Mapleview Nursing Home, Inc.

211 302 NLRB No. 37 MAPLEVIEW NURSING HOME 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evi- dence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex- amined the record and find no basis for reversing the findings. In the seventh par. of sec. II of the judge’s decision, the judge inadvertently stated: ‘‘On February 27, 1989, Kanable, together with four other nurses aides and LPN’s met with Meddaugh.’’ The record reveals that, on February 23, 1989, Kanable, together with three other licensed practical nurses, met with Meddaugh. In the 15th par. of the same section, the judge also inadvertently stated: ‘‘She did not show this evaluation to Kanable. . . .’’ We find that he meant to state, ‘‘She did not show this warning notice to Kanable . . . .’’ These inadvertent errors do not affect the validity of the judge’s ultimate con- clusions. In affirming the judge’s credibility resolutions, we find it unnecessary to rely on his finding in par. 14 of sec. II of his decision, where he finds one particular example of Carnevale’s testimony to be ‘‘incredible.’’ The testimony he refers to in that paragraph is consistent with previous testimony. In the absence of exceptions, we do not pass on the judge’s failure to ad- dress and rule on the complaint allegations that the Respondent violated Sec. 8(a)(1) of the Act on March 7, 1989, by issuing a verbal warning to Kanable, and on April 6, 1989, by issuing a performance evaluation with a below-aver- age rating to Kanable. 2 We shall modify the Order to provide the usual expunction remedy for this type of case. Mapleview Nursing Home, Inc., d/b/a Mapleview Nursing Home and Patricia Kanable. Case 1– CA–26473 March 27, 1991 DECISION AND ORDER BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH On May 30, 1990, Administrative Law Judge Thom- as A. Ricci issued the attached decision. The Respond- ent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge’s decision. 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 de- cided to affirm the judge’s rulings, findings,1 and con- clusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Mapleview Nursing Home, Inc., d/b/a Mapleview Nursing Home, Washington, Massachusetts, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). ‘‘(a) Offer Patricia Kanable immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privi- leges previously enjoyed and make her whole for any loss of wages or benefits resulting from her discharge, to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987).’’ 2. Insert the following as new paragraph 2(b) and reletter subsequent paragraphs. ‘‘(b) Remove from its files any reference to the un- lawful discharge of Patricia Kanable and notify her in writing that it has been done and that the discharge will not be used against her in any way.’’ 3. Substitute the attached notice for that of the ad- ministrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT discharge you or in any other manner discriminate against you in retaliation for protected, concerted group activity. 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 offer Patricia Kanable immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privi- leges previously enjoyed and WE WILL make her whole for any loss of wages or benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL notify Patricia Kanable that we have re- moved from our files any reference to her discharge and that the discharge will not be used against her in any way. MAPLEVIEW NURSING HOME, INC., D/B/A MAPLEVIEW NURSING HOME Avrom J. Herbster, Esq. and Kathleen Matthews, Esq., for the General Counsel. Paul E. Stanzler, Esq. (Burns and Levinson), of Boston, Massachusetts, for the Respondent. Ms. Patricia Kanable, of Hinsdale, Massachusetts, in person. DECISION STATEMENT OF THE CASE THOMAS A. RICCI, Administrative Law Judge. A hearing in this proceeding was held on November 6, 7, and 8, 1989, at Pittsfield, Massachusetts, on complaint of the General 212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Counsel against Mapleview Nursing Home, Inc. (the Re- spondent or the Company). The complaint issued on August 16, 1989, on a charge filed on June 29, 1989, by Patricia Kanable, an individual (the Charging Party). The issue pre- sented is whether, as alleged in the complaint, Kanable was discharged in violation of Section 8(a)(1) of the statute. Briefs were filed by the General Counsel and the Respond- ent. On the entire record, and from my observation of the wit- nesses, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a corporation, with an office and place of business in Washington, Massachusetts, is engaged at that location in providing health care and nursing services. Annu- ally, in the course of its business, it derives gross revenues in excess of $100,000. Annually, in the course of that busi- ness, it purchases and receives at that location products, goods, and materials valued in excess of $50,000 directly from points outside the Commonwealth of Massachusetts. I find that the Respondent is an employer within the meaning of the Act. II. THE UNFAIR LABOR PRACTICE This is a very simple case. Apart from short breaks in services in 1965 and 1983, Patricia Kanable worked for this Company for 25 years, from 1960 to the day of her dis- charge in 1989. Starting as a nurses aide and dishwasher, she progressed to licensed practical nurse (LPN) and finally to registered nurse (RN). In February 1989, on or about Feb- ruary 23, together with four other employees, Kanable com- plained to the director of the nursing home, its chief adminis- trator, about problems they were having on the job because of the too frequent absences of Donna Carnevale, the director of nursing, who normally supervises them and considers their day-to-day problems with the many resident patients they take care of. Toni Meddaugh, the administrator, then talked with Carnevale about that complaint. On April 13, with no previous