Moody Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Aug 13, 1980

251 N.L.R.B. 147 (N.L.R.B. 1980)

MOODY NURSING HOME, INC. 147
Moody Nursing Home, Inc. and Laborers' Interna-
tional Union of North America, AFL-CIO,
Local 1348. Cases 10-CA-14187, 10-CA-
14215, 10-CA-14853, and 10-RC-11609
August 13, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JENKINS, PENEI.I.O, AND
TRUESDALE
On May 6, 1980, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order.
I. We agree with the Administrative Law Judge
that, during the critical preelection period, Re-
spondent's agents twice violated Section 8(a)(l) of
the Act by soliciting employee grievances and at
least impliedly promising that corrective action
would be taken, thereby interfering with the em-
ployees' right to a fair and free election.2 Although
the Petitioner did not specifically raise the issue of
unlawful solicitation of grievances in timely filed
written objections, the Board has a "longstanding
policy which permits a Regional Director to set
aside an election based on conduct which he has
discovered during his investigation, even though
that particular conduct [was not] the subject of a
specific objection."3
2. The Administrative Law Judge also consid-
ered the Petitioner's timely filed written objections
to conduct affecting the results of the election. The
Administrative Law Judge recommended that cer-
tain of the Petitioner's objections be overruled 4
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Don Wall Products,
Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for resersing his findings
2 Dal-Tex Optical Company. Inc., 137 NLRB 1782 11962).
American Safety Equipment Corporation, 234 NLRB 50()1 (19781
4 In the absence of exceptions thereto, we adopt proofrma. the Admin-
istrative Law Judge's recommendations that the Petitioner's Objectiols
A. E, G. H, . J, and K be overruled
251 NLRB No. 22
and that the election also be set aside based upon
his findings concerning the following objections:
B. The Employer agents told employees that
they had to pick up checks before they could
vote;
C. The Employer attached to the outside of
each employee check a miss statement [sic] of
anti-Union propoganda, [sic] and the Union
did not have a chance to reply;
D. The employee was told by the Employ-
er's agent to now go across the room and
vote;
F. An employee who arrived early to work
was not allowed to vote until after she re-
ceived her check and was told she could only
vote at 3:00 p.m.
The election was held on January 24. 1979, a
payday. Respondent did not follow its normal
practice of distributing paychecks at the end of
each shift. Shortly before the polls opened, and
throughout the course of the election, announce-
ments were made over the loudspeaker instructing
those employees scheduled to vote to pick up their
paychecks and then to go vote. There was testimo-
ny that employees would not be allowed to vote
without first picking up their paychecks. 5 Attached
to each employee's paycheck was a slip of paper
which read as follows:
If you had been paying union dues to the La-
borer's Union for only the last three months
that the Union has been trying to get in here,
you would already have paid at least $19.50* in
dues alone (not to mention possible fines, assess-
ments, and initiation fees).
This money would have gone to help pay the
salary and expense accounts of some union
"big shot" here or in Washington. This is your
money. You earned it-WHY not keep it for
you and your family,
V O T E "N O"
*Actually, the Union Constitution stales that you would pas
more
Inasmuch as the International union constitution
provides that monthly dues of a local union shall
not be less than $7 per month the Administrative
'In this regard. the record reveals that cmnplioee, ho had not cl
picked up iheir pa>check, ere made to get lut of lie ;itid IiolI thal
the5 would hae I do so before being allossed Ito sol E llen Moitorl-
ara, Respondenl' staff dcs elopnle it c rdilltor. rte ificd that the Illfilrlg
hotm5; attorilles inlructled her Io dirct cnlOh ecs firmi Io pick up their
paychecks it]d then to sote
MOODY NURSING HOME. INC.
14X DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Law Judge properly found that the pay slip was
not misleading.6
Based upon the foregoing facts, the Administra-
tive Law Judge found that Respondent had en-
gaged in objectionable conduct. He concluded that
the language on the pay slips, "taken together with
the timing of the conduct, was likely to create a
'massed psychology' to which the Union clearly
had no opportunity to respond." In support of his
finding, the Administrative Law Judge relied on
Peerless Plywood Company.7 In Peerless, the Board
decided that campaign speeches to massed assem-
blies of employees, on company time, within 24
hours of the start of an election, should be prohibit-
ed because of a propensity "to create a mass psy-
chology which overrides the arguments made
through other campaign media," thus affording an
unfair advantage to whichever party obtains the
last word. The Administrative Law Judge conclud-
ed that Respondent's conduct, under the circum-
stances, was likely to create a similar mass psychol-
ogy during the final minutes before voting and,
therefore, that it violated the Peerless Plywood rule.
We disagree with this conclusion.
As expressly set forth in Peerless, the rule does
not interfere with the right of any party to circu-
late campaign literature, on or off the premises, or
to otherwise take advantage of lawful means of
persuasion during the critical 24-hour period. The
Board held in The Mosler Safe Company,8 where
written propaganda concerning union dues was dis-
tributed along with paychecks on election day,
"that neither the use of the pay envelopes for the
stated propaganda purpose nor the acceleration of
the pay hour constituted an interference with the
employees' freedom of choice, which would war-
rant setting aside the election." In The Trane Com-
pany (Clarksville Manufacturing Division),9 the
Board stated, citing Peerless, that "[t]here is no rule
against the distribution of written propaganda ma-
terial to employees during the 24 hours preceding
the election, as there is against the making of
speeches on company time to massed assemblies of
employees during this period." It is only the con-
tent of the written material, and not the medium or
timing involved, which is relevant to our inquiry
into the material's effect on an election. Thus,
having found that the paycheck notice in the in-
stant case accurately represented the Union's dues
'We note that Shopping Krt Food Murket. Inc., 228 NLR3 1311
1977), cited by the Administrative Law Judge along with the statement
that the Board swould "no longer probe into the truth or falsity of the
parties' campaign statements," has been overruled by General Knit of
(aIoroniu, Inc,. 239 NlRB 619 (1978)
107 NLRB 427. 429 1953)
129 Nl.R 747. 749 (1960). citing with approval ,Uontrov Hnger
Co., 120 NI.R 8 (1958X
' 137 NlRB 1506, 1509 1962)
requirement, the Administrative Law Judge erred
in finding Respondent's conduct objectionable
based upon factors unrelated to the propaganda's
content. Accordingly, we overrule the Petitioner's
Objection C.' 0
We find, however, that the conduct described in
the Petitioner's Objection B constitutes an inde-
pendent ground for setting aside the election.
While it is true that an employer may accelerate
the distribution of paychecks accompanied by non-
misleading propaganda to coincide with the start of
an election,t it does not follow that an employer
may condition the right to vote upon an employee
first securing his paycheck. In this case, employees
were instructed to pick up their paychecks and
then to go vote. Employees who had lined up to
vote and had not yet secured their paychecks were
told they would not be permitted to vote until they
had picked up their checks. Where, as here, an em-
ployee's right to vote is expressly made to appear
contingent upon picking up a paycheck, the inter-
ference with the employee's expression of free
choice is clear. The employees are given to under-
stand that, rather than having an absolute Section 7
right to cast their votes for or against union repre-
sentation, their franchise depends upon the suffer-
ance of the employer. Accordingly, we sustain the
Petitioner's Objection B.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Moody Nurs-
ing Home, Inc., Decatur, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election con-
ducted on January 24, 1979, among the Employer's
employees be, and it hereby is, set aside, and that
Case 10-RC-11609 be, and it hereby is, severed
and remanded to the Regional Director for Region
10, for the purpose of conducting a new election at
such time as he deems that circumstances permit
the free choice of a bargaining representative.
[Direction of Second Election omitted from pub-
lication.] 1 2
MEMBER PENELLO, concurring in part and dissent-
ing in part:
"'T he Petitioner's Objections D and F are also overruled because the
record fails to reflect any evidence in support of the conduct alleged
therein.
