Verland

442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Verland and its Subsidiary The Verland Foundation, Inc. and United Steelworkers of America, AFL- CIO-CLC and Susan L. Gaber. Cases 6-CA- 19170 and 6-CA-19528 August 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On May 10, 1988, Administrative Law Judge David L. Evans issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondent filed cross-exceptions and a supporting brief and a motion to reopen the record. The General Counsel filed a response to the Re- spondent's motion and an answering brief to the cross-exceptions. I 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 ,2 findings,9 i The Respondent has moved to reopen the record to receive evidence of a collective-bargaining agreement effective by its terms April 25, 1988, which was negotiated by the parties after the relevant events in this case. The General Counsel has opposed the motion. The motion is denied be- cause the agreement has no relevance to this proceeding. 2 The General Counsel has excepted to some of the judge 's credibility findings The Board's established policy is not to overrule an administra- tive 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 re- versing the findings. a In adopting the judge's dismissal of the allegation that the Respond- ent violated Sec 8(a)(3) and (1) by eliminating the position of relief houseparent because of the employees' known or suspected union activi- ties, we agree with the judge's finding that the General Counsel failed to establish a prima facie case We further agree with the judge that even assuming that the General Counsel established a prima facie case , the Re- spondent, under Wright Line, 251 NLRB 1083 (1980), has rebutted it In this regard, it is undisputed that before any overt union activity had oc- curred, the Respondent had grown concerned with deficiencies in care and documentation found by its state and Federal oversight agencies in 1984 and 1985 , and had undertaken a study of its procedures that re- vealed a concentration of lapses during the relief houseparents ' schedules. The record also reveals that during the fall of 1985 Toni Sharver Rob- erts, the Respondent's program services coordinator and a "qualified mental retardation professional ," recommended that the Respondent re- consider its practice of maintaining weekend -only schedules, and that by January 1986 the Respondent had significantly reduced the weekend hours of the relief houseparent shift and had ceased filling openings in the position. Thus, the Respondent has demonstrated that it began the proc- ess of reevaluating the utility of the relief houseparent position, which culminated in the abolition of the position, well before the union cam- paign became known to it in February 1986 and that it would have abol- ished the position even in the absence of union activity by the relief hou- separents Chairman Stephens finds it unnecessary to pass on the question of whether the General Counsel established a prima facie case that union animus was a motivating factor in the elimination of the relief housepar- ent position; he agrees that the Respondent carried its burden of showing that the position would have been eliminated even in the absence of the union activities of employees in this classification. and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Kim Siegert, Esq., for the General Counsel. Amis C. Coney, Esq. (Kirkpatrick & Lockhart), of Pitts- burgh, Pennsylvania, for the Respondent. Susan Gaber, of Gibsonia, Pennsylvania, and Ramon L. Mundsinger, of Pittsburgh, Pennsylvania, for the Charging Parties. DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge. This matter was tried before me on March 23-27, 1987, on charges filed under the National Labor Relations Act (the Act), by United Steelworkers of America, AFL- CIO-CLC (the Union), and Susan L. Gaber, an individ- ual, and on a complaint issued by General Counsel against Verland and its subsidiary , The Verland Founda- tion, Inc. (Respondent or Respondents). The charge in Case 6-CA-19170 was filed by the Union on June 5, 1986,1 and the charge in Case 6-CA-19528 was filed by Gaber on September 29. An order consolidating cases, complaint and notice of hearing (the complaint) issued on November 20. The complaint alleges that Respond- ents constitute a single-integrated business enterprise and a single employer within the meaning of the Act, that Respondents are health care institutions, and that Re- spondents meet the jurisdictional standards set by the Board. The complaint alleges that Respondents violated Section 8(a)(3) and (1) of the Act by certain specified conduct. On December 4, Respondents filed an answer admitting that they were a single employer engaged in the health care industry and admitting that they meet the Board's jurisdictional standards but denying that they are an employer over which the Board should assert juris- diction and further denying the commission of any unfair labor practices. Respondent and General Counsel have filed briefs which have been carefully considered.2 FINDINGS OF FACT 1. JURISDICTION As noted, Respondent argues that it is an institution over which the Board should not assert jurisdiction. The answer states that, "on the contrary it is averred that be- cause of Respondent's relationship with the Common- wealth of Pennsylvania , it is the kind of entity over which the Board declines or should decline jurisdiction." I All dates are in 1986 unless otherwise specified. 2 General Counsel and Respondent further filed a joint motion to cor- rect the record which is granted. 