American Geri-Care, Inc.,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1116 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Geri-Care, Inc. and Local 144, Hotel,
Hospital, Nursing Home and Allied Health
Services Union, Service Employees Internation-
al Union, AFL-CIO and Local 6, International
Federation of Health Professionals, Internation-
al Longshoremen's Association, AFL-CIO.
Cases 29-CA-7629, 29-RC-4765, and 29-CA-
7679
September 30, 1981
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 15, 1981, Administrative Law Judge D.
Barry Morris issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief and the Charging
Party filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order,3 as
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We note, however, that the correct spelling of the alleged discriminatee's
name is Shirley Anenburn.
The Administrative Law Judge found, at sec. IV,A,4, par. 1, of his De-
cision, that Assistant Director of Nursing Wilson gave Anenburn permis-
sion to leave the Home, on November 20. This is incorrect it was Assist-
ant Director of Nursing Palma who gave Anenburn permission to leave
the Home on that date. The Administrative Law Judge also found. at sec
IV,B,2, par. 3, of his Decision, that employee Charles testified that Direc-
tor of Nursing Services Milano had promised the employees a good
"package deal" if they voted for management. Charles actually testified
that Milano had promised employees a good "contract" if they oted for
management. This discrepancy does not detract from our agreement with
the Administrative Law Judge's legal conclusions on the issue
2 In arguing that Anernburn was lawfully discharged, Respondent al-
leges that Assistant Director of Nursing Palma was also discharged for
the same incident. The discharge of Palma in no way affects our finlding
that Anenburn was unlawfully discharged.
Because Respondent's asserted lawful reason for the discharge of Shir-
ley Anenburn is pretextual, as the Administrative Law Judge found.
Member Jenkins considers the Administrative Law Judge's reliance on
Wright Line. a Division of Wright Line. Inc.. 251 NLRB 1083 (1980), to be
unnecessary, though it does not invalidate his conclusion.
I Member Jenkins would award interest on the backpay due in accord-
ance with his dissent in Olvnpic Medical Corporation, 250 NIRB 146
(1980).
258 NLRB No. 147
modified herein. 4 We shall direct that a second
election be held.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
American Geri-Care, Inc., Brooklyn, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraph accordingly:
"(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
' We have modified the Administrative Law Judge's recommended
Order to include a provision that all pertinent records be made available
to the Board for the purpose of computing backpay. We have also modi-
fied the Administrative Lasw Judge's proposed notice to conform with his
recommended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
1116
AMERICAN GERI-CARE. INC.
WE WILL NOT harass or discharge you for
engaging in union activities.
WE WIl.L NOT promise or grant you benefits
to induce you to vote against a union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of rights guaranteed you by Section 7
of the National Labor Relations Act, as
amended.
WE WILL offer Shirley Anenburn full and
immediate reinstatement to her former position
or, if that job no longer exists, to a substantial-
ly equivalent position, without prejudice to her
seniority or any other rights or privileges pre-
viously enjoyed, and WE WILL make her
whole for any loss of earnings she may have
suffered by reason of the discrimination against
her, plus interest.
AMERICAN GERI-CARE, INC.
DECISION
STATEMENT OF THE. CASE
D. BARRY MORRIS, Administrative Law Judge: This
case was heard before me in New York City on October
16, 28, and 29, November 25 and 26, December 10 and
17, 1980, and January 7, 8, and 12, 1981. Charges were
filed by Local 144, Hotel, Hospital, Nursing Home and
Allied Health Services Union, SEIU, AFL-CIO (herein
called Local 144), on November 28, 1979, and by Local
6, International Federation of Health Professionals, Inter-
national Longshoremen's Association, AFL-CIO (herein
called Local 6), on January 4, 1980. Complaints were
issued on January 10 and February 29, 1980, alleging
that American Geri-Care, Inc. (herein called Respond-
ent), violated Section 8(a)(1), (2), (3), and (4) of the Na-
tional Labor Relations Act, as amended. Respondent
filed answers denying the commission of the alleged
unfair labor practices.
On October 29, 1979,' Local 144 filed a representation
petition in a unit of registered nurses employed by Re-
spondent. On November 15 the parties entered into a
Stipulation for Certification Upon Consent Election. Pur-
suant thereto a secret ballot election was held on Decem-
ber 20. Of the approximately 13 eligible voters, 9 valid
ballots were cast, I of which was challenged. Of the
eight valid votes counted, five were cast against the par-
ticipating labor organizations, three were cast for Local
144, and none was cast for Local 6.