Mo/ ier Saj C(ompany, wupra
12 [Excelsior lootnote omitted from publication ]
MOODY NURSING HOME, INC. 149
I agree with my colleagues that Respondent, by
its agent, Ellen Montonara, violated Section 8(a)(1)
of the Act by soliciting grievances during the
union organizing campaign, but not that the con-
duct engaged in by Nancy Jung similarly violated
the Act. I would not set aside the election on ac-
count of Montonara's unfair labor practices inas-
much as the Petitioner did not allege such conduct
in timely filed written objections.3 1I would, how-
ever, like the majority, find objectionable Respond-
ent's requiring voters to pick up their paychecks
before casting their ballots, but not its distribution
of propaganda with the checks.' 4
Concerning Nancy Jung's alleged misconduct,
she held a meeting with four or five LPNs on or
about December 7, 1978. She began the meeting by
asking if anyone knew what was wrong with the
nurses aides. She told them she had detected a cer-
tain amount of hostility in the air and wanted to
know whether it was related to the Union's orga-
nizing activity or something else. Nobody an-
swered her immediately. She then asked those pres-
ent if they had any problems. The Administrative
Law Judge specifically found that an employee re-
quested Jung to assist her in accelerating her pay
raise by speaking to the administrator and that
Jung flatly refused. The record also reveals that,
during the meeting, Jung announced that a new
work schedule would provide employees with
every 12th, rather than every other, weekend off.
Jung asked for comments and also whether anyone
had a better suggestion for revising the schedule.
One employee made such a suggestion, but Jung
rejected it.
In Uarco, Inc.,' 5 we noted that "it is not the so-
licitation of grievances itself that is coercive and
violative of Section 8(a)(l) but the promise to cor-
rect grievances or a concurrent interrogation or
polling about union sympathies that is unlawful; the
solicitation of grievarces merely raises an inference
that the employer is making such a promise, which
inference is rebuttable by the employer." In the in-
stant case, any possible inference that grievances
would be corrected was effectively negated by
Jung's refusal to expedite an employee's raise, her
imposition of a more onerous work schedule, and
her refusal to amend the schedule when that was
suggested.' 6 Thus, Jung clearly conveyed to the
employees the message that, although she was will-
ing to listen to their complaints, she either could
"'See my dissent in Dayton Tire Rubber Co.. 234 NLRB 504. 505
(1978).
14 I emphasize, though, that I continue to adhere to Shopping Kart
Food Market, Inc., 228 NLRB 1311 (1977), and accordingly, disagree
with the majority's willingness to review the content of campaign propa-
ganda for possible misrepresentations.
'5 216 NLRB 1, 2 (1974).
'^ Jung made no explicit promise of any kind.
not or would not correct them or improve working
conditions.
DECISION
STATMNT OF THE CASE
ROBERT COHN, Administrative Law Judge: This con-
solidated proceeding was heard before me in Atlanta,
Georgia, on December 3-6. 1979,' upon due notice. The
principal issues presented for decision are whether
Moody Nursing Home, Inc. (herein the Employer or Re-
spondent), violated Section 8(a)(l) and (3) of the Nation-
al Labor Relations Act, as amended (herein the Act), by
the acts and conduct of its supervisors and agents herein-
after detailed.2 Also presented for decision is whether
the acts and conduct of the Employer's agents and super-
visors were sufficiently wrongful or unlawful to warrant
setting aside the election among Respondent's employees
conducted by the National Labor Relations Board
(herein the Board) on January 24, 1979.
Following the close of the hearing, post-hearing briefs
were filed by counsel for the General Counsel, by coun-
sel for Respondent, and by the representative of the
Charging Party, which have been duly considered.
Upon the entire record, including arguments of coun-
sel and my observation of the demeanor of the wit-
nesses,3 I make the following:
FINDINGS OF FACT 4
1. THE ALIL.GED UNFAIR LABOR PRACTICES
A. Background
Respondent operates a nursing home in Decatur,
Georgia, where it employs approximately 126 employees
in the appropriate unit determined by the Board for the
election.5 The facility contains approximately 225 beds,
which are distributed in 5 wings which are named Dog-
wood, East, West, Pavilion, and Georgian. At all times
material, Respondent's administrator was a Mr. Mell and
All dates hereinafter refer to the calendar ear 1978 unls,, otherulse
indicated.
2 The original charge in Case 1)-CA-14187 sa, filed Nsemher 27
the original charge in Case 10-CA-14215 was iled December 8: and Ihe
original charge in Case 0 CA-14853 was filed Jul' 23. 1979
3 Cf Bishop and Malco. Inc.. db/a W'alker'. 159 NLRH 1150, 1161
196)
4 There is no issue respecting jurisdictlon or the stalus of the Charging
Parts: Union as a labor organization. The complaint allege, ufliicni
facts respecting Respondent's interslate operations, which are admlllcd
hy answer upon which I ma), and do hereby, find that Respondent i an
employer engaged in commerce within the meaning of Sec 2(h) .iid (7)
of the Act.
It is alleged in the complaint, admitted in the an, er. and I find that at
all times material the Charging Parti Union is a labor rganizatllin ithl
the meaning of Sec 2(5) of the Act
s The unit description is as follows.
All service and maintenance emnployees employed by the Employer
at its Decatur. Georgia. facility, including all ward clerks. nurses
aides, housekeeping employees., laundr? employees, dietary emplos-
ees., laboratory employees, physical therapy employees. sial sers Ice
employees., licensed practical nurses, the admsslion's clerk and medl
cal records clerk, hut excluding all business office clerical employees.
professional employees. RNs. and guard, and superi lor, al, defined
in the Act
MOODY NURSING HOME. NC.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the director of nursing (who had supervisory authority
over the employees with whom we are concerned in this
proceeding) was Nancy Jung. Since the home operated
around the clock, the employees worked three shifts as
follows: 7 a.m. to 3 p.m., 3 p.m. to 11 p.m., and 11 p.m.
to 7 a.m.
Prior to the summer of 1978, there had been no histo-
ry of collective bargaining at Respondent. In approxi-
mately August of that year, the Union commenced its or-
ganizational campaign which consisted primarily of so-
licitation of employees to join the Union, distribution of
union authorization cards, and the holding of union
meetings at locations away from the nursing home.
On November 28, the Union filed its petition for an
election with the Board and, pursuant to a Stipulation for
Certification Upon Consent Election executed by the
parties and approved on December 19, an election by
secret ballot was conducted by the Board on January 24,
1979, which the Union lost. Thereafter, as previously
noted, the Union filed timely objections to the election
which are consolidated herein for hearing and disposi-
tion.
The complaint herein alleges that Respondent termi-
nated three employees and refused to reinstate another
because of their concerted and/or union activities, and
otherwise engaged in conduct independently violative of
Section 8(a)(l) of the Act. Respondent, while admitting
that it terminated the three employees and refused to re-
instate the fourth, denies committing any wrongful or
unlawful acts, and asserts that the reasons for changing
the employment status of its employees, as aforesaid, was
based upon good and sufficient cause as hereinafter set
forth. Accordingly, I come now to a consideration of the
evidence adduced respecting these issues.
B. The Facts
1. The discharge of Joyce Heyward
Heyward was hired as a nurses aide on August 5, and
worked on the third shift until she was terminated on
November 15. Shortly after being employed, she signed
a union card, passed out some union cards to other em-
ployees, and attended two union meetings which were
held at locations away from the nursing home. One such
meeting was also attended by Jeanette Hambrick, a li-
censed practical nurse (LPN) who was employed by Re-
spondent. 6
t11 is the posilion of the General Counsel that company knowledge of
Heyard's (and some other employees') union activities may be found
through tambrick's attendance at a union meeting held at a McDonald's
restaurant hich was near the nursing home. He points out that the
record establishes that Hambrick sometimes functioned as a night super-
visor, "ard routinely served as a conduit of information and paperwork
between Director of Nursing Jung and Respondent's LPN and nursing
assistant eployees (G C br at fn 2, citing Samuel Liefjr and Iarro ,
Ovtreicher, a copartnerhp. d/b/a River Manor Health Related Iucilirv, 224
Nl RB 227 (1976) ) However, the facts in that case are readily distin-
guishable from those herein. There, the Administrative La Judge (af-
firmed by the Board) found, in an 8(a)(2 ) context, that management had
utilized certain LPNs to require employees to sign dues-deduction au-
Ihoriation cards on behalf of a union favored by management. The Ad-
ninisrative Law Judge thus concluded that these I.PNs had been placed
by mangement in a strategic position where employees could reasonably
behlieve they spoke on its behalfl and thus provided a basis for a finding
On October 24, Heyward drafted a two-page, hand-
written note to Director of Nursing Jung which con-
tained some 10 various grievances having to do primarily
with alleged preferential treatment of LPNS vis-a-vis
nurses aides. Heyward testified that she secured the sig-
natures of four other employees (including discriminatees
Betty Hudson, an LPN, and Susie Todd). Since Hey-
ward worked the 11 p.m. to 7 a.m. shift, she rarely came
into contact with Jung, who normally worked in the
daytime. Accordingly, Heyward testified that she placed
the letter in a "green envelope" and turned it in to regis-
tered nurse (RN) Garrison for forwarding to Jung. 7 Al-
though this method of communication between employ-
ees on the third shift and the director of nursing was ap-
parently common practice at the nursing home, Jung
denied that she ever received the letter.8
Heyward injured her back while working on the eve-
ning of November 12. The injury apparently resulted as
a consequence of an effort on the part of Heyward and
another nurses aide (Isry) to turn a patient over in bed.
