Green Valley Manor, LLC

National Labor Relations Board - Board Decisions

Feb 17, 2009

353 N.L.R.B. 905 (N.L.R.B. 2009)

GREEN VALLEY MANOR
353 NLRB No. 92
905
Green Valley Manor, L.L.C. and Patricia Baker,
Paris Banks, and Rashanda Barfield. Cases 14–
CA–29124, 14–CA–29125, and 14–CA–29160
February 17, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On May 22, 2008, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and a reply
brief; the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions as modified below and to adopt
his recommended Order2 as modified and set forth in full
below.3

1 For the reasons set forth in his decision, we affirm the judge’s find-
ings that the Respondent violated Sec. 8(a)(3) and (1) of the Act by
discharging Patricia Baker, Paris Banks, and Beverly Glover. We also
affirm the judge’s findings that the Respondent violated Sec. 8(a)(1) by
interrogating Glover, Marilyn Salome, and Antoinette Randolph, and
by calling the police in response to union handbilling. We find it un-
necessary to pass on the judge’s findings that the Respondent violated
Sec. 8(a)(1) by interrogating Terrell Noble and by ordering union hand-
billers to leave and threatening to call the police if they did not; these
findings would be cumulative and would not materially affect the rem-
edy.
In affirming the judge’s finding that the Respondent violated Sec.
8(a)(1) by calling the police in response to union handbilling, we note
that (1) the Respondent did not establish that it held a good-faith belief
that the handbilling was blocking the nursing home’s driveway; (2)
although Respondent Office Manager Mary Melendez testified that the
handbilling was “almost blocking” the driveway, neither her testimony
nor the record as a whole explains what “almost blocking” meant; (3)
the record fails to establish that the handbilling was occurring on the
Respondent’s property; and (4) the Respondent’s contention, that the
police officer was not responding to a call from the Respondent when
he spoke to union handbiller Sharon Nelson, is without merit, as the
record shows that the Respondent called the police twice that after-
noon—once in response to the handbilling and once in response to an
incident involving a discharged employee—and the police came to the
nursing home twice.
2 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the violations found and to include the
Board’s standard remedial language.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
The Discharge of Employee Rashanda Barfield
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging Rashanda
Barfield. Applying a Wright Line4 analysis, the judge
found that (1) the General Counsel met his initial burden
of proving that Barfield’s union activity was a motivating
factor in the Respondent’s discharge decision, and (2) the
Respondent did not prove that it would have discharged
Barfield absent her union activity. The Respondent chal-
lenges both findings. As explained below, we assume
arguendo that the General Counsel met his initial burden
under Wright Line but nevertheless find that the Respon-
dent met its rebuttal burden of proving that it would have
discharged Barfield even in the absence of her union
activity. See Blue Diamond Growers, 353 NLRB 50 fn.
4 (2008).5
The Respondent operates a nursing home. Barfield
was employed as a certified nursing assistant (CNA) and,
as such, her principal responsibilities involved caring for
the nursing home residents. On July 31, 2007, Service
Employees International Union Local 2000 (the Union)
began an organizing campaign at the Home. On that day,
Barfield met with Union Organizer Sharon Nelson and
signed a union authorization card.
The credited testimony shows that, on five separate
occasions during the morning of August 7, 2007, Home
Administrator Marilyn Law observed Barfield, who was
on duty at the time, go to the Home parking lot and sit in
her car for a few minutes each time. Law reported
Barfield’s conduct to Nursing Director Elaine Frauenhof-
fer who, in turn, confirmed with Barfield’s charge nurse
that Barfield had not obtained permission to leave her
assigned work area. Barfield knew that the Respondent’s
rules prohibited onduty employees from leaving the work
area without the charge nurse’s permission.
That afternoon, Frauenhoffer discharged Barfield.
During the discharge conversation, Barfield initially de-
nied that she had gone to her car. When Frauenhoffer
told Barfield that Administrator Law had seen Barfield
go to the car, Barfield changed her story and admitted
she had gone to the car to talk on the phone. The Re-
spondent’s discharge summary, written August 7, 2007,
by Nursing Director Frauenhoffer and approved the same

4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1984), cert.
denied 455 U.S. 989 (1982).
5 Accordingly, we find it unnecessary to pass on the judge’s finding
that Barfield’s union activity was a motivating factor in the Respon-
dent’s discharge decision.
Because we find that the Respondent proved it would have dis-
charged Barfield even in the absence of her union activity, we also
reverse the judge’s alternative finding that the Respondent’s asserted
reason for discharging Barfield was pretextual under Shattuck Denn
Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD906
date by Administrator Law, describes Barfield’s miscon-
duct as follows: “Observed by administrative staff leav-
ing the building for an unauthorized break and sitting in
her car five (5) times prior to lunchbreak. When con-
fronted she denied this had happened, then did admit she
was sitting in her car on the phone after being told her
behavior was observed.”
The record shows that leaving the Home while on duty
and without permission is serious misconduct because (a)
the Respondent must maintain an adequate staff-to-
resident ratio, (b) supervisors must be able to locate em-
ployees in order to reassign them as needed, and (c) a
CNA’s unauthorized absence could jeopardize patient
care, particularly if an emergency were to occur. In addi-
tion, as the Respondent notes, Barfield was a junior em-
ployee, having worked for the Respondent for only 4
months at the time of her discharge.
The judge found that the discharge constituted dispa-
rate treatment because discharges “were not taken against
other employees for similar offenses” and “the Respon-
dent tolerated shortcomings in other employees.” How-
ever, the judge cited no specific discipline records to
support his disparate treatment finding, and the record
does not show that the Respondent imposed lesser disci-
pline for offenses similar to Barfield’s misconduct.
The parties submitted records of over 140 warnings,
suspensions, and discharges. While none of these re-
cords concerns discipline for multiple instances of leav-
ing one’s assigned work area, discipline was imposed
seven times for a single unauthorized departure from the
assigned work area. In four of the seven instances, the
employee was discharged6 and in the other three, the
employee received lesser discipline.7 Here, Barfield left
the assigned work area not once, but five times, and
falsely denied her misconduct when confronted by Nurs-
ing Director Frauenhoffer. In these circumstances the

6 Corneesha Pitts and Devious Shannon (left facility for 1 hour after
charge nurse denied permission to leave); Karrish Barfield (LPN; left
facility for over 2 hours without informing other nurses); Charles De-
Bose (laundry aide; left building without permission leaving laundry
unattended and causing nurses to lack clean sheets).
7 Clarissa Harville (sleeping in the front lobby); Regina Laden (left
work early leaving floor unattended); Yolanda Morris (left work early
stating clothing soiled and would return but did not return). As noted
above, the discipline imposed on each of these employees was for a
single act of misconduct.
The General Counsel contends that the Respondent imposed lesser
discipline for similar or more serious misconduct than Barfield’s, citing
discipline of employees Harville (suspension for cell phone use) and
Amber Easter (verbal warning for cell phone use and excessive phone
calls). However, the cited misconduct is qualitatively different—and
less serious—than Barfield’s misconduct in that the employees did not
leave their assigned work areas and therefore jeopardized patient care
to a lesser extent than Barfield.
Respondent’s discharge of Barfield is consistent with the
Respondent’s past disciplinary practice.8
We accordingly reverse the judge’s finding that the
Respondent violated Section 8(a)(3) and (1) by discharg-
ing Barfield.
The Challenge to Paris Banks’ Unfair Labor
Practice Charge
The complaint is based on three charges, one of which
was filed by employee Paris Banks alleging all four
unlawful discharges and all of the 8(a)(1) violations.9
The Respondent contends that Banks’ charge is invalid
and asks the Board to dismiss those complaint allegations
based solely on Banks’ charge. The Respondent’s con-
tention relies on Banks’ testimony that she did not read
the charge before signing it, had no “first-hand” knowl-
edge regarding two of the discharge allegations, and had
no information regarding most of the 8(a)(1) allegations.
As explained below, we reject the Respondent’s conten-
tion.
The Act requires that a complaint be based on a
charge, but establishes no requirements regarding the
charge.10 Section 102.11 of the Board’s Rules provides
that the charge “shall be in writing and signed, and either
shall be sworn to before a notary public, Board agent, or
other person duly authorized by law to administer oaths
and take acknowledgments or shall contain a declaration
by the person signing it, under the penalty of perjury that
its contents are true and correct.” The Board has ex-
plained that the purpose of Section 102.11 is to deter
abuse of the Board’s processes, and that this deterrence is
achieved by subjecting the charging party to criminal
sanctions for filing a charge containing false allegations.
Accordingly, the critical inquiry is whether the charging
party has subjected himself or herself to the risk of such

8 The General Counsel contends that the Respondent never before
discharged an employee for a first offense. However, the record defini-
tively shows that the Respondent discharged at least one other em-
ployee (Shatia Hagens) for a first offense. Further, the record contains
discharge notices for 11 other employees without any accompanying
documents showing prior disciplines (Karrish Barfield, Nikita Wil-
liams, Connie Smith, L. Robinson, Shontell Ward, Ellen Gordon,
Charles DeBose, Devious Shannon, James Kaufman, Margery Dickens,
and Angie Howard).
9 In his introductory paragraph, the judge incorrectly states that the
complaint “is based on charges filed by [the Union], by Patricia Baker
and Paris Banks.” The original complaint, issued on October 31, 2007,
was based on charges filed by the Union, Baker, and Banks. However,
on December 6, 2007, the Regional Director issued a prehearing order
severing the case based on the Union’s charge and amending the com-
plaint to add the case based on Barfield’s November 19, 2007 charge.
10 Sec. 10(b) provides: “Whenever it is charged that any person has
engaged in . . . any such unfair labor practice, the Board . . . shall have
power to issue . . . a complaint stating the charges in that respect . . . . ”
GREEN VALLEY MANOR, L.L.C. 907
criminal sanctions. See Alldata Corp., 324 NLRB 544,
544–545 (1997), and cases cited therein.
