West Springfield Nursing Home

National Labor Relations Board - Board Decisions

Sep 29, 1977

232 N.L.R.B. 605 (N.L.R.B. 1977)

WEST SPRINGFIELD NURSING HOME
West Springfield Nursing Home and District 1199,
Mass., National Union of Hospital & Health Care
Employees, RWDSU/AFL-CIO. Case I-CA-
12477
September 29, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On June 21, 1977, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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, to modify his remedy,2 and to adopt his
recommended Order.
The Administrative Law Judge concluded that
Respondent terminated employee Muriel Ardizoni in
violation of Section 8(a)(3) and (1) of the Act. We
agree with this conclusion for the reasons stated by
the Administrative Law Judge and for the additional
reasons set forth below.
The record establishes, as the Administrative Law
Judge found, that Ardizoni was a leading union
adherent and that Respondent was well aware of her
activities on behalf of the Union. The record further
supports the Administrative Law Judge's finding that
Respondent was strongly opposed to unionization of
its employees. Although Respondent asserts that
Ardizoni was terminated pursuant to its parent
corporation's policy of replacing licensed practical
nurses with registered nurses at certain of its
facilities, we agree with the Administrative Law
Judge that the record does not support this conten-
tion and that her termination for such asserted
reason was pretextual. Thus, although it is establish-
ed that Respondent had announced its replacement
policy, there is no evidence that the policy was to be
implemented by laying off employees and, indeed,
Respondent's director of nursing testified that it was
her understanding that the policy was to be effectuat-
ed by attrition. Furthermore, Respondent offers no
credible explanation for its sudden decision to lay off
Ardizoni, the one remaining LPN on the day shift in
November 1976, while retaining several LPNs on the
232 NLRB No. 81
night shift, particularly inasmuch as the day shift was
shorthanded at the time and there was apparently a
week's lapse between Ardizoni's termination and her
replacement by a registered nurse. Finally, Respon-
dent asserts that an LPN at another nursing home
was laid off pursuant to the replacement policy.
However, the record establishes, as the Administra-
tive Law Judge found, that in that case the decision
to terminate the employee was made after consulta-
tion with the director of nursing and was actually
motivated by the employee's poor work performance
rather than by the need to implement the replace-
ment policy. In Ardizoni's case, however, the director
of nursing was not consulted and it is undisputed
that Ardizoni was the most senior LPN at Respon-
dent and was a competent employee. In these
circumstances, we find that Ardizoni's union activi-
ties, and not Respondent's policy of replacing LPNs
with registered nurses, was the real cause of her
termination. Accordingly, we conclude that Ardizo-
ni's termination violated Section 8(aX 1) and (3) of
the Act.
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 and
hereby orders that the Respondent, West Springfield
Nursing Home, West Springfield, Massachusetts, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
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 has moved for a hearing de novo on grounds that the
Administrative Law Judge abandoned his judicial role and assumed the role
of prosecutor. After a careful review of the entire record, we are satisfied
that this allegation is without merit. While the Administrative Law Judge
engaged in extensive questioning of witnesses, we do not find that his
questioning was directed toward reaching a predetermined result. It is well
settled that the Administrative Law Judge has the right to examine and
cross-examine witnesses in order to fully develop, clarify, and understand
the facts. Army Aviation Center Federal Credit Union 216 NLRB 435 (1975);
Grove Manufacturing Company, 196 NLRB 280 (1972): see Sec. 102.35.
Board Rules and Regulations, Series 8, as amended, and 5 U.S.C. § 556(d).
We therefore deny Respondent's motion.
2 In accordance with our decision in Florida Steel Corporatrion 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25, 1977. in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
605
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: Upon a
charge filed by District 1199, Mass., National Union of
Hospital & Health Care Employees, RWDSU/AFL-CIO,
herein the Union, a complaint issued by the General
Counsel, and an answer filed by West Springfield Nursing
Home, herein the Respondent Home, the Home, or
Respondent, a hearing was held on May 4, 1977, in
Springfield, Massachusetts.
