Barnwell Nursing Home & Health Facillty, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barnwell Nursing Home & Health Facility, Inc. and Local 200, General Service Employees' Union, S.E.I.U., AFL-CIO. Case 3-CA-6738 June 24, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On March 15, 1977, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. 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 brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. 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, Barnwell Nurs- ing Home and Health Facility, Inc., Valatie, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. I The 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. 2 Although we agree with the Administrative Law Judge's conclusion that Respondent violated Sec. 8(aX3) and (I) by discriminatorily discharg- ing employee Patricia Coe, Respondent's exceptions necessitate the following comments: Respondent correctly notes that the Administrative Law Judge errone- ously identified an anonymous receptionist as the secretary to Personnel Consultant Peter Nalen. The error is insignificant in view of credited testimony that employees Van-Allen and Bergeson contacted the reception- ist on September 9. 1976. in order to arrange an employee meeting with Nalen, the receptionist called back to confirm a I p.m. meeting time, and Nalen routinely convened the meeting as he had done on previous occasions. The Administrative Law Judge properly found from such evidence that Respondent's agents authorized the employee meeting, thereby rebutting the contention that Coe unilaterally and without authority called her fellow employees to a meeting. Furthermore, we agree with the Administrative Law Judge that Peter Nalen, whether his official title is personnel consultant or manager, acted as Respondent's agent. was authorized to exercise labor relations powers, and actively participated in the decision to fire Coe. The result herein would not differ, however, even if we accepted Respondent's contention that Director of Nursing Services Lillian Meskie was solely responsible for Coe's discharge. According to Coe's credited testimony. Meskie evidenced 230 NLRB No. 64 discriminatory animus and knowledge of Coe's union and other concerted activities when, a few hours prior to the termination of Coe's employment, she threatened Coe with discharge in violation of Sec. 8(aXI). In the absence of any credible legitimate grounds for Coe's discharge, evidence of such a threat and its prompt realization would clearly warrant finding an 8(aX3) violation. DECISION STATEMENT OF THE CASE THOMAS A. RiccI, Administrative Law Judge: A hearing in this proceeding was held at Albany, New York, on January 13 and 14, 1977, on complaint of the General Counsel against Barnwell Nursing Home and Health Facility, Inc., herein called the Respondent or the Compa- ny. The complaint issued on October 29, 1976, on a charge filed on September 15, 1976, by Local 200, General Service Employees, S.E.I.U., AFL-CIO, herein called the Union. The essential issue of the case is whether the Respondent discharged Patricia Coe because of her concerted and prounion activities and thereby violated Section 8(aX)(1) and (3) of the National Labor Relations Act, as amended. Briefs were filed by the General Counsel and the Respon- dent. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent maintains its principal place of business in Valatie, New York, where it is engaged in the business of providing health care and related services to nursing home patients. During the past year, it received gross revenues in excess of $100,000, and purchased, transferred, and delivered to its Valatie facility goods and materials valued in excess of $100,000. During the same period it purchased and had delivered to its facility goods and materials valued in excess of $10,000 which were transferred to that facility from out-of-state sources. I find that the Respondent is engaged in commerce within the meaning of the Act. 1. THE LABOR ORGANIZATION INVOLVED I find that Local 200, General Service Employees Union, S.E.I.U., AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. I11. THE UNFAIR LABOR PRACTICES Beginning in April 1976 there was a move among the Respondent's employees to join a union. The employees talked the matter over among themselves and decided Patricia Coe would take the necessary first steps for all. She obtained a number of authorization cards in favor of Local 200 and together with several other girls distributed them among the total group. She also handed out leaflets, literature, union buttons, and fliers in the parking lot, at lunch inside the building and elsewhere, a number of times during several weeks. A petition for a Board-conducted election was filed on or about the first of June and an election was held on June 29. The Union lost in the 450 BARNWELL NURSING HOME & HEALTH FACILITY balloting, and the girls continued their concerted efforts to improve their conditions of employment. Coe was discharged on September 9. In support of the defense, four members of management testified - Gladys Bownes, the owner of the business and co-administrator; Clinton Steuerwald, her son and administrator; Peter