Heyward reported the incident to the charge nurse
(LPN Betty Hudson) on the wing where she was work-
ing, and also called Nancy Jung on the telephone. It so
happened that Jung was working that night, and she
came up a few minutes later to the wing where Heyward
was injured. She gave Heyward some pills for the pain,
and told her to sit down and not to make any more
rounds of the patients.
It is required for insurance purposes that, whenever an
employee of Respondent injures herself while at work,
an incident report must be filled out and turned in to Re-
spondent. Heyward testified that Hudson told her to
complete the incident report after Jung had left that
morning, and Heyward proceeded to do so. Interestingly
enough, both Heyward and Hudson testified that, after
the incident report was completed and placed in a
"green envelope," each placed the envelope on Jung's
desk before they left that morning. Nevertheless, Jung
disclaimed knowledge of such incident report until after
Heyward was terminated a few days later as described,
infra. 0
that they were its agents There is no such evidence ir this case, and
therefore no basis upon which to find that Hambrick's knowledge of
these discriminaees' unio activities is imputable to Respondent
The parties stipulated that Garrison was a Sec 2(11) supervisor
8 Jung testified that the first time she saw the letter was during the
investigation of the charge in the instant case when it was shown to her
by the NLRB agent whot interviewed her The copy of the letter shown
to Jung was a copy retained by Heyward, which was apparently given to
the NLRB agent i the course of the inestigation of the charge
GCarrison testified that it was a common occurrence for employees on
the night shift to give her memoranda destined for Jung, and that she
normally lays such memoranda on Jung's desk since Jung is usually not
present that early in the morning. Garrison further testified that the first
time she had seen the letter (G.C Exh. 16) was during the investigation
of the case. when it was shown to her by the Board agent.
" Heyward claimed that Jung gave her two ylenol pills and a Darvon
capsule, which estimonyv is corroborated by that of Betty Hudson Jung
denied ever haing administered )aron to Heyward. testifying that she
gave Heyward Tylenol -nolt Darvon. I will assume the veracity of
Hey ards testimony for the purpose of disposing of the ultimate issue of
alleged discrimination
"'L Jung acknowledged receipt of a letter from Heyward addressed to
Mrs Morgan. Respondeint s staff coordinator whose function is. among
Continued
e -
MOODY NURSING HOME, INC. 151
Upon reporting for work the following evening, Hey-
ward found her timecard missing and a note signed by
Jung in the timecard slot. The note instructed Heyward
not to report for work until she had seen a doctor. On
November 15, Heyward went to the office of a chiro-
practor. In the course of his interview with Heyward,
the chiropractor telephoned Respondent (apparently in
an effort to learn whether Respondent would be respon-
sible for his bill), and talked with Jung. He reported to
Heyward that Respondent could not pay the bill because
Heyward had not turned in an incident report. Leaving
the chiropractor, Heyward went directly to the nursing
home carrying the papers which the chiropractor had
given her to complete. She showed them to Administra-
tor Mell, who instructed her to give them to Director of
Nursing Jung. Heyward insisted to Jung that she (Hey-
ward) did, in fact, complete an incident report and had
left it on Jung's desk. According to Heyward's testimo-
ny, Jung, at that point, laughed. This incensed Heyward,
who then threatened Jung that she would have Jung's li-
cense for giving Heyward a Darvon without a doctor's
prescription, and that she (Heyward) would see Jung and
Mell in court. As she turned to leave, Jung told her not
to return to work and Heyward assumed that she was
terminated.
Analysis and Concluding Findings as to the
Termination of Joyce Heyward
At the outset, it may be noted that there is no direct
evidence of company knowledge of Heyward's union
and/or concerted activities prior to her termination. '
Thus, there is no testimony that any management agent
or supervisor observed or was made aware of her union
activities, and I have rejected the claim of the General
Counsel that LPN Hambrick, who attended a union
meeting at which Heyward was present, was an agent of
Respondent.
With respect to the concerted activity reflected by the
October 24 letter, there is, of course, no direct evidence
that Jung (who made the decision to terminate Heyward)
was ever made aware of that document prior to the dis-
charge. Of course, there is direct evidence that the docu-
ment was placed on Jung's desk, but common experience
teaches us that sometimes papers are misplaced. In that
connection, I note that Jung did not deny receiving com-
plaints from other alleged discriminatees, 12 as well as
from Heyward herself. Thus, the evidence indicates
Jung's awareness of the letter of November 13, which
Heyward addressed to Morgan, and Jung also acknowl-
edged receipt of Susie Todd's request for a meeting to
other things, to make out the employees' work schedules. In that letter,
Heyward advised Morgan that she (Heyward) had written several letters
that week (all unanswered): and that Heyward's back had been hurting
all week and she was requesting not to be assigned to the Georgian-Dog-
wood wing apparently because of the lifting of patients required there.
" I am, of course, cognizant of Board precedent which teaches that
such knowledge may be inferred under certain circumstances. See. eg.
Wiese Plow Welding Co.. Inc.. 123 NLRB 616 (1959). However, I find that
there is a lack of substantial evidence in the record herein upon which lo
base such an inference.
12 Indeed, the record shows that Jung encouraged the filing of such
complaints by employees respecting working conditions.
discuss her alleged unfair evaluation report discussed,
infra.
Under all these circumstances, I would be disinclined
to find as a fact that Jung had knowledge of Heyward's
October 24 letter prior to reaching a decision to dis-
charge her. However, I need not and do not rest my ulti-
mate conclusion of recommending dismissal of this
aspect of the complaint upon that factor alone since I
also find insubstantial evidence to support the General
Counsel's alternative theory, explicated in his brief, that
Heyward's threat to resort to a legal authority violated
Section 8(a)(l) of the Act. Counsel for the General
Counsel cites the following cases in support of his con-
tention: Alleluia Cushion Co., Inc., 221 NLRB 999 (1975);
and Triangle Tool & Engineering, Inc., 226 NLRB 1354
(1976).
Thus, counsel for the General Counsel is in agreement
with Respondent's position that the "disrespect" shown
Jung by Heyward was the "immediate, precipitating
cause of discharge. And the disrespect was Heyward's
statement that she would report Jung to the appropriate
authorities for unlawfully dispensing a prescription
drug." 3 Relying upon the foregoing cited authority,
counsel for the General Counsel argues that an employ-
ee's threat to resort to legal authority in regard to a
matter of legitimate concern in the workplace violates
Section 8(a)(l) of the Act. However, I cannot agree that
the cited authorities contemplate or control the factual
situation extant in the instant matter.
Thus, the Board, in Alleluia, determined that concerted
activity may be based upon a single employee's seeking
to enforce statutory provisions relating to occupational
safety designed for the benefit of all employees (in that
case a single employee presented a complaint to a state
agency concerned with health and safety standards). In
Triangle, a similar finding was made upon a single em-
ployee's solicitation of the aid of the Wage and Hour Di-
vision of the United States Department of Labor respect-
ing overtime pay. It is certainly beyond dispute that such
matters as occupational safety and overtime pay are mat-
ters of concern to all employees, and are subjects which
not infrequently arise in the workplace. On the other
hand, there is certainly no evidence in this case that
there was a practice or policy of dispensing Darvon or
any other prescription drug to employees by Jung or any
other management representative. Moreover, this was a
threat made against Jung personally and not respecting
any policy or practice of Respondent generally.
