Barberton Manor

National Labor Relations Board - Board Decisions

Sep 26, 1980

252 N.L.R.B. 380 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Americana Health Care Corporation of Ohio d/b/a
Barberton Manor and United Food and Com-
mercial Workers Union, Local 698, AFL-CIO.
Case 8-CA-13099
September 26, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 8, 1980, Administrative Law Judge
Frank Itkin issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order. 3
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 and
hereby orders that the Respondent, Americana
Health Care Corporation of Ohio d/b/a Barberton
Manor, Akron, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
Member Jenkins agrees with the Administrative Law Judge's conclu-
sion that Respondent violated Sec. 8(a)(l) of the Act by soliciting and
remedying grievances to discourage union activity, but finds it unneces-
sary to rely on Litton Dental Products, 221 NLRB 700 (1975).
a Our ordering Respondent to cease and desist from remedying griev-
ances should not be interpreted to mean that the statuv quo ante may law-
fully be restored with respect to grievances that have been remedied. In
accordance with his partial dissent in Olympic Medical Corporation, 250
NLRB No 11 (1980), Member Jenkins would award interest on the back-
pay due based on the formula set forth therein.
DECISION
FRANK H. ITKIN, Administrative Law Judge: The
unfair labor practice charge in this case was filed on
August 20 and the complaint' was issued on September
26, 1979. The hearing was conducted in Akron, Ohio, on
I The complaint was amended at the hearing to correct the name of
Respondent.
252 NLRB No. 57
March 10 and 11, and on April 3, 1980. The General
Counsel alleges that Respondent violated Section 8(a)(1)
and (3) of the National Labor Relations Act by coercive-
ly interrogating employees by soliciting grievances from
employees and remedying the grievances,2 and by discri-
minatorily discharging employee Elizabeth A. Brown.
Respondent denies that it has violated the Act as alleged.
Upon the entire record, including my observation of
the witnesses, and after due consideration of the briefs of
counsel, I make the following:
FINDINGS OF FACT
Respondent is admittedly an employer engaged in
commerce as alleged. Charging Party Union is admitted-
ly a labor organization as alleged. The Union filed a peti-
tion in Board Case 8-RC-11865 on or about July 26,
1979, seeking to represent a unit including Respondent's
nonprofessional employees at its Barberton, Ohio, loca-
tion. An election was held on or about August 30, 1979.
Respondent filed timely objections to the Union's con-
duct and a second election was held as directed on or
about November 8, 1979. The Union was certified as bar-
gaining agent of the unit employees on or about Novem-
ber 16, 1979, and, as stipulated, "the parties are now bar-
gaining." The conduct alleged to be unlawful occurred
during July and August 1979. The pertinent evidence is
summarized below.
A. The Interrogation of Employees
Employee Elizabeth A. Brown testified that on or
about July 25, 1979,3 Supervisor Peggy Bonnett had the
following conversation with her and coworker Kathleen
Noaker "in front of Peggy Bonnett's office by the time
clock":
We were going to clock in for a meeting. Peggy
had come up and she asked what we had got that
Union for. We stated that, well, before we stated
that, Kathy [Noaker] told her that she had just
broken the law. Peggy said she didn't care and then
she went on to talk about it. She [Bonnett] said,
why didn't we come back to her and we told her
that she wasn't our supervisor. We told her that the
Company hadn't done anything for us and that we
wanted a Union ..... Steve Plali [assistant admin-
istrator] came in, and she [Bonnett] said . . . Steve,
why don't you stick up for the Company. Steve just
shrugged his shoulders and walked to his office, and
Kathy and I went on back into the staff room and
waited to go into the meeting. 4
2 The complaint was further amended at the hearing to allege an addi-
tional unlawful solicitation of grievances and remedying of same by the
Employer.
' Brown's organizational activities commencing about July 19 and her
subsequent discharge on August 14, 1979, are discussed below in sec C.
Brosvn further testified
[Bonnett talked to both of us, but Kathy Noakerl answered her
mostly. [Bonnettl said something about, why didn't we get the
Teamsters to handle us and Kathy told her that we had tried and
that we felt the Retail Clerks could help us.
380
BARBERTON MANOR
Kathleen Noaker, employed as a nurses aide, testified
that she first became involved with the Union "a little
before" July 22, 1979. She explained: "[I]n the first few
days we did get the majority signed .... " She further
recalled that about July 25 or 26, 1979, there was "a
medical records meeting" at Respondent's facility
and:Q04
We [Noaker and Brown] were getting ready to
clock in for the meeting. .... Peggy [Bonnett)
came up to us and just started right in about us get-
ting a Union. .... She asked why the hell we
picked that Union. I said, Peggy, you know you're
breaking the law .... Peggy . . . said she didn't
give . . . a damn about the law. She was just very
down on this certain Union.
Bonnett also stated to the two employees:
[W]hy didn't [they] come to her and ask about the
Union. [Noaker] said, well, we don't go to a super-
visor and ask about a Union. She said, well, you
know, you girls can always come to me. [Noaker]
said, well yes.
A discussion followed as to "why" the employees
"didn't get a different" union to represent them. Bonnett
"said [that] this Union has been other places . . . but
they never helped them . ."S
B. The Solicitation of Grievances
Dorothy Reeves, employed by Respondent as a nurses
aide, recalled that the Employer's representative, Jerry
Bango, conducted some three meetings with employees
at the Barberton facility. The initial meeting was held
before any organizational activity had commenced at the
facility. Reeves testified that at the "second" meeting:
I didn't remember exactly everything, but Mr.
Bango came in and he was upset. I am not sure the
exact words but I think he said, what the hell is
going on. .... He threw his coat down on the table
and you could tell [that he was upset] by his voice.
They talked about a lot of different things, but he
talked down to us as if we were children and we
didn't know what we were doing, you know, on
our jobs and so forth. . . . The only thing I can re-
member is he told one of the girls she had a big
mouth like he did.6
Reeves, as she testified, asked Bango some "questions"
at this meeting about a "break-in" at Respondent's facili-
ty. Reeves explained that some weeks earlier, there had
been "an alleged breaking in at the Barberton Manor,
supposedly to have happened on the third shift." Assist-
ant Administrator Steve Plali and Director of Nursing
I Bonnett is no longer employed by Respondent She was not called to
testify.
6 Reeves further noted:
The only thing I can really remember that he said was, he showed
us his union card that he carried. I don't know what they call it
when they go out of the union, they give you a card to carry He
said he had joined it when he was young because he had to, but he
still carried it.
Diane Chicowski had assembled third-shift employees
immediately following the incident and, as Reeves fur-
ther recalled:
[T]hey called us into the office .... [statements
were prepared for employees to sign which] said
they were holding third shift responsible for this
break-in until somebody came forward and said
who had broken in or they found out who did. I
protested to Diane and Steve both that I didn't
agree with this.
Reeves, and others, had signed the statements under pro-
test. Reeves, at Bango's "second meeting," wanted to
question Bango about this incident. Bango, however,
asked the third shift employees to meet with him after
his general meeting in order to discuss this "break-in"
problem.
Reeves further explained: "I was trying to get him
[Bango] to get them [the statements signed by third-shift
employees] out of our files." Reeves recalled:
Mr. Bango had the third shift wait and everybody
else left. . . . I told him that we wanted the papers
out of our files. He said that he would take them
out and tear them up. I said, no, Mr. Bango, you
may tear them up, but I want to watch you tear
them up.
Later, the employees involved were permitted to tear up
the "papers." 7
Reeves related a later incident involving Betty Covert,
Respondent's new director of nursing, and John Brunt, a
supervisor, as follows:
They came in and we were all in the meeting, all
the aides. They were asking us what they could do,
what things needed to be done around there, things
that we needed to help us and so forth. You know,
like we told them, lights for outside because it was
dark outside, [and] curtains by the windows.
The above meeting was prior to the initial election in
August 1979. The curtains were "put up" during January
1980.
