Miami Health Care Center

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Health Enterprises of America , Inc., d/b/a Miami Health Care Center and Cynthia Flora and Robin Lynn Gross and Violet Ferguson and Linda Welbaum. Cases 8-CA-18242, 8-CA- 18341, 8-CA-18450, and 8-CA-18451 20 November 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 15 August 1986 Administrative Law Judge Wallace H. Nations issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed exceptions, a supporting brief, and an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Health En- terprises of America, Inc., d/b/a Miami Health Care Center, Troy, Ohio, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law ,fudge's credibility resolutions unless the clear preponderance of all the relevant evidence 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 examined the record and find no basis for reversing the findings We note two errors of the judge, which do not affect the results The incident that resulted in Gross' discharge occurred during her shift on 16 April Secondly, the judge inadvertently referred to Greg Croft as Greg Cross. Steven Wilson, Esq., for the General Counsel. Thomas A. Reidy, Esq . and Douglas Tilson, Esq., of Co- lumbus, Ohio, for the Respondent. James R. Livingston, Esq, of Troy, Ohio, for the Charg- ing Party. tion 8(a)(1) of the National Labor Relations Act (the Act). On 18 June, Robin Lynn Gross filed a charge al- leging that her termination by Respondent violated Sec- tion 8(a)(1) and (3) of the Act. On 26 July, Violet Fergu- son and Linda Welbaum each filed an unfair labor prac- tice charge alleging that Respondent violated Section 8(a)(1) and (3) of the Act by terminating their employ- ment. The Regional Director issued a consolidated com- plaint and notice of hearing on 18 September with re- spect to these charges. Respondent filed an answer deny- ing that it has violated the Act. A hearing was held on 28-30 January 1986 before me at Troy, Ohio. At the hearing, settlement of all inde- pendent 8(a)(1) allegations were reached and these alle- gations are no longer at issue in this proceeding. Subse- quent to the hearing,- briefs were received from Respond- ent and the General Counsel. On the entire record in this proceeding and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, an Ohio corporation, with an office and place of business in Troy, Ohio, has been engaged in the operation of running a nursing home known as the Miami Health Care Center (MHCC). Respondent admits the jurisdictional allegations of the complaint and I find that it is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED It is conceded by all parties, and I find, that Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local No. 957 (Union) is now and, at all times material to this proceed- ing, has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES As noted above in the portion of this decision entitled, "Statement of the Case," all independent 8(a)(1) allega- tions contained in the consolidated complaint have been resolved by settlement reached at the hearing and ap- proved by me. There remains for decision in this consoli- dated proceeding whether the termination by Respond- ent of Robin Gross, Violet Ferguson, and Linda Wel- baum constitutes unfair labor practices within the mean- ing of Section 8(a)(1) and (3) of the Act. DECISION STATEMENT OF THE CASE WALLACE H. NATIONS, Administrative Law Judge. On 6 May 19851 Cynthia Flora filed a charge alleging that Health Enterprises of America, Inc., d/b/a Miami Health Care Center (HEA or Respondent) violated Sec- i All dates are in 1985 unless otherwise stated A. Background Since October 1983, Respondent Health Enterprises of America, Inc. has operated the Miami Health Care Center in Troy, Ohio, dedicated to the care of the elder- ly and infirm. Respondent operates its facility pursuant to a lease with the county commissioners for the county of Miami, Ohio. Previous to Respondent's operation of the facility, it was operated by Dettmer Hospital. 282 NLRB No. 33 MIAMI HEALTH CARE CENTER 215 Dettmer is also owned and operated by the, county of Mimi and is located adjacent to the nursing home. in late February or early March 1985, Teamsters Local 957 began a union organizing campaign at MHCC. On 28 May a representation petition was filed by Team- sters Local 957 and a Board election was held on 9 August. Teamsters Local 957 failed to receive a majority of the ballots cast and the results of the election were certified shortly thereafter. There had been a prior organizing campaign by an- other union approximately 1 year earlier that did not result in a petition for representation being filed. Cynthia Flora, the Charging Party and nurses aide with Respond- ent, testified that during the earlier campaign, while on duty, she was asked by Respondent's administrator, Robert Creason, to come to his office, whereupon he asked her the names of people-involved with the Union. Flora testified that Creason said he had a list with ap- proximately six names on it and he needed about four more to add to his list. She stated he indicated he would then have 10 names and would be able to terminate all of them. In response to Creason's statements, Flora said she knew nothing about the campaign. Creason denies the conversation took place. Kathy Stepp was employed by MHCC from the second week in December 1984 to mid-July, when she resigned. During the time she worked at Respondent's facility, she was a registered nurse and a supervisor. Stepp testified that in June she and Mary Stemler, Re- spondent's director of nurses and an admitted supervisor, went to a local Troy restaurant for drinks. Stemler con- fided in Stepp that when she started to work at MHCC she had been given a black book containing a list of em- ployees compiled by Creason. It was explained to Stemler that these were people to watch out for and ones Respondent wanted to get rid of. Some of the names in the book included ; Cynthia Flora and Robin Gross. Because of the corroborating testimony of Stepp about this list, I find that Respondent was keeping a list of suspected union activists in the first organizing cam- paign.2 2 Stepp offered much of the evidence in the record with respect to Re- spondent's union animus and hostility toward the alleged discrirmnatees. Therefore, the credibility of this witness is important and Respondent at- tempted to question the credibility of Stepp. At the hearing, I carefully observed the demeanor of the witness as well as the other witnesses who testified and believe Stepp to be a credible person. As can be seen from the decision, much of Stepp's testimony involved recollections of conver- sations she had with