In sum, I find in apparent agreement with all parties
that the immediate, precipitating reason for the discharge
of Heyward was her threat to Jung; i.e., the decision to
discharge had not been made prior to such threat. I fur-
ther find that the utterance of such a threat in the cir-
cumstances constituted sufficient reason for Jung's
action, and that such action resulted solely from
Heyward's conduct in that regard and not from any
union or concerted activities in which she may have
been engaged prior to such occurrence. I shall therefore
':' Brief of counsel for the General Counsel at p 5
MOODY NURSING HOME. INC~~~~~~~~~~~~~~~.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend that the complaint, as it pertains to the al-
leged wrongful termination of Heyward, be dismissed.
2. The alleged discriminatory discharge of Betty
Hudson
Hudson was employed by Respondent as an LPN
prior to being terminated by Respondent on December 7.
She worked on the third shift as a "charge nurse," 4 and
sometimes served as an acting supervisor on that shift in
the absence of Jeanette Hambrick, for which Hudson re-
ceived an extra $5 per pay period.' 5
Hudson signed a card for the Union in August, and
also solicited signatures of approximately 20 other em-
ployees, according to her testimony. She also attended
union meetings, including the meeting at the McDonald's
restaurant at which LPN Jeanette Hambrick was in at-
tendance, as hereinabove noted.
On or about October 27, Hudson received her first
evaluation report, as was customary with employees
after they had worked about 3 months for Respondent.
Her performance rating varied from "average" to
"good" and she was recommended by Director of Nurs-
ing Jung for continued employment but not the pay in-
crease. In the "comments" section of the report it was
stated: "[R]eluctant to work Pavilion [wing] and to help
dry up [patients]. Will have conference with her and re-
evaluate in 3 months." Hudson testified that she refused
to sign the evaluation report on the grounds that, while
she admitted reluctance to work in the Pavilion wing,
she would not agree that she refused to "help dry up."
On or about October 24, Hudson signed the memoran-
dum drafted by Heyward, referred to above, listing sev-
eral complaints respecting working conditions. 6
During November, Hudson received a 20-cent-per-
hour wage increase. However, the evidence shows that
such increase was not based upon merit but rather was a
night pay differential which all LPNs on the third shift
received.
The record reflects that, in late November and early
December, Hudson had two derogatory memoranda filed
with Jung respecting Hudson's work performance. One
memorandum had to do with Hudson's leaving the floor
for long periods of time, which necessitated that a nurses
aide call her concerning residents who needed medica-
tion. The other memorandum involved the dispensing of
insulin to patients too early in the morning; that is to say,
insulin should not be given to patients far in advance of
their eating. Thus, Respondent had a policy that insulin
was not to be given to patients before 6:45 a.m. The
memorandum recited that Hudson gave insulin on some
occasions prior to 6:15 a.m. Hudson did not deny breach-
ing this policy but contended that, in order to give insu-
lin to patients before Hudson was scheduled to leave at 7
a.m., she was required to give the insulin earlier than Re-
spondent's policy stated.
" This title refers to the LPN on duty in each wing of the nursing
home on the night shift.
Is However, on November 24, 1978, Hudson notified Jung that she no
longer wished to serve in that position because the extra pay received
was not worth the extra duties required.
16 Interestingly enough, some of the complaints had to do with alleged
preference of LPNs (such as Hudson) over the nurses aides
Jung testified that she reached a decision to terminate
Hudson on December 7 on the basis of the following:
She (Jung) received a telephone call early on the morn-
ing of December 7 from nurses aide Isry, who was ap-
parently upset respecting the care (or lack thereof)
which Hudson was giving to the residents. This included
the lack of feedings and lack of care due to Hudson's ab-
sence from the wing. Jung asked if there were any other
nurses aides who felt the same way Isry did, and the
latter mentioned Sarah Wright, another nurses aide. Jung
then called Wright and also Hambrick, and received the
same information. According to Jung's testimony,
Wright reported an incident where a resident had come
to the desk that evening requesting medication, but no
LPN was present to administer it.'7
On the basis of the foregoing information, Jung testi-
fied that she immediately went to her files and pulled
some of the nurses' notes on the most critically ill patient
in the building because she wanted to see what kind of
notes LPN Hudson had written on those people. She
found that Hudson's notes were totally inaccurate and in-
adequate because they did not reflect any information
that the patient was given intravenous feedings, that she
was turned, or that she had anything done for her,
merely stating that she had a "quiet night without com-
plaint." On the basis of all of these reasons, i.e., the early
administering of the insulin, the length of time away
from the wing on which she was the charge nurse, and
the reporting on the patient above-noted, Jung reached a
decision to terminate Hudson and telephoned her to so
advise. Hudson merely thanked her, and later went to
the nursing home to get her final check as well as the
copies of the memoranda in her personnel file.
Analysis and Concluding Findings as to Betty
Hudson
As in the case of Joyce Heyward, the record reflects
no direct evidence of company knowledge of Hudson's
union and/or concerted activities. Although I am, of
course, aware that such knowledge may be based upon
circumstantial evidence, I am disinclined to do so for the
reasons mentioned in Heyward's case. Moreover, I note
no attitude of recrimination by Jung against Hudson or
any other employee for filing complaints; to the con-
trary, as previously noted, the record reflects that she
encouraged such memoranda from all employees under
her supervision.
But even if it is assumed, arguendo, that Jung had such
knowledge of Hudson's concerted activities, I find the
evidence in support of Respondent's reasons for the ter-
mination to be substantial. Thus, there was no denial of
Respondent's assertions that she breached Respondent's
policy regarding the giving of insulin to patients too
soon, which could have had an adverse effect on their
health; that she was away from her work station for long
periods of time; and that her charting was inadequate as
to the very sick patients. Of course, suspicions are
" Neither Wright nor Hambrick testified at the hearing, and I advised
counsel that the testimony of Jung on this point was received merely as
information upon which Jung took action and not for the truth or accura-
cy of the report.
MOODY NURSING HOME, INC. 153
aroused because of the timing of the termination as well
as the failure by Jung to warn Hudson of such contem-
plated action prior to the discharge. However, it is ap-
parent from a consideration of the totality of the evi-
dence, including Jung's demeanor on the witness stand,
that the latter was a strict disciplinarian and brooked no
carelessness or negligence of the employees, particularly
with respect to the care of the patients. This is reflected,
in part, by the relatively high rate of employee turnover
at the facility. While this policy may not constitute good
personnel relations, it is well established that the Board
may not substitute its judgment in these matters for that
of the Employer. Moreover, I note that there is no evi-
dence that Jung departed from a policy or practice of
Respondent with respect to any requirement for a previ-
ous warning prior to termination.
In sum, I find that there is insubstantial evidence to
sustain the General Counsel's burden of proof that
Hudson was terminated because of her union and/or
concerted activities. I shall therefore recommend that
these allegations of the complaint be dismissed.
3. The alleged discriminatory termination of Susie
Todd
Todd was employed by Respondent on August 28, and
worked as a nurses aide on the third shift. She testified
that, shortly after her employment she signed a union
card, attended several union meetings (one of which was
also attended by Jeanette Hambrick as discussed supra),
and talked to several other employees about signing
union cards. She also signed the October 24 memoran-
dum drafted by Joyce Heyward, discussed supra.
Todd acknowledged that she worked for a period
shortly in excess of the 90-day probationary period for
employees, of which she was aware. On or about No-
vember 20, Jeanette Hambrick delivered to Todd an
evaluation report prepared by Director of Nursing Jung.
She told Hambrick that she did not intend to sign it be-
cause it was incomplete. The form was, in fact, incom-
plete in the sense that of the 15 criteria listed, only 4
were checked. In the "comment" section of the form it
was stated: "Has used all three personal leave days.