Tonya Reeves, also employed as a nurses aide by the
Home, recalled that Bango, at his "second meeting" with
the employees:
. . . walked in and threw his coat on the table and
says, what the hell is going on here . . . I hear
there is going to be an election.
[He] showed us his union card and he said the
union is no good, and he was putting us down.
Tonya Reeves recalled that coworker Dorothy Reeves
"raised her hand and asked Bango about" the "break-in"
7 On cross-examination, Reeves acknowledged that she "brought up
Ithisl subject" at the meeting, not Bango
381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the "papers" signed by the employees. Bango asked
the third shift to "stay over." Later, third-shift employ-
ees met with Bango, explained what had happened, and
then Bango obtained the statements for the employees.8
Nurse's aide Kathleen Noaker recalled this "second
meeting" attended by Company Representative Bango,
as follows:
He [Bango] said, to the effect, what I hear about
this Union-he came in-he was just upset . . . he
threw his coat down ... . He said, "I didn't know
there were any problems around here."
Noaker noted:
At the first meeting, he wasn't even interested in
our problems. So, if he wasn't interested in them
then, why is he here now. He [Bango] said, "Well, I
didn't know things were that bad, why don't you
give us a chance to prove what we can do." We
said, "You had a chance at your introductory meet-
ing when you wouldn't listen to us and that is the
only chance we're giving you," because things were
bad there.
According to Noaker, Bango "kind of chuckled and he
said, we know we have some problems with this man-
agement, and . . . they wouldn't be there that much
longer anyway." "Problems" were then raised and dis-
cussed at this "second" meeting. The problems included
"the management." Bango said: "there are going to be
changes made." Other problems discussed were "laundry
hazard problems"; "machines are always breaking
down"; "they were not fixed for days"; "general areas
around the nursing home short of staff'; and the subject
of the "break-in." Bango dealt with the "break-in" and
the statements signed by the employees at the end of the
meeting with only third-shift personnel present. Bango
"turned over the papers and let us tear them up."
Gerald Bango, formerly employed by Respondent as
assistant director of employee relations, testified that on
or about July 1, 1979, Respondent took over certain
nursing homes in the Cleveland area, including the Bar-
berton Manor. Respondent's representatives met with the
employees at the facilities involved both before and after
the takeover. Bango attended a "second meeting" at Bar-
berton Manor during "the week of July 30." Bango ac-
knowledged: "I believe that when we were in Barberton
[at this second meeting] we had knowledge of a repre-
sentation election petition being filed." Bango generally
denied, inter alia, that he had "promise[d] any benefits to
employees" because he assertedly was "not allowed to
do that." (See Resp. Exh. 2.) Bango, however, acknowl-
edged, in effect, that, as a consequence of his meeting, he
attempted to remedy employee complaints of "stealing"
by a supervisor, Peggy Bonnett, and, further, the warn-
ing statements placed in employee personnel files follow-
ing a "break-in" were removed. Bango noted: "I felt it
[the warning statements as a result of the break-in] was
probably more of a violation of [employee] rights and
this was one of the reasons I wanted to expunge it from
[employee] files."
8 Also see the testimony of aide Carrie Dowdell.
Betty Covert testified that she assumed her role as di-
rector of nurses for Respondent on or about August 6,
1979. 9 She did "not feel that unions should have any-
thing to do with health care facilities." She recalled that
on August 6, she met with all the shift employees. She,
together with Respondent's representative, John Brunt,
held this meeting in order "to discuss with the employees
what they felt the priorities were that we [the Employer]
should start, in handling their current problems." Em-
ployees raised numerous problems and complaints.
Covert and Brunt "asked the employees to tell us what
their problems were, because we were concerned; we
wanted to start out right away, and knowing what their
problems were, so we could decide our priorities .... "
Covert acknowledged: "The subject did come up that
night as to what might my feelings were about unions."
Covert was asked: "were you asked that question specifi-
cally" and "had you ever previously mentioned the
Union .... " She responded, in part, "I don't believe I
did-my recollection is I don't believe I did." She later
denied that she "ever" brought up the subject of the
Union "prior to that."
C. The Discharge of Elizabeth Brown
Elizabeth Ann Brown testified that she started work-
ing for Respondent as a third-shift nurse's aide about
April 1978; that her charge nurse gave her "average"
evaluations during her some 16 months of employment;
and that she never received "any verbal or written warn-
ings about [her] work." Brown first became involved
with the Union about July 19, 1979. Brown recalled:
July 19, we called [the Union]. ... Then we went
to meet with them on the 23rd . . . 1979.
Brown explained:
We called different places like the Teamsters and
Steelworkers. I think it was the Steelworkers that
said try Retail Clerks, and we did, and we went to
meet with them on the 23rd of July 1979.
Brown was then given "some literature and discussed
what the procedures were of how to form a Union . . ."
Brown was also given blank union membership cards.
According to Brown:
We went out on that evening [July 23], Kathy
Noaker and I, we went to Barberton Manor and we
started signing people on our own time and on their
own time, not on the Company's time. We contin-
ued to sign up the next day we came in, and we got
the people on the first shift to sign up on their own
time before they clocked in.
Brown "signed up" some 30 coworkers in a unit con-
sisting of about 100 employees. A request for recognition
was made upon the employer by the Union and, as noted
above, a representation petition was filed with the Board
on or about July 26, 1979. Brown thereafter wore a
9 She was previously employed at the facility before Respondent's
takeover
382
BARBERTON MANOR
union button on her sweater at work. As discussed
above, Brown and coworker Noaker were questioned by
Supervisor Bonnett about their union activities on or
about July 25, 1979. Brown was later discharged on
August 14, 1979.
Brown testified that Respondent's new director of
nurses, Betty Covert, telephoned her about 3:30 p.m. on
August 14, while Brown was at her residence sleeping,
and requested Brown to come to the facility. Covert and
Brown had the following conversation in Covert's office:
She [Covert] said that she had heard two patients
and a nurse had come in and sworn out an affidavit
against me stating that I was physically and verbal-
ly abusive to [patient] Jean Anderson that morning.
I told her that I didn't do anything to Jean Ander-
son that morning. That I had taken care of her like
anybody else and she said it was the law that
anyone physically or verbally abusing a patient was
to be discharged. She said that her and Barry
Schimer [the administrator] had been talking it over
since that morning at 8:30 and that I was to be-
well, before that she had told me-I said, "Are you
firing me?" and she said, "Yes." She said that her
and Barry Schimer had talked it over since 8:30 that
morning and I was to be fired.
* * * * *
I ask. d to talk to Barry and he wouldn't talk to me.
* . * * *
She said that I would have to be fired, because
there was no sense in talking to Barry. I asked him
to produce the nurse and the patient.
* * * *
I asked Betty if she would ask Barry if he would
have them face me, the patient and the nurse that
swore the affidavit against me. She said they
couldn't do that. So, then, she went across the hall
and she talked to Barry. She came back and said
they had talked to their attorney and he said that I
was to leave the premises at once and I was not to
see them.
Brown explained how she had serviced patient Jean
Anderson on August 14, as follows:
Approximately 6:30 [a.m.] we went down on the
floor. I always started in the front of the wing. I
went through and got everything. Everybody else
was taken care of. I went into Jean's room and gave
her a wash cloth and put her bed railing down and
I went to get her robe. She didn't want the robe, it
was too bulky. I told her it was cold and she had
told me that she had a duster in her drawer so I
went and got that and I put it on her. I started to
walk her to the bathroom and she did not want me
to walk beside her. She wanted me to walk in front
of her and hold on to her hand. I said no because if
I fall you would fall. And if I walk behind you I
will be able to help you and better catch you.
So, I took her into the bathroom and helped her on
the toilet. Then, I put her wheelchair in front of the
toilet and put her posey and her brakes on. I waited
at the end of the bed. In the meantime, Alice
Taylor, the nurse's aid that had worked with me
that night, had been standing at the door and in the
meantime she had came and told me that she had
needed me down in Mrs. Nash's room. She needed
help because Mrs. Nash had made a mess and we
had to get her cleaned up that morning.
