Wellington Hall Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Aug 17, 1981

257 N.L.R.B. 791 (N.L.R.B. 1981)

WELLINGTON HALL NURSING HOME, INC.
Wellington Hall Nursing Home, Inc. and 1115 Nurs-
ing Home and Hospital Employees Union, Divi-
sion of 1115 Joint Board and David Jarvis.
Cases 22-CA-10108, 22-CA-10238, 22-CA-
10384, and 22-CA-10192
Ausgust 17, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND ZIMMERMAN
On April 6, 1981, Administrative Law Judge
Robert T. Snyder issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the Charg-
ing Party filed cross-exceptions.
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, cross-ex-
ceptions, and brief' and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge, as modified herein, and to
adopt his recommended Order.2
The Administrative Law Judge found, inter alia,
that there is sufficient circumstantial evidence to
conclude that the Respondent knew of the union
activities of employees Morris, Goldsmith, and
Jarvis, and that the Respondent violated Section
'We find no merit in the Respondent's contention that it was prejudi-
cial error for the Associate Chief Administrative Law Judge to deny its
motion for an extension of time to file a post-hearing brief with the Ad-
ministrative Law Judge. The Respondent's motion for an extension of
time was not filed until January 15. 1981, after the expiration of the time
set by the Administrative Law Judge for the filing of briefs. The motion
states that the Respondent's substituted attorneys were advised on Janu-
ary 14, 1981, that the previous attorney had not filed a brief. but does not
state why the substituted attorneys, who were retained on December 23,
1980. were unable to ascertain this fact for 3 weeks. Moreover, the Re-
spondent's brief in support of its exceptions adequately presents its posi-
tion with regard to the issues before the Board. The Board has reviewed
the record, the exceptions, and the brief, and finds that the Respondent
has not been prejudiced by its failure to file a brief with the Administra-
tive Law Judge.
2 We find no merit in the Respondent's contention that it should not be
ordered to offer reinstatement to certain employees to whom it states it
offered reinstatement after the close of the hearing herein. As the facts
surrounding these alleged offers of reinstatement have not been litigated,
their effect on the remedy ordered here is properly part of the compli-
ance stage of this proceeding. Similarly, we find no merit in the Charging
Party Union's contention that the remedy should be expanded to include
an award of litigation and organization expenses to the Charging Party
Union and litigation expenses to the General Counsel. The General
Counsel has not joined in this request. We find such remedies appropriate
only when a respondent raises defenses so insubstantial as to be patently
frivolous, or in other exceptional circumstances not present here. M .4.
Harrison Manufacturing Company. Inc.. 253 NLRB 675 (1980); Eastern
Maine Medical Center. 253 NLRB 224 (1980). Cf. J P. Stevens and Com-
pany. 247 NLRB 420 (1980), and 239 NLRB 738. 772-773 (1978)
Member Jenkins would provide interest on any backpay due in accord-
ance with his partial dissent in Olympic Medical Corporation. 250 NLRB
146 (1980).
257 NLRB No. 106
8(a)(3) and (1) of the Act by discharging them be-
cause of those activities. Alternatively, he conclud-
ed that, even absent such knowledge, the Respond-
ent discharged these three employees in order to
provide an aura of legitimacy to its contemporane-
ous discharge of a number of known union activ-
ists. We agree that the discharges of Morris, Jarvis,
and Goldsmith were part of the unlawful action
taken against the known union activists, whether or
not the Respondent was aware of the activities of
Morris, Jarvis, and Goldsmith. As the Administra-
tive Law Judge properly found, the discharge of
each of these employees shared the pattern of pre-
textual explanations the Respondent gave for all
the discharges effectuated within a brief period im-
mediately following the renewed union activity in
the plant. Having found that the asserted explana-
tions were false, the Administrative Law Judge
was justified in inferring that these explanations
were manufactured in order to conceal the Re-
spondent's antiunion motivation. Shattuck Denn
Mining Corporation (Iron King Branch) v. N.L.R.B.,
362 F.2d 466, 470 (9th Cir. 1966); St. Anne's Home,
Division of DePaul Community Health Center, 221
NLRB 839, 847-848 (1975). The finding of an un-
lawful motivation does not depend on the Re-
spondent's knowledge that each of the discharged
employees was engaging in union activity where,
as here, the Respondent's entire pattern of conduct
bespeaks an attempt to crush the Union, an attempt
in which Morris, Jarvis, and Goldsmith were
caught up and swallowed. Hedison Manufacturing
Company, 249 NLRB 791, 794, fn. 13 (1980), enfd.
643 F.2d 32 (Ist Cir. 1981). See also Rea Trucking
Company, Inc., 176 NLRB 520, 525, fn. 5 (1969),
enfd. 439 F.2d 1065 (9th Cir. 1971).
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, Wellington
Hall Nursing Home, Inc., Hackensack, New
Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, except that the attached notice is
substituted for that of the Administrative Law
Judge.
791
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
WE WILL NOT issue written warnings or
evaluations or discharge any of you for sup-
porting 1115 Nursing Home and Hospital Em-
ployees Union, Division of 1115 Joint Board,
or any other labor organization.
WE WILL NOT promulgate or maintain any
rule, regulation, or other prohibition against
employees who solicit or distribute handbills
or similar literature on behalf of any labor or-
ganization on our nursing home premises in
other than immediate patient care areas, or
similar literature on behalf of any labor organi-
zation on our nursing home premises in other
than immediate patient care areas, during em-
ployees' nonworking time.
WE WILL NOT institute and maintain a pro-
cedure to solicit bargaining unit grievances
and to adjust bargaining unit grievances, with-
out giving 1115 Nursing Home and Hospital
Employees Union, Division of 1115 Joint
Board, an opportunity to be present at the ad-
justment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL rescind any rules restricting the
areas and times in which employees may solic-
it or distribute handbills or similar literature on
behalf of labor organizations as they apply to
times other than working time and to areas
other than immediate patient care areas.
WE WILL offer Usil Figaro, Sandra McCad-
ney, Paula Morris, Lois Wells, David Jarvis,
Elizabeth Foley, Helena Goldsmith, Virginia
Hall, and Annie Thomas immediate and full
reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed, and reimburse them for the pay or
other benefits they lost as a result of our dis-
criminatory action, plus interest.
WE WILL rescind and expunge from all our
files all copies of the written warnings issued
to Virginia Hall on June 26 and August 13,
1980, Helena Goldsmith on June 26, 1980, and
Annie Thomas on July 13, September 19, and
October 25, 1980, and the written evaluations
issued to David Jarvis on June 20, 1980, Paula
Morris on June 21, 1980, and Elizabeth Foley
on June 27, 1980.
Our employees are free to become or remain or
refrain from becoming or remaining, members of
1115 Nursing Home and Hospital Employees
Union, Division of 1115 Joint Board.
WELLINGTON HALL NURSING HOME,
INC.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge: These
consolidated cases were heard before me in Newark,
New Jersey, on December 10 and 11, 1980,1 upon a
second amended consolidated complaint, herein called
complaint, issued against Wellington Hall Nursing Home,
Inc.,2 herein called Respondent or Home, on November
28. In a series of charges and amended charges filed by
1115 Nursing Home and Hospital Employees Union, Di-
vision of 1115 Joint Board, herein called Union, on June
24 (Case 22-CA-10108), July 3 (first amended charge in
Case 22-CA-10108), August 29 (Case 22-CA-10238),
October 30 (Case 22-CA-10384), and November 19 (first
amended charge in Case 22-CA-10384), and a charge
filed by David Jarvis on July 30 (Case 22-CA-10192),
upon the basis of which the second amended consoli-
dated complaint issued, Respondent is alleged to have
issued written warnings to three named employees,
issued written evaluations to three other named employ-
ees, and to have discharged these six and three other
named employees, in violation of Section 8(a)(l) and (3)
of the National Labor Relations Act, as amended, herein
called the Act; to have unilaterally changed work hours
of certain employees and to have issued a warning to an
employee who protested the change and to have unilat-
erally administered a grievance procedure 3 without
notice to or prior negotiations with the Union as certi-
fied and exclusive representative of its full-time and regu-
lar part-time service and maintenance employees, includ-
ing licensed practical nurses and all clerical employees,
other than business office clerical employees, in viola-
tions of Section 8(a)(l) and (5) of the Act; and to have
issued and maintained an overly broad and impermissible
no-solicitation, no-distribution rule in violation of Section
i All dates hereinafter shall refer to 19R80 unless otherwise noted.
'Upon motion filed after closing of hearing seeking substitution of Re-
spondent's counsel by my order dated January 28, 1981, the law firm of
Murray, Granello & Kenney was substituted as counsel fir Respondent
in place ot'f Hugh P. Husband, Esq.. who had tried the case.
'This allegation was added by way of oral amendment granted prior
to the close of hearing on December II.
792
WELLINGTON HALL NURSING HOME, INC.
8(a)(1) of the Act. All of the conclusionary allegations of
violation of the Act were denied by oral answer made
by Respondent's then counsel at the opening of the hear-
ing.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the brief filed by the General Counsel,4 I make
the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New Jersey corporation, is engaged in
providing and performing health care services and relat-
ed services at its principal office and place of business lo-
cated in Hackensack, New Jersey, where it maintains a
nursing home as its sole health care facility. It annually
receives gross revenue valued in excess of $100,000 and
goods valued in excess of $50,000, which goods are
transported to its place of business in interstate com-
merce directly from States of the United States other
than the State of New Jersey. It is admitted, and I find,
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. STATUS OF THE LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and the History of Respondent's
Proceedings Before the Board
On October 1, 1976, in Case 22-RC-6410, the Union
was certified as exclusive collective-bargaining repre-
sentative of all employees of Respondent in the follow-
ing unit:
All full-time and regular part-time service and main-
tenance employees, including Licensed Practical
Nurses and all clerical employees other than busi-
ness office clerical employees, employed by the
Employer at its Hackensack, New Jersey location,
but excluding all Registered Nurses, professional
employees, guards and supervisors as defined in the
Act.
The certification followed a rerun election ordered by
the Board after it had set aside the original election on
the grounds of Respondent's improper interference. Re-
spondent's objections filed to alleged improper union
conduct during the course of the second election cam-
paign were ultimately dismissed by the Board which
issued the certification approximately 1-1/2 years after
the Union filed its petition.