Supervisor Mary Stemler, Respondent's director of nurses Stemler was not called to rebut any of the testimony given by Stepp and no reason was given for the decision not to call her as a wit- ness. Respondent raised the issue that Stepp did not tell the entire truth on her application form when she applied for a job with Respondent be- cause she failed to note that she had worked for a hospital immediately prior to her application and had been fired from that position. The evi- dence also reflects, however, that Stepp informed Stemler of the situation and Respondent's management knew of it and continued to keep her in its employ. Stepp was not terminated from HEA, but resigned for her own -reasons. I can detect no animosity toward Respondent in her de- meanor and can find no reason whalsoever to discredit her testimony. She also credibly indicated that she thought unions had no place in a nursing care facility and specifically disliked the Teamsters. Much of the testimony given in this case was initially forced from Stepp, who consid- ered herself a close, professional friend of Stemler, in a civil lawsuit depositions taken in June. ,"In addition to her role as the Charging Party in this proceeding, Cynthia Flora is also a plaintiff in a civil lawsuit against Respondent with five other persons, in- cluding the other Charging Parties in this proceeding. The lawsuit alleges that some of the employees found a listening device about 9 March in the breakroom at the Health Center. Upon learning of the alleged existence of the listening device, Flora contacted Attorney James Livingston, who is also attorney for the Union. Living- ston instructed her to retrieve the listening device and if she could not do so, -to take a picture of it. Flora and another employee, about 12 March at Respondent' s facil- ity, obtained keys from Kathy Stepp and went down- stairs to the furnace room. They unlocked the door and noticed wires inside the door, evidently running up and through the ceiling. Flora pushed the ceiling tile up and started taking pictures of the wiring. They followed the wiring as best they could, which seemed to go into the breakroom. Flora then proceeded upstairs to the break- room and climbed onto a table to reach the speaker in the ceiling where the listening device had been allegedly discovered. At this point, she discovered what had been described as a listening device was missing although there were wire connections where the device supposed- ly had been. The lawsuit for invasion of privacy was filed shortly thereafter and is pending in the courts at this time. In 1985, Kathy Stepp became aware of the existence of the union organizing campaign when she received a union organizing card in the mail. A week or two later, she had a conversation with Director of Nurses Stemler, who stated that she did not want a union at all, that she hated unions, and specifically hated the Teamsters Union as her father had been driven out of business by it. Thereafter, on a regular basis, during Stepp's conversa- tions with Stemler, matters relating to the Union and the campaign would arise. During one of these conversa- tions, Stemler asked Stepp if she knew who was in- volved in the union campaign and upon being . given an affirmative answer by Stepp, indicated she would like to know the names of the involved employees. During a later conversation, Stemler told Stepp that if the nursing home learned of the campaign they would try to shut down the union activities immediately and, as they had a number of other nursing homes, they would just shut the doors rather than go through the difficulty of, dealing with the Union. Stemler also told Stepp that after the news of the civil lawsuit had been published in the newspaper that "This is all we need. The home office has gotten wind of this and they're going to . . . be-down her[e] tomorrow or the next day . . . to see what is going on at the nursing home." During this conversation, Stemler referred to the plaintiffs in the lawsuit as the "Dirty half dozen." Stemler and Stepp,-also, discussed their scheduled pay raises in context of the Union with the hope that they would get their raises on time. Stemler told Stepp there might be a wage freeze because when a union comes in and negotiates the wage raises are all frozen. Stepp also testified that Stemler told her she had discussions with Creason, in which he indicated Respondent would con- 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duct a campaign of its own. Stemler told her the names of persons she believed to be involved in the Union, in- cluding the alleged discriminatees in this proceeding. Union Attorney Livingston, early in the campaign, sent a list of the union activists to Respondent and Respondent was at all times aware of the identities of these activists, which included the discriminatees. Stepp also testified that Stemler, on a frequent basis, stated regarding the union activists, "that we're going to find anything we can on them to get their `butts' out the door." Stemler also instructed Stepp that there would be a stringent enforcement of Respondent's no-solicitation rule with respect to anyone caught soliciting for the Union so the Company could take proper action against them. Administrator Creason would like to disassociate himself and Respondent from the statements of Stemler. However, Stemler was one of Creason 's two manage- ment assistants and they had frequent contact . It would strain credibility beyond reason to believe that he would not have known of Stemler's antiunion views and her ac- tions. Based on the foregoing evidence, I find that Respond- ent harbored antiunion animus and strongly desired to rid itself of its union activists, who are also the plaintiffs in the civil lawsuit against it. B. The Termination of Robin Gross Gross began her employment as a nurses aide with Re- spondent on 1 October 1983 . She was terminated by Re- spondent on 7 June. She worked at the Health Care fa- cility since 9 March 1981 while Dettmer Hospital operat- ed the facility. Gross was involved in the Teamsters or- ganizing campaign and aided in getting people to sign authorization cards. At the time of Gross' termination she worked the third shift, which operated from 11 p.m. to 7 a.m. The inci- dent that resulted in Gross' discharged occurred during her shift on 16 April. On the morning of 17 April, Direc- tor of Nurses Stemler reported to Creason that a resi- dent, Charlotte Dutton, had complained of being verbal- ly abused by one of the Center's employees. Dutton had complained that an employee had threatened to, "tie her up" if she attempted to put on her call light again. It is conceded that threatening residents is a violation