Here, Banks’ charge satisfies the requirements in Sec-
tion 102.11—that is, it is in writing, is signed, contains
Banks’ declaration that the “statements are true to the
best of [her] knowledge and belief”, and acknowledges in
capital letters that “WILLFUL FALSE STATEMENTS”
in the charge “CAN BE PUNISHED BY FINE OR
IMPRISONMENT (U.S. CODE, TITLE 18, SECTION
1001).” The Board’s Rules do not require that the charg-
ing party read the charge or have information regarding
the allegations set forth in the charge. Moreover, by
signing the charge, Banks subjected herself to the risk of
criminal sanctions if the statements in the charge were
false. Accordingly, the purpose underlying Section
102.11—deterring abuse through the threat of criminal
sanctions for false statements—was satisfied.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Green Valley Manor, L.L.C., St. Louis,
Missouri, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating its employees concerning their union
activities and the union activities of their fellow employ-
ees.
(b) Interfering with lawful union handbilling.
(c) Discharging its employees because of their union
activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind
the discharges of Patricia Baker, Paris Banks, and Bev-
erly Grover, and offer them full reinstatement to their
former jobs or, if their jobs no longer exist, to substan-
tially equivalent jobs without prejudice to their seniority
or any other rights and privileges previously enjoyed.
(b) Within 14 days from the date of this Order, remove
from its files any references to the unlawful discharges,
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
(c) Make whole these employees for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, with interest as set forth in the
remedy section of the judge’s decision.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of the records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its St. Louis, Missouri facility copies of the attached no-
tice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 14,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former em-
ployees employed by the Respondent at the closed facil-
ity at any time since August 2, 2007.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVE YOU THE RIGHT TO
Form, join, or assist a union

11 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD908
Choose representatives to bargain with us on
your behalf.
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate you concerning your union
activities and the union activities of our employees.
WE WILL NOT interfere with lawful union handbilling.
WE WILL NOT discharge you because of your union ac-
tivities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the unlawful discharges of Patricia Baker,
Paris Banks, and Beverly Grover and offer them rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs, without prejudice
to their seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL, within 14 days of the Board’s Order, remove
from our files any references to the unlawful discharges
and, WE WILL, within 3 days thereafter, notify the em-
ployees in writing that this has been done and that the
discharges will not be used against them in any way.
WE WILL make Patricia Baker, Paris Banks, and Bev-
erly Grover whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them, with interest.
GREEN VALLEY MANOR, L.L.C.
Olurotimi O. Solanke, Esq., for the General Counsel.
Andrew J. Martone, Esq. and Allison E. Taylor, Esq., for the
Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. These
consolidated cases were heard before me on December 10, 11,
and 12, 2007, in Saint Louis, Missouri. The complaint is based
on charges filed by Service Employees International Union
Local 2000 (the Union or the Charging Party) and by Patricia
Baker and Paris Banks, individuals. The complaint alleges
violations of Section 8(a)(1) and (3) of the National Labor Re-
lations Act (the Act). The complaint is joined by the answer
filed by Green Valley Manor, L.L.C. (Green Valley or the Re-
spondent).
After due consideration of the testimony and evidence re-
ceived at the hearing and briefs filed by the parties, I make the
following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Missouri limited liability corporation which
operates a skilled care nursing home in Saint Louis County,
Missouri, in a two-story building where it provides nursing
home services for approximately 100 Medicaid and Medicare
residents with physical and mental disabilities including
schizophrenia, Dementia, Alzheimer’s, and other disabilities.
Sharo Shirshekan manages the Respondent. He also manages
other nursing homes in the St. Louis area and in surrounding
areas. He works out of a central office in Farmington, Mis-
souri. The complaint alleges and, although Respondent denies,
I find that at all times material herein, the evidence establishes
that the Respondent has operated a skilled nursing home pro-
viding services to its residents during the 12-month period pre-
ceding the filing of the complaint and has been engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and has been a healthcare institution within the mean-
ing of Section 2(14) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES1
A. Background and 8(a)(1) Allegations
1. The advent of the union campaign
Respondent operates a skilled-care nursing home and pro-
vides nursing home services to approximately 100 residents,
many of whom have physical and mental disabilities. Respon-
dent’s administrator is Marilyn Law who has responsibility for
the day-to-day operations and for all financial resident care
matters including the review and approval of employee disci-
pline matters. Law reports directly to Shirshekan. Elaine
Frauenhoffer is the director of nursing (DON) and supervises
the nursing staff. She reports directly to Law. Marty Taub was
the assistant director of nursing (ADON) during the period at
issue in this proceeding and reported to Frauenhoffer. The
nursing staff is comprised of registered nurses (RNs), licensed
practical nurses (LPNs), certified nurses assistants (CNAs), and
certified medical technicians (CMTs). There are three shifts: 7
a.m. to 3 p.m., 3 to 11 p.m., and 11 p.m. to 7 a.m. CNAs assist
residents with personal care such as bathing, feeding, and dress-
ing. CMTs give medication, monitor temperature, check pulses
and respiration, and assist RNs and LPNs with medical checks.
CMTs may also do everything CNAs do. Respondent’s activi-
ties director is Laura Miloshewski. Taiisha Burgess is a central
supply employee who orders, processes, and distributes medical
supplies for the nursing staff among Shirshekan’s nursing
homes and also orders and handles medical records. She
spends approximately 50 percent of her time at the Green Val-
ley facility. Respondent admits that Law, Frauenhoffer, Taub,
and Maintenance Supervisor Luther Sledge are supervisors or

1 All dates in this case are in 2007, unless otherwise stated.
GREEN VALLEY MANOR, L.L.C. 909
agents under the Act. It denies that Miloshewski and Burgess
are supervisors or agents under the Act. The General Counsel
asserts that Miloshewski is part of management because she
plans, schedules, and implements activities for residents and
reports directly to Law, has an office of her own, and employ-
ees believe she is part of management. I find based on the
foregoing that Miloshewski is an agent of Respondent within
the meaning of Section 2(13) of the Act as she has been placed
in a position wherein management has given her apparent au-
thority. I also find that the unrebutted testimony of Patricia
Baker that she was interviewed and hired by Burgess is suffi-
cient to establish that Burgess is an agent of Respondent under
Section 2(13) of the Act as Respondent placed her in a position
of apparent authority. As it developed at the hearing, Baker did
not know specifically whether Burgess had actually hired her.
However, I find the testimony of Baker is sufficient to establish
that Burgess was placed in a position of apparent authority.
The events in this case took place during a brief period of
time from mid-July to August 10. About July 16, CNAs
Patricia Baker and Paris Banks, and CMT Beverly Grover and
other employees engaged in a discussion of their concerns
about their wages, hours, and conditions of employment. The
discussion concerned wages, lack of benefits, working double
shifts, and concerns about the increase in workload, and safety
concerns because of Respondent’s policy of admitting indi-
viduals with serious psychiatric conditions. The idea of seek-
ing out a union came up in this discussion. Banks said that
Service Employees International Union Local 2000 represented
the employees at another nursing home and the employees had
received better benefits. Baker suggested that Grover would be
a good shop steward because she spoke out, assisted other em-
ployees, and gave them advice. There was an anonymous tele-
phone call received by the Union in late July suggesting that the
employees of Respondent might be interested in union repre-
sentation. Union Organizing Director Sharon Nelson visited
Respondent’s facility on July 31. She was met by a number of
interested CNAs and CMTs, several of whom signed union
authorization cards. She met with the employees in a small
vending machine room which is part of the dining room. As a
result of the large number of employees who were interested in
the Union, the vending room was too small to accommodate
them and the employees were also in the dining room where
Activities Director Laura Miloshewski was conducting an ac-
tivity for the residents at that time. During this period of about
35 to 40 minutes, employees came and went. Nelson met with
Beverly Grover whom employee Shantel Ewing had recom-
mended as a shop steward and spoke to Grover who signed a
card and was interested in becoming a shop steward. Baker
also signed a card as did Banks and CNA Rashanda Barfield.
Baker also gave some cards to employee Ewing who agreed to
hand them out to employees on another shift. On the next day
(August 1), Nelson returned to the facility to obtain more
signed cards and sat in the vending machine room where she
was met by DON Frauenhoffer and ADON Taub who asked her
what she was doing there. She told them she was waiting for
“Pat.” There was only one other “Pat” employed at the facility.
Nelson was told to leave the facility. Nelson complied with the
order to leave the premises and began to walk out. She was
followed by Frauenhoffer and Taub. Baker, who had observed
this, had not received any signed cards from employee Ewing
who had agreed to pass them out to other employees. When
Baker asked Ewing if she had obtained any signed cards, Ewing
said that the employees were not interested in the Union and
“brushed” Baker off. Baker had observed the DON and ADON
approach Nelson and had seen Nelson commence to leave. At
that time, Baker was herself coming off her shift and punched
out on her timecard and walked slowly in the same direction
that Nelson was walking to the parking lot to leave the building
in an effort so as not to catch up with Nelson as she saw that the
DON and ADON were looking. Baker testified she was feeling
nervous about the situation. Nelson tried to talk to her and
asked about the cards. Baker said she had not received any
more cards and was feeling uncomfortable and attempted to
otherwise avoid Nelson. Nelson and Baker got in their cars and
left the premises.
2. The alleged interrogation of employees by DON
Frauenhoffer and ADON Taub
Baker testified that on August 2, she was in resident Garth’s
room which was on the first floor near the nurses’ station. She
heard Frauenhoffer and Taub come to the nurses’ station and
heard Frauenhoffer ask LPN Charge Nurses Marilyn Salome and
Antoinette Randolph whether they knew anything about a union
representative in the building the last 2 days. Taub also asked if
the nurses knew anything about this. Baker testified that one of
the nurses asked, “[W]hat . . . a union?” thus registering surprise
at the question. Baker testified that the inquiry frightened her and
she finished the room she was working on and left. I credit
Baker’s specific testimony. Taub was not called as a witness to
testify and the nurses were not called to testify. Baker’s testi-
mony was not denied by Frauenhoffer nor did Frauenhoffer at-
tempt to explain why the inquiry was made of the nurses. I find
Respondent’s questioning of the nurses concerning the presence
of a union representative and implicitly the union activities of its
employees constituted unlawful interrogation and thus violated
Section 8(a)(1) of the Act. There was no evidence presented to
establish that the nurses were supervisory employees and I, ac-
cordingly, find that the nurses were at all times material employ-
ees protected by Section 7 of the Act. See Golden Crest Health-
care Center, 348 NLRB 727, 730 (2006). I, thus, conclude that
the General Counsel has established that the inquiry by Frauen-
hoffer and Taub concerning the presence of a union representa-
tive was unlawful interrogation in violation of Section 8(a)(1) of
the Act.
