Southdown Care Center

National Labor Relations Board - Board Decisions

Aug 13, 1992

308 N.L.R.B. 225 (N.L.R.B. 1992)

225
308 NLRB No. 48
SOUTHDOWN CARE CENTER
1 The Respondent did not except to the violations found.
Southdown Care Center and Local 100 Service Em-
ployees International Union, AFL–CIO. Case
15–CA–11288
August 13, 1992
DECISION AND ORDER GRANTING MOTION
TO REOPEN RECORD FOR FURTHER
HEARING
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On May 17, 1991, Administrative Law Judge Rich-
ard J. Linton issued the attached decision in this pro-
ceeding. The General Counsel filed exceptions and a
supporting brief and a motion to reopen the record.
The Respondent filed an answering brief.
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, briefs, and motion
and has decided to grant the motion and to affirm the
judge’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Order.
The Respondent operates a residential care and nurs-
ing home in Houma, Louisiana. In late June 1990, the
Respondent’s employees became involved in efforts to
unionize the facility. On July 11, 1990, a group of em-
ployees, with Tarshelda Green as their spokesperson,
presented Administrator Fruge with a petition. The pe-
tition listed assorted grievances and stated that the
signers had formed a union and filed for a Board elec-
tion.
Within days of this July 11 meeting, the Respondent
issued written warnings to six employees and dis-
charged eight employees at least in part because they
had participated in the presentation of this petition.
The judge concluded that the Respondent violated
Section 8(a)(1) of the Act by coercively interrogating
employees about their union activities, and by creating
an impression that it was engaging in surveillance of
the employees’ union activities. We agree.1 The judge,
however, found that Administrator Fruge’s remark to
employee Green that she intended to fire everyone who
signed the July 11 employee petition did not violate
Section 8(a)(1). We reverse. Additionally, as we ex-
plain below, we grant the General Counsel’s motion to
reopen the record and remand in part to the administra-
tive law judge.
As recognized by the judge, the threshold question
to determining whether the discharges and warnings
were unlawful is whether the employees were engaged
in protected concerted activity for which they were dis-
ciplined. The judge found that the employees’ activity
was not protected, and thus that the discipline and
warnings was not unlawful.
At around 3 p.m. on July 11, shift-change time at
the facility, the off-duty employees entered the nursing
home and met Fruge in a lounge area near the main
entrance. Three or four of the home’s residents were
also present. The events surrounding the presentation
of the petition and the exit of the employees were re-
counted by six employee witnesses, Fruge, and a resi-
dent who had been in the lounge at the time, Della
Landry. The accounts of the General Counsel’s wit-
nesses and the Respondent’s witnesses differ.
According to the General Counsel’s employee wit-
nesses, on July 11 they arrived at Respondent’s facility
shortly after 3 p.m., entered through the front doors,
walked through the foyer, and were met by Adminis-
trator Fruge in the lounge area. Spokesperson Green
presented Fruge with the petition. When Fruge mo-
mentarily looked alternately at Green and at the peti-
tion, Green asked if Fruge would like Green to read
the petition to her. Fruge said no, she could read it
herself. Fruge read the petition, then asked Green, ‘‘Is
that it?’’ Green replied, ‘‘Yes.’’ Fruge said, ‘‘Thank
you’’ and Green replied, ‘‘Thank you.’’ No one else
spoke during this presentation. The employees then
turned and left the facility. As they walked out, some
of the employees uttered the word ‘‘union’’ several
times in a normal or slightly elevated tone of voice.
There was no shouting or chattering among the peti-
tioners. The exit took about 30 seconds.
The Respondent’s witnesses were Administrator
Fruge and resident Della Landry. Fruge described the
incident as loud, disruptive, and threatening. Fruge tes-
tified that the employee group entered with a clatter,
knocking over a table in the foyer, and loudly grum-
bling. The groups, she said appearing angry, formed a
semicircle around Fruge, and she felt threatened. Fruge
asked Green what was going on, and Green handed her
the petition. Fruge asked what it was and Green told
her to read it. As Fruge looked at it, Green snatched
it back and asked if Fruge wanted Green to read it.
Fruge held out her hand, received the petition back,
and read it. After reading it, Fruge asked if that was
it, to which, Green responded, ‘‘Is this it? Huh! That
is enough.’’ Fruge then requested that the group leave
the building, and Green replied ‘‘No thank you.’’
Fruge also testified that the group did not leave the fa-
cility after she requested them to do so, but started
milling around ‘‘like ants,’’ hollering, and going back
and forth down the halls for at least a couple of min-
utes. Fruge further testified that the petitioners were
‘‘sashaying around and screaming like banshees,’’ and
that most of them raised clenched fists in the air and
pointed at on-duty employees. Fruge described the
residents who were present as ‘‘crying’’ and ‘‘star-
tled’’ after the petitioners left the facility.
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Respondent contends that employee Hodges was terminated
for other reasons as of July 9, as discussed later.
3 As noted, employee Hodges was also discharged on July 12. Al-
though she was among the employee group on July 11, the Respond-
ent claims it had decided to terminate her on July 9 for other rea-
sons. Having found that the July 11 activities were unprotected, the
judge found it unnecessary to determine if Hodges would have been
terminated in any event.
Landry who was seated in her wheelchair in the
hallway entrance at the time of the incident, essentially
confirmed Fruge’s version of the July 11 event, testify-
ing that the employee group came in loudly, causing
residents to become disturbed and frightened. Eight to
ten of the petitioners were ‘‘more or less shouting and
yelling’’ union, union, union, both before and after
Fruge was presented with the petition. Landry further
testified that four or five members of the employee
group blocked her path and she could not move in her
wheelchair. Landry testified that she was frightened by
the large group and by not knowing the group’s pur-
pose. Because of the numbers, the noise, and the facial
expressions, Landry testified, she was apprehensive.
Later, Landry complained about the July 11 event to
the Respondent’s social worker in conjunction with a
complaint about another matter.
The Respondent’s director of nursing, Ann LeBouef,
was conducting an interview in her closed office near
the lounge at the time of the July 11 event. She testi-
fied that she heard nothing.
In the days following the July 11 event, the Re-
spondent issued written warnings to six employees
solely because they participated in the July 11 presen-
tation. The warnings cited violations of the Respond-
ent’s written rules against loitering. Some of these em-
ployees had received no previous warnings.
Eight employees were discharged partly because
they participated in the July 11 presentation. These
employees had received past warnings for other infrac-
tions, according to Fruge.2 Fruge testified that if the
employee group had been quiet, peacefully presented
their petition, and had then left without demonstrating,
there would have been no terminations and perhaps not
even written warnings.
Although noting that the Respondent’s witnesses re-
sponded at length to excessively leading questions by
the Respondent’s counsel, and further discounting
some of Fruge’s testimony concerning the July 11
event as exaggerated, the judge credited Fruge’s and
Landry’s version. He found that the employee group
engaged in a loud, mass demonstration lasting approxi-
mately 1 minute, in the presence of residents, and that
they blocked at least one resident. He concluded that
an inference could be drawn that the demonstration
was reasonably calculated to disturb and frighten the
nursing home residents. He further concluded that be-
cause of the employees’ actions, particularly the noisy
demonstration after the presentation which made the
residents frightened, confused, upset, and crying, the
employees’ action was not protected under the Act. He
therefore dismissed the 8(a)(3) allegations concerning
the warnings and discharges.3
I. THE MOTION TO REOPEN
The General Counsel moves to reopen the record
and remand the proceeding to the administrative law
judge based on a sworn affidavit from the Respond-
ent’s witness, Della Landry. In that affidavit, Landry
recants material portions of her testimony, including
testimony that characterized the employee group as
loud, disruptive and frightening, that her wheelchair
was blocked, and that she was present when Fruge
talked to other residents who asked what was going
on.
Landry averred that she had lied at the hearing be-
cause she feared that Fruge would retaliate against her
as a resident at the nursing home if she did not say
what she thought Fruge wanted her to say.
After carefully reviewing the record, the judge’s de-
cision, and the motion, we conclude that Landry’s affi-
davit raises a substantial question whether a witness
testified falsely about material issues in this case. In
substantial part the judge based his finding that the
employees were not protected on Landry’s testimony,
which she now avers was untrue. Although the judge
also credited Fruge over the employees, it is evident
that he might not have done so without Landry’s cor-
roborative testimony. Indeed, the judge’s buttressing of
his conclusion that the conduct was unprotected ap-
pears to have been based on Landry’s—now re-
canted—testimony.
We note that the judge found Fruge’s testimony ex-
aggerated at times, and in response to excessive lead-
ing questioning. Further, as to other incidents in this
case, some of which we find constitute violations of
the Act, the judge specifically discredited Fruge. In
these circumstances, we find that it would best serve
the policies of the Act to remand this aspect of the
proceeding to the judge to take further testimony con-
cerning the July 11 events that led to the discipline of
the employees. Resolution of this issue may also re-
quire a reevaluation of the allegation concerning
Fruge’s threat of discharge to Nedra Simmons for her
participation in the July 11 incident. Further, Hodges’
discharge should be addressed in the light of any new
evidence presented at the reopened hearing.
II. THREAT OF DISCHARGE
The judge credited the uncontradicted testimony of
employee Green that, on July 13, when Green was
227SOUTHDOWN CARE CENTER
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
being discharged, Administrator Fruge told her that ev-
eryone who had signed the petition would be fired.
The judge, however, concluded that this remark was
lawful. He found that Fruge’s remarks ‘‘although a bit
ambiguous’’ tied the discharge threat to participation
in the July 11 demonstration. Because he found that
the demonstration was not protected, the judge also
concluded that the threat was not unlawful. The Gen-
eral Counsel excepts.
We find merit in the General Counsel’s exception.
The evidence is uncontroverted that Fruge threatened
to fire all signers of the petition. Although the Re-
spondent in the end did not fire all the signers, but
only those it identified as participants in the July 11
presentation, the threat remained. The issue is whether,
objectively, Fruge’s remark reasonably tended to inter-
fere with the employees’ right to engage in the pro-
tected act of signing the petition. We find that the re-
mark did and, therefore, that it violated Section
8(a)(1).