On December 28 Local 144 filed timely objections to
the election. On April 28, 1980, the Regional Director
for Region 29 issued a "Report On Objections and Order
Consolidating Cases and Notice of Hearing." With re-
spect to the objections to the conduct of the election, the
Regional Director recommended that Objections 2, 5,
and 6 be overruled and that a hearing be held on the
issues raised by Objections 1, 3, and 4 and the allegations
'All dates refer to 1979 unless otherwise specificd
in the complaints in Cases 29-CA-7629 and 29-CA-7679.
The cases were consolidated for the purpose of hearing,
ruling, and decision by an administrative law judge.
The parties were given full opportunity to participate,
to produce evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs were
filed by counsel for Respondent and counsel for Local
144.
Upon the entire record of the case, including my ob-
servation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINIESS OF RESPONDENT
Respondent, a New York corporation, with its princi-
pal office and place of business in Brooklyn, New York,
provides health care, staffing, and related services.
During the 12 months preceding the issuance of the com-
plaint, Respondent performed services valued in excess
of $50,000 for various nursing homes, including the Ais-
chel Avraham Nursing Home, which has an annual gross
revenue in excess of $100,000. Respondent admits that it
is engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and I so find.
II. THE I.ABOR ORGANIZATIONS INVOLVED
Local 144 and Local 6 are labor organizations within
the meaning of Section 2(5) of the Act.
Ill. THE ISSUES
The complaint in Case 29-CA-7629 alleges that Re-
spondent violated the Act by harassing, discharging, and
failing to reinstate an employee because of her union ac-
tivities and for soliciting employees to join Local 6. The
complaint in Case 29-CA-7679 alleges that Respondent
violated the Act by directing its employees to vote
against both Local 6 and Local 144 and by promising
benefits on the day before the election was to take place.
Pursuant to the report on objections to the election, I am
to decide whether unlawful promises of benefits were
made by Respondent during the period between the
filing of the petition and the date of the election, and
whether in the 24-hour period prior to the election Re-
spondent directed the employees not to vote for the
Unions and conferred upon them an unlawful benefit.
The issues, accordingly, are:
I. Whether Respondent harassed, discharged, and
failed to reinstate one of its employees for her union ac-
tivities.
2. Whether this employee was a supervisor.
3. Whether Respondent solicited employees to join
Local 6.
4. Whether Respondent unlawfully promised benefits
to its employees.
5. Whether Respondent held a meeting in the 24-hour
period prior to the election at which time it instructed
employees to vote against the Unions and at which time
it conferred an unlawful benefit.
1117
DECISIONS ()OF NATIONAL. L.ABOR RELATI()NS B(OARI)
IN
'
. H FAC S
A. C.se 29-CA-7629
1. Background
On October 29 Local 144 filed a representation peti-
tion in Case 29-RC-4765 for a unit of registered nurses
employed by Respondent at Aischel Avraham Nursing
Home in Brooklyn, New York (herein the Home). On
November 15. Respondent, Local 144, and Local 6 ex-
ecuted a Stipulation for Certification Upon Consent
Election. On the same day Shirley Annenburn, a regis-
tered nurse at the Home, was subpenaed to appear at the
Board's office in Region 29 on behalf of Local 144 at a
representation hearing in Case 29-RC-4765. On Novem-
ber 16 Annenburn was handed a warning slip for late-
nesses occurring during the period from September 8
through November 3. On November 17 Annenburn's re-
quest for leave, which had been submitted a month earli-
er, was rejected. On November 20 Annenburn's request
for half a day off was denied and on November 21 An-
nenburn was discharged.
Approximately 2 weeks prior to the election Evelyn
Milano, director of nursing services for Respondent, held
a meeting with approximately eight of the registered
nurses. At this time Milano told the employees that they
should vote for management. The election took place on
December 20 at which time five votes were cast against
the participating labor organizations and three votes
were cast for Local 144.