3. The alleged interrogation of employees by
Supervisor Luther Sledge
The complaint alleges that Maintenance Supervisor Luther
Sledge unlawfully interrogated employees concerning employ-
ees’ distribution of union authorization cards. Baker testified
that on August 2, she returned to the dining room after she took
a resident to his room after lunch and she observed Supervisor
Sledge, central supply employee Taiisha Burgess, and house-
keeper Terrell Noble together with other housekeeping staff
nearby. Baker heard Burgess ask Noble as to who was solicit-
ing employees to sign union authorization cards. Noble looked
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD910
at Baker and nodded his head and Sledge and Burgess then
looked at Baker and neither Sledge nor Burgess said anything.
Only moments later, Sledge attended a meeting at which Baker
was terminated. I credit the foregoing unrebutted testimony of
Baker as Burgess and Sledge did not testify. Nor did Noble or
any other employee testify concerning this incident. I find that
Burgess was an agent of Respondent within the meaning of
Section 2(13) of the Act as she was vested with “apparent au-
thority” authorized by Respondent. Baker testified that Burgess
interviewed her, told her the rate of pay, and hired her without
any evidence that the hire and assignment of her wages, terms,
and conditions of employment were subject to the approval of
another member of management. Under these circumstances,
Burgess was vested with apparent authority to engage in the
interrogation of its employee Noble, which interrogation was
carried out in the presence of other rank-and-file housekeeping
employees. It is undisputed that Sledge did nothing to disavow
the interrogation of employees by Burgess. Thus, this interro-
gation was attributable to Sledge, its undisputed supervisor.
Pan-Oston Co., 336 NLRB 305, 305–306 (2001). I find that
Respondent violated Section 8(a)(1) of the Act by the interroga-
tion of employee Noble in the presence of Supervisor Sledge.
4. Alleged statement by Director of Nursing Frauenhoffer that
she was informed that Grover called the Union and
was organizing on behalf of the Union
Grover testified that on August 3, between 4 and 4:15 p.m.,
she was in a resident’s room and Frauenhoffer told her she
wanted to speak with her. Grover stepped out in the hallway
and Frauenhoffer said, “[I]f you bring this up I am going to
deny it.” She then told Grover that there was a rumor that she
was recruiting women for the Union. Grover denied this and
Frauenhoffer asked Grover if she was sure.
Although she denied the incident related by Grover as set out
above, Frauenhoffer testified concerning another alleged dis-
cussion with Grover wherein she told Grover that any union
discussion must be away from patient care areas and during
breaktimes or off the property. Frauenhoffer testified she did
not know the date this incident took place. The General Coun-
sel asserts that this alleged conversation related by Frauenhof-
fer appears to be the same conversation testified to by Grover
but with a totally different story. In her account, Frauenhoffer
testifies that she told Grover that her union activities must be
outside of patient care areas. Frauenhoffer testified that Grover
was disturbing patients and going “rah-rah” for the Union. The
General Counsel asserts that Frauenhoffer’s version should not
be credited. The General Counsel also contends that Grover’s
account should be credited as she places the conversation with
Frauenhoffer as occurring on Friday, August 3, whereas
Frauenhoffer’s account that a resident came to her on Saturday,
August 4, to complain about Grover’s conduct on a previous
night, does not support the version of Frauenhoffer because
Frauenhoffer does not work on weekends. In addition, as con-
tended by the General Counsel, Grover’s testimony is credible
because her account was specific and detailed and logical
whereas there is no evidence of any rule or policy prohibiting
employees from talking at work and Frauenhoffer acknowl-
edges that she told Grover she could not talk about the Union.
The General Counsel asserts that Frauenhoffer’s ill-tempered
and hostile testimony makes it clear that she would not have
told Grover that she could continue her union activities but that
they must be conducted on breaktime and outside of patient-
care areas.
My review of the foregoing and my observation of the de-
meanor of Frauenhoffer convince me that Grover’s version of
these events should be credited. Her testimony was specific
and logical. I found Frauenhoffer’s testimony to be hostile and
argumentative and that she often refused to answer the ques-
tions put to her and instead shifted into other areas in response
to the questions. I find that Respondent, by Frauenhoffer, vio-
lated Section 8(a)(1) of the Act by telling Grover that she was
aware that Grover had called the Union and was organizing on
its behalf. This statement was coercive and had the effect of
intimidating its employees by expressing Respondent’s dis-
pleasure and indicating that the employees’ union activities
were being watched by Respondent with the logical conclusion
that adverse consequences could follow if they engaged in pro-
tected concerted activities under the Act by attempting to or-
ganize a union or otherwise engaging in union activities. Ready
Mix, Inc., 337 NLRB 1189 (2002); Soltech, Inc., 306 NLRB
269 fn. 3 (1992); Trinity Memorial Hospital, 238 NLRB 809
(1978).
5. Respondent’s alleged interference with lawful handbilling by
the Union and by its employees near, but not on, property oc-
cupied, but not owned, by Respondent
On August 7, a payday, Union Organizer Nelson came by
Respondent’s facility to hand out union flyers to Respondent’s
employees advising the employees of the upcoming election
and advising them of their organizational rights. Nelson parked
her vehicle on a public road (Prigge Road) near the driveway to
Respondent’s facility and commenced to hand out the flyers to
individuals. It is undisputed that Administrator Law called the
police. However, the evidence also discloses as testified to by
Nelson that Nelson did not block the traffic to and from the
facility. A police car arrived and the officer drove up to the
facility. The officer subsequently left the facility, approached
Nelson, and without alighting from his vehicle asked Nelson
what she was doing. She told him she was handing out union
flyers. The officer told her this was acceptable as long as she
did not block traffic. She assured him she would not block
traffic and the officer left and did not return. On that day, Nel-
son handbilled between 2:30 and 3 p.m. There was no evidence
presented that supports a finding that the Union in any manner
blocked the driveway. Office Manager Melendez testified that
the driveway was only “almost blocked.” Nelson handbilled on
several subsequent occasions and was joined by employees
Baker and Banks who had been discharged by the Respondent.
It is undisputed that the Union was not on the property but was
only near the Respondent’s driveway. Thus, Respondent’s
actions in calling the police constituted unlawful interference
with the employees’ right to handbill near the property in viola-
tion of Section 8(a)(1) of the Act. Sprain Brook Manor Nurs-
ing Home, LLC, 351 NLRB 1190, 1191–1192 (2007).
GREEN VALLEY MANOR, L.L.C. 911
6. The alleged interference by Supervisor Sledge with Union
representatives and employees’ right to engage in protected
concerted activities near, but not on, Respondent’s property
Baker testified that commencing on August 10, when the un-
ion handbilled for the second time, Supervisor Sledge drove up
in Respondent’s van and driving erratically came to within a
few feet of Nelson and Baker. He then backed up a few feet,
parked, and then watched Nelson and Baker engage in handbill-
ing. Nelson said he was engaging in surveillance. He then
yelled twice at Nelson to get off the property and threatened to
call the police and put the telephone to his ear as if to call the
police. Each subsequent time that Nelson, Baker, and Banks
engaged in handbilling, he drove up in Respondent’s van,
parked by them, and observed their activities. I credit the fore-
going unrebutted testimony. Sledge did not testify. I find that
Respondent violated Section 8(a)(1) of the Act by the foregoing
conduct by Sledge which interfered with the employees’ rights
to engage in protected concerted activities. Sprain Brook
Manor Nursing Home, LLC, supra.
B. The Discharge Allegations
Patricia Baker was hired by Respondent as a CNA on June 6,
2006, and was discharged on August 7, 2007. She had worked
as a CNA approximately 16 years. On July 16, at about 10:30
p.m., several employees were in the inside breakroom where
smoking is permitted and were discussing problems on the job
such as being overworked as a number of new residents with
psychiatric problems were being admitted. The employees also
discussed the lack of benefits. At this meeting her fellow em-
ployee, CNA Paris Banks, mentioned she had a friend who
worked at another nursing home that had a union and that those
employees were receiving benefits. Baker mentioned at this
meeting that CMT Beverly Grover would be a good shop stew-
ard if the employees had a union as Grover was outspoken and
helped other employees. The meeting of the employees ended
that evening but there was no resolution or conclusions reached
by the group concerning these problems. Baker personally
asked DON Elaine Frauenhoffer and ADON Marty Taub on
another occasion if Respondent was beginning to deal with the
Department of Mental Health as they were getting a number of
new residents who were mentally ill.
Following the July 16 discussion, Union Organizer Sharon
Nelson came to the facility and met on Tuesday, July 31, with
employees in a small vending room which is part of the large
dining room on the first floor. Baker saw Nelson briefly when
Nelson was talking to the employees gathered in the vending
area and spilling out to the larger dining room area. Other em-
ployees were excitedly saying that the union representative was
there. This was between 2 and 2:30 p.m. Baker finished her
rounds for the residents and then returned. On the first occa-
sion when she saw Nelson talking to the employees, there were
residents in the dining room with activities going on. Laura
Miloshewski, the activities director was also present. On the
second occasion when she returned, there were many employ-
ees in the dining room as they could not all fit in the small
vending area. On this occasion, Baker signed a union authori-
zation card. Other employees were also signing union cards.
Baker asked Nelson questions about the Union. Baker was due
to leave her shift at 3 p.m. and agreed to take union cards for
other employees to sign. She gave the cards to employee
Shantel Ewing to obtain signatures from other employees on
the oncoming shift.