ORDER
The National Labor Relations Board orders that the
Respondent, Southdown Care Center, Houma, Louisi-
ana, its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about
union support or union activities.
(b) Acting or speaking in a manner which reason-
ably would create the impression among Southdown’s
employees that Southdown is watching their union ac-
tivities.
(c) Threatening to discharge employees for
concertedly signing a grievance petition.
(d) 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
effectuate the policies of the Act.
(a) Post at its facility in Houma, Louisiana, copies
of the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 15, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that those allegations that
turn on the nature of the July 11 incident are severed
and remanded to Administrative Law Judge Richard J.
Linton for the purpose of holding a hearing to receive
additional testimony from Della Landry and other ap-
propriate evidence relating to the credibility issues
raised by Della Landry’s June 18, 1991 affidavit.
IT IS FURTHER ORDERED that, at the conclusion of
the hearing, Judge Linton shall issue a supplemental
decision containing findings of fact, credibility resolu-
tions, and conclusions of law. The supplemental deci-
sion shall be served on the parties, after which the pro-
visions of Section 102.46 of the Board’s Rules and
Regulations shall be applicable.
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 or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively question you about your
union support of activities.
WE WILL NOT do or say anything which reasonably
would create the impression among you that we are
watching your union activities.
WE WILL NOT do or say anything to create the im-
pression that you will be fired if you sign a union peti-
tion.
WE WILL NOT threaten to discharge employees for
signing a grievance petition.
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.
SOUTHDOWN CARE CENTER
228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are for 1990 unless otherwise indicated.
2 The Board’s discretionary jurisdictional standard for nursing
homes is $100,000. See Hispanic Federation for Social Develop-
ment, 284 NLRB 500, 501 (1987); East Oakland Community Health
Alliance, 218 NLRB 1270, 1271 (1975); Morris, 2 Developing Labor
Law 1498 (2d ed. 1983, ABA).
3 References to the two-volume transcript of testimony are by vol-
ume and page.
4 Exhibits are designated G.C. Exh. for the Government and R.
Exh. for Respondent Southdown. The Union did not offer any exhib-
its.
Regina R. Fuhry, Esq. and (not on brief) Ronald K. Hooks,
Esq., for the General Counsel.
Stephen D. Ridley, Esq. (McCalla, Thompson, Pyburn & Rid-
ley), of New Orleans, Louisiana, for the Respondent.
Nina Schulman, of Baton Rouge, Louisiana, for the Charging
Union.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
discipline case. The principal issue is factual and legal. The
factual question is whether certain off-duty employees, enter-
ing the Southdown nursing home on July 11, 1990, to
present a written petition for redress of grievances, refused
to leave and engaged in a short but noisy demonstration in
the presence of residents. The answer, I find, is yes. Was the
refusal/demonstration unprotected by the Act? Again I find
the answer is yes. Because the discipline of written warnings
and discharges thereafter imposed was based in part on the
unprotected conduct of July 11, and because the Government
does not attack the other grounds for the discipline, I dismiss
this principal portion of the complaint.
I presided at the trial of this case in New Orleans, Louisi-
ana on February 19–20, 1991, pursuant to the August 30,
1991, complaint issued by the General Counsel of the Na-
tional Labor Relations Board through the Regional Director
for Region 15 of the Board. The complaint is based on a
charge filed July 20, 1990, in Case 15–CA–11288, and there-
after amended, by Local 100, Service Employees Inter-
national Union, AFL–CIO (Union or Local 100) against
Southdown Care Center (Respondent, Southdown, or SCC).1
In the complaint the General Counsel alleges that
Southdown violated Section 8(a)(1) of the Act by coercively
interrogating employees, creating the impression among em-
ployees that their union activities were under surveillance by
SCC, twice threatening employees with discharge because of
their union activities, and Section 8(a)(3) of the Act about
July 11, 1990, by issuing written warnings to six named em-
ployees, and around mid-July discharging eight named em-
ployees, because of their union or other protected activities.
By its answer Respondent admits certain factual matters
but denies violating the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
A Louisiana corporation doing business in Houma, Louisi-
ana, Southdown Care Center is a health care institution oper-
ating a nursing home which provides residential and treat-
ment services, to invalids and the aged. During the 12
months ending July 20, 1990, SCC derived gross revenue
from state and Federal agencies exceeding $250,000 of
which over $50,000 in matching funds came from Federal
sources.2 SCC admits, and I find, that it is an employer with-
in the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that SEIU Local 100 is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The facility, its residents, and work force
Situated in Houma, Louisiana, Southdown Care Center
(SCC) is a single story cinderblock building of three wings.
Two of the wings extend left and right from a central lobby.
The third wing apparently extends from one of the other
wings because the building forms an L-shape. (1:45–46,
2:337.)3 A simple foldout brochure (R. Exh. 16),4 which
SCC gives to the public, incorporates several color prints of
the facility’s rooms (resident, function, and activity), includ-
ing one of the outside front. (2:420–421.) SCC is not part
of a national chain, and its owners are located in Baton
Rouge, Louisiana. (2:421.)
SCC’s current administration is relatively new. Patricia
Reed Fruge, the administrator, arrived in December 1989.
(1:9–10; 2:369.) Fruge reports to the general manager, Jerry
Brodhead, who maintains an office at the facility but who
works there only 2 or 3 days a week. (2:373–374.) Fruge’s
first director of nurses (DON) worked a short time and left.
Ann LeBouef was then hired on April 5, 1990, as the DON,
and she left on January 9, 1991. (2:321, 371.) LeBouef was
the DON during the relevant events. For supervisor of house-
keeping Fruge, on January 10, 1990, hired Tarshelda Green.
(1:141; 2:372.) Green began working at SCC on September
3, 1979 and was housekeeping supervisor from 1984 to De-
cember 1988. She then left to have a baby, remaining out
until her January 10 return. (1:101, 139–141.) Mary C. Rose
has been the food service supervisor since April 9. (2:349.)
Fruge testified that as of July 11 SCC had 118–22 resi-
dents. (1:43–44; 2:450.) As the brochure (R. Exh. 16) of
color pictures shows, and the testimony confirms (1:49, 62;
2:443–444), SCC’s residents range in age from young chil-
dren to the elderly. Some of the residents are paraplegics
who must use wheelchairs for locomotion. One of the para-
plegic residents, Della Landry, a key witness for SCC, ap-
pears to be in her early to midthirties. (2:443.) A plucky
woman, Landry was not called until the end of the first day.
To care for its residents, SCC operates at least three shifts
throughout the week, employing, as of July 1990, a total
work force of some 110 to 120. Of these, about 100 worked
full time, with others being part time. The day shift will have
229SOUTHDOWN CARE CENTER
5 A copy of the ‘‘Welcome’’ is in evidence as R. Exh. 2; an in-
complete copy also appears as R. Exh. 15. The first exhibit, R. Exh.
2, may have a cover which is missing. The missing cover may be
denominated, ‘‘Handbook For Employees.’’ This is suggested by the
final page which contains two statements for the new employees to
sign. The first is an acknowledgement that he or she has received
a copy of the ‘‘HANDBOOK FOR EMPLOYEES,’’ has read it, un-
derstands it, and will observe the rules and policies.
about 30 employees, the second shift about 20, and the third
shift about 10–12 employees, excluding office personnel.
(1:31; 2:450, 456–458.) As the DON, LeBouef supervised
about 75 nurses, nurses aides, and respiratory therapy person-
nel, a majority of SCC’s work force. (2:321, 371–372.)
2. Privacy rights of residents
Privacy and dignity rights of residents are a top priority
at SCC. This fact is reflected in different language at several
points in the 12-page (unnumbered) ‘‘Welcome To Our
Nursing Home’’ handbook given to new employees.5 (1:80;
2:411–412.) This concern, and goal, is expressed or implied
beginning with the first line of the first page (purpose is to
provide the finest nursing and personal care available) and
continuing throughout. ‘‘Courtesy and diplomacy to resi-
dents’’ is a stated goal. Employees are to ‘‘function with an
attitude of concern for residents, guests, and employees,’’
(goal No. 4), and (goal 8) are ‘‘To maintain an atmosphere
conducive to quality care.’’ A separate paragraph on the first
page reads:
THE RESIDENT ALWAYS COMES FIRST
Imagine that YOU were a resident here. What would
you need, what would YOU want, what would YOU
feel you had a right to expect as a resident at the Nurs-
ing Home.
The next paragraph, appearing on page 2, provides, in
part:
AS A RESIDENT, YOU WOULD EXPECT:
. . . .
2. To be treated with the same COURTESY you
would receive if you were a ‘‘paying guest’’ anywhere
else. Our residents have a right to expect politeness, nu-
tritious and palatable food, a clean room, quiet sur-
roundings and other courtesies. This home is their
home. [Emphasis added.]
. . . .
4. To be, therefore, treated with dignity and an
EXTRA measure of understanding, optimism, and
cheerfulness.
On page 3 the last paragraph reads:
NOISE
Employees whose work carries them to residents or
public areas must remember that the comfort of our
residents depends on the quietness in the area. You can
always maintain an attitude of cheerfulness without
being noisy or boisterous. Remember to conduct your-
self as if you were a guest in someone’s home. [Empha-
sis added.]
Page 4 has a paragraph addressing ‘‘Abusive Language
and Conduct.’’ In that paragraph SCC alerts employees that
abusive language or conduct toward a resident will not be
tolerated.
The use of strong language or abusive conduct, SCC there
states, indicates a lack of self-control, emotional instability,
or immaturity which gives residents a feeling of insecurity.
At page 7 of the ‘‘Welcome’’ document, new employees
are given a list of conduct that ‘‘will constitute reasons for
immediate discharge.’’ Heading the list is ‘‘Verbal or phys-
ical abuse to a patient.’’ Mid-way down the list item ‘‘g’’
begins, ‘‘Discourteousness to patients . . . .’’ (In the docu-
ment SCC apparently uses ‘‘patients’’ interchangeably with
‘‘residents,’’ perhaps drawing provisions from different
sources. There is no record evidence that SCC classifies
some persons as ‘‘residents’’ and others as ‘‘patients,’’ and
I make no distinction in this decision.)
The final page of the ‘‘Welcome’’ handbook contains, as
earlier noted, two statements for the new employee to sign.