Nalen, personnel director or manager; and Lillian Meskie, director of nursing services. The first three said they had nothing to do with the discharge decision; they passed that responsibility on to Meskie, who testified the determina- tion was entirely hers. Nalen even said unequivocally at the hearing that he had no authority to fire or discharge anyone. And while it is a fact of record that the owner, her son, and the personnel director knew of Coe's participation in the Union and concerted activities, Meskie said more than once she had no knowledge of that particular employee's union sentiments until after her dismissal. The weakness, and the fundamental unreliability of the entire defense of discharge for cause, starts emerging from these first assertions. Meskie was present at the election on June 29, 2 months before Coe's discharge. Coe was the union observer at the election and signed the certification on conduct as representative of Local 200. Nalen is the person who on behalf of the Company personally fired Coe. He had signed the tally of ballots as the agent for the employer that day. Having seen Coe as the Union's representative at the election, Meskie had to know of her prounion feelings before the girl was discharged; it follows therefore that she lied at the hearing. And Nalen's statement under oath that he has no authority to discharge also had to be false, if only because he in fact did fire the girl. Without necessity for detailing here every jot and tittle of evidence, the record shows clearly that it has long been a practice in this home for groups of employees to meet with Nalen to discuss with him any common grievances they have, or complaints directly relating to conditions of employment. The system has been for one of the employees to speak to the receptionist, who is also Nalen's secretary, to inquire when he would be available and when the group could meet with him. The receptionist would then check with Nalen and call back to tell the employees where and when Nalen would see them. At the appointed hour, usually three girls from each floor - there are four work floors, each with six girls on duty - would go to the conference room next to Nalen's office and discuss their problems with him. In this way there is always a cadre of employees on duty on each floor, presumably sufficient at the particular hour of the day chosen by Nalen for the meeting. There were several such meetings during 1976. A recurring subject of complaint by the employees was the shortage of both necessary supplies and help. They asked for more linens, more wheelchairs, and more labor help because the current staff had too much trouble keeping up with the workload necessary to care for all the patients properly. It was a meeting with Nalen exactly of this kind - the employees complaining, among other things, about supplies and labor shortages - that took place on September 9, and which Meskie said at the hearing had been called by Coe "individually . . . without authority" and therefore justified immediate discharge. There was a significant sequence of events that must be clarified for better understanding the conflicting conten- tions as to what finally happened that day. On September 2 there was a meeting in the conference room where 12 girls talked with Nalen and Mrs. Bownes, the owner administra- tor. It was Coe who on behalf of the group spoke to the receptionist this time to ask whether there could be a meeting. When she was told yes, she asked the other employees to write down on a slip of paper what their grievances were, and agreed she would speak for them during the meeting. She did and after the usual talk about shortages, the girls complained about the fact they were not permitted to have a cup of coffee, or smoke a cigarette, when there was a lull in the work. To satisfy them Bownes told them "if our patients were taken care of and they were all fed and no bells were ringing, then we could have a cigarette." This is from the testimony of Rita Rouleau. Another employee, Cheryl Dubois, recalled it as follows: "Mrs. Bownes said as long as patients were taken care of, we could sit down and have coffee and a cigarette at 8:00 in the morning." Patricia Shields, another employee witness: "Mrs. Bownes said that while the patients were eating breakfast, if there were no bells ringing and no patients that we had to take care of right then, that we could sit down and have a cigarette and a cup of coffee." From yet another employee witness, Sherry Van Allen: "Gladys Bownes said that while the patients were eating their breakfast and there was nothing for us to do, there was no bells to be answered and if our patients had been fed, while we were waiting for the patients to finish, it would be all right to sit down and have a cup of coffee and a cigarette." Bownes equivocated as a witness about what she had said, but I deem her testimony, set out here in too, as not contradictory to that of the employees: "Pat Coe said that she was called down for sitting down at 8:30 for a coffee break, and asked if they could have permission to do so. I explained or tried to explain that when the work was done, I did not mention time and so on, . . . Q. And what did