Palm Garden of North Miami

National Labor Relations Board - Board Decisions

Mar 31, 1999

327 N.L.R.B. 1175 (N.L.R.B. 1999)

PALM GARDEN OF NORTH MIAMI 1175
National Health Care, L.P., d/b/a Palm Garden of
North Miami and UNITE! (Union of Nee-
dletrades, Industrial and Textile Employees,
AFL–CIO, CLC). Cases 12–CA–17986, 12–CA–
18357, and 12–RC–7931
March 31, 1999
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FOX, LIEBMAN, AND BRAME
On January 30, 1998, Administrative Law Judge
George Carson II issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief to the Respon-
dent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
Contrary to our dissenting colleague, we adopt the
judge’s finding that the Respondent violated Section
8(a)(1) of the Act by soliciting grievances and promising
to remedy them at the Palm Garden, Florida facility in-
volved in this organizing campaign. The evidence shows
that Harold Bone and Jerry Campbell, two high-ranking
officials who did not usually work at Palm Garden, di-
rected the Respondent’s antiunion campaign there. The
judge found that Campbell used a “methodical approach”
in which he attempted to speak with nearly every unit
employee. Thus, when Bone and Campbell saw Irvine
Gabeau and two other unit employees in the hallway of
the Palm Garden facility, they asked the employees how
they were doing. The employees complained about a
lack of manpower, to which the Respondent’s officials
replied that they were considering hiring more employ-
ees. Either Bone or Campbell also mentioned hearing
that there was a “third party” who wanted to enter the
facility. The Respondent hired four additional unit em-
ployees about the time of this discussion.

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judges credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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.
2 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act during the mock contract negotiation it conducted in
the presence of the unit employees, we find it unnecessary to rely on
the judge’s comment in sec. II,C,1, of his decision that the Respon-
dent’s official, Jerry Campbell, told a “lie” when he said, on conclusion
of the negotiation, that he had done “the best he could” while acting as
the union bargaining representative. While the word “lie” was perhaps
extreme, nevertheless Campbell was certainly disingenuous in stating
that he had done “the best he could” to represent the interests of em-
ployees in the mock negotiation which, as the judge found, was scripted
to gratuitously portray the union representative as incompetent and
ineffectual, as well as to create the impression that it would be futile for
the employees to select union representation.
In adopting the judge’s finding, in sec. II,C,2,b, of his decision, that
the Respondent unlawfully discharged employee Marie Sylvain, we
rely on Hussmann Corp., 290 NLRB 1108 fn. 2 (1988), for the proposi-
tion—fully applicable in the instant case—that failure by an employer
to investigate an employee’s claim that the employee complied with the
employer’s procedures, may belie, or at least undermine, the em-
ployer’s claim of a good-faith belief that the employee violated those
procedures.
Because no party has excepted to the judge’s refusal to recommend
the issuance of a bargaining order, we find it unnecessary to pass on the
Respondent’s exceptions concerning the validity of certain authoriza-
tion cards that the General Counsel submitted into evidence in an at-
tempt to establish the Union’s majority status.
Although Campbell had a practice of discussing work-
ing conditions at another facility that he managed, the
judge found that he had never done so at Palm Garden.
Further, the Respondent’s officials’ casual greeting to the
employees was not innocuous, as our colleague con-
cludes. When Campbell or Bone asked them how they
were doing, the employees clearly understood that the
Respondent’s officials were soliciting their grievances
and responded accordingly. As the Board held in Reli-
ance Electric Co., 191 NLRB 44, 46 (1971), enfd. 457
F.2d 503 (6th Cir. 1972):

Where, as here, an employer, who has not previ-
ously had a practice of soliciting employee griev-
ances or complaints, adopts such a course when un-
ions engage in organizational campaigns seeking to
represent employees, we think there is a compelling
inference that he is implicitly promising to correct
those inequities he discovers as a result of his inquir-
ies and likewise urging on his employees that the
combined program of inquiry and correction will
make union representation unnecessary [footnote
omitted].

The Respondent in this case did not rebut this infer-
ence.3 Rather, to the contrary, the Respondent’s officials
told the employees that it was considering hiring more
employees. In case the employees missed the message of
this implied promise of benefit, either Bone or Campbell
referred to the existence of a “third party” on concluding
the conversation. For these reasons, we agree with the
judge that the Respondent’s conduct violated Section
8(a)(1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, National Health Care, L.P.,
d/b/a Palm Garden of North Miami, North Miami, Flor-
3 See, e.g., Coronet Foods, 305 NLRB 79, 85 (1991), enfd. 981 F.2d
1284 (D.C. Cir. 1993). Cf. Uarco, Inc., 216 NLRB 1, 1–2 (1974) (in-
ference of promise of benefit “negated” by express statement that no
promises could be made).
327 NLRB No. 195
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1176
ida, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
IT IS FURTHER ORDERED that the election held
April 3, 1996, in Case 12–RC–7931, is set aside and that
this case is severed and remanded to the Regional Direc-
tor for Region 12 for the purpose of conducting a new
election.
[DIRECTION OF SECOND ELECTION omitted from
publication.]

MEMBER BRAME, concurring in part and dissenting in
part.
Contrary to the majority, I would reverse the judge and
dismiss the allegation that the Respondent violated Sec-
tion 8(a)(1) of the Act by soliciting grievances and prom-
ising to remedy them. In the remaining respects, I agree
with my colleagues’ decision, except that my rationale
for finding that the Respondent unlawfully promised
benefits is set forth below.1
1. The judge found that, in February and March 1996,
the Respondent’s agent, Cynthia Lewis, conducted sev-
eral antiunion meetings with employees in a park close to
the nursing home. Based on credited testimony, the
judge found Lewis informed employees that, if the em-
ployees selected the Union to represent them, wages and
benefits would be frozen, and that this threat violated
Section 8(a)(1) of the Act. He further found that, con-
trariwise, Lewis told the employees if the Union did not
enter its facility, “Palm Garden will try their hardest to
keep the employees happy.” This statement, the judge
concluded, also violated Section 8(a)(1), as a promise of
benefit.
I agree with the judge and my colleagues that both
statements were unlawful, but conclude that the latter
transgressed the Act only in context. In HarperCollins
San Francisco v. NLRB, 79 F.3d 1324, 1330 (9th Cir.
1996), the court observed that “An employer violates
Sec. 8(a)(1) of the [A]ct when it grants or promises to

1 Although the judge stated in fns. 3 and 23, respectively, of his de-
cision that he would not credit employee Marie Sylvain’s testimony
unless otherwise corroborated or not specifically denied, and that he
would not draw an adverse inference based on the Respondent’s failure
to call its former assistant director of nursing, Vicki Chillon, as a wit-
ness, the judge nonetheless found, based solely on Sylvain’s testimony,
that Chillon’s statement to Sylvain that the Respondent discharged her
for union activity confirmed the Respondent’s unlawful motivation and
also independently violated Sec. 8(a)(1) of the Act. In adopting the
judge’s findings of these 8(a)(1) and (3) violations, I stress that the
Respondent has not shown that Chillon was unavailable to testify as a
witness in this case.
Additionally, the judge found in sec. II,C,1, of his decision that the
Respondent further violated Sec. 8(a)(1) of the Act when its administra-
tor, Dian Johnson, affirmed Chillon’s statement regarding the motiva-
tion for Sylvain’s discharge by telling Sylvain, who had reiterated her
conversation with Chillon to Johnson, that what Chillon had said was
“okay.” Although Johnson’s simple response of “okay” that constitutes
this violation was rather vague as an affirmation of Chillon’s earlier
unlawful statement, the Respondent called Johnson as a witness here
and she did not testify regarding this conversation with Sylvain. On
this basis, I join my colleagues in finding this violation.
grant benefits to discourage employee support for a un-
ion.” There the court noted testimony that the em-
ployer’s CEO, Craig, inter alia, in a speech to nonman-
agement employees, threatened them with plant closure
if they selected the Union to represent them, and upheld
the Board’s finding of an unfair labor practice. The court
also upheld the Board’s conclusion that Craig violated
the law in the same speech when he declared “if [the
employees] dropped this union bullshit, then he would sit
down and discuss our problems and that [the employees]
would find that he’s a very good listener.” In so holding,
the court stressed the remark was unlawful “[g]iven the
context of Craig’s speech,” which included the threat of
plant closure.
Similarly, I find here that the statement by Lewis that
“Palm Garden will try their hardest to keep the employ-
ees happy” if they did not select the Union, was unlawful
in context as it was coupled with a plain threat by Lewis
to employees that the Respondent would retaliate by
freezing their pay and benefits if they selected the Union.
The Respondent clearly intended to send, and did send,
employees the message that rejection of the Union would
be attended by positive consequences, just as its selection
would bring negative consequences in its train.
Statements alleged to violate Section 8(a)(1), however,
must be judged “under all the circumstances.” See, e.g.,
NLRB v. Grand Canyon Mining Co., 116 F.3d 1039,
1044 (4th Cir. 1997). Thus, the Board has found lawful
employer statements asking that employees give it a
“second chance to see if they could make things better,”
on the basis that “Generalized expressions of this type,
asking for ‘another chance’ or ‘more time,’ have been
held to be within the limits of permissible campaign
propaganda.” National Micronetics, Inc., 277 NLRB
993 (1985) (footnote citation omitted), cited recently
with approval in Noah’s New York Bagels, Inc., 324
NLRB 266, 267 (1997). I am persuaded that the full
circumstances under which the alleged promise was
made dictate a finding of unlawful conduct in the case at
bar.
2. Regarding the 8(a)(1) allegation on which I dissent
from the judge’s and my colleagues’ findings, the evi-
dence shows that Harold Bone, who is the Respondent’s
assistant vice president for partner relations, was respon-
sible for directing the Respondent’s election campaign at
the Palm Garden facility involved in this case. Jerry
Campbell, the administrator at the Respondent’s St. Pe-
tersburg, Florida facility, spent several days each week at
Palm Garden assisting Bone.
About March 10, 1996,2 Campbell and Bone ap-
proached charge nurse assistant Irvine Gabeau and two
other employees in the hallway of the nursing home.
Gabeau credibly testified that either Campbell or Bone
asked the employees how they were doing; they replied,
2 All dates are in 1996, unless otherwise noted.
PALM GARDEN OF NORTH MIAMI 1177
“fine,” and either Campbell or Bone asked about their
job. As the judge found, Campbell regularly engaged in
discussions with employees regarding working condi-
tions at the St. Petersburg facility he managed. After the
employees, according to Gabeau, told the Respondent’s
officials that they could use more help on the job, either
Bone or Campbell, Gabeau did not know which one,
replied that the Respondent was considering hiring more
people. Gabeau further testified that one of the managers
also mentioned something about a “third party who
wants to enter” during this conversation. The employees
denied knowing anything about this subject.
The judge found that Campbell’s approach at Palm
Garden, in which he attempted to speak with every em-
ployee, conveyed the impression that management was
seeking to be responsive to their concerns. While noting
that Campbell and Bone had not previously held such
discussions with Palm Garden employees, the judge
stressed that the reasons for the Respondent’s interest in
the employees’ concerns is confirmed by the reference to
the “third party” at the end of the conversation. In these
circumstances, the judge concluded that the Respondent
violated Section 8(a)(1) by suggesting to employees that
management would react favorably to their grievances.
Contrary to the judge, I find that the record is insuffi-
cient to support a finding that the Respondent unlawfully
solicited grievances and promised to remedy them. As
the Ninth Circuit stated in Idaho Falls Consolidated
Hospitals, Inc. v. NLRB, 731 F.2d 1384, 1386–1387
(1984):

Solicitation becomes an unfair labor practice [only]
when [it is] accompanied by either an implied or ex-
press promise that the grievances will be remedied and
under circumstances giving rise to the inference that the
remedy will only be provided if the union loses the
election.3

Here, either Campbell or Bone casually asked Gabeau and
two other employees how they were doing on encountering
them in the hallway. This greeting clearly was lawful as
the judge specifically found. Furthermore, as stated, Camp-
bell routinely speaks with employees at the St. Petersburg
facility, and the existence of an election campaign should
not require him to change his management style. Although
the employees replied to the greeting and inquiry by voicing
their concerns about the lack of personnel at Palm Garden,
this complaint was not made in response to a direct request
by the Respondent’s managers for employees to air their
grievances. In this context, a truthful response to the em-
ployees that the Respondent was thinking of hiring more
employees did not constitute a promise to remedy any
grievances. The judge, in fact, found that the Respondent

3 See also NLRB v. K & K Gourmet Meats, 640 F.2d 460, 466 (3d
Cir. 1981) (employer does not violate the Act by merely expressing its
willingness to listen and consider employees’ grievances).
hired four new employees between March 7 and 11. Since
the incident occurred about March 10, it appears that the
Respondent had already begun the process of employing
some new workers before the Bone/Campbell interaction
with Gabeau and others.
Therefore, the General Counsel did not establish that
the Respondent’s officials either solicited any grievances
or promised to remedy them in this case. They simply
had a brief and innocuous conversation with unit em-
ployees during which the latter raised a job related com-
plaint. By placing such a heavy burden of presumption
on the Respondent, my colleagues would penalize it for
truthfully responding to the employees’ comments.
Moreover, the court in NLRB v. K & K Gourmet Meats,
supra at 467, stated, “We do not believe that a general,
implied promise that complaints will be considered is
sufficient to support a finding of a Section 8(a)(1) viola-
tion.” In short, because the General Counsel has not
linked the employees’ comments about needing more
help with the Respondent’s hiring decision, I would find
that the Respondent’s officials did no more than lawfully
inform employees that it was considering the matter.
Although in finding this violation the judge stressed that
the Respondent alluded to the Union during this conver-
sation, the mention of a “third party” in the manner
raised hardly establishes that Bone or Campbell prom-
ised to remedy any grievances to deter the employees
from unionization.

