Health Management, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 801 (N.L.R.B. 1998)

HEALTH MANAGEMENT, INC. 801
Health Management, Inc. and General Drivers,
Salesmen & Warehousemen’s Local Union No.
984. Case 26–CA–17505
August 27, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND HURTGEN
This case involves allegations that the Respondent
committed several violations of Section 8(a)(1) and (3)
of the Act.1 The Board has considered the decision and
the record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as modi-
fied.
In late March 1996, the Union began a campaign to
represent the Respondent’s production and maintenance
employees. In late May or early June, Respondent’s dis-
trict manager, Sherrill Stevens, conducted a meeting with
four working supervisors. (There are no exceptions to
the judge’s finding that these individuals were statutory
employees, not supervisors within the meaning of Sec-
tion 2(11) of the Act.) Shift Supervisor Aaron Shields
credibly testified that Stevens commenced the meeting
by talking about the Union’s campaign. Stevens then
asked what the employee complaints were about, and
said that she “wanted to know why it went as far as it
did, without going through her first because she wanted
to be given the opportunity before it went as far as the
Union.”
Stevens had only begun work as the Respondent’s sen-
ior executive on April 1. The judge relied on this fact to
find that, in her meeting with the shift supervisors 2
months later, Stevens voiced a permissible inquiry “as to
the problems leading to the Union campaign and em-
ployee dissatisfaction with management as a new man-
ager having only commenced her employment with Re-
spondent in April.” He therefore recommended dis-
missal of the complaint's allegation of unlawful solicita-
tion of grievances. We disagree.
It is well established that “the solicitation of griev-
ances at preelection meetings raises an inference that the
employer is making [a promise to remedy them], which
inference is rebuttable by the employer.” Uarco Inc.,
216 NLRB 1, 2 (1974). The record does not support the
judge’s reasoning that Stevens’ status as a new manager
was sufficient to rebut this inference. Stevens herself did
not testify about this specific meeting. She did testify
that she had participated in general meetings and in
safety meetings with employees during her first two
months on the job. Neither she nor any other witness to
this proceeding testified that she used any of these meet-
ings to familiarize herself with workplace issues and em-
ployee grievances. Consequently, the first evidence we
have of her efforts to solicit such grievances involves a
meeting that Stevens convened specifically to discuss the
Union’s campaign.

1 On August 22, 1997, Administrative Law Judge Lawrence W. Cul-
len issued the attached decision. The Respondent filed exceptions and
a supporting brief. The General Counsel filed an answering brief,
cross-exceptions, and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
Under these circumstances, we find that Stevens’ rela-
tively recent arrival at the Respondent’s facility does not
rebut the inference of a promise to remedy those griev-
ances as an alternative to union representation.3 Indeed,
we find that Stevens’ references to “going through her
first” and giving her an “opportunity before it went as far
as the Union” support this inference. So, too, does the
undisputed fact that on May 31 Plant Manager Glen
Gross unlawfully interrogated employee Warrick Tennial
by asking “why would [you] want to negotiate a union
give [Stevens] a try.”
We note that our dissenting colleague cites the previ-
ously disputed legal status of the shift supervisors as a
factor weighing against an unfair labor practice finding.
We find it immaterial whether she was soliciting the
grievances of the shift supervisors or whether through
them she was soliciting the grievances of other employ-
ees. The unlawful objective effect of such conduct is the
same in either event. Statutory employees would rea-
sonably believe that Stevens was impliedly promising to
remedy those grievances in an effort to defeat the Un-
ion's organizational campaign.4 Accordingly, we find
that the Respondent’s solicitation of grievances violated
Section 8(a)(1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Health
Management, Inc., Memphis, Tennessee, its officers,
agents, successors, and assigns, shall take the action set
forth in the recommended Order as modified.
1. Insert the following as paragraph 1(c) and reletter
the subsequent paragraphs.
3 Accord: Blue Grass Industries, 287 NLRB 274, 286 (1987) (fact
that manager moved up through the ranks and was newly promoted to
her job does not overcome inference of unlawful solicitation and prom-
ise to remedy employee grievances).
4 Chairman Gould agrees. He notes further that this finding is in ac-
cord with his view that actions directed at supervisors are unlawful
when they have a chilling effect on employees’ rights to engage in
protected or union activity. General Security Services Corp., 326
NLRB No. 42, slip op. at 3 (1998) (Chairman Gould, concurring).
326 NLRB No. 67
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802
“(c) Soliciting grievances from employees with the
implied promise to rectify them in order to affect em-
ployee support for the union.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HURTGEN, dissenting in part.
Contrary to my colleagues, and in agreement with the
judge, I do not find that the Respondent violated Section
8(a)(1) based on District Manager Sherrill Steven’s
May/June 1996 statements to “shift supervisors” Byles,
McFarland, Matthews, and Shields.1 I agree with the
judge that, under all the circumstances, Stevens’ com-
ments did not constitute an unlawful solicitation of em-
ployee grievances.
