Sprain Brook Manor

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Annette Severino, Lawrence J. Severino, and Joan Parisi d/b/a Sprain Brook Manor and Local 144, Hotel, Hospital, Nursing Home, & Allied Service Employees Union, Service Employees International Union, AFL-CIO. Case 2-CA-12493 October 10, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 17, 1972, Trial Examiner Arthur Leff issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order.' ORDER 8(a)(1) and(3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. The Respondent filed an answer denying the commission of the alleged unfair labor practices and also denying that it is engaged in commerce within the meaning of the Act.' A hearing was held on April 12 and 13, 1971, at New York, New York. At the close of the hearing the parties argued the issues orally on the rec- ord. On May 5, 1972, the Respondent filed a brief. Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT The Respondent, a copartnership composed of An- nette Severino, Lawrence J. Severino, and Joan Parisi, doing business under the trade name and style of Sprain Brook Manor, is engaged in operating a nursing home at Scarsdale, New York, at which it employs approximately 150 employ- ees. During 1971, a representative period, the Respondent in the operation of that nursing home had gross revenues in excess of $500,000. Manlio S. Severino, the Respondent's business manager, testified at the hearing that the Respondent's purchases of goods during 1971 from firms located outside the State of New York were of a value amounting to at least $3,000.2 Contrary to the Respondent's contention, I find on the foregoing facts that the Respon- dent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that its operations are such as to meet the Board's discretionary standards for the assertion of jurisdiction over proprietory nursing homes.3 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Annette Severino, Lawrence J. Severino, and Joan Parisi, d/b/a Sprain Brook Manor, Scarsdale, New York, its agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. 1 We deny the Respondent's request for oral argument, inasmuch as the instant record, in our opinion, sufficiently reflects the facts and issues in this proceeding. We correct an inadvertent typographical error in the Trial Examiner's Decision by substituting "1971" as the dates on which the hearing was held. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ARTHUR LEFF, Trial Examiner: Upon a charge filed on November 5, 1971, by the Union above named, the General Counsel of the National Labor Relations Board, by the Regional Director of Region 2, issued a complaint dated December 10, 1971, against the copartnership named above doing business as Sprain Brook Manor , and herein called the Respondent, alleging that the Respondent had engaged in unfair labor practices within the meaning of Section II THE LABOR ORGANIZATION INVOLVED The Union named in the caption is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This proceeding is concerned solely with the 1 In addition, the Respondent's answer, as a separate defense, alleged affirmatively that the Board has no jurisdiction in this matter, asserting as grounds for that defense (1) that the Union had no right to file its charge herein as it was not the representative of any of the Respondent 's employees, and (2) that the charge did not contain thelurat or declaration required by Section 102 11 of the Board's Rules and Regulations. That defense is rejected as without merit. Nothing in the Act or in the Board's Rules and Regulations requires a union to be an employee representative in order to file a valid unfair labor practice charge. And, as is obvious from its face, the charge does contain the declaration by the person signing it that is required by Section 102.11 of the Board's Rules. The Respondent's brief asserts a number of additional procedural objections relating to the sufficiency of the charge and complaint that were not mentioned in its answer These have all been consid- ered and are found to be without merit. 2 In a "commerce questionaire," dated August 23, 1971, which the Respon- dent had earlier submitted to the Board 's Regional Office for use in a repre- sentation proceeding in Case No. 2-RC-15708, Severino had fixed the amount of the Respondent's annual purchases of goods and supplies from out-of-state sources as "about $10,000." In the representation proceeding, the Respondent entered into a consent election agreement in which it stipulated, inter alia, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3 University Nursing Home, Inc., 168 NLRB 263; N.LRB. v. Inglewood Park Cemetery Association, 355 F.2d 448 (C.A. 9). 199 NLRB No. 112 SPRAIN BROOK MANOR Respondent's discharge of its employee Jessie Smith, alleg- ed in the complaint to have been violative of Section 8(a)(1) and (3) of the Act. Smith, a licensed practical nurse, was hired by the Respondent on July 8, 1971, and remained continuously in the Respondent's employ until October 7, 1971, when she was terminated under circumstances to be described below .4 At the time of her termination, the Union was engaged in a campaign to organize the Respondent's service and maintenance employees. The Union had earlier filed a representation petition seeking certification for a unit of such employees; the Respondent had agreed to a consent election; and an election, which the Union ultimately lost, had been scheduled for October 15, 1971. It does not ap- pear, however, that Smith was especially active in the Union's organizational campaign or, for that matter, that she was even a member of the Union. The events immediately leading to Smith's discharge were as follows: On October 7, 1971, the Union distributed to employees arriving for work at the Respondent's nursing home a leaflet bearing the heading, "MRS. CLARK GET A CLEAR PICTURE! WE KNOW THE TRUTH." The Mrs. Clark referred to was Mary M. Clark who occupied the position of Director of Nurses at the home. The leaflet adverted to a "rumor" that the