The first, described earlier, is the acknowledgement. Fol-
lowed by spaces for signatures of the employee, a witness,
and the date, the second statement provides:
ABUSE POLICY
Residents and patients in this facility are to be treat-
ed with dignity and respect at all times and under any
circumstances. Mistreatment in the form of verbal or
physical abuse of any nature will not be tolerated. Any
employee guilty of abusing a resident or patient is sub-
ject to immediate discharge. Local authorities will be
notified immediately and criminal charges may be filed
against any employee guilty of abuse. Employees may
be fined up to $5,000.00 and sentenced to three years
in prison.
SCC’s policies are based on more than the personal or
business concerns of its owners, for the protections are man-
dated by Federal and state laws and regulations. Called by
SCC as an expert witness, Sister Michael Sibille since 1982
has been the special consultant to Louisiana’s Department of
Health and Hospitals on the rights of residents in nursing
homes, institutions for the mentally retarded, and other group
homes. She has worked for that department some 20 years.
It appears that the department established her current post in
1982 in response to state and Federal legislation, as supple-
mented by Federal legislation in 1987 and 1990. Her office
is responsible for, among other things, licensing and certifi-
cation of nursing homes and investigating complaints. (1:85–
87.)
Sister Michael testified that the ‘‘regulations’’ require
nursing homes to provide a ‘‘home-like environment’’ where
residents can feel emotionally secure. (1:90.) However, those
specific phrases do not appear in the patient rights section of
the booklet (R. Exh. 13) her department distributes, although
they are implied by the subsection specifying humane treat-
ment: ‘‘Applicants/recipients shall have the right to be treat-
ed courteously, fairly, with respect and consideration and
with the fullest recognition of their individuality and dig-
nity.’’ (R. Exh. 13 at 31.) In this regard Sister Michael testi-
fied (1:94):
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Green sometimes is referred to in the record by her nickname,
Sheila. (1:52–53, 100–101.)
Q. Why is it important that there be a home-like at-
mosphere of quiet?
A. Because this is their home. I would say that 99
percent of the people that enter nursing homes intend
to live there the rest of their lives. They have sold their
homes or given up their apartments. This is their home.
Therefore, we try to make it as home-like as possible.
Sister Michael testified that a noisy atmosphere in present-
ing a grievance to management in SCC’s lobby, where resi-
dents frequent, would be improper, but a presentation which
was not disruptive would not of itself be a breach of resi-
dents’ rights. In line with trying to avoid such disruptions,
Sister Michael has never considered discussing with nursing
homes the idea of their having a procedure for employees’
presenting any grievances to management. (1:97–99.)
In addition to Sister Michael’s department, Louisiana has
an ombudsman program operating from the Governor’s Of-
fice of Elderly Affairs. (R. Exh. 13 at 67.) SCC’s Fruge
identified a one-page sheet of paper, which appears to be in
the form of a notice (advising nursing home residents of their
rights under Federal and state law) for posting on bulletin
boards, copies of which, she testified, are given to new em-
ployees and placed in their personnel folders. (2:409–410.)
The notice is by the Louisiana Ombudsman Program.
3. Union organizing campaign
In late June 1990 SEIU Local 100 began an organizing
campaign at Southdown. The first union meeting, attended
by 28 to 30 employees, was held June 28 at the home of
Tarshelda Green. (1:48, 101, 103, 180.) The second meeting,
July 5, also was held at Green’s home. Nina Schulman, a
representative of Local 100 for the last 5 years (2:312), at-
tended both meetings. (1:48, 180-181, 184.) The third meet-
ing, July 10, was held at the home of Yvonne Thomas. (1:48,
52, 182; 2:313.) Thomas, an employee herself, is the mother
of alleged discriminatee Nedra Simmons (1:190.) The hour
of the July 10 meeting was shortly after the 3 p.m. shift
change. (2:313.)
From discussions at the first two meetings, Schulman testi-
fied, Schulman typed a list of grievances and notice of orga-
nizing (G.C. Exh. 22) which the employees would present to
management. (1:40–41; 2:315–316.) The undated statement
reads (G.C. Exh. 22):
To: The Management of Southdowns Center
From: The Workers of Southdowns Center
We, the undersigned employees, are sick and tired of
—Low wages
—Being treated like children
—Cuts in vacation days
—No training for certification
We deserve
—Fair pay
—Decent benefits
—Training for certification
—Dignity and respect
The problems have been continuing for a long time.
We have tried to get improvements but management
has ignored us.
In order to win what we deserve, we have decided
to form a union.
We—the employees of Southdowns—are the union!
We have the support of the vast majority of the em-
ployees at the nursing home.
We will stick together and stay strong until we win!
In order to get union recognition, we have filed with
the National Labor Relations Board for a secret ballot
election to prove that we have the majority!
We want to remind you that it is illegal to threaten
or take any action against employees in retaliation for
their union support.
By the time of the third meeting on July 10, Schulman tes-
tified, most of the 34 signatures (plus 1 scratched out) under
the statement had been inscribed, although possibly some
were added at the July 10 meeting. (2:315.) At the July 10
meeting, the employees elected Tarshelda Green to be the
spokesperson for the group and the one to present the griev-
ances-demands-announcement petition to Administrator Patri-
cia Fruge the following day.6 (1:52–53, 106; 2:314.) The
group was to seek out Fruge at her office and present the
petition in a quiet, calm, and orderly fashion. (1:106–107;
2:313.) Schulman concedes that she told the employees that
on the way out of the nursing home they could chant, ‘‘We
shall overcome’’ or ‘‘Union.’’ (2:314.) Schulman does not
advise whether she was familiar with SCC’s rules and poli-
cies, or government regulations, mandating a home-like envi-
ronment. When Green and the others presented the petition
around the 3 p.m. shift change the following day, July 11,
Schulman was out of town, in Baton Rouge. (2:317.)
Two more rules from the ‘‘Welcome’’ handbook are perti-
nent. One, dealing with solicitation/distribution, is less rel-
evant than the ‘‘loitering’’ rule, which is SCC’s limited-ac-
cess rule for off-duty employees. The solicitation rule reads
(R. Exh. 2 at 4):
SOLICITORS
Solicitation by Non-Employees: No solicitors, bill
collectors, distributors of literature or salesmen are al-
lowed on the home’s property or in the home’s property
or in the home to contact residents or employees with-
out the prior approval of the administrator.
Sales and Solicitation by Employees: Solicitation and
literature distribution are strictly prohibited during any
time the employees involved are expected to be work-
ing. This prohibition does not apply to periods such as
breaks, wash-up periods, and meal times when the em-
ployees are not required to be working. Distribution of
literature is not permitted at any time in working areas.
In our case SCC’s solicitation/distribution rule does not
apply for two reasons. First, the rule applies only to working
time or working areas. Second, neither solicitation nor dis-
tribution is involved here. What we have here is access by
off-duty employees. SCC has a no-access rule.
SSC’s no-access rule provides (R. Exh. 2 at 3):
231SOUTHDOWN CARE CENTER
LOITERING
Employees are not permitted access to the interior of
the facility or outside work areas during off duty hours.
Employees who have family or friends in the home
may visit them during their off hours but must follow
visitor rules.
The General Counsel contends Fruge testified that the no-
access rule is not enforced. (Br. at 17.) Fruge testified
(2:415):
Q. So if someone comes in to pick up a payroll
check or hangs around for about an extra 20 minutes
in the dining room drinking a coke and talking to some-
body on their break or something, that wouldn’t even
result in a warning, would it?
A. No.
I interpret the question and answer as referring to an off-duty
employee who has come in to pick up her paycheck and who
then, rather than leaving immediately, remains for 20 min-
utes to have a soft drink in the dining room and to converse
during that 20 minutes with an employee who, although on
the clock, is on her break. Fruge, I find, asserts that SCC
permits that. There is no evidence of numerous or frequent
returns to the interior of the building either by individual em-
ployees or by groups of employees. The July 11 incident ap-
pears to have been the first occasion of a group return, at
least one to speak to management, for Fruge asserts that she
has never before had such a ‘‘problem.’’ (2:437.)
Additionally, Fruge testified that had the July 11 group
come in quietly, peacefully presented the petition, and left
without demonstrating, there would have been no termi-
nations and possibly only a written warning for coming as
a group rather than picking up the telephone to say, ‘‘Patti,
we need to see you for a few minutes.’’ (2:415–416, 435–
437.) Aside from the leading suggestion in SCC’s questions
(‘‘technically in violation of the policy,’’ 2:415; ‘‘breach of
the no-access rule,’’ 2:416), it is clear from Fruge’s words,
as distinguished from those of SCC’s lawyer, that she may
not even have issued written warnings if the July 11 group
had quietly presented the petition to her in the lounge.
(2:436–437.)
On this occasion, however, Fruge considered the nature of
the event as requiring her to enforce SCC’s no-access rule
(2:416):
Q. So I take it that it was the nature of the breach
of the no-access rule in this case and the demeanor and
what transpired—that you just described and we don’t
need to go over again—that led you to the decision to
take disciplinary action in this case.
A. That is correct.
Previous to this, she testified, Fruge has never had ‘‘occa-
sion’’ to issue a written warning to an off-duty employee for
violating SCC’s no-access rule. (2:415.)
On Tuesday, July 10, 1990, the Union, by Schulman, filed
a petition (G.C. Exh. 26) in Case 15–RC–7545 to represent
Southdown’s employees in the following unit:
All regular full-time and part-time licensed practical
nurses, charge nurses, patient activity coordinator, so-
cial services designee, nursing assistants, dietary em-
ployees, laundry employees, housekeepers, mainte-
nance, and ward clerks, excluding office clerical em-
ployees, guards, professional employees, managerial
employees, and supervisors as defined in the Act.
After the charge was filed in this case on July 20, the
Union filed a request to proceed in the election case (2:379,
counsel for the General Counsel), but by letter (G.C. Exh.
27) dated August 10 Schulman rescinded the request to pro-
ceed and the election petition remains pending. (2:377.)