Worked with her 11-7 one night and asked her to go to
Pavilion which she did but not willingly. Attitude seems
poor." Jung recommended the employee for continued
employment but did not recommend her for a pay in-
crease. On December 4, Todd requested Union Repre-
sentative Joyce Brown to write a letter to Jung request-
ing a meeting for the purpose of discussing the evalua-
tion report which Todd characterized as "unfair" and
"not true"; she asserted that she had never worked with
the director and that she was available to discuss the
matter at any mutually agreeable time. The note was de-
livered to Jung through RN Garrison.
On December 6, Jung initiated a telephone call to
Todd at the latter's home. According to Todd's version
of the conversation, Jung asked why Todd did not sign
the report, to which Todd responded that it was incom-
plete. Jung then asked whether Todd would come to the
nursing home to talk about it. Todd explained that she
had just moved and that it would be 11 o'clock at night
before she could come, to which Jung responded that
she would have departed the nursing home by that time.
Also, she advised Todd that she would have to sign the
report before she would be allowed to return to work.
At that point, Todd became rather indignant and told
Jung that "she [Jung] did not hire her, that Miss Morgan
did, and she [Jung] told me that Miss Morgan was acting
under her supervision and then wasn't nothing else said."
Todd assumed that the conversation was over, and hung
up. A few minutes later, Jung called her back and told
her that she was being fired because of being "disrespect-
ful over the telephone, and then I told her, well, again,
that she did not hire me, that Miss Morgan did and
before I could be terminated, she would have to give me
a termination slip showing that I was terminated."'
Jung testified that she filled out the evaluation form on
Susie Todd and purposely did not check all the blanks
because she was not aware of Todd's capabilities in some
of the areas; that she knew that Todd had some minor
problems which she thought could be resolved; that, ac-
cordingly, she did not recommend a pay increase but did
recommend her for continued employment; that she was
personally aware of Todd's reluctance to work in the Pa-
vilion area; and that, on one occasion prior to Jung's re-
ceipt of Todd's December 4 letter, Todd telephoned her
one morning to complain about the evaluation-that it
was inaccurate and that, "Jung never worked with
Todd." Jung explained that she was the person who
asked Todd to change wings, and that it was necessary
that the evaluation form be returned so that it could be
placed in her file. Jung further testified that that conver-
sation was not unpleasant; that, after she received Todd's
note, she immediately telephoned her to explain that she
was the person who felt that Todd was unwilling to go
to the Pavilion wing; and that Jung felt that Todd should
remain employed but that she could not so continue if
she failed to return the evaluation form for her file. It
was at that point, according to Jung's testimony, that
Todd hung up-while Jung was attempting to explain to
her about the evaluation form; that Jung attempted to
call her back but Todd's line was busy; that a few min-
utes later Todd called her back and told Jung that
Morgan had hired her, to which Jung responded that she
had been trying to telephone Todd to advise her that she
had been terminated because Jung did not "appreciate
people hanging up on me when I am trying to solve
problems, which she brought forth. I needed her evalua-
tion. She did not return it. It's disrespectful. You cannot
solve problems with employees like this."
Analysis and Concluding Findings as to the
Termination of Susie Todd
As in the cases of Heyward and Hudson, above, there
is no direct evidence of Respondent's knowledge of
Todd's union or concerted activities prior to her termina-
tion. As to the contention of the General Counsel that an
inference should be drawn that Jung did, in fact, receive
the October 24 communication, referred to above, and
that she became indignant about it and set about to ter-
minate those employees who signed it, I note that Jung
I" Tesl imon o Susie Todd
MOODY NURSING HOME, INC.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responded promptly to the December 4 memorandum of
Susie Todd, and that she indicated a willingness to dis-
cuss Todd's problems, and evidenced no antagonism
toward Todd (or any other employee as far as the record
shows) for filing complaints with her (Jung).
Moreover, there is no evidence that Jung had reached
any decision to terminate or otherwise discipline Susie
Todd prior to her telephone conversation with the latter
on the morning of December 6. Even according to
Todd's testimony, Jung asked if she would come to the
nursing home to talk about the problem of the evaluation
report. It was only after Todd indicated an unwillingness
or inability to come to the nursing home at a time when
Jung would be there that the latter explained that Todd
would not be able to return to work until she signed it.
It was at that point, as previously noted, that Todd
became indignant and questioned Jung's authority to ter-
minate her since Jung had not hired her. I find it unnec-
essary to resolve the particular question of whether
Todd hung up at that point, or while Jung was actually
in the process of speaking. In either event, it was certain-
ly not an approach conducive to resolving the problem
under discussion. Considering the lack of evidence of
animus on the part of Jung to Todd's asserted participa-
tion in union and/or concerted activities, along with her
singular disposition and temperament, described above, it
may be reasonably concluded that it was this conduct of
Todd which precipitated and formed the basis of Jung's
decision to terminate her. Accordingly, based upon all of
the foregoing, I find that the General Counsel did not
sustain his burden of proof that the reason for Todd's
termination was because of her union and/or concerted
activities. I shall therefore recommend that the complaint
as to her be dismissed.
4. The alleged discriminatory refusal to reinstate or
reemploy Lillie Ruth Grissom
This employee worked for Respondent from April 20,
1978, until she was terminated on July 23, 1979, because
she "refused to accept job offered on July 12, 1979."' 9
Unlike the cases of the other alleged discriminatees
discussed above, there is no question of Respondent's
knowledge of Grissom's union activities prior to her ter-
mination. She was one of the Union's observers at the
NLRB election on January 24, 1979.20 At the time of
the election, however, Grissom was on layoff status due
to an injury which she suffered on December 23 at the
nursing home. It appears that she slipped and fell while
attempting to pick up a patient who had fallen to the
floor, and injured her back and leg in the process. She
was subsequently treated by a doctor, and attempted to
return to work on one or two occasions in January and
February, but she was unable to perform her duties due
to the injury. Accordingly, she requested-and received
"9 This language is from the separation notice sent to Grissom by Re-
spondent (G.C. Exh. 10).
20 Her name also appeared as one of approximately 18 employees in
various departments of the nursing home who could be contacted if any
employee had any questions concerning the Union See the union leaflet
distributed to employees in the latter part of November (G C Exh. 4). It
is noted that the name of the other union observer at the election (Doro-
thy Todd) appears on this circular. The record reflects that the latter is
still an employee of the Company.
from Respondent, on or about March , 1979, an ex-
tended leave of absence. During this period, she filed for,
and received, workmen's compensation for medical pay-
ments and time lost due to the injury.
On May 18, 1979, Grissom received a release from her
doctor to return to work on May 21, 1979. However, the
release included a specified limitation as follows: "She is
to lift no more than 25 pounds. No stooping and bending
and no working with arms over shoulder level." Grissom
went to the nursing home on or about May 26, and
spoke with Jung about returning to work. However,
when Jung learned of the above-quoted limitation, she
spoke to Administrator Mell and subsequently told Gris-
som that "We can't let you come back to work with
these limitations." 2 1
Grissom returned to her home and contacted her
lawyer, who subsequently advised her to return to her
doctor to ascertain whether he would change his state-
ment. She did so, and received, on or about June 12, the
following statement from her doctor: "The above-named
patient (Grissom) was seen by me today and she is to lift
only 35 pounds, no stooping or bending and no working
with arms over shoulder level. Please no repetitive lift-
ing." Grissom testified that she took the above statement
to the nursing home and left it with the receptionist. Her
next contact from the nursing home was in the form of a
letter dated July 11, 1979, to be described more particu-
larly infra.
Meanwhile, in May, Grissom received a lump sum set-
tlement of her workmen's compensation claim. Shortly
thereafter, still being unemployed, Grissom filed a claim
for unemployment compensation. A notice of this claim
was sent to Respondent by the Georgia Unemployment
Commission. This resulted in a decision by the officials
of Respondent to offer Grissom a job in the laundry de-
partment of the nursing home; that is to say, Respondent,
having decided that it could not reinstate or reemploy
Grissom under the limitations prescribed by her physi-
cian, determined to offer Grissom a job in the laundry
which she could perform and not breach the restrictions
imposed by Grissom's doctor. The July letter stated as
follows:
July 11, 1979
Dear Mrs. Grissom:
It is my understanding that you are ready to return
to work after an extended illness. I understand that
you have some stipulations as to physical activity.