Subsequently, upon a charge filed by the Union in
Case 22-CA-7269 alleging alleged discharge of union ac-
tivists as well as a refusal to bargain, a settlement agree-
ment was entered by all parties on March 15, 1977, pro-
' By order dated January 28, 1981. Associate Chief Administrative
Law Judge Edwin H. Bennett denied Respondent's motion for all exten-
sion of time to file a post-hearing brief
viding for backpay for five employees, who waived rein-
statement, and an undertaking by the Home to recognize
and upon request to bargain collectively with the Union
in the certified unit under a -year extension of the initial
certification year. The agreement contained a non-admis-
sion of violation of the Act by Respondent. Thereafter,
starting on April 5, 1977, when the Home refused to
supply the Union with addresses of the then unit employ-
ees,5 the Union filed a new charge in Case 22-CA-7619.
On February 7, 1979, over Respondent's exceptions and
supporting brief, the Board issued a Decision and Order
(240 NLRB 639), affirming the rulings, findings, and con-
clusions of Administrative Law Judge Thomas A. Ricci
and adopting his recommended Order. The affirmative
portion of that Order required Respondent to furnish to
the Union a written list of the names and addresses of all
unit employees and to bargain in good faith with the
Union. That order was enforced in full by a judgment of
the Court of Appeals for the Third Circuit dated Decem-
ber 5, 1979, which recounts that it had granted the
Board's motion for judgment by default on October 10,
1979.
Another proceeding was instituted before the Board
when Respondent unilaterally increased paid sick days,
holidays, and starting wage rates and improved vacation
and jury duty leave policies, effective July 2, 1978, and
unilaterally assigned certain work tasks to, and dis-
charged, on December 21, 1978, an active union employ-
ee for refusing to perform them. Upon a complaint issued
on the Union's charge in Cases 22-CA-8779 and 22-CA-
8948 alleging these acts as violations of Section 8(a)(1),
(3), and (5), Administrative Law Judge Harold Bernard,
Jr., issued a Decision on September 28, 1979, recom-
mending that the Board find Respondent violated its bar-
gaining obligation under Section 8(a)(5) of the Act by
the unilaterally formulated and implemented employment
benefits but that the Board also dismiss the allegations of
violation of Section 8(a)(1), (3), and (5) in the case of the
discharged employee. By pro forma order dated Novem-
ber 15, 1979, in the absence of any exceptions having
been filed, the Board adopted those findings and conclu-
sions and ordered the Respondent to comply with the
terms of the recommended order, including a require-
ment that it cease and desist from unilaterally granting or
implementing improvements or changes in the benefits
described or other employment benefits without first no-
tifying and according the Union an opportunity to bar-
gain about such matters or otherwise refusing to bargain
in good faith with the Union as the exclusive bargaining
agent of its employees. This Board Order was also en-
forced by a judgment of the U.S. Court of Appeals for
the Third Circuit dated October 2, 1980.
The instant group of charges include in Case 22-CA-
10108 an allegation that Respondent, since on or about
June 9, 1980, has refused to bargain with the Union by
refusing to meet and negotiate a collective-bargaining
agreement and engaging in conduct designed to under-
mine the status of the Union as bargaining agent. That
allegation was not incorporated in the consolidated com-
The record establishes a high rate of turnover among unit employees,
a large proportion of it consisting of voluntary separations
793
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint but rather forms the basis for a civil contempt pro-
ceeding against Respondent which the Board instituted
in the U.S. Court of Appeals for the Third Circuit by a
petition dated December 5, 1980, including a proposed
order to show cause why Respondent and its attorney
and bargaining representative, Hugh Husband, should
not be adjudged in civil contempt for violating and fail-
ing and refusing to comply with the court's judgment en-
tered on December 5, 1979, earlier described.
With respect to the instant allegations in the com-
plaint, a separate proceeding was instituted by the Re-
gional Director for Region 22 on behalf of the Board in
the U.S. District Court for the District of New Jersey,
Civil Action No. 80-3207, for a temporary injunction
pursuant to Section 10(j) of the Act, pending the final
disposition of the matters involved pending before the
Board in this case. Hearing in that proceeding was held
on November 10 and 13, 1980, before District Judge
Vincent Buinno and the transcripts thereof as well as
certain documentary evidence have been received in evi-
dence as joint exhibits in the instant case by stipulation of
the parties. That proceeding resulted in an order by
Judge Buino filed November 18, 1980, granting "In Part
and Denying In Part Temporary Injunction." Because of
the priority nature of this case, I received the full coop-
eration of all counsel in an effort to expedite the hearing.
To that end, an early briefing schedule was arranged and
the preparation of this Decision has been given priority
consistent with the requirements of the Act.
B. The Renewed Union Activity
As noted, it was not until the end of 1979 that the
Union's request for names and addresses of unit employ-
ees, successfully resisted by Respondent since mid-April
1977, finally resulted in a circuit court judgment enforc-
ing the Board's order requiring the Home to furnish the
Union such a list. The list was ultimately furnished on
April 4, 3 years after initial request. Since 1975, when
the Union's drive among the Home's employees com-
menced, there had been a 100 percent turnover among
them.
Alex DeLaurentis, union vice president, was hospital-
ized for a considerable period of time between April 4
and June 2. Upon his return to work, by letter dated
June 9, DeLaurentis wrote all employees at their home
addresses inviting them to a meeting to be held on
Monday, June 16, from I to 6 p.m. at a location not far
from the Home for the purpose of welcoming them into
the Union's rank and discussing the contract demands to
be presented to management. The letter also referred to
the recent court decree and thanked the employees for
their support and patience over the years. On the same
date, June 9, DeLaurentis also wrote Respondent re-
questing a meeting on June 18, 19, or 20 at a convenient
location near the Home facility for the purpose of nego-
tiating a collective-bargaining agreement. On June 12,
Respondent, in confirmation of a telephone conversation,
informed DeLaurentis in writing that June 18, 19, or 20
was unacceptable and suggested June 23, 24, or 25. De-
Laurentis, in a telephone call to Respondent's bookkeep-
er, Kathleen Morrow, on June 19 or 20, advised that
June 25 at the Howard Johnson in Saddle Brook at 3
p.m. was acceptable, and also requested that the Home
make available the negotiating committee (previously se-
lected at the June 16 employee meeting) consisting of
Lois Wells, Elizabeth Foley, Virginia Hall, Usil Figaro,
Annie Thomas, and Sandra McCadney without loss of
pay. Respondent confirmed the meeting date in a letter
dated June 20, and DeLaurentis sent a telegram to Re-
spondent confirming the scheduled meeting as well as his
request for the release of the employees named, listing
their scheduled work shifts. The meeting never took
place6 and the events relating thereto and subsequent
events are the subject of the proceeding instituted by the
Board to hold Respondent and Husband in civil con-
tempt of the circuit court judgment, inter alia requiring
Respondent, upon request, to bargain in good faith with
the Union.
The union-employee meeting took place on June 16 as
scheduled. Approximately 15 employees attended. The
employees previously named were selected as members
of the Union's negotiating committee and DeLaurentis
provided the employees with copies of the notice which
the Board required Respondent to post as part of the af-
firmative remedy in Wellington Hall Nursing Home, Inc.,
240 NLRB 639 (1979), as enforced by the Third Circuit
Court of Appeals, to distribute to fellow employees and
to check on its posting at the Home.
In the period from June 20 to October 25, Respondent
warned, evaluated, and discharged the employees whose
allegations comprise the heart of the complaint.
C. The Acts of Alleged Discrimination and
Interference With Protected Rights
1. Elizabeth Foley
Elizabeth Foley was employed by the Home as a
nurses aide in August 1978. In October 1979 she was ap-
pointed a senior aide. This latter job entailed greater re-
sponsibility and is a more responsible position. This ap-
pointment was made in spite of Foley having received a
warning slip dated July 31, 1979, for absenteeism on
eight separate occasions from January to July 1979.
After becoming a senior aide, Foley received only
compliments on her work from various nurses and her
supervisory nurse, Rose Raleigh. Her periodic evalua-
tions were generally good.
Foley told a number of employees that she intended to
attend the June 16 union meeting. She worked the 7 a.m.
to 3 p.m. shift. Before leaving for the meeting, while still
at work on June 16, at or about 2 p.m., Supervising
Nurse Raleigh called her to the side and said Mrs. Bar-
etta (Bette Baretta, director of nursing) had instructed
her to give Foley a verbal warning regarding Foley's ab-
sence from work on May 27.8 Raleigh said that since she
In fact, since the Union's certification by the Board on October 1,
1976, no negotiation meetings had been held to the date of close of the
instant hearing on December 11, 1980.
7 None of the employees ho checked found the notice posted. Re-
spondent asserts that by mid-June it had completed the posting period,
having posted for longer than the required 60 days, from January 18 to
June 5.
C Baretta described this failure to report as an "absence on a holiday."
Actually, it was the Tuesday following May 26. Monday, Memorial Day.
Coninued
794
WELLINGTON HALL NURSING HOME, INC.
was a senior aide she should set a better example for the
other aides. On May 27, Foley's car would not start and
she did not get in to work. Nothing was said to her by
supervision thereafter until June 16.
9
At the union meeting, Foley was selected as one of six
members of a negotiating committee. Foley also took
copies of the notices which DeLaurentis distributed as
previously described. On June 17, Foley passed copies of
the notice around to other employees during her work
shift. She also passed copies out to other employees in
the dining room and talked to other employees about the
union meeting.
On Friday, June 27, at work, Foley was told to report
to Raleigh. Foley saw her at 3 p.m. Raleigh said that she
had prepared a "special evaluation" for Foley because
she was a senior aide. Although the Home employed
three other senior aides who were appointed when Foley
was, Foley was unaware of any of them having received
such an evaluation, and Respondent failed to present any
such evaluations during presentation of its defense. None
of them attended the June 16 union meeting. Foley read
the evaluation, noticed it was negative in several re-
spects, ' and asked Raleigh, "How did you get this dirty
job?" Raleigh replied that she did not know. Foley asked
if she was being fired. When Raleigh replied, "Yes,"
Foley said she thought she and other employees were
being penalized for supporting the Union and that was
why they were being fired. Raleigh just smiled and said
that she did not know. Foley asked for a copy of her
evaluation, received it, and left. Foley has not worked
for the Home since that date. The evaluation is alleged
as discriminatory in the complaint.
According to Respondent's employee policy manual
then in effect, "excessive absence or lateness or failure to
notify your supervisor will affect your performance
rating." Also, the Home's administrator, Ronald Squil-
lace, and Baretta both testified that, if an employee re-
ceives three warnings within I year, the employee is ter-
minated. Baretta acknowledged that Foley had only re-
ceived two written warnings, that the verbal counseling
did not constitute such a warning although Raleigh had
written a note regarding the counselings but had not
shown it to Foley. As to the note, although Raleigh
listed six different absences, only the last one, that relat-
ing to Foley's car problem on May 27, was discussed
with her at the time of the counseling on June 16. With
respect to the second written warning, that of May 28,
Thus, application of Respondent's policy of an automatic warning for a
holiday absence in this case seems questionable at best. The written
policy in this regard notes that three such notices will result in termina-
tion. Foley and other employee witnesses who testified about the written
policy creditably denied ever receiving a copy of the policy or being
made aware of it.