B. Contentions, Credibility, and Legal Principles
1. Contentions described
Our case involves two groups of issues and events. In one
group we have the allegations of interrogations and threats
beginning on July 9—2 days before Green and the others
presented the grievance petition. Company knowledge is a
key factual issue for the July 9 and 10 events. According to
Administrator Fruge, the first inkling she had of any union
activity was not until a few minutes before 11 a.m. on July
11 when a woman, whom Fruge did not know, with a local
mental retardation center telephoned to alert Fruge that a
New Orleans friend of the caller had told the caller that SCC
would be served probably the next day with a union petition
which had been filed on SCC. (2:372, 374, 459.) The caller
said the mental retardation center had been experiencing
‘‘some problems with the union.’’ Initially Fruge testified
that the caller ‘‘went on to tell’’ Fruge about some of the
‘‘problems’’ (2:373), but later (2:459):
Q. Did she say what problems they had had?
A. No, she didn’t. She didn’t go into that.’’
Fruge immediately reported this call to General Manager
Jerry Brodhead who contacted counsel who in turn spoke
with Fruge about 3:30 that afternoon. (2:373–374.)
Fruge barely had reported this matter to Brodhead when
she received in the 11:30 a.m. mail a copy of the petition
in 15–RC–7545. That, Fruge testified, was her first confirma-
tion of any union activity. (2:375.) As we see in a moment,
employees testify that the interrogations began 2 days earlier.
The other issue, and the event of primary importance, is
the presentation by the Green group of the employee petition
at or shortly after the 3 p.m. shift change that July 11. Enter-
ing through the front door, the Green group of about 25 em-
ployees presented its petition to Fruge in the front lounge
area because they met Fruge there on the way in. (1:192,
211–212.) According to the Government’s witnesses, the
Tarshelda Green group was quiet and orderly throughout,
with a few uttering ‘‘union, union’’ in a normal or only
slightly elevated voice as they walked out the front door
when the group departed. Six of the employee group, includ-
ing Green, testified.
Southdown’s witnesses on this point, meaning Fruge and
resident Della Landry, testified that the employee group was
quiet only when Green and Fruge were talking and Fruge
was reading the petition. Before that the group entered with
a clatter, and after the presentation the employee group
began a noisy demonstration which included pointing and
hollering at employees who were on duty but watching, all
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Beth Israel Hospital v. NLRB, 437 U.S. 483, 494 (1978).
this in the presence of several frightened residents, including
Della Landry.
The Government’s position is that the Green group’s pres-
entation event, if found to have occurred as described by its
witnesses, was conduct protected by the Act. Candidly, the
General Counsel concedes that if the employees acted as de-
scribed by Southdown’s witnesses, Fruge and Landry, then
the presentation/demonstration was not protected. That is,
what is presented here is a factual dispute, not a legal one.
(2:431–432, 435; Br. at 25.)
Southdown, by contrast, asserts that the Green group pres-
entation event was unprotected regardless of which version
is accepted. That is, even if the group did everything quietly
the conduct was unprotected as a matter of law because there
were residents present. (Br. at 27–29.)
2. Credibility resolved
Respecting the first group of issues and events (the interro-
gations and such), I credit the General Counsel’s witnesses.
They were more persuasive in their testimony than were
SCC’s Fruge, LeBouef, and Rose in their denials and ver-
sions. I likewise disbelieve Fruge that she did not learn of
any union activity until about 11 a.m. on July 11. Confirma-
tion did come 30 minutes later, with delivery of a copy of
the election petition in Case 15–RC–7545, but I find that
Fruge and her supervisory staff learned at least 2 days ear-
lier, from whatever source, that the SCC employees were en-
gaged in union organizing.
I find the reverse to be true on the second event—the July
11 presentation/demonstration. Respecting that event the
General Counsel’s witnesses were unpersuasive. By contrast,
the demeanor of Administrator Fruge and resident Landry
was persuasive, and their descriptions of the boisterous dem-
onstration was vivid and convincing.
3. Legal principles
The legal principles we are mainly concerned with here
are those pertaining to the July 11 petition-presenta-
tion/demonstration. The Supreme Court has observed7 that
the Board established rules for solicitation/distribution in all
health-care institutions in St. John’s Hospital, 222 NLRB
1150 (1976). In St. John’s the Board concluded that the spe-
cial characteristics of hospitals justify a rule different from
that which the Board generally applies to other employers.
Recognizing that a tranquil atmosphere is essential to carry-
ing out a hospital’s primary function of patient care, the
Board in St. John’s announced that hospitals may be war-
ranted in prohibiting solicitation even on nonworking time in
strictly patient care rooms. St. John’s Hospital at 1150.
Continuing in St. John’s at 1151, the Board declared (em-
phasis added):
As to the restrictions in patient access areas such as
cafeterias, lounges, and the like, we do not perceive
how patients would be affected adversely by such ac-
tivities. On balance, the interests of patients well
enough to frequent such areas do not outweigh those of
the employees to discuss or solicit union representation.
SCC’s solicitation rule here, however, is restricted only as to
time, not place. And while distribution is not permitted at
any time in working areas, no restriction is placed on dis-
tribution in patient access areas such as the dining room or
front lobby/lounge area.
Our case is not directly concerned with SCC’s solici-
tation/distribution policy. Rather, we need to consider SCC’s
loitering or no-access rule. That rule restricts off-duty em-
ployees, except when visiting family or friends (meaning,
presumably, residents), to nonworking areas outside the
building, such as the parking lot. The rule prohibits off-duty
employees from entering the building. In Tri-County Medical
Center, 222 NLRB 1089 (1976), the Board stated that a no-
access rule is valid only if it:
(1) limits access solely with respect to the interior of
the plant and other working areas; (2) is clearly dis-
seminated to all employees; (3) applies to off-duty em-
ployees seeking access to the plant for any purpose and
not just to those employees engaging in union activity[;
and (4)] except where justified by business reasons, a
rule which denies off-duty employees entry to parking
lots, gates, and other outside nonworking areas will be
found invalid.
The Board follows Tri-County. See St. Luke’s Hospital,
300 NLRB 836, 837 (1990). On its face, SCC’s limited-ac-
cess rule complies with the Tri-County conditions.
Finally, the threshold question is whether the July 11,
1990 petition-presentation/demonstration was conduct pro-
tected by the Act. Aside from the positions of the parties,
what standard does the Board apply? That standard is ex-
pressed in Phase Inc., 263 NLRB 1168, 1169 (1982):
We agree with the Administrative Law Judge that
Respondent’s termination of the employees herein did
not violate the Act. However, we do not subscribe to
the view implied in his Decision that employees of
health care institutions are held to a different standard
of conduct than employees of other entities. While the
Board, in determining whether health care employees
have engaged in unprotected conduct, has considered
whether any harm to the institution’s patients was
caused by the employees’ concerted activity, neverthe-
less, it has applied the same standards of conduct to
health care institutions as it does to other enterprises.7
Thus, conduct such as a concerted work stoppage in
protest over employee grievances, even if engaged in
by health care institution employees, is protected unless
it is unlawful, violent, in breach of contract, or other-
wise indefensible.8
7 See, e.g., Leisure Lodge Nursing Home, 250 NLRB 912, 918
(1980); Walker Methodist Residence and Health Care Center, Inc., 227
NLRB 1630, 1632 (1977); Dan Lipman, Norman Ruttenberg, and Abe
Goldstein, a Partnership, d/b/a Ascot Nursing Centre, 216 NLRB 680,
685 (1975). In the present case, Respondent offered no evidence that
any of the methadone patients were endangered or harmed by the em-
ployees’ walkout.
8 Walker Methodist Residence and Health Center, Inc., supra at
1632.
233SOUTHDOWN CARE CENTER
8 Although Hue’s name is rendered Sara in the transcript (she did
not testify), in their briefs both parties spell her given name as
Sarah. I adopt the spelling used by the parties.
9 Green appears to be at least 5 feet 8 inches tall and in robust
health. Her presence and demeanor indicate that she tends to be re-
spected as a leader rather than someone who would come whimper-
ing to management in fear of her staff.
C. Interference, Restraint, or Coercion
1. Ann LeBouef—July 9, 1990
Complaint paragraph 7(c) alleges that about July 9 Ann
LeBouef, SCC’s DON, unlawfully interrogated employees.
SCC denies the allegation. Betty Boykins testified in support
of this allegation.
Hired July 6, 1981, by SCC, Betty Boykins was a resident
assistant there in July 1990. (1:47.) As of July 9 Boykins had
attended the first two union meetings, June 28 and July 5.
However, she had worn no union insignia at work or en-
gaged in any open union activities at SCC. (1:48, 51.) The
morning of Monday, July 9, as Boykins was bathing 4-year
old Heather Charpentier in the child’s room, LeBouef en-
tered, closed the door behind her, and bluntly asked Boykins
whether she had anything to do with or knew anything about
the union. When Boykins replied that she did not know what
LeBouef was talking about, and knew nothing about it, the
DON stared at Boykins a moment and then left. (1:50, 59,
62–64.) According to LeBouef, the first she knew of any
union activity at SCC was about 1:30 p.m. on July 11 when
Fruge showed her the election petition which had arrived in
the mail. LeBouef denies asking Boykins anything about a
union before July 11. (2:321–323.)
As mentioned earlier, I credit Boykins. Considering the
circumstances of LeBouef’s inquiry, the abruptness, Boykins’
false response, the fact that Boykins had not been an open
supporter of the Union, and the direct disclosure a truthful
answer would have required, I find that SCC violated Section
8(a)(1) of the Act by LeBouef’s July 11, 1990 interrogation
of Boykins.
2. Mary C. Rose—July 9, 1990
Complaint paragraph 7(b) alleges that about July 9 Mary
C. Rose, SCC’s food service supervisor, unlawfully interro-
gated employees. SCC denies the allegation. Nedra Simmons
testified in support of the allegation. Hired October 3, 1987,
Nedra Simmons worked at SCC as a dietary aide under
Rose. (1:187; 2:350.) Simmons’ mother, Yvonne Thomas,
and a sister also work at SCC. (1:190, 202.)
About 12:30 p.m. on July 9, 2 days before the employees
presented the petition to Fruge, Simmons was in Rose’s of-
fice. Just the two were present. Rose, Simmons testified,
asked Simmons what was the problem, that any other time
Simmons had experienced a problem Simmons had come to
her. Simmons asked Rose what she was talking about. Rose
said ‘‘These people aren’t going to do anything but harass
you, take your money, and take the nursing home’s money.’’