Shelly B. Plass, Esq., for the General Counsel.
Clifford H. Nelson Jr. and Regine N. Zuber, Esqs., for the Re-
spondent.
David M. Prouty, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This
case was tried in Miami, Florida, on June 16–19, July 14–17,
and September 22–24, 1997. The charge in Case 12–CA–17986
was filed on May 3, 1996,1 and the charge in Case 12–CA–
18357 was filed on September 12, 1996. The order consolidat-
ing cases, consolidated complaint and notice of hearing was
issued on January 30, 1997. The complaint, as amended at the
hearing, alleges various violations of Section 8(a)(1) of the Act,
the discharges of Leonard Ted Williams and Marie Sylvain in
violation of Section 8(a)(3) of the Act, and violation of Section
8(a)(5) of the Act as a result of Respondent’s refusal to bargain
with the Union. The 8(a)(5) violation is predicated on the re-
quest for a remedy that includes a bargaining order. Respon-
dent’s answer denies all violations of the Act and, inter alia,
affirmatively pleads that the Union never obtained majority
status.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
1 All dates are 1996 unless otherwise indicated.
2 The unopposed portion of the General Counsel’s motion to correct
the transcript is granted. The portion of the General Counsel’s motion
to which Respondent objects and Respondent’s motion to correct the
transcript to which General Counsel objects are denied. The General
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1178
by the General Counsel, Respondent, and Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, National Health Care, L.P., d/b/a Palm
Garden of North Miami, a corporation, is engaged in the opera-
tion of a long-term geriatric nursing home at its facility in
North Miami, Florida, where it annually derives gross revenues
in excess of $100,000 and purchases and receives goods and
services valued in excess of $10,000 directly from points lo-
cated outside the State of Florida. The Respondent admits, and
I conclude and find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The Respondent admits, and I conclude and find, that
UNITE (Union of NeedleTrades, Industrial Textile Employees,
AFL–CIO, CLC) (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Observations and Procedural Matters
This case arises in the context of an organizational campaign
in which the Union sought to organize nursing homes in the
Miami, Florida area. At its inception, the campaign utilized
local media and some 50 organizers who handed out union
literature at various nursing homes in the area, including Palm
Garden. Palm Garden, a 120-bed long-term geriatric care facil-
ity, has over 100 employees.
Respondent is, and had been, opposed to its employees being
represented by a labor organization. Its personnel manual
states:

This is a non-union health center . . . . If you are ap-
proached to join a union, we sincerely hope you will con-
sider the individual freedoms you could give up, and the
countless risks you could be taking. We intend to protect
those freedoms and prevent those risks for you by oppos-
ing unionization of this health care center by every lawful
means available. We do not believe unions serve your best
interest, the interests of patients, nor the interest of the
health care center. (Emphasis in the original.)
In early January, union organizers first appeared at Palm
Garden handing out leaflets. Thereafter authorization cards
were solicited on behalf of the Union. On January 28, the Un-
ion filed a petition for an election, Case 12–RC–7931. Follow-
ing a hearing held on February 8, the record of which I have
taken notice, the Regional Director directed an election in a unit
of Respondent’s nonprofessional employees. The election was
held on April 3. By corrected order dated April 16, the Board
held that the unit found by the Regional Director was appropri-
ate. The Board’s order resulted in the challenges to six ballots
being overruled. The final tally of ballots reflected 32 votes cast
for the Union and 35 votes cast against the Union. The Union
filed objections, and those objections were referred to hearing
and consolidated with Cases 12–CA–17986 and 12–CA–18357.
In the weeks following the filing of the petition, Respon-
dent’s assistant vice president for partner relations, Harold
Bone, assumed responsibility for the conduct of the Respon-

Counsel’s motion and response to Respondent’s motion are received
into the record as G.C. Exh. 41, and Respondent’s motion and opposi-
tion are received as R. Exhs. 23(a) and (b).
dent’s antiunion campaign. He enlisted the services of the ad-
ministrator of Respondent’s St. Petersburg, Florida facility,
Jerry Campbell, who had experience in opposing an organiza-
tional campaign at the St. Petersburg facility. Campbell, during
the course of the campaign, spent several days a week at the
Palm Garden facility. Respondent’s regional administrator,
Richard LaParl, provided operational assistance so that the
Palm Garden facility administrator, Dian Johnson, would be
“freed up . . . . to run the campaign” with Bone and Campbell.
The complaint alleges that Cynthia Lewis, assistant book-
keeper, is a supervisor and agent of Respondent. Lewis was
specifically included in the unit in the decision of the Regional
Director and the Board. There is absolutely no evidence that
she exercises any of the indicia of supervisory status set out in
Section 2(11) of the Act. I find that she is not a supervisor. The
record does establish that Lewis acted as an agent of Respon-
dent when communicating with employees regarding wages
and benefits. Her job duties included maintenance of payroll
records. Additionally, she oversaw the filing and administration
of employees’ health benefits and workers’ compensation
forms. Employees regularly contacted her if they had questions
about their pay. Lewis would often assist employees with forms
required by governmental agencies that required verification of
the amount of an employee’s income, such as food stamp
forms. Respondent had Lewis address employees regarding
benefits at a company meeting held on January 18, shortly after
the organizational campaign began. When determining whether
an employee is acting as an agent, the Board is concerned with
“whether, under all the circumstances, the employees ‘would
reasonably believe that the employee in question was reflecting
company policy and speaking and acting for management.’”
Southern Bag Corp., 315 NLRB 725 (1994); Waste Stream
Management, 315 NLRB 1099, 1122 (1994). During the organ-
izational campaign, Lewis held approximately four antiunion
meetings with employees in late February and early March.
Respondent was aware that Lewis was holding these meetings.
Although Lewis made copies at a local copy shop of the leaflets
that she handed out, she admitted that she made copies of the
meeting announcements at the facility. Lewis, in 1996, regu-
larly worked from 7:30 a.m. until 4:30 p.m. The antiunion
meetings were scheduled for 3 p.m., when most of Respon-
dent’s day employees got off work. Although Lewis testified
that she held these meetings on her own time, these meetings
were held during her regular working hours, and Respondent
permitted Lewis to leave work to conduct these antiunion meet-
ings. Respondent’s employees had been addressed by Lewis
regarding benefits on January 18. I find that, at the antiunion
meetings conducted by Lewis, Respondent’s employees “rea-
sonably believed” that Lewis was reflecting company policy
and speaking and acting for management.
Respondent’s answer pleads that Section 10(b) of the Act
bars litigation of paragraphs 7 and 10, subparagraph b, of the
complaint. Respondent does not raise this affirmative defense
in its brief. Paragraph 7 alleges that Jerry Campbell engaged in
interrogation, solicited grievances, promised benefits, and
threatened loss of benefits and the freezing of wages. All of the
foregoing alleged conduct is included in the charge in Case 12–
CA–17986 which, having been filed on May 3, 1996, was
within 6 months of the alleged violations. The charge does not
state “interrogation,” but it does contain an allegation of polling
of employees regarding their support of the Union. Paragraph
10, subparagraph b, relates to the writing of warnings to Leo-
PALM GARDEN OF NORTH MIAMI 1179
nard Ted Williams. Although the warnings were not separately
alleged in the charge, the termination of Williams is alleged.
The warnings were an integral part of the termination of Wil-
liams since, although they had not been presented to him, they
were placed in his personnel file at the time of his termination. I
find that no allegation is barred by Section 10(b) of the Act.
A number of Respondent’s employees in the appropriate unit
were born and reared in Haiti. Their first spoken language is
Creole. Although Creole is also a written language, until about
7 years ago, the only official written language in Haiti was
French. French was the written language that was taught in
school. Various witnesses testified either to difficulty in read-
ing, or inability to read, Creole. A Creole interpreter was re-
quested both by the General Counsel and Respondent to assist
some witnesses; however, even the witnesses who utilized the
interpreter had some comprehension of spoken English. Several
witnesses whose first language is Creole testified without a
interpreter. Although their English was accented, their re-
sponses confirmed at least basic fluency in English. In the or-
ganizational campaign, the Union utilized organizers who
themselves were Haitian or fluent in Creole. They spoke to
employees in that language. Union literature and authorization
cards were translated into Creole. Some of Respondent’s cam-
paign literature was translated into French; however, all of
Respondent’s oral communications to employees were in Eng-
lish. In considering the testimony of witnesses whose native
language is not English, I have carefully evaluated their testi-
mony, whether translated or given in English, while taking into
account the “highly subtle distinctions of word choice and
phrasing” that Respondent utilized in its presentations. See
Bakers of Paris, 288 NLRB 991, 1000 (1988). For the most
part, I have credited Respondent’s witnesses regarding denials
concerning what they did not say. In so doing, I am not finding,
unless otherwise stated, that any employee testified untruth-
fully. Rather, I am satisfied that the employees testified to what
they believed that they heard.
B. Facts
On Sunday, January 7, Facility Administrator Dian Johnson
received a report that a union representative had been in the
facility. On January 8 through 10, representatives from a num-
ber of Respondent’s facilities, including Johnson, attended
supervisory training in Orlando, Florida, that was conducted by
Assistant Vice President Harold Bone. The program included
training with regard to responding to increased union activity.
On January 10, after consulting with her superiors, Regional
Administrator Richard LaParl and Regional Vice President
Michael Neal, Johnson decided to obtain services from a secu-
rity firm to patrol the outside premises at the Palm Garden fa-
cility. On January 11, she contacted Wells Fargo. On January
12, she met with representatives of Wells Fargo and signed a
contract that called for 16 hours a day of security services.
Johnson had received no report of any recurrence of any union
representative entering on Respondent’s property. Respondent
had not initiated patrols of its outside premises in late 1994,
when an employee had been the victim of a purse snatching in
the parking lot, or 1995, despite two instances of theft of auto-
mobile license plates, the breaking into a car resulting in the
theft of a cellular telephone, and an assault on a private duty
nurse. Simple trespass at the facility, which is near a railroad
track, was not uncommon. Nonemployees had been found
sleeping on the porch.
Beginning during the week of January 15, Johnson held a se-
ries of small group meetings with employees. At these meetings
she informed employees that management had become aware
of the Union’s organizational efforts and that Respondent
wanted the employees “to be informed about unions and the
organizing process.” She then presented a video featuring As-
sistant Vice President Bone. There is no allegation that the
content of the video violated the Act. There is no credible evi-
dence that Johnson, at these meetings, threatened closure of the
facility and termination of employees if they voted for the un-
ion.3
Leonard Ted Williams began working full time at Respon-
dent’s facility on January 6, 1995. Prior to that, he had per-
formed cleaning work for Respondent as an independent con-
tractor. He was hired by Richard Thomas and was initially des-
ignated as a maintenance assistant and security employee.
Thomas ceased to be employed in the summer of 1995, and
Williams began reporting to Daryl Perez, housekeeping direc-
tor. Perez ceased to be employed in October of 1995, and Wil-
liams began reporting to John Woodson, who had transferred to
Palm Garden from another of Respondent’s facilities in August
1995. Woodson was designated as maintenance director. Vera
Lea was hired as housekeeping director, to replace Perez, on
December 26, 1995. On January 2, Woodson and Johnson in-
troduced Williams to Lea and informed him that she would be
his supervisor. Thereafter, until his termination, Williams re-
ceived daily assignment sheets from Lea.4
Williams normally worked from 3:30 p.m. until midnight.
His duties included minor maintenance, such as touch up paint-
ing, replacing light bulbs, and unplugging stopped toilets. His
security functions included checking the doors from the inside
to be certain they were locked and escorting employees to their
cars. This included employees who left work at about 5 p.m.,
and the nurses who left when their shift ended at 11 p.m. When
called to escort an employee, Williams would cease performing
his other duties. William considered this portion of his job,
which took priority over his other duties, to be his primary
responsibility even though it was not as time consuming as the
other aspects of his job. Security duties took up to an hour and
a half of a normal shift, about 20 percent of Williams’ time.
The bulk of Williams’ time was spent performing housekeeping
functions, including cleaning the dining room floor after the
evening meal and the lobby after any evening activity, vacuum-