' As will be seen, infra, Baretta was then aware that the Union had
scheduled a meeting with employees to prepare for negotiations to be
held between I and 6 p.m. at a hall near the Home.
'0 In addition to the regular employment evaluation form which con-
tained evaluation scores running from good to below average for various
criteria, the evaluation contained a separate sheet providing detailed ex-
planations of certain alleged deficiencies. Foley recalled that among three
earlier evaluations, although the first had some negative aspects she did
not recall, the next two were good in all respects. From Respondent's
failure to provide any but Foley's special evaluation or dispute this testi-
mony. I infer that the earlier evaluations were good ones.
Baretta testified in Federal court that she had handed the
warning to Foley, yet the warning slip, contrary to
normal practice, neither contains Foley's signature nor a
statement that she refused to sign. Then, during the in-
stant hearing, Baretta contradicted this testimony. She
now swore that although she had prepared the slip (and
signed it) she did not remember giving the warning to
Foley. Foley swore that she never received it. The al-
leged warning dated May 28 in fact duplicated the very
subject matter-Foley's absence on May 27-which con-
stituted the basis for the verbal counseling she received
on June 16. If she had already received a warning, what
purpose would be served by reviewing the same event
with her 3 weeks later? I conclude that the May 28
warning was not prepared in the regular course or given
to Foley when Respondent initially contended. Thus,
Foley was fired after no written warning received during
the 6 months' service in a responsible position to which
she had been assigned after more than a year of satisfac-
tory, even superior, performance as an aide.
Respondent contends that her warning coupled with
her poor evaluation led to Foley's discharge. At no time
did Respondent consider a demotion or other recourse
against Foley for her limited absenteeism but rather fired
her within 11 days of her attendance at the union meet-
ing and her selection for its negotiation committee and
within a 10-day period from the time her distribution of
the employer notice and discussions of the meeting were
held on Respondent's premises.
2. Lois Wells
Lois Wells was employed as a nurses aide from May
1977 until June 22, 1980, when she was fired. Wells, a
college student, worked weekends and at breaks during
the school year and full time during the summer. She
had worked full time since May 1980. Wells received the
union meeting notice and spoke to other employees
about her intention of going and encouraged others to
attend. At the June 16 meeting she was elected one of
the members of the negotiating committee whose names
were supplied to Respondent in DeLaurentis' telephone
call of June 19 or 20 and confirmed in writing by the
June 20 mailgram.
Wells was not scheduled and did not work on June 17
and 18. Wells worked June 19 and spoke to other em-
ployees that day about the employer notice which she
had not seen posted. Wells was absent from work on
June 20 with an upset stomach. On June 22, at or about
2:30 p.m. (a half-hour before her quitting time) she was
called into Baretta's office. Baretta informed her she had
spoken to Wells once before about absenteeism and she
was going to have to terminate her for that reason.
According to Wells, only once before had her absen-
teeism come up. In November 1979, when working
weekends she had asked Baretta if she could work full
time in December and January during her college vaca-
tion. When she had not heard from Baretta, Wells called
and learned that her request had been declined because
795
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of too much absenteeism." Wells was surprised by this
response at the time because her prior evaluations had
not indicated any problem with attendance. Her recollec-
tion was that she had not missed more than 2 days in any
month and was usually not absent at all or only one day
in any given month.
Under Respondent's sick leave policy, employees are
entitled to 10 paid sick days per year, provided they
notify their supervisor of their absence as far in advance
as possible before the start of their shift. Respondent pre-
sented no evidence that Wells' absence for illness on
June 20 exceeded this amount or otherwise violated the
policy.
The sole written warning Wells received, on June 21,
is dated June 20, the date of her illness, and notes as the
offense: "Absenteeism part-time employee-totally unde-
pendable. Can no longer use as fill in weekend." It lists
six absences in calendar 1979, four in 1980, and only
seven within the year prior to her June 21 discharge, in-
cluding one in April and one on June 6.
In spite of Respondent's apparent failure to follow its
own policy requiring three written warnings before dis-
charge or providing 10 paid sick days per year, Baretta
asserted that Wells was a part-time employee not entitled
to all of the benefits of full-time employees. The policy
manual in effect provides as follows concerning them:
Permanent part-time employees play an important
role as the full-time staff in providing continuity of
patient care. Therefore, good attendance and punc-
tuality are just as important for part-time employ-
ees. Permanent part-time employees are entitled to
all policies and procedures covering full-time em-
ployment, with adjustment in salary and benefits
prorated to the agreed on schedule. Part-time em-
ployees also earn seniority rights.
Baretta was unable to explain this seeming conflict be-
tween her statement and the policy manual. Neither was
Baretta able to indicate at what point an employee such
as Wells who had worked full time since May and would
continue full time until September received full-time
status. Even as a part-timer, on a pro rata basis, Wells
was entitled under Respondent's policy to something
more than a notice contemporaneous with her discharge.
Baretta's reliance on Wells' claimed unreliability, her fre-
quent disruption of the schedule and previous warning
about absenteeism, none of which was supported by
memoranda or any other probative evidence," cannot be
" Baretta characterized this response to Wells at the time as a "warn-
ing . . . that if her absenteeism was not corrected, she would be termi-
nated." The exchange clearly did not constitute a written warning. As far
as constituting a warning at all, it was only a response to a request for
extra work. Baretta in her testimony in Federal court contradicted the
above characterization appearing in her Federal court affidavit, when she
swore that Wells had received only one warning and that on June 20,
1980. I credit Wells' denial that she had ever been warned about her ab-
seentism prior to June 21, 1980, the day of her discharge. Other than De-
cember 1979 and January 1980, Wells had worked full time on all other
school breaks and vacations.
'' During the hearing Respondent did not introduce or examine Baretta
to provide any concrete support for the conclusionary allegations con-
tained in Baretta's Federal court affidavit.
credited. As noted, Wells' discharge came on her second
workday following the Union's June 16 meeting and a
day following mailgram notice to Respondent of her
union committee status.
3. Paula Morris
Paula Morris worked from March 28 until June 21 as a
nurses aide. Prior to her employment by the Home,
Morris had worked for six months at another nursing
home in Hackensack; she told this to Baretta when she
was hired.
After receiving the Union's June 9 letter, Morris
talked to numerous employees about the scheduled meet-
ing. Morris attended, and at one point asked DeLaurentis
what the employees should do if they got hassled by
management for any reason. DeLaurentis sought to reas-
sure the employees that they had nothing to fear about
losing their jobs. Morris asked DeLaurentis how the em-
ployees got representatives. He said they could appoint
them there or later. Morris then said she would like to
appoint Foley and Wells as representatives from the 7
a.m. to 3 p.m. shift they all worked. Foley and Wells ac-
cepted immediately.
The next day, June 17, at coffeebreak at 9:30 a.m.,
Morris went to the cafeteria with the notice. She showed
it to another employee and explained the events of the
meeting. That employee took the notice and returned it
to Morris an hour later. On that day and the next,
Morris talked to several fellow employees about the
meeting on coffeebreaks and lunchtime.
Four days later, on Saturday, June 21, Baretta called
Morris into her office at or about 3:15 p.m. Baretta told
her that she was supposed to be on a 90-day probation,
her evaluation was up, and her work was not up to par
and she was being let go. After Morris left the office, she
met Usil Figaro who had also just been fired. Both then
returned to Baretta and asked for a written statement of
why they were fired and Morris asked for a copy of her
evaluations. Baretta told them to come back on Monday.
Morris returned on Monday, and asked Baretta for the
statement, evaluations, and her check. This time, Baretta
told her that "we don't give out copies of anything or
written statements. If you want your paycheck, come
back on payday. If you need a reference, get the other
people to call me and I'll take care of it." Before she left
Morris told Baretta she knew her work had been up to
par, she had lied and Morris knew why, Baretta had
fired her.
Morris never received a written warning and only
once was she verbally reprimanded for a minor infrac-
tion. Morris stated she performed her work well, plus
she helped other aides out and did extra work. Morris'
only evaluation is dated June 28, 90 days after her hire
on March 28, but 1 week after her discharge. It is al-
leged as discriminatory in the complaint. It is signed by
Supervising Nurse Raleigh, who prepared Foley's "spe-
cial" evaluation. It contains 6 good, 31 average, and 13
below average scores on a variety of topics relating to
grooming, personal attitudes and characteristics, and
work performance.
796
WELLINGTON HALL NURSING HOME, INC.
Baretta stated that Morris had no nursing home experi-
ence. This conflicts with Morris' testimony, which I
credit. Baretta concluded that Morris was not capable,
yet was unable to testify whether Morris was ever told
that her performance was not up to par prior to the day
of her discharge. Contrary to the Home's employee
policy manual, at the end of Morris' 90-day probationary
period her supervisor did not review her work or discuss
her performance with her. Neither is there any evidence
that Respondent, as required by the manual, informed
Morris during her probation what standards of perform-
ance applied to her work. In fact, 1 week short of the
completion of her probation, without prior warning or
notice, Morris was summoned to the director of nursing
and fired.
4. Usil Figaro
Usil Figaro, a nurses aide employed on the 3 to 11
p.m. shift, worked from September 10, 1979, until her
discharge on June 21, 1980. She attended the June 16
union meeting, arriving at 2:30 p.m. with another aide.
Figaro learned from DeLaurentis and the other union
members there that the Union had been trying to get into
the Home for 4 years and, since the court had approved
its status, bargaining would commence. The employees
were warned that, if the Home found out they had gone
to the meeting, they might harass or even fire them.
Figaro and the others asked questions about wages,
raises, and working conditions. Figaro stayed until 6 p.m.
because she was off that evening. She was selected as
one of the bargaining representatives from her shift. She
understood her job was to be talking to other employees
on her shift, writing down what they wanted at negotia-
tions and giving it to the Union. On her return to work,
Figaro showed employees the notice to read and dis-
cussed the meeting as well.
On April 7, Figaro received her first written warning
because of not coming to work on April 6, Easter
Sunday.
On June 10, Figaro was out sick, she called in at 2:15
p.m. and spoke to Mary Cronin,'3 a supervisory nurse.
Cronin told her to call Baretta. Figaro then called Bar-
etta, who told Figaro all right, come to work tomorrow.
The next day, June 11, Lillian Lilly, supervisory nurse,
gave her a warning slip when she arrived at work. It
noted excessive absenteeism and was checked second
warning. The slip also showed eight absences since Janu-
ary, and that verbal counseling was given by Lilly.