At this time we have a position open in the laundry
from 3:00 AM to 11:00 AM. The physical activity
would meet your present activity limitations.
Please let us hear from you by Monday, July 16th.
We can discuss the specifics of the job when you
contact us.
Thank you.
Sincerely yours,
Isabel Morton
2 Testimony of Grissom.
MOODY NURSING HOME, INC. 155
Shortly after receiving the foregoing letter, Grissom
telephoned Isabel Morton, the supervisor in the laundry.
According to Grissom's testimony, after she identified
herself as an LPN, Morton apologized for offering the
position to a nurse, and suggested that Grissom talk di-
rectly to Director of Nursing Nancy Jung. 22
Analysis and Concluding Findings as to Lillie Ruth
Grissom
It is the contention of the General Counsel that Re-
spondent's refusal to reinstate Grissom as an LPN, and
its final offer to allow her to return in the menial job of a
laundry worker with unseemly working hours, were but
stratagems devised by Respondent to retaliate against her
because of her union activities. Respondent argues that,
considering its obligation to the comfort and safety of its
patients, it could not employ an LPN with the limitations
prescribed by Grissom's physician, and that it offered her
the laundry position (I) because it was a job which could
be performed within those limitations and (2) as a
counter to Grissom's unemployment compensation claim.
It is true that at Respondent's nursing home it is the
nurses aides who are primarily responsible for the per-
sonal care of the patients such as bathing, personal hy-
giene, turning the bed patients every 2 hours, and gener-
ally cleaning up after the patients. On the other hand, the
LPNs are primarily responsible for the medical care ad-
ministered to the patients, which would encompass
giving medication, taking vital signs such as blood pres-
sure, temperature, etc., and performing the charting
work required on each patient. Nevertheless, the record
clearly reflects that, in the course of performing her
normal day-to-day duties, an LPN must engage in some
lifting, bending, and stooping. Thus, in the course of dis-
pensing medication, the LPN has to push a cart contain-
ing the medications through her wing. The cart, which is
approximately 3 to 4 feet high, contains drawers which
hold the medications, and the drawers extend down to
approximately I foot from the floor. In order to reach
the medications in the lower drawers, the LPN would
perforce be required to bend or stoop in order to secure
the medications. Moreover, the record reflects that on
some occasions patient!; (who are, for the most part, el-
derly, partially incapacitated persons) sometimes fall
from their beds or wheelchairs and need to be restored
to their original positions. Ordinarily, this would be the
responsibility of the nurses aide, but, if she is not present
on the scene, an LPN would be expected to lift or assist
in lifting the patient to his or her original position.
Indeed, I note that this was what Grissom was doing at
the time she suffered her original injury in December.
Accordingly, I am unable to agree that there is substan-
tial evidence to support the General Counsel's position
that an LPN could perform her work duties at Respond-
ent's nursing home and, at the same time, be in compli-
zz Morton testified that, at that time, she had an employee on acalnlll
and needed someone to fold clothes: that Jung had given her Grissom'%
name and told her of the latter's limitations; and that, hen she talked to
Grissom on the telephone, the latter indicated that she could not accept
the position because se as still a nurse I deem It unnecessarN to re-
solve this particular credihility Issue for the purpose of res,olving the ult-
mate question of discrimlination
ance with the limitations prescribed by Grissom's physi-
cian. Moreover, I note that there is no evidence to refute
Respondent's contention that it has never employed an
LPN with those limitations, so there is no evidence that
Respondent discriminated against Grissom in this regard.
To be sure, there is record evidence that Respondent al-
lowed certain female employees to work during their
pregnancy for extended periods of time, but it did so as
long as the employee could perform her duties, and there
was no outstanding limitation upon such duties which
might result in liability to Respondent for breach of the
stipulated limitation.
Under the foregoing circumstances, and upon the
filing by Grissom of an unemployment claim, I am
unable to ascribe to Respondent a discriminatory intent
in offering Grissom the job of folding clothes in the laun-
dry. Although the working hours may seem unusual, Su-
pervisor Morton's explanation appears reasonable:
Q. And why those particular hours?
A. As I stated before, we had a machine broken
and it was vacation time. These were our peak
hours; I needed-at that time the girl was coming in
from twelve midnight and she was washing clothes
and if I had gotten someone to come in at three
o'clock she could have folded the clothes. And they
could have been ready to go to the floors at ten
minutes till seven.
In sum, I conclude, and therefore find, that there is in-
substantial record evidence to sustain the burden of the
General Counsel on this issue, and therefore will recom-
mend that the complaint, insofar as it alleges discrimina-
tion as to Lillie Ruth Grissom, be dismissed.
C. Alleged Interference. Restraint, and Coercion
The complaint alleges that on various dates in Novem-
ber and December agents of Respondent solicited its em-
ployees concerning grievances they had with Respond-
ent, and promised employees that it would remedy their
grievances. Respondent denies such conduct.
I. By Ellen Montonara
At the time of the incidents at issue, Montonara had
the title of staff development coordinator. As such, her
job duties included orientation of the employees with re-
spect to Respondent's rules, practices, and procedures.
She testified that, commencing in October, she held
training sessions almost daily with new staff members re-
specting the above-stated subject matters. However, ac-
cording to her testimony, a few days before Thanksgiv-
ing, she held four meetings with older staff members on
the same day. Such meetings were requested by Nursing
Director Jung and another department head (Miss
Hayes) who assertedly told her that there was quite a bit
of confusion among the older staff people concerning
Respondent's policy and procedure manual which had
been issued the previous September.2 ' Accordingly,
2 testlllnn of lon ionara tl.tNs as not ailied as ia itlle. and
Jung assi nl ilterrogtel n this poit
MOODY NURSING HOME INC.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
again according to Montonara's testimony, the purpose
of the meetings with the older staff personnel was to go
over the manual, which she said she could accomplish in
approximately 30 minutes.
Montonara's testimony with respect to the purpose of
the meetings was controverted by that of Wanda Prayer.
She testified that Montonara stated at the commence-
ment of the meetings that she was there to hear the em-
ployees' complaints-to have a "bitch meeting," and that
she would take those complaints to Administrator Mell;
that Montonara had a pad upon which she made notes;
that she indicated that an affirmative action committee
was to be formed which was to be composed of one em-
ployee "per floor," which would have the function of a
grievance committee, however, the latter committee
would not commence to operate until after the election;
that while Montonara intended to take the employees'
complaints to Mell, "they couldn't do nothing [sic] until
after the election"; and, finally, that, while she could not
promise that Mell would always grant the employees' re-
quests, "she would do the best she could."2 4
Based upon all of the foregoing, I conclude, and there-
fore find, that the meetings held by Montonara (referring
to the four meetings held on I day around Thanksgiving)
were, in fact, held for the purpose of soliciting employee
grievances or complaints; that such meetings were
unique in that they had never been held prior to the
advent of the union campaign; and that, while there is no
evidence of a specific promise to improve any particular
working condition, it was implicit that Respondent was
promising to correct or remedy certain grievances so as
to make union representation unnecessary. Such conduct
therefore constituted interference, restraint, and coercion
respecting employees' Section 7 rights in violation of
Section 8(a)(l) of the Act. 25
2. By Nancy Jung
Casondra Moore Petty, a witness for the General
Counsel, testified that on or about December 7, while
24 Montonara's testimony is in accord with that of Prayer to the extent
that Montonara would listen to the employees' complaints and take them
to Mell. "and she [would seel what could be done for the employees in
regard to the things they were unhappy about"; that she, in fact, noted
items raised at the meeting on a legal pad; and that, in fact, an employee
complaint committee was later instituted after the NLRB election.
Both Prayer and Montonara testified that, at the meeting attended by
Prayer, another employee (Gloria Yarborough) raised the issue of the
Union, and accused Montonara that the purpose of the meeting was, in
reality. for the purpose of thwarting the union movement; however, such
purpose was denied by Montonara.