Upon the entire record in the case, including my
observation of the demeanor of witnesses and upon
consideration of briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Massachusetts corporation, operates a
nursing home in West Springfield, Massachusetts. It is an
employer within the meaning of Section 2(6) and (7) of the
National Labor Relations Act, as amended.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This case involves the termination of Muriel Ardizoni, a
licensed practical nurse (LPN). Respondent Home, where
Mrs. Ardizoni was employed, and three other nursing
facilities' are owned and operated by a corporation of
which William J. Cerveny is president. Douglas Madsen
was administrator of the Home at all material times and is
now administrator of the related Ridgeview facility; 2
Martha McNamara is director of nursing at Respondent
Home; and Marie Romanko, whose office adjoined
Madsen's, was the receptionist and performed office
functions for the administrator. As director of nursing,
Mrs. McNamara administers and directs nursing care at
the Home; in this capacity, she is responsible for hiring,
firing, and disciplining nursing personnel.
The Union began organizing the Home in May 1976, and
it filed representation petitions for three separate bargain-
ing units, including a unit of licensed practical nurses. The
Union lost all three elections held on October 22, 1976, and
the Regional Director certified the election results. During
the preelection period, Respondent conducted a campaign
of its own, by speeches and letters to employees, and
Administrator Madsen urged the employees to vote against
the Union. Madsen thus told the employees, among other
things, that he was "very much against a union coming in
here," that the Union was "both unnecessary and undesir-
able," and that having a union "could have a bad effect on
I Valley View Nursing Home, Ridgeview Nursing Home, and Eldercare
of Springfield, Inc.
2 Madsen was administrator of the Eldercare facility in 1971, when he
and Cerveny were found by the Board to have participated in unfair labor
our patients and reduce the quality of health care [at the
Home]."
Mrs. Ardizoni was one of the principal organizers in
the union campaign. The first organizational meeting was
held at her residence, as were at least five of approximately
seven subsequent meetings. She distributed union cards,
wore union buttons,3 and participated in an informational
picket line at the Home in August. Contrary to Madsen's
testimony, Romanko credibly testified that she and
Madsen viewed the picket line from her office and that
Madsen instructed her to record the names of the employee
pickets. Madsen similarly instructed her to take down the
names of employee participants in a union "confrontation"
in his office on another occasion. Madsen admittedly
maintained tallies of employees and how he thought
individual employees would vote in the election; he further
testified that he made up these tallies on conjecture on the
basis of information from Romanko, department heads,
and others.
Although Madsen denied having known that Ardizoni
was active in the Union, Respondent conceded at the
hearing that it knew of her active role and Director of
Nursing McNamara (who was called as an adverse witness)
truthfully testified that "everyone," management included,
had been aware that Ardizoni was "very active" in the
organizational campaign.
Ardizoni's Termination
According to Madsen, President Cerveny instructed him
to lay off Ardizoni, and Madsen testified that this layoff
was in implementation of a policy adopted by Respondent
to upgrade its services at the Home. Respondent Home
and Valley View Nursing Home are level II (skilled nursing
care) facilities. By memorandum on May 20, 1976, Cerveny
had advised the homes that he believed "we could give
better patient care in Level II facilities by using only
R.N.'s. We are presently using L.P.N.'s as charge nurses
and assistants to R.N.'s on the day shift. .... Valley View
Nursing Home has hired only R.N.'s in the last several
months." Minutes of a meeting attended on September I,
1976, by Cerveny and the administrators of the four
nursing homes recite that "There was discussion at great
length concerning L.P.N.'s and good patient care. It was
decided that no new L.P.N.'s were to be hired for level II
facilities. [Does not include Eldercare Rest Home or
Ridgeview Nursing Home level III part.] To give better
patient care we will be replacing L.P.N.'s with R.N.'s over
the next several months. The L.P.N.'s in a level II Home, it
was felt, were used only as an assistant to a charge R.N.,
although we are presently using L.P.N.'s at certain times as
charge nurses. We will attempt to replace them with
registered nurses." And on September 2, Cerveny advised
the level II homes that "Over the next two months you will
be expected to replace full and part-time licensed practical
nurses with registered nurses. .... If you cannot... you
will have to take whatever time is necessary."
practices. Eldercare of Springfiel4 Inc., 197 NLRB 214 (1972). 1 do not rely
on that decision in any respect in resolving the present case.
I The record does not show whether Ardizoni distributed union cards
and wore union buttons in the Home.
606
WEST SPRINGFIELD NURSING HOME
Respondent Home had about eight LPNs on three shifts
on October 22, 1976, and there were three LPNs, including
Ardizoni, on the day shift. Two of the day-shift LPNs
resigned on October 22, leaving Ardizoni as the only LPN
on that shift and five LPNs on the other two shifts. In
November, as indicated above, Cerveny instructed Madsen
to lay off Ardizoni, and Madsen in turn instructed Nursing
Director McNamara to notify Ardizoni to such effect and
to hire an RN in her place. McNamara was not even
consulted concerning Ardizoni's layoff; she testified that
the staff was shorthanded at the time and she was sorry to
lay off Ardizoni. Ardizoni had worked under McNamara
since 1969 and had the longest tenure of the LPNs at the
Home.