you say? What was your reply to them? A. My reply to them was, there would never be criticism if they're sitting down when, and only when the work was finished." Meskie, the director of nursing, came to the home that weekend, the Labor Day holiday weekend, because the shortage of nurses and aides was so severe she had to make beds and help tend to the patients' personal needs. At or about 8 a.m., on Sunday, September 5, she saw all five or six of the girls on the fifth floor sitting down and having coffee, or juice; some of them smoking. This was during breakfast period and while the patients were eating. Meskie told the girls this was not permitted, and some of them got up and walked away. Coe and Van Allen, another aide, stayed and told the supervisor they were only doing what Bownes had told them they could do, inasmuch as the patients had been served and were still eating. Meskie became indignant and expressed resentment at the fact the owner told one thing to the help and another to the supervisor who was responsible for seeing that work was done. Coe and Van Allen held firm to their position, and there was a certain antagonism between them and Meskie. 451 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In any event, Meskie did nothing about it and walked away. Meskie worked in the home several days thereafter and 4 days later, on September 9, at or about 9 in the morning, called Coe to her office and gave her a written reprimand warning, reading that it was for "conduct" and "attitude inconsistent to good order and operation" of the home. The written warning does not mention the smoking incident of September 5, so that there arises a question as to just why Meskie did this, as well as why, if it was provoked by the smoking incident, the supervisor waited so long before issuing the reprimand. At the hearing Meskie implied the 4-day delay was because she did not have time to give the warning earlier. Coe recalled, and Meskie did not contradict her, that when she was given the warning Meskie told her not to tell anyone about it. If, as strongly suggested by the Respon- dent's repeated emphasis on the September 5 smoking incident, the fault Meskie found in Coe was neglect of the patients during working time, the last thing she would do is prevent passing such word around to the rest of the employees. This attempt at concealment, together with the implausible statement that she had had no time to write the few words during the intervening 3 days; makes Meskie's entire testimony most unconvincing. Be that as it may, having received the warning, believing, logically, that it had something to do with the smoking incident, Coe went from Meskie's office back upstairs to her floor and told the other employees about it. There then developed a feeling that something should be done about this. The girls decided to ask for another meeting with Nalen, but this time Coe thought it best not to be the front person. Another girl therefore called the receptionist to ask when Nalen would be available and when a meeting of employees could be held. And again in keeping with the established practice, the receptionist did check with Nalen and did call to tell the girls to come down at or about 1 p.m. They did that, and came prepared once again to also emphasize the shortages of tools and help that were plaguing their lives. And again three girls came from each floor and gathered at the designated time in the conference room. In a matter of minutes Coe was called to Nalen's adjacent office, where she found Meskie and the personnel director. Nalen simply told her she was then and there fired, and Coe left. A very revealing phrase from Nalen's testimony as to what he did immediately upon discharging Coe merits attention here. Asked what happened next, he said: "I went to that room [the conference room]. I advised the aides that the meeting would have to be brief. . . . I sat down with the aides to see what their particular issue was.... In the light of the belabored insistence at the hearing that the "unauthorized" meeting had been called by Coe personally, without permission or even knowledge of either Nalen or Meskie, this admission by the personnel director that he calmly started to hold the usual and regular joint conference to hear employee complaints virtually gives the lie to the entire defense of discharge for cause. Nalen even said that it was after he had started the meeting as always that Meskie entered the room and called the whole thing off. If, as the Respondent contended during the hearing in this case, all these girls were that moment neglecting pressing duty and disregarding rules by being down there, the personnel manager would have sent them scurrying right back to their posts. The truth of the matter is Nalen's secretary did pass on to him the request for a meeting and did, on his authority, tell the girls they could come down and exactly when. There is no denial of all this having taken place. The total defense stands discredited for a more pervasive reason. At the start of the hearing the Respondent moved to quash a subpena, issued by the General Counsel and calling for certain company records, on the ground it had not been served on any agent