Milford Manor, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1977

233 N.L.R.B. 1283 (N.L.R.B. 1977)

MILFORD MANOR, INC.
Milford Manor, Inc. and Dorothy Skelton. Case 22-
CA-7161
December 16, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On July 29, 1977, Administrative Law Judge Irwin
H. Socoloff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel filed a
brief in support of the Decision of the Administrative
Law Judge, and Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Milford Manor, Inc., West Milford, New
Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Make Dorothy Skelton whole for any loss of
pay she may have suffered by reason of the
Respondent's discrimination against her by payment
to her of a sum of money equal to that which she
normally would have earned as wages from the date
of the discrimination to the date of Respondent's
offer of reinstatement, less her net earnings during
such period, with backpay to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest as set forth in Florida
Steel Corporation, 231 NLRB 651 (1977) (see,
generally, Isis Plumbing & Heating Co., 138 NLRB
716 (1962))."
2. Insert the following as paragraph 2(c) and
reletter the subsequent paragraphs:
"(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
233 NLRB No. 189
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this recommended
Order."
3. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent also has excepted to the Administrative Law Judge's finding
that, during the year preceding issuance of the complaint, it received goods
valued in excess of s5,000 from points outside the State of New Jersey. For
the first time in this proceeding, Respondent now asserts that "to the best of
[itsI knowledge" all goods which it purchased during the relevant penod
onginated within New Jersey, "with the possible exception of a few hundred
dollars." Respondent, however, in its answer to the complaint, admitted the
jurisdictional allegations on which the Administrative Law Judge relied and,
in its exceptions, has failed to allege evidence that was not available to it at
the time of the hearing.
Accordingly, we find that the admission in its answer to the complaint
remains binding, and that the Administrative Law Judge's assertion of
jurisdiction is proper. Cf. K & W Trucking, Inc., d/b/a Circle Transport, 215
NLRB 127 (1974).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees because
they engage in concerted activities for their
mutual aid and protection.
WE WILL NOT threaten employees with dis-
charge should they engage in such concerted
activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed in the National Labor
Relations Act.
WE WILL offer Dorothy Skelton immediate and
full reinstatement to her former position or, if that
position no longer exists, to a substantially
equivalent position, without prejudice to her
seniority or other rights and privileges.
WE WILL make Dorothy Skelton whole for any
loss of earnings because of the discrimination
against her plus interest.
MILFORD MANOR, INC.
DECISION
STATEMENT OF THE CASE
IP.WIN H. SOCOLOFF, Administrative Law Judge: Upon
charges filed September 2, 1976, by Dorothy Skelton, an
individual, against Milford Manor, Inc., herein called
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 22,
issued a complaint dated October 26, 1976, alleging
violations by Respondent of Section 8(a)(1) and Section
2(6) and (7) of the National Labor Relations Act, as
amended, herein called the Act. Respondent, by its answer,
denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me in
Newark, New Jersey, on January 13, 1977, at which the
General Counsel and Respondent were represented by
counsel and all parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to
introduce evidence. Thereafter, the parties filed briefs
which have been duly considered.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New Jersey corporation engaged in the
business of providing and performing nursing and related
services at its West Milford facility. During the year
preceding issuance of the complaint, a representative
period, Respondent received gross revenues in excess of
$100,000 which were derived from the operation of the
West Milford facility. In that same time period, Respon-
dent received, at its above-mentioned location, goods
valued in excess of $5,000 which were shipped from points
located outside the State of New Jersey. I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
On August 31, 1976, Respondent discharged its assistant
directress of nursing, Dorothy Skelton. The General
Counsel contends that Skelton's discharge occurred as a
result of her participation in concerted employee activity,
protected under Section 7 of the Act, and, thus, that the
discharge was in violation of Section 8(a)(l) of the Act.
Respondent asserts that Skelton was discharged because of
her insubordinate action in taking an extended vacation
period, and not for reasons proscribed by the Act. In
addition, Respondent contends that, at the time of her
discharge, Skelton was a statutory supervisor and/or a
managerial employee not entitled to the Act's protection.