notice or warning, Carnevale discharged Kanable. Did Carnevale discharge that nurse because for a long time she had been an intolerable, inefficient, disobedient, and of- fensive employee, or in retaliation for her concerted statutory protected activity in complaining about the chief nurse’s ex- cess absences? There is a pervasive question of credibility between Kanable and Carnevale on this record. Kanable detailed her employment history with this Company, explaining how she had always got along well with management. Carnevale whose testimony covers about 200 pages of the transcript, spoke without end about the employee’s past insubordination and continuing errors which had long endangered the lives of the residents and made possible the closing down of the Nursing Home by the State Inspection Authorities. On this total record, which of them is to be believed? Before getting to that question, which goes to the heart of the case, there are certain very undisputed facts which must be considered. This Company has a long-established system of issuing record warnings to its employees for violations of work rules and all other forms of misbehavior or incom- petence of the job. Some are signed by the employees when they are put in the files and some are not. All of them are maintained in the employee’s personal files. Not once, throughout her long employment here, was a warning issued to Kanable or put in her file. I cannot think of a more sig- nificant fact in a case of this kind. There is an evaluation made once a year, always on about August, of each employee. The last one made of Kanable was in August 1988. Among its comments are the following: ‘‘skill-yes, knows administrative duties well’’ ‘‘work habits . . . yes . . . well organized and meticulous’’ ‘‘attendance . . . is excellent’’ ‘‘cooperations . . . gets along well with nursing assistants’’ ‘‘performance evaluation . . . above av- erage.’’ ‘‘Potential . . . excellent.’’ During the last 2 years of her employment Kanable was a student at a local college towards becoming a registered nurse. To facilitate her attendance there her hours of work were scheduled so as to make it possible for her to get to the school on time everyday. For about 3 years, during the period Kanable was going to the college, the Respondent re- imbursed her a ‘‘percentage’’ of the tuition it cost her. In May 1987, while a student at the college, Kanable was given a special award ‘‘for demonstrating the greatest efficiency in providing nursing care’’ and in January 1989, just 3 months before her discharge, Kanable was selected as ‘‘employee of the month’’ of the nursing home. She received a wristwatch with the award. Signed by Meddaugh, the administrator, the award certificate reads as follows: Now gives honorable recognition for its superior job performance, in supporting, positive attitude, a coopera- tive effort with co-workers and a noted spirit of dedica- tion to maintaining the highest quality of life for those residents served here, Patricia Kanable has been se- lected to be the employee of the month. What better objective evidences can there be to prove that throughout her employment Kanable was as perfect an em- ployee as any nursing home could want and that the Re- spondent was well aware of the fact? About 1 month after complaining to management about necessary improvements and conditions of employment—in the interest of the Company!—Kanable was fired. On February 27, 1989, Kanable, together with four other nurses aides and LPNs met with Meddaugh, the director, and spoke of their concerns about not being able to fulfill their regular duties in the frequent absences of Carnevale, their immediate supervisor. This position, and the reason for their request for assistance, is best stated in Kanable’s words at the hearing, uncontradicted by anyone. ‘‘The families of the residents would call, and they would have questions that they wanted answered by the Director of Nursing, and since she wasn’t there, we would have to substitute and answer them the best we could. The patients, themselves, would have questions that they wanted to speak to Donna about because they relied on her. She was a status symbol in the Nursing Home. The Nurse’s Aides had questions that they wanted to speak to Donna about, and she wasn’t there to answer them, and she would leave them notes or the Nurse’s Aides would leave her notes.’’ Meddaugh told the girls she would think about the prob- lem and would get back to them. When Carnevale returned to work a meeting of all the licensed nurses was held, where 213 MAPLEVIEW NURSING HOME they were given a detailed statement of their duties. Meddaugh told the employees then that they were being ‘‘unfair to Donna because her mother was ill and making her work very difficult.’’ The meeting closed inconclusively. About a week later Kanable telephoned Terry Clark, whose office is in a city in Ohio, and who was personal di- rector of HCR, the parent company which owns the Mapleview Nursing Home here involved. Clark was not in, and Kanable spoke to the girl in the office. She said she was calling from Mapleview Nursing Home and explained the problem the nurses aides were having, ‘‘that Donna wasn’t in the building and that it was making life—our work much harder . . . .’’ The girl asked for Kanable’s name, but she refused to give it. She identified the girls who had voiced the complaint ‘‘only with years of service, with their approx- imate years of service.’’ The girl said she would pass the message to Clark. On March 22, Clark came to the Nursing Home and met with all the licensed nurses. He started by reading what the secretary had written down, ‘‘that I [Kanable] had told him of the problem.’’ When Clark asked who had made the call no one answered. After saying that ‘‘what was decided be- tween the Director of Nursing [Carnevale] and the Adminis- trator Meddaugh was alright with him,’’ he refused to hear anymore about the problem. He did say that the Nurses ‘‘were being heartless about Carnevale.’’ One of the nurses present, Michele LaPier, testified without contradiction, that when talking about the telephone message he had received, Clark also said, ‘‘Whoever had called was the one with the twenty-seven years of service.’’ That the Respondent knew that Kanable was not only one of the activists in the con- certed activity but the most active among them could not be clearer on this record. And finally, there is the question of timing. Three months after giving an employee a gift and an honor certificate for outstanding performance, 2 or 3 weeks after admitting its knowledge of her pressing position in perfectly protected concerted activity, the Respondent discharges the longest em- ployee among its total complement, an employee who had not once in 29 years of service been issued a formal criticism of any kind. I find that this record proves a perfect prima facie case in support of the complaint. There is no direct evi- dence of animus against Kanable because of her concerted activity, and this is one fact the Respondent relies heavily in defense. The Board has repeatedly held that direct evidence of discrimination is not necessary to support a finding of ille- gality and that such an intent be established by circumstantial evidence on the record as a whole. Abbey’s Transportation Services, 284 NLRB 698 (1987). The last question therefore becomes: Did the Respondent come forth with a convincing affirmative defense of dis- charge for cause sufficient to offset the prima facie case proved by the General Counsel? Wright Line, 251 NLRB 1083 (1980). I think not. The testimony relating to Kanable’s alleged incompetence was offered entirely by Carnevale, the head nurse and super- visor in charge of all the LPNs and nurses aides. Her story— page after page of repetitive details about the aide’s careless errors and deliberate violations of safety work rules, is the most unbelievable retailing of the past. Again and again she was evasive, she equivocated, she refused to answer ques- tions directly, she contradicted herself, and in its totality, her story conflicted with her admitted actions in the past. When an affirmative defense of discharge for just cause is false, the persuasiveness of the General Counsel’s prima facie case is greatly strengthened. This is an old principle of Board law. Shattuck Denn Mining Corp., 151 NLRB 1329 (1965), enfd. 362 F.2d 466, 470 (9th Cir. 1966). Carnevale started her story by saying she decided to re- view Kanable’s past record as a result of a meeting she had with a certain Theresa Hinkell, a consultant from the head- quarters of the parent corporation who visits homes on rare occasions. It was in consequence of this conservation, held February 29, according to her, that Carnevale studied all the past records of Kanable’s work with the patients. From her testimony: ‘‘What did you say and what did she say? A. I had a concern about Patty Kanable. I don’t think I mentioned her even by name. I said charge nurse and some problem with new order for antibiotics.’’ ‘‘I said that I was concerned about a decline and attitude problems, and some complaints by the other nurses to me about her. Did you rely those com- plaints to—hold on, to Ms. Hinkell? A. Yes.’’ Yet, in the middle of her testimony Carnevale had also said, ‘‘I don’t think I mentioned her [Kanable] by even her name.’’ This is but one example of the witness’ incredible testimony. Hinkell also testified. She said that at that meeting on Feb- ruary 29, she advised Carnevale ‘‘to start and document inci- dents and keep careful documentation of their concerns.’’ This was the consultant saying the supervisor should in the future make records of employees errors. But that was not what Carnevale did. She went back and carefully examined, according to her testimony, all the patient records that Kanable had ever dealt with. From all those old records she prepared a list of errors by Kanable that included alleged er- rors dating back to December 1988. On March 7, a week after her talk with Hinkell, she made up a warning notice for Kanable’s file. It lists a number of errors and violations by Kanable dating back to December 1988. She did not show this evaluation to Kanable, which is the standard practice in the nursing home. On April 6 she made up what she called an evaluation of Kanable which called her performance ‘‘below average.’’ By April 13, Carnevale had prepared still another listing of Kanable’s past violations. This one, four pages long, in- cludes details of about 30 incidents. When Kanable saw that list of errors she noticed the word ‘‘insubordination.’’ With- out looking at it further she refused to sign it. That same day Kanable was discharged. In her testimony, Carnevale spoke of practically every one of those past incidents—many going back to 1988, and ex- plained, an unintelligible jargon, just what had happened long ago. Some she said she understood from the old re- corded documents; others she said he recalled the things hav- ing happened with her personal participation. Shown the many old documents on the witness stand Kanable spoke of them differently. She explained how what had happened was but the normal way of doing things. She recalled talk of some of them at the time with her superiors. While there ap- pears disagreement between the two witnesses as to the meaning of this or that in the countless entry on those records, one part of Kanable’s testimony—which I consider the determinative factor here—is uncontradicted. And it is that during not one of all those incidents did Carnevale ever criticize her or find fault with anything she had done! Be- 214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec- tions to them shall be deemed waived for all purposes. tween the two, there is no doubt in my mind that Kanable was telling the truth and Carnevale was lying throughout. If there is any doubt about the credibility finding it is completely cleared by the following truth, a matter without question on this record. Carnevale’s job description contains the following: ‘‘spot check nursing records periodically to ensure their upkeep.’’ From her testimony: ‘‘Q. What is your job again; your duty is what? The witness: It’s my duty as head nurse to know about these mistakes, know for the sur- veyor whose going to ask me. . . .’’ ‘‘Q.: Again referring to your concerns about the potential impact of recordation error on patients, as part of your job responsibilities you, yourself, in fact, did periodic audits of the records; did you not? A. No. I did spot checks.’’ From all this it follows that when Carnevale, after the con- certed activity which she resented, started studying old records, all she was doing was attempting to create a false record of violations by Kanable to have a colorable defene for the discharge which she had already decided on. She al- ways knew what was in those records, because it had always been her duty to keep looking at them. She had only a short time earlier praised the employee for her excellent, outstand- ing work performance. And her oral testimony about those various alleged violations is utterly unconvincing. There is no need to keep repeating here all the meticulous details about what she keep relating. It is enough to find her entire attempt to create an ex post facto defense false. As a belated defense to the complaint, not mentioned in its answer, the Respondent asserted at the hearing that all its LPNs—there are eight of them in this home—are supervisors within he meaning of the Act, and that therefore the com- plaint must be dismissed regardless of any illegal motive. Again, credibility between Kanable and Carnevale. Kanable detailed her duties very explicitly. She never hired or fired any employee; she never recommended any such actions. She never had anything to do with discipline, nor was she asked for such recommendations. She helps the aides when necessary but does not assign work to them. She may not transfer an employee from one assignment to an- other. She never approved or authorized overtime by anyone. She keeps no records and has nothing to do with employees evaluations. Finally, as proved by documents in evidence, she has nothing to do with issuance of criticisms or warn- ings. A number of such dated warnings from the files of em- ployees—covering 1988 and 1989, were received in evi- dence. Everyone is made out and signed by Carnevale as a supervisor. Only one, made out 5 months after Kanable’s discharge, was also signed by an LPN; it is a criticism with no disciplinary action. Against this Carnevale said an LPN can ask an aide to re- main after her scheduled shift ends if necessary to care for a patient, and also can ask an aide to go from one section of the home to another when needed. Carnevale also testified that the LPNs have authority ‘‘to write them [the aides] a written warning—verbal warning.’’ Then she added that peo- ple in Kanable’s position also ‘‘have the right to evaluate and write up a nurses aide.’’ The witnesses offer no records to support her testimony, and the ones in evidence belie her story. I do not credit the witnesses at all. If in fact the nurses aides in the past were authorized to run the home with only the LPNs as supervisors, and if in fact they normally do that, why would the LPNs have complained about Carnevale’s ab- sences making their lives more difficult? The General Counsel correctly contends that supervisory status is not proved by authority exercised in a routine, cleri- cal, or sporadic manner, as shown here. Ohmite, Co., 290 NLRB 1030 (1988). I found that Kanable was not a super- visor within the meaning of the Act. In sum I find that the Respondent discharged Kanable on April 14, 1989, in retaliation for her protected concerted ac- tivity and thereby violated Section 8(a)(1) of the Act. III. REMEDY In having been found that the Respondent discharged Pa- tricia Kanable in violation of the statute, it must be ordered to reinstate her to her prior employment and to make her whole for any loss of earnings she may have suffered be- cause of the illegal discrimination against her. The Respond- ent must also be ordered to cease and desist from committing any further violations of the statute. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE ON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the operations of its business, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. By discharging Patricia Kanable on April 14, 1989, the Respondent has violated and is violating Section 8(a)(1) of the statute. 2. The aforesaid unfair labor practice is an unfair labor practice within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended1 ORDER The Respondent, Mapleview Nursing Home, Inc., d/b/a Mapleview Nursing Home, Washington, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or in any other manner discriminating against its employees in retaliation for their protected, con- certed group activity. (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Offer Patricia Kanable reinstatement to her former em- ployment and make her whole for any loss of pay or benefits she may have suffered by reason of the Respondent’s dis- crimination against her, with interest there are to be com- 215 MAPLEVIEW NURSING HOME 2 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Rela- tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ puted in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB 1173 (1987). (b) Preserve and, on 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. (c) Post at its place of business in the Nursing Home, in Washington, Massachusetts, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms pro- vided by the Regional Director for Region 1, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are customar- ily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.