Rose asked whether anyone had approached her. Again Sim-
mons asked what she was talking about. Rose asked whether
Simmons had signed a union card, and Simmons said she did
not know what Rose was talking about.
Rose said she would stake her life on it that Simmons, her
mother, and her sister would not do something like that. That
ended the conversation. Before the conversation Simmons
had never discussed the union with Rose or any supervisor
and had not openly engaged in any union activities at SCC.
(1:188-190, 201-204, 209.) I credit Simmons and disbelieve
the denial of Rose that before July 11 she had no knowledge
of any union activities. (2:353.) I also do not believe Rose’s
denial of her July 9 questions of Simmons about the Union
matter, nor Rose’s version that the conversation was about
a family problem Simmons supposedly had. (2:354-356,
367.)
The credited evidence does not show the reason for Sim-
mons’ presence in Rose’s office, how the conversation there
developed, nor even whether Simmons had gone to the two
union meetings or signed a union card. Nevertheless, the na-
ture of the persistent questioning, when Simmons had not
openly supported the Union, indicates that the interrogation
would reasonably tend to restrain an employee in the exer-
cise of Section 7 rights. Accordingly, I find that SCC vio-
lated 29 USC 158(a)(1) when Mary C. Rose coercively inter-
rogated Nedra Simmons on July 9, 1990.
3. Patricia Reed Fruge—July 10, 1990
a. Pleadings
Complaint paragraph 7(a) alleges that about July 10 Ad-
ministrator Fruge unlawfully interrogated employees. Com-
plaint paragraph 8(a) alleges that about July 10 Fruge created
an impression among employees that their union activities
were under surveillance by SCC. SCC denies the allegations.
Tarshelda Green testified in support of the allegations.
b. Facts
As earlier summarized, on January 10 Fruge hired Green
as SCC’s housekeeping supervisor when Green returned after
a year’s maternity absence. (1:141; 2:372.) There is no dis-
pute that about mid-May Green was relegated to working in
the dining room either by demotion, although at the same
pay, and thereupon replaced by Sarah Hue8 (Green’s ac-
count), or by request of Green because of her supposed fear
that members of her staff were going to assault her phys-
ically (Fruge’s version).9 I credit Green, but it is unnecessary
for me to summarize the facts. The two-fold point to be
made is that Green was not a supervisor (statutory or other-
wise) after mid-May (relevant to the General Counsel’s alle-
gations), and that (SCC’s point) Fruge naturally looked to
Green for discussing problems or questions about house-
keeping.
Green and all the employees involved in this case are
black. Hired in mid-May, Sarah Hue is white. Fruge testified
(2:384–384, 473) that on July 7 she asked Hue to resign in
view of evidence that Hue had made racist remarks about
some of the housekeepers. This testimony pertains to Fruge’s
version of the date and nature of her conversation with
Green. SCC contends Green became confused about the
dates of three meetings which she had with Fruge in July
and, therefore, should not be credited.
Green describes three conversations with Fruge in July
about different topics. One concerned Green’s purported fail-
ure to clean baseboards in the dining room. Another per-
tained to Sarah Hue. The third pertained to the Union.
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 As the administative law judge unsuccessfully recommended in
Overnite Transportation Co., 254 NLRB 132, 133 (1981).
11 As in Inner City Broadcasting, 281 NLRB 1210, 1220, 1223
(1986).
12 Hudson Neckwear, 302 NLRB 93, 95 (1991).
Green testified that the union conversation occurred as fol-
lows. As Green was about to leave work at 3 p.m. on July
10, Fruge tapped her on the shoulder and called Green into
Fruge’s office. Just the two were present. Fruge closed the
door and asked Green to have a seat. Green declined. Fruge
asked Green what was going on, and Green said she did not
know what Fruge was talking about. ‘‘Well,’’ Fruge said, ‘‘I
heard you girls are trying to get a union around here, and
I want you to go back and tell the girls that it wasn’t going
to work.’’ ‘‘Hold it, hold it, Ms. Fruge,’’ Green replied, ‘‘I
am not going back and telling nobody nothing. If you want
to tell them, you call them and tell them yourself.’’
The two looked at each other, and then Fruge said, ‘‘I
heard the first meeting was at your house.’’ ‘‘Look,’’ Green
responded, ‘‘when I leave here, what goes on at my house
is my business.’’ That apparently ended the conversation.
Before this conversation Green had not visibly supported the
Union at SCC’s facility nor discussed the Union with any su-
pervisor. (1:101–104, 145–147, 177 179, 181–182.)
According to Fruge, on July 7 she called Green to her of-
fice and informed her of Hue’s resignation. Fruge asked if
that would help solve some of the problems. Green said she
had no problem with Hue. Green must have, Fruge replied,
because David Carlos (a resident) told Fruge that the em-
ployees had held a meeting at Green’s house to discuss get-
ting Hue fired. Green said the meeting at her house was to
discuss Hue’s telling them they could not discuss problems
with Fruge but had to take them to Hue first. Hue was
wrong, Fruge assured Green. No mention of a union was
made in this July 7 conversation, according to Fruge. Had
‘‘union’’ been mentioned, Fruge testified, she probably
would have had a heart attack because she knew nothing
about unions until all this started, and the possibility of such
would have scared her. On learning of the union activity,
Fruge wanted to cry. (2:384–388.)
Fruge testified that on July 10 she called Green to her of-
fice and talked to Green about her failure to clean baseboards
in the dining room as instructed. No mention was made of
Sarah Hue, any meeting at Green’s home, or of the Union.
(2:389–390.) Green testified she was given a written warning
over the baseboards matter (no party offered a copy of the
warning into evidence), and that no mention was made of the
union. Green is not even clear on the sequence of the three
conversations, placing them in different positions throughout
her testimony, with the interrogation about the union meeting
occurring on either July 7 or 10. (1:102, 145–151, 176–177,
179–184; 2:495–496.)
Perhaps Green’s clearest word on the date of her conversa-
tion with Fruge, when Fruge asked her about the union meet-
ing at her home, was that the conversation occurred the day
of the (third) union meeting at the home of Yvonne Thomas
and the day before the presentation of the petition. (1:182.)
That matches the date she gave at the beginning (1:102) of
her testimony—July 10. I accept that date, although the date
of July 7 is within the ‘‘on or about July 10’’ timeframe. In
any event, I credit Green that Fruge asked her about the
union in that conversation.
c. Discussion
Green was called into the Administrator’s office on July
10 where she was interrogated by Fruge. Green had not been
open about her support of the Union, and Fruge offered no
assurances against any reprisal. Moreover, Fruge’s questions
appear to have been part of an overall effort by SCC to un-
cover information about the protected activities of the home’s
employees. The likely tendency of Fruge’s questions would
be coercive for most employees. Green obviously is a tough-
minded individual, and on this occasion she bluntly rebuffed
Administrator Fruge, saying, in effect, ‘‘It’s none of your
business.’’ If the test were whether Green was actually in-
timidated by Fruge, I would dismiss the allegation. But ac-
tual intimidation is not the criterion under the statute. The
test is whether Fruge’s conduct would reasonably tend to re-
strain, coerce, or interfere with rights guaranteed under the
Act. Under that standard Administration Fruge’s July 10 in-
terrogation of housekeeper Tarshelda Green was coercive
and, as alleged, violative of 29 U.S.C. § 158(a)(1).
The same July 10 interrogation by Fruge gives rise to a
finding, which I make, that Fruge created the impression of
surveillance when she told Green that ‘‘I heard’’ the employ-
ees were trying to organize a union and ‘‘I heard’’ that the
first union meeting was at Green’s home. ‘‘I heard’’ logi-
cally can mean that an employee volunteered10 confidential
information to Fruge rather than that the employer has its
spies out monitoring employee activities and reporting on
those activities to the employer.11 However, the Board finds
such statements unlawful12 because they reasonably tend to
discourage employees in exercising their statutory rights by
implying surveillance and by creating the impression that the
employer has sources of information about their union activi-
ties. Overnite Transportation Co., 254 NLRB 132, 133
(1981). Accordingly, I find that Southdown additionally vio-
lated 29 U.S.C. § 158(a)(1) by Fruge’s July 10 ‘‘I heard’’
statements because they reasonably tend to create the impres-
sion of surveillance.
4. Patricia Reed Fruge—July 13, 1990
a. Pleadings
Complaint paragraph 8(b) alleges that about July 13 Ad-
ministrator Fruge ‘‘on two occasions, threatened’’ SCC’s em-
ployees with discharge because they engaged in union or
protected activities. SCC denies the allegation. Dischargees
Nedra Simmons and Tarshelda Green testified in support of
the allegation.
b. Nedra Simmons—July 12, 1990
The morning of July 12, after the July 11 demonstration,
Nedra Simmons returned to work. Apparently her supervisor,
Mary C. Rose, acted cool toward Simmons, contrary to an
earlier cordial relationship. Simmons therefore requested a
meeting with Rose, and they met in Rose’s office around 11
a.m. or so. Remarking that it appeared to her that Rose’s atti-
tude had changed toward her, Simmons asked what the prob-
lem was. After a question or two about whether Simmons’
husband was working, Rose asked why Simmons did not
quit. Simmons said Rose could fire her but that she was not
going to quit. Rose replied that she did not think Simmons
235SOUTHDOWN CARE CENTER
13 Because it had a place for Green to sign, the pink form tendered
Green apparently was SCC’s internal Personnel Action form used for
warnings or separations. That form for Green is not in evidence.
Copies are in evidence for some other employees, as I discuss later.
The separation notice which is in evidence as to Green (G.C. Exh.
16; 1:40–41) has no signature line for the employee. That form, as
I discuss later, obviously is a form Louisiana employers are required
to submit to the Louisiana Office of Employment Security (copy to
the employee) within 72 hours of an employee’s separation.
14 In the Government’s posthearing brief, the General Counsel fails
to articulate any theory of a violation. Presumably the theory is that
Fruge threatened to terminate employes simply because they signed
the petition.
15 Green testified that the number included at least eight recently
terminated employees. (1:121.)
would do something like this (not specifying what), and said
it was either her job or that of Simmons. Rose then sug-
gested that they meet with Fruge.