Also at issue is whether, on September 4, 1976, Respon-
dent, by its supervisor, Nanette Smith, warned its nurses
that they would be discharged if they engaged in protected
concerted activity, in violation of Section 8(a)(1).
B. Skelton's Alleged Supervisory Status
Dorothy Skelton was hired by Respondent in 1972, as a
staff nurse at the Milford Manor, Inc., nursing home. In
I The fact findings contained in this section are based upon a composite
of the testimony of Skelton, nurses Mary Clark, Maryann Keneally, and
Carol Schenk, and Directress of Nursing Nanette Smith.
2 In one instance, Skelton was instructed by the administrator to inform
October 1975, she was promoted to the position of assistant
directress of nursing. Skelton functioned in that capacity
until her discharge on August 31, 1976.
As assistant directress of nursing, Skelton worked under
the supervision and direction of one Nanette Smith, the
directress of nursing and an acknowledged supervisor
within the meaning of the Act. Unlike Smith, who was
salaried, Skelton was hourly paid and earned 25 cents per
hour more than the staff nurses. While Smith did not
perform actual nursing duties, Skelton spent substantially
all of her time in the discharge of the same nursing
functions performed by the staff nurses; namely, the
treatment of patients and related duties. In addition,
Skelton served as the infection control nurse, was responsi-
ble for the medical charts, and maintained the nursing
orientation records. Skelton also accompanied the state
inspectors on their tours of the home in order to answer
their questions, and accompanied the pharmacists on their
regular rounds, answering their questions concerning
patient medication. In the latter connection, Skelton also
signed the list of medication which was to be destroyed. In
the absence of Smith, Skelton was available to answer the
medical questions of the staff nurses pertaining to patient
care, and the medical questions of the administrator
pertaining to the admission of patients.
Skelton did not possess the authority to hire or fire 2 aides
or nurses, or to adjust their grievances. She lacked
authority to transfer, reward, or promote employees, or to
effectively recommend same. Like other staff nurses, she
could orally correct an aide with respect to patient care
matters, and could initial the timesheets of aides who
decided to switch schedules between themselves. The basic
work schedules, for nurses and aides, were prepared by
Smith. On two occasions, in the absence of Smith, Skelton
participated in the preparation of those schedules in
consultation with either Smith or the administrator,
Howard Pearl. In each instance, Skelton merely followed
the worksheets of schedules previously prepared by Smith.
Smith and Skelton did not alternate their regular work
schedules. Rather, they generally worked the same hours.
Skelton alternated her weekend hours, not with Smith, but
with a staff nurse. In any event, when off duty, Smith
remained available for consultation by telephone. Skelton
also received telephone calls at home with respect to
medical matters pertaining to patient care, but not with
respect to personnel matters. Such questions were directed
to Smith, Administrator Howard Pearl, and President
Nathan Pearl.
In my judgment, this issue is not a close one. I think it
obvious from the foregoing recitation of the record
evidence that Skelton, after her promotion to assistant
directress, continued, essentially, to function as a staff
nurse. What additional duties she performed were medical
duties, not personnel functions. While Skelton, in common
with the other staff nurses, had authority orally to
reprimand aides with respect to patient care matters, this is
not an indicia of supervisory authority but, rather, the
an aide who was about to complete her probationary period that the
administrator had decided to discharge her. Skelton carried out that
assignment.
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MILFORD MANOR, INC.
exercise of professional judgment incidental to the treat-
ment of patients.3 I find and conclude that Skelton, at the
time of her discharge, was not a supervisor within the
meaning of Section 2(11) of the Act. I further conclude, in
the absence of evidence that Skelton, while assistant
directress, possessed authority to formulate, determine, or
effectuate management policies, that Skelton was not a
managerial employee.