3 The General Counsel, at the hearing, amended the complaint to in-
clude these alleged threats, as well as threats of loss of benefits, termi-
nation, and closure attributed to Assistant Director of Nursing Thelma
Levine at these same meetings. These amendments were predicated on
the testimony of Marie Sylvain whose recollection I find, for the most
part, to be unreliable. Thus I have not relied upon her testimony, except
when it was corroborated or not denied. There is no corroboration that
Johnson or Levine made any threats at this meeting attended by a num-
ber of employees. I credit Johnson’s denial. Levine credibly denied
making any threats or promises of improved benefits.
4 Lea, who is no longer employed, did not testify. Although both
Woodson and Johnson testified that Williams was supervised by
Woodson, neither was asked about the daily assignment sheets that
Williams received from Lea. Woodson did not deny introducing Wil-
liams to Lea in early January and informing him that she would thereaf-
ter be his supervisor. I credit Williams. His demeanor impressed me
throughout his testimony. Respondent’s failure to explain why Wil-
liams was receiving assignment sheets from someone other than his
supervisor suggests that there was no explanation because Lea was his
supervisor.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1180
ing hallways, and taking out trash.5 Other than escorting, Wil-
liams had no responsibility for patrolling the premises. Wells
Fargo had no responsibility for security inside Respondent’s
buildings. From January 12 to 22, Williams remained responsi-
ble for assuring that all doors of the facility were secured from
the inside. After his discharge on January 22, this responsibility
was assumed by the nurses on duty.
Williams signed a union authorization card on Monday,
January 15. He had spoken with his fellow employees about the
Union prior to this time, and he continued to do so. Both Rosie
Coe and Retha Glover confirm engaging in conversation re-
garding the Union with Williams while at the facility. About 2
weeks after the campaign began, sometime during the week of
January 14 to 20, union organizer Josh Remis was at the back
of the Palm Garden facility.6 Williams was coming into work,
having about 5 or 6 minutes before he had to report. He stopped
and talked to Remis. Remis gave him about six blank authoriza-
tion cards. As Williams and Remis were talking together, both
noticed John Woodson standing at the door of the maintenance
shop looking at them. After Williams punched in at the time
clock, he went to Lea’s office, which is where he picked up his
daily assignment sheet. Woodson “poked his head through the
door and [said], ‘[Y]ou better watch it’ very sternly.”7
On January 19, when Williams reported to work and went
into Lea’s office to obtain his assignment sheet, he noticed the
top portion of a supervisory adverse action sticking out of the
desk blotter. He read the upper right hand corner, on which was
written “Security-Maintenance 3:00 to 11:30,” which was Wil-
liams’ official shift, although not his actual working hours.
Williams pulled the document out to examine it, and discovered
a second supervisory adverse action. He made copies of these
documents and then replaced them.
The first supervisory adverse action bears the date November
11, 1995. In the section reflecting the type of adverse action,
three boxes are checked, those for a verbal warning, written
warning, and final written warning. The name of the employee
is blank. The statement of incident refers, inter alia, to a refusal
to assist with “admission or transferring patient” and “abusive
language.” The document is signed by Woodson as immediate
supervisor, and his signature is followed by the date November
26, 1995. Immediately under Woodson’s name, signing as a
witness, is the signature of Rodney Alvarez. Alvarez’ signature
is dated January 19, 1996. The line for the disciplined em-
ployee’s signature is blank. The second supervisory adverse
action bears the date December 13, 1995. Two boxes are

5 I do not credit the testimony of Johnson that Williams spent 80
percent of his time performing security work, or the testimony of
Woodson that Williams spent 60 percent of his time performing secu-
rity. Neither was present during the bulk of Williams’ shift.
6 Remis testified that he was at the back of the facility about 2 weeks
after the campaign began. Although he stated that he thought that it
would have been about January 14, a Sunday, I find it more likely to
have been sometime during the workweek. Williams placed the conver-
sation in mid-January. Although he mentioned the January 13 and 14,
he further testified that it was a couple of days after “this,” which I find
was a reference to the testimony relating to his signing the authoriza-
tion card which immediately preceded his testimony regarding his
conversation with Remis, thus placing the conversation about January
17 or 18. The specific date, insofar as it was prior to January 19, is not
significant.
7 I do not credit Woodson’s denial that he observed Williams and
Remis talking together. Woodson was not questioned regarding the
threat that Williams testified Woodson made to him in Lea’s office.
checked, those for a verbal warning and written warning. The
name of the employee is blank. The statement of incident re-
fers, inter alia, to a failure to “clean up lobby” and failure to
“clean dining room and . . . take out trash.” The document is
signed by Woodson, whose signature is followed by the date
December 13, 1995. This document bears the name of Gregory
Williams as a witness. His signature, like that of Alvarez, is
dated January 19, 1996. The line for the disciplined employee’s
signature is blank.
Williams recalled both incidents referred to on the docu-
ments. In the latter part of November 1995, prior to Thanksgiv-
ing, the admissions clerk, as she was leaving work, asked Wil-
liams to move a patient. Williams had been instructed by his
original supervisor, Thomas, that he should never move a pa-
tient unless the proper paperwork had been completed. Wil-
liams sought to locate the paperwork. When he found no pa-
perwork, he obeyed the instruction he had previously been
given and took no action. The admissions clerk spoke with him
at a later date regarding why he had not moved the patient, and
Williams explained his prior instruction. No abusive language
was used. Woodson never mentioned this matter to Williams.
Regarding the second incident, Williams had, on a shift in early
December, completed painting the lobby floor, a job that
Woodson and employee Alvarez had begun. After finishing the
job, Williams left the lobby blocked off so that the paint could
dry. Williams also cleaned the dining room and took out the
trash, but he had to stack it next to the dumpster because the
dumpster was full. He was unable to empty the compactor in
the kitchen because it had jammed after someone placed wet
garbage in it. Woodson never spoke with Williams regarding
his job performance on the evening that he had completed
painting the lobby floor. At no time was Williams presented
with a warning regarding either incident.
At the time of Williams’ termination, Administrator Johnson
directed that the two disciplinary notices be placed in his file,
“so that his record would be as complete as possible.” The
documents placed in his file, however, differ from the supervi-
sory adverse action documents that Williams had discovered.
As they appear in his personnel file, both documents identify
Ted Williams as the employee against whom the adverse action
has been taken. The line for the employee’s signature, which
had been blank on the forms Williams found, contain notations
that the employee refused to sign. The witness signatures of
Alvarez and Gregory Williams, instead of being dated January
19, 1996, are dated December 13, 1995.
I credit Williams’ testimony that he never received these
warnings. When Woodson was asked if the warning bearing the
date November 26, 1995 was discussed with Williams,
Woodson testified “I was unable to catch up with him and dis-
cuss it. That’s why it kind of lingered on.” I find this testimony
incredible. If, as Woodson contended, he prepared this warning
in November 1995, and if Williams’ conduct justified the issu-
ance of a combination verbal, written, and final warning, there
would have been no inability to “catch up” with Williams. He
would, on reporting to work, have been directed to report to
Woodson, and Woodson would have administered the disci-
pline he allegedly had determined to impose. In later testimony
Woodson asserted that Williams “was refusing to sign,” but he
never described the circumstances under which this alleged
refusal occurred. Woodson testified that he made a copy of the
warning, and gave the original to Johnson who suggested that
he “get a signature to witness to the action that took place.”
PALM GARDEN OF NORTH MIAMI 1181
Woodson testified that, after Johnson requested that he obtain
witness signatures on the documents, he did so, but the docu-
ments disappeared.
Woodson was unable to credibly explain why the warnings
that were placed in Williams’ personnel file bear witness signa-
ture dates of December 13, 1995, whereas the documents Wil-
liams discovered bear witness signature dates of January 19,
1996. In responding to questions by counsel for the Charging
Party, Woodson asserted that both witnesses had signed twice.
When the two documents bearing the signature of Alvarez were
placed before Woodson, he testified that Alvarez signed two
different times and, referring to the document bearing the Janu-
ary 19, 1996 date, he testified that this was the first time Alva-
rez signed the document and that “was the one that got miss-
ing.” When asked about when Alvarez signed the second time,
Woodson referred to the document bearing the date December
13, 1995 stating that “he signed it here, but I don’t–the date that
he put there—. . . I mean, I don’t—I don’t know why he put it
there, maybe because another action was written here.” There-
after, he altered his testimony and asserted that the first time the
witnesses signed was on December 13, 1995. He asserted that
both had signed twice and that he had not altered the dates.
I do not credit Woodson. Respondent, in its brief, argues that
Williams stole the documents, and that no adverse finding
should be made against Respondent since any confusion re-
garding the dates results from Williams’ wrongful act. This
argument ignores the fact that the documents Williams discov-
ered bear witness signature dates of January 19, 1996.
Woodson altered his testimony to assert that the witnesses first
signed on December 13, 1995. If this was true, the documents
that Respondent asserts Williams stole would have been the
documents bearing witness signatures bearing the date Decemer
13, 1995. Williams stole nothing. The documents Williams
discovered and copied bear witness signature dates of January
19, 1996. The documents in his personnel file, produced pursu-
ant to subpoena, bear witness signature dates of December 13,
1995. Examination of the documentary evidence convinces me
that Respondent made copies of these documents after the wit-
nesses signed them on January 19, as Woodson initially testi-
fied. In this regard, I note that the signature of Rodney Alvarez
contains a small accidental gap at the bottom left of the capital
“R” on both documents. I note that the “o” in the name Gregory
stops exactly on the signature line of both documents, and that
the initial “W” of Gregory Williams’ last name dips just barely,
but exactly the same amount, below the signature line on both
documents.8
Counsel for Respondent, through questions to Woodson, es-
tablished that the witnesses Woodson obtained were not signing
as witnesses to Williams’ signature, since Williams did not
sign. Rather, the witnesses signed as witnesses to the incident.
The witness to the incident relating to the alleged refusal to
move a patient on November 26 is Rodney Alvarez. Respon-

8 Gregory Williams testified that he only signed once, that neither of
the dates is in his handwriting, and that he does not recall the date that
he signed, although he claimed that it was not shortly before Ted Wil-
liams was laid off. I have found, consistent with Woodson’s initial
testimony, that it was on January 19, 3 days before Ted Williams was
laid off. Gregory Williams also testified that he was present at a meet-
ing in which Woodson requested Ted Williams to sign the warning.
This testimony is not corroborated by Woodson and is contradicted by
Ted Williams. I do not credit it.
dent’s master payroll record reflects that Alvarez was first em-
ployed on November 29, some 3 days after the alleged incident.
On January 22, Williams received a telephone call from Lea.
She asked if he could come in a little early to speak with her.
Williams stated that he could and came to the facility. On his
arrival he saw Lea speaking with Johnson at the end of the hall.
On seeing Williams, that conversation ended, Lea greeted Wil-
liams, and they went into her office. Lea told Williams that she
was sorry, that she hated telling him, but “she had to let my
position go.” She further explained that Respondent had “hired
a security company, and they don’t need your security any-
more, and I’m not going to be able to have a night man again,
so . . . . there’s nothing I could do about it.” Lea stated that she
“was pleased with” Williams’ work and offered to give him a
reference.
Johnson testified that she discussed the need for increased
security with her superiors at a meeting on January 10. Regard-
ing that meeting, her initial testimony was as follows:

Q: And what in regard to Mr. Williams came up in that
meeting?
A: We did not feel that we were getting adequate secu-
rity coverage from Mr. Williams, and that we needed also
somebody to be outside the building.
Q: Was there any decision as to what, if anything, to
do with Mr. Williams when a security company was
brought in?
A: Not at that date.