2. Supervisory status of Annenburn
Shirley Annenburn was employed at the Home from
July 18 until November 21 as a charge nurse on the third
floor of the Home. She was supervised by Elsa Wilson,
assistant director of nursing. She worked the morning
shift from 7 a.m. until 3:30 p.m. and had under her a li-
censed practical nurse and five or six aides. Annenburn
credibly testified that she assigned work to the employ-
ees on her floor but she did not hire, fire, promote, trans-
fer, or recommend the suspension or transfer of any em-
ployees. She testified that her duties and responsibilities
were the same as the other registered nurses at the
Home. Yasmin Damji, also a charge nurse of the Home,
similarly testified with respect to her duties. She credibly
testified that she did not have authority to hire, fire, or
suspend employees. She testified that as part of her pro-
fessional responsibilities she directed the aides and order-
lies on her floor. She further credibly testified that if one
of the employees would come to her with a problem she
would send that employee to her supervisor. Evelyn
Milano, director of nursing services, testified that all reg-
istered nurses had the authority to reprimand employees
and to issue warning slips. However, Juanita Palma, as-
sistant director of nursing, credibly testified that before a
charge nurse gave a warning slip she had to inform her
supervisor, and that she did not know of any registered
nurses having given anyone a warning slip. Elsa Wilson,
assistant director of nursing since May 1980, testified that
Annenburn was not a supervisor and Gary Stern, a cor-
porate officer of Respondent, testified that the only su-
pervisors were the director and assistant director of nurs-
ing and the in-service coordinator.
3. Harassment of Annenburn
Paragraph 10 of the complaint in Case 29-CA-7629 al-
leges that during the period November 16-20 Respond-
ent harassed Annenburn by issuing a written warning to
her, by denying her vacation, by requiring her to submit
a doctor's note for being absent, by denying her time off,
and by engaging in increased surveillance of her work.
Annenburn testified that in October 1979 she signed an
authorization card for Local 144 and attended a meeting
conducted by Local 144. She also testified that she spoke
with several employees of Respondent concerning Local
144. Palma, who impressed me as being a particularly
credible witness, testified that around November 7
Milano told her that Annenburn had attended a union
meeting. Palma further testified:
Q. Ms. Palma, do you recall any other conversa-
tions that you had with Ms. Milano with respect to
Mrs. Annenburn?
A. Yes, Ms. Milano said that if they . . . put a
two-union in the building, she would have to leave,
she told us, she told us in front of the supervisors.
As previously stated, on November 15 Annenburn was
subpenaed to appear at Region 29 on behalf of Local 144
at a representation hearing in Case 29-RC-4765. Annen-
burn testified that Stern and Milano were also present at
the hearing. Stern corroborated this testimony.
a. Written warning
The complaint in Case 29-CA-7629 alleges that one of
the ways in which Respondent harassed Annenburn was
by issuing a written warning to her during the period im-
mediately following her appearance at a Board hearing.
Annenburn credibly testified that on November 16
Wilson handed her a warning slip for latenesses occur-
ring during the period from September 8 through No-
vember 3, the majority of these occurring in October.
Annenburn credibly testified that she had been given
verbal permission for the latenesses and she further cre-
dibly testified that this was the first time that she was
issued a written warning for being late.
I credit Annenburn's testimony and find that the warn-
ing slip was issued because of Annenburn's involvement
with Local 144 and her appearance pursuant to subpena
at a hearing conducted by the National Labor Relations
Board on November 15.
b. Denial of vacation
On October 19 Annenburn requested 2 weeks' leave
for purposes of her wedding, the leave to commence on
December 29. On November 16, the day after receiving
the warning slip with respect to the latenesses, Annen-
burn received a written rejection of her request for
leave. Although Milano denied knowledge that Annen-
burn requested the leave for purposes of getting married,
I credit Palma's testimony that around November 7
Milano told her that she knew Annenburn requested
Ill8
AMERICAN (it'RI-CARE, INC
leave because she was getting married. Palma further
credibly testified as follows:
Q. Were there any other conversations that you
can recall having with Ms. Milano as it relates to
Mrs. Annenburn?
A. Yes, it's about the time when Mrs. Annenburn
was requesting the time off. I mean days off, I
think.
Q. Do you recall what was said'?
A. She said she was not going to give her the
time off and she wants her out.
Although Annenburn requested time off as early as
October 19, the denial came immediately on the heels of
the warning slip, which was given the day after Annen-
burn's appearance at the Board hearing. I find that the
refusal to grant the leave was another step in the harass-
ment of Annenburn for her union-related activities.
c. Refusal to submit doctors note and denial of half a
dav off
The complaint further alleges that Respondent har-
assed Annenburn by requiring that she submit a doctor's
note after being absent I day because of illness and by
denying her request for half a day off. Annenburn testi-
fied that she was ill on November 18 and was off duty
on November 19. On November 20, when she appeared
for work, she was asked to submit a doctor's note. Re-
spondent's Exhibit 6 clearly states that anyone who is ill
a day prior to a day off must submit a note from a physi-
cian before restarting duty. I find that, with respect to
the request for a doctor's note, the General Counsel has
not sustained his burden of showing that such request
was made to harass Annenburn because of her union ac-
tivities.