C. The 8(a)(1) Conduct
In the spring of 1975, Respondent's president, Nathan
Pearl, conducted a meeting of the staff nurses in order to
discuss salaries and other benefits. According to Skelton's
testimony, at the close of that meeting, she told Pearl that
the "aides got their benefits and raises at a regular time
because they belonged to a union." Pearl responded,
stating, "I would never have any of my nurses in a union,"
to which Skelton answered that Pearl's statement was an
unfair labor practice. Skelton's version of the foregoing
conversation was corroborated by the testimony of nurses
Clark and Keneally, while Nathan Pearl testified that he
could not recall such a conversation. Skelton further
testified that, in September 1975, prior to her appointment
as assistant directress, Pearl told her that he had first
offered the position to another nurse because of the union
statement made by Skelton at the spring meeting. Pearl did
not testify concerning that conversation. In the spring of
1976, according to Skelton's uncontradicted testimony, she
asked Smith about a rumor that Pearl wanted to discharge
her. Smith said that it was because of "the talk about
unions." While the foregoing conversations occurred
outside the 10(b) limitations period, they are noted as
background as well as for the light they shed upon the
nature of Respondent's conduct within the limitations
period. I credit Skelton's testimony concerning those
conversations and find that they occurred substantially as
she testified.
Later in the spring of 1976, Nathan Pearl conducted
another meeting of the nurses at which he announced an
increase in wages and benefits. Pearl further changed the
full-time schedule from 4 to 5 days per week, and
announced reduced benefits for those nurses working 3 and
4 days, and no benefits for those working less than 3 days.
According to Skelton's testimony, as corroborated by the
testimony of Clark, Keneally, Smith, Nathan Pearl, and
Howard Pearl, Skelton objected, stating, "I didn't think it
was fair to all those people who had been there a long time
and were working less than four days. I said the increase
wasn't much of anything. It was a waste of my time." At
one point, Nathan Pearl accused Skelton of speaking for
herself only. Skelton replied:
3 Valley Hospital, Ltd., 220 NLRB 1339 (1975); Wing Memorial Hospital
Association, 217 NLRB 1015 (1975).
4 Corbet Corporation, 191 NLRB 892 (1971). See also Rinke Pontiac Co.,
216 NLRB 239 (1975); Air Surrey Corporation, 229 NLRB 1064 (1977);
Diagnostic Center Hospital Corp. of Texas, 228 NLRB 1215 (1977).
5 Subsequent to the discharge of Skelton, Hanson became the assistant
directress.
8 Respondent asserts that the overlap of the Smith and Skelton vacations
[N ]o, I am not, and I looked at the other girls and I said
they are all afraid to speak up to you so I said would
you all please speak up so I don't get in trouble and I
don't get blamed for this and at that point they all did
speak up.
Clark and Keneally testified that, following Skelton's
appeal for support, Clark told Nathan Pearl that "there is
no sense in even talking about it, you don't listen."
I find that, at the spring 1976 meeting, when Skelton
complained about the effect of the new benefit system
upon the nurses, asked for support for that position from
the other nurses, and was finally joined in her comments by
Clark and others, Skelton was engaged in protected
concerted activity. While there is no evidence that Skelton
had been formally authorized to speak for the group of
nurses, the matter at issue was of importance to all of the
nurses and Skelton spoke for the benefit of the entire
group.4
Smith, Nathan Pearl, and Howard Pearl all testified that,
at the above-discussed meeting, Nathan Pearl told the
nurses that they would be limited to 2 weeks' vacation for
that year. According to Howard Pearl, the nurses were
informed that their excessive vacation periods of previous
years had created difficulties for the nursing home. In
contradiction of that testimony, Skelton, Clark, and
Keneally testified that Nathan Pearl made no mention of
vacations at all.
In May 1976, Skelton signed the 1976 vacation list, which
had been posted by Smith, indicating her intention to take
16 days, extending over a 4-week period, in August of that
year. According to Skelton, she and Smith discussed the
fact that there would be a 2-week overlap of their
respective vacations and Smith decided to brief nurse
Hanson on various matters.5 Skelton further testified that
she was never asked to change her vacation plans.