296 NLRB No. 61 VERLAND FOUNDATION 443 This issue has been presented to the Board before. In the case of Verland and its Subsidiary The Verland Foun- dation, Inc., and United Steelworkers of America, AFL- CIO-CLC, Case 6-RC-9697, Respondent raised precise- ly this issue . On October 6, the Regional Director, on behalf of the Board, issued a Decision and Direction of Election rejecting this contention . By order dated No- vember 14 the Board denied Respondent's request for review. General Counsel rests her contention that jurisdiction should be asserted upon the Board's Rules and Regula- tions, Section 102.57(f), which provides as follows: Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation pro- ceeding. Denial of a request for review shall consti- tute an affirmance of the Regional Director's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding. General Counsel contends that because of this rule, the matter may not be relitigated in the case sub judice. Placing emphasis on the word "related," Respondent argues that the regulation prohibits relitigation of repre- sentation case issues only in 8(a)(5) refusal-to-bargain cases wherein there is a test of certification. Otherwise, Respondent argues, there would be no meaning to the word "related" as it is twice used in the above-quoted rule. Respondent cites several cases in which supervisory issues were held to be properly relitigated in subsequent unfair labor practice hearings following representation cases. Respondent concludes, on the basis of these cases, that General Counsel's reading of the above-quoted sec- tion is "overly broad." Respondent's reading of the section is overly narrow. If the Board had wanted to prevent relitigation only in test of certification cases, it could have, and would have, so stated in the rule. The regulation does not state that representation case issues , such as jurisdiction, may be relitigated in all cases other than tests of certification. The absence of any qualification clearly indicates that the Board, in issuing this rule, meant to prevent relitiga- tion in all "related subsequent unfair labor practice proceeding(s)." This case is "related" to the prior representation case in that both cases are premised on the issue of jurisdic- tion of the Respondent. In the cases cited by Respond- ent, the supervisory or other contested issues were essen- tially collateral to the primary issues in the representa- tion cases. As stated in Clothing & Textile Workers (Saga- more Shirt) v. NLRB, 365 F.2d 898 (D.C. Cir. 1966): There will be cases where an employer will be as interested as the Board in holding a speedy election and will be willing to forego the presence of a given employee in the unit or his vote in the tally. We see no basis for assuming that the Board wishes to require such employer to delay the election while he completely litigates subsidiary questions, such as supervisory status, in an effort to protect his rights in the future on matters other than the determina- tion of the unit and eligible voters therein. In the interest of clarity we may note that the [administrative law judge] and the Board need not allow the company to relitigate the same issue com- pletely. The evidence at the earlier hearing need not be reheard but could , as it was in this case, be in- corporated into the record, upon being specifically identified. Thus, the court did not hold that the supervisory issue could be relitigated because the subsequent unfair labor practice proceeding was not a test of certification case; it held that the issue could be relitigated because it had been merely a "subsidiary " issue in the underlying repre- sentation case . In the related representation case herein, the issue of jurisdiction was hardly "subsidiary." It was primary . It was the predicate for that case, as it is this one. In the representation case the issue was fully litigat- ed; and relitigation herein would be improper.3 Furthermore, while I told Respondent 's counsel at the hearing that I would not allow relitigation of the issue, I did state that I would consider any evidence not previ- ously known and which could not have been known to Respondent at the time of the representation case hear- ing. No such evidence was offered . I further informed Respondent that I would review any part of the repre- sentation case record to which Respondent might refer me for the purposes of reconsideration of the issue by the Board.4 Respondent made no such reference to the representation case record at the hearing or in its brief. Therefore, there is no new evidence to consider and no review of the underlying representation case record to make. Accordingly, I am bound by the Board's previ- ous decision and reject Respondent's contention that, be- cause of state regulations to which Respondent is sub- ject, the Board should decline to assert jurisdiction. As the complaint and answer establish, Respondent Verland is a Pennsylvania corporation with an office and place of business in Ohio Township, Pennsylvania, which provides administrative and management support serv- ices to its subsidiaries, Respondent Verland Foundation, Inc., Verland and Verland Endowment . Respondent Verland Foundation, Inc. (the subsidiary involved herein) is a Pennsylvania corporation with an office and place of business also in Ohio Township , and has been, and is, engaged as a health care institution in the oper- ation of a state-approved facility . As previously noted, Respondent admits that Respondent Verland and Re- spondent Verland Foundation , Inc., are a single employ- er within the meaning of the Act. During the 12-month period ending October 31, Respondent, in the course and conduct of its business operations described above, de- rived gross revenues in excess of $1 million and during the period of time Respondent purchased and received at its Pennsylvania facility products and materials valued in excess of $5000 directly from suppliers located at points outside the Commonwealth of Pennsylvania . Therefore, 9 General Marine Transport Corp., 238 NLRB 1372, 1376 (1978) 4 Such procedure was approved by the court in Clothing Workers as quoted above. 