of Re- spondent's work rules as well as Ohio law. Gross testified that her first contact with Dutton was on the night of 16 April. Dutton had been admitted to the facility shortly before that date. Prior to caring for Dutton, Gross testified she had conversations with her supervisors regarding the care of Dutton . Gross testified her charge nurse, Elaine Towsend, told her Dutton was a problem patient, did not like the nursing staff, and was complaining to her family and the staff because she wanted out of the facility . Gross testified that she nor- mally wears a uniform but did not that night and was wearing only blue jeans , a plaid shirt, and a black' sweat- er. She also was not wearing a name tag on that occa- sion. Describing the night of 16 April , Gross said she never identified herself to Dutton. Gross testified there was a patient across the hall from Dutton who had a very high temperature and when Dutton would hear the nurses aides with the other patient she would turn on her call light and yell for attention if the aides did not respond immediately. Gross testified she went into Dutton's room as often as she could when Dutton pushed her call light. Dutton asked Gross and another nurses aide, Kim Fowler, where they had been and why they did not get to her when she called . Gross said she told Dutton they got to her as soon as they could but were very busy and did not have the staff to be able to come to her every 5 minutes. Gross told Dutton that if she did not think they were capable of taking care of her to please go to the director of nurses and ask to have another girl put on the shift so that they would have sufficient staffing. Gross testified that Towsend came by the room while she was speaking to Dutton and stood outside the door. About this time, Gross testified that she and Fowler aided Dutton in going to the restroom. Gross testified that she asked Towsend if there was a restraining order for Dutton because she did not have time to stay with Dutton while she used the toilet .3 Gross had been told that Dutton could not use the toilet without assistance. Gross testified that in asking Towsend for the restraining order she intended to put the restraint on Dutton and let her sit on the toilet for as long as she wanted so that she and Fowler could go back across the hall and treat the ill patient. Gross testified this would be a common practice if the patient has a restraining order on file. According to Gross, Towsend said she would check but did not think there was an order to restrain Dutton or , "tie her up," a phrase used interchangeably with restraint at the facility. Gross said Towsend then stated there was no restraining order on file and that the aides would have to stay with Dutton. Gross testified she asked Towsend to check about getting a restraining order from Dutton's doctor and Towsend said she would do what she could. I do not credit Gross' description of the conversation about the restraint with Towsend, primarily because nurses aide Kim Fowler would have been present during this conversation and did not remember it taking place. On the other hand, Gross testified that she found out later that there was a restraining order for Dutton on file, but Respondent had hidden it in hopes that Dutton would fall and they, could fire her for negligence. With- out considering for the moment the correctness of Gross' conclusions, Stepp testified credibly that upon admission Dutton's doctor had signed a restraining order and that, after the incident with Gross, Director of Nurses Stemler had the form altered to appear that there had' not been such an order on file at the time of the incident.'' With respect to the actual incident of alleged abuse, Gross testified that Dutton did not ask her any questions in particular but did ask for Gross to explain about a re- straining order. Gross said she told Dutton a restraining order is, "An order where we get this little jacket that we tie on , to you and then we can tie you to the toilet or your chair so you ' won't fall out and hurt yourself." Gross testified that Dutton then said, "So you kind of tie 3 Towsend did not recall any such conversation with Gross nor did Fowler in her direct testimony or her written statements relating 'to the incident. MIAMI HEALTH CARE CENTER 217 me up, huh?" Gross then told Dutton , "Well, we callAa restraint, but if you want to refer to it as tie you up, it is for your own good." She said that Dutton did not seem upset by her explanation and, said, "Oh, OK ," and then said, "If you girls have something to do and can't stay here with me, I can understand." Fowler gave a written statement regarding to this' inci- dent on 16 April in which she said, "Walked into room (Mrs. Dutton) with Robin Gross to put her on, bedpan, and Robin said to Mrs. Dutton that she had to put her on the bedpan two times in 10 minutes, and that she was being ridiculous. And Mrs. Dutton said she wanted the same attention other people were getting . Robin said she was getting mad and more (and told her if she wanted a private nurse to hire one) then she told her she was going to take her to the pot, and if she got on the light again, she was going to tie her up. Then we took her to the pot and left the room." Fowler testified that Gross had meant restraint when she used the words , "tie up." Fowler uses the term, "tie up" to mean restraint. Fowler further testified that Dutton did not seem upset on the night of 16 April and was always grouchy. She seemed no more upset than normal. There is,substantial testimony in this record that is de- signed to raise the issue of whether Gross actually threatened Dutton, or whether Dutton was threatened by Supervisor Towsend or perhaps yet another person. Having considered all this evidence, I credit the version of the incident given by Kimberly Fowler as set out above. Fowler appeared to be a credible witness who had nothing to gain by telling other than the truth about the incident. Virtually every other person who testified about the incident, except for Stepp, was either in a posi- tion that their testimony would be questionable or more importantly was not a witness to the incident . I do find significant the fact that no one in °management investigat- ed the possibility that someone other than Gross abused Dutton. There was sufficient evidence , available at the outset of Respondent's "investigation" to raise this ques- tion, but it was never considered. Therefore, I find that nurses aide Gross did state to patient Dutton that she would tie her up if she continued to call as frequently as she had been. However , as will be shown by the evidence set out below,, there remains a serious question of whether