Later, as Brown further recalled, "Jean wanted me to
help her in the wheelchair" from "the toilet"; I told her
all she has to do was turn and sit down ". . . which she
did"; and "I took her out and I put her lap robe on her
and gave her her teeth and her comb because Jean could
do these things for herself."
In addition, Brown testified:
Then, I took Jean and pushed her down the hall in
her wheelchair and I stopped by the door and asked
why she needed two towels. I remembered before
that she always wanted two towels, it was a necessi-
ty for her. She told me one for her legs and one for
her back. So, I put those back and she told me I
had forgotten her pillow, so I got that one out of
the room. I had gotten a pillow out of the room
next to us and I put it under her legs and then I
took her down to the dining room.
Brown claimed that "I just sat her [Jean Anderson] at
the table in the middle of the room at the table she usual-
ly eats at"; "I asked her if she had everything and if she
was all right and she said yes"; this was about 7 a.m.,
and nothing "unusual or out of the ordinary" took place
that morning.
Alice Taylor, also employed by Respondent as a
nurses aide on the night shift during August 1979, testi-
fied that she had "cared for" patient Anderson "most of
the time"; that Anderson was then about 97 years old' °
and was "confused" and "very demanding"; and that she
had witnessed nothing "out of the ordinary" on the
morning of August 14. Taylor recalled:
When we went down on the floor to start getting
patients up, I assume around 6:30, I told Ann
[Brown] I would start at the front and Ann started
at the back. We worked our way down. When I got
to Ms. Nash's room, she had messed the bed and I
knew that I couldn't handle it by myself, so I went
down to get Ann to come up and help me. At that
time, I stood in the doorway and Ann was getting
Jean Anderson into the wheelchair-out of the
bathroom and into the wheelchair and everything
looked normal to me.
Taylor further testified:
o Anderson, as discussed below, died some 5 months later.
383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I was standing in the hall up by Ms. Nash's room
waiting for Ann and she brought Jean Anderson up
the hall, and they went into the dining room. But,
we were also instructed by the nurses not to get
Jean Anderson up until the last because they didn't
want Jean Anderson to sit at the nurses station be-
cause she drove them crazy.
Taylor also testified that on the "following morning":
I went into Jean Anderson's room to get her up and
I asked Jean Anderson what happened. She put her
finger up to her mouth like "sh" and she said, "I'm
not allowed to talk about it." That is all that was
said. Tony Reeves was in there. From then on we
never got Jean Anderson up by ourselves, we
always made sure we had somebody in there with
us.
On cross-examination, Taylor testified, as follows:
Q. You stated that you observed Ann Brown and
Jean Anderson when you came back from Ms.
Nash's room [on August 14]?
A. Yes.
Q. What did you observe Ann Brown doing?
A. Ann was getting Jean into the bathroom and
into the wheelchair.
Q. She was getting her into the bathroom?
A. She was taking her into the bathroom. I stood
in the doorway to find out, you know, about how
long she would be, and I walked up to the other
end of the hall.
Q. So, was Ms. Anderson going into the bath-
room for the first time at that time or was she
coming out?
A. I believe she was coming out. I believe she
was getting into the wheelchair.
Q. You saw Ann Brown helping her into the
wheelchair?
A. Ann Brown was standing behind the wheel-
chair. I was talking to Ann but I believe Jean An-
derson was in the bathroom by herself as she was
getting into - she was either getting into the bath-
room or getting into the wheelchair - I'm not sure.
Q. You don't really remember it very clearly do
you?
A. That is correct.
Tonya Reeves testified that patient Anderson was
"confused" and "demanding"; "if she didn't get her way
she was very upset . . . Reeves claimed that the "next
morning after" Brown was "discharged," Taylor and
Reeves "asked [Anderson] if anything happened that
morning and [Anderson] went like this . . . she said 'sh,'
I'm not allowed to talk about it.""I
Carrie Dowdell, formerly employed by Respondent as
an aide, testified that she was "accused of abusing a pa-
t Anderson's medical records reflect that her general condition varied
during the period involved here. I note that on May 12, 1979, a physician
observed that she was "pleasantly confused" with "poor sight." (See
Resp. Exh. 10.) Anderson, 97 years old, had skin cancer and arthritis. She
was receiving radiation therapy.
tient at Barberton Manor" in September 1979, following
Brown's discharge. Dowdell explained:
. . . Stella Wagner [a patient] . . . said I had
thrown a bedpan at her and it was full of BM and
they had written me up for it.... The nurse had
written me up ....
Dowdell was asked: "whether you were ever questioned
about this incident?" She testified:
Yes, I was .. . . Betty Covert. .... Yes, she asked
me and I told her. She told me . . . don't worry
about anything, because she knew the patient and
[the patient] was confused ....
Nurses aide Noaker similarly recalled that, shortly
after Brown was "discharged," she too was "accused of
abusing a patient" at the facility. Noaker testified:
I was reported to by my nurse that Ms. Covert
talked to Jason Koontz [a patient.] He was a very
confused patient and my nurse was questioned
about my activities with that patient. My nurse evi-
dently told Ms. Covert that I was on the up-and-up
and that I wouldn't do that .... He [the patient]
wanted my heater button on the bedrail ....
Apparently, the patient was complaining about the insuf-
ficiency of the heat in his room.
Barry Schimer testified that he has been employed by
Respondent since June 18, 1979; that he first assumed the
duties of administrator at Barberton Manor on August 6,
1979; that prior to August 6, he had visited Barberton on
only one occasion (June 26) in order to conduct a preta-
keover inventory for Respondent; that prior to August
14, he had never "met an employee named Elizabeth
Ann Brown" or heard her name "ever mentioned"; and
that 9:30 a.m. on August 14 was the "first time" he
"heard this person's name." Director of Nursing Betty
Covert informed Schimer that morning that there were
patients who wanted to see him. Schimer then held a
meeting in his office attended by Kathleen Becay, Re-
spondent's activities director; Pat Morris, a licensed prac-
tical nurse; Jean Anderson, a patient; and Mildred Lott, a
patient. Covert did not attend this meeting.
Schimer recalled that Anderson was then about 97
years old; "she had skin cancer over her body that re-
quired periodic radiation treatments"; "she also had ar-
thritis and could not move very well"; and she could not
walk "without assistance." At this meeting, Anderson re-
lated the following complaints to Schimer:'2
She [Anderson] mentioned how fearful she was
for her safety. She was crying and very flushed and
her hands were shaking. She mentioned that the
previous morning she had asked for assistance and
was told that she had to get herself up that morn-
ing; she had to do for herself. She mentioned that
she was helped to the bathroom.
12 As noted, Anderson died some months later. Evidentiary issues per-
taining to the receipt of this and related evidence are discussed below
384
385BARBERTON MANOR
[She] was helped to the bathroom in her room,
and had been helped to be placed on the toilet.
After she had been on the toilet for a short period
of time, she mentioned to me [Schimer] that she
was pulled off the toilet by one of her arms, and the
statement was made by Ann Brown that it was time
you were off the toilet, you have had enough. Mrs.
Anderson mentioned to me that she was not fin-
ished.
In addition, she mentioned that she had been
fearful for her safety for some period of time, par-
ticularly when Ann Brown was on the shift. She
cried for assistance; she pleaded with me to help
protect her; I was very concerned.
Anderson also told Schimer that she had asked aide
Brown "what her name was" that morning and Brown
responded: "shut up, whose business is it anyway ....
Anderson as noted, was upset and "couldn't eat" that
morning. Schimer prepared somewhat sketchy notes of
this meeting (See Resp. Exh. 4).