or employee of the Respondent. The subpena had been served on Nalen, who throughout the hearing referred to himself as no more than a "consultant." This position - removing Nalen complete- ly from the entire cast of characters - was intended to fit into Meskie's story, who said it was she who made the decision to discharge Coe. Nalen, who in fact discharged Coe, having been the Respondent's official representative at the election, could hardly claim ignorance of Coe's union activity, so he was removed via the euphemism of the title. Meskie denied knowledge of Coe's activities, and thereby made her claimed participation in the discharge superficially respectable. On cross-examination Nalen admitted he is paid by the Respondent, has an office and a secretary in the home, works on policies relating to terms of management of the employees, and comes into contact with all the employees and the supervisors. There is also uncontradicted testimony that whenever an employee is given a reprimand or warning notice which then goes into her personnel file, she is called to Nalen's office, where he discusses it with her, and sometimes asks her to sign it. At a preelection meeting held by the Union at a public place, Nalen was invited by Patrick, an official of the Union, to give the Employer's version to the employees. Nalen admitted he debated the union pros and cons with Patrick. As to his having been present at the election, he said he signed the tally of ballots under the Respondent's printed full name "as a consultant, sir." I find, considering all the evidence, that the Respondent discharged Patricia Coe in retaliation for her persistent concerted activities, first in the name of the Union and thereafter in common cause with fellow employees, and thereby violated both Section 8(aX3) and (1) of the Act. It is not true that Coe did anything without authorization of the personnel director, or that she caused employees to leave their work stations in violation of company rules. She violated no rules when resting a few moments while the patients were taken care of, because the owner had given her, and the others, express permission. Had Supervisor Meskie felt Coe's manners on September 5 merited censure, she would have criticized, or warned her, then. The fact is Meskie's ire was directed to Mrs. Bownes for going over the head of the director of nurses and giving orders to the underlings. Meskie chose instead to issue her reprimand warning early on the morning of September 9. On the afternoon of September 8, Mrs. Bownes and her son, the administrator, walked through the corridors and spoke to the aides on 452 BARNWELL NURSING HOME & HEALTH FACILITY duty and told them, as Coe testified, to say to the patients that a television news report about mother and son having been indicted was not true. Bownes also said, still according to Coe, that she and other aides had caused trouble for the owner over the coffee drinking incident. When Coe responded she had only done what Mrs. Bownes had said was permitted, the son told her she could quit the place if she did not like it there, and Bownes then said the same thing. Bownes, testifying later, did not contradict this; she said only that Coe was disrespectful to her and that she "turned on [her] heels and left." The son quoted her differently. His story is that the mother asked if the patients were "all right," and that Coe answered "they're all right." Both these witnesses simply stated the general conclusion that the girl was rude. The incident explains the timing of Meskie's issuance of the reprimand notice the next morning. It was an obvious implementation of a decision to start the ball rolling to get rid of Coe and had nothing to do with any individual misbehavior on her part. With the management's witnesses not credible, I also believe Coe's testimony that, when giving her the warning notice on September 9, Meskie was very angry and said, among other things: "[M Jy job was on the floor taking care of the patients and she says, trouble, the union, all this, if I hear anything more out of you, I am personally going to escort you out the door." This was the supervisor literally telling Coe her activities with the employees, whether "union" or "trouble" - less than union, but concerted nevertheless - would have to cease. I find that the threat so spoken was a deliberate coercion and a violation of Section 8(a)(1) of the Act chargeable to the Respondent. But Coe did not heed. In the face of Meskie's warning to desist, and the explicit direction not to tell other employees about the warning notice, she simply continued generating the same old concerted action. And the discharge followed in a matter of hours. About 2 weeks before the June 29 election, during a talk with employees, Sylvia Hoose, head of the housekeeping department and a conceded supervisor, said "that we would be in trouble if we had signed the cards and she knew about it." This is from the testimony of Deborah Schermerhorn, at the time an employee in housekeeping. I credit the employee against Hoose's denials, and I therefore find that the head of the housekeeping depart- ment also violated Section 8(aXI) by the threat to the employees. Nurse Doris