Gross' statement to Dutton was perceived by Dutton as a threat, and whether Re- spondent would have terminated her for making the statement had she not been a union activist. I firmly be- lieve and will fmd that Respondent, contrary to its past actions regarding allegations of patient abuse, leapt on this incident as an excuse to terminate Gross because of her union activism and thereafter engaged in a spurious investigation over the next 3 months to gather justifica- tion for its action. Regarding the Dutton incident, Stepp testified that Stemler asked her the day after the incident to get a written statement from Dutton. In making the request, Stemler told Stepp that she had one patient , Dutton, who had made a complaint or been upset concerning some things that were said to her. Stemler said she knew Gross was the person who abused Dutton and she needed a statement written by Dutton naming Gross as that person . Stemler did not 'say that Dutton knew the person was Robin Gross. Stepp obtained a statement from Dutton in Dutton's own handwriting. When Dutton originally wrote the statement and gave it to Stepp, the identification of the person who had abused her was not in the statement . Stepp took the statement back to Stemler who said the statement was good but she needed to have Gross' name for identification ,pur- poses. Stepp took the sheet of paper back to Dutton and asked her who was the person who had verbally abused her. Dutton told her, "I think they told me her name was Robin." Stepp rewrote the statement for Dutton so it would be more legible and added the sentence, "The aide's name is Robin Gross." She then took the state- ments back to Stemler who stated upon receiving them, "This is just what we needed." The record also indicates that sometime earlier on 17 April Stemler had called on Dutton . It was highly un- usual for Stemler to call on patients in the facility. In an- other documented case of clear patient abuse in the facil- ity, Stemler conducted virtually no investigation and handed down only a verbal warning. Stepp also testified she had a conversation at a later date with Gross in the facility parking lot where Gross asked her about the investigation. Stepp related to Stemler that she had a conversation with Gross and was asked by Stemler to put in writing what ' they had dis- cussed. Stepp also testified that, at the time, of the 16 April in- cident, there was a restraining order for Dutton on file. When the incident with Gross arose, Stemler reviewed Dutton's chart and saw that she did have a restraining order that, as written, was not an "as needed" order but was one that required her to be restrained at all times. Stemler authorized the form to be changed to an "as needed" order without consulting with Dutton 's physi- cian. Stepp was told about this change by Stemler who told her ,the order was changed because if it had stayed as it was, it would have been discovered that Gross had the right to restrain Dutton in the first place. Stepp fur- ther testified that she went to Stemler much later, per- haps in July, and asked her what she should do about the restraining order. Stemler told Stepp to make out a tele- phone order slip saying to discontinue the restraint and another nurse would take care of calling the physician to receive authorization for this change. Regarding other employees being accused of patient abuse, Stepp testified she knew of an incident involving Elaine Towsend. In this incident, during a change of shifts, she had overheard Towsend using verbally abu- sive language over the intercom system to one of the residents. This incident was brought to the attention of Stemler. Stepp testified a notation was placed on Tow- send's timecard not to worry about the incident and the writeup that took place. Karen Burke, employed as a second-shift supervisor at the facility, testified about the Towsend incident. She was told by nurses aides that in response to being told by the aides that a patient was eating her own feces, Tow- send yelled over the intercom, "So what, its her `shit' let 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her eat it if she wants .. . does it all the time." The remark was directed over the intercom into a room with at least four individuals present, two residents and two aides. Towsend's only discipline for this action was a verbal warning. Approximately around the time of the incident, Stemler took a statement from Pam Dapore, a nonsuper- visory employee, which stated she had received a com- plaint from, Dutton on 17 April that Gross had threat- ened to, "tie her up." She also directed Gross' supervi- sor, Towsend, to physically take Gross to Dutton for identification purposes. According to Towsend, Gross was identified by Dutton as the person who had said she would "tie her up." Upon receiving the statement from Stemler, Adminis- trator Creason testified he reviewed the statements as well as the Ohio statute, which sets forth the rights of residents in nursing homes. He felt the evidence clearly indicated that Gross should be discharged for her con- duct but decided ' to request an independent investigation by the Ohio Nursing Home Ombudsman Program. The Office of the Ombudsman was contacted and an investi- gation was conducted over the next month or so by an employee of that office. On 6 June, Creason received a letter from the Om- budsman's office giving the results of their investigation. The letter says, in part: According to Mrs. Dutton, Ms. Gross said the words: "If you put the light on one more time, I'm going to tie you up." It is evident that the swords and tone of voice Ms. Gross used did upset Mrs. Dutton and caused her to worry. Mrs. Dutton has made it very clear that she did not want to cause Ms. Gross to lose her job. Mrs. Dutton just felt that she should express her concern to someone about Ms. Gross's attitude. I feel disciplinary action is appropriate. The nursing home should follow its personnel policies concerning this type of inappropriate staff behavior. After reviewing the letter from the Ombudsman office and the other statements that had been taken with re- spect to the incident, Creason called corporate counsel for Respondent to confirm his decision to discharge Gross. Corporate counsel, being informed of the contents of the letter, agreed with Creason that he had no alterna- tive but to terminate Gross. Creason then instructed Stemler to terminate Gross. As noted, Gross was dis- charged on 7 June. On 7 June, at approximately 6:30 a.m., Gross' nursing supervisor told Gross that Stemler wanted to see her in her office. Gross went into Stemler's office where Stemler asked her to close the door, sit down and said, "I don't want anyone to hear