Respondent concedes that Ardizoni was a competent
LPN with long experience. When notified of her layoff by
McNamara, Ardizoni asked whether she might transfer to
another shift. McNamara said she could not, and McNa-
mara testified in explanation that Madsen had said to lay
off Ardizoni and not to transfer her to another shift.
McNamara also testified that her understanding of the
aforementioned policy of replacing LPNs with RNs was,
and I find that it was, to be accomplished by attrition and
not by layoffs, and she further testified that she has not laid
off any of the five other LPNs. Mrs. McNamara also
testified that Respondent has not hired any LPNs since
April 1, 1976.
Madsen sought to explain Ardizoni's layoff on the
ground that day shifts have the heaviest loads and that
Respondent decided to eliminate LPNs entirely from day
shifts in level II facilities without waiting for attrition and
that Respondent laid off Ardizoni only because she
happened to be the last remaining LPN on that shift.
Madsen also stated that Ardizoni was neither more nor less
competent than the other LPNs. Respondent adduced in
this connection the testimony of Margaret Baker, the
administrator of the Valley View Home which, as indicated
above, is also a level II facility. Mrs. Baker testified that, in
implementation of the replacement policy, she terminated
an LPN on the day shift and replaced her with an RN.
Baker and the director of nursing at Valley View together
made that selection, and Baker testified that in doing so
they considered the comparative abilities of LPNs on all
shifts. Baker then testified that they actually removed that
particular LPN for reasons of "poor performance" as to
"leadership," and Baker also testified that, as of the
hearing date (May 4, 1977), she still had LPNs on Valley
View's day shift.
A week or so after Ardizoni's layoff, McNamara gave
Ardizoni an "excellent" letter of recommendation and told
Ardizoni that "by reading between the lines" she (McNa-
mara) believed Ardizoni had been laid off because of her
union activities. McNamara testified that, although she did
not know with certainty, her personal opinion is that
Respondent did terminate Ardizoni for union reasons.
Cerveny did not appear as a witness nor was he claimed
to be unavailable.
4 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.
Conclusions
Respondent was strongly opposed to the Union and it
was aware of Ardizoni's prominent organizational role.
Recapitulation and further discussion are wholly unneces-
sary to find, as I do, that Respondent terminated Ardizoni
because of her union activities and for no other reason. In
the circumstances of this case, no other inference is
tenable.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 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. By terminating Muriel Ardizoni, Respondent has
violated Section 8(a)(1) and (3) of the Act.
4. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action, including reinstating
Ardizoni on the first shift and making her whole, in order
to effectuate the policies of the Act. All backpay computa-
tions shall be in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 4
The Respondent, West Springfield Nursing Home, West
Springfield, Massachusetts, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
against employees for activities in behalf of District 1199,
Mass., National Union of Hospital & Health Care
Employees, RWDSU/AFL-CIO.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights as
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Muriel Ardizoni reinstatement to her former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
other rights and privileges, and make her whole, as set forth
in "The Remedy" section, above, for any loss of earnings
suffered as a result of the discrimination against her.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
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.
607
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms of this recommend-
ed Order.
(c) Post at its nursing home in West Springfield,
Massachusetts, the attached notice marked "Appendix."5
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, ' ' '
ing all places where notices to employees are customa .Ay
posted. Reasonable steps shall be taken by Respondent to
insure that the notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
5 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."
APPENDIX
To engage in self-organization
To form, join, or assist unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collectively bargaining or
other mutual aid or protection
To refrain from any and all of these things.
WE WILL NOT do anything to interfere with these
;ghts.
WE WILL NOT discourage membership by our
employees in District 1199, Mass., National Union of
Hospital & Health Care Employees, RWDSU/AFL-
CIO, or any other union by laying them off, discharg-
ing them, or otherwise discriminating against them in
regard to their hire, wages, hours, working conditions,
or tenure of employment.
WE WILL reinstate Muriel Ardizoni and make her
whole for earnings lost since her termination.
All our employees are free to join or assist District 1199
or any other union.
WEST SPRINGFIELD
NOTICE To EMPLOYEES NURSING HOME
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees these rights:
608