Finally. Prayer placed the meeting which she attended in December,
while Montonara was adamant in stating that it was before Thanksgis-
ing-before the union petition was filed
The credibility issue here has been a difficult one. However, rayer
was quite impressive as a witness. answering questions candidly ad di-
rectly. I also note that, at the time of the hearing, she was still an em-
ployee of Respondent, and I have taken that circumstance into considera-
tion in making my credibility findings. See Georgia Rug Mill. 131 NLRB
1304, 1305 at fn. 2 (1961), enfd. as modified 308 F.2d 89 (5th Cir. 1962);
Astrosyotems, Inc., 203 NLRB 49 (1973); Federal Envelope Company,
Omaha. Nebraska. A Division of Narionwide Papers Incorporufaed. 147
NLRB 1030, 1036 (1964). Accordingly. to the extent that her estimony
differs with that of Montonara. I credit the former.
2s Teledyne Dental Products Corp.. 21(0 NL RB 435 (1974); Reliance
Electric Compuinv. Madison Plant Mechanical Drive Division, 191 NlRH
44 (1971). enfd 457 F 2d 513 (6th Cir 172)
employed as an LPN at the nursing home, she attended a
small meeting of approximately four or five LPNs which
was called by Director of Nursing Jung, and was held in
the in-service room which is located directly across from
Jung's office. She testified, without contradiction, as fol-
lows:
Q. Well, tell the Court what you remember being
said, about how the meeting started, and what Ms.
Jung talked about.
A. Okay. Ms. Jung started the meeting, and she
asked us could we possible-did we possibly know
what was wrong with the aides, why there was so
much hostility in the air, and nobody-well, first of
all-okay. Ms. Jung started the meeting and she
asked us could we possibly know what was wrong
with the aides, there was so much hostility, could it
be from the Christmas or the fact that the Union is
coming in or trying to come in or did we know
what it was about, and nobody answered at that
point.
Q. Okay. What occurred after those early re-
marks?
A. Okay. Then she asked us something, was there
any problems with us, and I told her that I had
been there since July and it was now October, and I
was due for an evaluation, which would include a
raise; and she said that Mr. Mell had the papers on
his desk then, but-and I asked her could she push
him to sign the papers, and that's when she told me
she couldn't.
Q. Okay. Did-were any other matters brought
up by the employees there, any other subjects, that
you recall?
A. I don't remember.
Q. Well, in regard-you mentioned what you
said about your own raise and what Ms. Jung
said-in regard to the matter raised about the
nickle, one of the other employees mentioning the
nickle raise-
A. Uh-huh (affirmative).
Q. -what if anything did Ms. Jung say?
A. Well, she told us if she asked Mr. Mell for a
quarter, he would only give a dime, or something,
you know, to that effect.
Based upon the foregoing, I conclude and find, as in
the case of the Montonara meetings described above,
that the Jung meeting with the LPNs had as its purpose
the solicitation of employee grievances at a time when it
was definitely known that a union organizational cam-
paign was in progress. Even though Jung declined to
promise Petty that Jung could accelerate her requested
raise, the setting was such as to implicitly assure the em-
ployees that their grievances or complaints were being
sympathetically viewed. I believe the situation here to be
comparable to that which was before the Board in Reli-
ance Electric Company, supra, where it was stated that
". .. even a refusal to commit Respondent to specific
MOODY NURSING HOME, INC. 157
corrective action, does not cancel the employees' antici-
pation of improved conditions if the employees oppose
or vote against the unions."26
Accordingly, I find the conduct of Jung at the Decem-
ber 7 meeting, above-described, to constitute a violation
of Section 8(a)(l) of the Act.
II. THE OBJECTIONS TO THE ELECTION
As previously noted, the Union lost the election held
on January 24, 1979, but filed timely objections to said
election with the Regional Director of the NLRB. On
February 1, 1979, the Regional Director issued an order
in which he found that the said objections raised substan-
tial and material factual issues which could be more ap-
propriately resolved by record testimony at a hearing.
He also noted that certain allegations of the complaint
issued in Cases 10-CA-14187 and 10-CA-14215 occurred
during the critical period; i.e., after the filing of the peti-
tion for the election. He then pointed out, in footnote 3
of his order:
It is well established that the jurisdiction of the Re-
gional Director in conducting post-election investi-
gations is not limited to the specific issues raised by
the parties and that an election may be set aside
based upon evidence adduced during such investiga-
tions but not specifically alleged in the objections.
International Shoe Company, 123 NLRB 682.
I have heretofore found that certain conduct of Re-
spondent's agents which was violative of Section
8(a)(l) of the Act occurred during the critical
period. Accordingly, I would recommend that the
election be set aside based upon those findings. Ad-
ditionally, I will briefly consider the remaining ob-
jections alleged by the Union:
A. Employer agents in open-room directly across
from the voting place; thus allowing them to com-
municate with each individual employee before en-
tering the voting place before they had an opportu-
nity to cast their ballots.
The evidence shows that, prior to the election, a rep-
resentative of the NLRB along with representatives of
Respondent and the Union observed the place where the
election was to be held, and otherwise checked the facili-
ties and arrangements under which the employees would
vote in the election. The place of the balloting was in the
"in-service room," which was a classroom located direct-
ly across a hallway from the offices of the staff coordina-
tor and the director of nursing. The hours of the election
were stipulated to be 1:30 p.m. to 4:30 p.m. and 10:30
p.m. to 11:30 p.m. Accordingly, it would be reasonably
expected that, at least during the first period of voting
when most of the employees actually voted, the supervi-
sory personnel referred to would be engaged in their
26 191 NLRB at 46. Respondent relies upon 1: C. Papers. Inc., A
Division of the Mead Corporation, 211 NLRB 657 (1974). However, in that
case, a majority of the Board panel found that the purpose of the re-
spondent's president's speech was to inquire into "normal work prob-
lems," which is not the case here See also the dissenting opinion in that
case.
normal duties. There is scant evidence that any supervi-
sor or agent of Respondent communicated with any indi-
vidual employee in the voting area while that employee
was awaiting an opportunity to cast his or her ballot.
Certainly there was no evidence of any prolonged con-
versations between representatives of Respondent and
voters waiting to cast ballots. 27 Under all circumstances,
I find insufficient evidence to warrant setting aside the
election based upon this objection. 28
Paragraphs B, C, and D of the Union's objections,
quoted below, will be considered together since they
relate to the same series of events:
B. The Employer's agents told employees that
they had to pick up checks before they could vote.
C. The Employer attached to the outside of each
employee check a miss statement of antiunion pro-
poganda, and the Union did not have a chance to
reply.
D. The employee was told by the Employer's
agent to now go across the room and vote.
The election was held on the employees' payday. It
was apparently the regular procedure on payday for em-
ployees to pick up their paychecks at the end of their
shifts in the staff coordinator's office. It was also appar-
ently agreed, or at least acquiesced in, that employees
would vote by wings or departments in which they were
employed, at scheduled times, and that announcements to
that effect would be made over Respondent's public ad-
dress system.
The record reflects that, shortly before the polls
opened, Respondent's agent, Ellen Montonara, began an-
nouncing over the loudspeaker that the first employees
scheduled to vote should pick up their paychecks and
then go to vote. 29 This procedure was apparently fol-
lowed throughout the election, and there was testimony
that an employee would not be allowed to vote without
first picking up her paycheck. Attached to the paycheck
of each employee was a slip of paper containing the fol-
lowing language:
If you had been paying union dues to the Laborer's
Union for only the last three months that the Union
has been trying to get in here, you would already
have paid at least $19.50* in dues alone (not to men-
tion possible fines, assessments, and initiation fees).
This money would have gone to help pay the salary
and expense accounts of some union "big shot" here
or in Washington. This is your money. You earned
it-WHY not keep it for you and your family.
'Actually, the Union Constitution states that you would pay
more
27 Cf. Milchem, Inc., 170 NLRB 362 (1968)
28 In the brief of the Union (p. 3). the following statement appears
It was clearly understood during the stipulated session between the
employer and the union that no one would he in that office [staff
coordinator's office] or vicinity during the election events
However, there is no evidence to that effect in the record.
