Dennett Road Manor Nursing Home, Inc., And Cuppett & Weeks Nursing Home, Inc.

DENNETT ROAD MANOR NURSING HOME CMCI, d/b/a Dennett Road Manor Nursing Home, Inc., and Cuppett & Weeks Nursing Home, Inc. and United Food & Commercial Workers Union, Local 27, United Food and Commercial Workers International Union, AFL-CIO, CLC. Cases 5-CA-18956 and 5-CA-19125 June 15, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN , HIGGINS, AND DEVANEY On February 2, 1989, Administrative Law Judge Joel A. Harmatz issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed cross-exceptions and a brief in support. 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,' and conclusions only to the extent consistent with this Decision and Order, and to adopt the recommend- ed Order as modified. The judge found that the Respondent violated Section 8(a)(1) of the Act by threatening laundry employees that if the Union came in, their work would be contracted out and their jobs eliminated. The judge also found that the Respondent violated Section 8(a)(3) by discharging employees Janet Shaluta and Rocky Tichinel because of their pro- tected activities. We agree with these findings. However, the judge also found that the Respond- ent did not violate Section 8(a)(1) by coercively polling employees about their willingness to work in the event of a strike. We disagree. In May 1987, at a meeting of department heads, James Cuppett, the administrator of Cuppett & Weeks, requested that the department heads pro- vide him with a list of employees and nonem- ployees who would work in the event of a strike. Geraldine Lipscomb, head of the laundry depart- ment and a stipulated supervisor , either directly or by telephone, queried all her laundry employees about their intent. Each indicated a willingness to work. Lipscomb placed their names on a list, which she then submitted to Cuppett. Cuppett told Lipscomb that she had misunderstood his instruc- r 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 judge'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 397 tions, that he had not intended that the department heads actually poll their employees, but merely es- timate those employees and nonemployees whom they thought would work in a strike situation. After learning of her error, Lipscomb immediately contacted all the employees in her department and advised each that her inquiry concerning the strike was based on a misunderstanding and a mistake. The judge found that strikes pose a particular threat to the health care industry and that the Re- spondent had a right to develop information on staffing. He found Lipscomb's only possible vice was her failure to provide the employees with as- surances against future reprisals , amounting to only marginal coercion, and that Lipscomb informed employees in a timely fashion that she had made a mistake. The judge found her failure to offer assur- ances against future reprisals to be "too slender a reed to support redress." We disagree. An employer in some situations may question employees about union activity with- out automatically violating the Act. However, as the judge correctly observed, an unfair labor practice finding normally will ensue where polling tends to impede employ- ees in the exercise of their organizational rights. Unquestionably, inquiries concerning one's intention to support a strike addresses those rights and might well afford an employ- er an opportunity to identify union supporters. Moreover, the mere suggestion as to the possi- bility of a strike, though permissible, is topical- ly inflammatory. Such a reference, although not unlawful, might well have coercive over- tones when coupled with systematic interroga- tion, particularly during the critical preelection period when the strike risk is at best conjectur- al. We find, contrary to the judge, that Lipscomb's polling of employees during the critical preelection period did interfere with the employees' organiza- tional rights. While it is true that health care insti- tutions do have special staffing needs in the event of a strike, there was no threat of a strike present here, nor had there been an election at the time Lipscomb polled her employees. The unit involved was small and Lipscomb 's poll provided her the opportunity to identify potential union sympathiz- ers. Lipscomb's misunderstanding of her instruc- tions is immaterial and her subsequent disavowal of her conduct, without any assurances against future reprisals, did not neutralize the coercive aspects of the poll.2 Thus, we find that by polling its employ- 2 Passavant Memorial Area Hospital, 237 NLRB 138 (1978). Continued 295 NLRB No. 46 398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ees regarding their willingness to work in the event of a strike, the Respondent violated Section 8(a)(1) of the Act. AMENDED CONCLUSION OF LAW Substitute the following for Conclusion of Law 3. "3. The Respondent violated Section 8(a)(1) of the Act by polling employees about their willing- ness to work in the event of a strike and by advis- ing employees that its laundry operation would be contracted out and shut down, with a resultant loss of jobs if the Union won the election." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, CMCI, d/b/a` Dennett Road Manor Nursing Home, Inc., and Cuppett & Weeks Nursing Home, Inc., Oak- land, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(a) and re- letter the subsequent paragraphs. "(a) Coercively polling employees regarding their willingness to work in the event of a strike." 2. Substitute the attached notice for that of the administrative law judge. In joining his colleagues in finding that Lipscomp 's conduct was not effectively neutralized, Member Devaney emphasizes the systematic nature of the polling involving all employees in the laundry department and that the Respondent engaged in subsequent unlawful conduct by threatening that their work would be subcontracted out and their jobs eliminated in the event of unionization. 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 ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT coercively poll employees about their willingness to work in the event of a strike. WE WILL NOT threaten employees by telling them that their work will be contracted out and their jobs eliminated should they designate United Food & Commercial Workers Union, Local 27, United Food and Commercial Workers Internation- al Union, AFL-CIO, CLC, or any other labor or- ganization, as their representative. WE WILL NOT discourage membership in United Food & Commercial Workers Union, Local 27, United Food and Commercial Workers Internation- al Union, AFL-CIO, CLC, or any other labor or- ganization, by discharging or otherwise discrimi- nating against employees regarding their wages, hours, or other terms and conditions of employ- ment. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the rights guaran- teed by Section 7 of the Act. WE WILL offer Janet Shaluta and Rocky Ti- chinel immediate reinstatement to their former po- sitions and WE WILL make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, plus interest. WE WILL remove from our files all references to the discharges of Janet Shaluta and Rocky Ti- chinel, notifying them specifically that this has been done, and that these unlawful disciplinary ac- tions will in no way be used against them in the future. CMCI, D/B/A DENNETT ROAD MANOR NURSING HOME, INC., AND CUPPETT & WEEKS NURSING HOME, INC. James P. Lewis, Esq., for the General Counsel. Ransome J. Davis, Esq. (Melnicove, Kaufman, Weiner, Smouse & Garbis), of Baltimore, Maryland, for the Re- spondent. David Berg, of Baltimore, Maryland, for the Charging Party. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. I heard this proceeding in Oakland, Maryland, on June 21 and 22 and August 1, 1988, on an original unfair labor practice charge filed on June 22, 1987, and a consolidat- ed complaint issued on December 17, 1987, alleging that the Respondent independently violated Section 8(a)(1) of the Act by coercively polling and threatening employees concerning union activity, and violated Section 8(a)(3) and (1) of the Act by discharging Rocky Calvin Tichinel and Janet W. Shaluta in reprisal for their union activity. In its duly filed answer, the Respondent denied that any DENNETT ROAD MANOR NURSING HOME unfair labor practices were committed. Following close of the hearing, briefs were filed on behalf of the General Counsel and the Respondent.' On the entire record in this proceeding,2 after consid- eration of the posthearing briefs, and having had the op- portunity to observe the witnesses while testifying and their demeanor,3 it is found as follows. 1. JURISDICTION . The Respondent, a Maryland corporation, operates two nursing homes in Oakland, Maryland, providing in- patient and out-patient medical and professional health care for the aged. In the course of said operations, during the 12-month period preceding issuance of the complaint, the Respondent derived revenues exceeding $100,000, and purchased and received at said facilities goods and materials exceeding $50,000 in value directly from points located outside the State of Maryland. The complaint alleges, the answer admits, and it is concluded that the Respondent is now, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits , and it is concluded that United Food & Commercial Workers Union, Local 27, United Food and Commercial Workers International Union, AFL-CIO, CLC (the Union) is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Statement The Respondent operates two nursing homes in Oak- land, Maryland, one referred to as Cuppett & Weeks Nursing Home, and the second, as Dennett Road Manor. There is no history of union representation at either loca- tion. Organizational efforts began in December 1986. Subsequently, on July 17, 1987,4 the Board conducted an election in a single unit consisting of employees at both locations, including nurses aides. The Union was rejected by a substantial margin of 51 for representation and 101 against. The complaint addresses two distinct timeframes . First, it is alleged that during the preelection period in May and June 1987 certain alleged supervisors engaged in co- ercive conduct toward employees , including interroga- tion and threats of reprisal. However, in terms of remedi- al import, the most significant issue emerged several ' Earlier a trial brief was submitted on behalf of the Respondent, which has been duly considered 2 Certain inadvertent errors in the official transcript are noted and cor- rected. s The ultimate and subsidiary issues generated by the instant allegations turn upon resolutions of credibility. Those hereinafter made are occasion- ally supported by objective rationale. This is merely intended to enforce, not discount, my perceptions gained through first-hand observation of all witnesses. Needless to say, unmentioned testimony is rejected insofar as inconsistent with that which is expressly credited. 