NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal
errors so that corrections can be included in the bound volumes.
Inter-Disciplinary Advantage, Inc. and International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL–CIO. Case
7–CA–48706
March
15, 2007
DECISION AND ORDER
By Members Liebman, Kirsanow, and Walsh
On August 8, 2006, Administrative Law Judge George Alemàn
issued the attached decision. The
Respondent filed exceptions and supporting argument, the General Counsel filed
cross-exceptions and an answering brief opposing the Respondent’s exceptions,
and the Respondent filed an answer to the General Counsel’s cross-exceptions
and a reply to the 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 and
briefs and has decided to affirm the judge’s rulings, findings, and conclusions
and to adopt his recommended Order.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent,
Inter-Disciplinary Advantage, Inc., Midland,
Michigan, its officers, agents,
successors, and assigns, shall take the action set forth in the Order.
Dated, Washington,
D.C. March 15, 2007
______________________________________
Wilma B.
Liebman, Member
______________________________________
Peter N.
Kirsanow, Member
______________________________________
Dennis P.
Walsh, Member
(seal) National
Labor Relations Board
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
Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.
We
will not maintain or enforce a confidentiality rule that restricts you
from fully exercising the rights accorded to you under Section 7 of the
National Labor Relations Act; we will not create the impression that your union activities are
being kept under surveillance; we will not threaten you with discharge for engaging
in union activities; we
will not coercively interrogate you about your union activities; we will not prohibit
you from talking about the union at the workplace while allowing other
nonwork-related discussions; we will not unlawfully solicit and impliedly promise to remedy
your grievances in order to discourage your support for a union; we will not coercively
question you about discussions you may have had with agents of the National Labor
Relations Board; and we
will not ask you to provide us with copies of affidavits you may have
given to the Board.
We
will not discharge or otherwise discriminate against employees Kelly
Lashbrook, Linda Foran, Marie Abrakian, or any of you for supporting
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO, or any other union.
We
will not in any like or related manner interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Section 7 of the
Act.
We
will rescind and cease giving effect to the overbroad confidentiality
statement.
We
will, within 14 days from the date of this Order, offer Kelly Lashbrook,
Linda Foran, and Marie Abrakian full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously
enjoyed.
We
will make Kelly Lashbrook, Linda Foran, and Marie Abrakian whole for any
loss of earnings and other benefits resulting from their unlawful discharge,
less any net interim earnings, plus interest.
We
will, within 14 days from the date of this Order, remove from our files
any reference to the unlawful discharges of Kelly Lashbrook, Linda Foran, and
Marie Abrakian, and we
will, within 3 days thereafter, notify each of them in writing that this
has been done and that the discharges will not be used against them in any way.
Inter-Disciplinary Advantage, Inc.
Linda Rabin Hammell, Esq. and Jennifer Y. Brazeal, Esq., for the General Counsel.
Daniel A. Gwinn, Esq., for the Respondent.
Georgi-Ann Bargamian, Esq., for the Charging Party.
DECISION
Statement of the Case
George Alemán,
Administrative Law Judge. Pursuant to a
charge filed on June 22, 2005, and amended on July 28, 2005, by the International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL–CIO
(the Union), the Regional Director for Region 7 of the National Labor Relations
Board (the Board), on August 12, issued a complaint alleging that
Inter-Disciplinary Advantage, Inc. (the Respondent) had, in various manner, violated
Section 8(a)(1) and (3) of the National Labor Relations Act (the Act).
Specifically, the complaint alleges that the Respondent violated
Section 8(a)(1) by maintaining an overly broad confidentiality rule; prohibiting employees from engaging in
union talk while allowing other nonwork-related discussions; threatening to
discharge employees who supported or discussed the Union at the workplace;
interrogating employees about their union activities or sympathies; creating
the impression that it was keeping employee union activity under surveillance;
by soliciting employee complaints and grievances and implicitly promising to
remedy them in order dissuade them from supporting the Union; and questioning
employees about discussions they had with Board agents regarding this case, and
asking employees to provide it with copies of affidavits they may have given to
the Board. The complaint also alleges that the Respondent
violated Section 8(a)(3) and (1) by discharging employees Linda Foran, Kelly
Lashbrook, Marie Abrakian, and Tammy Bibbee because of their union activities,
and to discourage employees from engaging in such activities. By answer dated August 16, the Respondent
denied engaging in any unfair labor practices.
A hearing in this matter was held in Detroit, Michigan,
on separate dates between October 31 and December 15, at which all parties were
afforded a full and fair opportunity to be heard, to present oral and written
evidence, to examine and cross-examine witnesses, and to argue orally on the
record. Based on the entire record in
this proceeding, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Respondent, and
the Charging Party, I make the following
Findings of Fact
i. jurisdiction
The Respondent, a corporate entity with its main office in
Midland, Michigan,
is in the business of providing licensed adult foster care services in the
State of Michigan. During the fiscal year ending September 30,
2004, a representative period, the Respondent had gross revenues in excess of
$200,000, and during the same period, purchased and received at its Michigan facilities goods and materials valued in excess
of $50,000 directly from points located outside the State of Michigan.
The Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that
the Union is a labor organization within the
meaning of Section 2(5) of the Act.
ii. the
relevant facts
A.
General Background
The Respondent operates four residential homes for adults
with disabilities and/or mental illnesses, including the Morowske Home located
in Shelby township, Michigan, the site of the alleged complaint
violations. The Respondent is managed
and run by its executive director, Deborah Pettyplace. Below Pettyplace in the
managerial/supervisory chain of command is a program coordinator who has
supervisory responsibility over several homes.
Each home is, in turn, managed and directly supervised by a home
supervisor. At all times relevant
herein, Diane Haack served as the home supervisor for the Morowske Home, and answered
to Diane Davis, the program coordinator for the Morowske Home and Lillian
House, another of Respondent’s homes. Alleged
discriminatees Lashbrook, Foran, Abrakian, and Bibbee, all worked at the
Morowske Home prior to discharge. Employees
Randi Schwark, Mariana Jenkins, Kelly Hibbs, and Tracy Gevedon were also employed
at the Morowske Home at the time. The
Respondent also has a medical coordinator at the Morowske home. Foran was medical coordinator until April 1,
at which time she was replaced by Lashbrook. (Tr. 61.) The medical coordinator’s duties include recording
medications prescribed by doctors to Morowske’s consumers into the Home’s medication
records.