Figaro refused to sign and told Lilly she would not sign
until she spoke to Baretta because she knew Figaro had
been out sick. A day or two later, Figaro spoke to Bar-
etta. According to Figaro, she said, "I spoke to you so
you don't have to give me a warning slip." Baretta told
her the warning was just a reminder about how many
times she had been out and asked if she had a paper to
prove she had been at the doctor's. Figaro said no. Bar-
etta said next time she should get one. 4 Figaro then said
'3 Mispelled "Corona" in Figaro's Federal court affidavit received in
evidence.
' In addition to providing employees with 10 paid sick days per year,
the manual notes that a doctor's certificate must be presented upon return
of sick leave of 3 days or more, not 1.
she would get one for this time. Baretta said, "No, it's
o.k., just get one for next time." Figaro then signed the
warning slip.
Figaro reports that she had never previously received
an oral or written warning about any of her prior ab-
sences; she always called in when out sick and sometimes
brought in a doctor's note.
Figaro continues that, on June 21, the day after Re-
spondent received the mailgram listing her among union
negotiating committee members for whom DeLaurentis
sought paid release time, she was called into Baretta's
office at 2:50 p.m. Baretta said she was sorry she had to
let Figaro go, but she had to find somebody who was
more responsible about coming to work; she said Figaro
had been away from her work too much. Figaro asked
how many times she had been away from her job. Bar-
etta replied 8 days in 9 months. Figaro's file was in front
of her. Figaro said she had come to see Baretta several
days earlier about a warning slip she received on June 10
for her absence that day. Baretta said, "Yes, but now I
have to let you go." Figaro asked why she had not been
fired on June 10. Baretta said she had just looked over
the file again and had seen Figaro had been out too
many times.' Baretta added, "I'm sorry, I've done ev-
erything for you." This statement had reference to a 2-
week leave of absence Figaro had been granted at her
request in October 1979, to see her daughter in Trinidad
in February 1980.
As earlier noted, after Figaro left she met Paula
Morris and both returned to see Baretta who, in reply to
the employees' joint request, said she would leave writ-
ten statements as to the reasons for their discharges on
her desk for them on the following Monday.
On Monday, June 23, Figaro returned and was told by
Baretta that she could not give such a statement, that she
did not give a letter to anyone she fired. When Figaro
asked why she had not said that on Saturday, Baretta re-
plied, "Well, that's the way I work."
Baretta disputes this narrative. She denies she told
Figaro that the second warning was just a reminder or
advised Figaro that her absence was all right. Baretta
states that, when Figaro came to see her about the
second June 10 warning, it was on or about June 19.
After Figaro signed the warning slip, while discussing
her absenteeism she became irate. The argument became
more boisterous and Baretta terminated her on the spot.
The warning slip contains Baretta's own handwritten
note which was not there when Figaro signed it. It
states: "6/19/80 threatening, insubordinate during coun-
seling. Terminated at that point. B. Baretta." Baretta tes-
tified that she did not give Figaro a third written warn-
ing for this claimed insubordination. She characterized
Figaro's conduct as argumentative when Baretta was dis-
cussing Figaro's absenteeism, hollering and shouting, cre-
ating a disturbance, and loud noise. Her attitude and be-
havior were bad. When pressed further under cross-ex-
amination, Baretta agreed that Figaro had disagreed with
her as to whether she should receive a warning. Baretta
could not remember any specific words Figaro used.
"' Recall that the warning slip had listed the prior absences
797
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baretta denied that Figaro had cursed. She also agreed
that the home had a formal grievance procedure, de-
scribed in its employee policy manual, which authorizes
an employee with a problem to present the matter to her
department head upon arrangement with the employee's
immediate supervisor. Baretta acknowledged that the
policy permitted Figaro to come to her and complain.
Baretta nonetheless maintained that Figaro's attitude
during the presentation of the complaint was so bad she
was terminated on the spot. Although Baretta could not
recall what Figaro said, she noted that Figaro was argu-
mentative because she was complaining about the
Home's policy and procedure of warnings and absences,
and the fact that she did not feel she deserved a warning.
The following testimony was given:
Q. (Mr. Cestare) . . . She was argumentative?
A. (Bette Baretta) Yes.
Q. Because she disagreed with you the fact that
she got a warning, is that it?
A. Not necessarily.
Q. Well, what necessarily? What was she so argu-
mentative about?
A. Our whole policy and procedure of warnings
and absenteeism.
Q. So that was what she was complaining about,
the fact that she didn't feel that she deserved a
warning, is that right?
A. Yes.
Q. And that made her argumentative, is that
right?
A. Yes.
Q. For that reason she was insubordinate?
A. Yes.
Q. Because she complained that she should not
have received a warning, she was argumentative
and therefore insubordinate?
A. Yes.
Q. And therefore she was terminated on the spot,
immediately?
A. Yes.
Q. And yet you only have two warning notices
in the file, is that right?
A. Yes.
Q. And the policy is to have three warning no-
tices?
A. Yes.
Figaro was soft-spoken, direct, and responsive in her
testimony. She denied that any dispute arose during her
meeting with Baretta and that everything was very calm
and low-keyed. It appears that the meeting between the
two may have taken place as late June 19 rather than
June 12 or 13 as Figaro recalled. In all other respects, I
credit Figaro's version of the series of incidents and con-
versations. Baretta's lack of recall cannot be reconciled
with her characterization of a transaction of such seem-
ing importance as a serious insubordinate act calling for
immediate discharge without notice. Baretta's assertion
that Figaro would have been intemperate after she had
been sufficiently mollified to sign a warning slip which
she initially believed was unwarranted is not credible.
Baretta's later recollection about the exit interview with
Figaro that there were people in the hall outside her
office where the altercation with Figaro was taking place
but her continued inability to relate Figaro was criticiz-
ing what about the Home's policies and Baretta's admin-
istration of these, is unworthy of belief.
5. Virginia Hale
Virginia Hale was employed as a nurses aide from
June 18, 1979, until August 27, 1980, when she was dis-
charged. Hale volunteered at the June 16 meeting to be a
member of the union negotiating committee. She was
elected, along with Figaro, to represent employers on
the 3 p.m. to I p.m. shift. Hale's name was among those
given to Respondent as members of the union committee.
Hale had received a written warning on October 22,
1979, for tardiness on seven occasions earlier that month,
varying between 3 and 4 minutes. Hale had received per-
mission to be off without pay the week of March 24 to
March 28, 1980, to be with her hospitalized daughter in
Washington, D.C. Before she left, Baretta told her that,
if she had to stay out longer, just call and let her know
and it would be all right. Hale could not get back to
work on Monday, March 31, and Baretta approved by
phone her request that morning to be with her daughter
another day and report for work on Tuesday. Hale also
missed work on Friday, April 4, Thursday and Friday,
April 10 and II1, and because of illness. She called in
before work each day and Baretta told her to come back
"when you're better." On Hale's return to work the fol-
lowing Monday, she gave Baretta a note a doctor had
given her. Then on June 26 (the complaint date having
been amended), Hale received a second warning, alleged
to be discriminatory. In it Hale is charged with excessive
absenteeism. The dates listed are March 31 (the day Hale
extended her visit to her daughter with Baretta's approv-
al), April 5 (probably reflecting Hale's illness in early
April which Hale recollected as being on April 4), and
May I and 2, almost 2 months before the warning. The
warning was signed by Raleigh and reflects a verbal
counseling on that date by Lilly.
Finally, Hall received a third warning dated August 13
(also corrected as to date in the complaint). This warn-
ing charges excessive tardiness on six occasions in July
and August, two of 6 minutes' duration, one of 5 min-
utes, one of 2 minutes, and two of I minute including the
last on August 9. Hale went to see Baretta. Hale said she
was usually early but some days she has trouble finding a
parking spot so was a few minutes late. According to
Hale, Baretta told her she should not worry about it. Re-
spondent had to give her the warning and it was just
routine. Hale asked if she was going to be fired and Bar-
etta said no.
On August 27, when Hale came to work, her supervi-
sor, Raleigh, told her that Baretta had told her to tell
Hale that she was being terminated. Hale asked why and
was told because of her being late and absent too fre-
quently. When Hale said Baretta had told her the warn-
ing received for lateness was just routine Raleigh said
there was nothing she could do, and Hale left.
Hale's annual evaluation, dated June 18, 1980, made
just prior to Respondent acquiring knowledge of her
798
WELLINGTON HALL NURSING HOME, INC.
union involvement, is superior. Almost all of the 50
topics are graded good, including, inter alia, dependabil-
ity, attendance, "notifies when unable to come to work,
and reports to work promptly," and two are graded ex-
cellent. Only five of Hale's attributes were graded aver-
age and none received a poorer grade (below average or
poor). The evaluator, nurse Lilly, commented: "Performs
her duties well. Is kind and generous to the patients."
Hale compared herself favorably to a number of other
employees she named who regularly report for work
later than Hale but none of whom attended the union
meeting or supported the Union.
Baretta maintained that the three warnings warranted
the discharge. In addition, Hale received a verbal coun-
seling concerning the messy way she and another aide
had handled a special assignment involving trash on June
26, 1980.
6. Sandra McCadney
Sandra McCadney was employed as a nurses aide from
March 12 to June 21, 1980, when she was discharged.
McCadney worked the 11 p.m. to 7 a.m. shift along with
Annie Thomas, another alleged discriminatee. Thomas
told McCadney about the letter notifying of the union
meeting. McCadney wanted to attend but had other
plans for that evening. She told Thomas she would be
willing to serve on the negotiating committee. At the
meeting both McCadney, in absentia, and Thomas were
selected as committee members for their shift.
On June 21, the day after it received notice of her
status as committee member by union mailgram, Re-
spondent wired McCadney that she was fired: "Due to
your continued absenteeism during your probationary
period." McCadney's probation concluded on June 12.
On that date, shortly before her election to the union
committee, she received her evaluation, which rated her
attendance as average. Average grades predominated
with some good grades included. None was poorer than
good. The evaluator's comments note: "Miss S. has
shown improvement in nursing care of patients, perform-
ance, attitude, tone of voice and tactfulness. Attendance
needs improvement." Nowhere does the evaluation con-
tain a recommendation of discharge based on attendance.
McCadney's discharge within days of the evaluation
denied her the opportunity of improving her attendance.
Baretta points out that McCadney was absent 12 times
during her 3-month probation. Yet, as noted, her evalua-
tion did not reflect a below average or poor attendance,
only that it needed improvement. McCadney was absent
on June 20 because she could not get a ride to work.
(She was afraid to take the bus because of an incident of
attempted theft of her purse and mugging while walking
from the bus stop to the Home the evening of June 16.)