4 Unless otherwise indicated all dates refer to 1987. 399 months after the election when Janet Shaluta and Rocky Tichinel were discharged. The complaint challenges their terminations as violative of Section 8(a)(3) and (1) of the Act. By way of defense, the Respondent asserts that the discharges were quite legal since founded on misconduct in the form of patient abuse, thus, having nothing to do with union activity . The General Counsel argues that the Employer acted upon pretext in order to mask its desire to eliminate two of the more prominent union supporters. B. Interference, Restraint, and Coercion 1. By Geraldine Lipscomb The complaint alleges that the Respondent violated Section 8(a)(1) of the Act when Lipscomb polled em- ployees concerning their intention to work in the event of a strike. The parties stipulated that Lipscomb is a su- pervisor; she heads the laundry operation. Factually, the instant allegation is confirmed by Lips- comb's own testimony . For, she admits that in May 1987, following a meeting of department heads, James Cuppett, the administrator of Cuppett & Weeks, requested that de- partment heads provide a list of employees and nonem- ployees who would work should there be a strike. In consequence, Lipscomb, either by direct confrontation or telephone, separately queried all laundry employees about their intent. Each indicated a will to work. Ac- cordingly, Lipscomb placed their names on a list, which she submitted to James Cuppett. At that juncture, Lips- comb was told that she had misunderstood her role in developing the information. Thus, Cuppett corrected her, advising that he had not intended that the department heads actually confront employees, but merely wanted estimates as to whom would work . On learning of her error, Lipscomb immediately contacted all employees in her department, and advised each that her inquiry con- cerning the strike was based on misunderstanding and a mistake. Under the current state of the law, employers may question employees about union activity without fear that their conduct will automatically produce a per se violation of the Act. See, e.g., Rossmore House, 269 NLRB 1176 (1984). Nevertheless, an unfair labor prac- tice finding normally will ensue where polling tends to impede employees in the exercise of their organizational rights. Unquestionably, inquiries concerning one's inten- tion to support a strike addresses those rights and might well afford an employer an opportunity to identify union supporters. Moreover, the mere suggestion as to the pos- sibility of a strike, though permissible, is topically inflam- matory. Such a reference, although not unlawful, might well have coercive overtones when coupled with system- atic interrogation, particularly during the critical preelec- tion period when the strike risk is at best conjectural. Nevertheless, Section 8(g) of the Act recognizes that strike action poses special vulnerabilities for the health care industry . The development of procedures to meet that contingency is plainly legitimate . Manning consti- tutes a critial element within that process. Accordingly, Lipscomb had the right to develop the information, and 400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the only possible vice was her failure to provide assur- ances against reprisal. See, e.g., Brunswick Hospital Center, 265 NLRB 803, 806 (1982). In the circumstances, no remedy is warranted. The allegation involved is ad- dressed to coercion in its most marginal form . The needs of a strikebound health care center , and the importance of dealing with that contingency, quite possibly would have been within ready grasp of all employees ques- tioned. Moreover; Lipscomb, in timely fashion, informed each of the employees involved, unmistakably, that the poll was founded upon misunderstanding and should not have been conducted . In context, her failure to offer as- surances against future reprisals is too slender a reed to support redress . As it does not appear that the poll was designed as a means of influencing the results of the elec- tion, and since the tendency , if any, to impede statutory rights was slight, the Respondent is entitled to the bene- fit of doubt, and the effort to neutralize ought not be comprised by Lipscomb's failure to include a formal re- nunciation of future reprisals.5 In the total circumstances, the 8(a)(1) allegation in this respect shall be dismissed. 2. By Glenn Cuppett The complaint names Glenn Cuppett as having en- gaged in unlawful threats of reprisal . The Respondent defends, initially, on grounds that he was neither a super- visor, nor agent empowered to speak on its behalf. There is no merit in this claim. Thus, Glenn Cuppett is the son of Administrator James Cuppett and the nephew of the owners of both nursing homes. During the period just prior to the election he served under Geraldine Lips- comb as assistant supervisor in the laundry. In that ca- pacity, he regularly attended weekly department head meetings. When Lipscomb was unavailable, he was her replacement. Twice, during the period before the elec- tion, he did so for extended periods when Lipscomb took week-long vacations. On those occasions, Glenn Cuppett served as immediate supervisor of all employees in the department. Lipscomb testified that she excluded Glenn Cuppett from those polled about their intention to work during a strike "because he was part of management." Her reaction is understandable in light of the special status he enjoyed. Thus, he earned $7 per hour. Despite his mere 22 years of age , his rate of pay exceeded by $1 the hourly wages of his superior, Geraldine Lipscomb. The latter held 15 years' service; her status as a supervi- sor dated back to 1979. Under established Board precedent, agency status is not dependent on a specific delegation of authority. It is sufficient that the employer created appearances suggest- ing reasonably to employees that management does in 6 The precedent supports the General Counsel's view that generally neutralization of unlawful conduct will be effective only where such as- surances are provided . However, the cases involved more flagrant con- duct, while devoid of the mitigating circumstances presented here. Thus, in Kawasaki Motors Corp., 231 NLRB 1151, 1152 (1978), the Board de- clined to find a violation where such assurances were given . There, how- ever, the alleged 8(a)(1) violation was beyond any area of legitimate con- cern and hence would not have been taken by employees as born of an innocent intent. In Passavant Memorial Area Hospital, 237 NLRB 138, 139 (1978), assurances against reprisal were absent, and the violation was not neutralized. There, again, the 8(a)(1) conduct consisted of threats of re- prisal, a "Hallmark" form of coercion. fact speak through the alleged agent. See, e.g., Enterprise Aggregates Corp., 271 NLRB 978, 982 fn. 18 (1984); Port East Transfer, 278 NLRB 890 (1987). On this basis, whether or not Cuppett regularly exercised statutory in- dicia of supervisory authority, his familial ties, his posi- tion at the time, and his favored treatment, afforded a standing which employees, quite naturally, would equate with the eyes, ears, and voice of management . As such, he was clothed with apparent authority, and his actions are deemed binding on the Respondent. Beyond the agency issue, the conduct imputed to Glenn Cuppett is substantiated by uncontradicted testi- mony. Thus, Mary Beeman and Donna Moon are incum- bent employees, who, at times material, worked in the laundry department. According to Beeman, in June before the election, she raised the union issue seeking, through Glenn Cuppett, .to clarify her confusion. In re- sponse to her inquiries, Cuppett indicated that: "he couldn't tell me which way to vote . . . but he said he would tell me this . . . if the union was voted in .. . part-time employees would not have a job there because they would shut the laundry down and have the laundry sent out to be washed like they had done it before." Moon apparently was also present. She confirmed that Cuppett said that if the employees "vote union . . . we wouldn't have our jobs . . . he would send the laundry out and that would be it." The Respondent defends on grounds that these com- ments were privileged as "prediction and prophesy," a protected form of speech under the Act. The test for de- termining legitimacy of propaganda under this defense was articulated in NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969): [A]n employer is free to communicate to his em- ployees any of his general views about unionism ... so long as the communications do not contain a "threat of reprisal ...." He may even make a pre- diction as to the precise effect he believes the unionization may have on his company . In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable con- sequences beyond his control or to convey a man- agement decision already arrived at to close the plant in case of unionization . . . . If there is any implication that an employer may or may not take action solely on his own initiative for reasons unre- lated to economic necessities and known only to him, the statement is no longer a reasonable predic- tion based on available facts but a threat of retalia- tion based on misrepresentation and coercion, and as such without the protection of the First Amend- ment. Cuppett's remark was a bald-faced assertion that union activity would cause closure of a segment of the oper- ation and concomitant job loss. There was no other qualifying consideration, nor were the remarks attended by economic rationale, objective or otherwise. As such, it did not meet requirements for legitimate expressions of free speech. Moreover, the fact that Respondent, in the DENNETT ROAD MANOR NURSING HOME past, had considered , but rejected, the economics of con- tracting out the laundry operation offered no justification for the expression that unionization would produce re- consideration or implementation of that alternative. See, e.g., Royal Sound Co., 287 NLRB 989 (1988). Finally, the coercive nature of the threat is not diminished by em- ployee testimony as to their subjective reaction, their lack thereof, or their declared indifference . In Gissel, the Supreme Court, in another context , evaluated the reli- ability of such testimony stating : "we also accept the ob- servation that employees are more likely than not, many months after a card drive and in response to questions by company counsel , to give testimony damaging to the union, particularly where company officials have previ- ously threatened reprisals for union activity . ..." 