444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent is now and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and is a health care institution within the meaning of Section 2(14) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Allegations Respondent operates a residential care facility for men- tally retarded individuals. At the time of the hearing there were 91 of these individuals who lived in cottages or "homes" at the facility . There are 10 such homes at the facility; 1 has a capacity of 10 residents , and the others have capacities of 9. In addition to the 10 homes, the following buildings are at the facility : a support serv- ices building, an activities center, and an administration building. The facility is an "intermediate care facility" for men- tally retarded individuals . As such, it provides develop- mental training and some nursing care5 for profoundly and severely retarded individuals . 6 At the time of the hearing 90 of the residents were classified as profoundly retarded; one was classified as severely retarded . The in- stitution accepts individuals who are ages 5 and above, and at time of the hearing the residents ranged in ages from 8 to 55. They have an average I.Q. of 6.7. The services offered to the residents are in the general areas of health services, medical services, and skilled de- velopment services. This last category includes eight areas of development : perception, emotional stability, adapted living skills, communication , effective use of time, social skills, sensory motor skills, and self-direction training. (To understand the nature of the care and train- ing involved, the reader must understand that not only is toothbrushing a skill which must be learned by the pro- foundly retarded residents, simply holding the tooth- brush is such a "skill ," as one witness testified.) Carol B. Mitchell is the president and executive direc- tor of the Verland Foundation, Inc., a position which she has held since 1978. Reporting to Mitchell are Toni Sharver Roberts, program services coordinator; Linda Kruszyna, resident services coordinator; Linda Cross, health services supervisor; Joan Guntang, residents record coordinator, and Richard Donella, support serv- ices coordinator. Roberts is a qualified mental retardation specialist (QMRP). This title is earned after many years of profes- sional training which is prescribed by state statute. Sub- ordinate to Roberts are 10 other QMRPs whose titles are habilitation specialists, habilitation service specialists, 5 The nursing care is not around -the-clock , a person in need of such care would be placed in a nursing home. e A person is classified as profoundly retarded if he has an I Q of 19 points or below ; a severely retarded person has an I Q of 20-35 recreation therapists, recreation services coordinator, and social services coordinator. As resident services coordinator, Kruszyna, at the time of the hearing, was the supervisor of three categories of employees: resident service specialists, houseparents, and house managers. At the time of the representation case hearing (which began in late May 1986) the direct services staff, headed by Kruszyna, had five resident service supervisors. Re- porting to them were 8 house managers , 4 houseparents, 23 relief houseparents, and 56 residence service special- ists. The house managers and houseparents made goal objective plans for the residents; the relief houseparents and the residence service specialists were directly in- volved in the carrying out of these plans and further in- volved in the cleaning, transportation, and feeding of the residents. Relief houseparents performed this function during the weekends ; the other employees did so during the week. On June 27 the position of relief houseparent ceased to exist. The 20 employees then in that classification were forced to transfer to other shifts or resign. General Counsel contends that the position of relief houseparent was eliminated in order to cause the relief houseparents such hardship that they would be forced to quit their jobs, that this was done because of known or suspected union activities of those employees , and that, therefore, the action of June 27 violated Section 8(a)(3) and (1) of the Act. General Counsel further contends that, on September 25, Respondent issued a warning notice to employee Susan Gaber because of Gaber's known or suspected concerted and union activities in violation of Section 8(a)(1) and (3) of the Act. Respondent contends that Gaber's warning notice was issued for a cause unrelated to any of the employee's statutorily protected activities ; Respondent further denies knowledge of any such activities by Gaber. Respondent further contends that the hours of the relief houseparents had to be, and were, changed because of business neces- sities. Respondent also contends that it did not know of any particular union activities or union sympathies of the relief houseparents as contrasted with other employees, of whom there were approximately 120. To understand these contentions of the parties, more background is necessary. At the time the facility was founded in 1978, it was lo- cated in the Crafton area of Pittsburgh. Respondent moved to its current facility in the Pittsburgh suburb of Sewickley (Ohio Township) in January 1981. The resident services specialists , which constitute the largest classification in the resident services staff, were referred to as applied behavior specialists when Respond- ent was located at Crafton. In 1980 Respondent began using live-in houseparents, always couples, as the basic coordinators of each home's activities. When Respondent moved to Ohio Township, houseparents worked Mon- days through Fridays with every weekend off; the resi- dent service specialists worked 40-hour weeks on three shifts during the week; and relief houseparents worked 16 hours each Saturday and Sunday; the relief housepar- VERLAND FOUNDATION 445 ents were also given the option of working 8 hours during the week to get in a 40 -hour week. In January 1982 Respondent began requiring relief houseparents to sleep at the facility on Friday nights; so the position became one of a full 40 hours per