McCadney called in at 9:30 p.m.-an hour and a half
before her starting time-to report she could not work
that night because of lack of transportation. McCadney
also had been upset because a new aide, named Bolton,
had cursed her and argued with her on June 18. Bolton
thought that McCadney and other aides should do a par-
ticular assignment Bolton had been given. On June 19,
Bolton started in with McCadney again. Shortly after
punching in, McCadney asked another aide, Robinson, to
inform Supervising Nurse Kitty Lee that she would not
work that night because Bolton was harassing her and
McCadney punched out and left. McCadney stated that
she was also absent about 3 or 4 consecutive days in
May with the flu. When McCadney returned to work
thereafter, nurse Lee sent her home after she showed a
temperature of 102. McCadney states that other named
employees with whom she worked were absent more
than she was yet they were not fired.
Baretta relies in part on McCadney's failure to comply
with the Home's policy requiring 4 hours' notice of an
intended absence prior to the start of the employee's
shift. But that policy is not included in Respondent's em-
ployee manual. It is set forth in on single page of nursing
department rules. Yet, all employees questioned, includ-
ing McCadney, testified they were unaware of the rule
and had not been supplied with a copy. Respondent, ad-
mittedly, did not supply the manual or other Home ma-
terials to employees until after the completion of their
probationary period and then only on an employee's re-
quest. 6
7. Helena Goldsmith
Helena Goldsmith was employed as a nurses aide from
approximately September 24, 1979, until June 30, 1980,
when she was discharged. Goldsmith, after receiving the
Union's June 9 letter, took it to work and showed it to
other employees. She did not attend the June 16 meeting
but she is very friendly with Foley and the other main
supporters of the Union. Goldsmith asserts, and Re-
spondent did not dispute, that it was well known at the
Home that she was friendly with those on the negotiat-
ing committee and that she supported the Union. She
openly spoke with other employees on her shift about
the Union, during their lunch break.
On June 26, Goldsmith was given a warning slip for
excessive absenteeism by her supervisor, Raleigh. The
slip noted 5 days she was absent, the last being May 5.
For three of the days listed in March, Goldsmith had
brought in a doctor's notes and given them to Baretta.
Goldsmith told Raleigh that she did not think she was
excessively absent. Raleigh told her that if she had any
complaints she should see Baretta about them. When
Goldsmith approached Baretta later in the day, she was
advised to see her on Monday.
On Monday, June 30, Goldsmith was called into Bar-
etta's office at 2:50 p.m. just 10 minutes before the end of
her shift. Baretta told her she was terminated because of
excessive absenteeism. Goldsmith asked why she was
being punished now, because she had not been absent
since May 5. Baretta replied she had a lot of paperwork
and was just now getting around to it. Goldsmith added
she reminded Baretta she had a doctor's note for 3 of the
4 days. 7 Baretta said she did not care how many doc-
"a An orientation checklist, noting new employee receipt of Personnel
Policies" seems to be inconsistent with Haretta's testimony in this regard
The orientation list does not resolve the question of distribution of a
single sheet of rules and I credit the consistent denial of the employees
" The statement was not clarified. Recall that Goldsmith was absent 5
days. It ma) have referred to the fact that the May 5 absence was due to
illness, but (ioldsnmith had not produced a doctor's note for that day Yet.
the manual requires a doctor's certificate only for a sick lease of 3 dabs
or more.
799
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tors' notes she had, she was running a business and Gold-
smith was terminated. Baretta did not dispute Gold-
smith's attributing these remarks to her. Before Gold-
smith punched out and left she asked Baretta for a copy
of her doctor's notes but Baretta would not give them to
her.
Goldsmith had received two earlier warnings. The
first was received on October 28, 1979, for leaving
rooms untidy and the second was issued April 7, 1980,
for excessive tardiness. In neither of Goldsmith's two
prior evaluations was any adverse comment made re-
garding attendance, which was marked good.
Baretta attributed any time lag in issuing Goldsmith
her third warning to a bureaucratic delay, later explained
by her as the lapse of time after the close of a pay period
before the payroll secretary or supervisor discovers a
pattern of absenteeism or tardiness and brings it to her
attention. Interestingly, Baretta illustrated this delay by
referring to a time period of less than a week, running
from the close of a pay period on a Saturday to the fol-
lowing Monday, Tuesday, or even later in the week
before she is able to get the work of review completed.
The delay in Goldsmith's case between the last absence
and warning was close to 2 months. Recall also that the
third warning which triggered Goldsmith's discharge,
and which is alleged as discriminatory in the complaint,
is grounded on five absences over 9 months, three of
which were authorized under Respondent's sick leave
policy because they were supported by doctor's notes.
8. David Jarvis
David Jarvis worked as an orderly from January 28,
1980, until his discharge on June 9. Jarvis spoke to many
of his coworkers and encouraged them to attend, during
break and lunchtime at the Home. Jarvis attended the
June 16 meeting and afterward spoke about the meeting
with other employees during breaks at the Home. Jarvis
testified without objection about a conversation he held
with a licensed practical nurse named Barger a couple of
days before June 16, on that occasion, in the nurse's cafe-
teria. Barger had a copy of the Union's letter inviting
employees to the meeting scheduled for June 16. Jarvis
had received information that Barger had shown Baretta
a copy of the letter. Jarvis asked Barger if she had.
Barger said she did show Baretta the letter.
Jarvis received a very high rating on his end of proba-
tion evaluation in April. 8 He scored excellent on 39
items, good on 10, and average on only 1. His evaluator
noted as follows:
Mr. Jarvis is a concerned and extremely dedicated
worker. He has an excellent manner and gives all
the best of care. He works well with others and is
always on the go-taking on extra tasks without
being asked. I consider him a very valuable employ-
ee and am very pleased with his performance.
In early May, Jarvis was suspended for I week after
being informed by Baretta that an aide had complained
to her that he had been insubordinate. Jarvis could not
'" The evaluation was reviewed with Jarvis on April 9, before the end
of the 9O-dav period
place any such incident but, when he sought information
as to the identity of the aide or the nature of the com-
plaint, Baretta refused to supply any facts. Jarvis never
received anything in writing relating to the suspension.
After Jarvis returned, Baretta asserts she placed him on a
renewed 2-month probation, but she did not inform
Jarvis of this status. t9
Thereafter, Jarvis recalled missing 2 workdays. Once
he missed work when visiting his nephew in the hospital.
Another time, on a Sunday in late May or early June, he
overslept well past the start of his shift and called in
sometime after the shift had started to say he would not
be in. After missing the Sunday, Raleigh gave him a
written warning dated May 17, listing four absences, the
last two, May 10 and 18, on which there was no call,
and told him to be careful about his attendance. Jarvis
states he was not absent thereafter until his discharge on
June 23 which followed by I week his attendance at the
union meeting.
On June 23, Jarvis was called into Baretta's office. She
informed him that he had been reevaluated after 6
months' employment. Jarvis knew of no other employee
receiving such an evaluation. Baretta said that, because
his reevaluation was poor, the Home had no more need
for his services and he was being terminated. Jarvis
asked to speak to his union representative about this and
Baretta said she knew nothing about the Union. Jarvis
said, "I see you're getting rid of all of us," and Baretta
said she knew what she was doing. Jarvis thereupon left.
The reevaluation is alleged in the complaint as dis-
criminatory. It was poor, in startling contrast with
Jarvis' evaluation 2 months earlier. The 50 entries are
split between average and below average, with a half
dozen good ratings and 3 poor ones. Baretta claims that
because of the additional absences she observed she re-
quested Jarvis' supervisor to furnish her with an addi-
tional evaluation prior to the end of his renewed proba-
tion period. Contrary to Respondent's normal practice,
this reevaluation is undated and there is no record evi-
dence as to when Baretta sought it. Respondent has not
supported with any testimony or warnings any of the en-
tries other than the one relating to failure to notify when
unable to come to work (for which Jarvis received his
one poor grade). In particular, although Baretta claims
Jarvis had additional absences after the May 17 warning,
she produced no record of any verbal counseling or
written warning relating to them. The failure to produce
such records is the more surprising because Jarvis, on re-
newed probation, was being monitored closely during
this period.
9. Annie Thomas
Annie Thomas had previously worked for the Home
before her rehire as a nurses aide on March 28, 1980. She
was discharged on October 25, 1980. Thomas worked
the 11 p.m. to 7 a.m. shift, mostly on weekends, Fridays
through Sundays. She was elected at the June 16 union
meeting as one of the members of its negotiating commit-
'" Jarvis creditably denied he had ever been so informed prior to his
discharge and Baretta did not claim that Jarvis had been previously ad-
vised.
800
WELLINGTON HALL NURSING HOME. INC.
tee, and Respondent received notice of this fact on June
19.
Thomas received four written warnings in all. The
first is dated June 26, shortly after Respondent learned of
Thomas' union status, but was not given to Thomas until
July 13 when she refused to sign. This warning is alleged
as discriminatory by the General Counsel in the com-
plaint. Among five absences listed is one, June 29, which
is 3 days after the date of its preparation. The fourth ab-
sence immediately preceding June 29 is June 1, yet Re-
spondent delayed until June 26 the preparations of the
warning. Furthermore, this initial warning is dated 2
days before Thomas' initial 90-day evaluation and 10
days after Thomas reviewed and signed it. Thus, Thomas
had four of the five recorded absences at the time her
evaluator graded her average in attendance, good in
most other qualities, and excellent in a few. Her evalu-
ator added the comment: "Mrs. A. Thomas renders good
nursing care to patients. She is subordinate and always
willing to help others."
The second warning is dated September 14 and reads:
"Instructed to stay till 7:30 a.m. due to staff shortage.
Left after Report. Excuse unacceptable." It also notes
that Thomas refused to sign it on September 19. Again,
this warning is alleged as violative of the Act.
According to Baretta, when she started as director of
nursing early in 1978 she established a policy applicable
to all shifts requiring employees to remain up to one half
hour beyond the normal end of their shifts until their
duties were completed, reports had been given, and the
employees on the next shift appeared. At the time, Bar-
etta did not advise the Home's administrator, Squillace,
to notify the Union of this intended change in work
hours. 20
On the same date, September 19, that Thomas was
given the warning and refused to sign she sbmitted a
handwritten memorandum to Baretta concerning remain-
ing on the floor until 7:30 a.m. In it Thomas described as
an untruth the warning slip's statement that she had re-
fused to remain on the floor the prior weekend (Sunday,
September 14). Thomas also stated that "due to the fact
that Mrs. Martin stated that you said I must remain on
the floor until 7:30 a.m. in the mornings, it's impossible
for me to work on Sundays anymore (I can still work on
Fridays and Saturdays). The reason is school is now
open and my husband leaves at 7:00 a.m. and my oldest
daughter leaves at 7:30 a.m. This will automatically leave
my 5 year old home alone." Thomas next referred to her
receipt of the warning from nurse Lilly2' and concluded,
'o The General Counsel alleged this policy adoption in par. 13 of the
complaint as a unilateral change concerning only the hours of employ-
ment of night-shift nurses aides made between September 12 and 19,
1979, in violation of Sec. 8(a)(5) of the Act. Par. 17 of the complaint
relies on the alleged unilateral change in alleging the September 19 warn-
ing to Thomas as discriminatory. Even if the policy allegation may be
deemed to refer to the year 1980 rather than 1979, and thereby avoid the
fatal defect of time bar because alleging conduct occurring more than 6
months prior to the filing of the charge. General Counsel has failed to
rebut the only evidence of the date of the policy's establishment and thus
the record facts do not overcome the statutory time bar applicable to this
unilateral change instituted in 1978. With respect to the warning, I shall
examine the issue relating to it independent of the lack of merit as to the
claim of its alleged unilateral issuance
2' Par. 7 of the complaint refers to her as Lilly.