395 U.S. at 608. Thus, contrary to the Respondent , it is the tendency to impede, rather than actual subjective effect, which controls. Accordingly, it is concluded that the Re- spondent violated Section 8(a)(1) of the Act through Glenn Cuppett's threat that, in the event of unionization, laundry operations would be contracted out and, in con- sequence, employees would lose their jobs. 3. By Lois Evans The complaint alleges that Respondent violated Sec- tion 8(a)(1) through Evans' threats that employees would be subjected to unspecified reprisals and discharged in consequence of their activity protected by Section 7 of the Act. Catherine Tichinel, the wife of alleged discriminatee Rocky Tichinel, was the sole witness offered in support of these allegations. Her testimony touches on several conversations with Evans concerning the Union . First, she relates that at some unknown point, Evans told her: [T]he union would do no good for us and that if we got it in, that we would all have a harder time doing our job because . . . the union would make it harder on us girls. On cross-examination, Tichinel admitted that in this, or another earlier conversation, Evans described her hus- band's bad experience with a different union, and appar- ently on that basis, related that unionization was "just ... no good and it would do us nothing but harm." After offering several versions of what was said, Ti- chinel, on the third attempt, stated that Evans actually stated that "once the union would get in, that us girls would have more work put on us, less pay." Another encounter, which took place on June 18, was prompted by the issuance of disciplinary warnings by Sharon Myers to Louella Boyce, Frances Dunbar, May- belle Glaze, and Shelby Beamer. Tichinel believed this latter group was prounion , and hence she asked Evans if the warnings were based upon union activity . Evans re- sponded that "the girls were getting out of hand , getting mouthy, later adding that : "the girls would be gone within 6 months of the union's vote, because of union ac- tivity." On cross-examination , Tichinel acknowledged that she had been told by Evans that the warnings were issued because of patient neglect . Late in her testimony, after she had been examined by both the General Coun- 401 sel and the Respondent , on questioning by the Charging Party, Tichinel became more specific, naming Louella Boyce, Reva Evick, Barb Holtzschneider and Janet Sha- hita as the group which Evans identified as scheduled for discharge after the election. At that juncture, Tichinel testified that she asked Evans why "Rocky" was not in- cluded. To this, Evans responded, "that he was getting pretty mouthy, too, that he would be one of them." In her prehearing affidavit , Tichinel failed to list Shaluta as among those designated by Evans as scheduled for future termination. In that same document, this conversation is described as follows: On or about June 18, 1987, the same night that Gail Bevan and Louella Boyce were issued warnings for alleged patient neglect, I had a conversation with L.P.N., Lois Evans, On Annex 1. I asked Evans why these employees were written up and if it was because of the union . Evans answered and said, "it could be." Evans added "if you think it's bad now, it will be hell if the union comes in ." I asked Evans what she meant by "could be." She said, "Well, some of the girls are getting pretty mouthy ." Evans named off Barb Holtzschneider, Joyce Arnott, Louella Boyce, Gail Bevans, and Reva Evick. I asked why Joyce Arnott and told Evans that I didn't know that Arnott was active for the union. Evans told me that apparently I didn't know every- thing. I asked Evans why she didn't mention my husband, Rocky's name. [She replied] "Well, he's pretty mouthy too." I asked what she meant by that. She replied, "Well, he's still mouthy and one day he may kid with the wrong person." Evans described herself as uncertain concerning the Union. She admitted to frequent discussions on that topic with employees. Although she professed to be neutral, she admits that others would tell her what they thought, and she would advise them of her own thinking. She conceded that she discussed her past experience in Ohio, where as a member of a union her husband became in- volved in an unauthorized strike for which they suffered financially. In this regard, she explained to coworkers that there is no income when you participate in a wildcat strike, nor any other kind of help. Beyond that she denies virtually all remarks imputed to her by Tichinel. Thus, she denied saying that any employees had been disciplined because they discussed the Union . She denied identifying any group of employees, who would be dis- charged in the future. She denied mentioning the possi- bility of retaliation against Rocky Tichinel, Janet Shaluta or Barbara Holtzschneider. The Respondent attacks Mrs. Tichinel's credibility and, in the alternative, denies Evans' status as a supervi- sor or agent. Mrs. Tichinel, whose interest in the out- come is obvious, was not regarded as sufficiently reliable to warrant acceptance of her uncorroborated testimony. Her testimony was sketchy and inconsistent to a point suggesting that remarks attributed to Evans were embel- lished significantly by her own interpretation , rather than what was actually stated. Moreover, aspects of her testi- mony which would tend to bear critically upon the 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD issues of discrimination herein struck as too pat to war- rant belief. In sum my suspicion as to her credulity runs sufficiently deep to warrant rejection of all of her testi- mony except to the extent confirmed by Evans. Thus, while Evans mentioned her adverse experience in conse- quence of her husband's past union activities, nothing in this commentary transcends the argumentation entirely permissible under Section 8(c) of the Act. Accordingly, the 8(a)(1) allegations predicated on her testimony are dismissed. 6 B. Alleged Discrimination 1. The facts and legal precedent The complaint alleges that Rocky Tichinel and Janet Shaluta were terminated in reprisal for their union activi- ty in violation of Section 8(a)(3) and (1) of the Act. Both were nurses aides, and hired on the same day, May 4, 1985. During the organization campaign they were key activists for the Union. Tichinel served as the Union's election observer. He and Shaluta solicited signatures to union authorization cards and were among the 14 em- ployees who served on the Union's in-plant organizing committee. They openly distributed handbills at the Den- nett Road facility and attended union meetings. Shaluta, in addition to her activity at Dennett Road, engaged in handbilling from her car parked in front of the Cuppett and Weeks facility. Tichinel testified, without contradic- tion, that James Cuppett observed Tichinel and Shaluta distributing literature in the Home's parking lot. There was neither testimony, nor contention that management was unaware of the union activity of either of the al- leged discriminatees. Considering the overt nature of their conduct in areas proximate to Respondent's prem- ises, such knowlede is inferred. Tichinel and Shaluta were discharged on September 18, 1987, several months after the Union suffered a re- sounding defeat in the Board election. James Cuppett acted alone in effecting the terminations. He allegedly did so on grounds that Tichinel and Shaluta had engaged in physical and verbal abuse of a patient. As indicated, the General Counsel disputes that this was the real motive. Affirmatively, the supporting prima 6 Were it necessary to consider the issue, it would be concluded that Evans, if not a statutory supervisor, like Glenn Cuppett, held a position in which employees would reasonably believe that she possessed author- ity to speak on behalf of management. This is so, even though all em- ployees may not have agreed that this was the case For the record shows that, at times material, Evans was a licensed practical nurse on the 1l p in. to 7 a.m. shift. During that period, she functioned on a regular, recurrent basis as charge nurse, being the sole representative of manage- ment on duty in the entire facility . This occurred on four shifts in each 2- week payroll period. On those occasions, she was in charge of approxi- mately 11 employees She generally had authority to write employees up, and could send them home in the event of a serious breach of their work responsibility. Although the discipline she meted out would be reviewed at higher levels of management , Evans would initiate the action, and it is fair to assume that employees would not be aware of the weight accord- ed to her recommendations. As stated by Administrator James Cuppett, the action by the LPN, if approved