Apparently they left Rose’s office and went to that of
Fruge. Rose, however, first went in to speak with Fruge
alone. Fruge emerged shortly and asked what the problem
was. Simmons said she heard there were things going on that
‘‘we at the nursing home don’t know about.’’ Fruge replied,
‘‘Well, there are things that some people have to do and
some you don’t have to do. Just because one person does it
doesn’t mean that you have to do it. It could cause you to
lose your job.’’ Simmons stated that if Fruge was going to
fire her to do it then and not wait until the end of the day.
Replying that she did not know where Simmons got the idea
she was going to be fired, Fruge told Simmons she could re-
turn to work. Fruge did not mention the union, and Simmons
assumes Fruge was referring to the petition presentation.
(1:194–197, 200–201, 204–207.)
Food Service Supervisor Mary C. Rose denies that such a
conversation occurred. (2:357–359.) Fruge’s version is that
Simmons asked Fruge if she was going to fire her because
Simmons was in the union. According to Fruge, Fruge re-
plied that as far as she was concerned, organizations were
just like religions, they are personal preferences. (2:427–
428.) Fruge’s laid-back response is in marked contrast to her
earlier testimony that the mention of ‘‘union’’ probably (at
least before receiving both the election document and the
employee-union petition on July 11) would have given her
a ‘‘heart attack,’’ and that she wanted to ‘‘cry’’ when she
learned of the union presence. (2:387–388.) Although the
lack of shock may be explained by the intervening service
on July 11 of both documents, Fruge’s new-found faith that
organizations are like religions—personal perferences—is a
big change for Fruge in such a short time. I do not believe
Fruge.
Crediting Simmons, and disbelieving both Fruge and Rose,
I nevertheless shall dismiss complaint paragraph 8(b) as to
the remarks by Fruge. Even assuming that Fruge’s com-
ments, in the context of Simmons’ preceding conversation
with Rose, threatened Simmons with loss of her job for par-
ticipating in an event such as the July 11 demonstration, the
threat is not unlawful because, as I find later in this decision,
the July 11 demonstration was conduct unprotected by the
Act.
c. Tarshelda Green—July 13, 1990
The morning of July 13, Tarshelda Green testified, Admin-
istrator Fruge called her to Fruge’s office where, in the pres-
ence of DON Ann LeBouef and Larry Campbell, house-
keeping supervisor, Fruge informed Green, ‘‘Tarshelda, I’m
terminating you today because you came into the facility
with a group of people loitering.’’ Fruge said that everyone
who signed the July 11 petition would be fired. Showing
Green a pink termination paper, Fruge asked Green to sign
it.13 Green refused. Fruge then told Green to punch the clock
and get off the premises. Green concedes that no mention of
the union was made in the meeting. Not everyone who
signed the petition, Green testified, was fired. (1:113–116,
160–161, 175–176.) Neither Fruge nor LeBouef addresses
this meeting in her own testimony, and Campbell did not tes-
tify. SCC does not cover the matter in its posthearing brief.
I credit Green’s undisputed testimony.
Although I credit Green, I nevertheless shall dismiss com-
plaint paragraph 8(b) to the extent it relies on this conversa-
tion.14 The context of Fruge’s remark shows that she in-
tended to fire everyone who was part of the July 11 dem-
onstration, and that she identified the July 11 participants by
their names on the petition. For whatever reason, Fruge ap-
parently decided later that not all employees who signed the
petition participated in the July demonstration, or at least that
SCC could not match each name to the demonstration. In
any event, the Government makes no contention that SCC
fired all those who signed the petition. Fruge’s July 13 re-
marks, although a bit ambiguous, lend themselves more to
the interpretation I find rather than to a strained interpretation
that she was going to fire the signers simply because they
had signed the petition.
As Fruge’s remarks, as I find, tie the threatened discharges
to participation in the July 11 demonstration, the threat is not
unlawful because—as I find below—the July 11 demonstra-
tion itself was conduct unprotected by the Act. Having found
that Nedra Simmons’ July 12 conversation with Fruge suffers
from this same infirmity, I now shall dismiss complaint para-
graph 8(b) without qualification.
D. The July 11, 1990 Petition
Presentation/Demonstration
1. Preliminary events
As I have described, the evening of July 10 Union Rep-
resentative Schulman and the employees met at the home of
Yvonne Thomas and planned the petition presentation.
Around 3 p.m. shift-change time the following day the em-
ployees assembled on the parking lot of a nearby Ramada
Inn and walked the short distance (two buildings, 1:108–109)
to Southdown where they entered through the front doors. Of
the six employee witnesses, most estimate their numbers that
day as between 15 and 20, with Betty Boykins saying 10 to
15 (1:53) and Tarshelda Green specifying 30 to 35 (1:20)
based on her counting them one by one at the Ramada park-
ing lot.15 (1:182–183.) Fruge estimates the number that came
into the lounge or sitting room area as 20 to 25. (2:391.)
Resident Della Landry places the number at 25 to 30 (1:272)
or 20 to 25 (1:303.) I find that the number was approxi-
mately 25.
236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 In crediting Fruge and Landry (as earlier mentioned), I have
evaluated their testimony in light of the fact that SCC’s attorney,
Stephen D. Ridley, engaged in excessive leading when questioning
these witnesses of SCC. The witnesses usually expanded on the
points. Although the excessive leading was unfortunate and inexcus-
able, I find that it did not pollute the testimony in this case.
17 Landry’s oral description seems to place her next to the nurses’
station, but the point where she initialed her location on the diagram
(G.C. Exh. 24) is across the hallway from the nurses’ station. Any
difference is immaterial to her testimony.
18 Landry confirms that Green jerked the letter from Fruge’s hand.
(1:291.) Landry did not hear what Fruge and Green said to each
other. (1:273, 302-303.) Although several of the employee group
would have been standing between Landry and Green/Fruge, Landry
apparently was able to see well enough to observe what happened.
19 Fruge testified that the group was mumbling and chattering dur-
ing her reading. (2:392.) Landry testified that during Fruge’s reading
the group was quiet. (1:291, 299, 302.)
2. The presentation/demonstration
Tarshelda Green testified that she led the group through
the main entrance doors, across an entrance foyer, and into
the lounge or sitting room area. (1:109, 126.) A diagram
(G.C. Exh. 24) of the general area is in evidence. (1:117,
120.) Although estimates vary, it appears that the entrance
foyer extends from the front doors some 10 to 20 feet where
it opens onto the lounge or sitting room area. As one enters
the lounge area, to the immediate right is an open area lead-
ing into the corridor or hallway of wing 1. To the left is the
same for wing 2. As one faces from the foyer across the
lounge or sitting area, he or she sees a sofa in the center of
the lounge next to a building support pole. To the right (after
the entrance to wing 1) is another sofa sitting against a wall
behind which is the DON’s office (Ann LeBouef at the
time). Individual chairs are in the area.
Directly across the lounge from the foyer one sees a semi-
partition wall which separates the lounge area from the din-
ing and recreation areas. An open doorway is at each end of
the partition, and the partition wall ends about 2 feet short
of the ceiling. (1:46; 2:468.) A sofa sits against the partition.
As one looks to the left from the foyer (after the entrance
to wing 2), he or she sees a nurses’ station. That station ap-
pears (2:420) in the first picture when one opens
Southdown’s foldout pamphlet (R. Exh. 16) for the public.
Part of the center sofa appears there as does the carpeted
floor. The administrator’s office is immediately beyond the
partition on the left side (nurses’ station side) as one enters
the dining area at that end of the partition.
If we designate the front entrance as south and the parti-
tion between the sitting area and the dining area as north,
then the witnesses agree that as the Green group entered the
lobby/lounge/sitting area they met Administrator Fruge in
what would be the northeast quadrant of the lounge area. As
Green designates it on the diagram, it is by the pole and be-
tween the center and right side sofas. (1:165; G.C. Exh. 24.)
Those accompanying Green fanned out in the area so that the
group formed a semicircle around Green and Fruge who
were facing each other. This description is a composite of
the testimony which is undisputed as to the general location
description. Also, there is no dispute that there were at least
3 or 4 residents in the lounge. Green gives that number.
(1:110, 127.) Fruge places the number at 10 to 15. (2:398.)
Beyond Green’s count, the numbers are immaterial.
At this point the testimonial differences become both sub-
stantial and material. According to Green, the exchange be-
tween her and Fruge was as follows. Saying they had come
to deliver the petition to her, Green handed the petition to
Fruge. Fruge held it momentarily, looking alternately at the
paper and Green. Green then asked if Fruge wanted Green
to read it to her. Fruge said no, ‘‘I can read.’’ Fruge then
proceeded to read. All were silent. Finishing the reading,
Fruge handed the petition back saying, ‘‘That is all?’’
‘‘Yes,’’ said Green. Fruge said, ‘‘Thank you,’’ Green re-
sponded, ‘‘Thank you,’’ and the employee group turned to
leave. As they walked out the front doors, some employees
said, in a normal voice, ‘‘Union, Union, Union.’’ The whole
episode was done quietly and in no more than 5 minutes
total. (1:111–112, 122–126, 129–131.) Green puts the
elapsed time from the end of the petition presentation con-
versation to the time the last of the group had exited the
front doors at 30 seconds. (1:130.) Testimony of the other
employee witnesses is consistent with Green’s.
Fruge and resident Landry describe it differently.16 Rather
than coming in quietly, Fruge testified, the Green group en-
tered with a clatter, knocking over a decorative table in the
foyer, and voicing a sound like a mass grumbling and talking
among themselves. To Fruge the group appeared to be angry
and all ‘‘bowed up’’ ready for something to start, like a time
bomb ready to explode. Fruge stepped forward and the group
formed a semicircle around her. Fruge felt threatened. The
lounge is a sitting room for the residents, a tranquil area
where the residents can read and listen to music. Into this
lounge area came the 25-member Green group, blocking resi-
dents seated there. (2:391–395.)
Resident Della Landry, seated in her wheelchair by the
wall in the hallway entrance to wing 2 and across from the
nurses’ station (1:272, 274, 296–297),17 confirms Fruge’s
version that the Green group came in loud and talking among
themselves, becoming quiet as they passed her and entered
the sitting area. Landry recognized about half of the group.