Schimer next identified Respondent's Exhibit 5 as a
typed statement, prepared by him, signed by Anderson
and witnessed by Schimer and Becay. Respondent's Ex-
hibit 5, dated August 14, 1979, recites, inter alia, that An-
derson is of "sound mind"; was "subjected to physical
and verbal abuse from nurses aide Ann Brown during
the early morning of August 14, 1979"; was told to "shut
up" when she tried to ascertain Brown's name; and
..while in the bathroom on August 14, 1979, Ms.
Brown . . . forcefully "dragged me by the arm"
and shouted "its time you're off the toilet."
Anderson's statement also refers to her being "subjected
to this type of behavior on numerous occasions" in the
past when Brown was assigned to her.
Mildred Lott, a patient at the facility was also present
at the meeting. Schimer testified that Lott told him "that
she had witnessed personally Ann Brown verbally abus-
ing and being disrespectful to Jean .... " that Lott re-
lated how she had "overheard Ann Brown [behind a di-
viding curtain] talking to another aide referring to Jean
Anderson - that she [Brown] could just beat the hell
out of her . . ."; and that Lott "pleaded with [Schimer]
to do something" for Anderson. Schimer prepared a
typed statement for Lott to sign." (See Resp. Exh. 6.)13
Schimer acknowledged that "prior to [his] deciding to
discharge Ann Brown," he did not "speak with her" be-
cause he "didn't think it was necessary." Schimer, how-
ever, conferred with Covert after his meeting with the
two patients. Schimer testified:
I pretty much had made up my mind after speaking
with these patients that something very definitely
had been wrong that prior morning and other times,
and that something had to be done. I asked [Covert]
what her feelings were about patient abuse and she
corroborated that she would have acted the same
Is Schimer also identified Resp. Exh 7 as statements taken by him
some 2 weeks earlier at another facility of the Employer to show. inter
alia, that he followed similar procedures where a patient abuse complaint
was made to him
based on the same kind of information. I asked
[Covert] if she would mind contacting Ann Brown
and have her come in and terminate her.
This was about 10:30 a.m. on August 14. Later, about 11
a.m., Schimer spoke with Russ Cloud, Respondent's di-
rector of employee relations, who assertedly confirmed
or agreed with Schimer's determination.
Schimer next testified that about 1 p.m. that same day,
August 14, he interviewed another patient, Ruby Wol-
ford, and similarly prepared a typed statement for her to
sign. (See Resp. Exh. 8.) Schimer testified:
I asked her [Wolford] if she had heard anything
that previous morning when the incident occurred.
She corroborated that she was [awakened] by yell-
ing in the adjoining room and Ann Brown was tell-
ing Jean to get herself up and she didn't have time
for her ....
Schimer acknowledged that Wolford's statement (Resp.
Exh. 8) "has been whited-out" in part because "she said
she couldn't sign it because it wasn't totally true."
Schimer "whited-out" the objectionable material.
Schimer claimed:
It had to do with her washing-Mrs. Anderson had
wanted her face washed and I thought she [Wol-
ford] said that Ann Brown said, "you wash it your-
self."
Wolford's statement, which will be discussed further
below, is dated August 22, 8 days after the incident.
Schimer explained:
Yes, I took the statement that afternoon, the 14th.
Unfortunately, we had changed secretaries in the
office and everything was quite chaotic. I had it
written out but I could not get it typed. As soon as
I had it typed I went to talk to Ruby. At that time
[August 22], we went through this line by line and
that is where she said she couldn't agree to that. I
tried in good faith to have a typewriter but I
couldn't, so much was going on.
On cross-examination, Schimer acknowledged that he
had made no attempt to speak with either Brown or
Brown's supervisor on duty at the time f the incident
before determining to fire Brown. Schimer was unaware
at the time of any earlier complaints or warnings
"against Ann Brown." Schimer was asked why he spoke
with Wolford after he had made his decision to dis-
charge Brown. Schimer generally denied that he was
"building a case against Ann Brown"; instead, he
claimed: "No, I was building a case that I had made the
right decision." Further, Schimer claimed that he did in
fact speak to Brown later that afternoon "on the inter-
com." According to Schimer:
I was speaking [on the telephone] with Betty
Covert at the time; she had mentioned that Ann
wanted to see the statements which I had in my
office. She [Brown] wanted to talk to me. Ann was
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given the phone and she said she didn't do any-
thing, that Jean Anderson was a liar and she de-
manded to see the document. I told her I couldn't
allow her to see those because of the confidentiality,
and she said she was going to get a lawyer and go
to the Union. I said I'm sorry, but I understood.
She had to do what she had to do, but I had to do
what I had to to protect these patients.
At the time of this telephone conversation Covert and
Brown were in an office about 75 feet away from
Schimer's office. In addition, Schimer also testified:
Q. Mr. Schimer, you stated that Jean Anderson
told you that when she was pulled off the toilet that
she was not finished.
A. Yes.
Q. Was there physical evidence of that?
A. Not that I investigated.
Q. Did anyone investigate it?
A. Not to my knowledge.
Mildred Lott-a patient at the Home during the
August 14 incident who was discharged later that same
day-testified that she met Anderson while at the Home;
that Anderson had complained to her about aide Brown's
"treatment of her"; and that
. . . it seemed as though [Brown] tried to get [An-
derson] to get up more often and bathe herself and
do for herself. She [Anderson] was afraid . . . she
would fall and get a broken hip.
Lott recalled that Anderson had the following conversa-
tion or conversations with her:
She [Anderson] said she asked [Brown] her name
and [Brown] told her she didn't have to know.
Lott claimed: "it was at different times that she [Ander-
son] told me about it." Lott then testified that she would
"place" the above conversation about July 1979. In addi-
tion, Lott recalled that about this same time, she over-
heard Brown and another aide talking, while "they were
working on" a patient in her room, and
. . . she [Brown] said to Kathy [the other aide],
"I'd just like to beat the hell out of that Jean An-
derson."
Lott, as she further testified, related these complaints
to Schimer on August 14 at the meeting in his office and
signed a typed statement prepared by Schimer. This
statement (Resp. Exh. 6) recites, inter alia:
Ms. Brown has on numerous occasions been cruel
and rough in her manner of speaking to Mrs. An-
derson. Furthermore, Ms. Brown did say that "I
could just beat the hell out of her [referring to Mrs.
Anderson]."
Lott also witnessed the complaints then related by An-
derson to Schimer at the August 14 meeting, as follows:
She [Anderson] told us how [Brown] had talked to
her and tried to make her walk and bathe herself
and like that ....
Lott, on cross-examination, explained that she required
Schimer to remove from her typed statement (Resp.
Exh. 6) the words "to me" because Brown "didn't say it
[the quoted material] directly to me." Schimer then
"whited-out" the words "to me." Further, Lott acknowl-
edged that she did not witness the incident on August 14
in Anderson's room and that, while she was a patient,
Brown was not physically or verbally rough to her.
Pat Morris, employed as a licensed practical nurse at
the facility on August 14, recalled that about 8 a.m. she
went to Anderson's room. Anderson was "very upset,"
had not eaten breakfast, and was "crying." Morris re-
called:
At that time, I tried to find out why she [Anderson]
was upset and she had not eaten breakfast. She just
said that she was so upset she couldn't talk to me
right then, and I calmed her down enough to have
her take her tea and toast, and she said maybe she
will feel better enough to talk to me.
Morris, as she further testified, returned to Andersoi
room "around 10:30." This was "prior to the meeting
with Mr. Schimer." Morris elsewhere testified that the
meeting with Schimer "would be around 9 .... "
Morris explained that prior to the meeting, when she re-
turned to Anderson's room, Anderson "proceeded to say
she felt she had been treated badly . . . when she was
getting up in the morning .... "Anderson complained
to Morris:
She was told she had to do more for herself. She
said the aide came into the room and she said she
was in a hurry and didn't have time for her. She
said she had to do more for herself. She said she
had to wash her own face and get out of bed with-
out needing much help. She said when she was in
the bathroom she was made to get up off the toilet
before she was done and she felt they were very
rough in the transferring procedure.