Thereafter, Johnson changed her testimony and stated that the
decision to abolish Williams’ position was made at that January
10 meeting. I do not credit this testimony, nor do I credit John-
son’s explanation that no action was taken with regard to Williams
because the security company needed to become familiar with the
facility, and “[w]e had other issues to deal with, and he was still
working on security inside the building and also assisting with his
other responsibilities.” Williams’ presence while the security
company became familiar with the facility was immaterial since
he had no responsibility for patrolling the premises. The inside
security duties that he performed continued to be performed after
his termination.
Maintenance Director Woodson was not consulted regarding
the termination of Williams’ position. He was told by Johnson,
on January 22, that Williams would not be needed. Even
though Woodson was, according to Johnson, Wil-
liams’supervisor, he did not inform Williams of his termina-
tion. Johnson initially testified that Lea informed Williams of
his termination because Woodson was not going to be available
and that “he had Vera do it.” In later testimony she testified that
“I had Vera [Lea] do it.” (Emphasis added.)
Despite Lea’s representation to Williams that she was not
going to be able to have a “night man,” Respondent hired Wil-
liam Delancy on January 26. Delancy’s hours were from noon
until 8 p.m., and his duties were chiefly housekeeping duties,
including the evening duties that Williams had performed.
Johnson acknowledged that Williams could have performed
this unskilled job. Notwithstanding her assertion that Williams
was terminated because the security position “was being abol-
ished” and that was the only reason he was laid off, Johnson
testified that she did not consider Williams for the position to
which Delancy was hired because Williams’ “job performance
wasn’t that good, and also he had another job.” She later modi-
fied this to state that it was “my understanding that he was em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182
ployed elsewhere.” She did not seek to determine whether Wil-
liams would have been willing to work from noon until 8 p.m.
Williams did perform work out of his home. He was not “em-
ployed elsewhere.”9
In late February, Assistant Director of Nursing Thelma Le-
vine held a meeting of CNAs, including CNA Irvine Gabeau, at
which Levine noted that she could see in the employees’ faces
that they were not happy. She asked the employees if there
were any problems, if something did not please them. The em-
ployees complained about the new director of nursing, Kathy
DeGroat, who had been hired in late December. On February
25, a few days after this meeting, DeGroat was terminated.
Levine, who is no longer employed by Respondent, was un-
aware of the circumstances relating to DeGroat’s termination.
Levine acknowledged that throughout her employment she told
employees that, if they came to see her with a problem, she
would address it. She had no recollection of any specific com-
plaint regarding DeGroat, but acknowledged that she regularly
received complaints from the CNAs. Neither the Union nor the
organizational campaign was referred to at the meeting Gabeau
described.
About March 10, CNA Gabeau and two other employees
were walking in the hall. They were approached by Campbell
and Bone who asked the employees how they were doing. The
employees responded “fine.” Campbell or Bone then asked
about their job, and the employees indicated that they had a
problem with not having enough people to work. Bone or
Campbell responded that they were trying to see if they could
hire more people. Either Bone or Campbell then mentioned
hearing that that was a “third party who wants to enter,” and the
employees responded that they did not know about that. Ga-
beau was unable to attribute specific statements to either
Campbell or Bone.10 Between March 7 and 11 Respondent
hired three CNAs and one restorative aide/CNA. Campbell
confirmed that it was his practice to speak with employees and,
when he did so, he would “ask them questions about how
they’re doing, how their job is, how they’re being treated, those
kind of things.” He acknowledged that Bone was sometimes
with him. Neither denied the conversation to which Gabeau
testified.
During the organizational campaign, CNA Marie Sylvain
took a form necessary to establish her eligibility for food
stamps to assistant bookkeeper Lewis. Lewis completed the
form. As she was completing the form, Lewis told Sylvain that
if the Union came in, “you will not bring it to me, you’ll bring
it to the Union so they can do it for you.” In late March, Lewis
and Supervisor Woodson were present in the employee parking
lot as employees were leaving work. Union organizers, includ-
ing Josh Remis, were handing out leaflets. As Remis handed a
leaflet to one employee, Lewis said to the employee, “I thought
you were my friend. If you need any help now, don’t come to
me, go to the Union.” Lewis, although denying the incident in

9 I do not credit the uncorroborated testimony of Gregory Williams
that John Woodson suggested to Ted Williams that he seek the depart-
ment head of housekeeping job and that Ted Williams refused the sug-
gestion because he had another job. Woodson never alluded to any such
conversation, and Ted Williams credibly denied any such discussion.
10 A pretrial affidavit by Gabeau places this conversation in January,
rather than early March. I find the discrepancy in the date immaterial
since this undenied conversation clearly was after the petition. Camp-
bell was not present at the facility until after the petition was filed.
the parking lot,11 acknowledged telling employees that she
would not assist them in filling out paperwork that she had
previously assisted them with, specifically food stamp eligibil-
ity forms, if the Union came in. Although she asserted that this
was not part of her job, she admitted doing it for as long as she
had worked in the bookkeeping office.
On various dates in late February and March, Cynthia Lewis
held a series of approximately four antiunion meetings at a park
nearby the facility. At these meetings, she told employees, in-
cluding Frances Tucker, that, if they selected the Union as their
collective-bargaining representative, “things would be different
for us, that wages would be frozen, benefits would be frozen.”
Lewis acknowledges stating at the meetings that “Palm Garden
can decide to hold raises, they can decide to stop certain bene-
fits.”12 Lewis also acknowledges telling employees that, if the
Union did not come in, “Palm Garden will try their hardest to
keep the employees happy.” There is no probative evidence that
Lewis interrogated employees.13
On March 12 and 13, a Tuesday and Wednesday, Respon-
dent scheduled a series of meetings designed to assure that
employees on all shifts would be present. Five meetings were
scheduled each day. On Tuesday, Dian Johnson introduced
Bone and Campbell. Bone made some preliminary remarks and
then showed the employees a video tape in which a fictional
company and union pretend to engage in contract negotia-
tions.14 Following the showing of the video, Bone and Camp-
bell engaged in a purportedly mock negotiation specific to the
Palm Garden facility. Bone assumed the role of company nego-
tiator on behalf of Palm Garden and Campbell assumed the role
of union negotiator on behalf of UNITE!. Campbell asked for
more vacation days and holidays. Bone responded saying, “No,
no, no.” Employee Rosie Coe observed Bone hit the table with
his hand each time he said no. Campbell proposed an increase
in the pay of CNAs to $8.25 per hour. Bone responded that
such an increase was “ridiculous.” He asked how Campbell
proposed that he finance that, and Campbell responded that it
was not his responsibility. Bone made no counter offer. At that
point, Bone left. Campbell addressed the employees, pretending
to have a caucus. He stated that in a caucus “what we would do
is talk about proposals and counter proposals.” He further ex-
plained that, in a caucus “they would talk about the proposal
and counter proposal, and that we, when we caucused, would
[be] talking about what we were going to come back with the
next day if he came back with a proposal.”
Prior to the Wednesday meetings with employees, Campbell
brought to Bone’s attention a handout that the Union had pub-
lished. The handout contained a list of 10 demands, including
free medical and dental insurance, paid vacations and sick days,
11 Lewis acknowledges telling the employee, “I thought you were on
our side.” She denied making the threat of denial of assistance. I credit
Remis, and I find that she did utter this threat.
12 Lewis, in her testimony, began to embellish what she actually
stated, noting that “its not a definite thing, but it can happen. They [the
employees] can lose some stuff and things that can happen.”
13 The testimony of Sylvain that Lewis interrogated employees is un-
corroborated, and I do not credit it.
14 No violation of the Act is alleged in the content of this video tape.
The complaint, as initially issued, contained one allegation, attributed
to Campbell, regarding the “freezing of wages for years.” There is no
credible testimony of Campbell having made such a comment. The
video tape contains the statement that “in a recent five year period fully
two thirds of all union contracts had wages and benefits frozen . . . or
reduced.”
PALM GARDEN OF NORTH MIAMI 1183
and “an annual wage increase of more than 50 cents.” On being
shown the handout, Bone responded, “What do you mean?”
Campbell pointed out that the demand for a wage increase sim-
ply stated “annual wage increase of more than 50 cents;” it did
not say 50 cents an hour.
At the five mock bargaining sessions on Wednesday, Bone
made a counterproposal. Citing a document that purportedly
related to Medicaid reimbursement, he offered “basic minimum
wage.”15 Campbell responded that the proposal was ridiculous,
“pounding on the table a little bit, and that kind of thing.”
Campbell then stated that he had a list of union demands, refer-
ring to the handout, and called Bone’s attention to the demand
of a 50-cent-annual increase, stating that “we were looking for
a wage increase of fifty cents.” Bone asked if that was what he
wanted. Campbell said, “yes.” Bone asked if he was sure, and
Campbell again said “yes.” Bone then stated that it was
“agreed,” and Campbell concurred that it was “agreed.” There-
after, Campbell stated that he did not mean a 50-cent-annual
increase, he meant a 50-cent-hourly increase. Bone responded,
“[S]orry, we’ve had an agreement.”16
Following their presentation, Bone and Campbell addressed
the employees. Campbell stated that, in negotiations, the parties
had to be careful what they asked for and agreed to. Employee
Pearline Jimeson stated to Campbell that he was not aggressive
enough. Campbell responded, “I did the best I could, and that’s
what will happen in negotiations. You can’t always pick who
you get.”17
At the hearing, both Campbell and Bone acknowledged that
they were unaware of any circumstance in which a union had
sought a 50-cent-annual wage increase.
Respondent does not have a traditional holiday and vacation
policy. Instead, it has an Earned Time Off (ETO) policy. Em-
ployees with less than 1 year of service accrue an annual total
of 10 days of ETO that may begin to be taken after working 6
months. Employees with between 1 and 3 years service accrue
ETO at the rate of one and a quarter days a month, a total of 15
days a year. Employees who have insufficient ETO days may,
for a good reason, be granted an unpaid leave of absence. In a
memorandum to all employees dated November 4, 1994, John-
son reminded employees of various personnel policies. Regard-
ing ETO it notes the requirement for “[p]rior approval from
your Department Head and an approved ETO Request Form”
and then refers employees “to pages 4, 5, and 6 of your Person-
nel Manual for ETO eligibility and scheduling.”
Page 6 of the Personnel Manual provides as follows:

The center’s needs to provide quality patient care along with
your scheduling requirement for ETO days will be the
governing basis for your Supervisor or Department Head
being able to honor your request.

15 Respondent did not offer into evidence the document to which
Bone purportedly referred.
16 I do not credit Bone’s testimony that the agreement was 51 cents.
On cross-examination, Campbell acknowledged that, although the
handout stated “more than” 50 cents, he had asked for 50 cents, not
more than 50 cents. Bone testified after Campbell had testified.
17 Lewis attended the second day of the mock negotiations. She re-
called Campbell requesting, and Bone agreeing to, the 50-cent-wage
increase. “[T]hey were trying to explain how you can get tricked in a
negotiation . . . [and] that this is what goes on during negotiation.”
Sylvain’s testimony that, in the course of this meeting, Lewis said
“yes,” several times, indicating her agreement with various statements,
is insufficiently specific to warrant any finding of a violation.
Paula Berger, an admitted supervisor and licensed practical
nurse (LPN), was in charge of the master schedule for CNAs in
the nursing department in 1994, 1995, and the first several
months of 1996. CNAs Retha Glover and Frances Tucker ex-
plained that, to take time off, a CNA would fill out a request
and “give it to the person that was doing the schedule . . . Paula
Berger.” This practice was confirmed by Johnson who, at the
representation case hearing held on February 8, testified that
Paula Berger had been performing scheduling for 3 to 4 years.
When asked how an employee would handle a need to be off
Johnson responded:

They’re to fill out a request for the time off and then given
[sic] to the scheduling person and it’s looked at–I believe it’s
looked at by the director of the nurses and the assistant direc-
tor also.18