The Morowske Home houses approximately six consumers or
residents who are cared for and looked after on a 24-hour basis by a direct
care staff of 10 employees who work either a morning shift (6 a.m.–2 p.m.), an
evening shift (2–10 p.m.), or a night shift (10 p.m.–6 a.m.) Employees are expected to record the time
they begin and end their particular shift on a payroll or log sheet prepared by
the Morowske Home supervisor twice a month.
They are also required to sign the timesheet. Pettyplace and Davis both testified that
under established Company policy, employees are required to sign the payroll
sheet at the end of the pay period. (Tr.
888; 1611.) While the Company’s employee
handbook does indeed state that employees “must sign the timesheet,” it makes
no mention of when the signing was to occur, e.g., beginning or ending of the
pay period. Further, Haack testified
that when she was first hired, she was instructed by the former Home manager,
Stephanie Gore, to sign the timesheet at the beginning of the pay period, that
she has always done it this way, and that, when she became Home manager, she
and other employees adhered to this practice.
Haack’s testimony in this regard was corroborated by employees Lashbrook
and Foran. (Tr. 66; 87; 335; 401.) Thus, while employees were obviously required
under the employee handbook to sign the payroll timesheet, I am not convinced,
particularly since the handbook is silent on the matter, that they were
expected or required to do so at the end of the pay period, as claimed by Pettyplace
and Davis. As more fully discussed
infra, neither Pettyplace nor Davis were particularly credible witnesses. I find instead that, as testified to by
Haack, Lashbrook, and Foran, employees were told and expected to sign their
names on the payroll timesheets at the start, rather than the end, of the pay
period, and that this has been the accepted practice at the Morowske Home.
The direct care employees’ functions and duties include
bathing the Morowske Home residents, cooking for them, providing them with
medication, occasionally scheduling medical appointments for residents and,
when necessary, taking residents to medical appointments and other locations,
including a facility known as the clubhouse or friendship house, in a Company-owned
van.
Employees utilizing the company van are required to record in a van log
kept inside the vehicle their destination, the amount of gas in the vehicle at
the time, the number of miles on the odometer before and after the trip, and
his or her initials.
In March, Foran was the medical coordinator at the
Morowske Home. Haack testified that
sometime in March, Pettyplace asked her to prepare a health care chronological
for Dugal showing his doctors’ appointments for the month. Pettyplace admits making such a request,
explaining that she did so “just to look at
them, to scan them to see what was on them, to see where the consumers had
gone.” (Tr. 854.) According to
Pettyplace, the chronological form has been in use at the Morowske Home for as
long as she could remember. She contends
Haack seemed to know what form she was referring to when she made the
request. Lashbrook, however, testified
that she had not seen the health care chronological form before April, when she
became the medical coordinator.
Haack nevertheless complied with Pettyplace’s directive
and instructed Foran, the Morowske Home medical coordinator at the time, to
complete the health care chronological for Dugal. Foran testified that in late March, as
instructed by Haack, she filled out a health care chronological for Dugal
showing doctors’ appointments that had taken place or were scheduled to occur
from March through April. (See GC Exh. 4.) In completing the health care chronological,
Foran obtained the information regarding scheduled doctors’ appointments from a
large calendar that was generally used to record appointments and other
matters. Regarding General Counsel
Exhibit 4, Foran testified that the entry therein showing Dugal scheduled for a
physical examination with a Dr. Lovy was entered long before the date of the appointment,
and that the appointment itself, like most other such appointments, are
scheduled a month, sometimes two months, in advance.
In late February or early March, Abrakian, Lashbrook, and
Foran began discussing among themselves the benefits of having, and the need
for, a union to represent them. In late
March, Abrakian called several of the Union’s Regional
offices to get information on how she and the others could organize themselves. As a result of those phone calls, Abrakian
agreed to meet on April 4, with a representative of the Union at the Union’s Local 155 office.
On March 28 and 29, Abrakian contacted all of her coworkers at the
Morowske Home to advise them of the meeting, and, with the exception of Jenkins
who did not return her call, received positive responses from all. Abrakian testified that she also left a note
in each employee’s mailbox at Morowske Home notifying them of the time and
place of the union meeting. The meeting
was to be held on April 4, at the Union’s
local hall situated some 22 miles round trip by car from the Morowske Home. Lashbrook and Foran corroborated Abrakian’s
account of having had a discussion in March about organizing themselves, and of
being told by Abrakian of the April 4 union meeting. Bibbee likewise admits receiving a call from
Abrakian advising her of the April 4 union meeting.
In late March, Haack received from Davis
a copy of the Morowske Home budget, something she had been requesting from Davis for some time. Haack claims that she, and Lashbrook, who preceded
her as Morowske Home supervisor, had been asking to see the budget because of
concerns they had that things were not being taken care of the way they should
have been. (Tr. 634; see GC Exh. 5.) Haack recalls Davis handing her the budget, along with
several other documents, and stating, “I finally got the budget for you.” Other than asking Haack to look over the
budget and to tell her what she thought about it, Davis did not instruct Haack
on how or where it should be retained.
As she was preparing to leave the Home for the day when she received the
budget and other documents, and had consequently locked her office, Haack took
the items given to her by Davis
that were labeled “confidential” in red and slid them under her office
door. As to the budget, which was not
marked confidential, Haack simply placed it on a counter situated between the
kitchen and a sitting room, an area generally open to all other employees, as
well as consumers and visitors, and where items such as a stapler, fax machine,
stamp pads, etc., are kept. The next
day, she reviewed the budget with Lashbrook and made some notations on it.
Abrakian testified that, while working her shift, she came
across the budget on the counter where Haack had left it. She reviewed it and found it of some interest
because of suspicions she had that funds were being misappropriated at the
Morowske Home. Abrakian believed that
the budget was a public document because, in her view, the Respondent was a nonprofit
organization. Abrakian photocopied the
budget and took the copy home with her, leaving the original on the
counter. Abrakian denied sharing or
showing the budget with anyone else. She
did admit that when first hired, she signed a confidentiality statement. She also recalls seeing a copy of the employee
handbook containing Respondent’s policies but claims she never actually
received a copy. One policy in the
handbook prohibits the removal by employees of property, equipment, or supplies
belonging to the Respondent without express permission from the employer or supervisor. Because of her belief that the Respondent was
a nonprofit organization and that information pertaining to the Home was a
matter of public record, Abrakian did not believe her taking the budget
amounted to a violation of the above policy.