On the next day (August 1) about 2:30 to 2:40 p.m., em-
ployee Latasha Johnson told Baker that the lady from the Union
was there and wanted to talk to her. Baker told her supervisor,
Charge Nurse Randolph, that she was getting ready to take a
break and would be right back. She went and talked to Nelson
under a blue canopy on the outside of the facility where em-
ployees go to smoke. Nelson asked her if she had the cards
signed. She said she would check with Ewing and did so.
However, Ewing, who had been excited about the prospect of a
union coming to represent the employees the day before, acted
as if she did not want to talk to Baker and “brushed me off.”
Ewing said she did not know if the employees wanted to sign
the cards or not. Baker returned to downstairs from the second
floor where Ewing worked and saw Nelson in the building with
the DON, Frauenhoffer, and the ADON, Taub, who were talk-
ing to Nelson. Baker then made a U-turn and talked to Rose
Johnson, a patient in the first room nearby and then left this
room and began to merge with Nelson who was coming out of
the dining room with Frauenhoffer and Taub behind her. Nel-
son told Baker that Frauenhoffer and Taub had just told her to
leave the property. Nelson asked her if the cards had been
signed and Baker said she did not know and that Ewing had
brushed her off. At that time, Frauenhoffer and Taub were
coming behind them and Baker punched out and she and Nel-
son went out of the facility. Baker told Nelson she was feeling
uncomfortable and nervous. Nelson asked her when she could
get the cards signed and she told Nelson she did not know. She
and Nelson both got in their cars and left.
On the next day (August 2), Supervisor Luther Sledge was
sitting outside when Baker arrived at 7 a.m. and stared at her up
and down. On that morning she overheard a conversation as
discussed, supra, between Frauenhoffer, Taub, and Charge
Nurses Marilyn Salome and Antoinette Randolph who were in
the nurses’ station on the first floor. Baker was in a patient’s
room nearby. She heard Frauenhoffer ask Salome and
Randolph if they knew anything about a union representative
being in the building the last 2 days and heard Taub ask the two
nurses if they knew anything about this. Both nurses denied
that they had heard anything about this. Baker testified that
later that day around 1:30 to 2 p.m., she saw Sledge and Bur-
gess and several housekeeping employees in the dining room as
she was taking residents from the dining room as they were
finishing their lunch. As discussed, supra, she came into the
dining room to get another resident and she heard Burgess ask
housekeeper Terrell Noble who the person was that was having
employees sign union authorization cards to start a union. No-
ble just nodded his head toward Baker and they all looked over
at Baker. Sledge said nothing. Between 2:30 and 2:45 p.m.
that day, she was called into the front office by Mary Melendez,
the office manager. Inside the room were Frauenhoffer, Taub,
and Sledge. Frauenhoffer told her she hated to do this to her
but that “I have got to let you go.” Melendez had told her that
she had been “stealing time” by not clocking out and in for
lunch. Baker had gone to lunch with Corneesha Pitts a CMT.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD912
They had gone to a Jack-in-the-Box, a fast food restaurant, and
had brought their food back and gone upstairs to the second
floor dining room to eat their lunch. Baker testified they were
only gone from the facility for about 17 minutes. She testified
further that Office Manager Melendez had come up to the din-
ing room where they were eating and asked whether the em-
ployees wanted to participate in a 401k program and how much
they wanted to contribute. Pitts did not clock out either. Baker
testified she had previously gone out to lunch without punching
out on the timeclock a number of times. A half hour lunch
period is automatically deducted from the employees’ hours
regardless of whether they actually take lunch or not. Baker
had, on other occasions, picked up carryout lunches from res-
taurants and taken them back to the facility for other employ-
ees. In practice, employees do not clock out for lunch. When-
ever she went out for lunch, she told the charge nurses. The
Respondent’s representatives have, up to the date of the hear-
ing, never told her how much time that she allegedly stole.
Baker and CNA Paris Banks have been friends for over 20
years. As a result of this close friendship, Respondent has often
asked Baker to call Banks to come in on her days off.2 Baker
called Banks on July 31 and Banks clocked in at 11 a.m. as
Respondent needed additional help as more residents were
coming into the facility. On the weekday of Tuesday, July 24,
Banks was off work and the Respondent was short of help and
they asked Baker to call Banks in.
Baker testified further that after she was discharged, she
went back to the facility between 2 and 2:30 p.m. to get her
paycheck on August 7, which was a regular payday. She saw
Nelson who was standing on the outside of Prigge Road3 hand-
ing out pamphlets and talking with family members and some
employees. She joined Nelson in doing this. When Baker was
fired, she was walked out of the facility by Supervisor Sledge.
She then called Nelson and told her she was fired and she told
Nelson she did not know why she had been fired. Baker later
worked for the Union and helped the Union give out handbills
to employees and made telephone calls on behalf of the Union.
On August 10, Baker was outside of the facility and Sledge
came “roaring up the hill” in Respondent’s van and parked on
the side of where they (Nelson and Baker) were standing. He
told them to get off his property or he would call the police. On
the day she was handing out pamphlets, Baker observed mem-
bers of Respondent’s management standing out under the blue
tarp at the entrance.
Baker acknowledged that there was a rule that employees
must clock out if they were leaving the building for lunch.
However, she testified that she “followed a pattern” of other
employees who were not clocking out when they left the build-
ing for lunch. She personally did not clock out on about five
occasions. Baker testified that on August 7, Nelson parked her
car on a little “dip” on the side of Prigge and Nelson and Baker
were standing on the road handing out pamphlets and asking

2 Banks normally works two shifts on Saturday and Sunday and does
not work during the week but does on occasion substitute when Re-
spondent has a need of additional personnel.
3 Prigge Road is a public road which leads to the entrance to the fa-
cility.
the employees coming into the facility to vote in the upcoming
union election. After the August 7 payday, she went out to the
facility to handbill three to four times and Sledge was there
each time she went out there.
Paris Banks was hired as a CNA in June 2006 and worked a
double shift of 16 hours on Saturdays and Sundays. She was
not scheduled to work during the week due to a child care issue.
She occasionally would work to fill in as requested by Respon-
dent during the week. In July 2007, she was involved in a dis-
cussion in the breakroom among five or six employees concern-
ing obtaining union representation. The employees were talk-
ing about their desire for union representation and more money,
and benefits such as sick leave pay and time-and-a-half for
overtime. She told the employees that she had a friend who
worked at Abbey Care Nursing Home and that the Union had
helped her as the employees had sick leave pay and insurance
benefits. Respondent did not have any benefits. On Tuesday,
July 31, she was called in to work. She was on occasion called
in to work on her days off. The nurse would call her in or
sometimes ask her good friend Patricia Baker to call her in. On
July 31, she learned from other employees that Union Repre-
sentative Sharon Nelson was there and would like to talk to the
employees about a union. She finished taking care of a resident
and then went and talked to Nelson about 10 minutes. The
employees were gathered in the first floor dining room. Banks
asked Nelson if the employees would be fired if they signed the
union authorization cards and Nelson said no. They also talked
about how the Union could get them more money and benefits
such as sick leave pay, time-and-a-half and insurance. She
signed the Union’s authorization card on that date and gave it to
Nelson. On that same day, she went to Jack-in-the-Box with
Patricia Baker and Corneesha Pitts. They all left the building at
the same time. She did not observe anybody clock out. They
went to the Jack-in-the-Box and bought something to go and
came back to the building to eat their lunch in the upstairs din-
ing room. She otherwise does not go out for lunch as she re-
ceives a free lunch for working on Saturdays and Sundays. On
July 31, she left the building and came back within 30 minutes.
On August 2, she received a telephone call from DON Frauen-
hoffer about 3:30 p.m. who said she was going to put her on a
speakerphone with Sledge and Taub as Melendez had informed
Frauenhoffer that Banks did not clock out when she went to
lunch the other day and that she would have to terminate her.
Banks asked why she had to terminate her and said she should
write her up because this was her first time as she does not
usually go out to lunch. Frauenhoffer said she was sorry but
she had to terminate Banks. At this time, no one said anything
about her attendance or about her coming in to work late. She
had seen only one writeup signed by Frauenhoffer in February
2007 for being tardy on 3 days. She talked to Frauenhoffer at
that time and told her she had a child care problem which
caused her to be 10 or 15 minutes late. Frauenhoffer said this
was fine and to get there as soon as she could. After this inci-
dent, she consistently came in late and Frauenhoffer did not say
anything to her. She has never been a no-call/no-show.4 She

4 This is a situation where an employee does not call in to report that
she will not be there and where she does not show up.
GREEN VALLEY MANOR, L.L.C. 913
called Nelson on the day after she was fired and told Nelson
they fired her for not clocking in. On the days when Banks was
called in to work on a weekday, she was often called after the
start of the shift and was actually not late when she came in
after the start of the shift. However, Banks was consistently
late in arriving for her normal shifts on Saturdays and Sundays
and Respondent never disciplined her for this after the February
2007 warning. She received no further writeups, warnings, or
discipline as a result of being consistently late. In its record of
her attendance, Respondent states that she was late 6 out of 8
days of work and that she was 4 hours late on one occasion.
However, this occasion was a day when Banks had been called
to work after the start of the shift and she was not actually late.
Although she and Baker were both discharged on August 2,
Corneesha Pitts was not discharged.
Beverly Grover was hired as a CMT in March 2007. A CMT
is a certified medical technician. As a CMT, she hands out the
medicine to the residents and also checks their temperature,
pulse, and respiration. She also assists the licensed practical
nurses (LPNs) in any type of assisted daily living (ADL) activi-
ties such as insulin and Accu-checks. She can perform all the
duties of a CNA. However, a CNA cannot perform the above-
listed duties of a CMT. Grover worked the evening shift from
3 to 11 p.m. in July. She reported on a daily basis to the charge
nurse, Nellie Smith. She reported to Frauenhoffer until
Frauenhoffer left at 5 p.m. From that point on, she reported to
Smith for the balance of the shift. In July, the subject of a un-
ion came up among several employees, including Patricia
Baker, Paris Banks, and herself. They discussed their need for
benefits. The discussion ended without any resolution by the
employees that they were going to pursue the matter. Later, she
met Union Representative Sharon Nelson on July 31. When
she arrived for her shift that day, she was met by coworker
Shantel Ewing who grabbed her and pulled her down the hall
saying there was someone she wanted her to meet. Grover
agreed to meet the individual and went to the vending machine
area where there were other employees in the main dining room
and the small vending area where Union Organizer Sharon
Nelson was seated in a chair. When she entered the room, Ew-
ing told Nelson that Grover was the lady she had told Nelson
about who would be a good shop steward. Grover and Nelson
then met and Nelson asked her if she would like to be a shop
steward. She said she was interested and signed a union card
on that date and handed it to Nelson. Nelson said she would
contact her and give her information regarding the duties of a
shop steward.