At the beginning of the shift on November 20 Annen-
burn testified that she asked for half a day off. Milano
testified that Annenburn asked to leave at 12 o'clock that
day at which point Milano stated, "It's very short notice,
I can't possibly get someone to replace you now."
Based on the testimony, I find that the General Coun-
sel has not sustained his burden of showing that the
denial of half a day off was a part of Respondent's ha-
rassment of Annenburn for her union activities.
d. Surveillance of Annenburn s work
The complaint alleges that subsequent to November 16
Rabbi Wurtzberger, the Home chaplain, engaged in in-
creased surveillance of Annenhurn's work. Annenburn
testified that subsequent to November 16 Rabbi Wurtz-
berger was "just continuously on my heels all the time,
always around-like I said, if I'm in the elevator, he's
there. If I'm in the coffee shop-wherever I am the rabbi
is there." No one substantiated Annenburn's allegation of
surveillance. In uncontroverted testimony Stern stated
that Rabbi Wurtzberger was not an employee of Re-
spondent nor was he an agent of Respondent. This was
corroborrated by Milano. Based upon the testimony, the
General Counsel has not sustained his burden of showing
that Rabbi Wurtzberger was an agent of Respondent nor
that he engaged in surveillance of Annenburn's work.
4. Discharge of Annenhurn
Annenburn testified that on the morning of November
20, while she was doing her nursing duties on the third
floor. she received a telephoine call telling her that her
mother had taken ill. Annenburn also testified that a call
had been placed earlier that morning to the Home with
the information that Annenburn's mother had taken ill.
Annenburn then proceeded to the nursing office to find
out why she had not received the prior call. Anneniburn
encountered WilsoL in the elevator, on her way to the
nursing office. After a short conversation Wilson gave
Annenhurn permission to leave,. at which time Annin-
burn returned to the third floor, took her coat, punched
out, and went home. Later that evening, Annenburn re-
ceived a telephone call from Milano who said that An-
nenburn would be required to bring a note from a physi-
cian stating that Annenburn's mother was hospitalized.
Annenburn replied that her mother was a diabetic and
had taken ill but was not hospitalized and that Annen-
burn would not be able to produce a note from a physi-
cian.
Annenburn further testified that on November 21,
when she came to work, her punchcard was not in the
usual place. When she got to the third floor she was told
that she was wanted in the nursing office. Annenburn
then met with Stern who, after refusing to meet with her
in the presence of another employee, told her. "[Y]ou
may go home and don't come back."
Stern testified that Annenburn was discharged because
"she abandoned a dying patient." The patient involved
was Serena Dimant, who was a patient on the third floor
of the Home. Palma testified that on the morning of No-
vember 20 she was paged by Annenburn who stated that
she would need help on the third floor because Dimant
was having difficulty breathing. When Palma arrived in
the patient's room she observed Annenburn checking the
patient's vital signs. Palma asked Annenburn to get
oxygen and administer it to the patient. Palma testified
that Annenburn administered the oxygen to the patient
and, while Annenburn was attending the patient. Palma
went to call for an ambulance. Palma testified that An-
nenburn was performing her duties properly as they re-
lated to Dimant. Palma further testified that Annenburn
was an "efficient nurse" and "she brought the oxygen
right away to the patient [a]nd she did what she ha[d] to
do."2
Annenburn credibly testified that "from the time I
began working, until one day after I came to the Labor
Board, I had no problem from my supervisors. I had no
complaints from them as to my job." She also credibly
testified that she was commended by both Milano and
the in-service instructor for the work she was performing
on the third floor.
Annenburn's and Palma's testimony was in large meas-
ure corroborated by the testimony of Wilson, Annen-
burn's supervisor and, since May 1980. assistant director
of nursing. Wilson testified that she observed Palma and
Hackshaw, a licensed practical nurse, administering to
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dimant. Wilson testified that Annenburn was also on the
floor at that time. She further testified that Palma gave
Annenburn permission to leave the Home that day. In
this regard Stern conceded that Palma had the authority
to give permission to Annenburn to leave.
Both Milano and Stern testified that they were dissatis-
fied with Annenburn for leaving a sick patient and ac-
cordingly decided that she would be terminated. I regard
this reason as clearly pretextual. The evidence is uncon-
troverted that one or two registered nurses, namely,
Palma and Wilson, and a licensed practical nurse, Hack-
shaw, were administering to Dimant. In addition, I credit
the testimony of Palma that Annenburn was taking
proper care of the patient and administered oxygen to
her when it became necessary. Furthermore, Milano con-
ceded that both she and Stern knew, before they termi-
nated Annenburn, that Palma had given permission to
Annenburn to leave the Home.