The April 4 union meeting was scheduled for 11 a.m. Lashbrook, Foran, and Home Supervisor Haack
reported for their morning workshift that day at 7 a.m. Both Lashbrook and Foran asked and received
permission from Haack to leave early that day as both planned on attending the
11 a.m. union meeting. Lashbrook told
Haack her reason for leaving early was to attend to some banking problems,
while Foran did not cite any specific reason for wanting to do so. The record reflects that Abrakian, on
Saturday, April 2, left a note for Haack in the staff log stating that resident
Daniel Dugal seemed ill that day and had complained of having an earache and
that she or someone else would check on Dugal again the following day. (R. Exh. 6.) Haack corroborated Lashbrook’s and Foran’s account
that they requested and were granted permission to leave work early on April 4.
(Tr. 587–588.)
On arriving to work on Monday, April 4, and learning of
Dugal’s earache complaint, Haack advised Lashbrook and Foran that, when Dugal
woke up, they should question him to see if anything was wrong, and try to schedule
him to be seen by his doctor. Lashbrook testified that because Dugal already
had a doctor’s visit scheduled for April 7, for a physical exam, she called the
doctor’s office between 8:30–9 a.m. on April 4, to see if Dugal’s April 7
appointment could be moved up to April 4, so that Dugal could be seen that day. The doctor’s receptionist, however, told
Lashbrook that if she could get Dugal into the office between 10–10:30 a.m.,
she might be able to get Dugal seen by a different doctor, but that any such
visit could not be combined with Dugal’s April 7 scheduled physical exam. (Tr. 72.)
Around 8:30 a.m. that morning, Haack was told by Foran that Lashbrook
had been unable to secure an appointment for Dugal with his physician that
morning. Foran recalls Lashbrook passing
on this information to her around 8 a.m.
Lashbrook admitted conveying this information to Foran but not to Haack.
Both Lashbrook and Foran testified that between 9:30 and
10 a.m. that morning, they used the Company van to drive Dugal and three other
residents to the clubhouse. They testified that they went directly to the
clubhouse and nowhere else. Lashbrook
could not recall filling out the van log, but believes she may have done so on
April 4. She explained, without contradiction,
that employees do not always record every stop they may make in the Company
van. By way of example, Lashbrook
pointed out that employees may, at times, take residents to a K-Mart to cash
their checks, or to get cigarettes and not record these stops in the van
log. She could not recall, however, any
employee ever being disciplined for recording inaccuracies in the van log.
On arriving at the clubhouse, Lashbrook and Foran helped
the residents off the van, and handed them their lunches and cigarettes. The whole process, according to Lashbrook and
Foran, took only a few minutes. They
then drove back to Morowske Home, arriving around 10:30 a.m. When they returned to Morowske Home,
Lashbrook gave Haack her set of Company keys.
Both Lashbrook and Foran testified, without contradiction, that, shortly
thereafter, they got into Lashbrook’s car and drove to the union meeting. Although she and Foran signed the log sheet
when they first reported for work that morning, neither signed out for the day
on April 4. Haack testified that she, in
fact, filled in Foran’s exit time for April 4, on April 15, the end of the
payroll period because Foran, at the time, was out of town and could not be
reached. She explained that, when she
did so, she did not pay attention to the fact that Foran had left early on
April 4.
Lashbrook and Foran arrived at the union meeting some 15
minutes late, e.g., around 11:15 a.m.
Lashbrook observed that employees Abrakian, Bibbee, and Schwark, were
already there, as were the union representatives. Abrakian gave employee Schwark a ride to the union
meeting in her car. Abrakian admits
taking the copy of the budget with her to the meeting along with some other documents,
and claims that, when she arrived at the meeting, she placed the additional
papers she carried with her on top of the budget and that the budget remained
hidden from view during the entire meeting.
At the meeting, employees discussed the need for a union
and the changes they would like to see regarding wages, benefits, etc. Abrakian does recall telling one of the union
representatives at the meeting, Tanya Mahn, that she had a copy of the
Respondent’s budget with her and expressing her belief that funds were being
misappropriated, but that Mahn said she did not want to see it. (Tr. 466–471.)
At some point during the meeting, Lashbrook and most of the employees
signed authorization cards for the Union. (GC Exh. 6.)
She and other employees also picked up some union stickers which they
placed on their vehicles following the meeting which ended around 1 p.m.
Lashbrook and Foran both testified, without contradiction,
that, after the union meeting, they drove back to Morowske Home in Lashbrook’s
car where Lashbrook’s mother was waiting to accompany Lashbrook to the
bank. Lashbrook and her mother drove to
the bank in the latter’s car and, after taking care of the banking business,
drove back to Morowske Home so Lashbrook could retrieve her car.
Following the meeting, Abrakian drove Schwark to
work. Abrakian worked the afternoon
shift on April 4, and was the one who picked up and returned Dugal and the
other residents from the clubhouse to the Morowske Home later that afternoon. She testified that she and Romain were the
ones who prepared lunch for the residents that day. She further recalls that after returning to
Morowske Home, she worked the afternoon shift with Romain and that, at one
point as they were preparing meals, Romain asked her how the union meeting had
gone, and that she answered it had gone fine.
Abrakian had not previously told Romain about the meeting. (Tr. 475.)
Romain was not asked about, and consequently did not deny, Abrakian’s
testimony in this regard. Accordingly, I
credit Abrakian’s above testimony.
Lashbrook testified that on arriving at the Morowske Home,
she had a conversation with Romain initiated by the latter. She claims that after asking her about her
banking problems, Romain asked Lashbrook if she had attended the union meeting
earlier that day. Lashbrook did not
recall having previously told Romain about the meeting. When Lashbrook replied that she had, Romain
stated that he did not think the Union was a
good idea. Lashbrook, who characterized
her relationship with Romain as somewhat friendly, commented that she was all
for the Union.
Romain then told Lashbrook that his father or uncle hated the union,
that despite paying money the union was not doing anything for them, and that
they wanted to get rid of the union but were having trouble doing so. Lashbrook remarked that she had no problem
with that. Romain went on to say that he
was telling her this so that she would understand that she was not going to get
anything from the Union, and that she should not expect a raise simply because
the Union was around. Lashbrook replied that it can’t get any worse
than what it already was, and that Romain was alone in his views because
everyone wanted the Union. Romain responded that employee Randi Schwark
was not sure about it. Romain then told
Lashbrook that he was worried, and that she should be careful. (Tr. 105.)
Romain recalled having a conversation with Lashbrook about
the Union sometime in April. He testified, however, that it occurred while
they were both on break on the porch of the Morowske Home, and that it was
Lashbrook, not he, who initiated the discussion. According to Romain, Lashbrook began the
conversation by asking him what he thought of the Union
and how it worked, and whether he thought it would be good for the
Company. Romain purportedly told
Lashbrook that he had discussed the Union with his father, that his father explained
he had not had good experiences with the Union,
and that there were pros and cons to having a union. The conversation, he contends, ended at that
point. Romain denied knowing what
precipitated this particular conversation with Lashbrook, and denies having any
further conversations with her about the Union, including presumably the April
10 or 11 phone conversation Lashbrook claims she had with Romain about telling
employees they could be fired for supporting the Union. (Tr. 1404–1405.)
