Ohio Masonic Home

606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ohio Masonic Home and National Union of Hospi- tal and Health Care Employees, Local 1199 11, RWDSUJ, AFL-CIO. Case 9-CA-12041 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On April 5, 1979, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order, as modified. At the time the Administrative Law Judge con- sidered the instant case, he did not have the benefit of our recent pronouncements interpreting the Weingarten principle.' However, the record herein has been developed sufficiently to enable us to evaluate the facts under current case law and to make the appropriate findings and dispose of this matter without the necessity of a further hearing. In Baton Rouge Water Works Company,2 the Board held that . . . as long as the employer has reached a final, binding decision to impose certain disci- pline on the employee prior to the interview, no Section 7 right to union representation exists under Weingarten when the employer meets with the employee simply to inform him of, or impose, that previously determined dis- cipline. In the instant case, the testimony and exhibits of- fered by Respondent show that at the time Re- spondent's director of nursing, Bette McDonald, in- terviewed Martha Deyhle on November 28, 1977,3 Respondent had not reached "a final, binding deci- sion to impose certain discipline" on Deyhle. It is also apparent that the November 28 interview was not "simply to inform [Deyhle] of, or impose, [a] previously determined discipline." On the contrary, ' NL. RB. v. J Weingarten, Inc., 420 U.S 251 (1975). 246 NLRB No. 161 (1979). As Chairman Fanning dissented from the majority opinion in Baton Rouge, he does not find it necessary to distin- guish that case. :' All dates herein shall refer to the calendar year 1977 unless otherwise specified. 251 NLRB No. 59 the record shows, and we find, that the ultimate decision to suspend Deyhle was made by Mc- Donald after receiving authorization from Re- spondent's chief administrator; that such authoriza- tion was not tantamount to a final, binding decision to suspend Deyhle; that thereafter McDonald could have decided not to suspend Deyhle; that, during the November 28 interview, McDonald in- terrogated Deyhle regarding certain complaints McDonald had received from Deyhle's supervisor; and that it was only after Deyhle had explained the circumstances surrounding the complaints that Mc- Donald informed Deyhle of her suspension.4 In light of the above findings, it is evident that the facts of the instant case do not fall within the narrow rule of Baton Rouge Water Works Company, supra, and we therefore conclude that Respondent violated Section 8(a)(1) of the National Labor Re- lations Act, as amended, by proceeding with the November 28 interview of Martha Deyhle after denying her request that fellow employee Yvonne Hayes attend such interview. In Kraft oods, Inc.. a the Board held that once the General Counsel shows that a respondent has conducted an interview in violation of Weingarten, supra, and that the employee whose rights were violated was subsequently disciplined for the con- duct which was the subject of the unlawful inter- view, the burden of going forward with the evi- dence shifts to the respondent to show that its deci- sion to discipline the employee in question was not based upon information obtained at the unlawful in- terview. If the respondent cannot meet its burden, the Board will order a "make whole" remedy such as reinstatement, backpay, and expungement of all disciplinary records; however, if the respondent does meet its burden, a make-whole remedy will not be ordered. In the latter instance, the Board was of the view that a traditional cease-and-desist order is sufficient to remedy the 8(a)(l) violation. In the instant case, the record shows, as found above, that McDonald did not suspend Deyhle until after Deyhle had explained the circumstances surrounding the complaints McDonald had re- ceived from Deyhle's supervisor. Under these cir- 4 Nursing Director Bette McDonald, according to a memorandum written by her describing what transpired during the interview, elicited an admission from Deyhle that she had failed to report or call in for a scheduled duty shift on a particular Friday Deyhle also admitted to holding dowsn another job concurrent With her employment ith Re- spondent and to taking real estate training courses. In response It) this latter admission. McDonald suggested that perhaps she as overextend- ing herself to the detriment of her job performance According to Mc- Donald, Deyhle also took offense at certain complaints about her regis- tered by her supervisor and. at least s ith respect to one complaint, of- fered a substantive explanation. 5 251 NLRB 598 (1980). As Member Jenkins dissented from the major- it) opinion in Krafr Foods, he does not find it necessary to distinguish that case. ()111() MASONIC II()M[ cumstances we can only conclude that Deyhle was suspended because she did not have a satisfactory explanation in response to the complaints, rather than merely because there had been some com- plaints. Accordingly, we conclude that the decision to suspend Deyhle was based, at least in part, on information obtained at the unlawful November 28 interview and, therefore, a make-whole remedy is appropriate. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Ohio Masonic Home, Springfield, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph (a): "(a) Requiring that employees participate in in- terviews or meetings where the employees have reasonable grounds to believe that the matters to be discussed may result in their being disciplined and where representation at those interviews or meetings has been refused." 2. Delete paragraph !(b), and reletter the remain- ing paragraph accordingly. 3. Substitute the following for paragraph 2(c): "(c) Expunge and remove from its records and files any and all reference to the interview on No- vember 28, 1977, at which Martha Deyhle was wrongfully denied a representative, including any suspension notice or reference to the suspension." 4. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WVE WI . NOI require any employee to take part in an interview or meeting where the em- ployee has reasonable grounds to believe that the matters to be discussed may result in his or her being the subject of disciplinary action and where we have refused to permit him or her to be represented at such meeting by a repre- sentative. WE WII.I NOT in any like or related manner interfere with, coerce, or restrain employees in the exercise of the rights guaranteed them by the Act. WE Wtn.i pay Martha Deyhle backpay for her suspension on November 28, 1977, plus in- terest. WL Wll L expunge and remove from our re- cords and files any and all reference to Martha Deyhle's suspension on November 28, 1977. OHIO MASONIC HOMNE DECISION SI'I AIMI N I 01- IH C S J.iMES M. FTZPA IRICK, Administrative Law Judge: In this case the Employer called an employee into the office for a disciplinary interview. The employee asked that an- other employee be allowed to accompany her as her rep- resentative but the Employer refused and the interview proceeded without the employee representative. The chief question is whether the Employer was justified in this refusal because at the time it was testing the Union', status as exclusive bargaining representative in the courts. As set out hereinafter, I find the Employer com- mitted an unfair labor practice. The case arises from charges filed December 19, 1977,' by the National Union of Hospital and Health Care Employees, Local 1199 H, RWDSU, AFL-CIO (the Union), against Ohio Masonic Home (the Emploer or Respondent). Based on these charges a complaint issued February 10, 1978, alleging that Respondent had committed unfair labor practices within the meaning of Section 8(a)(l) of the National Labor Relations Act, as amended, by threatening to watch an employee's con- duct in order to discourage her future protected concert- ed activities; by giving that employee the impression her protected concerted activities were under surveillance by management; by refusing to permit the presence of a union representative, or a fellow employee, during her disciplinary interview; and by giving her a 3-day suspen- sion without pay. Respondent answered, admitting the jurisdictional allegations; admitting that it had refused to I All dae, herein are In 177 unle,, ltherrie indicated 0()7 ,()8 DECISIONS OF NATI()NAI. LAHOR RELATIONS BO()ARD allow a union representative or a fellow employee to be present during a disciplinary interview of employee Martha Deyhle which resulted in her 3-day suspension, but denying it had threatened to watch her in order to discourage protected concerted activities or that it had given her the impression her protected conduct was under surveillance. The issues posed, came to hearing before me at Springfield, Ohio, on August 4, 1978. Based on the entire record, including my observation of the witnesses and consideration of the briefs filed by the General Counsel and Respondent, I make the follow- ing: FINI)INGS OF FACT I. THE EMPIOYER Respondent, an Ohio corporation, is engaged in the operation of a nonprofit health care institution at Spring- field, Ohio. During the 12 months preceding issuance of the complaint, a period representative of its operations, Respondent received gross revenues exceeding $100,000 and purchased and received from firms within Ohio goods and materials valued over $50,000. These supply- ing firms in turn purchased and received said goods and materials at their respective places of business in Ohio di- rectly from points outside Ohio. I find that Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce and in operations af- fecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNION At all material times the Union has been a labor orga- nization within the meaning of Section 2(5) of the Act. On April 25, 1977, the Board, in Case 9-RM-762, cer- tified the Union as the exclusive collective-bargaining representative of Respondent's employees in an appropri- ate unit. Nevertheless, Respondent refused to bargain with the Union, which then filed unfair labor practice charges with the Board based on that refusal. In the pro- ceedings which resulted, the Board granted the General Counsel's motion for summary judgment and ordered Respondent to bargain with the Union. Ohio Masonic Home, 233 NLRB 1004 (1977). Respondent persists in its refusal to bargain and the Board's order is currently pending enforcement in the United States Court of Ap- peals for the Sixth Circuit. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Employment of Martha Deyhle Respondent hired Martha Deyhle on February 6, 1975. At the time of the events involved in the present matters, she worked as a nursing assistant. The evidence estab- lishes beyond question that her attendance record was less than satisfactory. In addition, her work performance was called into question. Thus, on June 24, her supervis- ing nurse, Sandra Holton, reprimanded her for not doing her share of work and for not following Respondent's dress code. On June 28, Bette McDonald, director of nursing, discussed her shortcomings with her. Deyhle had further interviews of a similar nature on November 21 and again on November 28 at which time she was given a 3-day suspension. These latter two interviews are discussed more fully hereinafter. On December 23 she resigned. B. The Employee Meeting on November 17 It is established practice for Respondent's management to hold meetings of employees to discuss generally such things as nursing home operations, working conditions and work performance. A meeting may be instigated by an employee request or by management itself. As a result of such a request from an employee, Ad- ministrator Keith Bruster and other management officials met on November 17 with two groups of employees. Deyhle attended one of the meetings of 12 to 15 employ- ees which lasted about 40 minutes. She, as well as other employees present, participated in the discussions, ex- pressing their views and asking questions of the adminis- trator. 2 Among other things, the subjects of attendance and weekend work were discussed. At that time employees on the nursing staff were scheduled to work two out of three weekends at their regular wage rate. No provisions existed for additional pay on weekends or holidays. At the November 17 meeting, Deyhle asked why the sched- uling could not be arranged for employees to work every other weekend and to receive extra pay for Sun- days and holidays. She admittedly was sarcastic in asking her questions and in suggesting that Bruster not make his answers too long. He stated that he would not tolerate sarcasm. With respect to her questions he replied that, in the past, efforts to work out different scheduling had been attempted without success and that the present ar- rangement would continue. Deyhle suggested that if Re- spondent would pay better wages the employees would be happier and the patients would receive better care. C. The Interview on November 21 The complaint alleges that, on November 21, Bruster violated Section 8(a)(l) of the Act in two respects: first, by threatening an employee that, because the employee had engaged in protected concerted activities consisting of protesting certain working conditions, the employee's conduct would be watched in order to discourage the employee from future protected concerted activities; and, second, by creating the impression that the employee's protected concerted activities were under surveillance.3 In order to assure consistent quality nursing care, Re- spondent periodically reviews the performance of nurs- ing staff employees. In connection with such a review, Deyhle was called to Bruster's office on November 21. 4 2 The complaint alleges, and Respondent admits, that at the November 17 meeting Deyhle along with other employees expressed their views and desires concerning improved working conditions at Respondent's facility I It is neither alleged nor contended that on November 21 Respondent refused to permit the presence of a union representative, or a fellow em- ployee representative, during a disciplinary interview as requested by an employee being interviewed. ' Others in attendance included Director of Nursing Bette McDonald, Assistant Administrator Frances Ulery, and Inservice Director Ray Deyhle testified that she had brought along Virginia Risner. president of Continued O)HIO MASONIIC HOMF h(') According to Deyhle. Bruster did most of the talking. He discussed her work record, indicating that she had accumulated quite a record in the short time she had been in the nursng department. She testified that he told her further, "that I was to be careful of things I've said and who I talked to, because it would come back to Mr. Bruster, and that I would be watched, and m work would be speculated on." She further testified that he mentioned the employee meeting on November 17 and in that connection said he realized she had the makings of a militant. Bruster gave a different version. He testified that the interview was for counseling her and that it had been called at his request at a time when the other manage- ment officials could be present. He characterized the in- terview as part of the ongoing evaluation process and the last step which would precede more serious action. According to him he advised Deyhle that she would be closely monitored and that she was not meeting their standards in work performance or attendance. A number of incidents documented in her personnel file were dis- cussed. She was told that if her work habits and attend- ance did not improve further action would have to be taken. He denied calling her a militant. Bruster is corroborated by McDonald who testified that the word "militant" was