week. In January 1986 Respondent returned the relief houseparent position to 32 hours per week (16 on Saturdays, 16 on Sundays) with an option of working 8 hours during the week. From 1981 to 1985 the number of relief houseparents gradually increased to 30, from January through Decem- ber 1985 the number of relief houseparents remained es- sentially constant at 29 to 31 . During the first 5 months of 1986 the complement of relief houseparents dropped to the following numbers : 26 in January; 26 in February; 23 in March; 23 in April; and 20 in May. In late 1981 and early 1982, certain of the employees conducted an organizational attempt which was unsuc- cessful. Relief house parents Michael Beatrice and Debra Schneider were then active on behalf of the Union. Em- ployee Joyce Schulick testified that, although she sup- ported the Union the 1986 campaign, she opposed the Union in 1982 . Schulick testified that during the 1982 campaign she had a discussion with Executive Director Mitchell about her then feelings . Schulick testified with- out contradiction that during the conversation Mitchell told her that she knew that Michael Beatrice and Schnei- der were "behind" the 1982 organizational effort. Gener- al Counsel did not attempt to introduce as "background" any alleged unfair labor practices by Respondent during the 1982 campaign. B. The 1985-1986 Organizational Effort In late summer 1985 Schneider and Beatrice began to talk to fellow employees about another organizational at- tempt. In November they were joined by Schulick in so- liciting employees to take interest in the Union . Schulick, Beatrice, and Schneider formed among themselves "the Verland Organizing Committee," and they were the only members. In December 1985 the Verland Organizing Committee conducted a raffle among the employees. The raffle raised money for the benefit of a program for the resi- dents, but Beatrice, Schneider, and Schulick used ad- dresses obtained thereby for the purposes of mailing union campaign literature to other employees. One such mailing was revealed to Executive Director Mitchell in late January by an employee who was not named by Mitchell. The Verland Organizing Committee distributed au- thorization cards among various employees at the facili- ty, but, as Beatrice testified, it was not until February that the Committee conducted these activities in a manner which would possibly have been observed by any management personnel. During the spring of 1986 the organizational effort in- tensified. Beatrice testified that 70 percent of the employ- ees at the facility signed union cards , including all but three of the relief houseparents. Several of the relief - houseparents wore union buttons while working on the premises during that spring as well. By letter dated March 27 Union Representative Fran- cis Scumaci wrote Mitchell demanding recognition as bargaining representative of the employees. By letter of April 9, Mitchell declined the request for recognition. Also on April 9 the Union filed a petition in Case 6- RC-9682 seeking a unit of several classifications of em- ployees including relief houseparents . This petition was withdrawn but another was filed on May 7 in Case 6- RC-9697. The unit described was the same as in the first petition. A representation case hearing was held at the Pitts- burgh Regional Office on May 21 , 27, and 28 and June 5, 6, and 9. Beatrice and several other relief houseparents attended the representation hearing and sat on the side of the room behind the union lawyer. An election was held on November 11. The tally was 58 votes for the Union; 50 against; there were 10 chal- lenged ballots. On November 21, 1986, Respondent filed timely objections to the conduct of the election and ob- jections to conduct affecting the results of the election. On February 27, 1987, the Regional Director issued a Supplemental Decision and Certification of Representa- tive which certified the Union as the 9(a) representative of all nonprofessional employees , with certain exclusions. Respondent requested review of the supplemental deci- sion only with respect to the objections to the conduct of the election. C. Elimination of ReliefHouseparent Position On June 7, Kruszyna announced to the relief house- parents that the position was being eliminated. Schneider was asked to relate the circumstances of the announce- ment and testified: A. Well, Linda said that-she informed us that the relief houseparent position was being eliminated and that she was sorry if it would cause any con- flicts with other commitments that the relief house- parents had outside of the facility. Some of them were-some of the relief houseparents were full- time students or had other jobs during the week, and they told-she told us that we would have ap- proximately one week to select what shift we wanted, or if we couldn't select another shift, to please have our resignations by the 15th. Q. What, if anything, was said with respect to when the decision had been made? A. She told us that the decision had been made that previous Monday. Q. Do you recall being given any reasons for the situation that she described to you? A. Programmatic consistency, they hoped it would be cost effective, but they wouldn't know that until some time had passed with the new sched- ule. And, they felt that anything-staff working over eight hours a day, that the care suffered, and that the sixteen hour days were too long. Schulick testified that Kruszyna told the employees that they would be given a choice of first, second, or third shifts. Kruszyna denied making an unqualified offer of transfers to the third shift . Kruszyna testified that the third-shift employees were not affected by the elimina- tion of the relief houseparent position, but that the third- 446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shift employees were given the opportunity to change shifts during June . She thought that at least one-third of the shift employees would change shifts, but