Prior to this April 4 conversation with Lashbrook, Romain,
in late March or the beginning of April, had union-related discussions with
other employees. Foran, for example, testified
that in late March, before employees began expressing any interest in a union,
Romain approached her and remarked that he didn’t know why Foran wanted to have
a union come in because it wouldn’t do the employees any good. (Tr. 266.)
Foran admitted to having previously told Romain, about a year earlier,
of her interest in having a union. In
response to Romain’s query, Foran stated that a union would be good for the
employees working there, and would be good for employees even if she were no
longer employed at the facility.
Romain recalled having a conversation with Foran about the
Union, but claims it occurred sometime in
April, and was initiated by Foran as they drove together in the Morowske
van. He testified that Foran commented
that she wanted to make a better place at
Morowske for the next people that came to work there. Romain claims he simply told Foran that that
was a nice way to look at it, and that the conversation ended at that
point. (Tr. 1401.) Romain’s version makes little sense. From his limited version of what Foran
purportedly said to him, it is difficult to see how Romain would have understood
what Foran was referring to. One might
reasonably have expected Romain to ask Foran what she meant by her remark or
seek some clarification as to its meaning, for while Romain testified that
Foran was referring to a union, I fail to see how he could have gleaned as much
from his description of what Foran said to him.
His alleged response to Foran, that what the latter had said was a “nice
way to look at it,” makes even less sense.
I found Romain’s version of his conversation with Foran unconvincing and
credit Foran over Romain.
Bibbee testified that, in late March, while she, Hibbs,
Gevedon, and Romain were engaged in casual conversation either in the sitting
room or the med room at Morowske Home, Romain remarked that if the Company
found out they were for a union, they could be terminated. (Tr. 411.)
Bibbee did not respond to Romain’s comment. Hibbs similarly testified to being in the
Morowske kitchen late one evening in March while Bibbee, Gevedon, and Romain
were present, and commenting that it was not a good idea that employees didn’t
get raises or any holiday pay or other perks.
Romain, she recalls, responded that the company would try to mess with,
or fire them. Hibbs also claims to have
had another conversation with Romain about the Union
a few days later on the back patio of the Morowske Home. She testified that Romain initiated this conversation
by asking how she felt about the Union, and
that she replied that it was a good idea.
Romain then told her that he and his father had discussed the Union, and
that his father expressed the view that the Union
would not be able to help the employees because the Respondent was not a big
organization. (Tr. 527–528.)
Romain denied having any discussion with Bibbee about the
Union, but claims to have heard Bibbee say that “everybody better be careful
with their jobs so they don’t get fired due to the Union.” Bibbee made this comment, he contends, sometime
in April in the Morowske kitchen. He
claimed at the hearing that he did not respond to Bibbee’s comment and simply
walked away. However, in an affidavit he
gave to the Board prior to the hearing, and shown to him during cross-examination,
Romain admitted he responded to Bibbee’s comment by stating that his father had
said the Union would not be a good idea. Romain denied ever asking Hibbs how she felt
about the Union, saying that she could be fired for joining a union, or stating
that the Company would “mess with them” if it found out employees were
interested in a union. (Tr. 1403; 1416;
1431.) I credit Bibbee and Hibbs over Romain. From a demeanor standpoint, Romain came
across as insincere and as less than candid in his description of events. His long pauses before responding to
questions, particularly during cross-examination, reflected a certain
insecurity and unwillingness on his part to give the answer required to the
questions posed to him. In sum, I found
Romain not to be particularly credible.
Following their conversations with Romain, Bibbee and
Hibbs each separately called and asked Haack if they could be fired for
supporting the Union. Bibbee recalls Haack saying that she did not
know but did not think so, while Hibbs recalls Haack assuring her she could not
be fired. According to Hibbs, Haack then
posted a short note on the Company bulletin board stating that no one could be
fired for supporting the Union. (Tr. 529.)
Bibbee’s and Hibbs’ above accounts, that they called Haack
for advice were corroborated by Haack.
Thus, Haack testified that both called her on separate occasions on
April 8, to ask if they could be fired for joining a union, mentioning that
Romain had conveyed this to them. Haack
recalls telling Bibbee that she did not know and that Bibbee should ask
Lashbrook about it. Haack, however, told
Hibbs that she was not going to lose her job.
Haack contends that following her phone conversations with Bibbee and
Hibbs, she called Romain and told him that he should not be telling people that
they could be fired for joining a union, that what employees did was really “none
of our business,” and that “we needed to just stay out of it and let them do
what they needed to do.” Romain, she
further contends, denied making such comments to Bibbee or Hibbs. (Tr. 116.)
Romain was not asked about, and consequently did not deny, being told by
Haack to refrain from telling employees they could be fired for joining a
union, and not to get involved in the employees’ organizational activities.
In response to Bibbee’s and Hibb’s concerns, Haack, on
April 9, posted a notice on the Morowske Home bulletin board notifying
employees that they could not be fired for trying to start a union. (Tr. 613.)
She contends the posting remained for 1 or 2 days after which it was
taken down. She denied removing the
posting or knowing who might have done so.
B. The
Alleged Employee Complaints
Davis
testified that for weeks prior to April 14, employees had been expressing concerns
and complaining to her about policies and procedures not being followed at the
Morowske Home. As more fully discussed below,
an employee meeting to address these concerns was held on April 14. According to Davis, these complaints came in
the form of phone calls to her, and in written form, and included allegations
that Haack was not at the Home during various times of the day, that she showed
favoritism to certain staff members, that a staff member was babysitting for
the supervisor and receiving favors in return, that Haack was fudging the timesheet
and signing people in and out, that staff members were getting paid for not
being in attendance at the Home, and that the Morowske van was being used for
personal business. Regarding the
personal use of the van, Davis
testified to receiving phone calls stating that the van was seen at a Wal-Mart,
and that the Morowske consumers were all standing outside the Wal-Mart with no
staff around, and that the van had been seen at another location when consumers
were supposed to be at a doctor’s appointment.
(Tr. 1462–1463.) Davis, however, could not
recall who reported these two incidents to her, or when she purportedly
received these reports.