"If leaving a 5 year old home alone is unacceptable then
I wonder what is acceptable." Baretta testified that she
never asked Thomas about her claim that her refusal to
remain at work up to 7:30 a.m. on September 14 was not
true, although they talked with each other on September
19 about the requirement that Thomas remain, if neces-
sary, for the additional half-hour on a daily basis, and
that she, Baretta, had no way of knowing whether, in
fact, Thomas stayed that evening. Yet, Baretta relied on
this warning, among others, in terminating Thomas the
following month.
In a second 6-month evaluation of September 7.
Thomas continued to receive predominantly superior rat-
ings. The evaluator's comments reiterated the earlier
ones and added, "She is expected to be more serious
when on duty. Otherwise entirely reliable."
Then, on October 25, Thomas received two written
warnings, both of which she refused to sign. On one, for
excessive absenteeism, 5 days are listed, including 3 days
(April 26 and May 10 and 17) covered by the June 26
warning. This left two absences over a period of ap-
proximately 4 months. With respect to them, Baretta was
unable to testify whether or not Thomas had called in
prior to the start of her shift or whether, with respect to
any of the seven absences for which she received two
warnings, Thomas had been sick.22 The other warning
was for excessive tardiness-five separate latenesses over
a 7-month period.23 I conclude that as alleged these two
warnings as well as the earlier two issued to Thomas
were discriminatorily motivated in violation of the Act.
On the basis of these four warnings, the circumstances
concerning their issuance having been described, and in
spite of the positive evaluations she had received charac-
terizing her as an "entirely reliable" employee, Thomas
was discharged on October 25.
10. The alleged unlawful no-solicitation/no-
distribution rule
As earlier noted, Respondent reprinted a preexisting
employee policy manual and since on or about April 30,
1980, has maintained in effect the following rules as part
of that manual:
Disciplinary Action:
If performance or attitude is not satisfactory, the
employee will be talked with and encouraged to im-
prove. For conduct such as the examples listed
below, it may be necessary for your supervisor or
department head to take other action-ranging from
:2 As a regular part-time employee. Thomas should have been entitled
to a pro rarta portion of the 10 paid sick days a year allowed full time
employees. Baretta testified that while the Home's administration did not
think in terms of prorating paid sick leave for part-timers they swould be
prorated but she did not know how many they received--"the bookkeep-
er take[s] care of that." She knew how the Home prorated holiday time.
permitting permanent part-time employees 5 or 6 hours instead of a full 8
hours per vacation day. Yet, incredibly, Baretta admitted she did not take
into account any of Thomas' absences attributable to sickness in deter-
mining that her absences were "excessive."
21 The warning notes that Thomas was also late reporting for duty on
November 4. 1980, I1 days after her discharge and a weekday
801
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a verbal and/or written reprimand to suspension
without pay or discharge.
Conduct that is detrimental to the Home's oper-
ations or that detracts from its good reputation,
or that is detrimental to safe, pleasant working
conditions, such as:
4) Posting or removing any material on Home's
property, distributing written or printed matter of
any kind, or solititing employees for any purpose
unless specifically authorized
Solicitations:
For your protection, as well as that of our pa-
tients, private business such as buying or selling
merchandise, etc., is not allowable within the
Center.
Likewise, soliciting or canvassing subscriptions,
contributions, memberships in organizations, etc., is
not permitted during working hours or in the pa-
tient or public areas of the Center at any time.
Employees who, in the course of their normal
duties, discover canvassing or soliciting taking
place, are requested immediately to report this fact
to the Administrator's office.
D. The Alleged Refusal To Bargain
Apart from the allegation relating to the unilateral
change in work hours of night-shift nurses aides (which I
have found applied to employees on all shifts and was in-
stituted well outside the 6-month period and therefore
complaint is precluded), the complaint was amended, as
noted, to allege since on or about June 11, 1980, the
maintenance of a grievance procedure and the adjust-
ment of grievances pursuant thereto without providing
the Union an opportunity to be present.
The grievance procedure in effect is described in the
employee policy manual. Grievances are loosely defined
as questions or problems employees may have or dis-
agreements between coworkers. When a work problem
cannot be resolved by talking it over with the employ-
ee's supervisor, it can be presented in a more formal
way, as a grievance. The formal procedure provides for
two steps, the first a written presentation to the immedi-
ate supervisor who will arrange for a presentation to the
department head. Within 3 working days of receipt of
the department head's written decision, the matter, if still
unresolved, may be submitted to administration which
will issue a written answer within 3 working days after
the discussions about the grievance have ended. While an
employee may request the advice and assistance of a de-
partment head at any stage and may also be accompanied
by an employee of his or her choice to help present the
case, no mention is made at all of the Union, the unit em-
ployees' exclusive bargaining representative since its cer-
tification in 1976.
Baretta testified that, on several occasions during the
last 6 months, satisfactory adjustments were made of em-
ployee complaints, but that at no time was a member, an
officer, or a representative of the Union notified. The
record contains evidence of utilization of a grievance
format by several employees, including Usil Figaro who
complained to Baretta about her second warning, Sandra
McCadney who contacted Baretta on June 18 to report
her harassment by another employee, Bolton, Goldsmith
who sought to protest to Baretta her June 26 warning,
and Jarvis who asked for union representation at his exit
interview. On none of these occasions did Baretta inform
the Union of these presentations or give the Union an
opportunity to be present.
IV. CONCLUDING FINDINGS
A. The Discharge of the Nine Employees and Written
Warnings and Evaluations Issued to Six of Them
Foley's case is particularly striking. Respondent clearly
failed to follow its own policies by discharging her with-
out having issued even one warning, much less three, in
the -year period preceding her discharge, as called for
by its policy.
The May 28 "warning" was very likely prepared after
Foley's union activity came to Respondent's attention on
DiLaurentis' phone call to the Home on June 19 since it
duplicates the May 27 absence as to which Foley's re-
ceived verbal counseling on June 16. The verbal counsel-
ing itself is suspect. Its belated nature, taking place 3
weeks after the event, is hardly explained by "bureau-
cratic delay." It preceded Foley's attendance at the
union meeting by about an hour, after Baretta had
learned of the meeting from employee Barger. Further,
as a separate memorandum prepared to memorialize the
counseling it does not conform to Respondent's normal
practice of either noting the counseling on a warning slip
or not recording the counseling at all. Respondent has
also failed to explain why it deemed a post-holiday ab-
sence as occurring on a holiday.
Foley's special evaluation was also out of the ordinary
and Raleigh's reaction to Foley's pressing questions as to
her being singled out for the evaluation is suspect. Sig-
nificantly, Raleigh failed to deny that Foley's discharge
was related to her union activities. Her smile was a par-
ticularly odd response for a supervisor who had pre-
pared or assisted in preparing a detailed and critical eval-
uation of Foley's performance as senior aide. The evalua-
tion was not prepared after 6 months' service by Foley as
senior aide contrary to the written notation appearing in
its upper right hand corner and as checked on the form
itself. A 6 month review would have ended in April
1980. Thus, Respondent chose to prepare a particularly
negative special evaluation of Foley's performance at an
irregular time without prior warning or consideration of
counseling or other method to improve overall perform-
ance, and without any evidence supporting the alleged
deficiencies it recites, immediately succeeding Foley's ac-
tivities and her open participation in the Union's efforts
to capitalize on its recent court victories and obtain a
802
AWELLINGTON HALL NURSING HOME. INC.
bargaining agreement with the Home. I conclude that
Foley's special evaluation and discharge violate the Act.
Wells was also the recipient of highly unusual treat-
ment by Respondent. Without receiving any pro rata
benefit of Respondent's paid sick leave policy, contrary
to its own policy manual, Wells was singled out for dis-
charge 2 days following a I-day absence for illness
which Respondent did not dispute. Again, contrary to its
own policy, Wells received only one warning, the day
before her discharge, which combined all her absences
over a 2-year period. Thus, Wells was discharged imme-
diately following one warning only, Respondent having
failed to show whether or not Wells' absences had vio-
lated its allowable paid sick leave on a pro rala basis. In
1980 alone, Wells had only four absences in 6 months'
time. The discharge came immediately following Wells'
election as union negotiating committee member and her
discussions at the Home regarding its posting of the
notice. I conclude Wells' discharge was discriminatory.
Contrary to Respondent's admitted policy, Usil Figaro
was discharged after two written warnings, the second
of which was highlighted by an absence due to illness
where Figaro had called in before her shift and was enti-
tled to be paid for the day. Although Baretta discussed
this second warning when Figaro protested its issuance
and relieved Figaro of any obligation of producing a
doctor's note, she then fired Figaro on June 21, I day
after receipt of the Union's mailgram listing Figaro's
name, among others, for the same alleged excessive ab-
sences covered by the second warning because she had
"just looked over the file again and had seen Figaro was
out too many times." That explanation is not believable.
These circumstances warrant a finding of discriminatory
discharge.
Even if Baretta's interpretation of her clash with
Figaro on June 19 is credited, the circumstances related
by Baretta establish an independent theory of violation.
Figaro was presenting a grievance to her department
head and was fired because she complained and was ar-
gumentative. Under Baretta's version, the discharge was
thus made in retaliation for exercising a right protected
by Section 7 of the Act even in the absence of a collec-
tive-bargaining agreement. 24 Strengthening the protected
nature of Figaro's protest is the fact that the grievance
machinery was unilaterally created by Respondent to
provide a vehicle for its employees' protests. That pro-
tection adheres to Figaro's complaint irrespective of the
merits of her claim or whether she referred to applicable
language in the manual or was even aware of the exist-
ence of the manual or the grievance provision.25 Finally,
Baretta failed to demonstrate conduct on Figaro's part
which would remove the Act's protection from her. 26
2' See Columbia University, 236 NLRB 793, 796 (1978); Keokuck Gas
Service Co. v.. .L.R.B., 580 F.2d 328, 333 (8th Cir. 1978); Oil. Chemical
and Atomic Workers International Lnion v. L.R.B., 547 F2d 575, 592
(D.C. Cir. 1976)
25 John Sexton & Co. a Divsisio of Beatrice Food Co, 217 NLRB 80
(1975), and cases cited at fn. 6.