This practice changed sometime after April 30, 1 month after
Vicki Chillon, a new assistant director of nursing, was em-
ployed.19 Paula Berger was employed by the Respondent at the
time this hearing was held, having worked at Palm Garden for
almost 9 years. She acknowledged that in 1996, from January
to May, she was responsible for scheduling, a responsibility she
no longer has. Consistent with the testimony of Johnson at the
representation hearing, she confirmed that, in the course of her
duties between January and May, she would receive written
requests for time off and that she would, in turn, give these to
the assistant director of nursing.
On April 3, the representation election was held. Marie Syl-
vain served as the observer for the Union. The following week,
Sylvain went to Berger, accompanied by Irvine Gabeau, and
told her that her child in Haiti was ill and that she needed a few
days off. Sylvain was not scheduled to work on Wednesdays or
Thursdays. Thus she was scheduled to be off on Wednesday
and Thursday, April 17 and 18, as well as April 24 and 25. She
requested 5 days, April 19 through 23. Berger asked Sylvain if
she had prepared a written request. Sylvain had not. She did,
however, have the proper document with her. Sylvain filled it
out and signed it in Berger’s presence. The schedule that Berger
was working with at that time only went through April 21. Ga-
beau confirmed that Berger circled the 3 days of the current
schedule, April 19, 20 and 21, on a calendar on her desk. Ber-
ger told Sylvain that she could go.20 Sylvain told Berger that
Gabeau would be able to work in her place on the days that
Gabeau was scheduled to be off and asked whether there was a
need for her to find anyone else to fill in. Berger replied that
there was not.
On April 25, upon her return from Haiti, Sylvain called the
facility. She was advised that, although her name appeared on
the schedule, it had been crossed off. On April 26, Sylvain
called the facility and spoke with the new assistant director of
18 I do not credit Johnson’s attempt to change the testimony she gave
at the representation case hearing regarding this procedure. In the in-
stant hearing, Johnson asserted that the request had to be approved by
an assistant director of nursing “before it would be given to the person
preparing the schedule.” Her prior testimony, quoted above, was elic-
ited at the representation hearing on direct examination regarding Ber-
ger’s involvement in scheduling.
19 Employee Frances Tucker learned of this change from other em-
ployees. She obtained permission from Chillon when she needed foot
surgery in September 1996. She did not recall when the change oc-
curred, other than “not long after” Chillon was employed.
20 Berger, who was employed by Respondent at the time of the hear-
ing, did not deny this testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184
nursing, Chillon. She explained to Chillon that she had been
told that her name had been crossed off. Chillon questioned
where Sylvain was, and Sylvain responded that she had been to
Haiti. Chillon asked who she had asked, and Sylvain explained
that she asked Berger and that she had given her paper to Ber-
ger. Chillon stated that she had not seen the request and Sylvain
asked her to call Berger. Chillon then explained that Berger was
in the hospital, that Sylvain should wait and call the following
Wednesday, May 1.
On May 1, Sylvain called the facility. Her call was referred
to Chillon. Sylvain stated that she was calling to see if Berger
was back. Chillon stated that Berger was not back and that she
could not tell her anything, she had to wait for Berger’s return.
Sylvain said that she had bills to pay, she needed the job and
that if she could not tell her anything, that she should schedule
her. Chillon stated that she did not have to keep talking to her,
that she had given “too much problem at this place.” Sylvain
questioned what she was talking about, and Chillon stated that
she had heard that “you’re the one who brought the Union to
the work place. Chillon then told Sylvain that she did not have
a job for her, that she was terminated.21
On May 1, Johnson signed a short letter informing Sylvain
that she was terminated “for job abandonment relating to not
following the procedure for requesting leave time.” Sylvain
does not recall receiving this letter. She does recall receiving a
short letter from Johnson dated May 3 requesting that Sylvain
call her. She did so. The following week, on or about May 10,
Sylvain met with Johnson at the facility. She explained to John-
son that she had filled out the paper for time off, but, when she
returned, her name had been crossed off the schedule. Sylvain
further explained that she told Chillon that she had given Ber-
ger her paper and that Berger had said she could go. Sylvain
informed Johnson that Chillon told her that Berger was in the
hospital and that when she, Sylvain, had stated to Chillon that
she could not wait to return to work until Berger came back,
Chillon had said that “she heard I was going down to the place.
I give too much problem. She don’t have a job for me. She
terminate me.” Johnson stated that what Chillon had told her
was “okay.”22
Although Johnson’s signature appears on the May 1 letter in-
forming Sylvain that she was terminated, Johnson testified that
she “was not involved in the decision to discharge Marie Syl-
vain.” There is no evidence that Johnson, after receiving Syl-
vain’s description of the events surrounding her termination,
engaged in any investigation regarding the explanation she
received from Sylvain. Thus, on this record, there is no evi-
dence that any management official disputed Sylvain’s claim
that supervisor Berger told her that she could take off the days
she had requested.
In making the foregoing findings regarding Sylvain, I am
mindful of various contradictions in her testimony, the most
significant of which was her denial that she had not received
any payment from the Union. Vouchers for per diem payments
submitted to the Union by Sylvain establish that there were 25
occasions when she received such payments. Because of her
less than candid testimony in this regard and her generalized
attribution of various threats that are uncorroborated by other
witnesses, I have carefully examined her testimony. In this
regard, Sylvain’s testimony regarding the circumstances sur-

21 Chillon is no longer employed and did not testify.
22 Johnson did not deny this conversation.
rounding her termination are corroborated by other witnesses,
and, most importantly, undenied by supervisors who were em-
ployed by Respondent at the time of the hearing.23 Gabeau
confirms that Sylvain went to Berger requesting time off. Ber-
ger did not deny that she told Sylvain that she could go. John-
son did not deny being made aware of the circumstances of
Sylvain’s discharge, including her claim that she received per-
mission from Berger to be off on the days in question.
C. Analysis and Concluding Findings
1. The 8(a)(1) allegations
The complaint, as amended, alleges that Johnson, in mid-
January, threatened to close the facility and terminate employ-
ees, and that Levine threatened loss of benefits and closure of
the facility, threatened termination of employees who supported
the Union, and promised benefits if they did not vote the Union
in. I have found no probative evidence establishing these alle-
gations, and they shall be dismissed.
The complaint alleges that John Woodson threatened an em-
ployee with unspecified reprisals. Woodson, after having ob-
served Williams speaking with Remis, stuck his head into Lea’s
office, where Williams was picking up his assignment sheet,
and sternly told him that he “had better watch it.” I find, as
alleged in the complaint, that this constituted a threat of un-
specified reprisals in violation of Section 8(a)(1) of the Act.
The complaint alleges that Woodson prepared written warn-
ings and placed them in an employee’s file due to that em-
ployee’s union activities, in violation of Section 8(a)(1) of the
Act. I find that, on January 19, after Woodson had observed
Williams talking with union organizer Josh Remis, Respondent
created and backdated the two warnings for alleged offenses
that had not warranted comment at the time they allegedly oc-
curred. Confirmation of this finding is the signature of Alvarez
as a purported witness to the alleged offense that purportedly
occurred on November 26. Alvarez was not employed until
November 29. Johnson testified that she had the warnings
placed in Williams personnel file at the time of his termination
“to assure that his file was complete.” The preparation of disci-
pline for alleged conduct that merited no action at the time,
after Respondent became aware of Williams’ union activity and
following Woodson’s threat that Williams “had better watch
it,” is clearly coercive and constitutes a violation of Section
8(a)(1). The complaint, at hearing, was amended to allege the
placement of the documents in William’s file as a further
8(a)(1) violation.24 I so find and shall recommend the tradi-
tional Section 8(a)(3) remedy of removal of the warnings.
At the hearing, General Counsel amended the complaint to
allege that Woodson engaged in surveillance. It is undisputed
that Williams and Remis were in plain view, and that upon
observing Woodson, they ended their conversation. In view of
the layout of the facility, when Woodson came out the back
door he was no more than 40 feet from Williams and Remis
who were in plain view. I find no violation of the Act in these
circumstances. Hoschton Garment Co., 279 NLRB 565, 567
(1986).
23 I draw no adverse inference from Respondent’s failure to call
Chillon since she is no longer employed. Lancaster-Fairfield Commu-
nity Hospital, 303 NLRB 238 fn. 1 (1991).
24 The record does not establish who actually placed the documents
in the file. Whether Woodson, at Johnson’s direction, or another person
did so is immaterial.
PALM GARDEN OF NORTH MIAMI 1185
The complaint alleges that Assistant Director of Nursing Le-
vine, in late February or early March, solicited employee com-
plaints and grievances and promised employees increased bene-
fits and improved terms and conditions of employment if they
did not vote the Union in. Unlike the unprecedented presence of
Administrator Campbell, who sought out employee concerns,
Levine had historically met with, and sought to address the
complaints of, CNAs under her supervision. Unlike Campbell,
there is no evidence that Levine’s inquiring if the CNAs had a
problem constituted an alteration in her past practice. I find no
violation of the Act in Levine’s conduct. House of Raeford
Farms, 308 NLRB 568, 569 (1992). There is no evidence that
she promised increased benefits or improved conditions of
employment.
The complaint alleges that Campbell interrogated employees,
solicited employee complaints and grievances, and promised
increased benefits and improved terms and conditions of em-
ployment. In early March, rather than January as alleged in the
complaint, Campbell, accompanied by Bone, encountered Ga-
beau and two other employees. Either Campbell or Bone asked
the employees how they were doing. I find no coercion, and
hence no interrogation, in this transaction. This casual greeting
was, however, an integral part of management’s solicitation of
employee complaints and grievances. Although Campbell
would typically engage in discussions with individual
employees regarding their working conditions and concerns, he
had never done so at Respondent’s Palm Garden facility. Cer-
tainly he and Bone had never done so together prior to the Un-
ion’s organizational effort. Campbell acknowledged that he was
assigned to go to the Palm Garden facility because of the Un-
ion’s organizational efforts and his success in resisting unioni-
zation at the facility at which he was administrator. I find that
his methodical approach, in which he admittedly sought to
speak with every employee, clearly conveyed the impression of
a management team that was seeking to be responsive to em-
ployee concerns. When the employees expressed to Campbell
and Bone their concern relating to a lack of manpower, Camp-
bell or Bone, without correction by the other, assured them that
management shared their concern and was seeking to do some-
thing about the problem. The reason for management’s interest
in the concerns of the employees is confirmed by the reference
to the “third party” at the end of the conversation. Additional
CNAs were hired in early March. Thus, Respondent, through
two management officials not normally present at the Palm
Garden facility, clearly implied to its employees that “manage-
ment would react favorably to the underlying problems that
gave impetus to the organizational drive.” Kinny Drugs, 314
NLRB 296, 299 (1994). In so doing, Respondent violated Sec-
tion 8(a)(1) of the Act.
The complaint additionally alleges that Campbell, on various
dates from January through March, promised employees bene-
fits if they did not vote the Union in; from January through
March, threatened to terminate union supporters; and on or
about March 15, threatened closure of the facility. I have found
no evidence that Campbell promised benefits if employees did
not vote the Union in. Rather, as I have found, the promise of
benefits was in response to his solicitation of grievances. There
is no credible evidence of any threat of termination or closure.
The complaint, as amended, alleges that Cynthia Lewis, from
mid-January until April, threatened to stop processing food
stamp paper work of employees in retaliation for their union
support, and promised employees improved terms and condi-
tions of employment if they did not vote for the union; on or
about March 14, interrogated employees regarding their union
sympathies, threatened employees with the freezing of wages if
they voted for the Union, and impliedly threatened employees
that it would be futile to have the Union represent them; on or
about March 14 and 20, threatened changes, including the
freezing of wages and benefits, if the employees voted for the
Union; and on or about March 15, agreed with statements made
by various supervisors regarding threats of loss of jobs, bene-
fits, wages, overtime, and the freezing of wages. I have found
no credible evidence of interrogation, threats of futility, or
agreement with any specific comments of acknowledged
supervisors by Lewis.
Respondent held Lewis out as its agent with regard to wages
and benefits. Lewis informed employees that, if they selected
the union as their collective-bargaining representative, she
would no longer assist them in filling out paperwork, specifi-
cally food stamp forms, related to their earnings. The absence
of this specific job duty in her job description is immaterial.
Lewis acknowledged providing this assistance during her entire
tenure as assistant bookkeeper. I find that Lewis threatened the
loss of a benefit, assistance in filling out forms, in direct re-
sponse to the employees exercise of their Section 7 rights. In so
doing, Respondent violated Section 8(a)(1) of the Act.
At the meetings Lewis held in the park, Lewis threatened the
freezing of wages and benefits. Even if I were to credit her
testimony that she used qualifying language, stating that Re-
spondent “could” freeze wages, Lewis does not contend that
she based this comment on any objective economic facts. Thus,
she “crossed the line between informing employees of potential
adverse consequences of unionization and threatening that these
consequences would occur in retaliation for their having se-
lected the Union.” 299 Lincoln Street, Inc., 292 NLRB 172,
173–74 (1988). Respondent had presented Lewis to its employ-
ees as its spokesperson in regard to benefits on January 18.
Respondent permitted her to leave work in late February and
early March to conduct antiunion meetings. When, in these
meetings, Lewis spoke about wages and benefits, employees
perceived her to be speaking on behalf of management. Re-
spondent, by Lewis, threatened that it would freeze wages and
benefits in retaliation for employee union activity in violations
of Section 8(a)(1) of the Act. Similarly, when Lewis informed
employees that if the Union did not come in, “Palm Garden will
try their hardest to keep the employees happy,” Respondent
promised employees benefits in violation of Section 8(a)(1) of
the Act.
The complaint alleges, in the context of the employee meet-
ings at which Campbell and Bone participated in mock contract
negotiations, that Campbell threatened loss of jobs, benefits and
overtime, reduction of wages to the minimum wage, and that
the Union would not get benefits for the employees and the
Respondent would not give benefits. The complaint, as
amended, alleges that Bone, at these meetings, threatened its
employees with the freezing of wages and benefits if they voted
the Union in and “impliedly threatened employees with the
futility of voting the Union in.”
Bone testified that he felt that a mock negotiation demonstra-
tion of “what these type of situations with Unions could lead to
. . . was probably the best way in which to communicate” be-
cause of the “communication difficulties.” Bone did not explain
how he expected to overcome, rather than exacerbate, the
“communications difficulties” by engaging in a mock bargain-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1186
ing session conducted entirely in English without any transla-
tion. The record establishes that the mock negotiations did ex-
acerbate the “communication difficulties,” with several em-
ployees, in testimony, having the roles played by Bone and
Campbell reversed.
On the first day the mock negotiations, Bone responded,
“No, no, no,” to all of the proposals advanced by Campbell,
purportedly made on behalf of the employees by the Union. No
counterproposal was offered. Thus, Respondent, by Bone,
demonstrated an intransigent position that conveyed the im-
pression of futility. This impression of futility was compounded
on the second day of negotiations when Respondent, by Bone,
offered its only counterproposal, reduction of wages to the
minimum allowed under the law. In Rexair Inc., 243 NLRB
876, 884 (1974), in which a similar scenario was played out,
the Board found the offer of only minimum wage to be a threat
to reduce wages in violation of Section 8(a)(1), and I so find in
this case. Even if Bone’s counterproposal of minimum wage is
not viewed as a direct threat to reduce wages, it clearly consti-
tuted a threat to bargain from scratch. Campbell told the em-
ployees after the purported mock negotiations concluded,
“[T]hat’s what will happen in negotiations.” In so stating,
Campbell informed the employees that Respondent would take
the intransigent position that Bone had taken and threatened
that, in real negotiations, Respondent would begin bargaining
over wages at the minimum. Respondent left the impression
that Respondent would not alter its position through good-faith
bargaining, but would instead wait until the Union made a mis-
take. The effectiveness of Respondent’s communication is con-
firmed by Lewis who testified that the skit showed “how you
can get tricked in a negotiation. . . [and] that this is what goes
on during negotiation.” When an employer makes a statement
that can be understood as a threat of loss of existing benefits
and employees are left “with the impression that what they may
ultimately receive depends on what the union can induce the
employer to restore,” the employer has violated Section 8(a)(1)
of the Act. Taylor-Dunn Mfg. Co., 252 NLRB 799, 800 (1980).
Respondent left that impression in its mock negotiations, and in
so doing, violated Section 8(a)(1) of the Act.
Neither Bone nor Campbell sought to depict the collective-
bargaining process as conferring in good faith regarding em-
ployee wages, hours, and working conditions. Unlike the mock
negotiations in Days Inn Management Co., 299 NLRB 735, 740
(1992), the parties did not pretend to come to tentative agree-
ment on various issues and pretend, after discussion, to reach
impasse on wages. Rather Campbell, after Bone made the
minimum wage proposal, resorted to “pounding on the table a
little bit, and that kind of thing.” Campbell had, prior to the
second mock session, informed Bone of his intended use of the
union handout. At the second session, Campbell made no pro-
posal for increased benefits, despite their presence on the union
handout. Consistent with his plan to depict the Union as inef-
fectual, he requested an annual wage increase of 50 cents, to
which Bone predictably agreed.
Respondent argues that the purported mock negotiations
“presented to the employees a realistic example of how negotia-
tions can work.” I disagree. Any pretense that the mock nego-
tiations were presented as “a realistic example” was dispelled
by Campbell immediately after the negotiating scenario was
concluded. Employee Pearline Jimeson informed Campbell that
he was not aggressive enough. Campbell replied that he “did
the best he could,” and “that’s what will happen in negotiation.
You can’t always pick who you get.” Campbell’s assertion that
he did the “best he could” was a lie. He had determined, on
Wednesday morning, to portray the Union as ineffectual. He
made no demand for the increased benefits listed on the hand-
out and, even accepting the obvious omission of the word “per
hour” on the handout, Campbell sought 50 cents, not “more
than 50 cents.” Both Bone and Campbell acknowledged that
they were unaware of any Union that had negotiated a contract
with an annual wage increase of 50 cents. Respondent’s con-
scious distortion of the bargaining process, followed by Camp-
bell’s lie that he did his best, together with his assertion that
“that’s what will happen in negotiations,” unlawfully commu-
nicated to virtually every employee in the bargaining unit that it
would be futile to select the Union as their collective-
bargaining agent. In so doing, Respondent violated Section
8(a)(1) of the Act.
The complaint alleges, and I have found, that Vicki Chillon
informed Marie Sylvain that she was being terminated because
she caused too many problems by bringing the Union into the
workplace. This comment both revealed Chillon’s motivation
in terminating Sylvain and threatened retaliation for engaging
in union activities in violation of Section 8(a)(1) of the Act.
Dian Johnson did not testify regarding her conversation with
Sylvain on or about May 10. When Sylvain met with Johnson,
she attempted to explain the circumstances regarding her dis-
charge. She reported her final telephone conversation with
Chillon in which Chillon told her that she heard “I was going
down to the place. I give too much problem. She doesn’t have a
job for me, she terminate me.” Johnson responded that what
Chillon said was “okay.” The compliant alleges that Respon-
dent, by Johnson, “informed its employees that they were being
discharged due to their union activities.” Although Johnson
made no direct threat, her “okay” adopts rather than disavows
Chillon’s comment. I find that Johnson understood Sylvain’s
“going down to the place” to be the Union’s office and that
Sylvain’s giving “too much problem” referred to Sylvain’s
union activity. If Johnson had any doubt regarding to what “the
place” referred, she would have asked Sylvain in that conversa-
tion or consulted with Chillon. She did not do so. If Johnson
had any other understanding regarding Chillon’s comment
about Sylvain’s going down to “the place” and causing “too
much problem,” she had the opportunity to so state in the
course of her testimony. She did not do so. Johnson knew that
Chillon had discharged Sylvain because of her union activity.
Her adoption of Chillon’s statement by telling Sylvain that
what Chillon had said was “okay,” violated Section 8(a)(1) of
the Act.
2. The 8(a)(3) allegations
a. The termination of Leonard Ted Williams
In assessing the evidence relating to the termination of Wil-
liams under the analytical framework of Wright Line,25 I find
that Williams did engage in union activity. Respondent,
through Woodson, was fully aware of that activity; indeed,
Woodson told Williams that he had “better watch it” immedi-
ately after he observed him talking to Remis. Respondent bore
animus toward employees who engaged in union activity as
confirmed by Woodson’s threat and the unlawful conduct in
which I have found the Respondent engaged during the course
of the campaign. Williams’ housekeeping job duties consumed