Davis
also testified to receiving a phone call from Schwark reporting that she had
seen the Morowske van at the April 4 union meeting, and that Romain reported to
her that Schwark told him she had seen the van at that meeting. Davis
had no recollection of when she actually received these reports from Schwark
and Romain. However, if these reports to
Davis by
Schwark and Romain were in fact made, presumably they would have occurred on or
after the April 4 union meeting, and no later than April 8, since both Davis
and Pettyplace claimed to have discussed this alleged incident at a meeting
held between them on April 8. Davis testified that on
receipt of Schwark’s phone call, she notified Pettyplace about the van being
seen at a union meeting. Davis could not recall
when she may have notified Pettyplace, and stated only that it would have occurred
“promptly” after her conversation with Schwark. She contends that what concerned her about
Schwark’s report was not that the van was at a union meeting, but rather “that
there were no consumers in the van.” (Tr. 1475; 1557.) Davis
claims that she asked Schwark to prepare a written statement setting forth her
concerns and observations, and that Schwark did so. The written statement allegedly prepared by
Schwark was received into evidence as General Counsel Exhibit 33.
Not only was Davis unable to say when she purportedly received General
Counsel Exhibit 33, she was likewise unable to recall when she allegedly
received written reports from Romain and Hibbs, stating, as she initially did
regarding General Counsel Exhibit 33, that she did not recall if they were
given to her before or after the April 14 employee meeting. (Tr. 1461; 1554–1557; 1572; 1596.)
Davis
testified that she began looking into these complaints and kept Pettyplace
abreast of her investigation. She
claimed that, during her investigation, she learned from Haack, presumably
sometime after April 4, that Dugal was taken to the doctor on April 4, by
Lashbrook and Foran for an earache and stomach ailment. Davis,
however, had no recollection when she might have been told this by Haack, that
is, whether Haack told her before or after the April 14 employee
interviews. It is not clear, therefore,
if Haack’s information about this alleged April 4 doctor’s visit was what
prompted Davis
to look into the visit itself.
Obviously, if she obtained the information from Haack after the April 14
interviews, then that information from Haack could not have been what prompted Davis to look into the
April 4 doctor’s visit. Davis does contend that on
April 6, she asked Lashbrook about the doctor’s visit, and that Lashbrook told
her she and Foran had taken Dugal to the doctor on April 4, and that Dugal had
been prescribed some Senokot for his bowel problem. Lashbrook, however, denied saying any such
thing to Davis. The parties stipulated at the hearing that
Dugal was, in fact, not taken to the doctor on April 4.
Davis
nevertheless claims that based on the above information, she reviewed the
documents that would normally be associated with a doctor’s visit, and became
suspicious about the alleged April 4 doctor’s visit. Thus, on reviewing the health care
chronological where doctors’ visit were generally recorded, she found a
notation for an April 4 doctor’s visit, but noticed that the date “April 4,” appeared
to have been squeezed in between other dates as if it had been inserted after
the fact to reflect that such a visit occurred.
(See GC Exh. 4.) The manner in
which the date entry was made, according to Davis, seemed out of place and not consistent
with the other entries. She claims she
also looked for a physician’s order or script to see if Dugal had been
prescribed some medication as a result of the April 4 visit, but found
none. She likewise found no entry on the
“med” sheet for April 4, but did find that an entry for “Senokot” had been made
pursuant to another visit by Dugal to the doctor on April 7. Davis
purportedly also reviewed the van log to see if a trip to the doctor had been
made on April 4. The van log did contain
an entry showing a purported trip to the doctor that day. (See GC Exh. 3.) She claims, however, that when she reviewed
the communications and staff logs (R. Exh. 26), which would normally show that
a doctor’s visit had been scheduled for April 4, she found they contained no
such entries.
According to Davis,
if, as she purportedly was told by Lashbrook, Dugal received the medication Senokot
during the alleged April 4 visit, then an entry for the Senokot medication
should have been recorded in the medical log, and there should have been a
doctor’s script showing that Dugal was prescribed Senokot during the April 4
visit. She claims that following her
discussion with Lashbrook, she searched the medicine cabinet for the Senokot
and, on not finding any, discussed it with Haack and recommended that Lashbrook
be written up for not following proper procedure. Lashbrook was indeed issued a write-up by
Haack on April 7, which Lashbrook signed on April 8, for failing to record the
Senokot medication in the medication book which, according to the write-up,
Dugal allegedly received on April 4. (See
R. Exh. 30.)
As to the write-up she received from Haack on Davis’ instructions,
Lashbrook testified that she was not at work on April 7, but did sign it the following
day, April 8, because, as medical coordinator, she was the one responsible for
ensuring that such entries are made. She
claimed that Haack was simply following Davis’
directive to issue her a write-up and did not know why she was asked to do
so. She further contends that on
learning that she (Lashbrook) had not worked on April 7, Haack unsuccessfully
sought to contact Davis
for explanation. Lashbrook contends that
she did not pursue the matter because the write-up was never actually placed in
her personnel file. (Tr. 245; 248.)
Davis
contends that as part of her investigation into the April 4 doctor’s visit, she
called the doctor’s office and was told by the receptionist that the doctor was
not in on that date and that no such visit occurred. Davis
had no recollection of when she made those calls to the doctor’s office. She further claims to have gone to the friendship
house and spoken with the director who reviewed the sign-in sheet and confirmed
that Dugal had arrived and signed in at the facility at 10 a.m. on April 4, the
time when Dugal purportedly was at the doctor’s office. Davis
purportedly also received a copy of the friendship house sign-in sheet. (See R. Exh. 10.) Davis,
however, could not recall when she had this conversation with the director at friendship
house, explaining only that it occurred before Lashbrook and Foran were fired
on April 25, nor did she recall when she first saw Respondent Exhibit 10. (Tr. 1560.)
Davis contends that on April 8, she met with Pettyplace to discuss her
investigation, and that, following that meeting, she continued her investigation
by double-checking the documents she had earlier reviewed, calling the doctor’s
office one more time to confirm that no visit occurred on April 4, and by
asking employees if they knew whether or not such a visit had taken place. She recalls asking Schwark what she knew
about the visit but Schwark purportedly had no information to give her. Based on her review of the above-described
documents and discussions with the doctor’s office, Davis concluded that there had been no
doctor’s visit on April 4.