Smith testified that when she realized that there would be
an overlap of vacation periods she told Skelton that "it
might present a problem" and that she, Smith, would
discuss the matter with Howard Pearl. Thereafter, accord-
ing to Smith, at a lunch period in July 1976 while Smith,
Skelton, and Howard Pearl were seated at a table and
talking about vacations, Howard Pearl "brought it up that
she would be gone at the same time I was to be away and
there would be no coverage and she told him she would be
taking that time off." Howard Pearl responded, stating that
he "didn't think it would be right," but did not tell Skelton
that she should not, or could not, take the requested time.
However, Howard Pearl, in testifying about this alleged
conversation, stated that he told Skelton that it was
"grossly unfair of her to even consider something like that,
that it was wrong, that the facility would not be covered
and that it is not a tolerable situation."6 Nonetheless,
Howard Pearl testified, Skelton insisted on taking those
left it vulnerable to a "deficiency" finding by the state medical inspectors.
Thus, according to Respondent, its 1975 decision to create the position of
assistant directress was taken in order to correct an earlier "deficiency,'
found during an extended absence of Mrs. Smith, based upon the absence of
a full-time directress of nursing. However, the February 19, 1975, deficiency
report shows that the "deficiency" finding was based, not upon Smith's
temporary absence, but upon the fact that Smith had too many nonnursing
(Continued)
1285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacation weeks. Thereafter, Howard Pearl did not discuss
the matter with Skelton, nor did he call it to the attention
of President Nathan Pearl, before Skelton departed for the
indicated vacation some 3 weeks later.
On August 31, 1976, 1 day prior to Skelton's scheduled
return to work, she received a telephone call from Smith.
Skelton testified that Smith told her that Nathan Pearl did
not want Skelton to return. Smith further stated that
Skelton's work was "very good" and that Smith could not
give Skelton a reason for the discharge.' Skelton asked to
talk to Nathan Pearl who told her:
[Y]ou are a good worker, I would give you excellent
references . . . you know we have not been getting
along, you are trying to run my business, you are not
working for the good of the organization, it would be
best that we should part friends.
According to Skelton, Nathan Pearl did not mention the
matter of Skelton's vacation.
Smith and Howard Pearl, who were in Nathan Pearl's
office during this August 31 conversation, testified that
Nathan Pearl told Skelton that the reason for the discharge
was the matter of the overlapping vacations. According to
Smith, Nathan Pearl did not mention the earlier confronta-
tions. According to Howard Pearl, Nathan Pearl also told
Skelton that she had not been working in the best interests
of the organization and that her discharge was due to "all
prior happenings." Nathan Pearl testified that he told
Skelton that, while she was an excellent nurse, "your
attitude, your feelings toward me, and I don't feel anything
much different toward you, that it would be best that -
and your staying away from the nursing home, that this
would terminate our relationship for the present time."
Nathan Pearl initially testified that his decision to
terminate Skelton's employment was based upon the
vacation matter as well as Skelton's "personal attitude
towards management." Nathan Pearl later testified that
Skelton's extended vacation was the only reason for the
discharge, and that the fact that they "were not getting
along" was not a factor. He then stated that he mentioned
the attitude factor to Skelton when he discharged her
because:
I thought at that time that it would be a good idea
for her to know that working in a facility that it would
be a good idea to try to respect management and what
they have to do.
Keneally testified that, on September 1, 1976, the day
following the Skelton discharge, during a conversation with
Smith, Keneally asked Smith why Skelton had been
discharged by Pearl. Smith replied: "[W]ell, you know that
meeting in the Spring, he never forgave her." Smith initially
denied making that statement. On cross-examination, she
testified: "As I said, it is possible, but I don't remember
saying that."
According to Clark, on September 4, 1976, Smith told
Clark, in the presence of nurse Schenk, that Skelton had
been discharged because of the spring meeting, and that
duties. The "deficiency" was corrected by relieving Smith of such
nonnursing duties.
"the only way to get along here is to keep your mouth
shut." Smith, in her testimony, stated that, while she could
not remember making that statement, it was possible that
she had done so. Schenk testified that she did not recall
such a conversation.