25 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
PALM GARDEN OF NORTH MIAMI 1187
the bulk, some 80 percent, of his working time. Respondent did
not decide to terminate Williams when it engaged the services
of Wells Fargo, which was hired only to perform duties outside
the facility. Williams was not terminated until after he was
observed talking with Remis. Woodson, the individual whom
Respondent asserts was Williams’ supervisor, was not con-
sulted regarding the decision to terminate Williams. On January
22, the very date that Williams was terminated, Johnson in-
formed him that Williams’ services were no longer needed. I
find that the General Counsel has carried the burden of proving
that Williams’ union activity was a substantial and motivating
factor for his discharge.
Respondent has not proved that it would have taken the same
action with regard to Williams if he had not engaged in union
activity. The housekeeping duties that Williams had been per-
forming continued to be performed after William was termi-
nated. William Delancy was hired on January 26. Johnson,
although testifying that the only reason Williams was termi-
nated was because the security position “was being abolished,”
asserted that she did not consider Williams for the position to
which Delancy was hired because Williams’ “job performance
wasn’t that good, and also he had another job.” As I have
found, Williams did not have another job; he worked out of his
home. Johnson made no effort to determine if Williams could
report to work at noon, the time Delancy was assigned to re-
port. Although Respondent asserts that Woodson remained as
Williams’ supervisor after Lea was hired, it is uncontroverted
that Lea had been assigning his housekeeping duties since
January 2. Lea told Williams that she was pleased with his
work and would give him a reference. Johnson never consulted
with Lea or Woodson regarding Williams’ work. Rather, Re-
spondent sought to create a paper trail reflecting upon his job
performance by placing two bogus warnings in his personnel
file at the time of his termination “to assure that his file was
complete.” Respondent, within a week of having observed Wil-
liams speaking with a union organizer, discharged him with no
prior notice and no consultation with the maintenance director,
who Respondent asserts was his supervisor, or the housekeep-
ing director, who was giving him his daily assignments. Two
days after Williams was discharged, Respondent hired Delancy.
I find that Respondent has not established that Williams would
have been terminated in the absence of his union activity. Re-
spondent’s precipitous discharge of Williams and his immedi-
ate replacement confirm that Williams was discharged because
of his union activity in violation of Section 8(a)(3) of the Act.
b. The termination of Marie Sylvain
Sylvain was the union observer at the election held on April
3. Thus there is no issue as to her union activity and Respon-
dent’s knowledge of that activity. The record establishes Re-
spondent’s animus toward employee union activity, and Syl-
vain’s testimony that Chillon told her that she had heard that
“you’re the one who brought the Union to the work place” and
thereafter informed her that she was terminated is uncontra-
dicted.
Respondent contends that Sylvain was terminated for job
abandonment and that she would have been terminated in the
absence of any union activity. In this regard, Respondent claims
that Sylvain did not follow the proper procedure for requesting
leave time.” As set out above, I have found that Sylvain fol-
lowed the exact procedure to which facilityAadministrator
Johnson testified at the representation case hearing:

They’re to fill out a request for the time off and then given
[give it] to the scheduling person and it’s looked at–I believe
it’s looked at by the director of the nurses and the assistant di-
rector also.

Respondent’s brief acknowledges that the LPN in charge of
scheduling “may have actually written the schedule and re-
ceived requests for time off,” but asserts that Berger did not
have the authority to actually grant time off. Regardless of Ber-
ger’s actual authority, the testimony of Johnson at the represen-
tation case hearing, as well as the testimony of Berger, con-
firms my finding that it was the practice of employees to submit
requests for time off to Berger. Respondent’s brief, although
not admitting that the practice changed, refers to the testimony
of employee Tucker and argues that requests for time off had to
be submitted to the assistant director of nursing “after” Chillon
became assistant director of nursing, noting that Chillon was
hired on April 1. Tucker testified that the practice of giving
requests for time off to Berger changed “[n]ot long after Vicki
[Chillon] started to work there, but I don’t know the exact
month.” Respondent does not cite the testimony of Berger.
Berger testified that she did the scheduling from January to
May of 1996, “I’m not sure if it included May.” Sylvain re-
ceived her approval in April.
Respondent, in its brief, asserts that Sylvain never claimed to
have actually seen Berger sign the request for time off which
she handed to her. Respondent does not, however, dispute that
Berger, who Respondent did not call to testify, told Sylvain that
she could take the time off that she had requested. Sylvain fol-
lowed the same procedure she had always followed, the exact
procedure to which Johnson had testified at the representation
case hearing. When Sylvain sought to find out why her name
had been stricken from the schedule, Chillon, on April 25,
stated that she would have to check with Berger, further con-
firming that Sylvain followed the practice in existence at Re-
spondent’s facility. Respondent presented no evidence regard-
ing when its procedure regarding submission of requests for
time off to Berger changed. There is no evidence that, prior to
Sylvain’s discharge, Respondent had taken any action against
employees who submitted requests for time off directly to Ber-
ger.
On May 1, Chillon had still not contacted Berger. Sylvain
requested that she be scheduled and Chillon told her that she
had given “too much problem at this place,” that she had heard
that Sylvain had brought the Union to the workplace, and that
she was terminated. Johnson received Sylvain’s explanation of
what had occurred, including Berger’s statement that Sylvain
could take time off, but took no action to investigate. Failure to
investigate an employee’s claim that the employee has com-
plied with a respondent’s procedures is evidence of a discrimi-
natory intent. Hussman Corp., 290 NLRB 1108 fn. 2 (1988).
Respondent has not established that it would have taken the
same action in the absence of Sylvain’s union activity. Chil-
lon’s statement at the time she terminated Sylvain confirms that
Respondent discharged Sylvain because of her union activity in
violation of Section 8(a)(3) of the Act, and I so find.
3. The bargaining order
The complaint alleges that Respondent violated Section
8(a)(5) of the Act by failing to recognize and bargain with the
Union since February 22. There is no evidence of any request
to bargain, thus there is no basis for finding an 8(a)(5) viola-
tion. Peaker Run Coal Co., 228 NLRB 93 (1977). Rather, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1188
issue is whether Respondent’s unfair labor practices are so
serious and substantial that Respondent should be ordered to
bargain with the Union. Prior to addressing this issue, I must
determine whether the Union attained majority status in the
appropriate unit that was thereafter eroded by the Respondent’s
unfair labor practices.
The Board directed the election in the following unit:

All full-time and regular part-time employees of the Employer
at its North Miami, Florida nursing home, including employ-
ees employed in the Dietary, Housekeeping, Laundry, Main-
tenance and Activity Departments, Certified Nursing Assis-
tants (CNAs), Central Supply Clerk, Physical Therapy Aides,
Restorative Aides, Receptionist, Assistant Bookkeeper, Medi-
cal Records Unit Clerk, Administration Department Clerk,
Social Work Assistant and Admissions Clerk; but excluding
all licensed practical nurses, managerial and professional em-
ployees, guards and supervisors as defined in the Act.