It is well settled that a mere solicitation of grievances
during a preelection period does not violate the Act. See,
e.g., NLRB v. Arrow Molded Plastics, 653 F.2d 280, 283
(6th Cir. 1981). Solicitation of grievances becomes un-
lawful only where it is accompanied by an implied or
express promise that the grievances will be remedied if
the employee foregoes union representation. See, e.g.,
Idaho Falls Consolidated Hospital v. NLRB, 751 F.2d
1384, 1386–1387 (9th Cir. 1984). Under the instant
facts, I find that this test has not been met.
Within weeks of her hire by the Respondent, Stevens
learned of the Union’s organizing campaign. In re-
sponse, she met with the shift supervisors. As found by
the judge, it was a very close legal issue as to whether
they were statutory supervisors rather than employees.
In the meeting, Stevens inquired about employee com-
plaints and said that she wished that the matter had gone
through her before “it went as far as the Union.” Stevens
said that she wanted to hear, from the shift supervisors,
“what was going on.” Stevens did not tell the shift su-
pervisors, or intimate, that she would remedy any griev-
ances. And, even if she did, she did not express or imply
that the remedy was conditioned on rejection of the Un-
ion. Rather she simply was trying to ascertain what, if
any, grievances led to the Union’s campaign. Since she
was a new district manager, the inquiry was an under-
standable one. She also was not soliciting grievances
from the particular grievants, but rather from persons
whom she thought to be supervisors. And, the persons to
whom she spoke were selected because they were “su-
pervisors” and not because they could be “bought” with
promises.
The majority argues that the solicitation of grievances
at a preelection meeting gives rise to a rebuttable infer-
ence of a promise to remedy them. They reject the rele-
vance of Stevens’ good-faith belief that the shift supervi-
sors were statutory supervisors. They find that it is im-
material whether Stevens was soliciting the grievances of
the shift supervisors or those of employees working un-

1 Although their title is “shift supervisor,” there are no exceptions to
the judge’s finding that they are statutory employees.
der them. I disagree, for I find that the evidence does not
establish a solicitation of grievances from either group.
Stevens asked the shift supervisors to keep her informed
of “employee” complaints. She did not ask the shift su-
pervisors to solicit employee complaints. She did not ask
the shift supervisors for their complaints. And she did
not request the shift supervisors to tell employees that
management wanted to know about employees’ com-
plaints. It may be that soliciting an individual’s com-
plaints suggests to the individual that the complaint will
be remedied and may give that individual the hope of a
remedy. However, that cannot be the case when the
complainant does not know that his complaint has been
solicited and thus cannot have any logical anticipation of
improved conditions.
Further, even if one could infer that the Respondent
was soliciting employee grievances and promising to
remedy them, there is no evidence to show that the prom-
ise was conditioned on the employees’ rejection of the
Union.
In sum, this was an effort of a new district manager to
find out what was going on at the plant and what had led
to the Union’s campaign. It was neither intended nor
reasonably seen as an effort to purchase antiunion alle-
giance by promising benefits in return for a rejection of
the Union.
In these circumstances, I agree with the judge that Ste-
vens’ comments did not violate the Act.
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 vio-
lated 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 representatives of
their own choice;
To act together for other mutual aid and protec-
tion;
To choose not to engage in any of these concerted
activities.

WE WILL NOT interrogate employees concerning their
union activities and sympathies and the union activities
and sympathies of their fellow employees.
WE WILL NOT threaten employees with loss of their
jobs if they engage in concerted activities on behalf of a
union.
WE WILL NOT solicit grievances from our employees
with the implicit promise to rectify them in order to af-
fect their support for the Union.
HEALTH MANAGEMENT, INC. 803
WE WILL NOT suspend and discharge our employees for
engaging in concerted activities on behalf of a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of this Order,
rescind the suspension and discharge of Anthony Feath-
erson and WE WILL offer him reinstatement to his former
position, or if his former position no longer exists, offer
him a substantially equivalent position without prejudice
to his seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Anthony Featherson whole for any loss
of earnings and other benefits, resulting from the dis-
crimination against him, less any net interim earnings,
plus interest.
WE WILL within 14 days of the Board’s Order, remove
from our files any reference to the unlawful discipline
issued to employee Anthony Featherson and WE WILL
within 3 days thereafter, notify him in writing that this
has been done and that the unlawful discrimination will
not be used against him in any manner.

HEALTH MANAGEMENT, INC.

Tamra J. Sikkink, Esq., and Ronald K. Hooks, Esq., for the
General Counsel.
R. Brent Ballow, Esq. (King & Ballow), of Nashville, Tennes-
see, for the Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard by me on May 7 and 8, 1997, in Memphis, Ten-
nessee, and is based on a second amended charge filed by Gen-
eral Drivers, Salesmen & Warehousemen’s Local Union No.