not used during the inter- view and that no reference was made to the employee meeting of November 17. Bruster is also corroborated by a file memorandum which he dictated immediately following the interview in which he recorded in pertinent part that "Miss Deyhle was advised by Mr. Bruster that she has some serious problems that must be corrected, concerning her work habits and attendance. She had been counseled in both areas and told that she is going to be closely monitored in the future and if she continues to not meet our stand- ards in work performance and attendance, particularly in not being available for work on the weekends, serious action will have to be considered, up to and including termination." Deyhle's personnel records amply support the finding that her attendance record was unsatisfactory. With re- spect to her work performance during the period preced- ing the interview, Bruster credibly testified that her im- mediate supervisor had reported to him that Deyhle was observed smoking in the solarium when she was sup- posed to be working, and that Deyhle was at the nurses' station reading a newspaper when she should have been bathing patients. Considering the testimony of Bruster, together with the corroboration of McDonald, the contemporaneous memorandum, and the evidence of poor attendance and poor work performance, I credit Bruster's version of the interview and find that he did not threaten to watch Deyhle because of her concerted activities at the em- ployee meeting of November 17. 1 further find that the evidence fails to establish that he gave her the impression that her protected concerted activities had been under surveillance. the local union. a her rpreelntatle hbut thatl Irutr had ntl .lliov, t Rinrler )to enter h r.mn D. The Inleriew on N'overnher 28 In spite of the "counseling" given Deyhle on Novem- ber 21. she was 37 minutes late for work the next day. The day after that she left before tile end of her shift. stating that she was sick. Her next scheduled workday was the Friday follos ig Thanksgi, ing, but she neither reported for work that day nor called in. In addition to the above attendance problems her floor supervisor reported to McDonald that Deyhle swas again observed reading a newspaper when she should have been bathing patients. Her supervisor also reported that in attempting to feed a patient w ho would not eat. she had said, "If you don't eat, you're going to die." Management considered this an inappropriate remark to make to a patient. Based on these incidents, McDonald recommended to Bruster that Deyhle be suspended. He agreed. Accord- ingly, on the morning of Monday, November 28, she was called to McDonald's office. In McDonald's words the following occurred: When Martha (Deyhle) came in, she asked for Yvonne Hayes to come in and I said, I'm sorry, but. Yvonne has nothing to do whatsoever ith this problem that I want to talk to you about. And she said that she wanted her as her delegate. And I said, I'm sorry, but as your working without contract. I said, I have never denied anyone a delegate when I had a list of delegates. But. I said, I do not ha e one. I have not been given one and I can't have anyone in with you. ' McDonald then discussed with Dcyhle her attendance problems as well as the reports from her supervisor re- garding her work. At the conclusion of the discussion McDonald suspended her for 3 working days. The sus- pension was subsequentl confirmed in writing and a record of it placed in her personnel file. The General Counsel contends, and I agree, that McDonald's refusal to allow Deyhle to hate a repre- sentative with her, and the suspension which resulted. violated Section 8(a)(l) of the Act. Deyhle could reason- ably believe that the interview would result, as it did, in disciplinary action. She requested the presence of a rep- resentative and McDonald denied her request without giving her any option of not participating in the meeting. It is settled law that disciplining an employee under such circumstances is an unfair labor practice. . L.R.B . UWeingarten, Inc., 420 U.S. 251 (1975); Glomac Platics. Inc., 234 NLRB 1309 (1978). Respondent argues that the law is not settled because the Supreme Court majority in WIeingariren spoke in terms of union representation and only the dissenting opinion specifically equated concerted activity rights of an employee with union activity rights with respect to having a representative present during a disciplinary in- terview. Respondent further points out that. under the statltory scheme, a question of representation is tested in he' h tc " rkilg thtllltll 'uillrII lc I /tl i l .1 ll rcfLrt- l' I1 t ah. It11t'C f h.lrglllllg htAl't'i R rie it . i n i L t ll-ll m lh ni he rt ull i l a k o' .I ,dic, J -l h.ir.Lli[i11g .rgi iLlirit Oi MASONIC HOM bO) h10 1)1:('ISI()NS ()OF NAI-I()NAL. LABOR RELATIONS BOARD the courts by an employer refusing t bargain, thereby precipitating unfair labor practice litigation which pro- vides the conduit for court review. Respondent urges that, pending such review, the status quo should be maintained so that, in the event a reviewing court deter- mines that the Union's certification was improper, a new election can be conducted without prejudice. Respondent respectfully disagrees with the position of