by the director of nursing or the ad- ministrator, "may constitute a suspension or termination " Against this background, even if Evans did not meet the strictures of Sec. 2(11) of the Act, and had not received specific authorization to address employees concerning the Union, employees, considering the attributes of her posi- tion, would rightfully assume that this was the case. facie case is weak. It is true that up until the events in question, both Tichinel and Shaluta were regarded as good workers. They also were among the key protago- nists of the Union. On the other hand, although unfair labor practices were then pending, the timing of their terminations is not inherently suspect. The evidence of animus is thin, there being no credible evidence that any responsible agent of the Respondent said or did anything suggesting a predilection to take reprisals against individ- ual union sympathizers. It does appear that on the day of the election, James Cuppett wore a T-shirt urging em- ployees to vote, "NO." The General Counsel's initial burden merely requires that the evidence demonstrate that protected activity be at least "a" part of the employer's motive. See Wright Line, 251 NLRB 1083, 1089 (1980); NLRB v. Transporta- tion Management Corp., 462 U.S. 393, 401 (1983). Consid- ering the myriad of fact patterns in which the issue is apt to arise, the precedent understandingly does not attempt to detail the quantum of proof necessary to meet that ob- ligation. Thus, it is not entirely clear that the initial burden is carried simply on a showing that known union adherents, previously reputed to be good workers, were discharged by an employer who opposed unionization. However, even if the Respondent were given the benefit of doubt on that score, the inquiry would not end there. For, the precedent allows the General Counsel to shore up his case-in-chief by showing that the employer's as- signed explanation for discipline was so irrational that it could not be attributed to considerations other than union activity. "It is well settled that when the asserted reasons for discharge fail to withstand examination, the Board can infer that there is another reason-an unlaw- ful one which the employer seeks to conceal." State County Employees AFSCME 17, 250 NLRB 880, 886 fn. 38 (1980). See also Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966), to the effect that: Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases, the self- serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Otherwise no- person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book. Nor is the trier of fact . . . required to be any more naif than is a judge. If he finds that the stated motive for a dis- charge is false, he certainly can infer, that there is another motive. More than that, he can infer that the motive is one that the employer desires to con- ceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that in- ference. This is not to say that the fact finding process be in- voked as a guise for intruding on the rights of manage- ment-where not actuated by union activity-to main- tain discipline as it sees fit. Disagreement on a judgment call which itself has a colorable foundation is not enough. In the same vein, the General Counsel's proof DENNETT ROAD MANOR NURSING HOME 403 responsibility is not to be attained solely on a favorable credibility resolution. Thus, the judge's disbelief of a le- gitimate, not inherently counterfeit justification for dis- charges, will not alone establish proscribed discrimina- tion. These limitations were made clear by the Board in Raysel-Ide, Inc., 284 NLRB 879 (1987), in which, quoting from Briarwood Hilton, 222 NLRB 986, 991 (1976), it reaffirmed the following: The employer's explanation for a discharge is a factor which is weighed in determining whether the action was unlawful. However, a feeble reason for the termination , alone, or together with evidence that the employer knew of the dischargee 's union sympathies and was opposed to an ongoing organi- zational campaign, does not spell out an unlawful discharge. To find a violation of Section 8(a)(3) the evidence must permit a positive finding (which may be based on circumstantial evidence) that union ac- tivity was a contributing factor in the decision to discharge the employee. Suspicion that such was the case is not enough. But managerial prerogatives are not so sacrosanct as to insulate the patently absured from whatever examination is necessary to assure that the employer's explanation is not used to conceal an evasion of statutory obligations. As stated by the Fourth Circuit Court of Appeals in Neptune Water Meter Co. v. NLRB, 551 F.2d 568, 570 (1977): The rule is that if the employee has behaved badly it won't help him to adhere to the Union, and his employer's anti-union animus is not of controlling importance. But if the employee is a good worker and his breach of the work rules trivial, the more rational explanation for discharge may be invidious motivation. Such motivation can be found from the absence of any good cause for discharge . This must be so unless we are willing to assume something we know to be false: that businessmen hire and fire without any reason at all. In this case, the defense to the allegations of discrimi- nation is available solely through the testimony of James Cuppett . The decision to adopt this course was his alone, hence, his knowledge and state of mind at the time of the terminations constitutes the sole focus for determining the real motive. Cuppett describes Tichinel and Shaluta as "excellent" workers. He explains that he discharged both on the basis of a written accusation that they abused a patient. The alleged victim was Leona Welch, an elderly woman, who suffered from early stages of Alzheimer's disease. Her volatile temper was well known, as was the fact that it was often triggered by her discomfort with males. At the time of the incident, Welch had been a resident at Cuppett and Weeks for about 1-1/2 years. She shared a room with three other residents, including Elizabeth Ste- vens, a lucid, seemingly alert person for her age. According to the testimony of James Cuppett, on Friday, September 18, 1987, at shortly before noon, he lunched with his brother Tom Cuppett and the latter's wife Carol, the principal owners of both homes. James Cuppett states that prior to their meeting, he was un- aware of any allegations against Tichinel or Shaluta. Carol Cuppett had arranged the lunch to provide James Cuppett a written statement with the names Mary Friend and Sharon Alexander, appearing at the bottom. This document, which furnished the sole basis for the dis- charges, is set forth as follows: 9-17-87 To whom it may concern.. My sister (Leona Welch) is at Cuppett Weeks Nursing Home and is being mistreated. The people who are miss treating [sic] her is Mr. Rocky Tichin- eel, and Mrs. Janet Shualuta. One evening I went into [sic] visit my sister [Leona] and she was very upset. As I was there Mr. Tichineel and Mrs. Sha- luta came into Leona Welch room. Mrs. Shaluta came up to Mrs. Leona Welch and was poking at her and then started pinching her tits. And Mr. Ti- chineel told Mrs. Leona Welch that he was going to take her to bed, and then he grab her ankle. But Mrs Leona Welch fought back until she got her shoe and she tried to hit him with her shoe, but missed. Mrs. Leona Welch was very upset and she is afraid of them. I Mary Friend didn't say anything to them I just walked out and came home with my daughter Sharon Alexander. My sister Myrtle Harvey was also there, But is on vacation at the moment. This kind of ordeal must stop. I will not have my sister [Leona Welch] torched or upset. What kind of people do you have working for the Nursing Home. I cannot come in every evening and spend my time with Leona Welch, from 3:00 to 11:00 o'clock to make sure she is not hurt. If this matter does not get handled right I will go to someone that will help me. I do not think that people who hurt patients should have a job working with older people. If it wasn't my sister [Leona] it would have been someone else . People who have to live in nurs- ing homes have rights also. If I [Mary Friend] was a patients [sic] in a Nursing Home I wouldn't want people like Mr. Tichineel and Mrs. Shaluta taking care of me. Thank you, Mrs. Mary Friend Mrs. Sharon Alexander Neither Carol Cuppett nor any representative of the Respondent had ever discussed this matter with Mary Friend, Sharon Alexander, or Myrtle Harvey.' The above document (the Friend letter) was delivered to Carol Cuppett by Friend's daughter, Patty Alexander, the housekeeping supervisor at Cuppett & Weeks.8 Carol 4 Apparently, the only contact between the Respondent and any wit- ness to the alleged incident , other than the discriminatee , was deferred until preparation for the instant trial a All three of Friend 's daughters testified in this case . In addition to Patty, Sharon Alexander claims to have witnessed the alleged incident Continued 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cuppett relates that when she received the above docu- ment, she was unsure of the procedure to follow, as the Respondent had no policy that she was aware of con- cerning patient abuse. She therefore called Elizableth La- Velle, an enforcement official with the Maryland health department headquartered in Baltimore . LaVelle advised that the Home was obligated to contract the local law enforcement authorities, notify the Department of Mental Hygiene, and to notify the responsible relative.9 Carol Cuppett went on to testify that LaVelle, as ought to have been obvious to all involved, opined that the above letter laid out a case of patient abuse, adding: "you do not need people like this in your employment." LaVelle concedes, however, that she expressed no posi- tion on whether that letter alone would provide an ap- propriate basis for discipline. In this latter regard, Cuppett testified that after read- ing the Friend letter, he "really wasn 't satisfied totally with it." He admits to pointing out to Carol and Tom that the signatures on the document could