984 (the Charging Party or the Union) on January 2, 1997. The
complaint in this case was filed by the Regional Director for
Region 26 of the National Labor Board (the Board) and alleges
that Health Management, Inc. (the Respondent or the Com-
pany) violated Section 8(a)(1) of the National Labor Relations
Act (the Act) by interrogating and threatening employees con-
cerning their union activities and violated Section 8(a)(3) and
(1) of the Act by discharging its employees, Anthony Feather-
son and Aaron Shields, because of their assistance of the Union
and their engagement in concerted activities and to discourage
employees from engaging in these activities. The complaint is
joined by the answer filed by the Respondent on January 21,
1997, wherein it denies the commission of any violations of the
Act.. The complaint was amended at the hearing. Upon due
consideration of the testimony of the witnesses and the evi-
dence received at the hearing and the briefs filed by the parties
and their positions at the hearing, I make the following
FINDINGS OF FACT1
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, Respondent admits, and I find that at
all times material Respondent has been a corporation with an
office and place of business in Memphis, Tennessee, where it
has been engaged in the collection and processing of medical
waste, that during the 12-month period ending December 31,
1996, Respondent, in conducting its above-business operations,
sold and shipped goods, products, and services valued in excess
of $50,000 directly to points outside the State of Tennessee and
purchased and received at its facility goods valued in excess of
$50,000 directly from points located outside the State of Ten-
nessee, and that Respondent has been an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that at
all times material the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
As set out above, Respondent processes medical waste. It
does so by incinerating the waste in its furnaces and transfer-
ring the ash created thereby by small 2-cubic foot bins with the
aid of a forklift truck to large 22–foot long bins (Open-tops)
which are transferred by truck to hazardous waste sites. The
large bins must be lined with plastic liners to prevent leakage
from the bins as they are taken by trucks on public streets and
highways as the ash material is wet after its removal from the
furnace. In performing this function the Respondent is subject
to Federal, state, and local laws and regulations in order that it
does not endanger the public welfare in carrying out its respon-
sibilities. Respondent is a subsidiary of Browning Ferris Indus-
tries (BFI), a waste processing company. As a processor of
medical waste Respondent has employees at its facility who
engage in the processing and transference of the waste and
maintenance work. On April 1, 1996, Respondent employed
Sherrill Stevens as its district manager. She testified that Re-
spondent operated as an independent company and she was
equivalent to its chief operating officer. The operations man-
ager was James Elmore. The plant manager was Glen Gross.
There were four shift supervisors, Maurice McFarland, Aaron
Shields, Tim Byles, and Mike Matthews. Gross was in charge
of long haul transportation from other BFI facilities and cus-
tomers and reported to Elmore. The four supervisors could
report to Gross, Elmore, and Stevens. The Company operated
two 12-hour shifts at its processing facility on a rotating basis
with employees scheduled to work several days on and 3 days
off.
On March 28, 1996, incinerator operator Anthony Feather-
son contacted the Union about seeking union representation and
was given 30 union authorization cards, which he distributed
among the facility’s employees. The maintenance employees
refused the cards. He collected 25 or 26 cards from the proc-
essing employees and returned them to the Union on March 30.
Union Business Manager John Bratcher gave him a union hat
and union buttons for all employees and he gave out 25 buttons
and started to wear the hat on March 30. Ten employees began
to wear the buttons at that time. He and two other employees

1 On August 8, 1997, I entered an order to correct the transcript in
accordance with the General Counsel’s unopposed motion to do so.
The order and the attached corrections are designated, omitted from
publication, and received as ALJ Exh. 1 and made a part of this record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804
handbilled on behalf of the Union for several weeks. On May
31, the Regional Office for Region 26 of the Board mailed a
letter to the Union advising of the filing of a petition to repre-
sent Respondent’s production and maintenance employees and
enclosing a copy of the petition filed by the Union which was
received by Respondent shortly thereafter. On June 6, the Re-
spondent suspended Featherson for emptying ash into the open-
top without a liner and subsequently discharged him by its let-
ter of June 11 purportedly for this incident as well as his overall
record. Featherson had handbilled on his scheduled days off on
the 3 days prior to June 6 and on the first day of handbilling
Manager Stevens had required them to move outside Respon-
dent’s property. On another occasion she had waved to them
and Featherson had waved back.
During the course of the Union’s campaign, the Respondent
is alleged to have engaged in interrogation and threats of its
employees and to have solicited grievances from its employees
with the implied promise of remedying them in response to the
organizing effort. Former employee Frederick Johnson testi-
fied that Plant Manager Gross called him into his office which
was unenclosed and was adjacent to the employee breakroom
and said that “I heard about all this union activity going on
round here and I heard that you was one of the guys involved in
it. . . . He said, we don’t want to have no union round here.”