what I have to say to you." Stemler then handed her a termination notice, which, among other things, referred to an incident of destruction of a patient's property about the time Respondent took over the operation of the facil- ity from Dettmer Hospital. Creason testified he was not aware of this incident at the time the decision to termi- nate Gross was made and mention of the incident was obviously thrown in as an afterthought by Stemler. Gross read the document and told Stemler that it was not true and; asked if this was the best she could do to find things to fire her on. Stemler said site did not care to discuss the matter and Gross told Stemler that Re- spondent had not investigated the matter. Stemler then told Gross to get her belongings, not to speak to anyone, and leave the premises. In fact, no one ever asked Gross her version of what happened on the night of 16 April. In, summary, I will find that the evidence indicated Gross did "threaten" or tell patient Dutton she would "tie her up." I would agree with Respondent's position that some disciplinary action should have been taken. Yet the acts of Respondent after the incident lead only to the conclusion that Respondent was seeking , to justify a previously made decision to terminate Gross and not to seek an appropriate solution ' to the problem. Gross, the perpetrator of the incident, was never called to give her version of the incident or its circum- stances. Kim Fowler, the only eyewitness to, the incident was not asked until 27 April about her version of the in- cident. Statements were taken with the only apparent purpose being to fix the identity of the person who had threatened Dutton as Robin Gross and no investigation into any other possibility was explored. This is true, even though patient Dutton is described at several points in the record as a chronic complainer who would complain about anything, and confusion about the identity of the abuser may be found in Respondent's files on the inci- dent. It also is apparent to me that Respondent was less concerned about Dutton's mental well-being than it was in fixing blame ' on Robin Gross as Dutton became so upset about the "investigation" that her family hired an attorney to protect her interests. Finally, there is the dis- parate treatment given Gross as compared to the treat- ment given to Elaine Towsend for a patient abuse situa- tion at least as bad if not worse than that for which Gross stands accused. Creason was not even called into the Towsend incident nor was any investigation conduct- ed. Towsend was merely given a verbal warning. For all the reasons set forth above, I find that the reason given for the firing of Robin Gross by Respond- ent is pretextual and the real motivation for her termina- tion was Gross' union activity and, though not alleged in the complaint, her concerted activity with the other dis- criminatees in this proceeding in filing a civil lawsuit against Respondent. I find that the General Counsel has established a prima facie case showing union animus and animus toward Gross in particular for her prounion ac- tivities and, establishing that this animosity toward Gross motivated her firing, I further find that even though Gross committed a work rule offense for which termina- tion was a possible discipline Respondent chose termina- tion as the discipline to be utilized not for any legitimate business or personnel reason , nor in line with demon- strated past practice, but merely as an excuse to rid itself of an employee who fully availed herself of her rights under Section 7 of the Act. Accordingly, I find that by terminating Robin Gross, Respondent has violated Sec- tion 8(a)(1) and (3) of the Act. MIAMI HEALTH CARE CENTER C. Discharge of Linda Welbaum and Violet Ferguson ' Linda Welbaum and Violet Ferguson were employed by Respondent as housekeepers from the time Respond- ent began operating the nursing home until their dis- charges on 16 July. Prior to their employment by Re- spondent, Welbaum and Ferguson were employed by Dettmer Hospital. As housekeepers, Welbaum and Fer- guson were supervised by Joyce Swank, the assistant ad- ministrator. Both Welbaum and Ferguson were among the activists in the union campaign of 1985 and that fact was known by Respondent's management . Both are plaintiffs along with four other employees in the civil suit filed against Respondent. For the reasons set forth in section A of this decision, both were subject to the same antiunion animus and hostility by Respondent as Robin Gross. Pursuant to the processing of the lawsuit, numerous depositions were scheduled by Respondent and the plain- tiffs. Depositions were first taken on 18 and 19 June. Re- spondent, in defense of the lawsuit, scheduled depositions for all six plaintiffs, including Welbaum and Ferguson. The plaintiffs were concerned they would be harassed or not allowed to attend the depositions scheduled for those days. The plaintiff's attorney, Livingston, contacted Thomas Young, the attorney representing Respondent in the lawsuit; and expressed the plaintiffs' concerns. In re- sponse, Young `contacted Creason to relate the plaintiffs concern. Creason informed Young he would give the plaintiffs three options for taking time off to attend the depositions.' The plaintiffs could choose to take vacation days, personal days, or could attend only their own dep- osition, with no loss in pay. In a letter dated 12 June, Young informed Livingston of the options and the choice was left to each plaintiff. Young testified he made no further, arrangements with respect to ensuring that any plaintiff received time off to attend the 18 and 19 June depositions. 'For -reasons set forth later in this sec- tion, I do not credit this disavowal of further responsibil- ity. Both Welbaum and Ferguson chose to take personal leave absence and neither of them discussed the matter with a supervisor or any other member of management at Respondent's facility. After the earlier depositions, Welbaum and Ferguson's attorney, Livingston, requested plaintiffs attend further depositions to be taken on 16 and 18 July, though none would be scheduled to give a deposition on those days. Both Welbaum and Ferguson were scheduled to work on 16 and 18 July and each was told by Attorney Liv- ingston that she could be off as arrangements has been made, as they had been, for the June depositions. As with the earlier depositions, neither Welbaum nor Ferguson spoke with anyone in management about their planned absences on 16 or 18 July. By letter dated 10 July, Attorney' Livingston wrote Attorney Young with respect to the taking of depositions on 16 July. As a foot- note to the letter and as pertinent, Livingston wrote: "As before, my