West Springfield Nursing Home

WEST SPRINGFIELD NURSING HOME West Springfield Nursing Home and District 1199, Mass., National Union of Hospital & Health Care Employees, RWDSU/AFL-CIO. Case I-CA- 12477 September 29, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On June 21, 1977, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, to modify his remedy,2 and to adopt his recommended Order. The Administrative Law Judge concluded that Respondent terminated employee Muriel Ardizoni in violation of Section 8(a)(3) and (1) of the Act. We agree with this conclusion for the reasons stated by the Administrative Law Judge and for the additional reasons set forth below. The record establishes, as the Administrative Law Judge found, that Ardizoni was a leading union adherent and that Respondent was well aware of her activities on behalf of the Union. The record further supports the Administrative Law Judge's finding that Respondent was strongly opposed to unionization of its employees. Although Respondent asserts that Ardizoni was terminated pursuant to its parent corporation's policy of replacing licensed practical nurses with registered nurses at certain of its facilities, we agree with the Administrative Law Judge that the record does not support this conten- tion and that her termination for such asserted reason was pretextual. Thus, although it is establish- ed that Respondent had announced its replacement policy, there is no evidence that the policy was to be implemented by laying off employees and, indeed, Respondent's director of nursing testified that it was her understanding that the policy was to be effectuat- ed by attrition. Furthermore, Respondent offers no credible explanation for its sudden decision to lay off Ardizoni, the one remaining LPN on the day shift in November 1976, while retaining several LPNs on the 232 NLRB No. 81 night shift, particularly inasmuch as the day shift was shorthanded at the time and there was apparently a week's lapse between Ardizoni's termination and her replacement by a registered nurse. Finally, Respon- dent asserts that an LPN at another nursing home was laid off pursuant to the replacement policy. However, the record establishes, as the Administra- tive Law Judge found, that in that case the decision to terminate the employee was made after consulta- tion with the director of nursing and was actually motivated by the employee's poor work performance rather than by the need to implement the replace- ment policy. In Ardizoni's case, however, the director of nursing was not consulted and it is undisputed that Ardizoni was the most senior LPN at Respon- dent and was a competent employee. In these circumstances, we find that Ardizoni's union activi- ties, and not Respondent's policy of replacing LPNs with registered nurses, was the real cause of her termination. Accordingly, we conclude that Ardizo- ni's termination violated Section 8(aX 1) and (3) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, West Springfield Nursing Home, West Springfield, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent has moved for a hearing de novo on grounds that the Administrative Law Judge abandoned his judicial role and assumed the role of prosecutor. After a careful review of the entire record, we are satisfied that this allegation is without merit. While the Administrative Law Judge engaged in extensive questioning of witnesses, we do not find that his questioning was directed toward reaching a predetermined result. It is well settled that the Administrative Law Judge has the right to examine and cross-examine witnesses in order to fully develop, clarify, and understand the facts. Army Aviation Center Federal Credit Union 216 NLRB 435 (1975); Grove Manufacturing Company, 196 NLRB 280 (1972): see Sec. 102.35. Board Rules and Regulations, Series 8, as amended, and 5 U.S.C. § 556(d). We therefore deny Respondent's motion. 2 In accordance with our decision in Florida Steel Corporatrion 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25, 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 605 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: Upon a charge filed by District 1199, Mass., National Union of Hospital & Health Care Employees, RWDSU/AFL-CIO, herein the Union, a complaint issued by the General Counsel, and an answer filed by West Springfield Nursing Home, herein the Respondent Home, the Home, or Respondent, a hearing was held on May 4, 1977, in Springfield, Massachusetts. Upon the entire record in the case, including my observation of the demeanor of witnesses and upon consideration of briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Massachusetts corporation, operates a nursing home in West Springfield, Massachusetts. It is an employer within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This case involves the termination of Muriel Ardizoni, a licensed practical nurse (LPN). Respondent Home, where Mrs. Ardizoni was employed, and three other nursing facilities' are owned and operated by a corporation of which William J. Cerveny is president. Douglas Madsen was administrator of the Home at all material times and is now administrator of the related Ridgeview facility; 2 Martha McNamara is director of