Skelton, Clark, and Keneally impressed me as entirely
honest, forthright witnesses. Based upon Keneally's testi-
mony, substantially undenied by Smith, I find that, on
September 1, 1976, Smith informed Keneally that Skelton's
discharge was due to her conduct at the spring meeting. I
further find, in view of Clark's substantially uncontradicted
testimony, that, on September 4, 1976, Smith told Clark
that Skelton's employment had been terminated because of
her activities at that year's spring meeting, and that "the
only way to get along here is to keep your mouth shut." In
context, the latter comment was a thinly veiled warning
that other nurses would also be discharged if they engaged
in protected concerted activity and, thus, was violative of
Section 8(aX)( 1) of the Act.
I have also concluded that the discharge of Skelton was a
result of her protected concerted activity at the spring 1976
meeting, in violation of the Act. That conclusion is
mandated by the following considerations:
1. Nathan Pearl's previously demonstrated animus
toward Skelton's concerted activities, as shown by his
September 1975 statement to Skelton that, because of her
prior comments about a union, he had initially offered the
assistant directress position to another nurse. In this
connection, in early 1976, Smith told Skelton that Nathan
Pearl wanted to get rid of her because of those comments.
2. Nathan Pearl's admission that one of the reasons for
his decision to discharge Skelton was "her personal attitude
towards management," a factor unexplained by the record
in this case except in terms of Skelton's concerted activities.
3. The postdischarge admissions of Supervisor Smith,
to Clark and Kenneally, that Nathan Pearl discharged
Skelton because of the comments made by Skelton at the
spring 1976 meeting.
4. The improbable nature of the testimony of Smith
and Howard Pearl that, while the matter of Skelton's
vacation was so serious in nature that it justified her
subsequent discharge, Smith and Howard Pearl did
nothing to stop it in the months preceding Skelton's August
departure. Indeed, according to those witnesses, the matter
was discussed with Skelton only once, at a lunch break,
and was not brought to the attention of Nathan Pearl. I
think it more likely, as Skelton testified, that the matter was
not raised with her at all.
5. The evasive and self-contradictory testimony of
Nathan Pearl which, coupled with his demeanor as a
witness, has led me to conclude that his testimony is
entirely unworthy of belief. I find that, as Skelton testified,
when Nathan Pearl discharged her he did not mention the
fact of her vacation but stated only that her discharge was
due to the fact that she and Nathan Pearl "had not been
getting along." I further conclude that the vacation issue
surfaced after the discharge of Skelton in an attempt to
mask the true reasons for her termination.
7 Smith testified that Nathan Pearl's decision to discharge Skelton came
as a surprise to Smith.
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MILFORD MANOR, INC.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening commerce and the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(aX1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
CONCLUSIONS OF LAW
I. Respondent, Milford Manor, Inc., is an employer
engaged in commerce, and in operations affecting com-
merce, within the meaning of Section 2(2), (6), and (7) of
the Act.
2. By discharging Dorothy Skelton, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(l) of the Act.
3. By threatening its employees with discharge should
they engage in protected concerted activities, Respondent
violated Section 8(a)(l) of the Act.
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 8
The Respondent, Milford Manor, Inc., West Milford,
New Jersey, its officers, agents, successors, and assigns,
shall:
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1. Cease and desist from:
(a) Discharging employees because they engage in
concerted activities for their mutual aid and protection.
(b) Threatening employees with discharge should they
engage in such concerted activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act to engage in concerted activities for
their mutual aid and protection, or to refrain from such
activity.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Dorothy Skelton immediate and full reinstate-
ment to her former position or, if that position no longer
exists, to a substantially equivalent position, without
prejudice to her seniority and other rights and privileges.
(b) Make Dorothy Skelton whole for any loss of pay she
may have suffered by reason of Respondent's discrimina-
tion against her by payment to her of a sum of money
equal to that which she normally would have earned as
wages from the date of the discrimination to the date of
Respondent's offer of reinstatement, less her net earnings
during such period, with interest thereon at 6 percent per
annum.
(c) Post at its facilities located in West Milford, New
Jersey, copies of the attached notice marked "Appendix." 9
Copies of said notice, on forms provided by the Regional
Director for Region 22, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
9 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
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