clients wish to attend and appreciate your getting them personal days for those 2 days . .. Linda and Vi both need days off." Young received this letter, on 14 July, 2 days before the date of the depositions. Although Young saw the 219 letter,' he did not read the footnote at the bottom of the letter. Because he did not notice the footnote, he said nothing to Creason about the plaintiffs wanting to take off on 16 and 18 July. On 15 July, Welbaum and Ferguson worked their nor- mally scheduled shifts at the nursing home, but neither spoke with Swank or Creason about taking off the fol- lowing day. One of the other plaintiffs, Mary Hale, in- formed her nursing supervisor that she had traded sched- ules with another nurse and the trade was approved by her supervisor. Plaintiff LeVonne Ward requested time off, but due to lack of sufficient staff, the request was denied. Joyce Swank testified in this regard that Ward did request the night off but as there was not, a nurse to cover her spot, her request was turned down. Swank tes- tified that Ward did not make the request to her but to Director of Nurses Stemler. Swank further 'testified that Stemler mentioned to her that there was no way she could let Ward have the time off and Swank said as long as she is off during the day. Mary Lou Hale, another plaintiff, spoke with Director of Nurses Stemler about being off for the 16 July deposi- tions. Stemler stated that she would have to check with Creason about it. The conversation between Stemler and Swank indi- cates strongly to me that at least Creason's two primary assistants knew that one or more of the plaintiffs had planned to take off 16 July . In this same regard, in a con- versation on 15 July between Kathy Stepp and Director of Nurses Stemler, Stemler said she knew that Welbaum and Ferguson were going to be attending depositions on 16 July. She further said she knew they were going to be in court that morning and stated, "Well, with a little luck, they won't call and we can, fire them for no-call/no show." On 16 July, in another conversation between Stepp and Stemler, Stemler said, "Well, they didn't show up, no one . . . did not call in, so we've gotten rid of two more of the dirty half dozen." This conversation oc- curred approximately 8 a.m. on 16 July. Welbaum and Ferguson were to have reported to work at 7 a.m.; however, believing they had time off, both reported to Attorney Livingston's office on the morning of 16 July. On arrival, they discovered the at- torney had hurt his back and could not participate in the taking of depositions. Assuming that their schedule at Respondent's facility had been covered, 'both stayed at Livingston's office and read depositions that had been previously taken. Ferguson left between 11 a.m. and 12 p.m. and went to her home and Welbaum, about the same time, left and went to her home. On 16 July, Administrator Swank arrived at the nurs- ing home approximately 8 a.m. and was told that Wel- baum and Ferguson had not reported to work and had not called in to report off. At this time, Swank checked to determine whether anyone had received a call from either Welbaum or Ferguson. After determining that nei- ther had called in, Swank called Thomas Reidy, the labor attorney for Respondent who was advising them during the union campaign, fore instruction on how to handle the matter. Reidy directed Swank to recheck to ensure that no one had received a call from Welbaum or 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ferguson. After doing so, Swank waited for Creason to return from the deposition schedule for that morning before taking future action. Because the depositions were canceled, Creason re- turned to the nursing home at approximately 10 a.m. Upon his arrival, Swank informed him that Welbaum and Ferguson had not come to work and had not called in to report off. Swank also told Creason she had spoken with Reidy and had doublechecked to make sure no one had received a call regarding the absence of Welbaum or Ferguson. Creason then attempted to contact both corporate counsel Dapore and Young to discuss the situation. Nei- ther, however, was available. After reviewing the situa- tion with Reidy, Swank and Creason decided to termi- nate both Welbaum and Ferguson for their violations of the no-call/no-show policy. Respondent's no-call/no-show policy provides that: "An employee who is absent without reporting his ab- sence to his supervisor will be automatically terminated." After the decision was made to terminate Welbaum and Ferguson, Swank testified she removed their regular timecards and replaced them with blank cards so they would have only their names written across the top. Swank also attached copies of the letter of termination to each of the blank timecards and mailed them further notice of termination by certified mail. On her arrival home from Livingston's office around noon, Welbaum received several phone calls from other employees who had evidently noticed the timecards and warned her that she and Ferguson were going to be fired. Welbaum then called Jolene Gruelich, Attorney Livingston's secretary, telling her of this news. As Attorney Livingston was not in the office, his sec- retary undertook to call Respondent's attorney, Tom Young. Gruelich testified that she explained to Young that Welbaum had called saying she had heard that she and Ferguson were going to be fired for not showing for work that day. Gruelich testified Young told her because of all the confusion that day he would see that no disci- plinary action would be taken. Gruelich made a contem- poraneous written memo of her conversation with Young. She then called Welbaum back and told her that Young said everything would be all right. Welbaum re- ported to Ferguson about this conversation. Later, on 16 July, at approximately 11 p.m., Welbaum received further calls from MHCC to the effect that she had been fired. Welbaum then went to the center and de- termined they had, in fact, been fired. The next morning, 17 July, Welbaum and Ferguson reported to work at ap- proximately 7 a.m. and waited for the arrival of Admin- istrator Creason. When he arrived, they both went into his office and asked why they had been fired. Creason told them the firing was final and to get their paychecks for the end of the pay period. They asked him to call At- torney Young and, Creason refused to do so saying he had talked to him the day before. On 17 July, the fact of the terminations having been reported to secretary Gruelich, she called Attorney Young again. She asked him why the, girls had been fired after he had told her nothing would happen. Gruelich testified. Young told her that when he talked to Creason there was nothing else he