nursing at Respondent Home; and Marie Romanko, whose office adjoined Madsen's, was the receptionist and performed office functions for the administrator. As director of nursing, Mrs. McNamara administers and directs nursing care at the Home; in this capacity, she is responsible for hiring, firing, and disciplining nursing personnel. The Union began organizing the Home in May 1976, and it filed representation petitions for three separate bargain- ing units, including a unit of licensed practical nurses. The Union lost all three elections held on October 22, 1976, and the Regional Director certified the election results. During the preelection period, Respondent conducted a campaign of its own, by speeches and letters to employees, and Administrator Madsen urged the employees to vote against the Union. Madsen thus told the employees, among other things, that he was "very much against a union coming in here," that the Union was "both unnecessary and undesir- able," and that having a union "could have a bad effect on I Valley View Nursing Home, Ridgeview Nursing Home, and Eldercare of Springfield, Inc. 2 Madsen was administrator of the Eldercare facility in 1971, when he and Cerveny were found by the Board to have participated in unfair labor our patients and reduce the quality of health care [at the Home]." Mrs. Ardizoni was one of the principal organizers in the union campaign. The first organizational meeting was held at her residence, as were at least five of approximately seven subsequent meetings. She distributed union cards, wore union buttons,3 and participated in an informational picket line at the Home in August. Contrary to Madsen's testimony, Romanko credibly testified that she and Madsen viewed the picket line from her office and that Madsen instructed her to record the names of the employee pickets. Madsen similarly instructed her to take down the names of employee participants in a union "confrontation" in his office on another occasion. Madsen admittedly maintained tallies of employees and how he thought individual employees would vote in the election; he further testified that he made up these tallies on conjecture on the basis of information from Romanko, department heads, and others. Although Madsen denied having known that Ardizoni was active in the Union, Respondent conceded at the hearing that it knew of her active role and Director of Nursing McNamara (who was called as an adverse witness) truthfully testified that "everyone," management included, had been aware that Ardizoni was "very active" in the organizational campaign. Ardizoni's Termination According to Madsen, President Cerveny instructed him to lay off Ardizoni, and Madsen testified that this layoff was in implementation of a policy adopted by Respondent to upgrade its services at the Home. Respondent Home and Valley View Nursing Home are level II (skilled nursing care) facilities. By memorandum on May 20, 1976, Cerveny had advised the homes that he believed "we could give better patient care in Level II facilities by using only R.N.'s. We are presently using L.P.N.'s as charge nurses and assistants to R.N.'s on the day shift. .... Valley View Nursing Home has hired only R.N.'s in the last several months." Minutes of a meeting attended on September I, 1976, by Cerveny and the administrators of the four nursing homes recite that "There was discussion at great length concerning L.P.N.'s and good patient care. It was decided that no new L.P.N.'s were to be hired for level II facilities. [Does not include Eldercare Rest Home or Ridgeview Nursing Home level III part.] To give better patient care we will be replacing L.P.N.'s with R.N.'s over the next several months. The L.P.N.'s in a level II Home, it was felt, were used only as an assistant to a charge R.N., although we are presently using L.P.N.'s at certain times as charge nurses. We will attempt to replace them with registered nurses." And on September 2, Cerveny advised the level II homes that "Over the next two months you will be expected to replace full and part-time licensed practical nurses with registered nurses. .... If you cannot... you will have to take whatever time is necessary." practices. Eldercare of Springfiel4 Inc., 197 NLRB 214 (1972). 1 do not rely on that decision in any respect in resolving the present case. I The record does not show whether Ardizoni distributed union cards and wore union buttons in the Home. 606 WEST SPRINGFIELD NURSING HOME Respondent Home had about eight LPNs on three shifts on October 22, 1976, and there were three LPNs, including Ardizoni, on the day shift. Two of the day-shift LPNs resigned on October 22, leaving Ardizoni as the only LPN on that shift and five LPNs on the other two shifts. In November, as indicated above, Cerveny instructed Madsen to lay off Ardizoni, and Madsen in turn instructed Nursing Director McNamara to notify Ardizoni to such effect and to hire an RN in her place. McNamara was not even consulted concerning Ardizoni's layoff; she testified that the staff was shorthanded at the time and she was sorry to lay off Ardizoni. Ardizoni had worked under McNamara since 1969 and had the longest tenure of the LPNs at the Home. Respondent concedes that Ardizoni was a competent LPN with