Johnson also testified that there were several employees in the
breakroom at the time who heard Gross’ comments. Johnson’s
testimony was corroborated by Featherson who testified that
Gross told Johnson that “he was going to be scratching his un-
employed ass if he keep on with this organizing with the Un-
ion.” I credit Johnson’s and Featherson’s testimony in this
regard which was unrebutted as Gross, although still employed
as Respondent’s plant manager at the time of the hearing, was
not called to testify. Moreover, Gross’ absence at the hearing
gives rise to the inference that his testimony would have been
adverse to the Respondent’s position in this case. International
Automated Machine, 285 NLRB 1122 (1987). I reject Respon-
dent’s unsupported arguments that Johnson’s and Featherson’s
testimony should not be credited as a result of their admitted
disaffection with Respondent’s actions in terminating them and
their relationship as cousins. I thus find that Respondent vio-
lated Section 8(a)(1) of the Act by Gross’ threat of termination
issued to Johnson because of his support of the Union. Link
Mfg. Co., 281 NLRB 294, 298 (1986) I also find in agreement
with the General Counsel’s position that Gross’ statement to
Johnson constituted unlawful interrogation as his comment that
he heard that Johnson was involved in union activities in con-
junction with his unlawful threat to Johnson was clearly inter-
rogation directed at Johnson and I find that Respondent violated
Section 8(a)(1) of the Act in this regard also. Rossmore House,
269 NLRB 1176, 1177 (1984). Link Mfg., supra.
The testimony of former employee Warrick Tennial also es-
tablishes that Plant Manager Gross engaged in three separate
incidents of interrogation of him concerning his support of the
Union. Tennial had been employed by Respondent on two
occasions. He was initially employed in November 1992, but
left 6 months later when his hours were reduced. He was re-
employed in November 1995, and was terminated in April 1996
for absenteeism. The incidents of interrogation occurred a few
days prior to Tennial’s wearing a union button for the first time
on May 31, the date of the filing of the petition. Gross ap-
proached Tennial on the dock and asked, “Why would I want to
negotiate a union . . . give [Stevens] a try.” The second inci-
dent occurred on the same day when Gross asked Tennial in the
presence of several other employees in the breakroom in refer-
ence to his support of the Union, “after all he has done as get-
ting me back hired at BFI (Respondent’s parent company) why
would I do this?” The third incident occurred the next week
and also occurred in the employee breakroom when Gross
again asked Tennial why he would want to “negotiate a union
after all [Gross] has done for me as far as giving me the job at
BFI?” The references are to Tennial’s return to employment
with Respondent after his prior termination of employment. I
credit Tennial’s unrebutted testimony as set out above as Gross
did not testify thus giving rise to the inference that his testi-
mony would have been adverse to the Respondent’ position
regarding these incidents and I find that Respondent violated
Section (8)(a)(1) in each instance as Gross’ inquiries were in-
herently coercive and clearly conveyed the message that Gross
was responsible for Tennial’s employment and was displeased
with Tennial’s support of the Union. Swift Textile, Inc., 214
NLRB 36 (1974).
Aaron Shields, who is alleged as a discriminatee in this case
as he was discharged from his position as a shift supervisor by
Respondent in June 1996, testified regarding a meeting held by
District Manager Stevens in late May or the beginning of June
with the four shift supervisors, Tim Byles, Maurice McFarland,
Mike Matthews, and Shields. Shields testified that Stevens
commenced the meeting by saying, “I’m not allowed to talk
directly about the Union. There are certain things I can and
cannot say.” She had a list in front of her which she referred to
“that she could or could not say. . . . ‘As far as the Union, she
just wanted to find out what all the complaints were, the com-
plaints that the workers had on the floor and wanted to know
why it went as far as it did, without going through her first
because she wanted to be given the opportunity before it went
as far as the Union.”’ Stevens asked to hear from the shift su-
pervisor s and Matthews spoke on the pay and they all spoke on
the conditions, the lack of a pay scale and an employee hand-
book setting out the policies of the plant. Shields told her that
there were no policies, no handbooks and that “I wasn’t in-
formed of anything when I became working supervisor. Every-
thing I found out I found out on my own.” Shields wore his
union button at this and a second meeting held by Stevens in
June with the shift supervisors and at every safety meeting he
attended after signing a union card on April 9. Shields was
discharged by Respondent for a recurring absenteeism and
tardiness problem on June 14 which will be addressed infra. In
considering his case and this alleged violation of soliciting
grievances by Stevens I have determined infra that the shift
supervisors were employees and not supervisors within the
meaning of the Act. Although I have found that the shift su-
pervisors were employees within the meaning of the Act, this
was a close legal question and I find that under the circum-
stances of this case the inquiry by Stevens of the shift supervi-
sors as to the problems leading to the union campaign and em-
ployee dissatisfaction with management as a new manager
having only commenced her employment with Respondent in
April does not rise to a violation of the Act. I accordingly shall
recommend the dismissal of this allegation in the complaint.
A. The Suspension and Discharge of Anthony Featherson
1. Facts
Featherson was initially employed by Respondent in January
1994. He was employed as an autoclave operator. He success-
HEALTH MANAGEMENT, INC. 805
fully completed his probationary period, received good ratings,
and received raises. He was promoted to the position of super-
visory trainee and was promoted to the position of shift super-
visor in September 1995. However, he incurred some problems
in his job performance. On one occasion he damaged a truck
while moving it and received a warning. On April 3, 1996, he
received a warning for an incident on March 28, 1996, when he
drove a truck off the jacks while the tires were being changed.
The April 3 warning which was issued by Elmore listed three
previous warnings issued by Elmore and stated that any addi-
tional warning issued within 90 days would result in dismissal.
He was also demoted to the position of incinerator operator as a
result of this incident. Featherson was the leading union advo-
cate among the employees having initially contacted the Union
in late March 1997, solicited union cards among his fellow
employees, has been the sole employee to wear a union hat,
passed out and worn union buttons, and he and two other em-
ployees handbilled in front of Respondent’s facility for 3 days
prior to his suspension on June 6 leading to his discharge on
June 11. On May 31, Region 26 of the Board mailed a copy of
the Union’s petition for an election to the Respondent and it
was stipulated and I find that it was received by Respondent
shortly thereafter and that Respondent was aware of it by June
6.