On August 2, Grover was out at the front of the facility
smoking a cigarette and Taiisha Burgess came out of the door
while Grover was sitting on a bench. Burgess said she did not
know why the employees wanted a union as the Union would
not back the employees. Burgess handed her a piece of paper.
At the time there were two other employees sitting on the right
of Grover. Grover looked at the piece of paper which stated
that employees would get paid on holidays, and set out the
employees’ rate of pay and pay raise. When Grover looked at
the piece of paper, Burgess “snatched” the paper back. Grover
testified that the paper was part of a contract at North Valley
Manor where the employees are represented by the Service
Employees International Union (SEIU). Burgess told Grover
she believed that this was what the Union would do for her
because she was at North Valley Manor and “they do not do
shit for us.” Grover then said that is your opinion and pro-
ceeded inside the building to return to work from her break.
Grover testified further that she worked on August 3 and was
working in a resident’s room as discussed, supra, about 4 to
4:15 p.m. when Frauenhoffer had her come out of the resident’s
room and then told her that if she brought this up, she would
deny it. Grover asked her what she was talking about. Frauen-
hoffer said that there was a rumor going around that Grover
was recruiting women for the Union. Grover denied this and
said that she did not have anything to do with this. Grover
worked on August 4 and 5, a Saturday and Sunday, and was
scheduled to be off on Monday, August 6. When Grover
worked the shift on August 4 she was in charge of orienting a
new CMT with the medicine cart (med cart). The med cart
contains all of the medication needed for each resident for that
particular hall. Grover oriented the new CMT by taking her
step-by-step over Respondent’s procedure of passing out resi-
dents’ medications. On Monday, August 6, Grover was called
in to work early by Frauenhoffer and arrived at 7 a.m. She
went to work and at 8:30 to 9 a.m., she was called into the of-
fice by Mary Melendez who told her she had not clocked in that
day and that she was going to put Grover down for 10:30 to
10:45 a.m. that day. Grover said okay, but that she had clocked
in. Melendez said okay and Grover asked her what the problem
was. Melendez replied that she was getting ready to hand in the
time for the payroll. Grover asked if she was free to leave the
office and Melendez said yes. She was not disciplined for this.5
Later, on August 6, Grover was paged to come to the office by
Melendez. When she arrived at the office, she saw Melendez,
Maintenance Supervisor Sledge, ADON Taub, and Frauenhof-
fer. Administrator Law was standing in the doorway of her
office. Frauenhoffer was “red” and “upset” like she did not
want to do this “but I have got to let you go.” Grover asked
what she had done. Frauenhoffer said she was terminating
Grover for “misappropriate conduct on the med cart.” Grover
asked her what she had done and Frauenhoffer said, “I cannot
get into that right now.” No one in the meeting mentioned any
type of altercation. There was also no mention of any residents
being afraid of her. Grover also testified that she could lose her
license as a CMT if the residents were afraid of her. There has
not been any complaint to the registration authorities. Grover’s
nursing supervisor, Nellie Smith, was working that weekend
and available for any problems. Smith never came to her and
told her that there were any complaints by residents.6 August 7
was payday. Grover had been terminated the previous day.
She went to Respondent’s facility on August 7 to pick up her
paycheck and also requested her “termination papers.” On that
day, she saw Nelson on Prigge Road handing out pamphlets
informing employees that there was an upcoming union elec-
tion. She also later saw Banks and Baker handbilling along
with Nelson. She testified that there was no obstruction of

5 Grover acknowledged that the day referred to by Melendez was
August 1 rather than August 6.
6 Smith was not called to testify in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD914
traffic coming to and from the nursing home as a result of the
handbilling. Grover went to the entrance of the facility along
with her sister who drove her there. Grover was met at the door
of the facility by Melendez who told her to stay there and she
would get her paycheck. She did so and Melendez gave her the
paycheck. She saw Administrator Law there and asked for her
“termination papers.” Law told her the papers would not be
ready that day. During this time she saw a man coming out of
the nursing home and asked who he was. He identified himself
as Sharo Shirshekan, the owner. She told him she wanted to
speak to him because she had been wrongfully terminated. He
asked who she was and she told him her name and held out her
hand to shake his hand. He stepped back and called in for Law
to call the police to remove these individuals from his property.
Law stepped out of her office. Grover asked for her “papers.”
Law told her she should call Frauenhoffer in the morning.
Grover told Law “no” that she needed the papers now. The
papers she was asking for refers to a document that listed the
reason for her termination. Law then said the police are on the
way. At that point, her sister got out of the car and told Grover
to leave. The car was pulled over to the parking lot and Grover
put the request for the “papers” in writing and it stated that she
wanted to receive her termination papers in 30 minutes. Her
sister brought the request into the facility. This was around
2:45 p.m. The police car arrived and she observed Law and the
policeman give each other a “hug.” At that point, Grover’s
sister, who was in the facility, came out and they left to wait for
receipt of the “papers.” The policeman did not say anything to
Grover or her sister and they left to return in a half hour for the
termination papers. When they returned, Grover’s sister went
back to the facility and was given an envelope with the termina-
tion papers. The envelope contained a statement that she was
discharged for loud disruptive behavior. There is no mention of
a medical cart, or residents being afraid of Grover. Grover does
not recognize the name “G. Garage.” She testified she did not
get in Shirshekan’s face.
Rashanda Barfield testified she was hired by Frauenhoffer in
April 2007 as a CNA. She worked full time on the 7 a.m. to 3
p.m. shift. She met Organizer Nelson on July 31 in the dining
room by the vending area. She learned from other employees
that Nelson was there. She finished taking care of a resident
and then went to talk to Nelson. She signed a union card which
she received from Nelson. She does not know whether she was
observed by management. On August 7, she was called to a
mandatory meeting attended by all the employees with Dr.
Sharo Shirshekan who talked about the Union. He told them
that if they voted for the Union, they would not get any raises.
He also told them that it was up to them if they wanted to vote
for the Union. He also told them that he owned four other nurs-
ing homes that had unions and he would deal with the Union if
it were elected by the employees at this facility. After the
meeting, Frauenhoffer handed out paychecks and asked
Barfield to step aside as she wanted to talk with her. After she
finished handing out the paychecks, Frauenhoffer told Barfield
that she was sorry but she had to let her go. Barfield inquired
as to the reason and Frauenhoffer said it was because of her
work performance. Barfield said, “you’re kidding” and
Frauenhoffer said yes because of your work performance.
Barfield was unaware as to what she was referring to and she
was not given anything in writing. During this discussion,
Frauenhoffer did not say anything about her going to her car.
After Frauenhoffer terminated her, she went to Law’s office
and told Law that she had just been terminated. Law asked her
for the reason and Barfield said it was for poor work perform-
ance. Law did not say anything to Barfield about going to her
car. Barfield had never been written up or disciplined. A ter-
mination notice for Barfield sets out that Barfield allegedly left
work five times prior to lunch. Barfield testified that she went
outside to get a pen from her car on only a single occasion on
August 7. Barfield testified that she had permission to go out-
side to her car on that occasion by Nurse Randolph or another
charge nurse.
Union Organizer Sharon Nelson testified the Union repre-
sents four of Shirshekan’s other nursing homes and she has not
known him as other than the owner of those homes. The Union
received an anonymous phone call around July 28 or 29 that
said they needed a union at the Respondent. She then went to
Respondent’s facility on July 31 and arrived there between 2:15
and 2:30 p.m. She saw a young lady and told her the Union
had received a phone call stating that the employees at this
nursing home were interested in the Union. The young lady
said yes and told her to wait in the vending area. She did so
until three or four employees including Patricia Baker and Paris
Banks came and left because they were not on break yet. When
they went back, they relieved other employees for their break
and then later returned to take their own break. She told the
employees that the Union had received a telephone call stating
that the employees were interested in forming a union and that
it would be necessary to have a majority of the employees sign
union authorization cards. The employees said they wanted a
union and commenced to sign union authorization cards. She
was in the vending area about 35 to 40 minutes. On the next
day (August 1) she returned to Green Valley about 2:30 p.m.
When she arrived she asked an employee, a young lady, if she
knew Patricia Baker. The employee said she would get Baker.
Baker came to the door, said she was not on break then but that
Nelson could wait in the vending room and she would bring
any cards to her. She waited for 25 minutes and Baker had not
come yet. DON Frauenhoffer and ADON Taub approached her
and told her she could not wait there. By this time, it was about
3 p.m. and the shift was leaving. Nelson proceeded to leave
and Frauenhoffer and Taub walked behind her and she walked
out the double doors at the hall and through the outside doors.
She saw that Baker was ahead of her but she could not talk to
Baker and she then walked faster to catch up with Baker. As
Nelson got closer to Baker, Baker mumbled “they are watching
me.” As Nelson turned, she saw that Frauenhoffer and Taub
were watching them. Baker told Nelson she did not have any
more cards signed. Baker and Nelson walked to their cars
which were parked near each other and got into their respective
cars and left. On the next day, about 2:30 to 2:45 p.m., Baker
called her and told her she had been terminated for “stealing
time” for not clocking out for lunch. About 45 minutes later,
Nelson received a telephone call from Paris Banks saying that
she had been terminated for “stealing time.” The Union filed
for an election on August 3. The election was set for Septem-
GREEN VALLEY MANOR, L.L.C. 915
ber 7, 2007. The election was not held as a result of the unfair
labor practice charges that were filed. On August 7, Nelson
commenced a handbilling campaign at the facility for a period
of 5 or 6 days. The handbilling informed the employees of the
filing of the election petition and informed the employees of
their rights under the National Labor Relations Act. On about
five occasions, Baker and Banks helped Nelson engage in the
handbilling. August 7 was the first day that Nelson handbilled.