the Board in Glonac Plastics. The decision in Glomac Plastics is bind- ing on me and, accordingly, I reject Respondent's con- tentions. Even before Glornac Plastics, the Board had held in Montgotnery Ward and Co., Incorporated, 228 NLRB 1330 (1977), that an employer's contention that the Board's order to bargain with a union was subject to further sup- plementary enforcement proceedings in a court of ap- peals was without merit. So in the present matter, al- though Respondent may, as it has, choose to ignore the Board's bargaining order, it does so at its peril. Apart from the foregoiig, Respondent argues further that the 3-day suspension was not an unfair labor prac- tice because adequate cause existed for disciplinary action. This, however, begs the question because if Deyhle's rights to have a representative at the interview had been honored, that representative might have affect- ed the outcome of the interview, which is the very reason the law gives employees that right. IV. IHI IF1 FCTI'S ()1- TiHl LIUNFAIR I ABOR PRACTICIES UIPON CONMI RCtF The unfair labor practices of Respondent set forth in section III, above, occurring in connection with the op- erations described in section 1, above, have a close and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCI USIONS 01 LAW I. Respondent is an employer within the meaning of Section 2(2) and is eA.gaged in commerce within the meaning of Section 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. Respondent threatened, coerced, and restrained its employee Martha Deyhle in the exercise of rights guar- anteed in Section 7 of the Act, thereby committing unfair labor practices proscribed by Section 8(a)( I) of the Act, by: (a) Refusing to permit her to have a representative ac- company her during a disciplinary interview. (b) Disciplining her, including a suspension for 3 working days, at the conclusion of a disciplinary inter- view in which she was not permitted to have a repre- sentative accompany her. 4. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. THIE RFMDY Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the poli- cies of the Act. I recommend that Respondent be or- dered to make Martha Deyhle whole for any loss of earnings incurred as a result of being suspended for 3 days on November 28, 1977. with backpay to be comput- ed in the manner prescribed inl i W Woolworth Compa- nv, 9() NLRB 289 (1950), and with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 6 1 further recommend that Respondent be required to pre- serve and make available to Board agents, upon request, all pertinent records and data necessary in analyzing and determining whatever backpay may be due, and to ex- punge from her personnel records all references to her suspension. I also recommend that Respondent be re- quired to post appropriate notices at its Springfield, Ohio, facility. Upon the foregoing findings of fact, conclusions or law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' The Respondent Ohio Masonic Home, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to permit employees to be accompanied by a representative during a disciplinary interview. (b) Discipliniig any employee at, or as a result of, dis- ciplinary inter\views at which the employee was not per- mitted to be accompanied by a representative. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights to self-organization, to form labor organizations to join or assist a labor organization, to bargain collectively through representatieves of their owin choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmatix e action which it is found will effectuate the policies of the Act: (a) Make Martha Deyhle whole for any loss of earn- ings in the manner set forth in the section titled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. s ee, gerleraily. I[ Ph'iobing &' liuiting (so., I. NRIt 716 (1962) II te cnir l i eceptotiri ;rc filed ais provided by Sec 1()246 oi tihe Rule, andl Regulaltions ,t the N.Lti;lal I bth r Relation Board, the firid- IIMgs. llIl.iillS., all d r'olmilwi lldled ()rIC l h till s all, is prmoidcd ill Sec 1t)2 4 1It Ihe Rle iId Regljlllllills. he .iihpield h; IhCe ilard aild hbccunle its tlllitlng. concluo,1 1 i,,. .i ()rdr. illld all obhJection, thlcrlel s,.hl e dteitiC,t ' ic'd tfI a1ll . 1rlpustC ()1110 MASONIC HOME .I (c) Expunge from her personnel records all references to her suspension on November 28, 1977. (d) Post at its Springfield, Ohio, facility copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's au- thorize representative, shall be posted by immediately I In the cent thalt this ()rlder i enforced h a Judgment of a I liletd Stales Court of Appeails. Ihc u.ord, i the nlice rea;llrg "Posled hb Order of thc Nhonal labor Relations tBoard ,shall read '"Posted P'ursu- ant to a Judgment (of the lnited Siais Ctourt f Appeal, 1lnforcing an ()rder of the Nat.inal I :ther Relation Hoard " upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said otices are not altered, defaced, or cov- ered by any other material. (e Notify the Regional Director for Region , in writ- ing, within 20 days from the date of of this Order, what steps have been taken to conmply herewith 11 IS FURIHR OR)l RtHI) that those allegations in the complaint not specificall found herein are hereby dis- missed.