On June 6, Featherson, who was then an incinerator operator,
reported for work at the start of his 12-hour shift at 6 a.m. As
an incinerator operator, he was responsible for maintaining the
incinerator and dumping the medical waste product generated
from the incinerator in the form of a wet ash from a 2-cubic
foot bin with the use of a forklift truck into a large 22-cubic
foot bin (an open-top) which is subsequently transported by
truck to hazardous waste storage sites. As the trucks travel
along the streets and highways, they are subject to Federal,
state, and local laws and regulations. It is undisputed that the
open-tops are to be lined with a plastic liner designed for that
purpose to avoid leakage during the trip to the storage site.
There was undisputed record testimony that although the incin-
erator operator had primary responsibility for the dumping of
the ash into the Open-top bin, that other employees frequently
perform this task on an as needed basis when they observe that
the ash bin near the furnace is full and the incinerator operator
is engaged in performing other aspects of his job. The General
Counsel presented several witnesses who testified that they had
observed several occasions when the Open-top had ash in it
without the placement of a liner prior to the ash having been
emptied into it. Featherson testified that he had learned of Re-
spondent’s various procedures from other employees including
the dumping of the ash in the Open-top bin and that a liner
should be placed in the Open-top bin prior to dumping the ash
in it.
Former Shift Supervisor Aaron Shields testified that he at-
tended various safety meetings held by the Employer and that
the subject of liners was never mentioned. The only conversa-
tion he had with James Elmore concerning the dumping of the
ash was on the day of Featherson’s suspension when Elmore
came by where he was working about 10 or 11 a.m. and asked
him if he knew who had dumped the ash without a liner. About
2 or 3 p.m. that day Featherson came by and said that he was
“gone.” Shields was called to Stevens’ office about 3 or 3:30
p.m. and asked by Elmore and Stevens if he knew who had
dumped the ash and he said he did not know as he had been on
the other side of the plant moving trailers. Stevens agreed with
this and said that she had observed him on the other side.
About 3 or 3:30 p.m. that day Gross came by and said that Ste-
vens had said that the next person who dumped ash in the bin
without a liner was gone. Prior to this day he was not aware of
any employee having been suspended for this and had never
been advised that employees would be suspended for this.
Elmore admitted at the hearing that no employee had ever been
disciplined for dumping ash in the Open-top without a liner but
contended that Stevens was tightening up on procedures and
indicated that this was part of this overall effort. Stevens
stressed at the hearing that it was important to have a liner in
the Open-top because of the need to comply with Federal, state,
and local laws and regulations. It is undisputed that Respon-
dent had never promulgated a rule that disciplinary action
would be imposed for failing to place a liner in the open-tops
before dumping ash in them. Each of the General Counsel’s
witnesses testified that the need for a liner in the open-top had
never been discussed in any of the various safety meetings held
by management with the employees. Elmore testified that it
had been mentioned but did not specify as to whom and where
and when it had been mentioned.
Featherson testified that when he arrived at work at 6 a.m. on
the day of his suspension leading to his discharge, he relieved
Van Campbell, the incinerator operator on the night shift. He
observed that the incinerator area had been left in a “nasty,
filthy” condition with ash on the floor. Campbell told him that
he would clean it up but when he looked for Campbell 15 min-
utes later, he was gone. He started cleaning the area. About 15
minutes later Gross came to this area and said that ash was off
in the bin outside and that Stevens had said that the next time
this happened, someone was going to be fired, Gross asked
him if he had done it and Featherson said that he had not. The
conversation with Gross occurred about 6:30 a.m. in the incin-
erator area. Gross was complaining about the whole area being
dirty and ash having been dumped in the bin without a liner.
Featherson then went outside to look at the area and observed
maintenance employee Tommy Carter and another employee
cleaning it up and he assisted them in getting the ash out of the
bin in order to put a liner in the bin.
At the hearing, the Respondent called Carter who testified
his shift began at 7 a.m. and that as he was making his rounds
checking throughout the plant to determine if anything was in
need of repair, he arrived at the dock about 7:30 a.m. and he
observed a mess by the large open-top bin and that Nesser, the
cleanup man, was cleaning it up and Nesser asked him to help
him put the liner in but after he and Nesser rolled the liner out
but before they were able to put the liner in the open-top Carter
was called away to fix the tub wash and he does not know what
happened after that. About an hour later Featherson came and
asked him for a chain as the small ash bin was in the open-top
and he then went with Featherson and helped get the small ash
bin out of the Open-top. When he had originally been helping
Nesser put the liner in the Open-top, he had not observed
whether there was ash in the bin but the ash bin was not in the
open-top at that time. When Featherson had asked him for the
chain, he did not say that he had dumped the ash bin in the
Open-top but it had not been in there before. He was called
into Stevens’ office shortly before noon the day of this occur-
rence and asked by her what had occurred in the presence of
Stevens and his supervisor, Jerry Weatherly, and he told her
substantially what he testified to at the hearing. He testified
that during the period of his employment, since April 1995, he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 806
had observed employees dump ash in the Open-top without a
liner and this had been observed by supervisors without any
disciplinary action being taken. On further inquiry he was only
able to recall one instance when this had occurred and testified
that there was an argument about it and a meeting was held
concerning it. This was prior to Stevens’ arrival in April. He
does not recall whether the subject of discharge was mentioned
during this meeting. He does not recall any meeting at which
Stevens discussed the liners.