I find that Annenburn gave proper care to the patient,
Dimant. She was then given permission by Palma, who
had authority to give such permission, to leave the
Home. Milano and Stern knew that she was given that
permission before they terminated her. I find that Annen-
burn's termination was a culmination of events which
started with the giving of the warning notice and then
the refusal to approve the request for leave. These ac-
tions were taken by Respondent because of Annenburn's
activity on behalf of Local 144 and because of her ap-
pearance at the Board hearing on November 15.
5. Offer of reinstatement
The complaint alleges that Respondent has failed to re-
instate Annenburn to her former position of employment.
Respondent, on the other hand, claims that an offer of
reinstatement was made. Respondent's Exhibit 3 is the
confirmation copy of a telegram dated January 25, 1980,
addressed to Annenburn which states, "You are hereby
offered reinstatement at American Geri-Care, Inc. This
position will be held open for you until Wednesday, Jan-
uary 30, 12 noon." Respondent's Exhibit I is the confir-
mation of a telegram dated January 30, 1980, again ad-
dressed to Annenburn, which states, "Having not heard
from you regarding our offer of reinstatement at Ameri-
can Geri-Care, Inc., we wish to inform you that we are
extending our offer of reinstatement until 12 noon,
Friday, February 2." Annenburn testified that she re-
ceived both of the telegrams; however, she believed that
one of them was received after the deadline. She did not
know which of the two telegrams was received after the
deadline.
6. Solicitation of employees to join Local 6
The complaint in Case 29-CA-7629 alleges that during
November and December Respondent solicited its em-
ployees to sign cards designating Local 6 as their repre-
sentative for collective-bargaining purposes and urged
and solicited its employees to join Local 6. Wilson testi-
fied that she "mentioned to Mrs. Annenburn that a man
from Local 6 was on the floor." She denied that she ever
directed Annenburn to sign a card for Local 6. She fur-
ther testified that she did not have any conversations
with Annenburn with regard to Local 6. While on direct
examination Annenburn testified that Wilson asked her to
speak to a representative from Local 6 and to sign a card
for Local 6, on cross-examination Annenburn conceded
that Wilson simply told her "there is a man downstairs
that represents Local 6." Annenburn further testified on
cross-examination that Wilson did not show her a card
for Local 6, that she did not meet the Local 6 repre-
sentative, and that "he wasn't there on my time." Damji
credibly testified that no one ever told her to vote for
Local 6 and Palma credibly testified that she did not
know of anyone being asked to sign a card for Local 6.
Other than Annenburn's testimony on direct examina-
tion, which was modified on cross-examination. there
was no testimony that the employees were urged or so-
licited to vote for Local 6. Accordingly, the General
Counsel has not sustained his burden of proving this alle-
gation and the allegation is therefore dismissed.
B. Case 29-CA-7679
1. Direction to vote against the Unions
Paragraph 9 of the complaint in Case 29-CA-7679 al-
leges that on or about December 19 Milano directed the
employees to vote against both Local 6 and Local 144
and "particularly to vote against Local 6." William
Perry, president of Local 6, testified that he overheard a
conversation between Milano and four or five nurses "to
vote against the union; but if you have to vote, you and
your co-workers, be sure do not vote or something like
that, do not place your mark in the box that would re-
flect a vote for Local 6." When questioned as to the date
of the meeting, Perry testified, "It could have been the
eighteenth, it could have been the nineteenth, it could
have been the seventeenth." When asked to describe the
people who were at the meeting, Perry testified:
A. I think maybe one was a man, or two, I'm not
sure now.
Q. You're not sure?
A. Yeah, and there was women there too. It was
a year ago. I got fifteen other cases on my mind al-
ready.
Damji testified that, approximately 2 weeks before
Christmas, Milano had a meeting with herself, a Mrs.
Charles and a Mrs. Varges, at which time Milano told
them that she would like them to vote for management.
