dried soap was an effort
to stack the deck against her with a series of additional
petty charges This supports an inference that the reasons
for her suspension and discharge were pretextual This is
especially true in that Pulliam s work performance was
satisfactory prior to the advent of the union activities
and prior to Pulliam s wearing of a union button 2 short
weeks prior to her discharge Pulliam s most recent eval
uation had been favorable (Pulliam received a score of
13 on a range of 11 to 30 in which the lower the number
received the better the evaluation) and Banks admitted
that Pulliam had been a good employee until the first of
1987, and that she was not discipline in 1987 prior to the
date of her discharge
Although the Respondent claims that Pulliam merely
was suspended not discharged, I find that Banks with a
manifestation of her superior demeanor played a
word game with Pulliam in responding to Pulliam s
question about working the remainder of her shift by
saying that if Pulliam stayed, Banks would have her re
moved and if she left she would be fired This comment
is sufficiently unequivocal in character to lead Pulliam to
conclude that it was futile to expect to continue as an
employee and to reasonably believe that she had been
discharged Subsequently when Pulliam made an inquiry
about returning Banks told her no that she had quit
and made no attempt to treat the incident as a suspen
mon Accordingly I find that this action implicitly shows
that Respondent in fact had discharged Pulliam on
March 16
Respondent contends that its action in terminating
Sowell was a proper business response to Sowell s unex
cused departure from work prior to the start of her 11
p m shift on April 2 Respondent s administrator how
ever immediately imposed the most severe penalty possi
ble discharge, rather than possible progressive discipline
This was done despite the fact that Banks was well
aware that Sowell suffered from a nervous condition and
was emotionally on edge and despite her further aware
ness that she had assured Sowell that there would be a
security guard at the facility and that no guard had been
present to fulfill her promise Banks failure to consider
the breech of her promise as a mitigating circumstance
that would justify some lesser degree of discipline for
Sowell s failure to start her shift must be considered in
the light of Banks public identification of Sowell as a
union troublemaker and in light of the Respondent s
various 8(a)(1) violations of employees rights Accord
ingly I am not persuaded that Respondent has shown
that it would have so promptly terminated Sowell were
it not for her protected union activities
In conclusion I find that Respondent harbored a col
lective animus against any employee who openly sup
ported union representation and it was willing to display
its power over employees and thereby discourage em
ployee support for the Union ,when it could find an op
portunity to maximize its disciplinary practices against
anyone who may have inadvertently committed any in
fraction at the same general time they had also engaged
in open union support
Under these circumstances I conclude that Respond
ent has not met its burden of showing that Pulliam and
Sowell would have been discharged absent their union
and protected concerted activities The General Counsel
otherwise has met its overall burden of proof, and I fur
ther conclude that in each instance Respondent is shown
to have violated Section 8(a)(1) and (3) of the Act as al
leged
C Alleged Failure to Bargain
The history of the union employer bargain sessions is
set forth above In its defense to the complaint the Re
spondent points to certain alleged actions or nonactions
taken by the union representatives which it asserts also
shows bad faith on the part of the Union in its participa
tion in bargaining sessions, and it asserts that the Union s
charge is a matter of the pot calling the kettle black It
also maintains that when their counsel was late or un
available their own executives were present and were in
convernenced to an equal or greater extent than the
union representatives
In essence Respondent s contentions beg the question
First although Respondent s management representatives
may have been present they did not accept responsibility
for continuing negotiations they made no effort to nego
tiate the absence of their counsel and they made no ap
parent effort to alter counsel s developing pattern of
scheduling and negotiating conduct Accordingly it must
be concluded that Respondent acquiesced in such con
duct at least until such time as it obtain the services of a
different firm of attorneys Second much of the alleged
union cancellation were for times not within the frame
work of the complaint namely November 2, 1987,
through April 8 1988 The Union s conduct during the
period prior to November 2 is not shown to have any
specific, probative bearing on the issue of the Respond
ent s subsequent bargaining conduct and I therefore
agree with the General Counsel s contention that it is ir
relevant to the issue herein 3 Otherwise Respondent
3 As brought forth by the General Counsel the days of negotiations
which the Union cancelled were September 10 the third of three
scheduled days of meetings and November 3 the second of two sched
uled days The parties in fact met for negotiations during those periods
The negotiations Just did not last as long as originally scheduled Also it
was not until after the Union s first unfair labor practice charge alleging a
failure to negotiate that Respondent proposed dates for the commence
ment of negotiations
FERN TERRACE LODGE 17
filed no unfair labor practice charge relative to the
Union's conduct and, as urged by the General Counsel, I
find that it is not an issue subject to litigation here nor is
it shown to be of any probative sufficiency to mitigate or
excuse the actions of Respondent's principal bargaining
representative for the period in question
The record shows that on and after November 2 the
union representative maintained a consistent effort to
schedule and participate in bargaining sessions (including
a successful effort to bring in a state mediator), and that
the conduct of Respondent's attorney was responsible for
the cancellation of effective negotiations on November
17 and December 10, 1987, until February 4 and March
10 The record also shows that scheduled meetings oth-
erwise were subjected to generally extensive and need-
lessly untimely delays and that the totality of this con-
duct was the pnmary cause of a hiatus in actual negotia-
tions of over 5 months