not have been by the same person. Carol Cuppett confirms his expres- sions of doubt. Thus, her prehearing affidavit describes the lunchtime exchange with James Cuppett, as follows: I brought the original letter to lunch and gave it to him. I told him about the alleged abuse . . . as I had heard it from others . . . and gave Jim the letter. Jim asked if he was suppose to fire or termi- nate every employee accused of patient abuse by someone off the street. I said, "no, Jim." . . . I said I had spoken to Betty LaVelle and asked her the proper procedure regarding alleged patient abuse. Jim asked what he was suppose to do. I said, "Jim, you have to conduct your own investigation ... . and Jim said, "I will." Cuppett did not investigate. Apparently he had made up his mind to discharge Tichinel and Shaluta within minutes after learning of the accusations. Thus, on re- turning to his office, and before interviewing the alleged discriminatees, he dictated the following letter , for for- warding to Elizabeth Lavelle: Please be advised that today at 12:00 Noon, I was made aware of, and received a copy of the enclosed complaint. At this point, both individuals are no longer scheduled for work, and they will be terminated as soon as I can locate and talk to them. Also on this date by 2:00 P.M. the local Garrett County Sheriffs office will have been notified. and to have authorized use of her name on the Friend letter . Another daughter, Charlotte Metz, actually wrote the letter. During the interim between the discharges and the hearing, the Respondent hired Sharon and Charlotte for part-time work. Both were housewives with young children. Sharon admitted that this was her first job. Charlotte later quit apparently to return to her household responsibilities. 9 This requirement obviously provides the responsible party the oppor- tunity to make judgments concerning the welfare of the patient, including the possibility of removal and even a lawsuit. In this instance, though aware of the requirement, the Respondent's representatives made no effort to disclose the matter to Welch 's legal guardian, Susan Piper. Piper's sister is married to Shaluta's son Should any further questions arise , on your part, I will be more than happy to discuss them with you. Sincerely, James Cuppett Administrator 10 The record is devoid of explanation of Cuppett's haste in dictating the LaVelle letter, with its unqualified affir- mation that those accused would be discharged. This step, taken before Cuppett had confronted anyone in a position to provide evidence as to the incident, was a highly unusual means of treating with individuals whom he regarded as excellent workers. Apart from this precipitant reaction, Cuppett did at- tempt to explain his shift from initial doubt to belief of the allegations in the Friend letter. Thus, he testified that his concerns in that regard were erased when Carol Cup- pett informed him of her conversation with LaVelle. The explanation appears in the colloquy between Cuppett and the Respondent's attorney, as set forth below: Q. What was significant about the discussion with Betty LaVelle at the Health Department? A. The patient's bill of rights and what licensed administrators are required to do to protect the li- censed facility, as well as their own license, and see that proper patient care is given is what is foremost in why, the reason I make decisions. Q. How is the patient's bill of rights or patient's right impacted in this incident? A. The patient's bill of rights states that there are several forms of abuse, and that actual contact is a form of abuse yet teasing, where it causes mental anguish of a patient is also a form of abuse, and I might add, where patients are incoherent that you can quite often still tell whether some form of abuse has occurred, because often . . . when their accuser or abuser comes in they will cringe. I did not use this test on Tichinel or Shaluta. I considered the statements here finally, to be reputa- ble. In other words, I was sitting there during that period making a decision and once I did make the decision, I got up, used the telephone and asked my office to ask Mrs. Shaluta and Mr. Tichinel to meet me at Cuppett and Weeks in my office at 1:00 P.M. in the afternoon. The key term here is "reputable," Cuppett admittedly was unaware of Mary Friend's reputation for veracity. Nothing attributed to Lavelle would have provided as- surances in that area. Furthermore, if, as appears, he made up his mind during lunch, not only did Carol Cup- pett fail to disclose that she had been alerted to any such change in position, but she specifically averred that James Cuppett stated that he would conduct an investi- gation. As the record stands, there is nothing to suggest that Cuppett learned anything before his actual decision 10 R. Exh. 8. DENNETT ROAD MANOR NURSING HOME which would have enhanced the reliability of the Friend letter as a basis for discipline. Against this background of inconsistencies, James Cup- pett offered a thoroughly unbelievable account of his dis- charge interview with Shaluta. This took place at ap- proximately 1 p.m. Also present was Thomas G. Cup- pett, the son of Tom Cuppett, and an administrator-in- training. According to James Cuppett, he "took this par- ticular paper [the Friend letter] and began to read it .. . not using but omitting the names and by the time I had gotten two-thirds down the sheet, Mrs. Shaluta had put in the names where I was leaving blanks." Cuppett went on to explain that "I was therefore satisfied that she had been a part of it and was aware of it, so therefore, at that point I told her she was no longer employed there." Cuppett adds that, at this juncture, he explained to Sha- luta "that there are different forms of abuse and although I honestly believe and I think Rocky, during this time was an excellent employee, too . . . teasing causes mental anguish, is a form of abuse." He relates that Sha- luta then said that she "wasn 't guilty, that she wouldn't hurt Mrs. Welch for the world." However, Cuppett testi- fied that Shaluta did not specify which aspect of the con- duct he read off that she was not guilty of, that he did not request her version, and that she offered nothing to counter what was stated in the Friend letter. Cuppett had no clear recollection of precisely when, as he was reading the Friend letter Shaluta interrupted to volunteer the names Leona Welch and possibly Sharon Alexander and Mary Friend . Although he starts off by indicating that he probably was two-thirds down the page, he agreed that he would have had to have read the details of the incident before Shaluta would have been alerted sufficiently to respond." Thus, if Cuppett is to be believed Shaluta's acknowledgement would have fol- lowed the segment set forth below: To whom it may concern. My sister . . . is at Cuppett Weeks Nursing Home and is being mistreated . The people who are mistreating her is Mr. Rocky Tichineel, and Mrs. Janet Shaluta. One evening I went into visit my sister and she was very upset . As I was there Mr. Tichineel and Mrs . Shaluta came into . . . room. Mrs. Shaluta came up to . . . and was poking at her and then started pinching her tits. And Mr. Tichin- eel told . . . that he was going to take her to bed, and then he grab her ankle. Shaluta gives an entirely different version of the dis- charge interview. Her testimony as to what occurred is set forth below: Young Tom Cuppett, Jim's assistant , was called into the office and Jim had a paper in his hand, and he said, Janet at this time you and Rocky Tichinel are no longer employed at Cuppett and Weeks. And I said, explain yourself, Jim. He said, we have had a 'r Considering the immediacy, on September 21, with which the termi- nations were challenged by the filing of unfair labor practice charges (see G.C. Exh. I (h)), Cuppett's hazy recollection of critical aspects of the dis- charge interview hardly enhances confidence in his testimony. 405 complaint that you had mistreated one of the pa- tients in the home. And I said, Jim, who is the pa- tient. He said Leona Welch . I said, Jim, you know I never mistreated a patient and neither has Rocky. He looked at me and he said, Janet, he says, I have a letter here stating that you had mistreated a pa- tient, I have two signatures on the letter a Mary Friend and a Sharon Alexander . I said, Jim, what were we supposed to have done. He said, Janet, you were supposed to have punched Mrs . Welch in the breast and Rocky was supposed to have pulled her by her leg and said he was going to take her to bed. And I said, Jim, you know that it is not true, we would not do nothing like that. And, I said, Jim, do you know who Leona Welch is. And he looked at me very puzzled and he said, no. And , I said, Jim, Leona Welch is my daughter-in-law's grand- mother, and of all people that would be the least person that I would think of doing anything to, and I would never mistreat a patient. He looked at me and said, Janet, at this time you are fired , we have proof here with these two people's signatures and there's nothing more I can do about it. I said, Jim, I'm getting up in age and Rock has four children, I said, this is doing wrong to both of us, and I would like for . . . [our] . . . names to be cleared. He looked at me and he just looked stunned and said, there's nothing I can do about it, it's going to be turned over to the health department and the sher- iff's department. And I said, I don't like my name being slandered, and I said, I do have a lot of pride and my conscience [is] hurt very bad, and I said I don't like the way this is being handled I would like my name cleared. At this time Jim said to me, Janet, you are fired. So, I got up and I walked out According to Cuppett, during his subsequent meeting with Tichinel, he "also began reading . . . [the Friend letter] . . . omitting names, and Mr. Tichinel did not recall names and couldn't recall the situation but did state that he was innocent [of the charge of abuse]." He claims to have consoled Tichinel in the same fashion as Shaluta, stating: "I did not feel he committed