Charles testified concerning the meeting at which Damji
was present, and stated that there was only one such
meeting. 3 She testified that Milano stated, "[T]he Compa-
ny has a good package deal for the RN's and that she
couldn't say specifically because that was illegal." She
further testified that Milano showed them a sample ballot
similar to the General Counsel's Exhibit 5 but that no
"X" was placed in any of the boxes. In addition, Charles
' While Charles testified that the meeting took place on December 19.
she also testified that Damji was present at the meeting and there was
only one such meeting. I credit Damji's testimony that this meeting took
place 2 weeks before Christmas anrid conclude that Charles was mistaken
about the date. In this regard, Respondent's motion to strike Charles' tes-
timony is denied
1120
AMERICAN GERI-CARE. INC.
testified that she did not recall Perry's presence at the
meeting. Milano testified that there was a meeting be-
tween herself and the registered nurses "a couple of
weeks before the election." She testified that Damji and
Charles attended the meeting, at which time she told the
nurses "that management had been fair to them and that
I felt that they should vote for management." She fur-
ther testified that she did not speak to an assembled
group of registered nurses on December 19.
I credit Damji's and Milano's testimony that the meet-
ing took place several weeks prior to the election. In his
testimony, Perry was very uncertain as to the precise
events. He thought that the day of the meeting may have
been December 17, 18, or 19 and he could not recall
who was at the meeting. His remarks were, "It was a
year ago. I got fifteen other cases on my mind already."
His uncertainty as to the events is further evidenced by
his testimony that the General Counsel's Exhibit 5 was
handed out at that meeting. That exhibit shows an "X"
in the box marked Local 144. I credit Charles' testimony,
however, that the sample ballot which was handed out
contained no "X" in any of the boxes.
In view of Perry's testimony that he was standing ap-
proximately 10 to 15 feet away from the group, and that
Milano's back was towards him, I believe that he was
mistaken as to some of the events as to which he testi-
fied. The evidence does not sustain the allegation that
the meeting took place on December 19. In addition, no
witness other than Perry testified that Milano told the
nurses to vote against the Unions and "particularly to
vote against Local 6." Accordingly, the General Counsel
has not sustained his burden of proof and the allegation
is dismissed.
2. Promise of benefits
Paragraph 10 of the complaint in Case 29-CA-7679 al-
leges that on or about December 19 Respondent prom-
ised, and on or about January 3, 1980, Respondent grant-
ed, wage increases and other benefits to its employees, to
induce them to vote against the Unions. The parties stip-
ulated that the registered nurses received a wage in-
crease and an additional week's vacation, effective Janu-
ary 1, 1980.
Damji testified that at the meeting held 2 weeks before
Christmas Milano told the nurses to vote for manage-
ment. She further testified that Milano said, "[T]he nurs-
ing home is already negotiating pay raises and benefits
that the employees were asking for, and that the employ-
ees should vote for management." Charles testified that
Milano said the following at the meeting:
A. Yes, we were also told if we should vote for
Administration that's when we would have the
good contract. It would be showed to us the day
after the election, as long as Administration wins
the election.
Q. Did there come a time after that meeting
when there was a change in your salary?
A. Yes, we get a raise of pay.
Q. Do you recall when you received such a
raise?
A. Maybe a month later.
As stated above, I have found that the meeting took
place not on December 19, but approximately 10 days to
2 weeks previously. I credit Charles' testimony that
Milano said that if the employees voted for management
they would get a good contract and that "the company
had a good package deal for the RN's." I find that this
constituted an unlawful promise of benefits and that ef-
fective January 1, 1980, the employees were granted a
wage increase and were given an additional week's vaca-
tion.
C. Objections to the Election
Objection I to the election alleges that, during the
period between the filing of the petition and the date of
the election, Respondent attempted to induce its employ-
ees to abandon their support of Local 144 by making un-
lawful promises of benefits. As discussed above, I have
found that approximately 10 days prior to the election
Respondent made an unlawful promise of benefits.
Objections 3 and 4 allege that, during the 24-hour
period prior to the election, Respondent held a meeting
of its employees at which time it attempted to induce
them to abandon their support of Local 144 and also
conferred upon them an unlawful benefit. As I found
above, the record does not sustain the allegation that
such a meeting took place during the 24-hour period
prior to the election.
V. DISCUSSION AND CONCLUSIONS
A. Supervisory Status of Annenburn
Respondent and Local 6 contend that Annenburn's
duties as charge nurse were such as to require a finding
that Annenburn was a "supervisor" within the meaning
of Section 2(11) of the Act.
Based on the testimony, detailed above, I find that the
duties and responsibilities of Annenburn, as charge nurse,
were the same as the other registered nurses at the
Home. As part of her professional responsibilities, An-
nenburn directed the aides and orderlies on her floor.
She did not have authority to hire, fire, or suspend em-
ployees.