C. The
Events of April 8
On the morning of April 8, Davis
met with Pettyplace at the latter’s office to discuss the progress of Davis’ investigation into
employee complaints. Davis claims that at this meeting, she
provided Pettyplace with the documents she obtained during her investigation,
including the written statements she had obtained from employees. Davis
recalls that at one point during the meeting, Pettyplace phoned Haack to
discuss several matters, including the amount of overtime being worked at
Morowske Home. Davis claims she was able to hear what Haack
was saying to Pettyplace during that phone conversation because Pettyplace
placed the call on speakerphone. She recalls
Pettyplace asking Haack to fax her copies of various documents, including the
health care chronologicals, the van logs, and consultation referral forms so
that she could determine if the overtime was justified. At the hearing, Davis identified Respondent Exhibit 31 as the
set of documents Haack faxed to Pettyplace that day. According to Davis, at one point during their
phone conversation, Pettyplace asked Haack if Dugal was seen by a doctor on
April 4, and Haack answered that Dugal “must have went [sic] to the doctor,”
that Lashbrook and Foran took him to the appointment, and that she didn’t do so
because she was busy at a meeting. (Tr.
1481.) After some discussion with Haack
about the doctor’s appointment and being told by Haack that she knew little of
what had gone, Pettyplace, according to Davis,
commented that Haack did not even know where the van was on that day. (Tr. 1481; 1486.) Davis
testified that after she and Pettyplace reviewed the faxed documents they had
gotten from Haack, they agreed to hold a meeting with employees on April 14, to
fully look into the employee complaints.
Pettyplace, according to Davis,
then called Prevatt “and gave her some information” as to the employee
meeting. Davis subsequently instructed Haack by phone
to notify the Morowske staff of the meeting.
Pettyplace provided the following account of her April 8,
meeting with Davis. Davis came to
see her that day to discuss the employee complaints, and to provide her with
various documents which Davis
purportedly obtained in the course of her investigation into the employee
complaints. Davis also told Pettyplace of the report she
had received about the Company van having been seen at a union meeting on April
4, and about Abrakian having had a copy of the budget with her at that meeting. Pettyplace could not recall when she first
learned of the van being spotted at the union meeting, claiming initially that
Davis told her during their April 8 meeting, but stating, on cross-examination,
that she was not sure when she first learned of it. Although she believes Davis identified the individual who had given
her the report about the van, Pettyplace was unable to recall or name the
individual. (Tr. 995.) Pettyplace contends she instructed Davis to ask Schwark to
provide a written statement about seeing the van at a union meeting, and that
Schwark in fact did so in the form of General Counsel Exhibit 33.
Pettyplace’s testimony on when she first saw General Counsel
Exhibit 33 was confusing and seemingly contradictory. Thus, on direct examination, Pettyplace
identified General Counsel Exhibit 33 as one of the documents she and Davis
reviewed and discussed in deciding whether or not to hold a meeting among
Morowske Home employees. (Tr. 846.) Both Davis and Pettyplace agree that the
decision to conduct an employee meeting on April 14, was made during their
April 8 meeting. Consequently, if Pettyplace
is to be believed, then she and Davis first saw and discussed General Counsel
Exhibit 33 on April 8. General Counsel
Exhibit 33, however, is dated April 11.
Although Schwark was not called to authenticate the document as her own
or to confirm when it was prepared, a reasonable inference is that it was prepared
on the date shown therein, e.g., April 11, 3 days after Pettyplace implicitly
claimed she and Davis
had reviewed and discussed it. However,
on cross-examination, Pettyplace, apparently recognizing the inconsistency
between her testimony that Davis showed her General Counsel Exhibit 33 on April
8, and the April 11 date on General Counsel Exhibit 33, altered her testimony
and admitted that she, in fact, did not see General Counsel Exhibit 33 until
April 15, when she returned from a 3-day trip to Arizona. She nevertheless testified that while in Arizona, she had Davis
read the contents of General Counsel Exhibit 33 to her over the phone.
Davis, however, made no mention in her testimony of ever having read General
Counsel Exhibit 33 to Pettyplace, and, in fact, had no recollection of reading
or showing General Counsel Exhibit 33 to any management official, which presumably
includes Pettyplace. Pettyplace’s
testimony regarding General Counsel Exhibit 33 struck me as fully contrived and
not particularly credible.
As to her phone conversation with Haack, Pettyplace gave
the following account. She testified
that she called Haack because Davis
had reported to her that the Morowske van was seen offsite on April 4, at a
union meeting. Pettyplace claims that
when she asked Haack “if she knew where her van was on April 4,” Haack replied
that “the staff had taken the consumer, Daniel Dugal, to the doctor that day,
that morning, then they took him to the clubhouse.” Pettyplace claims that she probed Haack
further about her latter response by asking Haack if she was certain the van
had only gone to the doctor and the clubhouse that day, reiterating that the
van had been spotted at a union meeting.
Haack, she contends, became angry at that point and told Pettyplace that
she cannot be expected to know where the van is every minute of the day. Pettyplace responded that as the person in
charge at the Morowske Home, she was responsible for the van, and again asked
Haack if she knew anything about the van being used to take staff to a union
meeting. Haack answered no. Although unclear from Pettyplace’s account,
at some point either before or during this exchange, Pettyplace asked Haack to
fax her the Morowske van log and the health care chronological for all the
consumers, and any documents confirming Dugal’s visit to the doctor on April
4. Pettyplace contends that shortly
thereafter, she received a fax from Haack containing all the documents which
make up Respondent Exhibit 31. (Tr. 848; 851; 999.) As to the consultation referral form found on
the last page of Respondent Exhibit 31, Pettyplace testified that she received
it as is from Haack, e.g., with both the top and bottom halves of the form
filled in. According to Pettyplace, this
was the only phone conversation she had with Haack in which the Union was discussed.
Haack provided a much different version of her April 8,
phone conversation with Pettyplace. Thus,
she testified that Pettyplace called her that day to tell her that the van had
been spotted at a union meeting on Van Dyke and Thirteen Mile Road at 11 a.m.
on April 4, and then instructed her to let the “staff know that, if they were
participating in the union involving the company time at all, they would be
terminated.” (Tr. 614.) Haack recalled asking Pettyplace if she
wanted her instructions written down on the communication log for employees to
read, but that Pettyplace answered, “No.”
Pettyplace, Haack contends, went on to say that “the union could not do
anything for the staff at Morowske, they would not get raises . . . they would not get benefits, and that
politicians up north were trying to stop the direct care workers from unionizing,”
and further commented that employees at Central State, another of Pettyplace’s
companies, were trying to get rid of the Union.
Haack responded that this was simply Pettyplace’s opinion. (Tr. 615.)
At one point during their conversation, Pettyplace asked Haack to fax
certain documents over to her. With the
exception of the last document attached to Respondent Exhibit 31, a “Consultation
Referral” form, Haack identified the other documents in that exhibit as the
ones she faxed to Pettyplace on April 8.