malicious abuse but many times employees don't realize that when teasing causes mental anguish it, too, is a form of abuse." Tichinel's version of the interview outlines and is in har- mony with the format described by Shaluta. As indicated, on the following Monday, September 21, 1987, the Union filed unfair labor practice charges in Case 5-CA-19125, contesting the discharge of Shaluta and Tichinel. On or about September 22, Tichinel and Shaluta returned to the home to speak to Jim Cuppett. They requested "separation notices." Cuppett, informed that he "didn't have . . . separation notices made out on them." According to Cuppett, he then prepared the no- tices, leaving the reason for termination blank at the option of Shaluta and Tichinel . The latter afforded mutu- ally corroborative testimony, which was not specifically denied by Cuppett, that at this meeting, they inquired as to whether they could get their jobs back if proven inno- 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cent. James Cuppett responded that they would never be employed again. Subsequently, on September 28, 1987, the Garrett County Sheriffs Department issued its report indicating that on review of the case with the State's Attorney, and on his advice, "there will be no charges filed against Shaluta and Tichinel." (See G.C. Exh. 10.) Apart from the undenied testimony that the discharges were irrevocable, the Respondent's own evidence con- veys that, as far as James Cuppett was concerned, this matter closed on September 18, almost as soon as it had emerged. He did not thereafter attempt to confirm the wisdom of his judgment by ever attempting to communi- cate with Mary Friend, Sharon Alexander, Myrtle Harvey, or any other person who might have been in a position to observe what, if any, untoward experiences might have befallen Leona Welch. 2. Concluding analysis There is no dispute that the Friend letter sets forth a flagrant act of malice towards a defenseless and elderly patient. However, the issue here is not whether that doc- ument describes a dischargeable offense, or even whether Tichinel and Shaluta were guilty. Instead the motive issue turns on whether Cuppett's action in effecting the discharges when he did, and without inquiry as to the truth or falsity of the underlying accusations, was in- spired by proscribed considerations. 12 In major areas, Cuppett's testimony carries its own death knell. Important sectors thereof are inherently im- plausible. At the same time, there is undisputed evidence which leaves little room for doubt as to the underlying motivation. With respect to credibility, Cuppett's assertion that La- Velle's involvement somehow bolstered reliability of the Friend letter made no sense other than as a transparent attempt to clothe the discharges with a governmental sanction. " a His account of the Shaluta interview was just as unlikely. If guilty, Shaluta surely would have been on her guard when suddenly called from home , prior to her shift, to the locus of managerial authority. She certainly would not, in those circumstances , have gone out of her way to compromise her job or person. This is especially so, when one considers the segment of the Friend letter, which, according to James Cuppett, evoked her recogni- tion of the incident . According to Cuppett this occurred after he read the first two sentences, which iterate and reiterate the term, "mistreatment"; together with the de- 12 The question of guilt was fully litigated herein. Impropriety of the sort attributed to Shaluta and Tichmel would serve as a bar to the tradi- tional remedy of reinstatement and backpay . Accordingly, though lacking impact on the merits of the 8 (aX3) allegations, this question is treated below in the remedy section of this decision. 13 It is difficult to imagine that LaVelle would have said anything touching on the personnel issue that was not well known already . Surely, James Cuppett, Carol Cuppett, Tom Cuppett, and anyone else with common sense, would recognize immediately that the misconduct de- scribed in the Friend letter would violate any definition of patient rights, and merit discharge. James Cuppett knew that LaVelle , as a state official, made no recommendation as to the guilt or as to the sufficiency of the evidence against Shaluta and Tichinel. Her statements were neutral and James Cuppett, as a former investigator for the State , was well aware that LaVelle had no authority to intrude in Respondent's handling of an internal personnel matter tails of what could only be described as a despicable act of misconduct14 that a self-respecting health care em- ployee would not acknowledge or attempt to explain away. 1 s Apart from his lack of credibility, the claim of pretext is aided by other conduct on the part of Cuppett, which while undenied, demonstrates an approach to the facts which shifted between inconsistency and disinterest. First he admittedly declined to investigate , after advising Carol Cuppett that he would do so. His inaction in this respect takes on added significance when considered by suspicions generated on the face of the Friend letter. As a former investigator for a state regulatory agency, Cup- pett could distinguish between fact and allegation . Yet, at the time he dictated the LaVelle letter and consummated the discharges, Cuppett knew that the Friend letter, in- cluding the signatures, were penned by the same hand. The record does not disclose that he was informed as to who was responsible, nor could he have been aware that the text or signatures were authorized by those whose names appeared thereon . He admittedly was not in a po- sition to identify Mary Friend's signature. Cuppett's original expressions of doubt, when first confronted with that document, were plainly warranted. Yet, he stopped with that observation, failing to inquire further, even though the document on its face reeked with implausibility. According to that document Tichinel and Shaluta engaged in a malicious indefensible act of torment against an elderly woman of frail health, in a room housing three other residents. This disgusting of- fense, with its strong sexual overtones , allegedly was per- petrated as three relatives looked on, but did nothing to call it to a halt. Moreover, implicit in the letter is the fact that Friend, who had been employed in the past as an aide by the Respondent for 14 years, apparently did '* "Astonishing" is the word most descriptive of the testimony by James Cuppett suggesting that he initially did not view the accusations against Tichinel and Shaluta as violative of the patient's bill of rights. Ironically, Cuppett was the only witness who appeared to grapple with the seventy of the misconduct allegations. Indeed, Cuppett went on to relate that he took time during the discharge interviews to explain that verbal teasing might constitute patient abuse . One in the position of James Cuppett, who had been associated with nursing homes for practi- cally his entire life, would not raise such a question when confronted with an explicit description of a deliberate, physical attack with sexual overtones. The offensiveness of the accusations is so obvious that it causes one to pause and ask whether Cuppett, prior to the discharges, might have heard a less offensive version than that set forth in the Friend letter. Also interesting was an apparent attempt to mitigate the fact that Cuppett would even raise the issue . Thus, upon leading examination by Respondent's counsel, Cuppett related that the question of "teasing" was raised out of his desire to afford the discnminatees "benefit of the doubt." This stands in contrast with the reconciliation of doubt evidenced by Cuppett in electing to discharge these "excellent" employees upon an un- investigated, unauthenticated allegation. 15 Shaluta is credited over James Cuppett . While her testimony was not impeccable, and did reflect some breakdowns, she was far more be- lievable than Cuppett Moreover, as indicated, her account of the dis- charge interview had greater plausibility and was entirely consistent with the unqualified intent to discharge set forth by Cuppett when he earlier took the time to dictate the LaVelle letter It is also noteworthy that Tom Cuppett Jr., who was not shown to have been unavailable, attended both discharge interviews, yet was not called as a witness The assump- tion that, if called, he would not have corroborated his uncle seems ap- propriate. DENNETT ROAD MANOR NURSING HOME 407 not even see fit to report the incident to any of the nurses on duty. Cuppett's disinterest also extended to the timing of the incident and the possibility of delay in reporting so seri- ous an offense . The letter's nondisclosure of any date or timeframe implies that the matter was not current. Cup- pett was also unconcerned as to how Friend knew Ti- chinel and Shaluta, and whether that knowledge was adequate to support an accurate identification. In Shalu- ta's case, Cuppett must have been mindful that Shaluta was not assigned on a regular basis to Leona Welch's area but worked there on a replacement basis, only about four shifts per month. Most of these obvious issues have been resolved by telephone. For undisclosed reasons, despite his own earli- er expressions of doubt, Cuppett apparently did not wish to take the time. t 6 As matters unfolded, it became evi- dent that, to Cuppett, the discharges were "etched in stone." When his decision, only 3 days later, was chal- lenged before the National Labor Relations Board, and when, 2 weeks later the sheriffs department dropped the case, and when , only 6 weeks later, the Home adopted patient abuse guidelines requiring a full and fair investi- gation of such allegations, James Cuppett still declined to contact Mary Friend, Sharon Alexander, Myrtle Harvey, or any of the three residents that shared a room with Leona Welch. His disinterest in the underlying facts con- tinued unabated, and he neither reexamined his decision, nor made any attempt to shore it up. In the total circumstances , convincing evidence war- rants the conclusion that were it not for certain other factors, James Cuppett would have acted with greater deliberation. As an experienced operative in this field, he surely must have been alert to the fact that the charges set forth in the Friend letter would imperil the future employability of the discriminatees in the health care in- dustry, thus, casting a shadow beyond their jobs at Cup- pett & Weeks. In this light, even were one to overlook his extraordinary and callous failure to investigate, Cup- pett's expressed intention never again to employ either of these "excellent" workers was, unmistakably, the by- product of strong personal animus. This inflexibility is explainable solely in terms of union activity. Nothing in either the employment history of Shaluta or Tichinel, or their past relationship with James Cuppett might explain the precipitant discharges on a naked, unconfirmed accusation from a person or persons whose reputation for truthfulness was unknown. t' The 16 At one point Cuppett testified that the fact that in "the case with Shaluta and Tichinel [we] had two people willing to come forward and testify" was enough to warrant the discharges However , Cuppett acted without even discussing the matter with Friend or Sharon Alexander and hence failed to verify how far they would go in pressing their accusa- tions. 