ultimately none of the third-shift employees elected to do so. Krus- zyna is corroborated by the alleged discriminatee Labish who testified that Kruszyna told the employees at the time of the June 7 announcement, "[s]he had [sic] said that they're' only several positions available on the third shift and that they would be made available to us, I mean if there were five of us and two positions , they'd fill the two positions." I credit the consistent testimony of Kruszyna and Labish, and reject the testimony of Schulick to the extent that it sought to convey the im- pression that the relief houseparents were told , without qualification, that they would be permitted to transfer to the third shift. In fact, several employees did apply for the third shift; however, they were told that there were no vacancies into which they could be slotted. The former relief par- ents were reclassified as resident service specialists. Those who elected to stay, rather than resign, were per- mitted to choose a schedule only after the incumbents on the first and second shifts selected their schedules, even though the former relief houseparents generally had more seniority than the other resident service specialists. Seven of the twenty relief houseparents who were em- ployed at the time of the June 7 announcement resigned their positions prior to June 29 : Duane Ashley, Doug Davidson, Jeff Hricik, Dave Labish, Jeff Pannier, Rosa- lee Power, and Mary Schlagle. Seven relief houseparents transferred to the first shift and six relief houseparents transferred to the second shift. Two of the relief house- parents who accepted transfers to other shifts resigned prior to the end of 1986 : Jeff Kerr and Schulick. These two, plus the seven who resigned in June, are alleged to have been constructively discharged in violation of Sec- tion 8(a)(3). Pannier testified that he was required to quit because he was a full-time graduate student as well as an employ- ee of other employers during the week . Davidson testi- fied that he was required to quit because he had school and other employment responsibilities throughout the week. Hricik testified that he was required to quit be- cause he had a full-time job elsewhere. Labish testified that he was required to quit because he had full -time em- ployment during the week . Power testified that she was required to quit because there was no public transporta- tion to Respondent's facility. When working weekends, Power had been able to secure transportation with other weekend Verland employees . Schlagle testified that child care and transportation problems, from her house 20 miles away, caused her to quit. Ashley testified that he was required to quit because of other employment re- sponsibilities . Schulick testified that she was required to quit because of the cost of obtaining child care during the week. Kerr testified that he was required to quit be- cause he was in a graduate program which required his attendance during the week. The record, p. 201, L 11 , is corrected to change "there" to "they're." None of this testimony as to the problems or hardships imposed, or the causal relationships between the hard- ships and the quittings, is challenged by Respondent. Re- spondent does dispute that the described problems or hardships were of such a degree as to constitute con- structive discharges under the Act. General Counsel contends that Ashley, Davidson, Hricik, Kerr, Labish, Pannier, Power, Schlagle, and Schulick were constructively discharged by Respondent through the device of the schedule changes entailed in eliminating the relief houseparent position. As an argued admission against interest that the elimi- nation of the relief houseparent position was unlawfully motivated , General Counsel introduced the testimony of Michael Lobalzo who was, at the time of the trial, em- ployed by Respondent as a resident service specialist. Labalzo testified that before he was hired on January 9, 1987, he interviewed for employment with Respondent's personnel manager Eileen Martin in December 1986. La- balzo testified that during the employment interview with Martin the following conversation occurred: THE WITNESS: I basically-from what I understood, there was a union, or was soon to be a union at the Verland Foundation and, I [asked] Mrs. Martin whether or not there was a union, and to which she replied, yes, there was a union. And, I related to her that my roommate is a personnel director with a firm which was currently being organized by the Teamsters, and had asked her whether or not- what she felt about the union , whether or not they wanted the union to be there, and to which she re- plied, that they were going to try to work around the union. And, I explained to her that my room- mate's company was planning to prolong the con- tract negotiations for a period of one year and go for a decertification vote. And, she had said that was Verland's plan, as well , and they had employed an attorney to help guide them in this matter. She gave me his name, and [asked] if I had heard of this attorney, and whether or not my roommate's com- pany had applied-had hired an attorney, as well, to consult on this matter . To which I replied, that to my knowledge, they hadn't and planned to hire-excuse me, had planned to take care of the matter internally . She-I asked whether or not, knowing a little bit about the decertification votes, if the-she had told me too, if I may back up a bit, that currently that the process they were challeng- ing a number of votes in the union vote, a number, to the best I can recollect, between fourteen and eighteen, some number in the teens, and with a de- certification-what I knew of-decertification vote, with what I knew about it at that time, it meant that something different had to take place than what had already occurred in the original vote. And, I [asked] [sic] her, how about-how there abouts they would change that vote, and I was told, that to prior scheduling changes and through- through