However, as to the consultation referral form attached to Respondent
Exhibit 31, Haack insisted that the one she faxed to Pettyplace that day had
only the top half filled in, but that the bottom half of the form which the
attending physician fills in, was blank except for the initials “NS” written on
it.
The General Counsel at the hearing produced the original
consultation referral form, received into evidence as General Counsel Exhibit 38,
which Haack testified as being identical to the one she faxed, along with the
other documents in Respondent Exhibit 31, to Pettyplace on April 8.
When shown General Counsel Exhibit 38, Pettyplace expressed “shock” and “surprise”
on learning that another (original) version of the consultation referral form
existed, and wondered aloud where General Counsel Exhibit 38 had come from. (Tr. 859.)
Although she had no explanation for this discrepancy between what she
claimed she received from Haack, and what Haack claims she faxed to her on
April 8, Pettyplace nevertheless gratuitously speculated that Haack must have
mistakenly run two documents through the fax machine simultaneously, causing
the filled-in bottom half of the consultation referral form to be inadvertently
transmitted along a similar one containing a blank bottom half. (Tr. 863.)
Pettyplace’s willingness to engage in such speculation, and to, at
times, ramble on and volunteer information not asked of her, served only to
further undermine her credibility. (See,
e.g., Tr. 870–871; 899; 910; 912.)
Haack testified that this April 8 phone call from Pettyplace
was one of several she received from Pettyplace that same week. She recalled that during one of these other
calls from Pettyplace, Lashbrook was with her in her office. Pettyplace, she contends, told her during
this conversation that she wanted Foran removed from the medical coordinator’s
position, that the employees’ work hours should be reduced to 32 hours per
week, and that there were to be only two staff persons working a shift, with
Haack being one of the two. Haack admits
that Pettyplace upset her during that conversation, and that, following the
phone call, Lashbrook asked her what was wrong.
Haack told Lashbrook that this was the third time in a week that Pettyplace
had called her and that she seemed angry every time she called. Lashbrook then explained that Pettyplace was
angry because employees were trying to organize a union at Morowske Home. (Tr. 609.)
Lashbrook corroborated Haack’s testimony regarding the
phone conversation the latter had with Pettyplace during which Lashbrook was
present. According to Lashbrook, based
on the comments and responses Haack gave to Pettyplace during that phone
conversation, she surmised that the Union was
being discussed. Lashbrook, for example,
recalled hearing Haack tell Pettyplace that she knew nothing about “a meeting,”
and that “they didn’t take the van, it was here.” There was also some discussion between Haack
and Pettyplace about overtime during that conversation. At one point, Lashbrook heard Haack refuse to
do something Pettyplace asked her to do, offering instead to write down
whatever Pettyplace was asking her to do in the staff log. Following the phone call, Haack explained to
her that Pettyplace wanted her to tell employees that “they could be terminated
if they practiced union business,” that she had refused to do so and had,
instead, offered to write the directive down on the staff log for employees to
see, and that Pettyplace declined the suggestion. Following the conversation, Lashbrook, noticing
that Haack seemed upset, revealed to Haack that Pettyplace may have been angry
because of the union meeting that was held on April 4. She cautioned Haack that, based on her own experiences,
the Respondent was now going to start harassing Haack, and told Haack to watch
out for herself. According to Lashbrook,
Haack mentioned to her on at least two other occasions that Pettyplace had
called her at other times to discuss the Union.
Following the April 8 Pettyplace-Davis meeting, Prevatt
was asked by Pettyplace to assist Davis
in the investigation. According to
Prevatt, Pettyplace wanted her and Davis “to look into concerns that some
employees had about other employees at Morowske House and to get to the truth
regarding those concerns.” (Tr. 1169.) Pettyplace testified that she asked Davis to
conduct the investigation because she was Respondent’s program coordinator, and
that Prevatt was asked to participate as a witness, explaining that she
generally has two management persons taking part in the investigation, and
that, more often than not, one of the investigators will do the talking while
the other takes notes. She contends that
she had faith in Prevatt’s ability to conduct a fair and honest investigation
because Prevatt had conducted similar investigations in the past, was very
thorough, and knew the legal boundaries. (Tr. 958.)
Later that day, the
Union faxed to Pettyplace a letter notifying
her that a majority of the Respondent’s direct care workers had selected it to
represent them for collective-bargaining purposes, and asking for recognition. (See GC Exh. 22.) On cross-examination, Pettyplace claimed to
have no recollection of having received or even seen the Union’s
letter. A fax transmission entry on the
top of General Counsel Exhibit 22 reflects that it was faxed to Pettyplace at
2:51 p.m. on April 8. Pettyplace did
recall that also on April 8, she phoned her attorney, Greg Bator, to notify him
that the Company van had been seen at a union meeting, but did not recall ever
discussing the Union’s recognition demand
letter with him. Pettyplace’s claimed
inability to recall receiving or seeing the Union’s
April 8 recognition demand letter or having discussed such a demand with her
attorney rings hollow. I find it
somewhat incredulous that Pettyplace, who has received training in labor
relations matters, and who acknowledged the importance of the Union’s demand
for recognition in the conduct of her operations, would recall calling her
attorney to inform him about a rumor that the van had been seen at a union
meeting, but not recall informing him of the Union’s claimed majority status or
to seek advice on what to do regarding the Union’s demand for recognition.
Following the April 8 meeting, Prevatt and Davis purportedly
met to arrange when and how the employee meeting was to be conducted. Prevatt claims she reviewed Dugal’s health
care chronological and the van log that Davis
provided to her before the April 14 meeting.
She further recalls Pettyplace and Davis telling her sometime before the
April 14 employee meeting that the van had been seen at a union meeting, and
learning that the Company budget being removed by Abrakian from the Morowske Home. Based on her discussions with Davis, Prevatt prepared a
list of the concerns that had to be addressed, as well as a different set of
questions that were to be asked of employees and supervisors during the
interviews.
D.
The April 14, Employee Meeting
1. The pre-interview conduct
The record reflects that Davis informed Haack that a mandatory
employee meeting was to be held on April 14, and instructed her to notify
employees of the meeting. Haack apparently
did so within days of the meeting. As
required, on April 14, employees gathered at the Morowske Home for the mandatory
meeting to be conducted by Prevatt and Davis.