(1:274, 292, 303.) There were so many in the group that they
were backed up to where the foyer opens into the lounge
area, with four or five of the group standing so close to
Landry that they were blocking her from moving had she
wanted to do so. (1:280, 294–295, 297.) Landry was fright-
ened by the large group and by not knowing the group’s pur-
pose. Because of the numbers, the noise, and facial expres-
sions, Landry was apprehensive, thinking the group had
come to start some kind of trouble in a place she considers
her home. (1:274–275, 284–285.)
When Fruge stepped forward, Green approached her,
Fruge testified. ‘‘What is going on?’’ asked Fruge. Green
handed her the petition. (G.C. Exh. 22.) When Fruge asked
what it was, Green told her to read it. As Fruge looked at
the petition, Green snatched it back and asked if Fruge de-
sired for Green to read it. Saying no that she could do so,
Fruge held out her hand and Green handed her the petition
again which Green read.18 (2:391–393, 405.) While Fruge
read the petition the Green group was essentially quiet.19
Completing the reading, Fruge (apparently handing the peti-
tion back to Green), said, ‘‘Is this it?’’ ‘‘Is this it? Huh! That
is enough,’’ Green responded, ‘‘Well, thank you. Would you
kindly leave the building?’’ Fruge replied, ‘‘No thank you,’’
Green answered. (2:395.)
237SOUTHDOWN CARE CENTER
20 Landry estimates 8 to 10 (1:278), but Fruge (2:402) puts the
number at a majority of the Green group.
At that point, Fruge (2:395–399) and Landry (1:273–274,
302) testified, the Green group, rather than leaving as Fruge
had requested, began milling around in the lounge area in the
presence of the residents who were there. As this was near
shift-change time, other employees had stopped to observe,
and some were standing in the hallway entrances to wings
1 and 2 or coming from the wings. (1:275–276; 2:399–400,
452, 461–463.) At least 8 to 10 members of the Green
group20 loudly began chanting ‘‘Union, Union, that’s where
it’s at,’’ giving the clenched fist power sign, clapping their
hands, and pointing at spectator on-duty employees. (1:273–
279, 293–294, 300; 2:396, 399–400, 403.) This went on until
they departed, and they continued their demonstration outside
on the front porch in the presence of residents there, Fruge
testified. (2:402, 404.) From the time Fruge returned the peti-
tion, or until Green took it back, until the last of the group
departed through the front doors, elapsed time was some 3
to 7 minutes (1:273, 279, 302, Landry) or, per Fruge (2:399),
‘‘at least a couple of minutes’’ before they began to move
out and at least another minute (2:403–404) before they actu-
ally were outside the building. ‘‘No way possible,’’ Landry
testified (1:279), did the elapsed time from end of the pres-
entation conversation to last person out the front doors take
only Green’s 30 seconds.
Landry and Fruge describe the postpresentation as loud,
and hollering, with Fruge describing the group as giving off
the witchy screams of a bunch of banshees. (2:400, 440.)
Nevertheless, the DON, Ann LeBouef, never heard a sound
even though she was in her office which abuts the lounge
on the right, or east, side. The door to her office is opposite
the partition separating the lounge from the dining area. Her
office walls are cinderblock, and the door is solid wood.
LeBouef was interviewing an applicant at the time. Her
(former) office and the lounge are carpeted. Her desk was at
the far end of her long office. Her window air conditioner
was noisy. LeBouef testified that she rarely heard anything
unless it was right outside her office door. (2:331–338.) The
General Counsel argues (Br. at 28) that LeBouef heard no
disturbance because none occurred.
Fruge testified that after the group left she had to reassure
several of the residents that all was well. They were startled,
confused, frightened, and upset, with at least one, and per-
haps two, crying. (1:19–23, 278; 2:400, 404–405.) Landry
went to her room and cried, but an hour later complained
about the event to SCC’s social worker, Janie Boudreaux.
(1:280, 286, 287.) Boudreaux made a brief written statement
(R. Exh. 5) on this the following day, July 12, in conjunction
with (the statement asserts) a complaint from Landry on an-
other matter not described in the record. (1:280, 287–289.)
Boudreaux did not testify. Although there is some question
about the sequence and dates of Landry’s visit or visits to
Bondreaux, I find that Landry complained about the July 11
presentation demonstration.
3. Discussion
On brief, both sides observe that the other did not call any
of the other various employees or residents who witnessed
the presentation. Each party was free to subpena any of these
witnesses. Although it seems unlikely that elderly residents
of a nursing home would be able to testify in an adversary
proceeding, the employee-spectators were equally available
to the parties. I draw no adverse inferences. As for the DON,
I credit LeBouef’s testimony that she heard nothing.
Although I generally have credited the Fruge/Landry ver-
sion of the presentation/demonstration, I also find it unlikely
that the demonstration was as long as their time estimates
suggest, and possibly not quite as loud. If the demonstration
had extended beyond a minute or so, to the point of appear-
ing ‘‘out of control’’ as Fruge describes (2:400), surely
Fruge would have gone for help, called the police, or both.
Apparently she did neither. The whole affair, from entry to
departure, probably lasted about 5 to 7 minutes.
But finding, as I do, that the demonstration probably was
no more than a minute or so, and probably not quite the loud
banshee shrieking Fruge describes, it is clear, and I find: (1)
there was a mass demonstration, (2) it was loud, (3) lasting
about one minute, (4) occurring in the presence of and actu-
ally blocking several residents, and (5) the whole event, from
entry until departure through the front doors, particularly the
postpresentation demonstration, was of such a nature that it
reasonably would be calculated to disturb residents of a nurs-
ing home—and did disturb and frighten them.
Earlier I cited Phase, Inc., 263 NLRB 1168, 1169 (1982),
as setting forth the standard for protected activity in health
care institutions such as nursing homes. The standard was
quoted and applied in Springfield Hospital, 281 NLRB 643,
678, 682–683 (1986), enfd. 899 F.2d 1305 (2d Cir. 1990).
Unlike Springfield Hospital, here the Green group dis-
turbed residents in their lounge-sitting room area. The ques-
tion perhaps would be close if the only issue was whether
the noisy entry was protected. Here, however, the size of the
group blocked at least one wheelchair resident, and perhaps
more, plus several other residents. If the noisy entry and size
of the group made the residents apprehensive, the demonstra-
tion that followed the presentation of the petition left the
residents frightened, confused, upset, and in some cases—
crying. I find that the conduct is unprotected by the statute.
E. The Discipline Imposed
1. Pleadings
Complaint paragraph 10 alleges that about July 11 SCC
issued (written) warnings to the following six employees:
Betty Boykins Marylyn Parker
Beverly Evans Nedra Simmons
Agnes Massey Elaine Williams
Paragraph 11 alleges that SCC fired eight employees on the
dates shown:
7-12-90 Betty Boykins
Beverly Evans
Vera Ann Hodges
Lanny Ostean
7-13-90 Tarshelda Green
7-18-90 Nedra Simmons
7-19-90 Debra Galmore
7-20-90 Gail Sylvester
SCC admits the factual allegations, although it disputes some
of the dates. The complaint also alleges that Southdown im-
238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 The no-access rule and the loitering rule are the same rule.
22 Fruge apparently was not able to identify all 25 members of the
July 11 Green Group, for only 10 employees were disciplined.
Hodges, recall, falls into a separate category.
posed the discipline because the employees had participated
in the July 11 event, thereby violating Section 8(a)(1) of the
Act, and/or because the employees had joined, supported, or
assisted the Union, thereby violating Section 8(a)(3) of the
Act. Southdown denies these conclusory allegations.
2. Facts
a. The 10 besides Vera Ann Hodges
It is undisputed that at least one motivating reason for
SCC’s imposing the discipline described on 10 of the 11 al-
leged discriminatees (excluding Vera Ann Hodges) was their
participation in the July 11 presentation/demonstration. Ad-
ministrator Fruge candidly acknowledges this fact. Fruge’s
acknowledgement divides the 10 names into 2 categories:
those only warned (category 1) and those discharged (cat-
egory 2), with Hodges falling into category 3 by herself. Al-
though the disciplinary documents bear the issuing names of
the supervisors such as LeBouef or Rose, because they did
not witness the incident they merely followed the instructions
of Fruge to issue the disciplinary writings. (1:18; 2:345,
360.) I therefore focus on Fruge’s testimony.
Fruge testified that she decided only to reprimand those
who had no prior warnings, or warnings for less severe in-
fractions, and to discharge those who had received prior writ-
ten warnings of substance. (1:18; 2:416, 444–445.) Two
warnings were issued, one for entering in violation of the no-
access rule, and one for violating the loitering rule after
being asked to leave.21 Although she divided the event that
way for the warnings, a single warning for the incident
would have resulted in the same discipline which did issue.
(2:428–429.) Fruge assigned the same weight of infraction to
each participant. That is, someone in the back of the group
was deemed just as guilty of the infraction as Tarshelda
Green who was the spokesperson for the group, for Fruge as-
signed no degrees of severity to differences in the participa-
tion.22 (1:17; 2:446–448.) As to prior warnings, Fruge gave
equal weight—as far as time—to all warnings that had issued
since her December 1989 arrival, whether issued in January
or June 1990. (2:445–446.)
Turn now to the categories. For category 1, Fruge testified
that employees Boykins, Evans, Massey, Parker, Simmons,
and Williams (the six named in complaint par. 10) each re-
ceived a written warning solely because each participated in
the July 11 demonstration. (1:10–12.) Category 2 consists of
seven dischargees, excluding Vera Ann Hodges. Fruge testi-
fied that these seven (Boykins, Evans, Ostean, Green, Sim-
mons, Galmore, and Sylvester, as named in complaint par.
11), were discharged partly because they participated in the
July 11 demonstration. (1:42–43.)
b. Vera Ann Hodges
Category 3 consists of Vera Ann Hodges. Fruge testified
that she decided to terminate Hodges on July 9 and called
for her to come to the office. Hodges, however, clocked out
without stopping at the office. As Hodges was off duty the
next 2 days she was not notified of her July 9 termination
until she came to work on Thursday, July 12. (1:12, 34–35;
2:421–423.)