She handbilled on Prigge Road (a public road) and parked her
car on a grassy area on the side of the road. She handbilled
from 2:30 to 3:20 p.m. A police office approached her on that
date and asked what she was doing. She told him this was an
organizing drive and that she had a right to be there. He said
this was fine as long as she did not block traffic on the road.
She told him she would not block the road. Another police
officer drove onto the facility about 15 minutes later. He went
into the facility and came back out and drove by her without
stopping or saying anything. She handbilled again on August
10. This was the first day she met Luther Sledge. She began to
hand out flyers and Sledge came up in the nursing home’s
white van and pulled up within 10 feet of her face. He then
backed up a bit and stayed in the van. She told Sledge that he
did not have the right to engage in surveillance of the employ-
ees. Sledge told her to get off his property. She told him she
was not on his property. Sledge then put his phone to his ear.
At that time the vehicles began to go by rather quickly and did
not take the flyers. One of the ladies yelled that they would get
fired if they were seen talking to Nelson. She went back to
handbill on several occasions. On August 13 about 2:30 to
2:35 p.m., Sledge again came up to her while she was handbill-
ing and pulled up in front of her face again.7 Patricia Baker and
Paris Banks were present on an occasion when a verbal con-
frontation between Sledge and Nelson occurred.
Administrator Marilyn Law testified she has responsibility
for all the financial and resident issues and oversees the de-
partment heads. Green Valley has been in operation since
March 2004. There is an average of about 110 residents. The
nursing home has about 80 employees. There are about 40
CNAs and 5 or 6 CMTs. There are also LPNs and RNs. Dr.
Sharo Shirshekan is the manager of Green Valley and other
nursing homes. She does not know if Dr. Shirshekan owns
these nursing homes. There are four homes in the network in
the St. Louis area. There are also some homes outside of the
St. Louis area. The corporate office is in Farmington, Missouri,
where Dr. Shirshekan is based. Taiisha Burgess is an employee
of Green Valley who orders central supplies and handles medi-
cal records. She also works at two other nursing homes man-
aged by Dr. Shirshekan. Laura Miloshewski is the activities
director at Green Valley. She plans activities for the residents
and has an assistant. Director of nursing (DON), Elaine
Frauenhoffer reports to Law. The assistant director of nursing
(ADON), was Marty Taub at the time of the incidents in this

7 At this point in the testimony, the General Counsel withdrew par. 5(f)
of the complaint which alleges that “on August 31, 2007, Respondent by
Maintenance Supervisor Sledge interfered with employees and union
representatives engaging in protected concerted activity near, but not on,
Respondent’s property by threatening to call the police.
case. Taub has since resigned. There is a high turnover of
employees at Green Valley. The employees do not quit but
either do not come back to work or their attendance is so bad
that the nursing home has to terminate them. Law signs off and
approves the disciplines.
Law testified that the nursing and CNAs and CMTs work an
8-hour day. There are three shifts (7 a.m. to 3 p.m., 3 to 11
p.m., and 11 p.m. to 7 a.m.). The employees receive a half-
hour lunch for an 8-hour shift. If they eat in the facility, they
do not need to clock out as the lunch is automatically taken out.
If they leave the building, they must clock out. The employee
handbook states “hourly employees should also check in and
out for lunch.” Law testified that this statement does not dif-
ferentiate, but that in practice, employees who stay in the build-
ing do not clock out and if employees leave the building, they
must clock out. Baker was terminated for leaving the building
without clocking out which is considered “stealing time.” The
position of Respondent is that as long as they work five hours,
Respondent will deduct their lunch period from payroll regard-
less of whether they take lunch or not. Law is unable to deter-
mine how much time Baker stole by taking lunch as Baker left
without clocking out and Law does not know when Baker came
back. Law acknowledged that if an employee went out and
came back within a half hour, the employee would not be guilty
of theft. Employees frequently go out for lunch and often take
orders for other employees. Law contended that a person could
not go to a Jack-in-the-Box, come back, and eat the lunch
within a half hour but admitted she had not tried to do this.
Law also admitted she did not know how many minutes Baker
was gone. Law testified she believed that Banks was termi-
nated for tardiness and absences. She testified that she was not
aware that Banks went to lunch with Baker. Frauenhoffer told
her that Baker did not clock out when she went to lunch. Law
did not have personal knowledge of the circumstances with
respect to Baker, Banks, and Grover, but Law personally saw
Barfield walk past her office and go to her car five or six times
without notifying the charge nurse. With respect to Banks,
Law protested the award of unemployment compensation by
the Missouri Division of Employment Security and asserted
that Banks was terminated for misconduct because she “did not
come to work.” However, Law testified she forgot to put down
that Banks “did not come to work on time.”
With respect to Grover, Law testified that three of the resi-
dents complained to Frauenhoffer and to Law. She did not
receive the complaints directly as the instances occurred in her
off-duty hours on the 3 to 11 p.m. shift. She later talked to the
residents who told her that Grover was very loud and they
closed their door because they were afraid of her. She did not
take a statement from the residents who complained about
Grover. The complaints were investigated by Frauenhoffer.
Grover was issued a disciplinary warning for speaking in a loud
and aggressive manner in resident care areas on August 4 and
5. These incidents were not reported to the State authorities but
Grover was terminated on August 6. With respect to Barfield,
she was terminated after Law observed her go to her car five or
six times in a day. Law did not take any action or question
Barfield after the first time Law observed Barfield go to her
car. Law asked Frauenhoffer about this and Frauenhoffer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD916
started checking up on Barfield. Office Manager Mary
Melendez also observed Barfield leaving as did staff who were
all in the front office.
Law testified further that on August 7, Shirshekan spoke to
employees at a meeting at which he told the employees that it
was everyone’s right to join the Union, that this was up to the
employees and that he would work with anyone. Law testified
that on August 7, she called the St. Louis County Police De-
partment and they sent out a police car which was driven by a
friend of her son. She called the police because Grover was out
of control and yelling at her and Shirshekan and was in their
faces. Grover got into her car when the police came and then
left. Grover was yelling that she should not have been dis-
charged and that she wanted Respondent’s files and paperwork.
The police officer did not talk to Grover. Before she left,
Grover told Shirshekan that she wanted to talk to him and stuck
her finger in his face and that is when Shirshekan went into the
building. She then started coming after Law and yelling at her.
Law testified that they called the police twice on August 7. The
second time they called 911 because the cars were blocking the
curve coming around but no one showed up that they are aware
of. Law testified she does not recall, or is not aware of, any
instance when an employee has been discharged or disciplined
for failing to clock out for lunch at Green Valley.
Respondent’s records show that employee Conchetta John-
son was given a disciplinary warning on June 30, 2005, for
being absent all day on June 10 and 13, and tardy on June 18,
19, 20, 23, and 27, 2005. Johnson was not discharged.
Conchetta Johnson also received a disciplinary warning for
February 2 and 14, 2006, and was not discharged for those
instances of absence either. Additionally, Conchetta Johnson
received another warning for absenteeism from March 3 to 10,
2006. A disciplinary warning was issued to Reonda Alston for
absences on June 2, 13, and 19, and tardiness for June 16, 18,
22, 24, and 30. Alston was not discharged in these instances.
She subsequently resigned on September 26, 2005. Employee
Valencia Burns was tardy on October 19, 21, 22, 24, 26, and
31, 2006, and received a verbal warning but was not terminated
for these tardies. General Counsel’s Exhibit 25 is a termina-
tion. Law also testified that a number of these instances pre-
date Frauenhoffer’s becoming the director of nursing.
Office Manager Mary Melendez testified that on August 2, at
Frauenhoffer’s request she pulled up a report from the com-
puter showing that Patricia Baker had not clocked out for lunch.
This is the same day that Baker was terminated for failing to
punch out for lunch for “stealing time.” Melendez was present
at the facility and observed an exchange between Beverly
Grover and Sharo Shirshekan. Grover was on the outside of the
glass door and Melendez was on the inside of the door. Shir-
shekan was outside and Grover was loud and very close to him
and almost touching him and he went inside as the glass doors
closed, Grover tried to come in but Sledge held them closed
and Grover could not come in. Melendez observed the union
handbilling on Prigge Road. She testified that the Union was
“almost” blocking the entrance driveway for Green Valley.
She further testified that the handbillers were causing conges-
tion as it was during shift change. Melendez further testified
that she seldom left the facility for lunch because there is no-
where around there that is close. On August 7, there was an
issue regarding Grover’s asking for her termination papers and
that they were not ready and Grover had to leave the facility
and then return to get them.
DON Elaine Frauenhoffer testified she is a registered nurse
and has responsibility for the welfare of the residents concern-
ing everything related to the nursing department such as hiring,
disciplining, and scheduling. She does not remember the day
or date but shortly after the shift change, she brought Grover to
a small alcove area near the nurses’ station and told her that any
kind of union discussion must be away from the patient care
area and on her break or off the property. She did not tell
Grover that she had heard a rumor that she was a union organ-
izer and had asked if this was true. A resident had approached
her and told her that the night before, Grover was loud at the
nursing station talking about union activity. She made the deci-
sion to discharge Grover because she heard on August 6 that
Grover had engaged in unprofessional behavior. The next day,
Frauenhoffer was apprised by four residents that Grover was
very loud in the halls and two of them had closed their doors to
keep her away and that they were afraid of her. She may have
called Grover in to work on August 6 as it was not her sched-
uled workday. However, she would have called Grover in prior
to having heard from the residents on that day concerning
Grover’s conduct in the resident halls. She met Union Organ-
izer Sharon Nelson after Miloshewski, the activities director,
informed her that there was a woman by the snack machines
and that employees were going back to visit her. She ap-
proached Nelson and asked her who she was there to see. Nel-
son said she was waiting for an employee named “Pat” but did
not know her last name. There were a couple of Pats working
for her. She told Nelson she must wait for “Pat” in the front of
the building. She walked up with Nelson as she exited the
building.