prior scheduling changes and a prolonging of the certification process, or if I can remember, the contract process, it was hoped that this would VERLAND FOUNDATION 447 frustrate those people that were currently involved in the union, and that they would leave. I also asked whether or not what the problem with union was, why the union was there, and it's my recollec- tion that she told me that these people had been there for a long period of time had become frustrat- ed, or I think the words were, burnt out , and that they were more concerned about managing the fa- cility, as opposed to their positions, and she hoped that those people would be moved out. Martin, who at the time of trial was still Respondent's personnel director, was not called to testify ; therefore this testimony stands undenied. Respondent does not deny that it knew that schedule changes for the relief houseparents would cause a certain number of them to quit; indeed , Kruszyna testified that she and Roberts speculated that at least 10 employees would be required to quit because of personal hardships or commitments during the week. Mitchell testified that she had been uncomfortable with the use of weekend-only employees because it inter- fered with continuity of programming which is mandated by the State, and the old schedule deprived a large seg- ment of the employee complement (the relief housepar- ents) of regular contacts with professionals such as QMRPs, psychologists, and psychiatrists on the staff. Mitchell further testified that she was concerned with the "deficiencies" which had been pointed out by state inspectors.8 These deficiencies regarded patient care and the recording of patient care. Mitchell and Roberts testi- fied that reviews of the regularly maintained records re- flected a trend that seemed to predominate on weekends; this trend was one of increased lapses in care and record- ing of care during the weekends as compared with lapses by the weekday staffs. As noted above, in January 1986, the relief housepar- ents were reduced to 32 hours per week, and 40-hour shifts were available only to those employees when they could pick up a shift during the week . Mitchell testified that cut-back was the first step toward rearranging the hours of the relief houseparents . 9 Also in January, Re- spondent did post a vacancy in the relief houseparent po- sition but then decided not to fill it, although some em- ployees did apply for the position . None of approximate- ly 10 vacancies in the relief houseparent position was filled between January and June 1986. Mitchell testified that the decision to eliminate relief houseparent positions came in June because, by that point, the number of relief houseparents had been re- duced to 20, and she felt that the situation could not go on with that small a weekend staff. General Counsel contends that the decision to elimi- nate the relief houseparent position lacked business justi- fication because of several different factors, and he sought to introduce testimony in accord with this con- tention. Schneider testified that since being made a resident service specialist on the second shift she has had limited contact with the professional staff. On the basis of this testimony the General Counsel argues that more contact with professionals could not have been a real reason for the change. Kruszyna acknowledged that while the psy- chologists are in the homes daily, and some of the QMRP's are in the homes daily, many of the profession- als are in the homes no more than once or twice a week. General Counsel called resident services specialists (and alleged discriminatees) Schulick, Schneider, and Gaber to testify about the effect that the elimination of the relief houseparent position had on the workings of the facility. I permitted the witnesses to testify, even 'in conclusionary form, but I limited the testimony to per- sonal observations and urged that they advance any spe- cifics that they could because none had been qualified as an expert . The three witnesses testified that after the elimination of the relief houseparent positions there were interruptions in staffing, lack of staff to do the job, and inconsistency in programming . Although asked to be as specific as possible, none of the witnesses could provide specific examples of lapses in care caused by the rear- ranged schedule. No employees, other than the alleged discriminatees, were called to testify on the point, al- though there are approximately 90 other resident service specialists whose jobs would have been affected by the change in schedule. Also, in General Counsel's brief it is argued, "it cer- tainly would have been easier and more effective to revise the schedules of the relatively small number of professional employees and therapists to have them report on rotating weekends rather than completely eliminate the relief houseparent position and reschedule all of the resident service specialists ." (Validity of the ar- gument aside, this quotation contains an implicit error; the night shift resident services specialists were not re- scheduled. They had been working rotating weekends, and they continued to do so.) During the summer of 1986 Respondent experienced severe staff shortages in the resident services specialist classification. The problem was not eliminated until later in the year when Respondent dropped its college degree requirement for the positions. General Counsel argues "[t]he Monday through Friday schedule of the resident services specialists prior to June 29 was arguably a re- cruiting benefit for Respondent inasmuch as other health care facilities generally require weekend work." Mitchell testified that there always had been staff shortages during the summers and denied that the elimination of the relief houseparent position caused the shortage of resident service specialists (which reached an unprece- dented high of 30 after the elimination of the relief houseparent position in June). 