At the hearing, General Counsel amended the complaint to
allege that the appropriate unit not include the assistant book-
keeper, Cynthia Lewis, and social work assistant, Eliwd
Acosta. Both of these positions are specifically included in the
description of the appropriate unit as found by the Board. The
General Counsel, without comment in her brief, appears to have
abandoned the position she took when amending the complaint
since she includes Acosta in the unit. Without referring to the
amendment, she argues that Lewis does not share a community
of interest with the unit employees. In finding the above unit
appropriate, the Board specifically included Lewis, stating that
“although her duties are in the nature of business office clerical
duties, she apparently would be the only remaining unrepre-
sented non-professional” and that “exclusion from the unit
would effectively deny her the opportunity to obtain representa-
tion.” The General Counsel does not cite the Board’s decision
in arguing for the exclusion of Lewis. I have found that Lewis
is not a supervisor. Although Lewis was an agent of the Re-
spondent, this does not negate her status as an employee. In
KAL Contracting Co., 284 NLRB 722 (1987), employee Griffin
was found to be an agent but, thereafter, is listed by name as
being included in the appropriate unit. Id. at fn. 17. Thus, in
accord with the decision of the Board, I find that Lewis is ap-
propriately included in the unit.
On the General Counsel’s amendment of the unit to exclude
the assistant bookkeeper and social work assistant, Respondent
withdrew its admission to the appropriateness of the unit, and
again advanced its contention that there should be a finding of
the supervisory status of the licensed practical nurses, the same
contention it made throughout the representation proceeding.
Having rejected the General Counsel’s proposed exclusion of
Lewis from the unit, there is no need to address Respondent’s
reintroduction of the supervisory issue since it was disposed of
by the Board. I find the unit designated by the Board to be ap-
propriate.
The appropriate unit includes all nonsupervisory employees
in departments 3, 6, 14, 26, 30, 34, 38, 42, 46, and 50. The
Excelsior list, dated March 13, contains 71 names. Comparison
of this list with the payroll reveals that all of these employees,
except for Wayne Jones, were employed when the election was
held on April 3. Jones ceased his employment on March 12.
Marie Antoine, whose name appears on the Excelsior list, was
not hired until February 23. Thus, as of February 22, the date
that the General Counsel alleges the Union attained majority
status, the unit consisted of 71 employees, 70 on the Excelsior
list, plus Ted Williams. As of this date, a maximum of 37 cards
had been signed, assuming the authenticity and validity of all
cards.26 Although Respondent argues that it did not stipulate
that the Excelsior list was coextensive with the employees in
the unit, its calculations regarding the size of the unit are based
upon that list plus new hires, less terminations, as reflected on
its “Alphabetical Listing by Calendar Year of All Employ-
ees.”27
Counsel for the General Counsel, in her brief, contends that
the unit consisted of only 69 employees on February 22. Her
list of employees mistakenly included Marie Antoine who was
hired on February 23. It omits Lewis. Without comment or
argument, General Counsel does not list employees Justin Kan-
ner and Rodney Alvarez. At the election held on April 3, the
Union challenged the ballot of Kanner, contending that he was
a confidential employee; however, no evidence was adduced at
the hearing establishing that he was a confidential employee,
and his position, central supply clerk, is specifically included in
the unit description. Maintenance employees are specifically
included in the unit, and Alvarez was a maintenance employee
who, as noted above, was hired on November 29, 1995. I have
already found no basis for the exclusion of Lewis, and I find no
basis for the exclusion of Kanner or Alvarez. In view of the
foregoing, I find that the appropriate unit, as of February 22
consisted of 71 employees. For the Union to have a majority, at
least 36 of the 37 cards purportedly signed before February 22
must be found to constitute valid designations of the Union as
the exclusive bargaining representative of the unit employees.
At the hearing, I admitted an authorization card purportedly
signed by Anita Iscar that bears the date January 6. At that
time, I did not have the entire record before me. The predicate
for my admission of this card was the testimony of Marie Syl-
vain, whom counsel for the General Counsel recalled to testify
regarding the purported delivery of this signed card to her by
Iscar. Sylvain testified that she gave the card to Iscar and that,
when she returned it, it was completely filled out, including the
date, January 6. In examining the card purportedly signed by
Iscar, I note a striking similarity between the writing on that
card and the writing on Sylvain’s authorization card. I particu-
larly note that an extra loop that looks like a small “o” appears
at the top of the number 9 wherever it appears on both cards,
that a loop appears at the beginning of the number 2, and that,
when the words “Palm Garden” are written in script, the word
“garden” begins with a lower case letter. Sylvain, however, did
not testify to assisting Iscar in filling out her card. Sylvain, in a
pretrial affidavit, reported receiving only two authorization
cards, the cards of Mirelle Denis and Irema Geneve. Although
Sylvain initially denied placing her name as a witness on those
cards, her name, in fact, does appear as a witness on them. Syl-

26 Respondent hired 3 new employees on February 23, increasing the
unit to 74. An additional card was signed on February 29, increasing
the potential card total to 38. Respondent hired 1 additional employee
on March 7, and 3 more employees on March 11, increasing the unit to
78. The potential card total never exceeded 38. Jones’ employment
ended on March 12, and Martha Laguerre did not sign a card until
March 31.
27 Respondent stipulated to the authenticity of the document insofar
as it reflected all employees working as of November 7, 1996. Thereaf-
ter additional stipulations were received relating to the dates of em-
ployment and termination as reflected on that document. There is no
contention that any unit employee does not appear on that document.
PALM GARDEN OF NORTH MIAMI 1189
vain did not place her name on Iscar’s card as a witness. Syl-
vain testified that she received the card from Iscar “after” Denis
and Geneve gave her their cards, “I take two before and after
that Anita.” The card of Denis is dated January 22, and the card
of Geneve is dated January 14. Thus the card Sylvain purport-
edly received from Iscar was delivered on or after January 22.
A Nursing Home Contacts report maintained by the Union
reflects that the Union obtained Iscar’s address from an au-
thorization card that, according to the report, was dated January
9. Since there is only one card from Iscar in evidence, it would
appear that this is a clerical error and that the report is referring
to the card dated January 6. The report also reflects an at-
tempted house call to Iscar on January 16. Since there are no
handwritten comments on the report, I cannot determine if Iscar
was actually seen. Insofar as the attempted house call occurred
on January 16, utilizing the address on a card dated January 6,
that card cannot be the card that Sylvain purportedly received
“after” the cards of Dennis and Geneve. The only predicate for
my admission of the Iscar’s card was Sylvain’s testimony of
receipt of the completed signed card. Having reviewed the
complete record, I find that the card I admitted into evidence is
not the card about which Sylvain testified. Sylvain testified she
received the card after the cards of Denis and Geneve, thus it
was after January 22. Iscar’s card is not mentioned in Sylvain’s
affidavit relating to the cards of Dennis and Geneve, cards that
she signed as a witness. Her name does not appear on the card
purportedly signed by Iscar. A card dated January 6 purportedly
signed by Iscar was in the Union’s possession prior to January
22. There is no evidence of any other card. I do not credit Syl-
vain’s testimony.28 Accordingly, I reverse my ruling that the
card dated January 6 purportedly signed by Anita Iscar was
properly authenticated. I find that it has not been authenticated,
and it shall not be considered in determining the Union’s
majority status.
The General Counsel and the Charging Party argue that all
authenticated cards should be counted when determining the
Union’s majority status. Respondent objected to the admission
of all but three cards at the hearing. In its brief, Respondent
objects to the validity of all of the cards arguing that the cards
are ambiguous. The English card clearly states that the signer
joins the Union and authorizes UNITE! to represent the card
signer. I find no ambiguity in this language, nor do I find that
any representation on the back of the card contradicts or ren-
ders this language ambiguous. The statement, “When we nego-
tiate our contract, we will start from where we are now and
negotiate MORE. We will not lose anything we now have,” is
an optimistic representation of the Union’s intention. It does
not affect the validity of the card. Respondent further argues
that some employees signed cards in languages that they could
not read, that the signatures of some employee were procured
after the alleged misrepresentation that there would be an elec-
tion, and that some employees were hurried when they signed
their cards. I give no credence to testimony relating to alleged
hurried signatures. Regarding alleged comments relating to an
election, numerous cases have held that the mention of an elec-
tion does not affect the validity of a single purpose card. Levi
Strauss & Co., 172 NLRB 732, 733 (1968). There is no evi-

28 The General Counsel’s brief does not address the date discrepancy
or Nursing Contact Report. There is no suggestion that Sylvain’s testi-
mony of having received whatever document she purportedly received
“after” January 22 was in error.
dence that any employee was told that the sole purpose of the
card was for an election.
A more difficult issue is presented by the evidence that sev-
eral employees signed cards in languages that they could not
read. Board cases holding that authenticated single purpose
authorization cards will be counted toward establishing a union
majority, unless the language on the single purpose authoriza-
tion card is deliberately canceled by a solicitor, assume that the
card is written in English and that the card signer has the ability
to read English. Maximum Precision Metal Products, 236
NLRB 1417, 1425 (1978). When a card signer is illiterate, or
has no ability in English, it must be established that the card
signer knew what he was signing and in fact authorized the
Union to represent him.” Brancato Iron Works, Inc., 170 NLRB
75, 81–83 (1968). There must be evidence that the card was
translated or explained so that the card signer “understood the
meaning and purpose of an authorization card.” Unless it is
established that the signer intelligently designated the Union as
collective-bargaining representative, the card in question “can-
not be counted toward establishing the Union’s majority sup-
port.” Food Cart Market, 286 NLRB 1016, 1017 (1987).
The Board’s presumption relating to the ability to know and
understand the content and purpose of a card written in ones
native language applies both to English cards and to cards writ-
ten in the native language of the card signer. Limpert Bros., 276
NLRB 364, 368 (1985). In this case, 13 of the signed cards are
written in Creole. I have, in the absence of evidence to the con-
trary, assumed that the employees who signed these cards are
literate in their native language and that Creole is the native
language of those card signers.29
Respondent specifically attacks the validity of 11 cards, one
of which was the card of Iscar which I have found was not
properly authenticated. Six of the remaining cards to which
Respondent objects were admittedly signed by employees who
were fluent in the language appearing on the card.
Robert Garcia testified that, when approached by union so-
licitors to sign “a card,” he was in a hurry “to get out of there”
and did not read the card. Contrary to the impression that Gar-
cia was unaware of the significance of his act, a Nursing Home
Contacts report contains a handwritten notation that, at a house
visit on January 16, Garcia stated that he had “changed his
mind.” There is no evidence that Garcia sought the return of his
card. I find this card valid.
Sofia Laguerre testified that she did not read the card, written
in Creole, that she signed in the parking lot. She acknowledged
that she reads Creole. She testified that she did not read the card
because she was in a hurry to get home; however, notwithstand-
ing her alleged haste, she remained after signing the card since
she testified that she witnessed the solicitor of the card place his
name on it as a witness. This card was signed on February 29,
well into the Union’s organizational campaign. There is no
29 Although the Creole cards, like the English cards, reflect the em-
ployee’s agreement to join the Union and authorize the Union to repre-
sent the card signer, the language is not a model of clarity. The testi-
mony of Enel Diamond, an expert translator, confirmed that Creole is
less sophisticated than French. The phrase “terms and conditions of
employment” does not literally translate from Creole; thus, the card
states, “I authorize UNITE! . . . to represent me in negotiation accord-
ing to the condition and regulation of the Employer.” Although I find
this language sufficient, it would appear that translation into French, the
school language of the native Haitian employees, would provide a
superior translation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190
claim of any misrepresentation as to the meaning or purpose of
the card. I find this card valid.
Marie Milcent testified that she read the card, which she
found in her mailbox, before she signed it and mailed it to the
Union. Milcent reads Creole with a “[l]ittle bit, not too much
difficulty.” I find that Milcent would not have signed a docu-
ment that she did not understand. I do not credit her testimony
that she did not understand what “Union” meant, or that she
believed it meant “quit Union,” or “credit Union” as argued by
Respondent. I do not credit her testimony that she signed and
mailed a document she did not understand. Union organizer
Charles H. Lundy, who witnessed the signing of Milcent’s card
and whom I credit, testified that he obtained the card during the
course of a visit to Milcent’s home. I find this card valid.
Marie Noel testified to a somewhat bizarre situation in which
she signed a card at the behest of an unknown nonemployee
inside the facility. She acknowledged signing another card after
being requested to do so by Union Representative Jean
Demosthene. This is confirmed by a Nursing Home Contacts
report and Demosthene’s initials on the card that is in evidence.
I credit his testimony that he solicited this card at Noel’s home.
There is no evidence of any misrepresentation by Demosthene.
I find this card valid.
Jacqueline St. Fleur testified that she signed a union card
when a union representative visited her at her home. Josh Re-
mis testified that St. Fleur signed a card at a union meeting, and
documentary evidence confirms she attended at least two union
meetings. Where she signed the card is immaterial. Contrary to
Respondent’s argument in its brief, there is no evidence that St.
Fleur did not understand the purpose of the card. The solicitor’s
statement that they were “going to have like a vote” was not a
misrepresentation. I find this card valid.
Francis Wanton Tucker testified to signing of her card and to
various incidents alleged as violations of Section 8(a)(1) of the
Act. Respondent, citing testimony by union organizer Josh
Remis, argues that Tucker did not understand the meaning and
purpose of the card she signed. Remis never testified to any
statement made by Tucker reflecting any lack of understanding;
rather, he reported his conclusory perception. There is no pro-
bative evidence that Tucker did not realize the nature and pur-
pose of the card that she signed, after reading it. There is no
evidence of any misrepresentation. Counsel cross-examined
Tucker regarding her testimony relating to the alleged viola-
tions of the Act, but he chose not to question Tucker regarding
her signing of the authorization card. I find this card valid.
I find that the following cards, all of which bear signatures
authenticated by the respective card signers who testified as
witnesses either for the General Counsel or Respondent, and
none of which were the product of any misrepresentation, con-
stitute valid designations of the Union:

Annie Apollon Myrtha Perard
Rosie Coe Ester Permission
Marie Etienne Jeanne Petit-Homme
Irvine Gabeau Winifred Reid
Retha Glover Isalia St. Jean
Wayne Jones Marie Sylvain
Mavis Lewis Leonard Ted Williams

I find that the following cards, authenticated by solicitors,
constitute valid designations of the Union.