Respondent would lay off 40 workers if the Union won the election; charged Mrs. Clark with "trying to brainwash the workers with threats and intimidation," and asserted that there had never been any job security at the nursing home and that none could be expected unless and until the employees were repre- sented by the Union. Addressing itself specifically to Mrs. Clark, the leaflet stated: You showed your true colors you can't be trusted. We know the truth. Stop with the lies and threats. We know that Sprain Brook Manor's management is terribly dis- turbed because we the workers are building a union. and further, Is it not true that when the workers have a union, that Director of Nursing and flunkie supervisors are usually the ones laid off, so that the very high wages they are being paid will go to the workers where it rightfully belongs? Smith received a copy of the leaflet when she arrived for work at 7 a.m. on October 7. Smith's station of work at that time was on the second floor of the nursing home. At the beginning of the workday, the nurses aides received their patient care assignments for the day from sheets posted on a bulletin board located in the immediate vicinity of Smith's work station. It was cus- tomary for them to congregate at that point and to engage in conversation while receiving their work assignments. As might be expected, their principal topic of discussion at the start of their workday on October 7 concerned the leaflet they had all just received. Smith joined in their conversa- tion. This discussion, so far as appears, was a spontaneous 4 The Respondent in its brief asserts for the first time that Smith was a supervisor. No such contention was made by the Respondent at the hearing; to the contrary, its answer admitted the allegations of par . 6 and 7 of the complaint wherein she is alleged to have been an "employee." There is nothing in the hearing record to indicate that Smith possessed or exercised any of the attributes of supervisory authority delineated in Section 2(11) of the Act. It is found that Smith was an employee within the meaning of the Act. 577 one. It lasted for about 5 minutes. At about 7:50 a.m., Smith answered a telephone call at the station where she worked. The call was from Miss Co- zart,5 a physiotherapist aide, who called to report that she would be out sick that day. While on the telephone, Cozart, an active union protaganist known to be such by the Re- spondent, asked Smith whether there had been any new developments at the Home relating to the Union. Smith informed Cozart of the union leaflet that had been distrib- uted that morning. She read to Cozart certain portions of it, specifically those portions that have been quoted above. Smith, as appears from her credited testimony, did not add any comments of her own. Unknown to Smith and Cozart at the time, their con- versation was overheard by Mary Clark, the Respondent's director of nurses, who had lifted the telephone receiver on an extension line while they were talking and had silently listened in to what was being said. Clark, a witness for the Respondent, does not dispute that fact. Her version of what Smith said to Cozart, however, varies in certain details from Smith's account. Thus, while agreeing that Smith's remarks tracked in their content the language in the leaflet, Clark sought to leave the impression that Smith's references to Clark were presented as expressions of her own views rather than as statements read from the union leaflet. Further, according to Clark's version, disputed by Smith, Smith told Cozart that she had read the Union's leaflet to the nurses aides. To the extent that Clark's account deviates from Smith's, I credit Smith who, unlike Clark, impressed me as a forthright witness.6 When Smith clocked out at the end of her workday on October 7, she was instructed to go to Clark's office. There, Clark informed her that she was being discharged for "in- subordination." As appears from Smith's credited testimo- ny, no other reason was given her.7 When Smith asked Clark to specify in what respect Clark claimed she had been insub- ordinate, Clark said that Smith had called a meeting of nurses aides at which she had referred to Clark as a "flunky" supervisor and had told the aides that the high salaries being paid to "flunky supervisors" properly belonged to the aides. Smith had not in fact called any meeting of the aides.8 She told Clark that there was no truth to that charge. At that time, Smith did not connect Clark's statement with the tele- phone conversation she had had with Clark that morning. Shortly thereafter, however, Mrs. Weiss, the administrator of the nursing home, came into the office and told Smith that Clark had overheard her telephone conversation with Cozart. Smith then explained that the statements Clark had overheard were not her own but had been read from a union leaflet. She offered to show the leaflet to Clark. But Clark refused to look at it, and Smith 's discharge remained firm. 5 Cozart's name is incorrectly spelled in the transcript as Kozak. The General Counsel's motion to correct the transcript in that respect is granted. 6 Clark's overall testimony in certain respects was patently implausible, in at least one material matter self-contradictory, and in another, as will later appear, in conflict with that of Severmo. Clark testified that she additionally told Smith that there had been com- plaints about Smith's work performance Clark's testimony in that respect when given impressed me, however , as lacking in conviction . In a preheating affidavit, Clark had stated that she had no clear recollection of mentioning to Smith previous complaints about her work at the time she terminated her. 8 The Respondent adduced no evidence to dispute Smith 's credited testi- mony to this effect. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manlio Severino, the Respondent's business manager who is in overall charge of the Respondent's operations, testified that it was he who directed Smith's discharge? His account of the circumstances leading to the discharge deci- sion was as follows: Prior to October 7, 1971, Clark had never spoken to him about Smith's work record, the ques- tion of Smith's termination had never come up, and Clark had never recommended Smith's discharge. On October 7, Clark came to him and told him that she had overheard a telephone conversation that morning between Smith and Cozart in which Smith had told Cozart that she had called the nurses together and read a pamphlet to them ridiculing Clark. After discussing that incident for some time, Severi- no inquired about Smith's work record, an inquiry he had never made before and, as he admitted, would not have made at that time either had not Clark told him about the telephone conversation. Clark then told him that Smith's immediate supervisor, Miss Myteck, had reported to her in the past that Smith had refused to follow orders and that she (Clark) had found it necessary on several occasions to speak to Smith about this. Following that report, testified Severino further, he directed Clark to discharge Smith "both on the basis of her poor work record and on the basis of the conver- sation she [Clark] had overheard." Summing up his testimo- ny, Severino stated that Smith "was not discharged because of her union activity" but "because I didn't feel that we could maintain discipline with this kind of ridiculing of a supervisor. And also because of her work record." To support its claim that Smith had a poor work record, the Respondent presented testimony by Clark concerning the following four incidents: (1) On one occasion, Smith had asked a nurses aide to answer a patient's call that Smith could have answered herself, leading Clark to remind Smith that it was her responsibility as much as that of the aides to answer such calls. That incident had occurred on July 21, about 2 weeks after Smith was first hired. There is no indica- tion that it was thereafter repeated. (2) Back in August 1971, Smith had given a patient a soap suds enema although she had been instructed to give the patient a Fleet enema. Smith was unable to recall that incident. (3) There was one occa- sion when a geriatric patient had complained to Clark that Smith had not taken her to the bathroom when requested, causing her to soil her clothes. Smith recalled that incident, but testified credibly that Clark was made aware that the patient's complaint was an unfounded one as the patient had already soiled her clothes before Smith was able to respond to her call. That incident had occurred about a month and a half before Smith's discharge. (4) One day Smith, according to Clark, had countermanded her supervisor's orders by suggesting to certain nurses aides that they should get their lunch at a time different from the lunch time that had been scheduled for them. Clark's hearsay and uncorroborated testimony concerning this incident was dis- puted by Smith who testified that the aides themselves had decided to take an early lunch that day. Smith testified that this incident occurred about the middle of September. Clark 9 Sevenno's testimony in this respect is credited though it is inconsistent with Clark's testimony that she did not consult Severino before effecting the in her testimony initially fixed the date as September 6, a month before Smith's discharge, but later in her direct ex- amination, prodded by a leading question, altered her testi- mony to say that it occurred on the day prior to the discharge. I accept Smith's testimony in that regard. The question in this case, of course, is not why the Respondent might have discharged Smith, but why it did On all the evidence, I do not believe that Smith's past work record was in truth a substantial motivating reason for the Respondent's action. Had it been, I think it would have been so stated to Smith when she was notified of her termi- nation; yet, as found above, no mention of it was made to her at that time. Further, Severino's admission while testify- ing that his inquiry of Clark concerning Smith's work record would not have been made at all were it not for Clark's complaint about the overheard telephone conversation can leave little doubt that the four incidents referred to above were dredged out to provide a make-weight for a discharge decision actually prompted by Clark's complaint about the telephone conversation. Any remaining doubt that it was the telephone conversation rather than Smith's work record that actually motivated the discharge decision is finally dis- pelled by the following colloquy during closing argument: Examiner Leff: But for the telephone conversation would [Smith] have been discharged. Mr. Severino: I would not have ordered her dis- charge. Examiner Leff: Yes. Mr. Severino: And the reason for the discharge was she ridiculed a superior, and in my opinion that is a sufficient reason for discharge whether there is a union involved or not. The question to be decided reduces itself, then, to whether the Respondent violated Section 8(a)(1) and (3) by discharging Smith because of her telephone conversation with Cozart on October 7. I hold that it did. As found above, Smith's conduct which the Respondent found offensive consisted of no more than Smith's reading to Cozart ex- cerpts from a union leaflet that had been circulated in pro- motion of the Union's organizational campaign. The distribution of the leaflet quite clearly constituted a legit- imate union activity. Smith's oral transmission to Cozart of the contents of the leaflet was no less so.10 The record does not support a finding that Smith acted with malice or other- wise exceeded the bounds of propriety in reporting to Co- zart the contents of the leaflet. Smith's conduct clearly fell within the statutory protection accorded employees by Sec- tion 7 of the Act. Her conduct did not lose that protection even if the Respondent in good faith considered it insubor- dinate or offensive. Union activity that is otherwise protect- ed will not excuse a discharge simply because it takes a form that meets with the displeasure of an employer. Nor does it matter in this case that the