She didn't like the way she was spoken to, ver-
bally telling her to shut up.
Morris also spoke with patient Lott about this incident
and then "talked to ... Supervisor Betty Covert .... "
Morris was present in Schimer's office during the
meeting later that morning and witnessed Anderson and
Lott relate their complaints and sign their separate typed
statements. Morris explained:
Jean related in her own way how she was treated,
being yanked from the commode and being told to
do more for herself, wash her own face. She was
worried, she wanted to know who was going to put
her to bed that night.
* * *
386
BARBERTON MANOR
Mildred Lott had said that there were things that
she had heard, you know, the aides talking this way
to Jean that morning. She confirmed Jean's story
about the commotion that morning.
Kathleen Becay, the activities director, testified that
Anderson was "very upset" on the morning of August
14. Anderson complained "that she was hurried and not
given enough time on the toilet and she was treated
roughly." Becay related these complaints to nurse
Morris. Later, a meeting was held in Schimer's office.
Becay testified that Anderson and Lott then related their
complaints, as discussed above. Becay witnessed the
statements signed by Anderson and Lott.
Director of Nursing Betty Covert testified that on
August 14 she was informed by nurse Morris about the
patient abuse complaint against aide Brown; she related
the complaint to administrator Schimer; the two "dis-
cussed the procedure of how we would go about doing
it": "we decided that Mr. Schimer would discuss it with
the patient while I did some telephoning with the staff
trying to find out some more of the incident"; she had
apprised Schimer that patient Anderson was "alert, co-
operative and very rational"; and:
I [Covert] attempted to reach all of the nurses who
worked on the third shift, that night. There were
two I was finally able to get [hold] of, an RN and
LPN. I got [hold] of those in the Green Room that
night and they were not aware of anything at all.
RN Marge Rohr said that she had been moonlight-
ing. She was very tired. She was not aware of any
incident that happened.
Schimer, following his meeting with the patients,
spoke with Covert. Covert then "told him about [her] at-
tempts to get with the nurses. He had asked [her] then to
call Ann Brown and ask her to come in for a conference
to terminate her." Covert denied that Brown's union ac-
tivities were mentioned at that meeting. Covert also
denied any knowledge of Brown's union activities.
Elsewhere, Covert recalled that between August 6 and
14, she had attended a management meeting in Schimer's
office. Present were Schimer and "all department heads,"
including Peggy Bonnett. Covert claimed that "we were
told not to question anybody at all about the Union."
Covert also testified:
Q. Did any department heads at that meeting
name names of employees that they felt were en-
gaged in Union activities?
A. Yes.
Q. Who was that person?
A. Peggy Bonnett.
Covert, however, insisted that Ann Brown's name was
not "mentioned." Bonnett assertedly "went down the
roster of her employees in housekeeping, laundry and
maintenance."
Covert, as she further testified, telephoned Ann Brown
to "come in for a conference" on August 14. The meet-
ing was held about 3:30 p.m. Covert recalled:
Q. Please relate our discussions,with Ms. Brown
at that time stating both what you and she said?
A. Okay. She was upset that she had to come in.
I told her that I was very disappointed in her. That
I was the person who interviewed her, who had
hired her. I previously stated as director of nursing,
I had nothing but very good reports about her. She
was a very good above average nursing assistant.
There was never any question at any time of her
not assuming her responsibilities. I told her that I
was very sorry that I had to tell her that we had a
patient that morning that complained of verbal and
physical abuse from her. Reminded her of what our
policy was. She remembered what I said in the in-
terview about our policy. That was about it. She
was very upset. She was very sensitive. She said in
no way at all she would have done anything like
that.
I told her that we did have affidavits and state-
ments from patients and she demanded to know
who the patients were and who the nurse was who
reported her. I said because of confidentiality I
could not reveal that to her.
She wanted to talk with Mr. Schimer. I called
him on the intercom. I told Mr. Schimer that Ann
wxanted to see him. Ann was rather loud in my
office at that point and it was very difficult to hear.
So, I left Ann in my office and went to Mr.
Schimer's office.
Q. At any time were any allegations made that
you had terminated her because of the Union?
A. When I had returned from Mr. Schimer's
office, Ann said she had called her husband and
told him what had happened while I was out of the
office. That she was calling the Union in on this,
that I had terminated her because of the Union.
I told her at that point that I could care less
about the Union and the Union had nothing to do
with it. The Union had been the least of my
thoughts that whole day.
Q. Did anyone ever mention a patient's name?
A. No, Ann did.
Q. No, I said did anyone ever?
A. No.
Q. Did anyone in any office mention a patient's
name?
A. Yes. Ann said that I should not believe Jean
Anderson, that Jean Anderson was confused and
Jean Anderson was a liar.
Q. Had you prior to that time ever mentioned
Jean Anderson's name?
A. No, I did not.
Q. Had you brought up the names of any pa-
tients?
A. None at all.
Q. Why not?
A. Confidentiality. Nor did I reveal the nurse's
name either.
Q. For the same reason?
A. For the same reason.
387
DECISIONS OF NATIONAL LABOR R.ATI()NS BOARD
Q. How did Ms. Brown act when she left your
office?
A. She was upset. She was swearing. She was
hollering and she went out the front door.
On cross-examination, Covert acknowledged that
"there are frequent accusations by patients of employees
abusing them." Covert recalled that she had telephoned
Marge Rohr, the registered nurse on duty the night of
the August 14 incident, and Janet McNair, the licensed
practical nurse on duty that night. Rohr "was not aware
of what went on in the wing that morning," Covert was
asked: "Did you ask Ann Brown what happened?" She
testified:
I cannot give you an honest answer. I do not think
I did. I cannot give you an honest answer.
Further, with respect to the later patient abuse complaint
against Dowdell, Covert was asked: "Did you contact
Carrie Dowdell at that time and ask what happened?"
Covert testified:
Possibly so, I cannot give you an honest answer be-
cause I had so many conferences with Carrie. At
this point in time I'm not sure what day this was. 14
And, Covert acknowledged that Anderson was in fact "a
very demanding patient."
Ruby Wolford, a 67-year-old patient at the facility, tes-
tified from her bed at the Home. She was at the time in
bed with a catheter. At the time of August 14, when the
Brown-Anderson incident allegedly occurred, she was
similarly in the bed with the catheter. Wolford's room is
opposite the Anderson room. Wolford recalled that
Schimer "talked to her two or three different times," and
prepared a statement for her to sign. Wolford testified:
I told him that I heard Ann Brown tell Mrs. Ander-
son that she had to get up and walk over to her
chair, and she said I can't walk. So she said you
have to, I don't have time to take you up today; I
got others to take up, other people to take up. She
was talking very loud.
Wolford later signed the statement prepared by Schimer.
Wolford recalled that Schimer had included in her state-
ment "something that I didn't hear about getting a wash
cloth, about washing her face," and Wolford caused
Schimer to remove this from her statement. Wolford
claimed that when aide Brown took care of her, "she
was rough with me too." Wolford explained:
Q. What did she [Brown] do?
A. She was supposed to put me in the chair early
in the morning. I get up by lift and I can't get up
by myself .... They bring up the wheelchair
now. They bring it up for me to go to physical
therapy, but at that time I didn't get up in that
wheelchair.
Wolford added:
" Dowdell, according to Covert, was the subject of more than one
patient abuse complaint Dowdell was later terminated by Respondent for
"frequent absences on weekends."
She [Brown] upset me for one thing, and she
quarreled with me.