With respect to the dumping of ash without a liner into the
Open-top, Tennial testified that as a dock worker he frequently
dumped the ash bin into the Open-top and did so without a liner
on at least seven occasions and did so once in the presence of
Plant Manager Gross who mentioned it to him and he told
Gross there was no liner available and Gross said no more
about it. Tennial testified that he was never given any instruc-
tions from management concerning the placement of a liner in
the Open-top but that he was told to put a tarp over the top
when it was full to keep the ash from blowing out. Tennial is a
cousin of Featherson and acknowledged that Featherson had
helped him get his job with Respondent. Tennial was dis-
charged in April 1996 for excessive absenteeism.
Frederick Johnson, who is also a cousin of Featherson and
who was employed approximately 3 months as an autoclave
operator and dockhand until his termination by Respondent,
testified concerning the dumping of ash in the Open-top. He
attended approximately four meetings regarding safety and
operating procedures including the operation of machinery. He
does not recall the subject of liners being discussed in these
meetings including one attended by Stevens who commenced
her employment with Respondent on April 1, 1996. He testi-
fied that he worked on the night shift with only three or four
employees including the shift supervisor on duty. He had been
told by Featherson that there should be a liner in the Open-top
prior to dumping ash in it but there was not always a liner
available and Johnson had dumped ash into the Open-top with-
out a liner on 17 occasions. On several occasions he observed
the open-top with ash having been dumped in it without a liner
by the previous shift. On one occasion when he dumped the
ash in the Open-top without a liner, he was observed by em-
ployee Van Campbell. He cannot recall any instance when he
was observed by members of management while dumping the
ash without a liner.
Van Campbell, a former employee who was terminated by
Respondent in 1996, testified concerning the dumping of ash.
In May and June 1996 he was employed as the night incinerator
operator and on two occasions he dumped ash in the Open-top
without a liner as there was none available in the immediate
area. He placed the second instance on May 26 when he left
work to go to the hospital where his wife was. On that instance
he was relieved by Featherson that morning. The condition of
the incinerator area that morning was “messy.” He later
learned that Featherson had been suspended. Respondent’s
counsel notes in his brief that the date of Featherson’s suspen-
sion and the instance of ash found in the Open-top without a
liner was June 6.
2. Analysis
I find that the General Counsel has established a prima facie
case that the Respondent violated Section 8(a)(1) and (3) of the
Act by its suspension and discharge of Featherson. It is undis-
puted that Featherson initiated the union campaign at the Re-
spondent’s facility and was the leading union supporter who
had obtained the union authorization cards from the Union and
solicited the employees and obtained approximately 25 signed
union cards from his fellow employees. He was discharged for
an alleged infraction of an unwritten rule which is of question-
able origin and for which no employee had been disciplined
previously. This occurred almost immediately on the first day
of his return to work following 3 days during which he was off
in accordance with his normal schedule and during which he
and two other employees had handbilled on behalf of the Union
in full view of Respondent’s district manager, Stevens, who had
required the employees to move off the Respondent’s property
on the first day of the handbilling and who had waved at the
employees while they were handbilling on a subsequent day.
Thus, it is undisputed that the Respondent had knowledge that
Featherson had engaged in protected concerted activities on
behalf of the union campaign. Respondent’s animus toward the
Union and its supporters has been established by the unlawful
interrogation of two employees and a threat directed at employ-
ees by Plant Manager Gross. An adverse employment action
was taken against Featherson and there is evidence of disparate
treatment thereby as this alleged rule had never been formally
disseminated to employees and there had been no prior disci-
pline for its violation. The close timing of the handbilling en-
gaged in by Featherson and his suspension and discharge by
Stevens on the basis of a questionable determination in a rush
to judgment that he was the employee who had dumped the ash
into the Open-top without a liner, in spite of his denial and in
the absence of any substantial evidence that he had done so,
support the inference that the reasons cited by Stevens for his
suspension and discharge were pretextual. I do not credit Ste-
vens that the alleged ash dumping infraction by Featherson was
the reason for the disciplinary action taken against Featherson.
I thus find that the General Counsel has sustained his burden
and has established that Respondent’s animus toward the Union
was a substantial motivating factor in its imposition of the dis-
ciplinary action taken against Featherson. I find that Respon-
dent seized on this incident to rid itself of the leading union
supporter shortly after it received notice that the Union had
filed a petition for an election in order to thwart the Union’s
campaign. I find that Respondent has failed to rebut this case
by the preponderance of the evidence and has failed to demon-
strate that the adverse action would have been taken against
Featherson in the absence of his engagement in concerted ac-
tivities on behalf of the union campaign. Wright Line, 251
NLRB 1083 (1980); Manno Electric, Inc., 321 NLRB 278
(1996).