As the Board stated in Meharry Medical College, 219
NLRB 488, 490 (1975):
[I]t appears that charge nurses do not exercise any
real supervisory authority on behalf of management
over employees. Rather, their duties are for the
most part routine, involving the general direction of
employees in the performance of their normal pa-
tient care duties and, as such, the charge nurses
function more in the nature of lead persons. Even
assuming that charge nurses may exercise some su-
pervisory authority, the fact that they may do so
only for a short period of time and on a sporadic
basis would not require their exclusion from the
unit. Accordingly, based on the evidence discussed
above, we find that charge nurses are not supervi-
sors .
1121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under Board cases, Annenburn's duties as charge
nurse do not bring her into the category of "supervisor."
See Wing Memorial Hospital Association, 217 NLRB 1015
(1975); Eventide South, a Division of Geriatrics, Inc., 239
NLRB 287 (1978). Indeed, Milano conceded that Annen-
burn was not a supervisor and Stern testified that the
only supervisors were the director and assistant director
of nursing and the in-service coordinator. Accordingly, I
conclude that Annenburn was not a "supervisor" within
the meaning of Section 2(11) of the Act.
B. Harassment and Discharge of Annenburn
As detailed above, in October Annenburn signed an
authorization card for Local 144 and attended a meeting
conducted by Local 144. On November 15 she was sub-
penaed to appear at a Board representation hearing on
behalf of Local 144. I find that the warning issued to her
on November 16 and the denial of vacation on Novem-
ber 17 were steps taken by Respondent because of An-
nenburn's activities on behalf of Local 144 and because
of her attendance at the representation hearing. These
acts by Respondent constitute violations of Section
8(a)(1) and (4) of the Act.
With respect to Respondent's discharge of Annenburn,
Respondent clearly knew of Annenburn's union activity.
On November 7 Milano told Palma that Annenburn had
attended a union meeting. In addition, Stern and Milano
were present at the representation hearing at which An-
nenburn appeared pursuant to subpena. Also, Respond-
ent's animus towards Local 144 has been demonstrated. I
have credited Palma's testimony that Milano said, "[I]f
they put . . . two-union[s] in the building, she would
have to leave." Finally, by adducing the evidence of the
discharge occurring within a few days of Annenburn's
appearance at the Board hearing, and upon the heels of
the warning and the denial of vacation, the General
Counsel has made a prima facie showing to support the
inference that protected activity was a motivating factor
in Respondent's decision to discharge. See Wright Line, a
Division of Wright Line, Inc., 251 NLRB 1083 (1980).
As noted above, I regard Respondent's contention that
Annenburn was terminated for leaving a sick patient as
mere pretext. Clearly, therefore, Respondent has not
shown that the "same action would have taken place
even in the absence of the protected conduct." See Lime-
stone Apparel Corp., 255 NLRB 722 (1981). Accordingly,
I conclude that Respondent, by its discharge of Annen-
burn, violated Section 8(a)(1), (3), and (4) of the Act.
C. Offer of Reinstatement
The record contains confirmation copies of two tele-
grams sent by Respondent to Annenburn, offering rein-
statement. Annenburn testified that she believed one of
the telegrams was received after the deadline stated in
the telegram. She did not know which of the two tele-
grams was received after the deadline.
An offer of reinstatement may be effective if it was
made in good faith and in a manner in which it could
reasonably be anticipated that the employee would re-
ceive timely notice of the offer. See Knickerbocker Plastic
Co., Inc., 132 NLRB 1209, 1236 (1961). While Annen-
burn testified that she received one of the telegrams after
the deadline, and the other shortly before the deadline,
the record does not contain any details concerning the
circumstances surrounding the alleged delay in Annen-
burn receiving notification of the telegrams. Because the
matter has not been fully litigated, I am unable to decide
whether Respondent's offer tolled its backpay liability
and satisfied its reinstatement obligation. In accordance
with Board precedent, the resolution of this should be
left to the compliance stage of the proceeding. See Air-
ports Service Lines, Inc., 218 NLRB 1160, 1161 (1975).
D. Promise and Grant of Benefits
Section 8(a)(1) of the Act proscribes an employer's
promise of benefits to its employees to influence them to
refrain from supporting a union. N.L.R.B. v. Exchange
Parts Company, 375 U.S. 405 (1964). The promise of
benefits need not be explicit to violate the Act. The
Board has held that an implied promise of benefits also
violates Section 8(a)(1). See Servomation, Inc., 237 NLRB
48, 52 (1978), enfd. 603 F.2d 762 (9th Cir. 1979).