I can't remember what it was but she would yell
at me almost every time she came in my room
about something, because I was terribly sick when I
first came in here . ... '5
I credit the testimony of employees Brown and
Noaker, as recited in section A above, pertaining to their
interrogation by Supervisor Bonnett on or about July 25,
1979. The testimony of Brown and Noaker is mutually
corroborative and uncontradicted. Bonnett did not tes-
tify. Further, I note that Director of Nursing Covert ac-
knowledged that shortly after the above interrogation, at
a meeting of "all department heads" in Administrator
Schimer's office, Bonnett "name[d] names of employees
that she felt were engaged in Union activities." Covert
asserted that Bonnett, at that meeting, only "went down
the roster of her employees in housekeeping, laundry and
maintenance" naming suspected union activists. Howev-
er, on this entire record, I am persuaded that Bonnett did
not confine her disclosures of suspected union supporters
to only those persons working in her department and, in-
stead, also revealed to upper management what she had
learned shortly prior from aides Brown and Noaker.
And, as discussed below, I do not find Director of Nurs-
ing Covert as well as Administrator Schimer to be reli-
able or trustworthy witnesses here.
I also credit the testimony of employees Dorothy
Reeves, Tonya Reeves, Noaker, and Dowdell pertaining
to their "second meeting" with Company Representative
Bango during late July 1979, as recited in section B,
above. Their testimony is in significant part mutually
corroborative and substantiated in part by the testimony
of Bango. They impressed me as credible and reliable
witnesses. Insofar as the testimony of Bango differs with
their testimony, I do not credit the testimony of Bango.
Bango appeared at times to be vague, evasive, and in-
complete in his recitation of what transpired. Further, I
also credit the testimony of Dorothy Reeves, as recited
in section B, above, concerning her meeting during early
August with Covert and Brunt. Covert acknowledged
that she in fact met with the aide employees on August
6; that she asked them "what their problems were," and
that she, at the same time, informed the employees "as to
what might [her] feelings [be] about unions."
Turning to the evidence pertaining to the discharge of
employee Brown on August 14, 1979, as recited in sec-
tion C, above, I credit the testimony of Brown concern-
ing her union activities commencing about July 19. Her
testimony in this respect is corroborated in part by the
testimony of employee Noaker. I also credit Brown's tes-
timony concerning her interrogation by Supervisor Bon-
nett on or about July 25, as found supra. Further, I am
'5 Tonya Reeves, on rebuttal, corrected her earlier testimony that she
had a conversation with Anderson "the next morning after" Brown was
discharged. Reeves explained that this conversation was "two days"
later. Reeves also claimed that she, and aide Taylor, spoke with Wolford
about this same time. Wolford assertedly told Reeves and Taylor that
"she heard voices in Anderson's room [on August 14] but she could not
make out what they were saying . .. "Alice Taylor similarly testified
on rebuttal
388
389
BARBERTON MANOR
persuaded here that Brown and coworker Taylor have
truthfully related how Brown cared for patient Anderson
on the morning of August 14. Brown claimed that, in her
view, nothing "unusual or out of the ordinary" took
place that morning. Taylor likewise recalled that "every-
thing looked normal to me." The testimony of Brown
and Taylor is in significant part mutually corroborative
in this respect.
However, I note that Brown acknowledged that on
the morning of August 14, she had refused a request by
patient Anderson "to walk in front of her and hold on to
her hand;" that patient Anderson "wanted [Brown] to
help her in the wheelchair" from "the toilet" and Brown
"told her all she has to do was turn and sit down . . .
which she did"; that coworker Taylor "needed" Brown's
"help" because another patient "had made a mess"; that
patient Anderson " . .. when she could do things for
herself . . . would want you to do it for her . . ."; and
that Brown felt that "if [patients like Anderson] can help
theirself, they should." Further, patient Anderson's medi-
cal records and related testimony make it clear that this
97-year-old patient was suffering from skin cancer, was
receiving radiation therapy and other medication, was at
times "confused" and "demanding," and "refuses to help
self' and "likes to be waited on." Moreover, as licensed
practical nurse, Morris, acknowledged, patient Anderson
"complained" to her "off and on for two weeks" prior to
August 14, as follows:
Sshe [Anderson] just made the comments that . . .
they didn't put her in bed gently enough. She felt
that people could be more gentle with her. And
when she got up in the morning she felt that she
was rushed, she didn't have enough time to sit on
the toilet now. That was just general.
And, as Director of Nurses Covert further acknowl-
edged, "there are frequent accusations by patients of em-
ployees abusing them."
Assessed in this context, I am persuaded here that
Brown, on the morning of August 14, to some extent
rushed patient Anderson and urged her to do for herself;
that patient Anderson became upset;"6 and that patient
Anderson complained later that morning to personnel
and copatient Lott, as recited above, I am persuaded
here that patient Anderson in fact made the oral com-
plaints attributed to her by Administrator Schimer, Ac-
tivities Director Becay, nurse Morris, and patient Lott. I
am also persuaded that patient Anderson signed the
typed statement prepared by Schimer in his office (Resp.
Exh. 5).
Counsel for Respondent argues in his brief that patient
Anderson's oral complaints, as recited above, and her
signed statement "should be given substantive effect as to
Ms. Brown having engaged in patient abuse." Counsel
argues that these oral and written statements are admissi-
ble as exceptions to the prohibition against receiving
hearsay under Federal Rules of Evidence, Rules 804(5),
803(2), and 803(24). A threshold determination in order
1' Activities Director Becay recalled that patient Anderson would get
"upset" if not attended to "right away" and "cry maybe once or twice a
week during the activities . .
to attach substantive effect to such statements under
Rule 804(5) or Rule 803(24) is that such statements have,
in effect, "equivalent circumstantial guarantees of trust-
worthiness .... " The oral and written complaints of
patient Anderson, on this record, do not have such
"equivalent circumstantial guarantees of trustworthi-
ness." Patient Anderson's complaints were not made
under oath. She was at the time 97 years old; receiving
radiation therapy and medication; at times confused and
demanding; and periodically subjected to crying spells
when she did not get her way. Indeed, patient Anderson
was unable to identify the aide involved in this alleged
incident until nurse Morris "mentioned her name" in
Schimer's office. Further, Administrator Schimer, in se-
curing similar signed statements concerning this alleged
incident from patients Lott and Wolford, included sig-
nificant overstatements of fact which had to be "whited
out." The record in this case shows, as discussed below,
that Schimer was in fact making a case against Brown, a
known Union protagonist, and the hearsay statements of
this 97-year-old patient, under all the circumstances pres-
ent here, are not sufficiently reliable to prove the truth
of the matter contained therein. Cf. .. L.R.B. v. McClure
Associates, Inc., 556 F.2d 725 (4th Cir. 1977); United
States v. Kim, 595 F.2d 755, 764-766 (D.C. Cir. 1979).
Further, I reject counsel for Respondent's related asser-
tion that patient Anderson's complaints here constitute
an "excited utterance" under Rule 803(2). In view of pa-
tient Anderson's condition and the events attending her
making these statements, as recited above, the "state of
excitement resulting from the event" had long since
spent itself. The element of spontaneity was gone. She
was no longer in a "state of excitement" resulting from
the event but, instead, caused by her condition of health.
Cf. Hilyer v. Howat Concrete Co., 578 F.2d 422, 425-426
(D.C. Cir. 1978), and cases cited.
I do, however, credit the testimony of patients Lott
and Wolford as to what they in fact saw and observed
during the pertinent period. Of course, patient Lott ac-
knowledged that she did not witness the alleged incident
of August 14 and Brown was never physically or verbal-
ly "rough" with her. Patient Lott also related that she
heard Brown tell another aide, "I'd just like to beat the
hell out of that Jean Anderson." Patient Lott placed this
statement over 1 month prior to August 14 and there is
some confusion here with the testimony of Schimer and
Becay as to whether Lott heard this from behind a divid-
ing "curtain." Likewise, patient Wolford, while in bed
with a catheter, heard Brown instructing patient Ander-
son in another room, inter alia, "to get up and walk over
to her chair" and state "I don't have time to take you up
today .... " Wolford also related her general com-
plaints of Brown as "rough with me too." I note, as Ad-
ministrator Schimer recalled, Wolford "has at times . . .
small strokes in her brain and at times she cannot remem-
ber things .... " Schimer nevertheless interviewed
Wolford a few times before she signed a statement for
him some 8 days after the alleged August 14 incident. In
sum, I find that patients Lott and Wolford have truthful-
ly related what they in fact observed and heard. One
must assess the significance of their testimony in the con-
DECISIONS OF NATIONAL LABOR RL.ATIONS BOARD
text of their conditions of health and under the circum-
stances in which they were called upon to make these
statements. (See fn. 17, below.)