long experience. When notified of her layoff by McNamara, Ardizoni asked whether she might transfer to another shift. McNamara said she could not, and McNa- mara testified in explanation that Madsen had said to lay off Ardizoni and not to transfer her to another shift. McNamara also testified that her understanding of the aforementioned policy of replacing LPNs with RNs was, and I find that it was, to be accomplished by attrition and not by layoffs, and she further testified that she has not laid off any of the five other LPNs. Mrs. McNamara also testified that Respondent has not hired any LPNs since April 1, 1976. Madsen sought to explain Ardizoni's layoff on the ground that day shifts have the heaviest loads and that Respondent decided to eliminate LPNs entirely from day shifts in level II facilities without waiting for attrition and that Respondent laid off Ardizoni only because she happened to be the last remaining LPN on that shift. Madsen also stated that Ardizoni was neither more nor less competent than the other LPNs. Respondent adduced in this connection the testimony of Margaret Baker, the administrator of the Valley View Home which, as indicated above, is also a level II facility. Mrs. Baker testified that, in implementation of the replacement policy, she terminated an LPN on the day shift and replaced her with an RN. Baker and the director of nursing at Valley View together made that selection, and Baker testified that in doing so they considered the comparative abilities of LPNs on all shifts. Baker then testified that they actually removed that particular LPN for reasons of "poor performance" as to "leadership," and Baker also testified that, as of the hearing date (May 4, 1977), she still had LPNs on Valley View's day shift. A week or so after Ardizoni's layoff, McNamara gave Ardizoni an "excellent" letter of recommendation and told Ardizoni that "by reading between the lines" she (McNa- mara) believed Ardizoni had been laid off because of her union activities. McNamara testified that, although she did not know with certainty, her personal opinion is that Respondent did terminate Ardizoni for union reasons. Cerveny did not appear as a witness nor was he claimed to be unavailable. 4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. Conclusions Respondent was strongly opposed to the Union and it was aware of Ardizoni's prominent organizational role. Recapitulation and further discussion are wholly unneces- sary to find, as I do, that Respondent terminated Ardizoni because of her union activities and for no other reason. In the circumstances of this case, no other inference is tenable. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By terminating Muriel Ardizoni, Respondent has violated Section 8(a)(1) and (3) of the Act. 4. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action, including reinstating Ardizoni on the first shift and making her whole, in order to effectuate the policies of the Act. All backpay computa- tions shall be in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 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 4 The Respondent, West Springfield Nursing Home, West Springfield, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, laying off, or otherwise discriminating against employees for activities in behalf of District 1199, Mass., National Union of Hospital & Health Care Employees, RWDSU/AFL-CIO. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights as guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Muriel Ardizoni reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole, as set forth in "The Remedy" section, above, for any loss of earnings suffered as a result of the discrimination against her. (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, 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. 607 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personnel records and reports, and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this recommend- ed Order. (c) Post at its nursing home in West Springfield, Massachusetts, the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, ' ' ' ing all places where notices to employees are customa .Ay posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 5 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX To engage in self-organization To form, join, or assist unions To bargain collectively through a representa- tive of their own choosing To act together for collectively bargaining or other mutual aid or protection To refrain from any and all of these things. WE WILL NOT do anything to interfere with these ;ghts. WE WILL NOT discourage membership by our employees in District 1199, Mass., National Union of Hospital & Health Care Employees, RWDSU/AFL- CIO, or any other union by laying them off, discharg- ing them, or otherwise discriminating against them in regard to their hire, wages, hours, working conditions, or tenure of employment. WE WILL reinstate Muriel Ardizoni and make her whole for earnings lost since her termination. All our employees are free to join or assist District 1199 or any other union. WEST SPRINGFIELD NOTICE To EMPLOYEES NURSING HOME POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees these rights: 608