Frauenhoffer discharged employee Paris Banks. She testi-
fied that she reviewed the attendance and tardiness records for
the previous month at the beginning of the new month on Au-
gust 2. Banks’ records were “pretty blatant” and she terminated
her. She does not recall whether Banks ever approached her to
discuss a family situation. Banks worked weekends so there
would not have been any school issues. Banks often told her at
pay times, that if she needed help to call her and she would
come if she were free. On the day of Banks’ discharge,
Frauenhoffer wrote “6 out of 8 days of working this employee
has clocked in late. One day 4 hours late. This has been an
ongoing problem that she has been written up for before.” She
did not present Banks with that notation. Frauenhoffer later
noted that Banks was not 4 hours late as the reference to the 4
hours late was in error as this was an add-on day. However,
Banks was never presented with this information as she dis-
charged Banks over the telephone and Banks was not presented
with the actual attendance record because when she called
Banks to tell her she was going to be discharged, Banks said,
“Yeah I already know” and hung up. However, she still would
have discharged Banks even if the 4-hour late day had been
corrected. Former ADON Marty Taub witnessed this telephone
call on the speaker phone. Frauenhoffer testified she reviews
the employees’ attendance records at the end of the month. If
GREEN VALLEY MANOR, L.L.C. 917
there are only two absences, she usually let it go unless it is a
monthly pattern. If there are three absences in a month, she
gives them a writeup. She does not know if Banks was tardy
between the time of her last writeup and her discharge. Banks
was tardy a lot. She did not discharge Banks before August
2007 because she did not have anyone to replace her.
Frauenhoffer testified she made the decision to discharge
Patricia Baker. She witnessed Baker leaving the building with
another employee and told Office Manager Mary Melendez to
pull up her timesheet to see if they had clocked out. They had
not. Green Valley has a rule requiring employees to clock out
if they are leaving the building for lunch to assure that they are
only paid for the time they are actually working and because
she needs to know who is in the building at any given time of
day in case of disaster relief, fire, or a need for assistance or a
call from their childrens’ school. On Baker’s discharge notice,
she wrote “stealing time” as the reason for the discharge.
When an employee has left the building, they are not giving
patient assistance and are not helping their coworkers. They
are required to clock out as there would be additional time than
just the 30-minute automatic lunch punch as it requires a mini-
mum of a half hour to go to the nearest fast food restaurant and
back again. She also observed former employee Corneesha
Pitts leave to go to lunch with Baker. She also checked if Pitts
had clocked out for lunch. She had not done so. She did not
discharge Pitts because she was a certified medication techni-
cian and hard to replace and thus was a more valuable em-
ployee as they have a vital role in medication distribution.
CNAs are not allowed to pass out medication. She gave Pitts a
disciplinary warning for failing to clock out for lunch. This
warning also cites Pitts for “stealing time” for not clocking out.
She subsequently discharged Pitts for leaving to go to a shop-
ping center to pick up a job application after being told by a
nurse that she could not go because it would take in excess of a
half hour to get there and back.
Frauenhoffer testified she made the decision to discharge
Rashanda Barfield because she was observed by Administrator
Law going to her car five times in a 2-½-hour period. She ter-
minated Barfield on payday August 7 as she was handing out
paychecks to the employees. She told Barfield to wait until she
was finished handing out the paychecks. At first, Barfield de-
nied it but when she told Barfield that Administrator Law had
seen her, she no longer denied it but cried and asked Frauenhof-
fer to give her another chance. She did not say that she had
permission of the charge nurse. Barfield told her she was talk-
ing on the phone. Her decision to discharge Barfield did not
have anything to do with union activities. Neither did her deci-
sion to discharge Baker have anything to do with union activi-
ties. The topic of Grover’s conversation about unions did not
cause her to discharge Grover. Rather, it was Grover’s conduct
that led to her discharge.
Frauenhoffer testified that four residents came to her con-
cerning Grover and complained that she was “being very loud
going up and down the halls, going rah-rah for the Union” and
that they were very frightened. Frauenhoffer did not discuss
this with the employee that Grover was orienting that day. She
assumes that when a resident makes a complaint, that the resi-
dent is correct. She dismissed Grover for her behavior and
loudness in a patient care area. If there had been abusive lan-
guage, Grover would have been investigated by the State. She
told Grover not to conduct union business in patient care areas.
Grover engaged in conversation about the Union on August 4
which was overheard by a resident who reported it to Frauen-
hoffer in the afternoon of August 6 when the resident saw
Frauenhoffer. Frauenhoffer then brought Grover aside and told
her she could not conduct union business in patient care areas
but only on her break or off the premises. Although she dis-
charged Baker for stealing time by failing to punch out for
lunch on the timeclock, she does not know how much time she
stole. In her view, if someone does not clock out for lunch,
they are automatically terminated if they leave the building.
Employees are not required to clock out for lunch if they do not
leave the building. She is aware that there is an investigation
when there is a complaint against an employee and the resi-
dents are interviewed where there is suspected abuse. CNAs
are supposed to tell the charge nurse when they go to lunch and
to report back to the charge nurse. She did not review the work
records of Baker and Pitts to determine whether one was more
culpable than the other. She called Banks at home to inform
her she was discharged but Banks did not give her the chance to
inform her of the reason for her discharge because Banks said
“Yeah, I already know” and hung up the telephone. This oc-
curred in the afternoon after she discharged Baker. Thus,
Banks and Baker were discharged within less than an hour of
each other. She gave information to the Missouri Division of
Employment Security indicating that attendance was the reason
for the discharge of Banks but did not correct the incorrect
designation of 4 hours late on the occasion when Banks had
been called in during a shift. In its response to the Missouri
Division of Employment Security, Respondent stated that
Baker was terminated for stealing time. In Respondent’s re-
sponse to the Missouri Department of Employment Security, it
states that Banks was late 6 out of 8 days. Green Valley tells
the Missouri Department of Employment Security that Banks
did not come to work. In its Position Statement given to the
Board, Respondent states that Banks was discharged for failing
to clock in and out for lunch and because of her significant
tardiness. Frauenhoffer testified that she checked with
Barfield’s charge nurse but she did not document her response.
There was no attempt to contact Barfield and question her con-
cerning each of the five times she allegedly went out to her car.
C. Analysis and Conclusions
I find that the General Counsel has established prima facie
cases that Baker, Banks, Barfield, and Grover were engaged in
union activities, that Respondent had knowledge of this and had
animus as documented by 8(a)(1) violations and the record as a
whole and that Respondent took adverse actions against each of
these four employees by discharging them within a week of
their having signed union authorization cards.
I find the reasons advanced for the discharge of these four
employees were pretextual and support findings that their dis-
charges were in retaliation for the employees’ union activities.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir.
1966); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD918
In the event that an analysis under Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), is necessary, I find that the General Coun-
sel has established prima facie cases in each of the cases in this
matter. In each case, Baker, Banks, Barfield, and Grover were
engaged in protected concerted activities in support of the Un-
ion, the Respondent had notice thereof, the Respondent had
animus against the Union and took adverse actions by discharg-
ing each of these individuals. I find that Respondent has failed
to rebut the prima facie cases by the preponderance of the evi-
dence and has failed to demonstrate that it would have disci-
plined and discharged Baker, Banks, Barfield, and Grover in
the absence of their engagement in protected activities. I find
that the timing of the four discharges within less than a week of
the initiation of the union campaign in and of itself supports a
finding of unlawful motivation. I find that the reasons ad-
vanced by the Respondent in support of the discharges were
pretextual and were not the true reasons. I find that the evi-
dence in this case clearly establishes disparate treatment as the
adverse actions taken against these four employees were not
taken against other employees for similar offenses.
With respect to Baker, the Respondent quickly identified her
as a union supporter by the encounter with Union Organizer
Nelson and the presence of Baker as she and Nelson walked out
to their cars and were observed by DON Frauenhoffer and
ADON Taub on August 1. The next morning on August 2,
Baker was identified as the person soliciting union cards by
employee Terrell Noble in the presence of Supervisor Sledge.
In less than an hour, Baker was called into a meeting in the
presence of Taub, Sledge, Melendez, and DON Frauenhoffer
who told Baker she was being discharged for “stealing time” by
not clocking out for lunch. Baker testified that it was not an
unusual occurrence for employees to go out of the building to
buy their lunch at fast food restaurants to return to the facility
for consumption within the space of the allotted half hour with-
out clocking out and back in. Respondent’s records show that
Baker’s discharge was the only instance wherein any discipline,
much less a discharge, had ever been issued to an employee for
failing to clock out for lunch when the employees left the build-
ing to buy their lunch at a fast food restaurant for a return to
Green Valley for consumption on the premises. This unrebut-
ted evidence clearly demonstrates disparate treatment as Baker
was singled out for discharge. Although Baker went to lunch
with Pitts and Banks, Pitts was not discharged but was rather
only issued a warning for doing so. Frauenhoffer testified this
was because Pitts was a certified medical technician (CMT).
However, Pitts was subsequently discharged along with another
CMT for leaving the premises to obtain job applications at a
shopping mall. This certainly undercuts Respondent’s argu-
ment that Pitts was not discharged because she was a more
valuable employee than Baker who was a CNA. With respect
to whether an employee could leave the premises, buy her
lunch, and return for consumption of the lunch on the premises
within the allotted half hour, Frauenhoffer admitted that she did
not know whether Baker had accomplished this within a half
hour. Administrator Law testified she would need to know
what time Baker left and when she returned and ate her lunch.
It is clear that these calculations were not made. Rather, Baker
was summarily discharged.
Banks was called on the telephone on the same day and
within less than an hour of Baker’s discharge and put on a
speaker phone in the presence of Supervisor Sledge and ADON
Taub. Banks testified that she was told by Frauenhoffer that
she was being discharged for not clocking out. Banks testified
she asked Frauenhoffer not to discharge her as this was the first
time she had gone out to lunch but that Frauenhoffer refused.