The record here shows that Attorney Moore, Re-
spondent's counsel for negotiations during the involved
period, was not a sole practitioner but was a member of
a law firm with an office within a short walking distance
of the negotiating site at the powling Green courthouse
Moore was not called to testify Otherwise, however, the
history of the cancellations and scheduling difficulties be-
tween November and April reasonably leads to a conclu-
sion that Respondent's negotiating obligation was given
minimal, if any, priority over his, and his firm's, other
business The busy schedule or unavailability of the bar-
gaining representative or attorney is not a defense for a
failure to meet for negotiations, Storall Mfg Co, 275
NLRB 220, 238 (1985), and Respondent did not act to
disavow the actions of its counsel until after April 8, de-
spite the fact that management official were will aware
of and had themselves been inconvenienced by the
delays The totality of counsel's conduct and his remis-
sions in scheduling and attending bargaining meetings is
shown to be unreasonable and to constitute bad faith,
and this conduct was accepted by and must be attributa-
ble to the ultimate responsibility of the Employer The
failure to meet occurred over a 5-month period and
against a background of earlier unfair labor practices
committed by Respondent as set forth above and, under
all these circumstances, I therefore conclude that the
General Counsel has shown that Respondent's failure to
negotiate was done in bad faith and in violation of Sec-
tion 8(a)(1) and (5) of the Act, as alleged
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 By interrogating employees concerning their union
activities and those of other employees, by implying to
employees that selection of a union would be futile, by
creating the impression that union activities were under
surveillance, by threatening employees with loss of jobs,
and by promising benefits during a union organizational
campaign, Respondent has interfered with, restrained,
and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act and thereby has en-
gaged in unfair labor parctices in violation of Section
8(a)(1) of the Act
4 By suspending and discharging employees Ann Ful-
ham and Reva Sowell on March 16 and April 3, 1987,
respectively, Respondent engaged in unfair labor prac-
tices in violatio of Section 8(a)(1) and (3) of the Act
5 By canceling, failing, and refusing to attend bargain-
ing meetings between November 2, 1987, and April 8,
1988, Respondent has failed to bargain in good faith and
has violated Section 8(a)(1) and (5) of the Act
6 Except as found herein, Respondent has not en-
gaged in any other unfair labor practices as alleged in
the complaint
' THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it is recommended that the Respondent
be ordered to cease and desist therefrom and to take the
affirmative action described below which is designed to
effectuate the policies of the Act
With respect to the necessary affirmative action, it is
recommended that Respondent be ordered to reinstate
Ann Pulliam and Reva Sowell to then- former jobs or a
iubstantially equivalent position, without prejudice to
their senionty or other rights and privileges previously
enjoyed, and make them whole for any loss of earnings
they may have suffered because of the discrimination
practiced against them by payment to them a sum of
money equal to that which they normally would have
earned from the date of the discrimination to the date of
reinstatement, in accordance with the method set forth in
F W Woolworth Co, 90 NLRB 289 (1950), with interest
as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987), 4 and that Respondent remove from
its files any reference to their discharge and notify them
in writing that this has been done and that evidence of
the unlawful discharge will not be used as a basis for
future personnel action against them
Otherwise, it is not considered to be necessary that a
broad order be issued
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 5
ORDER
The Respondent, Fern Terrace Lodge of Bowling
Green, Inc , Bowling Green, Kentucky, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Interrogating employees about union activities, im-
plying to employees that selection of a union would be
futile, creating the impression that union activities are
under surveillance, promising benefits during the course
4 Under New Horizons, interest is computed at the 'short-term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621
5 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses
_
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of a union campaign and threatening employees with re
placement and loss of jobs if they choose to be represent
ed by a union or if they voted in support of union activi
ties
(b) Suspending or discharging any employee for en
gaging in activities protected by Section 7 of the Act
(c) Refusing to bargain in good faith with General
Drivers Warehousemen and Helpers Local Union #89
affiliated with the International Brotherhood of Team
sters Chauffeurs Warehousemen and Helpers of Amer
ica AFL-CIO as the certifed collective bargaining rep
resentative of the employees at its Bowling Green Ken
tucky facility
(d) In any like or related manner interfering with re
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Ann Pulliam and Reva Sowell immediate and
full reinstatement and make them whole for the losses
they incurred as a result of the discnmmation against
them in the manner specified in the section above and
remove from its files any reference to their suspension
and discharge and notify them in writing that this has
been done and that evidence of the unlawful discharge
will not be used as a basis for future personnel actions
against them
(b) Bargain in good faith with the Union on its re
quest as the employees exclusive representative by
meeting and negotiating at reasonably frequent times
(c) Preserve and, on request make available to the
Board or its agents for examination and copying all pay
roll records social secunty payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its Bowling Green Kentucky facility
copies of the attached notice marked Appendix 6
Copies of the notice on forms provided by the Regional
Director for Region 9 after being signed by the Re
spondent s authorized representative shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered defaced or
covered by any other matenal
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
6 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al 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