As for the firing of Brown, I credit Brown's recollec-
tion of what transpired on the afternoon of August 14.
The testimony of Administrator Schimer and Director of
Nurses Covert was at times vague, evasive, and incom-
plete. Insofar as the above testimony of Brown differs
with the testimony of Schimer and Covert, I credit the
testimony of Brown. The summary firing of Brown with-
out first affording her any opportunity to explain what
had happened under all the circumstances present here,
including the failure by Schimer to make any complete
investigation before determining to fire Brown, Brown's
known union activities, and the timing of this firing, all
persuade me that Schimer and Covert were attempting
to get rid of a known union protagonist in an effort to
discourage union activities at Respondent's facility. Fur-
ther, I credit the testimony of both employees Noaker
and Dowdell concerning their different treatment by
management when patient abuse complaints were similar-
ly lodged against them. Covert, in her testimony, sub-
stantiates in part the testimony of Dowdell and Noaker
in this respect."
Discussion
It is settled law that an employer violates Section
8(a)(1) of the Act where its supervisory personnel,
during t,.- course of a unionization campaign, coercively
interrogates employees about their union activities. See,
e.g., N.L.R.B. v. Flemingsburgh Manufacturng Co., 300
F.2d 182 (6th Cir. 1962); N.L.R.B. v. Camco. Inc., 340
F.2d 803 (5th Cir. 1965). Here, as the credited and un-
contradicted evidence shows, Supervisor Bonnett
stopped employees Brown and Noaker on their way to a
meeting at Respondent's facility and questioned them
about their suspected union activities. Brown and Noaker
were key union protagonists. Noaker, as she credibly tes-
tified, told Bonnett that she was "breaking the law" by
her interrogation. Bonnett responded that "she didn't
give . . . a damn about the law." Bonnett faulted the
employees for "pick[ing] that Union"; "she was just very
down on this certain Union"; and she "said [that] this
Union has been other places . . . but they never helped
them ... " Bonnett questioned the employees as to
"why" they didn't get a different union to represent
them or "ask" her, Bonnett, "about the Union." This in-
terrogation of two leading union supporters, under the
circumstances present here, plainly tended to impinge
upon employee Section 7 activities. Indeed, Bonnett later
attended a meeting of all department heads in Adminis-
trator Schimer's office where she named employees sus-
a" Although I find that employees Tonya Reeves and Taylor credibly
testified concerning their interviews of Anderson and Wolford following
the August 14 firing of Brown, I attach no weight to this testimony. El-
derly patients in nursing homes are likely to make such statements or ac-
knowledgements to either management or to its employees. They are, as
this record demonstrates, most vulnerable to such pressures because they
are dependent on both the facility's management and its personnel for
their daily needs in order to survive.
Counsel for the General Counsel and counsel for Respondent have
both filed motions to correct the transcript. Their motions, which are un-
opposed, are granted.
pected of union activities. I am persuaded here that Bon-
nett, at this meeting, named both suspected union sup-
porters working under her immediate supervision as well
as employees Brown and Noaker. And, as found below,
Brown was summarily discharged shortly thereafter be-
cause of her union activities prior to the scheduled repre-
sentation election. In sum, I find and conclude here that
Respondent, by this coercive conduct, violated Section
8(a)(1) of the Act as alleged.
Further, an employer violates Section 8(a)(1) of the
Act where, in an effort to discourage employee union ac-
tivities, it solicits and remedies employee grievances.
For, as the Board stated in Litton Dental Products Divi-
sion of Litton Industrial Products, Inc., 221 NLRB 700,
701 (Member Jenkins dissenting) (1975), enforcement
denied 543 F.2d 1085 (4th Cir. 1976):
In determining whether solicitation of grievances
and granting of benefits is a violation of Section
8(a)(1) of the Act, the Board has traditionally
looked to the timing of knowledge of the union
campaign and the granting of benefits. When the
timing of the granting of benefits coincides with the
origination of employee union activity, then, absent
an affirmative showing of some legitimate business
reason for the timing, it is not unreasonable to draw
the inference of improper motivation and improper
interference with employee freedom of choice. 8
In the instant case, as detailed supra, Respondent's
Representative Bango conducted a series of meetings
with the Respondent's employees. The first meeting was
held before any union organizational activity had com-
menced. The second meeting was held shortly following
the Union's filing of its representation petition with the
Board. Bango, at this second meeting, appeared upset
and threw his coat down. As employee Noaker credibly
recalled:
He [Bango] said, to the effect, what I hear about
this Union .... I didn't know there were any
problems around here ....
Noaker responded:
At the first meeting, he [Bango] wasn't even inter-
ested in any of our problems. So, if he wasn't inter-
ested in them then, why is he here now. He [Bango]
said, well I didn't know things were that bad, why
don't you give us a chance to prove what we can
do.
At this second meeting, third-shift employees complained
to Bango how they had been compelled to sign state-
ments or write-ups concerning an alleged break-in at the
Home some weeks earlier. Bango had these employees
stay after the general meeting, at which time he secured
18 The court, in denying enforcement in the above case, noted in part
(543 F.2d at 1087):
Quite clearly, correction of the employer's derelictions was not initi-
ated in a critical period of union organization
390
391
BARBERTON MANOR
the signed statements and writeups for the employees
and permitted them to be destroyed.'
On this record, I find and conclude that representative
Bango unlawfully solicited and remedied employee
grievances in an attempt to deter the Union's organiza-
tional campaign. For, as the court noted in a somewhat
analogous context in .L.R.B. v. WKRG-TV, 470 F.2d
1302, 1307-08 (5th Cir. 1973), "Lightning struck only
after the Union's rod was hoisted." It is true, as counsel
for Respondent notes "Respondent had just taken over
the operation of the facility . . .; it is only natural for it
to want to make sure that it was running properly
.... " However, here, management, at its second meet-
ing with the employees, immediately following the filing
of the representation petition, made clear to the employ-
ees its opposition to the Union, solicited employee com-
plaints and summarily remedied them in a manner plainly
calculated to chill Section 7 activities. In like vein, Di-
rector of Nurses Covert later questioned employees
"about what their problems were" and, at the same time,
made clear to the employees her opposition to the
Union.20 In sum, I find and conclude here that Respond-
ent unlawfully solicited and remedied employee griev-
ances, in violation of Section 8(a)(1) of the Act as al-
leged.
It is further alleged that Respondent violated Section
8(a)(3) and (1) of the Act by discharging employee
Brown on August 14, 1979, because of her union activi-
ties. Counsel for Respondent argues that "Brown was
discharged solely because Respondent's administrator be-
lieved that she had engaged in patient abuse .... "
However, it is settled that the Board is "not compelled
to accept" the employer's assigned reason for discharg-
ing an employee "when there is reasonable cause for be-
lieving that the ground put forward by the employer was
not the true one, and that the real reason was the em-
ployer's dissatisfaction with the employee's union activi-
ty." The Great Atlantic & Pacific Tea Co. v. N.L.R.B.,
354 F.2d 707, 709 (5th Cir. 1966). Also see Ni:L.R.B. v.
West Side Carpent Cleaning Co., 329 F.2d 758, 761 (6th
Cir. 1964). On the credited evidence of record in this
case, I find and conclude that the patient abuse com-
plaint related to management on the morning of August
14 was not the "true" or "real reason" for Brown's sum-
mary firing that day. I find and conclude instead that
management seized upon this complaint as a pretext to
get rid of a known and unwanted union protagonist
shortly before the scheduled representation election.