29 Testimony of Dorothy Todd
MOODY NURSING HOME, NC.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V O T E "N O"
It is clear from the foregoing that Respondent utilized
the combination of payday and the voting procedure to
put before the employees a bit of last-minute, antiunion
propaganda before they entered the polling place. How-
ever, there is no evidence that the information contained
on the slip of paper attached to the employees' pay-
checks was a misrepresentation since the evidence dis-
closes that the monthly dues of a local union shall not be
less than $7 per month.30 In any event, the Board has
recently determined that it would "no longer probe into
the truth or falsity of the parties' campaign state-
ments." 31 However, for reasons hereinafter explicated, I
believe the procedure utilized by Respondent on this oc-
casion oversteps the bounds of the "laboratory condi-
tions" standard which the Board has established for the
conduct of its elections.
Thus, while statistical evidence is not immediately at
hand, it is well known that many, if not most, NLRB
elections are scheduled on a day which coincides with
the employees' payday since that is the workday upon
which it might be reasonably assumed that most employ-
ees would be present at the facility to vote. Were the
procedure utilized by Respondent in this case allowed to
prevail, it is reasonably foreseeable that unions, in the
future, would be naturally reluctant to agree that elec-
tions be scheduled on the workers' payday.
It has been the Board's long-established policy to at-
tempt to immunize the employees from certain types of
I Ith-hour electioneering by either party. Thus, in Peerless
Plywood Company3 2 the Board established its doctrine
prohibiting election speeches, by either employers or
unions, to mass assemblies of employees on company
time within the 24-hour period immediately preceding an
election. Since Peerless Plywood, the Board has refused to
apply that doctrine to cases where a management offi-
cial, on election day, individually contacted eligible
voters at their work stations importuning them to vote
"no" on the ground that such conduct was "unlikely to
create the mass psychology referred to in Peerless Ply-
wood."33 The Board concluded that the individual con-
versations did not amount to a speech made to all the
employees collectively. While the slips of paper attached
to the employees' paychecks in the instant case may simi-
larly not amount to a speech, the fact is that the lan-
guage thereon, taken together with the timing of the
conduct,34 was likely to create a "mass psychology" to
which the Union clearly had no opportunity to re-
spond.35 Based upon this factor, as well as the natural
reluctance of unions to agree to elections on payday in
the future, discussed above, I would find the conduct of
Respondent in this instance to be sufficiently objection-
able to warrant setting aside the election.
30 See "International Union Constitution," at p. 45 (Resp. Exh. II 1).
31 Shopping Karr Food Market, Inc., 228 NLRB 1311 (1977).
32 107 NLRB 427 (1953).
a3 See Elecrro- Wire Products, Inc., 242 NLRB 960 (1979).
34 "The final minutes before an employee casts his vote should be his
own, as free from interference as possible." Milchem, Inc., 170 NLRB
362.
3s Ibid. (dissenting opinions).
E. The Employer's agents (Morgan & others)
stood/sat and watched the employees line up along
the walls of the voting place as they entered the
voting room.
Since the subject matter of this objection is similar to
that of paragraph A above, the discussion and disposition
of this paragraph would be the same as that of paragraph
A.
F. An employee who arrived early to work was
not allowed to vote until after she received her
check and was told she could only vote at 3:00 PM.
The subject matter of this objection relates to the evi-
dence, discussion, and disposition of paragraphs B, C,
and D above. It is to be recalled that the first voting
period extended from 1:30 p.m. until 4:30 p.m., and yet
an off-duty employee was not able to cast her ballot until
she picked up her check (which, of course, had the
above-quoted slip attached thereto).
The rationale and disposition of this item should be
considered to be consistent with that respecting para-
graphs B, C, and D above.
G. The observer for the Union was clocked out
at 1:10 PM by the Employer's agent, and denied re-
mainder of pay for the day, while the observer for
the Employer remained on the clock for the dura-
tion of her scheduled shift.
The Employer stipulated that it paid its observer for
the time spent while acting as an observer at the elec-
tion, but did not pay the Union's observer. I regard this
item to be controlled by the Board's Decision in Golden
Arrow Dairy, 194 NLRB 474, 479 (1971), where it was
held that, in a case where the Union could have desig-
nated an off-duty employee to act as an observer rather
than an employee who acted as such during his regular
hours of work, the employer was not required to pay the
union's observer his wages while so acting. I therefore
recommend that this item be overruled.
H. The observer for the Employer was told by
the Administrator, Mr. Mell, upon completion of
the evening voting that she [the same observer]
could come in late to work the next day.
The representative of the Union, in her brief, acknowl-
edged that no evidence was adduced in support of this
item; therefore it should be overruled.
I. That the nursing director, Mrs. Jung, during
the voting hours was seen walking up and down the
hall in front of the voting place.
It is acknowledged in the record that, during the
voting hours, Jung, in apparent pursuit of her duties, was
seen walking up and down the hall in front of the voting
place. As previously noted, there is no provision in the
stipulation for the election which this conduct violated,
and there is no evidence that Jung engaged in this con-
duct for the purpose of interfering with the election, or
MOODY NURSING HOME, INC 15
that she engaged in such conduct for an inordinate
amount of time. Accordingly, I shall recommend that
this item be overruled.
J. The staff coordinator before and during elec-
tion voting was in direct communication with em-
ployees by informing them individually and collec-
tively as to who is to vote first.
As previously discussed, there was a schedule by
which employees were supposed to vote. It was ac-
knowledged that Miss Montonara, on occasions, instruct-
ed employees of such schedule. There is no evidence
that by engaging in such conversations she interfered
with, restrained, or coerced them in connection with
their rights or privileges under the Act. Accordingly, I
shall recommend that this item be overruled.
K. The Administrator, Mr. Mell, was in direct
view of the voting place while an employee was
casting her vote.
The subject matter, discussion, and disposition of this
objection should be considered with that under para-
graph A above.
For the reasons discussed above, I shall recommend
that some of the objections to the election be sustained,
that the election be set aside, and that another election
be scheduled by the Regional Director at a time he
deems to be appropriate.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
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 interfering with its employees in the exercise of
the rights guaranteed them in Section 7 of the Act, as set
forth above, Respondent has engaged in unfair labor
practices affecting com:nerce within the meaning of Sec-
tion 8(a)(l) and Section 2(6) and (7) of the Act.
4. By its conduct, as set forth above, Respondent has
interfered with its employees' freedom of choice in se-
lecting a bargaining representative, and such conduct
warrants setting aside the election conducted on January
24, 1979, in Case 10-RC-11609.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(l) of the Act, I
shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the entire record, the findings of
fact, and the conclusions of law, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 3 6
The Respondent, Moody Nursing Home. Inc., Deca-
tur, Georgia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Conducting meetings with groups of its employees
for the purpose of hearing and adjusting employee griev-
ances or complaints and explicitly or impliedly promising
them economic benefits or improved working conditions
in order to interfere with their choice of a bargaining
representative, or as an inducement to reject and refrain
from activities in support of Laborers' International
Union of North America, AFL-CIO, Local 1348, or any
other labor organization.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to form labor organiza-
tions, to join or assist the above-named labor organiza-
tion, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and
to engage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its facility in Decatur, Georgia, copies of
the attached notice marked "Appendix." 3 7 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's au-
thorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that certain of the
Union's objections to the election held by the Board in
Case 10-RC-11609 be sustained, that the results of said
election be set aside, and that said case be remanded to
the Regional Director for Region 10 for the purpose of
conducting a new election at such time as he deems the
circumstances permit the free choice of a bargaining rep-
resentative.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
fi In the event no exceptions are filed as provided by Sec 10246 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall a provided
in Sec 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions. and Order. and all objections thereto
shall be deemed waived for all purposes
a7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National abor Relations Board" shall read "Poted Pursu-
ant to a Judgment of the United States Court of Appeals all Order of the
National I.abor Relations Board
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF: THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIll NOT conduct meetings with groups of
our employees for the purpose of hearing and ad-
justing their grievances or complaints, and directly
or impliedly promising them benefits or improved
working conditions, in order to discourage our em-
ployees from voting, joining, or supporting Labor-
ers' International Union of North America, AFL-
CIO, Local 1348, or any other union.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act, as
amended.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of any
labor organization, as guaranteed by Section 7 of the
Act.
MOODY NURSING HOME, INC.