B. The Suspension and Discharge of Aaron Shields
1. Facts
Aaron Shields was employed as a shift supervisor by Re-
spondent at the time of his suspension and discharge. The
complaint alleges and the General Counsel contends that the
Respondent violated Section 8(a)(1) and (3) of the Act by the
suspension and discharge of Shields in June 1996. The Re-
spondent contends that Shields was discharged for cause be-
cause of a continuing attendance and tardiness problem for
which Shields was warned on several occasions by the issuance
of written warnings on September 14, 1995, for coming into
work late and on January 25, 1996, for violation of a safety rule
for not wearing a safety mask and in both instances was warned
that any further incidents could lead to further discipline up to
and including discharge. In February 8, 1996, Shields received
HEALTH MANAGEMENT, INC. 807
a warning for being absent three times and tardy four times in
January and tardy one time in February. The warning stated
that any further incident would result in “dismissal.” Notwith-
standing these warnings Shields was given an “employee of the
month” award in February and was made a shift supervisor on
April 1, 1996, in place of Featherson who had been demoted in
late March for damage to the truck which he had driven off the
jacks which were used to support it during a tire change.
Shields’ attendance and tardiness problems continued however
and he was late five times and absent on two occasions in April
and May until his suspension in June. However, he was not
disciplined on these occasions. Shields testified that on one
occasion he asked and obtained permission from Elmore to be
absent in order to attend a school function for his daughter and
on another occasion he switched a day off with a non-
supervisor and did not advise management of this. On the day
of his suspension on June 14, 1996, Shields was at least one
hour and 45 minutes late according to the discipline record and
the unrebutted testimony of Elmore whom I credit in this re-
gard. Shields acknowledged these incidents but contended that
he called Elmore and told him he would be late on these vari-
ous occasions and Elmore said, “[O]kay” until the time of his
discharge. Shields signed a union card on April 9 and thereaf-
ter wore a union button. The General Counsel argues in brief
that Shields was discharged because of his prounion activities
citing his testimony that he spoke up in a meeting held by Ste-
vens with the four shift supervisors when Stevens asked for
comments as to the reason for the advent of the union campaign
(I note that other shift supervisors also spoke out at the meet-
ing) and also cites another instance when he was questioned in
the breakroom by Shift Supervisor Maurice McFarland regard-
ing his union sympathies and McFarland immediately thereafter
told Stevens, Elmore, and Gross who were approaching that it
was not going to be easy in an apparent reference to Respon-
dent’s response to the union campaign. Shields testified that
later that same day, McFarland approached him on the dock
and told Shields to tell him all the advantages of union repre-
sentation. Respondent contends that Shields was a supervisor
within the meaning of Section 2(11) of the Act and accordingly
was not entitled to the protection of the Act accorded “employ-
ees” under the Act. Respondent also contends that Shields was
discharged for a continuing absenteeism and tardiness problem.
With respect to the issue of the supervisory status of shift su-
pervisors’ the evidence presented by the General Counsel
established that Shields was never told by management what
his authority was as a shift supervisor and he did not issue
discipline to employees, did not grant time off without
obtaining approval from higher management, did not approve
timecards but on a few occasions, Shields did initial timecards
when Elwood and Gross had gone home and there was a
discrepancy on the card in order to keep management informed.
Shields had never permitted an employee to go home early
unless they had spoken to Elmore. Shields testified that he had
never been informed by management that he had the authority
to issue discipline although another shift supervisor had told
him that he had the authority to issue writeups. Shields had
never issued discipline. On one occasion he had notified
management that two probationary employees had not returned
from lunch and was authorized to call the temporary service
that furnishes temporary employees to Respondent and request
that additional employees be sent to Respondent. Shields spent
97 percent of the time on his shift performing unit work
alongside his fellow employees. Shields followed a checklist to
employees. Shields followed a checklist to check the machin-
ery at the beginning of his shift which took a total of 20 min-
utes on his 12-hour shift. He assigned employees work as re-
quired. The employees to whom he assigned work were regu-
larly designated to perform defined routine tasks and he only
reassigned when there was a breakdown in machinery and he
also assigned work to temporary employees who were used to
perform unskilled labor such as shoveling ash and washing out
tubs. There was no evidence presented that the shift supervi-
sors exercised independent judgment of other than a routine
nature. This testimony was corroborated by Featherson, Ten-
nial, and Johnson who testified that the shift supervisors did not
have the authority to grant time off and that they had never
observed the shift supervisors engage in any of these supervi-
sory activities as well as Featherson’s testimony that he had
never performed any of these supervisory duties during the
period when he was a supervisor prior to his demotion. Re-
spondent contends that the shift supervisors were “solely re-
sponsible for work of employees on their particular shift.” It
contends that they “had the authority to issue oral and written
discipline, send employees home for misconduct or failure to
perform their work, assign employees work, transfer employ-
ees, and approve time cards.” It contends that they “exercised
independent judgment in exercising this authority.”