17 Cuppett testified that in the past the Respondent had followed a practice of consistently terminating employees for patient abuse "[w]here the management feels they have enough proof." This observation begs the question. Here, Cuppett acted so abruptly that he had no evidence whatever. His action in this respect is hardly explainable by the Respond- ent's past practice Thus, this record reveals several instances where Re- spondent's employees were exposed to charges of patient abuse or ne- glect (see G.C Exhs. 4, 5, 6, 7, and 9). In each instance, action was taken only after an attempt to develop the facts . Diane Hotsinpillar, the only employee ever terminated on such grounds, was so disciplined only after suddenness and the finality of their treatment, effectuated with neither inquiry, nor concern for their possible inno- cence, is understandable solely as a zealous act of retri- bution for union allegiance. Any inference that this un- dertaking derived from any legitmate causation would defy reality and good sense. In short, this record per- suades dramatically that neither Shaluta, nor Tichinel would have been terminated under these conditions were it not for their union activity, and that Cuppett seized on the Friend letter to mask a reprisal, thereby lessening the risk of future organizational activity. Accordingly, it is concluded that the Respondent violated Section 8(a)(3) and (1) of the Act in this respect. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent independently violated Section 8(a)(1) of the Act by advising employees that its laundry operation would be contracted out and shut down, with a resultant lose of jobs, if the Union were designated. 4. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Janet Shaluta and Rocky Tichinel on September 18, 1987, in reprisal for their union activity. 5. The unfair labor practices found above are unfair labor practices having an effect on commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices within the meaning of the Act, it shall be recommended that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. The finding of discrimination herein does not resolve the question of whether the discriminatees actually en- gaged in the misconduct defined in the Friend letter. The Act does not compel employers to retain those who have engaged in morally indefensible misconduct so flagrant "to render the discriminatee unfit for further service." See, e.g., Fiber Glass Systems, 278 NLRB 1255, 1266 (1986). Here, reinstatement would be denied and backpay tolled at an appropriate time if in fact Shaluta and Ti- chinel had engaged in the assigned misconduct, itself suf- ficently serious to disqualify them from future employ- ment. a relatively exhaustive investigation. She was subsequently hired at the Dennett Road facility. In another case worthy of comment, Pam Friend was suspended, not terminated after accusations of patient abuse. On Oc- tober 28, James Cuppett , himself, reportedly referred the allegations to the sheriffs department. See G C Exh 17(b). When that department de- clined to prosecute, citing conflicting accounts, Friend was reinstated. In my opinion, the Respondent's practice is in consonance with those held, perhaps, universally, that good workers are not summarily discharged on the basis of unverified allegations from sources whose reputation for truth is unknown. 408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Both Tichinel and Shaluta denied the allegations in the Friend letter or that they engaged in any misconduct toward Leona Welch . Susan Piper, legal guardian and granddaughter of Leona Welch , offered testimony highly supportive of Shaluta's professional integrity . t e Similar testimony was offered as to the discriminatees by Eliza- beth Stevens, a resident who shared a room with Leona Welch. Stevens, who was lucid for her years , did not im- press me as easily intimidated . Her attitude toward Sha- luta and Tichinel is summed up by her reaction when in- formed of the discharges: "I was so hurt I didn't know what to do." While I did not believe all testimony offered by Sha- luta and Tichinel, 19 they were regarded as more reliable than Mary Friend and her daughters . In most of the es- sential elements of their testimony, the former were re- garded as basically believable . There was nothing in their reputations or work records tending to suggest that either would have engaged in such a deliberate an assault on the infirm, especially one who is placed in their care. Moreover, in Shaluta's case, considering her own indi- rect familial connection with Welch, it is difficult to imagine that she would do anything other than protect her from any act of cruelty remotely approaching that described by Friend or her daughter, Sharon. In any event the customary reinstatement order will issue absent credible proof of disqualifying misconduct. Hence, the credibility of Mary Friend and her daughters is dispositive . As shall be seen, their testimony is fraught with suspicion, and punctuated by the contraditions and incongruities outlined below: 1. The letter in question was written by Charlotte Metz, apparently on authority of Mary Friend and Sharon Alexander . However, both were capable of signing the document and presumably were mindful of the seriousness of its content. Their failure to sign is unexplained . Mary Friend was asked, but could give no reason why she or Sharon failed per- sonally to sign the letter . Sharon afforded no expla- nation either. Indeed, since Sharon testified that she had written letters for her mother in the past, and since she witnessed the alleged incident, and claimed to have been present when the letter was written, the question arises as to why Metz, a stranger to the matter, would have done so, rather than Sharon . Moreover, Sharon testified that this was the only time that Charlotte Metz had ever placed her name on a document. 2. The testimony as to how the letter was drafted is contradictory . First there is the conflict presented 18 According to Susan Piper, Shaluta interacted with Welch very well. Shaluta hugged her, joked with her , and called her "grandma"; Piper ob- served no friction in consequence of these exchanges. 19 Tichmel and Shaluta understated the extent of Tichinel 's contacts with Welch. Tichinel testified that he was aware that his mere presence in her room could upset Welch, and he therefore tried to minimize his contacts with her. He denied ever touching her physically. Shaluta relat- ed that Tichinel would kid around with Stevens, but she was an excep- tion among female patients She recalls Tichinel kissing Stevens on the cheek but not Welch. However, the sheriffs department report states that both she and Tichmel acknowledged that in the past he had kissed Welch on the cheek. by Sharon Alexander's insistence that she was present at the time . Mary Friend, on the other hand, implies to the contrary, by testifying that Sharon was not afforded the opportunity to read the letter until several days later. Charlotte Metz avers that, while Sharon Alexander may have been present at the beginning , she was not present at the completion, and the letter was based entirely upon input from Mary Friend. This prompted curiousity as to how Metz was made aware of the discrimina- tees' surnames . Friend, who could not even identify Tichinel, as he sat through her entire testimony only a few feet away at counsel table, claims that she obtained Shaluta's name by asking some of the nursing home employees in the hall, and that she learned of Tichinel's name, because during the inci- dent in question, Shaluta mentioned his last name. If this happened, and I doubt that it did , I certainly do not believe that Friend would have recalled the names some time later when she assisted in the preparation of the letter.20 As for the spelling, Metz did not describe Friend as the source. She relates that she obtained the spelling of Shaluta's name from her father and that she obtained Tichinel's spelling by consulting the local phone directory. At the hearing, counsel were apprised of the fact that upon independent examination of the local phone directory, there was no listing corresponding to "Tichineel," the spelling set forth in the letter. As I believed none of this testimony, the means by which Metz learned of the names of the discrimina- tees takes its place among several mysterious events which need not be resolved in this case. 3. The testimony of Mary Friend and Sharon Al- exander as to what transpired depicted a prolonged, more aggravated assault than described in the letter. At the time, Mary Friend allegedly was seated on Welch's bed. Welch was strapped in her rocking chair. Sharon Alexander stood nearby. Neither im- pressed me as particularly shy or easily intimidated. Despite the alleged degradations of a defenseless Welch, they spoke not a word, nor otherwise inter- vened to protect her. Simply put, they describe an unbelievable scenario. The doubt created by their failure to step in was reenforced by the unlikelihood that the aides would have compromised their pro- fessional standards through vulgar attack upon a pa- tient in the presence of family. 