8 Received in evidence were state inspections of November 1984, May, November, and December 1985, and December 1986. 8 Schulick testified that at the time of the January reduction (well in advance of the known union activities) rumors began that the position of relief houseparent was going to be eliminated . Other witnesses testified that the rumors continued through the spring D. Written Warning Notice Issued to Susan Gaber Employee Susan Gaber was, at the time of hearing, a habilitation area manager and a resident service special- ist. She had been employed since November 12, 1983. 448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD One of her supervisors was Resident Services Supervisor Kimberly Tirk. On September 23 Gaber attended a first-shift staff meeting conducted by Tirk. During the course of the meeting several employees related concerns about their jobs. Gaber was particularly vocal. One complaint by Gaber was that in a prior question-and-answer session conducted by Tirk and Kruszyna, Kruszyna had re- mained silent when Tirk had said that she knew of no plans to eliminate the relief houseparent position. After mentioning this at the September 23 meeting, Gaber added that the employees "were being manipulated" by management. On September 24 Gaber had an incident in Kimicata's office, the result of which was that Gaber was given a warning notice for being "rude and unprofessional." The compliant does not allege that the warning notice issued that date constituted a violation of the Act. When Kimicata issued the first warning notice to Gaber, a lengthy discussion ensued, Gaber arguing that notice was without foundation . The two argued back and forth and the discussion ended upon Gaber's saying "you have a very condescending manner about you, like you think you're wonderful." Kimicata immediately stated that Kimicata was going to report that "wonder- ful" comment to Personnel Director Martin. Later on September 25 Gaber was called to Martin's office where she was met by Tirk, Kimicata, and Martin. At that point Tirk gave Gaber a second written warning notice for her earlier conduct toward Kimicata. 10 General Counsel contends that the second warning notice was issued not because of conduct towards Kimi- cata on September 25, but because of comments that Gaber made to Tirk in the group meeting of September 23. Respondent contends that the warning notice was issued solely because of the "wonderful" remark by Gaber to Kimicata on September 25. E. Analysis and Conclusions 1. Elimination of the relief houseparent position The first question presented under Wright Line" is whether General Counsel has presented a prima facie case. The only arguable evidence of animus is the De- cember 1986 statement attributed to Martin by Labalzo. Martin, although still employed by Respondent, was not called to testify, and Labalzo's testimony is therefore deemed credible. General Counsel argues that Labalzo's report of Martin's statement constitutes a binding admis- sion against interest which compels the conclusion that the elimination of the relief houseparent position was motivated by a desire on the part of Respondent to rid itself of the core of union support . Respondent contends that the testimony of Labalzo was not properly admissi- ble as an admission against interest because: (1) General Counsel did not lay a foundation for admissability under the Federal Rules of Evidence, Section 801(d)(2)(D), and 10 Tirk and Kimicata signed the second warning notice; Kimicata testi- fied that she and Tirk drafted the notice together 11 Wright Line, 251 NLRB 1083 (1980), enfd. as modified 652 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). (2) assuming that such foundation was laid , the statement as reported by Labalzo was an "admission of nothing." In relevant part, Rule 801 provides: (d) Statements which are not hearsay-A state- ment is not hearsay if (2) Admission by party-opponent-The statement is offered against a party and is (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. Respondent contends that there has been no showing that the elimination of the relief houseparent position was a matter within the scope of Martin 's agency or em- ployment. Martin was, at the time of the elimination of the relief houseparent position, and at the time of the statement to Labalzo, Respondent's personnel director. The reason for being of a personnel director , such as Martin, is to assist in the formulation of, and in the execution of, personnel policies. The most fundamental of such policies would include those which would change the number of per- sonnel to be employed, such as the decision to eliminate the relief houseparent position . At minimum, a personnel director such as Martin would be privy to such policies, and there was no testimony to indicate that she was not privy to discussions about the change.12 Therefore, assuming that Martin's statement to La-' balzo was "an admission" it was a "matter within the scope of the agency or employment" of Martin and would be binding. However, the real question raised by Respondent is whether the statement by Martin, as related by Labalzo, constitutes an admission of anything , because, as noted, the statement is the only arguable evidence of animus contained in the record. The first thing to be noted is that Labalzo's account is not susceptible to an interpretation that Martin admitted that the schedule change had been made because of known or suspected activities on the part of the relief houseparents. At most, the statement could be interpret- ed as meaning that the changes had been made and Re- spondent hoped that prounion employees would not adapt. Not contained in the statement is an admission that the change was made for unlawful purposes, and I am unwilling to read such interpretation into the state- ment as recounted by Labalzo. In sum, I reject General Counsel's contention that Martin's statement, as recounted by Labalzo, constitutes a binding admission that Respondent eliminated