Hotaling's duties include making periodic evaluations of the employees' work performance. These written evaluations, some received in evidence over her signature, are kept in the employees' personnel files. When the report is made, the employee is called to the office, where it is discussed with her and she is asked to read it and sign it. There are two such evaluations in evidence, one to employee Van Allen, dated July 12, 1976, and one to Lura Devleer, issued the same day. The first shows, in Hotaling's handwriting, "Cherri was not obvious about her desires for a 'Union Shop' at Barnwell. (At least not with I 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. me)." The second reads "Lura showed good composure while working daily with girls whose ideas differed greatly from her's (regarding a 'Union Shop')." The conclusion is inescapable that when an employee is told, in unmistakable written words, that her attitude towards union activity bears so direct a relationship to how the employer will weigh her value as an employee, she is being "coerced," as that concept is set out in the statute. Whether or not Hotaling is a supervisor within the meaning of the Act is totally beside the point. Clearly she is the agent of the employer for evaluating the merits of employees in the context of their union activities. The girls are shown these evaluations in the office of the personnel director, and they know the records are then kept in their personnel files. I find that, by so recording its impression of the employees' union activity and attitude, the Respondent violated Section 8(aX I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set out in section III, above, occurring in connection with the operations of Respondent described in section I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. By discharging Patricia Coe the Respondent has engaged in and is engaged in unfair labor practices within the meaning of Section 8(aX3) of the Act. 2. By the foregoing conduct, by threatening to dis- charge employees in retaliation for their union activities, by telling employees their employment status would suffer if the Respondent learned of their prounion activities, and by evaluating employee performance in part on the basis of their attitude towards union activity, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aXl) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) 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: ORDER' The Respondent, Barnwell Nursing Home and Health Facility, Inc., Valatie, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 200, General Service Employees Union, S.E.I.U., AFL-CIO, or any other labor organization of its employees, by discharging employees or otherwise discriminating against them in 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. 453 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their employment conditions because of their membership in or activities on behalf of the above-named or any other labor organization. (b) Threatening to discharge employees in retaliation for their union activities, telling employees their employment status would suffer if the Respondent learned of their prounion activities, or evaluating employee performance in part on the basis of their attitude towards union activity. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Patricia Coe immediate and full reinstatement to her former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges. (b) Make Patricia Coe whole for any loss of pay or any benefits she may have suffered by reason of the Respon- dent's discrimination against her. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records, and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Valatie, New York, copies of the notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by its representatives, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 having found, after a hearing, that we violated the Federal law has ordered us to post this notice and abide by it. WE WILL NOT discourage membership in Local 200, General Service Employees Union, S.E.I.U., AFL- CIO, or in any other labor organization of our employees, by discharging any of our employees because of their membership in, support of or activities in favor of the above-named or any other labor organization. WE WILL NOT threaten to discharge employees in retaliation for their union activities. WE WILL NOT tell our employees that their employ- ment status will suffer if we learn of their prounion activities. WE WILL NOT evaluate employee performance in part on the basis of their attitude towards union activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization, to form, join or assist Local 200, General Service Employees Union, S.E.I.U. AFL- CIO, or any other labor organization, or to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities. WE WILL offer Patricia Coe immediate and full reinstatement to her former position or, if such position no longer exists, to a substantially equivalent position. WE WILL pay Patricia Coe for any loss of earnings she may have suffered as a result of our discrimination against her, plus interest at 6 percent. BARNWELL NURSING HOME AND HEALTH FACILITY, INC. 454