4. Mary Friend and Sharon Alexander testified that Myrtle Harvey, another of Welch's sisters, had left prior to the incident. Harvey, with no apparent reason to protect the discriminatees, insisted that it was they who left first. The letter is more consistent with Harvey's account. It states: "My sister Myrtle Harvey was also there, but is on vacation at the moment." If Harvey had not been present to wit- ness the event, the letter failed to point this out. In- stead, that document, at the least, implies strongly 80 As indicated below, the letter was prepared almost 3 months after the incident allegedly took place. DENNETT ROAD MANOR NURSING HOME 409 that she "was also there," but in context, conveys that she could not be contacted at the time because she was on vacation. Had Harvey not witnessed the event, the reference to her unavailability would have been meaningless . I am convinced that Alex- ander and Friend altered their position , in order falsely to diminish the import of any contradiction that Myrtle Harvey might offer. 5. The credibility of Mary Friend's account is also influenced by her failure to report the incident with any sense of urgency. She admitted to delay, but asserts that it was several weeks, not several months. Though she preceded Myrtle Harvey to the witness stand, Mary Friend volunteered that, on the evening in question , Harvey "was in there taking pictures ...." The latter confirms that this was true, relating that Polaroid photographs were taken, and that she personally inscribed each with the then current date : "June 26, 1987." Thus, Harvey placed the incident almost 3 months before Friend acted. Friend's estimate of the time frame is also contradicted by information she appears to have given the Sheriffs Department . Thus, the report issued by the latter relates that, when inter- viewed, Mary Friend stated that "the incident oc- curred about 2 months ago ...."2 t Consistent therewith, Susan Piper, Welch's legal guardian, de- scribed a telephone conversation with Friend in June or July 1987, wherein Friend indicated that someone was "teasing" Welch. There were no de- tails given or names mentioned. Piper suggested that if Friend were concerned, to talk to someone at the home. Piper claims that she heard nothing more of it until the discharges. The credible evidence as to the Friend's delay contributes to the strong doubt that the incident that she describes ever oc- curred. Having been employed as a nurses aide for some 14 years, she must have recognized that ur- gency was essential to patient protection . To make matters worse, she claims that she did not act sooner because as she puts it: "I'm the type of person that don't like to cause trouble." Were the incident as serious as described , it is doubtful that Friend would have sacrificed her sister's security and well being in order to avoid making trouble for Shaluta and Tichinel, both of whom were strang- ers. 2 2 ax Rule 803(8) of the Federal Rules of Evidence recognizes an excep- tion to the hearsay rule with respect to "Records, reports, statements, or data compilations, in any form, of public offices or agencies , setting forth . matters observed pursuant to duty imposed by law as to which mat- ters there was a duty to report." See living Tanning Co., 273 NLRB 6, 9 (1984). As indicated therein, "[t]he Public Records exception [to the hearsay rule] is based on the assumption that a public official in the course of his duties will record facts accurately in the proper perform- ance of his duties." See 273 NLRB at 10, and cases cited in fn. 15 there- of. The statement taken by a law enforcement agent falls well within that exception . To the extent corroborative of the timing of the event as relat- ed by Myrtle Harvey , it is considered reliable evidence. 22 Friend apparently explained the delay differently when making her statement to the sheriffs department . As indicated in the latter's report, she is quoted as having stated that "she didn't report this right away be- cause she thought it would stop." See G C. Exh. 10. It is difficult to imagine just what might have led to this assumption. In conclusion, there is no credible evidence on this record that Shaluta and Tichinel engaged in conduct set forth in the Friend letter, or any other specific conduct that reasonably might he described as patient abuse. The volatility, and perhaps unpredictable nature of Leona Welch's temperament is well defined on this record. A hostile reaction on her part would likely be triggered by perfectly innocent behavior. While it is entirely probable that she erupted on June 26, there is no believable proof that any such reaction was prompted by excesses on the part of Tichinel or Shaluta which transgressed routine, and generally accepted interaction between aide and pa- tient. In other words, the proof does not demonstrate that they engaged in misconduct sufficient to disqualify them from future employment.23 Having concluded that the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discharging Shaluta and Tichinel, and as neither was shown to have engaged in misconduct incompatible with their future employ- ment, it shall be recommended that they be offered im- mediate reinstatement to their former positions, or sub- stantially equivalent positions, discharging if necessary any person hired since their termination, and that they be made whole for any loss of earnings or other benefits by reason of the discrimination against them . Backpay under the terms of this Order shall be computed on a quarterly basis from the date of discharge to the date of a bona fide offer of reinstatement, less net interim earnings, as prescribed F. W. Woolworth Co., 90 NLRB 289 (1950), and shall include interest computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed24 23 While the allegations against Shaluta and Fnend were greatly exag- gerated, there is little doubt that Welch erupted on the evening in ques- tion. Shaluta recalled the picture-taking incident when Myrtle Harvey, Sharon Alexander, and Mary Friend were in Welch's room According to Shaluta, she entered the room and, as she frequently did, referred to Welch as "grandma" and combed her hair She then kissed her on the cheek, and told her to "look real pretty for her pictures ." Welch re- sponded with a big smile. She adds that Tichmel came into the room twice-once in order to lift another resident , Sharples, on the bedside commode, and earlier, to put water on Welch's bedside stand. She could recall no adverse reaction on Welch's part. Myrtle Harvey, who was among the witnesses with the least at stake in this proceeding, while not implicating Shaluta, disagrees with her significantly. Thus, she relates that Welch "flew off the handle" after Tichinel, innocently, made a pat- ting motion apparently on Welch 's hand Shaluta was standing behind the bed, and apparently left with Tichinel after Welch reacted . Harvey also relates that when Mary Friend left , she seemed to be upset because "she thought" Tichinel had been teasing Leona . Despite the conflict with Sha- luta and Tichinel, which is resolved in favor of Harvey , there differences are beside the point. Since the burden is on the Respondent , the testimo- ny of Harvey is most significant because it rejects the scenario depicted in Friend's letter. Moreover, her description of the event does not sug- gest that Shaluta engaged in any conduct toward Welch other than re- quired by her normal duties. Finally, Friend's belief that both had en- gaged in teasing, itself, would not warrant a withholding of the conven- tional remedy Such a determination might only be predicated on an af- firmative, believable showing of misconduct in a form sufficiently specific to permit independent evaluation 24 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. 410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, CMCI, d/b/a Dennett Road Manor Nursing Home Co. Inc., and Cuppett & Weeks Nursing Home, Inc., Oakland, Maryland , agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees by telling them that their work will be contracted out and their jobs eliminated if the Union is designated as their representative. (b) Discouraging employees from engaging in activities on behalf of a labor organization , by discharging, or in any other manner discriminating against them with re- spect to their wages, hours, or terms and conditions and tenure of employment. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act. (a) Offer Janet Shaluta and Rocky Tichinel immediate reinstatement to the former positions, without prejudice to their seniority, or other rights and privileges, and make them whole for losses sustained by reason of the discrimination against them in the manner described in the remedy section of this decision. (b) Remove from its files, delete, and expunge any ref- erence to the unlawful termination of Janet Shaluta and Rocky Tichinel, notifying them in writing that this has been done, and that the instant discharges will not be used against them in the future. (c) Preserve and, on request, make available to the Board or its agents for examination and coping, all pay- roll records, social security records, time cards, person- nel records, and all other records necessary or appropri- ate to analyze the backpay due under the terms of this Order. (d) Post in its nursing homes in Oakland Maryland, copies of the attached notice marked "Appendix."25 Copies thereof on forms provided by the Regional Di- rector for Region 5, after being signed by Respondent's authorized representative shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that said 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 Respondent has taken to comply. 25 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."