As the Morowske Home was normally staffed by 2–3 direct care workers per
shift, some of the employees who attended the mandatory meeting were not
scheduled to work during the time the interviews were to be conducted and were
there solely for the meeting. According
to Davis, on
arriving at Morowske Home on April 14, she and Prevatt told employees they were
there to investigate certain allegations, and that Prevatt told employees they
were to sit and watch a video on blood-born pathogens and engage in no “sidebar”
conversations with each other as they waited to be interviewed separately. Davis recalls
Lashbrook saying aloud to employees that they did not have to tell Davis or
Prevatt anything about the union, and Prevatt replying that they were not there
to talk about the Union. (1525.)
Prevatt testified that on arriving at Morowske Home for
the employee meeting, Davis introduced her to the waiting employees, told them
about the video they were expected to watch as each was being interviewed, and
that they were not to engage in any discussion among themselves about the
investigation. She contends that she
instructed Haack and Romain to watch the group to ensure that no such
discussions about the investigation took place. (Tr. 1187.)
Lashbrook, she recalls, then stood up and told employees they did not
have to answer any questions about the Union,
and that she (Prevatt) then told employees that there was to be no “sidebar”
conversations. Prevatt admits she did
not explain to employees what she meant by “sidebar” conversations. Asked if employees were prohibited from
engaging in any other type of conversation unrelated to the investigation,
Prevatt stated they were not, and that she only wanted them to refrain from
discussing or speculating about the investigation. Thus, she claimed that employees were free to
discuss other matters, including the video, family matter, etc. (Tr. 1188.)
Her testimony in this regard, however, squarely conflicts with a
statement made by her in a sworn pre-hearing affidavit given to the Board,
wherein she recalled telling employees that “there should be no sidebar
conversations or nonwork-related conversations
while I was conducting the investigation.” (Tr. 1357.)
Haack testified that at the April 14 employee meeting, Davis appeared with
Prevatt and that Romain and an assistant manager from Lillian House, Eva
Hemphill, were also present for management.
Davis
introduced Prevatt to the employee group and then had the employees identify
themselves. Haack recalls that either
Davis or Prevatt then told employees “there was going to be an investigation
and we were not to talk to anybody about the investigation and they would be
taking us into my office one-by-one and interviewing us, and we would watch a
blood borne pathogen tape while they were doing that.” She further recalled either Davis or Prevatt
instructing employees that “they were not to talk about anything. We were on company time. We were not to talk to each other, and that
Eva Hemphill would be watching over us to make sure we didn’t talk to each
other.” Prevatt, she contends also told
employees that they were not allowed to discuss what transpired during their
interviews with anyone. At one point,
Lashbrook, she contends, told the group that they did not have to discuss anything
about the Union with Prevatt and Davis, and that Prevatt responded by telling
employees that “there would be no talk about the Union and if there was any
talk about the Union, you’d be terminated. She further claims that she and Romain were
instructed by Prevatt “not to let anyone talk to each other.” (Tr. 618–620.)
Romain recalls being present for the April 14 meeting, and
Prevatt introducing herself and instructing employees they were to sit and
watch a video on blood-borne pathogens as they waited to be interviewed. At one point, Lashbrook, he contends, told
employees that they did not have to say anything about the Union,
to which Prevatt responded that there was to be no “closed-bar” conversations between
employees. (Tr. 1409.)
In addition to Haack and Romain, several other employees
testified as to what Davis
and/or Prevatt told the employee group just prior to the individual
interviews. Lashbrook recalled Davis saying that she was conducting an investigation, and that
employees were all going to be called into the room individually but did not
explain what the investigation was about. Davis,
she contends, further told them they were not allowed to discuss the subject
matter of the investigation with each other or anyone else outside the Home, nor were they permitted to discuss anything with each other while we were
sitting out in the living room waiting or we could be terminated. Lashbrook claims that when employees were
asked if they had any questions, she stood up and told employees they did not
have to answer any questions about the Union. In response, Prevatt, she contends, told
employees that “there will be no more talking about a union or union business
on company time in this Home or you will be terminated.” (Tr. 119–120.)
Foran’s recollection is that at the start of the meeting
just before the interviews, Prevatt told employees that “this was an investigation,
and we were going to be taken into Diane Haack’s office one-by-one, and we were
not to speak to each other or we would be terminated.” Prevatt also told employees that they “were
not to speak to each other” as they watched a video on blood pathogens, and
that, after being interviewed, they were to leave immediately, unless we were
working. Foran further recalled
Lashbrook telling employees that they did not have to answer any questions
about the Union, and Prevatt responding that “there’ll
be no more union talk on company time, or we could get terminated.” (Tr. 305–306.)
Abrakian testified that Prevatt told employees they were “not
to discuss the contents of the investigation with each other or anyone else or
we would be terminated.” On
cross-examination, Abrakian noted that Prevatt’s prohibition on speaking
applied to all subject matters, not just the investigation itself. She also recalled Lashbrook telling employees
they did not have to answer any questions about the Union, and Prevatt
responding that the employees “were on IDA company time and from that point on,
there was to be no discussion of union or union activity or we would be terminated.”
(Tr. 479; 502.)
Hibbs recalled Davis
telling employees gathered for the April 14 meeting that they were to watch a
video while other employees were being interviewed, “and that there was to be no side talking while this was going on or we
could be terminated.” Lashbrook
then commented that employees did not have to answer any questions about the Union, to which, she contends, Prevatt responded that this “was to be the last statement about the
union. There was to be no more discussion
about the union or we could be terminated.” (Tr. 531.)
Bibbee testified that Davis first addressed the group, telling them
each employee was to be questioned individually, and that “they were not to discuss with each other what was talked
about in our meeting.” She recalled
Lashbrook, at one point, telling employees that “we did not have to discuss the
meeting with them,” and Prevatt responding that “union talk would not be
allowed on IDA’s time.” (Tr. 421–422.)
I am convinced, based on a composite of the employees’ testimony,
that Prevatt told employees just prior to the interviews that they were not to
discuss any nonwork-related matters among themselves as they waited to be
interviewed, and, in response to Lashbrook’s comment that employees did not
have to answer any questions about the Union, further told employees that they
could be terminated if they engaged in any talk about the Union. Prevatt’s claim that she simply told employees
only that they were not to engage in any “sidebar” conversations is not
credible, as it is contradicted by her own pretrial affidavit wherein she
admits telling employees that they were prohibited from engaging in “sidebar”
as well as other nonwork-related conversations.
I also reject as not credible, and as inconsistent with the mutually
corroborative testimony of several employee witnesses, that Prevatt did not
threaten employees with discharge if they discussed the Union
among themselves.
2. The individual employee interviews
After instructing employees, Prevatt and Davis summoned
each employee into Haack’s office to be interviewed.
Haack remained outside with the other employees while the interviews
were conducted. Davis apparently took charge of calling in
each employ