2. Analysis
The Respondent did not rebut the testimony of Shields,
Featherson, Tennial, and Johnson as witnesses Stevens and
Elwood were not questioned concerning the duties of the shift
supervisors and as noted previously in this decision, Gross was
not called to testify giving rise to the inference that his testi-
mony would have been adverse to the Respondent’s position in
this regard as well as with regard to the other aspects of this
case. I thus credit their testimony which supports a finding that
the shift supervisors are leadmen and not supervisors. I con-
clude the evidence at the hearing relied on by the Respondent
did not meet its burden of proof necessary to establish that
Shields was a supervisor within the meaning of Section 2(11)
of the Act so as to be excluded from the protections afforded
employees under the Act. I find that the shift supervisors are
essentially leadmen who spend the vast majority of their time
performing routine work in the processing of medical waste for
safe transport to hazardous waste storage facilities. The record
contains only meager evidence of the exercise of any of the
indicia of supervisory authority set out in Section 2(11) of the
Act. Moreover there is no evidence that they are exercised in
other than a routine manner on occasion such as telling an em-
ployee to wash out tubs or move to another job in the event of
equipment failure and to ask employees to stay over on another
shift when it is learned that there is not a full complement of
employees for the next shift. J. C. Brock Corp., 314 NLRB 157
(1994). See also Evangeline of Natchitoches, Inc., 323 NLRB
223 (1997).
With respect to the discharge of Shields, I conclude that the
General Counsel has established a prima facie case of a viola-
tion of Section 8(a)(1) and (3) of the Act. The Respondent had
knowledge that Shields supported the Union as a result of his
speaking out at the shift supervisors’ meeting, his display of a
union button since early April and McFarland’s informing
management that it was not going to be easy after speaking to
Shields in reference to the union campaign. Respondent’s ani-
mus toward the Union has been established by; reason of
Gross’ threat and interrogation. Additionally Shields’ dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 808
charge occurred shortly after the handbilling engaged in by
Featherson and two other employees and after the petition for
an election and after the discharge of Featherson. There was
evidence presented by the General Counsel wherein supervisors
received warnings of attendance and tardiness problems and
wherein the Respondent took no action to discharge them.
There was also evidence presented by the Respondent wherein
it had discharged employees for attendance and tardiness prob-
lems Thus there is some evidence of disparate treatment, but I
do not regard it as conclusive. However, I do not conclude that
Shields’ continuing attendance and tardiness problems were
being indefinitely tolerated up to and including the final tardi-
ness incident leading to his suspension and discharge. I rather
conclude that the Respondent suspended and discharged
Shields as it warned him it would because of his continuing
attendance and tardiness problem and would have done so even
in the absence of his engagement in concerted activities on
behalf of the union campaign. Wright Line, supra; Manno Elec-
tric, supra.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by interro-
gation of and threat of job loss issued to employee Frederick
Johnson by Plant Manager Glen Gross concerning Johnson’s
support of the Union.
4. Respondent violated Section 8(a)(1) of the Act by the co-
ercive interrogation of its employee Tennial Warrick concern-
ing his support of the Union engaged in by its Plant Manager
Glen Gross on three separate occasions.
5. Respondent did not violate the Act by the alleged unlawful
solicitation of grievances by District Manager Stevens and I
shall recommend the dismissal of this allegation of the com-
plaint.
6. Aaron Shields was at all times material an employee
within the meaning of the Act.
7. Respondent violated Section 8(a)(1) and (3) of the Act by
its suspension and discharge of employee Anthony Featherson.
8. Robertson did not violate the Act by its suspension and
discharge of employee Aaron Shields and I shall recommend
the dismissal of this allegation of the complaint.
9. The above-unfair labor practices in conjunction with the
status of Respondent as an employer affect commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated the Act it will
be recommended that Respondent cease and desist therefrom
and take certain affirmative actions designed to effectuate the
purposes and policies of the Act and post the appropriate no-
tice.
It is recommended that Respondent rescind the unlawful
suspension and discharge of employee Anthony Featherson and
immediately offer him full reinstatement to his former position
or to a substantially equivalent position if his former position
no longer exists and that Respondent make him whole for all
loss of backpay and benefits sustained as a result of the dis-
crimination against him by Respondent in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1982). Interest shall be computed at the “short term Federal
rate” for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. Section 6621.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Health Management Inc., Memphis, Ten-
nessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their union activities
and sympathies and the union activities and sympathies of their
fellow employees.
(b) Threatening employees with loss of their jobs if they en-
gage in concerted activities in support of a union.
(c) Suspending and discharging employees because of their
engagement in concerted activities in support of a union.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind the
unlawful suspension and discharge of its employee Anthony
Featherson and offer him reinstatement to his former position,
or if his former position no longer exists, to a substantially
equivalent position without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(b) Make Featherson whole for all loss of earnings and other
benefits suffered as a result of the discrimination against him in
the manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the foregoing unlawful discrimination
against said employee and within 3 days thereafter notify him
in writing that this has been done and that the unlawful dis-
crimination will not be used against him in any way.
(d) Preserve and within 14 days of a request , make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Memphis, Tennessee, copies of the attached notice
marked “Appendix.’’3.Copies of the notice, on forms provided
by the Regional Director for Region 26, after being signed by
the Respondent'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 Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In

2 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.
3 If this Order is enforced by a Judgment of the 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.”
HEALTH MANAGEMENT, INC. 809
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 1996.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
(g) The complaint allegation concerning the suspension and
discharge of Aaron Shields is dismissed.
(h) The complaint allegation concerning the alleged unlawful
solicitation of grievances is dismissed.