26 Sec Crown Central Petroleum Corporation s:. .L.R.B. 430 F.2d 724
(5th Cir. 1970); Thor Power Tool Company, 148 NLRB 1379 (1964), enfd.
351 F.2d 584 (7th Cir 1965)
Virginia Hale, like Foley, Wells, and Figaro, was a
member of the six-person union negotiating Committee.
The weight of the evidence supports findings that the
two warnings she received, dated June 26 and August
13, 1980, are discriminatory. The former, for excessive
absenteeism, follows by 10 days her election to the com-
mittee and is grounded on four absences, one of which
was approved by Baretta herself and others which were
also acknowledged by Baretta for illness, supported by a
doctor's note even though not required under Respond-
ent's manual, and for which Hale was entitled to paid
leave under the manual. The latter warning, which in
part triggered Hale's discharge, encompassed six laten-
esses, none greater than 6 minutes and two, including the
last, of I minute each. The conclusion is warranted upon
the basis of the facts relating to Hale alone as well as the
pattern of discharges relating to the union leaders among
the employees that Hale's discharge, ostensibly for a
combination of these absences and latenesses, shields Re-
spondent's true motive based on her union activities. The
asserted reasons for discharge can only be viewed as pre-
texts given the superior quality of Hale's annual evalua-
tion issued just 2 months before her discharge and I day
before Respondent learned of her union involvement
which graded Hale high with respect to the very attri-
butes-attendance and promptness-on which Respond-
ent relied in terminating her.
Sandra McCadney was the fifth union committee
member discharged, on June 21, 1 day after Respondent
received the union mailgram with a request for her paid
release to attend negotiations. McCadney successfully
completed her probation period on June 12, with im-
provements noted in a number of areas and attendance
needing improvement, then was fired II days later by
telegram, unaccountably for continued absenteeism
during her probation. Respondent relied in part on
McCadney's failure to provide 4 hours' advance notice
of an intended absence when that policy was not includ-
ed in the manual nor provided the employees. Respond-
ent's precipitate action with respect to McCadney can be
rationally explained only by reference to its concern
with her election to the union committee and the Union's
request to commence negotiations 3-1/2 years after certi-
fication.
With Annie Thomas' firing on October 25, 1980, Re-
spondent had rid itself of every one of the six elected
union committee members. As with Foley, Hale, and
Goldsmith, Respondent excessively delayed issuing a
warning related to an alleged absence record until after
it had received knowledge of her union involvement. On
June 13, Thomas received a first warning, dated June 26,
10 days after her election, which lists the last absence
prior thereto as June 1.27 A second warning dated Sep-
tember 14, and given to Thomas on September 19, claims
she refused to stay a half hour beyond her shift on Sep-
tember 14, in the face of Thomas' written statement that
she did not leave which Baretta failed to investigate, al-
though given the opportunity to do so in a talk with
Thomas on the date the warning was issued. I conclude
' A June 29 absence was added later
803
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that issuance of both of these warnings was motivated by
animus toward Thomas' prominent union activities. Fi-
nally, Thomas received two additional warnings on the
day of her discharge, one for absenteeism which dupli-
cated three of five28 listed absences previously included
in the June 26 warning, and another for tardiness which
failed to note the extent of lateness.2 9 Respondent was
creating a history of warnings against Thomas which
would justify her termination-conduct which I con-
clude was discriminatory.
Among the remaining three dischargees, Paula Morris,
Helena Goldsmith, and David Jarvis, two attended the
union meeting (Morris and Jarvis) and the third (Gold-
smith) openly supported the Union and was known as a
close associate of the committee members.
At the union meeting, Morris nominated Foley and
Wells as committee representatives from her shift. After
the meeting, Morris spread the word of the meeting
while on breaks at the Home. A few days later, I week
short of completion of her 90-day probation, Morris was
fired allegedly because her work was not up to par. Her
only evaluation, prepared I week after her discharge, is
just slightly below average. Respondent offered no evi-
dence, other than what can be derived from the evalua-
tion itself, which would serve to buttress the below aver-
age scores in the evaluation. Morris received no warn-
ings, no verbal counseling, and no critical memoranda. I
conclude that both her evaluation and dismissal were,
indeed, discriminatory.
Goldsmith did not attend the union meeting but her ex-
pressed support for the Union was open and her friend-
ship with committee members was well known. Within a
matter of days from the Union's attempt to arrange a
bargaining session and the selection of an employee com-
mittee, Goldsmith received a warning, on June 26. The
warning, for excessive absenteeism, was issued I month
and 20 days after the last absence on May 5, and on
three of the five absences Goldsmith qualified for paid
sick leave. I conclude that this third warning was con-
trived to form the basis for Goldsmith's discharge which
shortly followed on June 30. Baretta's purported expla-
nation of "bureaucracy" for the excessive delay in deal-
ing with a number of Goldsmith's absences ending on
May 5 has not been credited. Baretta's discounting of ill-
ness as a legitimate excuse for three of Goldsmith's ab-
sences in spite of the manual recognizing paid sick leave
shows the lengths to which Respondent sought to go in
manufacturing grounds for discharge shielding an unlaw-
ful motivation.
Respondent's failure to support its naked claims of ad-
ditional absences by Jarvis after his May 17 warning until
his discharge on June 23, 1 week following his participa-
tion in the union meeting, warrants the conclusion that
no such absences took place. It is significant that no re-
cords were produced, nor did Respondent call any su-
pervisor to support the claim. Baretta states that she ob-
' For all Respondent knews the two absences unrelated to the June 26
warning may have been for illness for which Thomas would have been
entitled to paid leave as applied pro rata to her as a regular part-time em-
ployee.
:" his contrasts with the :lte clockings to the minute noted on Hale's
warnings.
served these absences but she made no record nor speci-
fied the dates or occasions on which Jarvis failed to
work. Such records were peculiarly within Respondent's
control. Furthermore, Jarvis' work performance was pre-
sumably being closely monitored following his suspen-
sion for an act of insubordination in early May which
Baretta failed to explain. Under these circumstances, Re-
spondent's failure to support by documentation or testi-
mony any of the deficiencies reflecting the below aver-
age scores awarded Jarvis on his undated 6-month evalu-
ation makes the evaluation particularly suspect. I can
only infer that testimony by his supervisor at the time
would not support the conclusionary evaluation.3 0 That
evaluation is in striking contrast to the superb one Jarvis
achieved just 2 months earlier. The only reasonable ex-
planation for such a marked change in the way Jarvis'
work performance was viewed by the Home's adminis-
tration lies in its learning shortly before the evaluation
and discharge of Jarvis' participation in the Union's and
employees' renewed efforts to induce Respondent's com-
pliance with its longstanding bargaining obligations. I
conclude that Jarvis' June evaluation and discharge were
discriminatory.
While actual evidence of Respondent's knowledge of
the participation of Morris, Goldsmith, and Jarvis in the
Union's efforts is lacking, the circumstantial evidence
supporting the conclusion that Respondent became
aware of their involvement is very strong.3 ' It is undis-
puted that Respondent learned of the Union's scheduling
of the June 16 meeting before it was held. Following the
meeting and its direct knowledge of the employees' se-
lection of a 6-member bargaining committee, everyone
on the committee was discharged within a 4-month
period, 4 within days of the meeting and a fifth a month
later, and 8 of the approximately 15 employee partici-
pants were shortly fired. Nothing could be more devas-
tating to the Union's and employees' efforts to exercise
their bargaining status under the Act than to have the
total employee committee wiped out and the majority of
the interested employee adherents removed from the
Home's work force. 32 Bargaining rights mean little if
those employees who seek to exercise and implement
them are singled out for retaliation for doing so. Few if
any employees may reasonably be expected to participate
in the bargaining process under such circumstances.
Thus, the employer like Respondent, which engages in
such retaliatory conduct, if not induced to cease and to
conform to the law, will continue to be able successfully
to evade and avoid the bargaining obligation as it has for
the past 5 years.
"' See Martin Luther King. Sr., Nursing Cenler. 231 NLRB 15 (1977):
Gulf lWanldes Corporation, 233 NLRB 772 (1977).
": See Faner. Inc. v. N.L.R.B., 490 F.2d 293 (9th Cir. 1973); NL.R.B.
v. Long Island Airport Limousine Service Corp.. 468 F2d 292 (2d Cir.
1972); NL.R.B. v. Minnorre Manufacturing Corp., 299 F.2d 695 (3d Cir.
1962)
:2 See N;L.R.B. v. Treasure Lake. Inc.. a subsidiary of Great Northern
Development Co.. Inc., 453 F 2d 202 (3d Cir. 1971): N.L.R.B. v. Nabors
d/b/a C .Vabors Company 196 F.2d 272 (5th Cir. 1952), cert. denied
344 U.S. 865; N.L.R.B. v. Electric City Dyeing Co.. 178 F.2d 980 (3d Cir.
1950).
804
WELLINGTON HALL NURSING HOME, INC.
This pattern of discharge of all of the strongest union
adherents has been coupled on this record with a pattern
of extraordinary delay in requiring employee account-
ability for absences and latenesses, extending to a date
after respondent learned of the employee's union activi-
ties. Such delay warrants the conclusion that Respondent
condoned the conduct which ultimately formed the basis
of the belated warnings and irregular evaluations. Re-
spondent's inconsistent exercise of its authority, in both
following and disregarding the standards and criteria it
alone established for determining when and under what
circumstances discipline or discharge is warranted, fur-
ther buttresses the other evidence that it was discrimina-
torily motivated when it selected only the union leaders
for retaliation.33
Respondent's animus to the Union's efforts to imple-
ment its certification and achieve collective bargaining is
well documented and supported by the history of its past
violations of the Act, even putting aside the settlement
disposition of the one case in which the Regional Office
agreed to an exculpatory clause.34
These factors of animus, timing, and pretexts in relat-
ing reasons for their separations support the conclusion,
which I reach, that Respondent learned of the union in-
volvement of Morris, Jarvis, and Goldsmith and dis-
charged them along with the other six, in violation of
Section 8(a)(1) and (3) of the Act.
Even if knowledge of the union activities of Morris,
Goldsmith, and Jarvis may not be inferred under all of
the circumstances disclosed by the record, I nonetheless
conclude that their discharges have violated the Act.