could do. He said it was out of his hands. Attorney Young testified he had received a call from Gruelich and told her there must have been some kind of confusion or misunderstanding and that he would call Creason and see what he could do. He fur- ther testified' that when he called Creason, Creason told him the employees had violated a no-call/no-show rule and after consultation with Attorney Reidy the decision had been made to terminate them. Young stated he did not mention his overlooking the footnote in Livingston's letter requesting time off for Welbaum and Ferguson and did not relay his opinion that the situation was merely the result of a mixup or confusion on the part of the par- ties' attorney. It is important to note that the record is silent about anyone admitting who made the arrangements for Wel- baum and Ferguson to be off at the earlier depositions in June. Both of these charging parties testified credibly that they made arrangements with no one and no one has said they did. Young denies having anything to do with making the arrangements for the women having the day off; however, his secretary testified she remembered being told by someone in Livingston's office, by phone, that Welbaum and Ferguson wanted personal days off and related that information to Young. The only logical explanation I can determine is that Young relayed the in- formation to Creason and that was how the women re- ceived the 2 days off in June. Thus, it is also logical that Welbaum and Ferguson relied on the same system being followed for the second set of depositions in July. As was the case with Gross, both Welbaum and Fer- guson were terminated by Respondent for violating a work rule for which a possible penalty is termination. Both Administrator Creason and Assistant Administrator Swank testified that a number of employees had been terminated for violating this rule and they knew of no exceptions ' that had been made to the rule. From the record, which developed in this proceeding, Swank and Creason have remarkably selective memories. Kathy Stepp testified with respect to Greg Croft, a nurses aide/orderly, who committed a no-call/no-show on three separate occasions before he was finally termi- nated. She also noted the case of Garnett Taylor, who was involved in an automobile accident and did not call nor show up for work, for which he was not terminated. Dennis Butcher began working at the MHCC in 1980 and his employment ended with his resignation on 5 April. During his employment at Respondent's facility, he performed janitorial work. Shortly prior to his resig- nation, Butcher was guilty of a no-call/no-show violation for which he received no formal reprimand. His supervi- sor, Joyce Swank, Respondent's assistant administrator, gave him a verbal reprimand. Two other employees, Dianne Brewster and Linda Simpson, were named as em- ployees who had been guilty of no-call/no-show for which they were not fired. Nancy Fledderman, an LPN at ,Respondent's facility testified she was guilty of a no- call/no-show violation in July. She was given a verbal warning by Director of Nurses Stemler. Swank did testify that she terminated for a no-call/no- show violation employees Yvonne Rench, Steve Perkins, MIAMI HEALTH CARE CENTER 221 and Jody Dixon. Rench was a probationary employee^at the time she was terminated . Perkins was terminated in September when he did not return following a 3-day sus- pension. Dixon was terminated in December for failure to report to work. Not only were the Perkins and Dixon terminations after this proceeding had been instituted, the record would indicate that both Perkins and Dixon actu- ally had quit and never returned to work. As was the case with Gross, I think the General Coun- sel has made a prima facie showing that Respondent's termination of Welbaum and Ferguson was motivated by its union animus and its anger at their' concerted activity in filing a lawsuit against the facility. I further believe and find that the reason given for their terminations, vio- lation of the no-call/no-show rule, is actually pretextual and is merely an excuse to disguise the true reason for their firing. In summary, I reach this conclusion for several rea- sons. First, there are Stemler's unequivocal statements to Kathy Stepp, that Respondent anticipated the absence of Welbaum and Ferguson on 16 July and had already planned to terminate them if, in fact, they did not report to work on that day. Further support for the proposition that Respondent anticipated the discriminatees would be no-call/no-show on 16 July is reflected in the conversa- tion between Swank and Stemler about the request for excused absence of another plaintiff, Ward, for the pur- pose of the deposition taking on 16 July. I fmd it incon- ceivable that Stemler would have knowledge of the an- ticipated absence of the two discriminatees on 16 July without Swank, roughly her equal in the management hi- erarchy of Respondent and their immediate supervisor, Adminstrator Creason, having such knowledge. I also consider important Respondent's absolute refusal to reconsider its decision to terminate when requested to do so by the discriminatees on 17 July. On brief, Re- spondent acknowledges both Welbaum and Ferguson ap- pealed the decision to terminate them to Creason, then it argues the appeals were denied because there was no sat- isfactory explanation given to justify their violation of the no-call/no-show rule. The only credible description of the "appeal" is that Creason refused to listen to their explanations and further refused to call his own attorney, Tom Young, for verification of how Welbaum's and Fer- guson's absences came about. Young testified that in his conversation with Creason around noon on 16 July, in response to Secretary Gruelich's call, he failed to inform Creason there had been a mixup or some confusion in that he had failed to read the footnote to the 12 June letter from Livingston requesting time off for the discri- minatees. One can never know the truth of whether Young did or did not relay his information. I find it in- conceivable that a lawyer representing a company in a serious lawsuit and the _ same law firm representing the firm in a campaign against union organization would not fully appraise the client of all the factors that would bear on a decision that could have serious labor ramifications. I conclude that Creason did not undertake to listen to the explanation for Welbaum and Ferguson's absences either from them or from his attorney, because the deci- sion to terminate the two had nothing to do with their absence -of I6 July. The decision had been made long before and just awaited an excuse for its execution. I further find the timing of