Early in the hearing the parties stipulated to the authentic-
ity and admissibility of separation notices for the eight dis-
chargees. (1:39–41.) Two of the documents, (G.C. Exhs. 18
and 23) are for Hodges. Denominated ‘‘Personnel Action,’’
General Counsel’s Exhibit 18, dated July 9 and signed by
LeBouef and Fruge, has two choices, warning or separation.
The separation choice is circled. A portion of the form has
15 numbered reasons, such as insubordination (number 4)
and defective and improper work (number 12.) None of the
blocks by any of the 15 reasons is checked. There are eight
lines for Remarks. LeBouef and Fruge there describe, in gen-
eral terms, several reasons for her termination ‘‘as of this
date.’’
The signature area includes a line for the employee to sign
asserting that she has read the report. There is no signature
by Hodges. To the left appears a handwritten note, ‘‘Refused
to sign,’’ signed by ‘‘Donna White.’’ White appears to be
SCC’s coordinator for the nurses’ aides. During her testi-
mony, LeBouef did not address the Hodges matter. Donna
White did not testify. It seems clear that General Counsel’s
Exhibit 18 is an internal personnel form of SCC.
Turn now to General Counsel’s Exhibit 23. Signed by
LeBouef, the date she gives by her signature apparently is
intended to be July 12, but it actually reads: 7/112/90. The
form in evidence is a copy with black photocopying defects
covering some of the form’s title. However, a similar form
(G.C. Exh. 17b) for Debra Galmore reveals the title to be,
‘‘Separation Notice Alleging Disqualification.’’ The name of
Vera Hodges is stated with the last day worked shown as
July 12. The date of separation also is shown as July 12, al-
though the 12 appears possibly to be written over a 9. Of
blocks 1 through 9, number 5 is checked: Discharged, Mis-
conduct. In the space for remarks LeBouef (or someone for
SCC) wrote:
Ms. Hodges is being terminated on this date due to
violation of Company policy, insubordination and rude-
ness to residents and employees. She was also involved
on 7/11/90 in a group disturbance which resulted in
resident complaints and anxiety.
A preprinted certification follows: ‘‘I certify that the work-
er whose name and social security number appear above has
been separated from work and that the above information is
true and correct. I further certify that the individual named
above has been handed or mailed a copy of this notice.’’
This is followed by numbered spaces for the employer’s
name, telephone number, and (No. 9) ‘‘Employer Acct. No.’’
Spaces follow for address, signature (LeBouef), and date. Fi-
nally, the form ends with two boxes of preprinted instruc-
tions.
It is clear from the instructions, and from the form itself,
that General Counsel’s Exhibit 23 is a form provided by the
state of Louisiana to employers who are required to mail the
form, ‘‘Within 72 Hours after separation’’ of the employee,
to the Administrator, Office of Employment Security, Post
Office Box 44094, Baton Rouge, Louisiana. Failure to sub-
mit the notice within the specified time ‘‘may forfeit your
right to appeal.’’ The employer also is required to furnish a
copy to the employee ‘‘within 72 hours.’’
239SOUTHDOWN CARE CENTER
Asked by SCC’s counsel why the form (G.C. Exh. 23) had
been prepared, Fruge testified (2:423):
A. Because at the point in time that Vera Hodges
came in and demonstrated, she had not come into the
office to be terminated as she was asked.
Earlier when SCC’s counsel asked why Fruge had in-
cluded a reference on the form to the demonstration, Fruge
similarly testified (1:34):
A. Because she was terminated, and she was called
to the office to be terminated, and she left the building
instead of coming to the office.
And at that particular point in time, she had not been
informed formally that she had been terminated, so I
went ahead and put it down there so that I would be
able to distinguish myself, basically, and let her know
that it was not a rightful situation for her to come in
and demonstrate. I was trying to be fair with her.
Q. She was already terminated, though. Was that not
the case?
A. As far as we were concerned. Yes.
Although Fruge and SCC may not have intended to obfus-
cate the record, it would have aided clarity if the parties had
included in their stipulation that SCC had prepared and
mailed the July 12 form (G.C. Exh. 23) to Louisiana’s Office
of Employment Security in compliance with Louisiana law.
Fruge goes on to explain that the references in General
Counsel’s Exhibit 23 to insubordination and rudeness were
to matters on (existing as of) July 9, and that the ‘‘group dis-
turbance’’ refers to the July 11 event. According to Fruge,
Hodges would have been terminated for infractions existing
as of July 9 had she reported to the office as instructed on
July 9, and regardless of the intervening July 11 demonstra-
tion. (1:12; 2:424–425.)
The Government disagrees with Fruge’s claim that Hodges
would have been terminated on July 9 (or was terminated on
July 9 to be notified on July 12) regardless of her participa-
tion in the July 11 demonstration. Pointing to the reference
in the July 12 separation notice (G.C. Exh. 23), the General
Counsel asserts that such participation was a motivating rea-
son in SCC’s decision to terminate Hodges. If the July 11
demonstration was a protected event, then the General Coun-
sel has established a prima facie case, and it is SCC’s burden
to prove that it would have discharged Hodges even absent
her July 11 conduct.
As earlier noted, LeBouef does not address the Hodges
case, and Fruge makes no attempt to describe the incidents,
or specifics, underlying the shortcomings listed on the July
9 separation notice. That listing reads (G.C. Exh. 18):
Ms. Hodges is being terminated due to improper proce-
dure after being inserviced and counseled on proper
technique. She has left residents with soiled clothes &
diapers. She has repeatedly been insubordinate and rude
to coworkers and aide coordinators. She has been writ-
ten up four times for infractions of Company policy
and is being terminated as of this date from employ-
ment at this facility.
Vera Ann Hodges testified that she was employed at
Southdown from July 1977 to July 1990 as a nursing assist-
ant. (1:217.) Although Hodges is not asked whether she was
told (or was called) to report to the office toward the end
of her shift on July 9, she testified that, as she was working
on July 12, Donna White came and told her that Fruge and
LeBouef wanted to see her in LeBouef’s office. (1:224.)
Present during the July 12 interview in LeBouef’s office
were LeBouef, Fruge, and Hodges. Donna White was not
present and Fruge never spoke, Hodges testified. (1:229–
230.) After Hodges was seated, LeBouef said she had some
papers to discuss with Hodges. LeBouef then stated that
Hodges had taken two boiled eggs from the kitchen. To
Hodges’ questions of when this occurred and who said it,
LeBouef replied that such did not matter. Hodges explained
to LeBouef that she had brought the two boiled eggs to work
from her home.
LeBouef then stated that Hodges had been insubordinate to
Donna White. Hodges did not comment. On July 11,
LeBouef said, Hodges had left Brian Trosclair dirty. Hodges
made no response. Reading from papers, Hodges said
Hodges had come in with a loud group and also that Hodges
had been loitering. LeBouef did not tender the papers to
Hodges to read, and Hodges was not shown the July 9 termi-
nation form (G.C. Exh. 18). LeBouef stated that Hodges had
been written up and counseled four times. LeBouef said ‘‘As
of this day, July 12, you are terminated.’’ Hodges said thank
you and left.
Hodges testified that she was not counseled on July 9, that
no complaint was expressed about her work on July 9, and
that on July 12 she was not told she was discharged as of
July 9. She was off work on July 11, no one had ever coun-
seled her before July 9 about leaving Brian Trosclair dirty,
and she recalls no such incident, although, she concedes, it
could have happened. However, neither LeBouef nor Fruge
had ever suggested that she might be in jeopardy of dis-
charge. Hodges concedes she had no discussions with
LeBouef or any member of management about unions.
(1:224–231, 235–237.) I note that the first signature on the
petition (G.C. Exh. 22) which Green presented the day be-
fore (July 11) to Administrator Fruge is that of Vera Hodges.
As the General Counsel observes, Nedra Simmons, who
participated in the petition presentation, testified that she was
scheduled to be off work on July 16, 17, and 18. At 8 a.m.
on July 18 Mary Rose called Simmons in to talk. When Sim-
mons reported—on her scheduled day off—she was dis-
charged. (1:187, 198–200.) No SCC internal personnel action
form is in evidence for Simmons, but the Louisiana Office
of Employment Security form is (G.C. Exh. 20; R. Exh. 12),
and it reflects that Simmons was discharged on July 18 for,
among other items, violating SCC’s policies on ‘‘disturb-
ance’’ and ‘‘loitering.’’ Rose explains that those references
are to the July 11 demonstration. (2:362–363.)
In short, there was nothing to keep SCC from calling
Hodges in on one of her days off and terminating her if
Fruge truly had decided on July 9 to fire her. The record
does not show SCC’s past practice on this point.
At this point the question is whether it matters when Fruge
decided to terminate Hodges. If the discharge decision was
made on July 9, the July 11 demonstration is irrelevant as
to Hodges. But if the July 11 demonstration is protected, and
if the decision was not made until July 12 (as possibly sug-
gested by the July 12 separation form), then the Government
would have a prima facie case as to Hodges because the July
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 demonstration is given as a reason for the discharge. I
note that the General Counsel never established why SCC
would falsely single out Hodges for this separate category.
If SCC had an incentive to create a false termination action,
the July 9 document, why did SCC not do so as to at least
some of the others? SCC’s seemingly awkward version could
be yet another example of truth being stranger than fiction.
But I need not resolve these matters because I have found
that the July 11 demonstration was unprotected by the stat-
ute. Thus, Hodges now may be deemed part of a single
group of 11 employees discharged at least in part because of
an unprotected event—the July 11, 1990 demonstration.
3. Discussion
The General Counsel did not litigate the validity of the
prior instances listed by SCC on the separation notices as ad-
ditional reasons for the terminations. If those reasons are
false, or otherwise had been shown to be pretexts, the Gen-
eral Counsel possibly still could have won here. In this case,
however, the General Counsel confined the Government’s
case to one theory—that the July 11 presentation/-demonstra-
tion was protected conduct. Because the facts do not support
the Government’s theory, I shall dismiss complaint para-
graphs 10 and 11 from conclusory paragraphs 12 through 15.
CONCLUSION OF LAW
By coercively interrogating employees about their union
activities and sympathies, and by creating the impression
among its employees that SCC was surveilling their union
activities, Respondent Southdown Care Center has engaged
in unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
its unlawful conduct and to take certain affirmative action
designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]