Respondent may not have been motivated by a conscious purpose to defeat union organiza- tion in effecting Smith's discharge. The law has long been settled that once it is established that an employee's statuto- rily protected rights have been trenched upon by a dis- charge, it is immaterial to a finding that the law has been discharge. Clark's testimony to that effect is at odds with a statement in her 10 The same would have been true if, contrary to the finding made above prehearing affidavit that the decision to discharge Smith was reached at a but as Severino says he was led to believe, Smith had read the leaflet to the meeting she had earlier that day with Severmo and Mrs. Weiss. nurses aides. SPRAIN BROOK MANOR 579 violated that the discharge was not motivated by union hostility or ill intentions.) Accordingly, I find that, by discharging Smith for en- gaging in conduct protected by Section 7 of the Act, the Respondent violated Section 8(a)(1). And since her dis- charge was for a reason related to union activity that would have a natural tendency to discourage membership in the Union, I further find that it was also violative of Section 8(a)(3) of the Act. IV THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that the Re- spondent be ordered to cease and desist therefrom and to take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Respondent, on October 7, 1971, discharged Jessie Smith in violation of Section 8(a)(1) and (3). The usual remedy for such a violation is to require the reinstatement of the unlawfully discharged employee with backpay from the date of discharge to the date of reinstatement. As appears from the record in this case, how- ever, the Respondent on the first day of the hearing (April 12, 1972) unconditionally offered Smith immediate and full reinstatement to her former position, without prejudice to her seniority or other rights and privileges, and Smith de- clined that offer, stating that she did not desire rein- statement because the job she then held paid more. Because of these circumstances, I shall not recommend Smith's rein- statement and shall limit the backpay period from the date of the Respondent's unlawful discrimination against her to the date she was offered, and declined, reinstatement. Ac- cordingly, I shall recommend that the Respondent make Smith whole for any loss of earnings she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to that which she normally would have earned from October 7, 1971, to April 12, 1972, less net earnings, if any, during such period, to be computed on a quarterly basis, with interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. By discharging Jessie Smith because she engaged in a union activity within the protection of Section 7 of the Act, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 The Respondent, a copartnership composed of An- nette Severino, Lawrence Severino, and Joan Parisi, doing business under the trade name and style of Sprain Brook Manor, its agents, successors, and assigns, shall: 1. Cease and desist from: , (a) Discharging or otherwise discriminating against any employee for aiding, supporting, or assisting the organi- zational efforts of Local 144, Hotel, Hospital, Nursing Home, & Allied Service Employees Union, Service Employ- ees International Union, AFL-CIO, or any other labor or- ganization, or for engaging in any other union or concerted activities protected under the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action , found neces- sary to effectuate the policies of the Act: (a) Make Jessie Smith whole for any loss of pay she may have suffered as a result of the discrimination against her for the period stated and in the manner set forth in "The Remedy" section herein. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its nursing home at Scarsdale , New York, copies of the attached notice marked "Appendix."13 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by the Respondent's representative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, inconspicuous places , including all places where notices to employees are customarily posted . Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. 14 11 See,e.g., N.L R.B v Le Tourneau Company, 324 U.S. 793, 797; N.LR B v. Great Dane Trailers, 388 U S 26, 34. 12 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall , as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 13 In the event that the Board's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 14 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 2, in wasting , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence, it has been decided that we violated the National All of you are free to become, remain, or refrain from Labor Relations Act by discharging Jessie Smith on Octo- becoming or remaining members of Local 144, Hotel, Hos- ber 7, 1971, because she engaged in union activity protected pital, Nursing Home & Allied Service Employees Union, by the Act, and we have been ordered to post this Notice. Service Employees International Union, AFL-CIO, or any The National Labor Relations Act gives you, as em- other labor organization. ployees, certain rights, including the right to self-organiza- tion; to form, join, or help unions; and to bargain collectively through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT do anything that interferes with any of your rights listed above. WE WILL NOT fire or take any reprisal action against any of you because you aid, support, or assist the or- ganizational efforts of Local 144, Hotel, Hospital, Nursing Home & Allied Service Employees Union, Service Employees International Union, AFL-CIO, or any other union. WE WILL make up, with 6 percent interest, all pay which Jessie Smith lost by reason of our having dis- charged her, covering the time from the date of her discharge until April 12, 1972, when we offered her, and she refused, reinstatement to her job with us. Dated By SPRAIN BROOK MANOR (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 36th Floor Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0300.