the discharges supports the .position of the General Counsel that the reason for the firings was pretextual. The election was to take place in early August, and I can think of nothing more chilling to the employees . who were to vote in the election than to see two long-term employees who were union activists discharged almost immediately prior to the election. The effect had to be even more chilling when one considers the firings for violation of the no-call/no-show rule were so contrary to the leniency that Respondent had shown other employees who had violated the same rule in the past. In conclusion, I fmd, though Welbaum and Ferguson did violate a company work rule for which termination was a stated possible disciplinary action, the real reason for their firing was their union activism and their pro- tected concerted activity in pursuing the lawsuit for in- vasion of privacy and, therefore, Respondent' has violat- ed Section 8(a)(1) and (3) of the Act by its termination of these two employees. CONCLusIoNs OF LAW 1. Respondent is now, and has been at all times materi- al to this decision, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By unlawfully discharging Robin Gross on 6 June 1985, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. By unlawfully discharging Linda Welbaum and Violet Ferguson on 16 July 1985, Respondent has en- gaged in unfair labor practices within' the meaning of Section 8(a)(l)^ and (3) of the, Act. 5. The above-cited unfair, labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having also been found that Respondent unlawfully discharged Robin Gross on 6 June 1985 and unlawfully discharged Violet Ferguson and Linda Welbaum on 16 July 1985, and has since failed and refused to reinstate them in violation of Section 8(a)(1) and (3) of the Act, it is recommended that Respondent remedy such unlawful conduct. In ac- cordance with Board policy, it is recommended that Re- spondent be ordered to offer Robin Gross, Violet Fergu- son, and Linda Welbaum immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges and make them whole for any loss of earnings they may have suffered by payment to them of the amount they normal- ly would have earned from 7 June 1985 (Robin Gross) 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 16 July 1985 (Violet Ferguson and Linda Welbaum) to the date of an offer of reinstatement, less net earnings, in accordance with the formula set forth in F. W Wool- worth Co., 90 NLRB 289 (1950), to which should ,be added interest computed as described in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). I further recommend Re- spondent be required to remove from its files any refer- ence to the discharges of Robin Gross, Linda Welbaum, and Violet Ferguson, and notify them in writing that this has been done and that evidence of their unlawful dis- charges will not be used as a basis for future personnel actions against them. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed4 ORDER The Respondent, Health Enterprises of America, Inc., d/b/a Miami Heath Care Center , Troy Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging union or protected concerted activi- ties of its employees or their membership in the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local No. 957, or any other labor organization , by unlawfully and discri- minatorily discharging its employees or discriminating against them in any manner with respect to their hire, tenure of employment, or any term or condition of em- ployment in violation of Section 8(a)(1) and (3) of the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Robin Gross, Linda Welbaum, and Violet Ferguson immediate and full reinstatement to their former positions, or if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, discharging, if necessary, any employee or em- ployees hired to replace them, and make them whole for any loss of pay they may have suffered by reason of Re- spondent's unlawful discharge of them in accordance with the recommendations set forth in the remedy sec- tion of this decision. (b) Remove from their personnel files any reference to the unlawful discharges of Robin Gross , Linda Wel- baum, and Violet Ferguson and notify them in writing that this has been done and that evidence of this unlaw- ful discharge will not be used as a basis for future per- sonnel actions against them. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- ' 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 objections to them shall be deemed waived for all pur- poses roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Troy, Ohio facility copies of the at- tached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized rep- resentative, shall be posted by the Respondent immedi- ately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. s 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 Nation- al 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 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 discourage union or protected concert- ed activities of our employees or there membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 957, or any other labor organization, by unlawfully and dis- criminatorily discharging our employees or discriminat- ing against them in any manner with respect to their hire or tenure of employment of any term or condition of em- ployment in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. 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, which includes the right to engage in self-organization; to form, join, or assist any labor organization; to bargain collectively through a bargaining agent chosen by them ; to engage in protected concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection; or to refrain from any or all such activities. WE WILL offer Robin Gross, who we unlawfully dis- charged on 6 June 1985 and Violet Ferguson and Linda Welbaum, who we unlawfully discharged on 16 July 1985, immediate and full reinstatement to their former positions or, if those positions no longer exist , to substan- tially equivalent positions, discharging, if necessary, any employee or employees hired to replace them ; WE WILL MIAMI HEALTH CARE CENTER 223 restore their seniority and other rights and priv'ileges`pre- Li Welbatim `ankl"notify them in writing that this has viously enjoyed ; and WE WILL make them whole for any been done and that evidence of this unlawful action will loss of backpay to which they may be entitled together not be used as a basis for future discipline against them. with interest. WE WILL remove from our files any reference to the HEALTH ENTERPRISES OF AMERICA, INC. unlawful discharge of Robin Gross, Violet Ferguson, and D/B/A MIAMI HEALTH CARE CENTER