Since Respondent's knowledge of the leading union roles
undertaken by the six other discriminatees was a matter
of clear-cut documentary proof, only by coupling their
discharges with those of other employees where direct
evidence of knowledge is lacking could Respondent hope
to provide an aura of legitimacy to its personnel actions.
In the alternative, I am satisfied that Respondent dis-
charged the aforenamed three employees with the other
six "in order to strengthen its contention that it was mo-
tivated solely by legitimate business reasons and not by
the desire to rid itself of a union proponent." 35
That the General Counsel has established prima facie
violations of Section 8(a)(1) and (3) of the Act as to the
nine employees is evident from a review of the foregoing
facts and findings. It is also apparent from a review of
the same material that Respondent has failed to demon-
strate, as an affirmative defense, that the decision to ter-
minate any of them would have been the same in the ab-
sence of their protected conduct. Accordingly, applying
"3 Significantly, while conclusionary testimony regarding significant
turnover of employees is included in the record, Respondent failed to
adduce any evidence in its defense that any employees, other than these 9
outstanding union advocates, were involuntarily terminated in a unit of
more than 80 employees during the period from June 21 to September or
October 1980. Absent such evidence. the records shows only these nine
discharges during that period.
3 See N.L.R.B v. Jack LaLanne Management Corp., 539 F.2d 292 (2d
Cir. 1976); N.L.R.B. v. Eagle Material Handling, Inc., a subsidiary of Som-
erset Tire Service. Inc.. etc.. 558 F.2d 160 (3d Cir. 1977).
"s Armcor Industries, Inc., 217 NLRB 358 (1975), enfd. 535 F.2d 239,
243, fn. 7 (3d Cir. 1976). See also Wm. Chalson & Co.. Inc., 252 NLRB 25
(1980).
the Board's Wright Line36 test, I conclude that Respond-
ent was unlawfully motivated in discharging each of the
nine employees named in the complaint, and that it has
thereby violated Section 8(a)(1) and (3) of the Act.
2. Respondent's no-solicitation/no-distribution rule
In spite of the Union's status as exclusive bargaining
representative since 1976, the record demonstrates the
fragility of that status in the face of a determined and
hostile employer and the high degree of employee turn-
over. Thus, Respondent's rules severely restricting union
solicitation and distribution are of more than passing in-
terest. There is no evidence that the rules at issue here
have been applied to the Union's renewed efforts among
the Home's employees commencing in June 1980. There-
fore, and as alleged, they will be examined only as to
whether as written they interfere with Section 7 rights.
As noted by the Board in its recent decision in Eastern
Maine Medical Center, 253 NLRB 224 (1980), the Su-
preme Court in Beth Israel37 has approved its presump-
tion that employer rules which prohibit employee solici-
tation in health care facilities in areas other than immedi-
ate patient care areas are invalid. That presumption does
no more than place on the facility the burden of proving,
with respect to areas to which it applies, that union so-
licitation may adversely affect patients.38
Respondent's rule is neither limited to work areas of
the Home, nor is it restricted to working time. By using
the phrase "working hours," the no-solicitation rule is
prima facie susceptible of the interpretation that solicita-
tion is prohibited during all business hours-all hours of
the day at the Home-and, thus, invalid.3 9 Respondent
has failed to make any attempt to show that the phrase
"working hours" refers to working time only and per-
mits solicitation on break or other free periods. Similarly,
Respondent has made no attempt to show that prohibit-
ing solicitations in the "public areas of the Center" ad-
versely affects patients. Furthermore, by its terms the
distribution portion of the rule requiring management's
prior approval to distribute any written matter on the
Home's property presumptively abridges valid distribu-
tion on the employees' own time away from patient care
areas.4" Respondent has failed to make any showing that
this restriction is necessary for proper patient care or
that it disturbs patients. Therefore, this blanket restraint
also interferes with employee Section 7 rights.4 '
3. Respondent's refusal to bargain
The evidence supports the conclusion, and I find, that,
without consulting or notifying the Union as collective-
bargaining representative, Respondent maintained a uni-
laterally established grievance procedure, which employ-
16 Wright Line. a Division of Wright Line. Inc., 251 NLRB 1083 (1980)
' Beth Israel Hospital . .L.R.B., 437 U.S. 483 (1978}
V NL. RB. v B aptist lopital. Inc.. 442 US. 771. 781 (1979)
9 Eserx Internatinal. hic.. 211 NLRB 749. 75(0 1974)
*" This restriction reaches.c g.. the employees' circulation at the Home
of copies of the notice form attached to the circuit curt of appeals deci-
sion provided employees at the June I.i, 180). nlecting
Wayn. Hone Equipment (ompanvo. Inc., 229 N RB 654 (I177). and
cases cited at 657.
805
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees sought to utilize at least with respect to disciplinary
procedures and working conditions, and "adjusted" work
problems, including those concerned with disciplinary
matters. Respondent has thus independently violated
Section 8(a)(5) and (1) of the Act by soliciting and ad-
justing grievances through the grievance procedure con-
tained in its employee policy manual without providing
the Union an opportunity to be present at the adjust-
ment.4 2
CONCLUSIONS OF LAW
1. Wellington Hall Nursing Home, Inc., is an employer
engaged in commerce within the meaning of Section 2(2)
and (6) of the Act.
2. 1115 Nursing Home and Hospital Employees Union,
Division of 1115 Joint Board, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Usil Figaro on June 21, 1980; dis-
charging Sandra McCadney on June 21, 1980; issuing a
written evaluation on June 21, 1980, and discharging
Paula Morris on June 21, 1980; discharging Lois Wells
on June 22, 1980; issuing a written evaluation on June 20,
1980, and discharging David Jarvis on June 23, 1980; is-
suing a written evaluation on June 27, 1980, and dis-
charging Elizabeth Foley on June 27, 1980; issuing a
written warning on June 26, 1980, and discharging
Helena Goldsmith on June 30, 1980; issuing written
warnings on June 26 and August 13, 1980, and discharg-
ing Virginia Hale on August 27, 1980; and issuing writ-
ten warnings on July 13, September 19, and October 25,
1980, and discharging Annie Thomas on October 25,
1980, Respondent violated Section 8(a)(3) and (1) of the
Act.
4. By maintaining invalid no-solicitation and no-distri-
bution rules, Respondent violated Section 8(a)(1) of the
Act.
5. By soliciting and adjusting employee grievances
without providing the Union an opportunity to be pres-
ent at the adjustment, Respondent violated Section
8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. Respondent has committed no unfair labor practices
affecting commerce alleged in the complaint except as
set out above.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. In-
asmuch as Respondent has demonstrated that it has a
proclivity to violate the Act even after its actions have
been adjudicated unlawful, I find it appropriate to rec-
ommend a broad order requiring Respondent to cease
and desist from "in any other manner," interfering with,
restraining, or coercing employees in the exercise of
their Section 7 rights to organize and bargain collective-
2 The Dow Chemical Company, 227 NLRB 1(X)5 (1977).
ly or to refrain from such activities.43 Affirmative actions
shall include the posting of the usual information notice
to employees, the expunging of the unlawfully issued
warnings and evaluations from Respondent's personnel
records and files, offers of reinstatement to the nine
named employees to their former jobs or, if no longer
available, to substantially equivalent positions, without
prejudice to their seniority and other rights and privi-
leges, and making them whole for any losses of earnings
or other monetary losses they may have suffered as a
result of the discriminations against them in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest to be computed in the manner de-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962), enforcement denied on other grounds
322 F.2d 913 (9th Cir. 1963).
I shall also recommend that Respondent be restrained
from maintaining unlawful no-solicitation and no-distri-
bution rules or from adjusting employee grievances pur-
suant to the grievance procedure contained in its em-
ployee policy manual.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 44
The Respondent, Wellington Hall Nursing Home, Inc.,
Hackensacks, New Jersey, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Issuing written warnings or evaluations, discharg-
ing or otherwise discriminating against employees in
regard to their hire, tenure of employment, or other
terms and conditions of employment in order to discour-
age membership in or support of 1115 Nursing Home
and Hospital Employees Union, Division of 1115 Joint
Board, or any other labor organization.
(b) Promulgating or maintaining any rule or regulation
prohibiting its employees, when they are on nonworking
time, from distributing handbills or similar literature on
behalf of, or from soliciting other employees to support,
1115 Nursing Home and Hospital Employees Union, Di-
vision of 1115 Joint Board, or any other labor organiza-
tion in areas other than immediate patient care areas on
the Home's premises.
(c) Instituting and maintaining a procedure to solicit
bargaining unit grievances and to adjust bargaining unit
43 See Hickmorr Foods. Inc., 242 NLRB 1357 (1979). Neither the Gen-
eral Counsel nor the Union has requested any special or extraordinary
remedies so as to overcome what appear to be particularly outrageous
and pervasive violations of the Act I have accordingly refrained from
incorporating in my recommended remedy any additional remedies of
such nature other than the broad form cease-and-desist order.
44 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. he adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall he deemed swaived for all purposes
806
WELLINGTON HALL NURSING HOME. INC.
grievances, without giving the Union an opportunity to
be present at the adjustment.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights to
self-organization, to form, join, or assist 1115 Nursing
Home and Hospital Employees Union, Division of 1115
Joint Board, or any other labor organization, to bargain
collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer to Usil Figaro, Sandra McCadney, Paula
Morris, Lois Wells, David Jarvis, Elizabeth Foley,
Helena Goldsmith, Virginia Hale, and Annie Thomas im-
mediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their se-
niority and other rights and privileges, and make them
whole in the manner described in the section of this De-
cision entitled "The Remedy."
(b) Rescind and expunge from all personnel records
and files, and any other records, all copies of the written
warnings issued to Virginia Hale on June 26 and August
13, 1980, Helena Goldsmith on June 26, 1980, Annie
Thomas on July 13, September 19, and October 25, 1980,
and all copies of the written evaluations issued to David
Jarvis on June 20, 1980, Paula Morris on June 21, 1980,
and Elizabeth Foley on June 27, 1980.
(c) Rescind its rules restricting the areas and times in
which employees may solicit or distribute handbills or
related materials on behalf of labor organizations as they
apply to times other than working time and to areas
other than immediate patient care areas.
(d) Discontinue the grievance procedure described in
the employee policy manual as it applies to employees in
the bargaining unit represented by 1115 Nursing Home
and Hospital Employees Union, Division of 1115 Joint
Board.
(e) 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.
(f) Post at its nursing home facility in Hackensack,
New Jersey, copies of the attached notice marked "Ap-
pendix. " 4 Copies of said notice, on forms provided by
the Regional Director for Region 22. after being duly
signed by representative of Respondent, shall be posted
by immediately upon receipt thereof, and be maintained
by 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.
(g) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges that Respondent violated the
Act in ways not specifically found herein.
" 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
807