Thus, as recited supra, Brown worked for the Re-
spondent as a nurses aide on the night shift for about 16
months prior to her firing. She had never received any
complaints or reprimands about her work either orally or
in writing. She had received, in her view, "average" job
ratings from her supervisor. Indeed, as Director of
Nurses Covert acknowledged, "I had nothing but very
good reports about [Brown]. She was a very good above
average nursing assistant." Brown, together with her co-
workers, became active in seeking out union representa-
19 Bango acknowledged that "I was familiar with the break-in at the
facility . ". Bango added: "but I had no idea how it was handled"
20 One of the employee complaints related to Covert, pertaining to
hanging curtains in the facility, was later remedied by management
tion on or about July 19, 1979. She, together with her
coworkers, enlisted the organizational assistance of the
Charging Party Union. She personally secured signed
union membership cards from some 30 fellow employees
in a unit of about 100 workers. A representation petition
was filed with the Board. Brown together with cowork-
er Noaker, as found, was questioned by Supervisor Bon-
nett about her union activities. Brown also wore a union
button at work.
On the morning of August 14, patient Anderson to-
gether with patient Lott related a complaint about aide
Brown to Administrator Schimer. Anderson, a 97-year-
old patient with skin cancer receiving radiation therapy
and other medication, informed Schimer that she had
been verbally and physically abused earlier that morning
by an aide, later identified as Brown. Anderson's medical
records show that she has at times been regarded as
"confused" and "demanding." Further, as Director of
Nurses Covert acknowledged, "there are frequent accu-
sations by patients of employees abusing them." Patient
Lott, as she testified, did not witness the alleged incident
on August 14 involving Anderson. Lott, however, did
relate to Schimer that some weeks prior she had over-
heard Brown complaining to a coworker, apparently at
the other side of a dividing curtain, that "I'd just like to
beat the hell out of that Jean Anderson." Schimer pre-
pared statements to be signed by both Anderson and
Lott. Lott's statement contained an error of fact which
Schimer caused to be "whited-out."
Schimer. following this interview with Anderson and
Lott, determined to discharge Brown without affording
her any opportunity to explain what had happened. No
effort was made by Schimer to interview the supervisory
personnel or nonsupervisory personnel on duty at the
time. No effort was made by Schimer to have the resi-
dent physician examine Anderson in order to determine
her condition as a result of this alleged physical abuse.
And, although Anderson assertedly complained that she
was dragged off the toilet before having finished, no
effort was made by Schimer to verify this. Moreover, al-
though Schimer determined to fire Brown at this time,
he later interviewed another patient, Wolford, and
caused her to sign a typed statement some 8 days later
concerning this incident. Wolford's statement, like Lott's
statement, contained errors of fact which had to be
"whited-out." Wolford, at the time of the August 14 inci-
dent, was in bed with a catheter in a nearby room. Wol-
ford, as Schimer explained, experiences "small strokes"
and at times she "cannot remember things."
Director of Nurses Covert, who was not present at the
meeting in Schimer's office attended by Lott and Ander-
son, was instructed by Schimer to fire Brown on the
morning of August 14. Covert claimed that she had at-
tempted to "reach all the nurses who worked on the
third shift that night" and the "two I was finally able to
get ahold of . . . they were not aware of anything at all
.... " Nevertheless, Covert terminated Brown that
afternoon without affording her any opportunity to ex-
plain first what if anything had happened that morning.
Moreover, Covert. in handling patient abuse complaints
against aides Dowdell and Noaker, treated them differ-
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ently than she had treated aide Brown. Thus, Dowdell
had been accused of patient abuse on a number of occa-
sions. On one such occasion, following Brown's firing,
Dowdell was given an opportunity to explain what had
happened. Noaker was similarly given an opportunity to
explain what had happened. In both of these patient
abuse complaint cases, the complaining patients, like An-
derson, were regarded by Covert as "confused."
Under all these circumstances, including the timing of
Brown's discharge, her open and known union activities,
the disparate treatment of the paitent abuse complaint
lodged against her and the failure by Management to
make any real investigation of this complaint, all per-
suade me that the real reason for aide Brown's summary
firing was under Union activities, as alleged, in violation
of Section 8(a)(3) and (1) of the Act.
CONCI.USIONS OF LAW
1. Respondent is an employer engaged in commerce as
alleged.
2. Charging Party Union is a labor organization as al-
leged.
3. Respondent violated Section 8(a)(1) and (3) of the
Act by coercively interrogating employees about their
union activities; by soliciting employee grievances and
remedying same; and by discriminatorily discharging em-
ployee Brown.
4. The unfair labor practices found above effect com-
merce as alleged.
REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. It has been
found that Respondent, in violation of Section 8(a)(3)
and (1) of the Act, unlawfully terminated employee
Brown on August 14, 1979. It will therefore be recom-
mended that Respondent offer to employee Brown im-
mediate and full reinstatement to her former or substan-
tially equivalent position, without prejudice to her se-
niority or other rights and privileges, and make her
whole for any loss of earnings suffered by reason of this
unlawful termination, by payment to her of a sum of
money equal to that which she normally would have
earned from the date of Respondent's discrimination to
the date of Respondent's offer of reinstatement, less net
earnings during such period, with backpay and interest
thereon to be computed in the manner prescribed in F.
W Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977). 2 1 Further, it
will be recommended that Respondent preserve and
make available to the Board, upon request, all payroll re-
cords and reports, and all other records necessary and
useful to determine the amount of backpay due and the
rights of reinstatement under the terms of these recom-
mendations. Respondent will also be directed to post the
attached notice.
21 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record of the case, I hereby
issue the following recommended:
ORDER 2 2
The Respondent, Americana Health Care Corporation
of Ohio d/b/a Barberton Manor, Akron, Ohio, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees about their
union activities.
(b) Soliciting and remedying employee grievances in
order to discourage employee union activities.
(c) Discouraging membership in United Food and
Commercial Workers Union Local 698, AFL-CIO, or in
any other labor organization, by discriminatorily dis-
charging any of its employees or in any other manner
discriminating against them with respect to their hire or
tenure of employment or any term or condition of em-
ployment.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer employee Elizabeth A. Brown immediate and
full reinstatement to her former job or to a substantially
equivalent position without prejudice to her seniority or
other rights and privileges, and make her whole for any
loss of earnings in the manner set forth in this Decision.
(b) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in this
Decision.
(c) Post at its offices and facility in Barberton, Ohio,
copies of the attached notice marked "Appendix."23
Copies of said notice, on forms provided by the Regional
Director for Region 8, after being duly signed by Re-
spondent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive 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 notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
22 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
2' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Puru-
sant to a Judgment of the United States Court of Appeals Enforcing and
Order of the National Labor Relations Board."
392
BARBERTON MANOR
APPENDIX
NOTICE To EMPI.OY ES
POSTED BY ORDER OF THE
NATIONAL LABOR REIATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportunity
to present their evidence, the National Labor Relations
Board has found that Americana Health Care Corpora-
tion of Ohio d/b/a Barberton Manor, has violated the
National Labor Relations Act and has ordered us to post
this notice. We therefore notify you that:
WE WILL NOT coercively interrogate our em-
ployees about thier union activities.
WE WILL NOT solicit and remedy our employees'
grievances in order to discourage their union activi-
ties.
WE Wil.l. NOT discourage member in United
Food and Commerical Workers Union, Local 698,
AFL-CIO, or in any other labor oganization. by
discriminatorily discharging any of our employees
or in any other manner discriminating against them
with respect to their hire or tenure of employment
or any term or condition of employment.
WE: Wll. NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the National Labor Relatons Act.
WE Wll.I offer Elizabeth A. Brown immediate
and full reinstatment to her former job or to a sub-
stantially equivalent position without prejudice to
her seniority or ohter rights and privileges and
make her whole for any loss of earnings, as pro-
vided in the Board's Decision and Order.
AMERICANA HEAL.TH CARE CORPORATION
OF OHIO D/B/A BARBERTON MANOR
393