Frauenhoffer testified that when she called Banks, that Banks
said “I already know” and hung up. I credit Banks’ specific
testimony in this regard. Banks’ testimony was corroborated
by Nelson who testified that Banks told her she was discharged
for failing to clock out for lunch. Frauenhoffer then issued
Banks a “disciplinary warning” on that date (August 2) in
which she checked the category “Discharge” for that date for
clocking in late 6 out of 8 days and being 4 hours late on one
day and noted that Banks had been “written up” before for this
ongoing problem. However, in its position statement filed with
Region 14 of the Board, Respondent stated that Paris Banks
was discharged “for attendance issues, not merely for failure to
clock in and out for lunch (or in retaliation for union activity)
as alleged in the Charge.” The foregoing demonstrates a shift
in Respondent’s defenses by adding a defense of attendance as
the reason for the discharge of Banks. However, a review of
Banks’ record demonstrates that Banks had been consistently
late after she had talked to Frauenhoffer in February 2007 and
explained her need to be late and had not received any addi-
tional warnings since that time until her discharge of August 2.
Respondent’s records further show that many of its employees
are consistently late and that Respondent tolerates this situation
and only discharges employees when they are absent from work
as opposed to merely being late because of its high turnover of
employees to do this difficult work and because it needs the
employees to fully staff its facility. Thus, it is preferable from
Respondent’s business point of view to tolerate tardiness as
opposed to absenteeism in order to keep its facility fully
staffed. I find that both of the alleged reasons given by Re-
spondent for the discharge of Banks are pretextual and demon-
strate disparate treatment by Respondent’s tolerance of tardi-
ness on the part of its other employees while discharging Banks
for this asserted reason. The record testimony also demon-
strates that Respondent tolerated other employees leaving the
facility for lunch without clocking out and in but seized on the
failure of Baker and Banks to do so in order to rid itself of
Baker who had been identified as a leading union adherent and
to rid itself of Banks who was Baker’s close friend and who
Respondent thereby concluded was also a union supporter.
Moreover, the timing of Banks’ discharge within an hour of
Baker’s discharge is in and of itself conclusive proof that the
discharges of Banks and Baker were inextricably intertwined.
In the case of Grover, Frauenhoffer was aware of her support
of the Union as she conceded that she had warned Grover not to
discuss the Union in work areas and in residents’ rooms. I
credit Grover’s account of this incident and that Frauenhoffer
told her she would deny the incident if Grover mentioned it to
anyone. In considering Grover’s testimony, I note that she is
outspoken and was assertive of her position. As the General
Counsel urges in brief, Grover did not attempt to modify her
GREEN VALLEY MANOR, L.L.C. 919
testimony or put forward any excuses for her conduct on the
nights of August 4 and 5. Rather, she testified that there were
no problems and that she spent most of the evening of August 4
orienting a new CMT in the passing out of medications to the
residents. Although both Administrator Law and DON Frauen-
hoffer testified they received complaints about Grover’s alleg-
edly loud conduct involving the Union, they did not initiate an
investigation to determine whether there was any threat to the
residents or any intimidation of them. Frauenhoffer contended
at hearing that the resident is always right and that there is no
need to investigate as a result. Such a position is not worthy of
belief as many of the residents in this case are afflicted with
disabling and chronic mental conditions and it is not plausible
that the Respondent would prejudge any situation involving an
allegation of abuse of a resident and summarily discharge an
employee without having made a detailed investigation. It is
significant that the Respondent did not investigate the matter by
interviewing the new CMT whom Grover was charged with
orienting on how to pass out medications to the residents.
Surely, if Grover had been acting inappropriately during this
period, the CMT would have been aware of it. Moreover, there
is no evidence that Frauenhoffer interviewed the charge nurse
who was on duty on the evenings of August 4 and 5. Rather,
on the morning of August 6, Frauenhoffer discharged Grover
for “inappropriate use of the med cart.” In response to
Grover’s questions as to what she had done to warrant her dis-
charge, Frauenhoffer told her she did not have time to discuss
the matter. It was not until Grover appeared on payday on Au-
gust 7 to get her paycheck and demanded her termination notice
that she received and was ultimately given a second reason for
her discharge, on the ground that she had conducted herself in a
loud manner which intimidated certain of the residents. It is
thus clear that Respondent engaged in disparate treatment of
Grover. It is vital that a nursing home must be operated with
proper care and freedom of abuse so as to provide a safe and
protected home for the residents. However, I find that in this
case, the Respondent seized upon purported complaints by
residents of inappropriate loud behavior on the part of Grover.
Rather, than investigating the situation, the Respondent summa-
rily discharged Grover.
With respect to Respondent’s assertion that Grover is not en-
titled to relief of reinstatement and backpay because of her
conduct on August 7 when she appeared on that date to collect
her pay on that payday, I find this contention is without merit.
It is clear that Grover, by her own testimony, was “pissed” as a
result of her discharge and Respondent’s failure to give her an
explicit reason for her discharge. She testified that she saw
Shirshekan, the operator of the nursing home, and extended her
hand to shake hands and told him she wanted to talk about her
discharge but that he withdrew from doing so and directed Law
to call the police which she did. However, I do not credit
Law’s and Melendez’ testimony that Grover physically touched
him or otherwise threatened him. I note that Shirshekan him-
self was not called to testify. I find that the conduct of Grover
in loudly insisting on her termination notice was not so egre-
gious as to warrant the denial to Grover of the relief of rein-
statement and backpay afforded under the Act.
With respect to Barfield, I credit Law’s testimony that she
observed Barfield go to her personal automobile in the parking
lot on five occasions. I find this testimony was specific and
consistent. However, I find that Frauenhoffer’s summary dis-
charge of Barfield was motivated by Barfield’s participation in
protected concerted union activities. In making this determina-
tion, I find that the General Counsel has established a prima
facie case that Barfield engaged in union activities by meeting
with Union Organizer Nelson and signing a union card in the
vending room area of the dining room on July 31 in the pres-
ence of Activities Director Miloshewski who was conducting
activities for the residents in the dining room on that date. I
find the evidence is sufficient to establish that Barfield was
identified as a union supporter as Frauenhoffer testified that
Miloshewski informed her of a lady meeting with the employ-
ees in the dining room. Moreover, Frauenhoffer interrogated
LPNs Salome and Randolph as to whether they knew of a union
organizer meeting with employees in the last 2 days. This
gives rise to a finding that Barfield was identified as a union
supporter. I credit the testimony of Frauenhoffer that Barfield
at first denied that she had gone out to her car five times but
when Frauenhoffer told her that Law was the person who iden-
tified her, that Barfield admitted to having gone to her automo-
bile on five occasions, cried and admitted that she had gone to
her car to talk on the telephone. Respondent’s discharge of
Barfield is tied to the other three discharges in this case as a
result of the close timing of this discharge to the discharge of
the other three employees. There is also significant evidence of
disparate treatment in this case whereby the Respondent toler-
ated shortcomings in other employees. Barfield had not re-
ceived any prior disciplines. I find that Barfield engaged in
union activities by signing a union card and engaging in discus-
sion with Nelson concerning the Union. The evidence is suffi-
cient to support a finding that Respondent had knowledge of
Barfield’s engagement in union activities. This finding is am-
ply supported by the close timing of these four discharges
within a week of the initiation of the Union’s campaign. It is
undisputed that Barfield was the recipient of adverse action by
Respondent’s discharge of her. I find the General Counsel has
demonstrated a link between the Respondent’s knowledge of
Barfield’s engagement in union activities, its union animus, and
the adverse action taken against Barfield. I thus find that the
General Counsel has established a prima facie case that Re-
spondent took the unlawful action because of Barfield’s en-
gagement in union activities. I do not credit Respondent’s con-
tention that Barfield was terminated solely because of the re-
peated instances when she went to her automobile. I, accord-
ingly, find that the Respondent has failed to rebut the prima
facie case by the preponderance of the evidence and that her
discharge by Respondent was violative of Section 8(a)(1) and
(3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by the in-
terrogation of its employees by DON Frauenhoffer and ADON
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD920
Taub concerning their union activities and the union activities
of its employees.
4. Respondent violated Section 8(a)(1) of the Act by the in-
terrogation of its employees concerning who was distributing
union authorization cards.
5. Respondent violated Section 8(a)(1) of the Act by the in-
terrogation of employee Beverly Grover by Director of Nursing
Elaine Frauenhoffer concerning her union activities in organiz-
ing on behalf of the Union.
6. Respondent violated Section 8(a)(1) of the Act by its inter-
ference with lawful handbilling by the Union near, but not on,
property occupied but not owned by the Respondent by calling
the police because employees and a union representative en-
gaged in these protected union activities.
7. Respondent violated Section 8(a)(1) of the Act by Mainte-
nance Supervisor Sledge’s interference with a union representa-
tive and employees engaging in protected concerted activities
near, but not on, Respondent’s property by instructing them to
leave and threatening to call the police if they did not leave.
8. Respondent violated Section 8(a)(1) and (3) of the Act by
the discharges of its employees Patricia Baker, Paris Banks,
Rashanda Barfield, and Beverly Grover because of their en-
gagement in protected concerted activities on behalf of the
Union.
9. The aforesaid actions in connection with Respondent’s
status as an employer affect commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in the above
violations of the Act, it shall be recommended that Respondent
cease and desist therefrom and take certain affirmative actions
designed to effectuate the policies and purposes of the Act and
post the appropriate notice. It is recommended that Respondent
cease the unlawful interrogation of its employees concerning
their union activities and those of their fellow employees and
that Respondent cease the unlawful interference with the lawful
handbilling engaged in by union representatives and employees
and that Respondent rescind the discharges of Patricia Baker,
Paris Banks, Rashanda Barfield, and Beverly Grover, and offer
immediate reinstatement to these employees. These employees
shall be reinstated to their prior positions, or, if those positions
no longer exist, to substantially equivalent ones. These em-
ployees shall be made whole for all loss of backpay and bene-
fits sustained by them as a result of the Respondent’s unfair
labor practices. All of the backpay amounts shall be computed
in the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as computed in New Horizon for the
Retarded, 283 NLRB 1173 (1987), at the “short term federal
rate” for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. Section 6621.
[Recommended Order omitted from publication.]