the relief houseparent position for reasons prohibited by the Act, 12 Respondent did introduce the testimony of Baird Atwood , member of Respondent's executive board , who testified that Respondent had no postelection policies aimed at defeating the certification process, other than pressing its objections to the conduct of the election. The elimina- tion of the relief houseparent position was, however, the product of pre- election policy , not postelection policy VERLAND FOUNDATION 449 and, therefore, the record does not contain evidence of unlawful animus. Nor is there probative evidence of knowledge which would support General Counsel's case. While General Counsel introduced evidence that the relief houseparents were active on behalf of the Union, there is no evidence that they were any more active than any other group. General Counsel also argues that, from the positions taken by the Union in the 1982 and 1986 representation cases, Respondent's agents could have deduced that the center of union support lay among groups which includ- ed the relief houseparents. Aside from the fact that other employees would be included in any such theoretical groupings, General Counsel's argument rests on an infer- ence that Respondent made an inference which would support the complaint. This is one inference too many. Accordingly, I find and conclude that a prima facie case has not been established by General Counsel. Even were I to conclude that General Counsel has presented a prima facie case on the issue of the elimina- tion of the relief houseparent position, I would conclude that Respondent has presented a defense for its actions. Respondent has asserted that it made the change in the interest of programming consistency and the elimination of deficiencies designated by the State. General Counsel presented witnesses who attempted to find fault with the care given residents after the change, thus attempting to demonstrate that programming efficiency, and patient care, was hurt rather than helped by the schedule change. The attempt was unavailing . The witnesses could only point to two or three isolated incidents which could have happened had no change in scheduling taken place at all. Respondent has its opinion as to how the institution should be run. Apparently, General Counsel and Charg- ing Party, and their witnesses also have their opinions. The arguments of General Counsel as to why the relief houseparent position should not have been eliminated are no more than an attempt to substitute for Respondent's opinion the opinions of General Counsel, the Charging Party and/or the witnesses.' 3 This the Board will not do.14 General Counsel has further produced no evidence to rebut the fact that the last state inspection (December 1986) in evidence reflects far fewer deficiencies than were noted by the inspectors before. 18 The best example of General Counsel's attempting to substitute her judgment for Respondent's are statements in the brief to the effect that it would have been easier to change the hours of the professional staff rather than the hours of the relief houseparents and the statements ad- vancing the speculation that the staff shortages experienced in 1986 would have been fewer had Respondent maintained the old schedule. 14 Nor will the Board, in absence of evidence of past practice or con- tract, require, Respondent to give "bumping" rights to relief housepar- ents, even if they did (generally) have seniority over the weekday em- ployees As Respondent further points out, as a union-defeating tactic the change in scheduling would have been a shot in the foot. There were no guarantees that all of the relief houseparents would not stay, t s and the net effect of the schedule change was to plant among the other em- ployees the very persons who would campaign most vig- orously for the Union, assuming the correctness of the General Counsel's contention as to where the main union support lay.16 For all of these reasons I find and conclude that Re- spondent has presented a defense for its actions, and the complaint regarding the elimination of the relief house- parent position should be dismissed. 2. Warning notice to Gaber General Counsel has likewise failed to present a prima facie case in regard to the warning notice issued to Gaber. General Counsel has demonstrated no union hos- tility in general, and no animus in particular directed at Gaber (or any other employee). At most, General Coun- sel's theory of the Gaber case is speculation that Gaber's voicing of commonly held concerns about the schedule changes, or management duplicity, could have had en- gendered hostility. This speculation is something less than evidence. Moreover, Respondent has presented a defense for its actions. In her testimony, Gaber essentially admitted that of which she was accused by Respondent, insolence. Re- spondent's reaction was immediate and it was precise. General Counsel argues that discipline was disportionate to the offense. This, again, is a substitution of General Counsel's opinion for that of Respondent. It is clear that Gaber acted in an insolent manner on September 25, and there is nothing other than speculation to suggest that Respondent would have meted out any less discipline to any other employee. Accordingly, I shall recommend that this portion of the complaint be dismissed as well. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed17 ORDER The complaint is dismissed in its entirety. 15 Indeed, two of the three leaders of the Verland Organizing Commit- tee, Michael Beatrice and Debra Schneider , did not quit, and Shulick did not quit until October 16 As Respondent further argues , a corollary to this conclusion is that the change in schedule was just as likely to engender anger toward man- agement, and therefore support for the Union, among the weekday resi- dent services specialists who lost their erstwhile free weekends because of the schedule change 17 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