Ana Coissy Guerda Paul
Solonges Denard Marie Pierre
Maria Dorcena Marie Pouca
Marie Fills Wilma Torshon
Martha Joseph Lexillia Zapote
Martha Laguerre30

I find that the following cards, authenticated by the
handwriting expert, constitute valid designations of the Union.

Irema Geneve
Pearline Jimeson
Dulia Isaac31

The remaining four cards require separate discussion.
Marie Cenatus is Haitian and her native language is Creole.
She speaks Creole and accented English. Her ability to read
English is minimal. The card she signed, dated February 17, is
written in English. She did not read it. Prior to signing the card,
she had heard, on the radio, reference to the syndicat. The syn-
dicat people on the radio stated they were “there to help every-
body who was working, or workers, and all black people . . .
[at] all the nursing homes.” Union organizer Jean Demosthene
solicited a card from Cenatus. He spoke to her in Creole and
represented that he was from the syndicat, and was seeking to
provide help for all those who worked for nursing homes.32
When she signed the card, Cenatus “knew it was ‘syndicat.’
Although syndicat ouvrier is the French term for trade union,
there is no evidence that Cenatus had any familiarity with the
term prior to hearing it on the radio. At the time she signed the
card, she did not understand that she was taking an action spe-
cific to Palm Garden. When asked if the solicitor referred to
organizing Palm Garden, Cenatus testified that “[he] did not
say Palm Garden employees. It [sic] [he] say all the nursing
homes.” When asked if the solicitor explained what the card
would be used for, Cenatus answered, “To help all workers
who are working in nursing homes.” There is no evidence that,
when Cenatus signed the English card, she understood that she
was authorizing the Union to represent her at Palm Garden, or
that she was accepting membership in an organization that had
a dues obligation. City Welding & Mfg. Co., 191 NLRB 124,
137 (1971). After consulting a dictionary, Cenatus discovered
that the English card, which she had not read, referred to a dues
obligation. Cenatus called the Union, stating that she did not
“want this program,” but “[t]hey tell me we still got the pro-
gram.” Although Cenatus testified she now understands that
30 This card was signed on March 31.
31 Counsel for Respondent, in brief, argues that the handwriting ex-
pert’s identification is inconclusive since there was no stipulation that
the documents he used for signature comparison, including job applica-
tions and W-4 forms, bore genuine signatures. At the time these exhib-
its were being assembled, the General Counsel represented that they
had been provided pursuant to subpoena, and Respondent’s counsel
confirmed, on the record, that this was correct. The act of production
pursuant to a subpoena constitutes “implicit authentication.” U.S. v.
Lawrence, 934 F.2d 868, 871 (7th Cir. 1991), cert. denied 502 U.S. 938
(1991). Respondent raised no objection at the hearing to the authentic-
ity of these documents that it produced pursuant to subpoena.
32 Demosthene testified that when Cenatus signed the card written in
English, she “read the card again.” Cenatus denied that she read the
card. The testimony regarding reading the card “again” casts doubt
upon Demosthene’s earlier testimony that Cenatus was present when he
solicited a card from Marie Dorcena, to whom he says he read the card.
If this were true, there was not a prior occasion when Cenatus read the
card. Cenatus did not acknowledge hearing the card read. I credit Cena-
tus that she was unaware of what the card said until she went to a dic-
tionary.
PALM GARDEN OF NORTH MIAMI 1191
UNITE! is a syndicat, her current understanding is not relevant.
The record does not establish that Cenatus authorized the Union
to represent her at the time she signed a card.
Mirelle Denis, whose native language is Creole, purportedly
signed two authorization cards, one dated January 22 written in
Spanish and one dated April 4 written in English. This latter
card was never authenticated. There is no evidence that Denis is
fluent in Spanish. The General Counsel sought to authenticate
these two authorization cards that purport to bear her signature
through a handwriting expert. The expert was unable to do so,
testifying that, due to the simplicity of the handwriting, he
could not testify that Denis signed the cards or that it was
“highly probable” or even “probable,” i.e., more likely than not,
that she did so. After the handwriting expert failed to authenti-
cate either card, I received the card dated January 22 on the
basis of the testimony of Sylvain who had, in her testimony
regarding Iscar’s card, testified that Denis handed her the card,
unsigned, at the same time as did Irema Geneve. Sylvain
handed the cards back, requesting that they sign the cards.
There is no testimony establishing that there was any explana-
tion of the purpose of this card which is written in Spanish. In
the absence of evidence that Denis, a native speaker of Creole,
received any explanation regarding the card, I have no basis for
finding that she understood the meaning or purpose of the au-
thorization card and “intelligently designated the Union” as her
representative. Maximum Precision Metal Products, supra at
1425. Thus, I cannot find that her card is valid.
Rosa Liriano is Hispanic. She speaks Spanish and a little
English. She speaks no Creole. On January 8, an employee who
worked in the nursing department, whose name Liriano cannot
recall, approached her and presented her with an authorization
card written in Creole. Liriano did not recognize the language.
The solicitor told Liriano that the card was “a program so we
could have more working hours and a better salary.” The word
Union was not mentioned. Liriano signed the card. There is no
evidence that she understood that by signing the card she ac-
cepted membership in a labor organization or authorized the
Union to represent her. She could not read the card. Signing up
for an unidentified “program” for more hours and a better sal-
ary does not constitute an authorization for representation. Hol-
lander Home Fashion Corp., 255 NLRB 1098, 1102 (1981).
The card signed by Liriano is not valid.
Annie Whitest does not read Creole. On January 11, em-
ployee Annie Apollon gave Whitest a union authorization card
written in Creole. Although Whitest testified that Apollon “read
it off to me in English,” Apollon testified that she had no con-
versation with Whitest when she gave her the card. This con-
flict in testimony is immaterial since it is clear that, regardless
of what Whitest thought, Apollon did not read the card in Eng-
lish. Apollon “can read it [Creole] slow,” but she “cannot really
translate.” Whitest did not testify to what Apollon actually said.
Even if I assume that Apollon, contrary to her recollection, said
something, it was not a translation. Whitest, in conclusory
terms, stated that after Apollon supposedly read the card, she
understood that “the Union would give us better benefits, and
our salary would be better. That’s the way I understood it.”
There is no evidence that Whitest, in signing a card written in a
language that she could not read, understood that she was ac-
cepting membership in a labor organization and authorizing
that labor organization to represent her. Gate of Spain Restau-
rant Corp., 192 NLRB 1091 (1971). The card written in Creole,
which Whitest does not read, is not a valid designation of the
Union as her collective-bargaining representative.
In view of the foregoing, I find that on February 22 the Un-
ion had obtained valid designations as the employees’ collec-
tive bargaining representative from 32 employees. This does
not constitute a majority of the 71 employees that were in the
unit on that date. The Union did not obtain a majority at any
later date. In these circumstances, a bargaining order would be
inappropriate.
4. The Objections
I have found that, after the petition was filed and prior to the
election, the Respondent engaged in violations of Section
8(a)(1) of the Act. This conduct parallels various objections to
the election filed by the Union. Objection 1 alleges the threat-
ened loss of wages and benefits, objection 3 alleges threats of
the freezing of wages, objection 4 alleges a threat to reduce
wages to minimum wage, objection 5 alleges the solicitation of
grievances and promise to remedy them, and objection 6 al-
leges the promise of benefits if employees did not select the
Union as their collective-bargaining representative. My finding
that Respondent advised employees that selection of the Union
as their collective-bargaining representative would be futile is
encompassed by objection 11 which alleges other acts.
I find that the foregoing violations of the Act that occurred
during the critical preelection period and correspond to the
Union’s objections interfered with the employees’ free choice
of representation and that that the election must be set aside and
a new election held.
CONCLUSIONS OF LAW
1. By threatening employees with unspecified reprisals, pre-
paring and issuing written warnings, soliciting grievances and
promising to remedy them, and informing employees that they
have been terminated because of their support of the Union; by
threatening the loss of benefits and the freezing of wages and
benefits if employees select the Union as their collective-
bargaining representative; by promising employees benefits if
they refrain from union activity; and by threatening to reduce
employee wages to the minimum wage and advising employees
that selection of the Union as their collective-bargaining repre-
sentative would be futile, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
2. By discharging Leonard Ted Williams and Marie Sylvain
the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Leonard
Ted Williams and Marie Sylvain, it must offer them reinstate-
ment and make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of discharge
to date of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192
The Respondent must post an appropriate notice. In view of
the diversity of the work force, I recommend that the notice be
translated into both French and Spanish.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended33
ORDER
The Respondent, National Health Care, L.P. d/b/a Palm Gar-
den of North Miami, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals,
preparing and issuing written warnings, soliciting grievances
and promising to remedy them, and informing employees that
they have been terminated because of their support of the
Union.

(b) Threatening the loss of benefits and the freezing of wage
and benefits if employees select the Union as their collective-
bargaining representative.
(c) Promising employees benefits if they refrain from union
activity.
(d) Threatening to reduce employee wages to the minimum
wage and advising them that selection of the Union as their
collective-bargaining representative would be futile,
(e) Discharging or otherwise discriminating against any em-
ployee for supporting UNITE! (Union of Needle Trades, Indus-
trial Textile Employees, AFL-CIO, CLC), or any other union.
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act
(a) Within 14 days from the date of this Order, offer Leonard
Ted Williams and Marie Sylvain full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make Leonard Ted Williams and Marie Sylvain whole
for any loss of earnings and other benefits suffered as a result
of the discrimination against them, in the manner set forth in
the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, and within 3
days thereafter notify the employees in writing that this has
been done and that the discharges will not be used against them
in any way.
(d) Remove from its files the written warnings issued to
Leonard Ted Williams that were placed in his file on or after
January 19, 1996.
(e) 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.
(f) Within 14 days after service by the Region, post at its fa-
cility at North Miami, Florida, copies of the attached notice
33 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
marked “Appendix.” Copies of the notice, on forms provided
by the Regional Director for Region 12, 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
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 January 17, 1996.
(g) 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.
IT IS ALSO ORDERED that the complaint is dismissed in-
sofar as it alleges violations of the Act not specifically found.
IT IS FURTHER ORDERED that the election is set aside
and Case 12–RC–7931 is severed from Cases 12–CA–17986
and 12–CA–18357 and remanded to the Regional Director to
conduct a second election when she deems the circumstances
permit a free choice.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT threaten you with unspecified reprisals or
solicit grievances and promise to remedy them in order to dis-
courage your support of UNITE! (Union of Needle Trades,
Industrial Textile Employees, AFL-CIO, CLC), or any other
Union.
WE WILL NOT threaten you with the loss of benefits or the
freezing of wages and benefits if you select the Union as your
collective-bargaining representative.
WE WILL NOT promise you benefits if you refrain from un-
ion activity.
WE WILL NOT threaten to reduce your wages to the mini-
mum wage or advise you that selection of the Union as your
collective-bargaining representative would be futile.
WE WILL NOT discharge or warn any of you for supporting
the 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.
PALM GARDEN OF NORTH MIAMI 1193
WE WILL remove from our files the written warnings issued
to Leonard Ted Williams that were placed in his file on or after
January 19, 1996.
WE WILL , within 14 days from the date of the Board’s Or-
der, offer Leonard Ted Williams and Marie Sylvain full rein-
statement to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed,
and WE WILL make them whole for any loss of earnings and
other benefits resulting from their discharges, less any net in-
terim earnings, plus interest.
WE WILL , within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful dis-
charges of Leonard Ted Williams and Marie Sylvain, and WE
WILL , within 3 days thereafter, notify each of them in writing
that this has been done and that the discharges will not be used
against them in any way.

NATIONAL HEALTH CARE, L.P. D/B/A PALM
GARDEN OF NORTH MIAMI