In Arrow Molded Plastics, Inc., 243 NLRB 1211, 1214,
1215 (1979), the Board found a violation of Section
8(a)(1) for an implied promise of benefits. The employ-
er's representative stated that, "our policy is to pay equal
or greater than what is being paid in our area for similar
work by similar companies." In addition, the employer's
representative testified that he informed employees that
he "hoped to prepare recommendations ... but had re-
ceived legal advice not to do so because it might be con-
sidered an implied promise of benefit . . . that would be
an unfair labor practice . . . ."
I have credited Charles' testimony that Milano told
the employees that "the company had a good package
deal for the RN's and that she couldn't say specifically
because it was illegal." This testimony is strikingly simi-
lar to that in Arrow, supra, where the Board found a vio-
lation of Section 8(a)(1).
Accordingly, I conclude that Respondent unlawfully
promised benefits to its employees in violation of Section
8(a)(1). In addition, the subsequent grant of benefits, soon
after the election took place, also violated Section
8(a)(l). See The Stride Rite Corporation, 228 NLRB 224
(1977).
E. Objections to the Election
As indicated above, I have found that the record does
not sustain the allegation that Respondent held a meeting
of its employees during the 24-hour period prior to the
election. Accordingly, Objections 3 and 4 are overruled.
Objection I alleges that Respondent attempted to
induce its employees to abandon their support of Local
144 by making an unlawful promise of benefits. I have
found that during the preelection period Respondent
promised benefits in violation of Section 8(a)(1). This, a
fortiori, is a ground for setting aside the election. See
Dal-Tex Optical Company, Inc., 137 NLRB 1782 (1962);
Derby Refining Company, 235 NLRB 12, 17 (1978).
In addition, I have found that Respondent engaged in
unfair labor practices through its harassment and dis-
charge of Annenburn for her union-related activities. As
1122
AMERICAN GERI-CARE. INC.
the Board stated in Dal-Tex, supra at 1786, "[c]onduct
violative of Section 8(a)(1) is, a fortiori, conduct which
interferes with the exercise of a free and untrammeled
choice in an election." See also Highview, Incorporated,
231 NLRB 1251, 1259 (1977).
Accordingly, I conclude that Respondent, by its con-
duct, interfered with the "laboratory conditions" re-
quired for a free election. Such conduct mandates that
the election be set aside.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 144 and Local 6 are labor organizations
within the meaning of Section 2(5) of the Act.
3. By issuing a warning slip and denying a request for
leave to Shirley Annenburn because of her union-related
activities and because of her appearance at a representa-
tion hearing, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (4) of
the Act.
4. By discharging Annenburn for her union-related ac-
tivities and because of her appearance at a representation
hearing, Respondent has engaged in an unfair labor prac-
tice within the meaning of Section 8(a)(1), (3), and (4) of
the Act.
5. By promising and granting employees benefits to
induce them to refrain from supporting Local 144 and
Local 6, Respondent has engaged in an unfair labor prac-
tice within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
7. Respondent did not violate the Act in any other
manner alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take af-
firmative action designed to effectuate the policies of the
Act.
Respondent having discharged Shirley Annenburn in
violation of the Act, I find it necessary to order Re-
spondent to offer her full reinstatement to her former po-
sition or, if such position no longer exists, to a substan-
tially equivalent position, without prejudice to her se-
niority or other rights and privileges, and make her
whole for any loss of earnings that she may have suf-
fered from the time of her termination to the date of Re-
spondent's offer of reinstatement.
Backpay shall be computed in accordance with the
formula approved in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB 651
(1977). 4
'See, generally. lis Plumbing & IHeating Co.. 138 NLRB 71b, 717-721
(1962)
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER S
The Respondent, American Geri-Care, Inc., Brooklyn,
New York, its officers, agents, successors, and assigns.
shall:
I. Cease and desist from:
(a) Harassing and discharging employees for activities
protected by Section 7 of the Act.
(b) Promising and granting benefits to employees to
induce them to vote against a union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Shirley Annenburn immediate and full rein-
statement to her former position or, if such position no
longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or other rights and privi-
leges, and make her whole for any loss of earnings in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Post at its facility in Brooklyn, New York, copies
of the attached notice marked "Appendix." 6 Copies of
said notice, on forms provided by the Regional Director
for Region 29, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29, 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 election held on De-
cember 20, 1979, in Case 29-RC-4765 is hereby set aside
and said case is hereby remanded to the Regional Direc-
tor for Region 29 for the purpose of conducting a new
election.
IT IS FURTHER ORDERED that those allegations of the
complaints as to which no violations have been found
are hereby dismissed.
: In he event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the find-
ings, 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 waived for all purposes.
6 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 h5
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 Labohr Relations Bolard "
1123