Americana Nursing Center

National Labor Relations Board - Board Decisions

Aug 14, 1972

198 N.L.R.B. 908 (N.L.R.B. 1972)

908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Capital Americana Inc. d /b/a Americana Nursing
Center, Indianapolis Midtown, and Indianapolis
Americana, Inc. d/b/a/ Americana Nursing Cen-
ter, Indianapolis-East and Retail Clerks Local
Union No . 725, Retail Clerks International Associ-
ation , AFL-CIO. Cases 25-CA-4366-1,
25-CA-4366-2, and 25-CA-4366-3
August 14, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On March 6, 1972, Trial Examiner John F. Funke
issued the attached Decision in this proceeding.
Thereafter, the General Counsel and Respondent
filed exceptions and supporting briefs, and Respon-
dent filed a brief in answer to the General Counsel's
exceptions.
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions to the extent
consistent herewith.
We cannot agree with the Trial Examiner that the
General Counsel met his burden of proving that the
discharges of employees Gwen Pettigrew and Wilma
Kirkhoff were discriminatorily motivated. It is well
established that suspicion or conjecture cannot
substitute for proof of unlawful motivation.
In this case, the Employer came forward with
substantial evidence to establish that the discharges
were caused by the unsatisfactory work performance
and attitude of the alleged discriminatees. Kirkhoff
was advised in February 1971 by Administrator
McGowan that her work, appearance, and attitude
were unsatisfactory and would have to be improved.
Also, evidence indicated that during April 1971
friction developed between Pettigrew and Kirkhoff
on one side and nurses aide Storms on the other side.
Charge Nurse Bess , Director of Nurses Fridlin, and
nurses aide Brake each testified that Storms was a
very competent aide. Nonetheless, because of the
friction, it was necessary to transfer Storms to
another floor. Further, a feud arose between Petti-
grew and Kirkhoff. The evidence established that the
feud caused serious tension and disharmony among
all the employees on the floor. Finally, evidence was
adduced to show that the discharges were made by
McGowan after he received evaluations of the work
of the alleged discriminatees. The evaluations, giving
198 NLRB No. 120
Pettigrew and Kirkoff an overall rating of unsatisfac-
tory, were prepared and delivered by Fridlin to
McGowan on the morning of June 7, 1971. Pettigrew
and Kirkhoff were terminated later the same day.'
This record furnishes no basis for questioning the
rating of unsatisfactory set forth in the evaluations or
their timing. Uncontradicted evidence shows that it
was the Employer's uniform practice to make such
evaluations on the annual anniversary of an employ-
ee's last wage increase. As both Pettigrew and
Kirkhoff received their last increase in June 1970, the
evaluations completed on June 7, 1971, were timed to
accord with Respondent's practice. Since the miscon-
duct of the dischargees relied on in the evaluations is
undisputed, it is apparent that the General Counsel
has failed to refute Respondent's defense to the
8(a)(3) allegation. In these circumstances, we find
that the evidence does not preponderate in favor of
finding that Pettigrew and Kirkhoff were discharged
in violation of Section 8(a)(3).2 Accordingly, as we
agree with the Trial Examiner's dismissal of the
remaining allegations, we shall dismiss the complaint
in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Broad hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
i Although the Trial Examiner relies on the fact that Bess testified that in
the period immediately preceding the discharge the friction between
Pettigrew and Kirkhoff had become bearable. Bess also testified that she
concurred in the decision to discharge them on the basis of the evaluation of
their performance , which covered the entire year.
2 We also note , in passing, that there is no evidence of union animus, the
union activities of Pettigrew and Kirkhoff were minimal, and the Trial
Examiner's finding that Respondent had knowledge of their union activities
is based upon questionable evidence In this latter regard the Trial
Examiner credited Bess' testimony that McGowan stated during the course
of a meeting on the date of discharge that Pettigrew and Kirkhoff were
among those talking about the Union On cross-examination , however, Bess
indicated that she was not entirely sure what McGowan had said but could
only recall that he said something about having heard of a union
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: This case was brought
before the National Labor Relations Board upon:
1. Charges filed by Retail Clerks Local Union No. 275,
Retail Clerks International Association, herein the Union,
against American Nursing Center, East, herein the East
facility, on July 11, 1971, and American Nursing Center,'
Midtown,2 herein the Midtown facility, on June 11 and
August 30 , 1971, alleging Respondents (the two facilities
will be referred to jointly as Respondents), violated Section
8(a)(1) and (3) of the Act.
i Corrected to read Indianapolis Americana, Inc, d/b/a American
Nursing Center , Indianapolis-East
2 The answer corrected the titles of certain alleged supervisors and the
dates of discharge of two employees
AMERICANA NURSING CENTER 909
2. An order consolidating the cases and a consolidated
complaint of the General Counsel against Respondents
alleging Respondents violated Section 8(a)(1) and (3) of the
Act issued on September 10, 1971
3. Answer of Capital Americana, Inc., denying the
commission of any unfair labor practices.
4. A hearing held by me at Indianapolis, Indiana, on
December 8, 9, and 10, 1971.
5. Briefs filed by the General Counsel and Respondent
on January 31, 1972.3
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make the
following:
FINDINGS
I. THE BUSINESS OF RESPONDENTS
Capital Amencana Inc., d/b/a Amencana Nursing
Center, Indianapolis Midtown, and Indianapolis Ameri-
can, Inc., d/b/a American Nursing Center, Indianapolis-
East, are separate corporations related as a single enter-
prise to a group of corporations operating nursing homes
in nine states with headquarters at Monticello, Indiana.4
Respondents in their nursing operations receive income in
excess of $100,000 annually. Respondents purchase and
cause to be transferred from States other than the State of
Indiana to their homes in Indianapolis goods and material
valued in excess of $50,000 annually
Respondents are engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
The consolidated complaint alleges that Respondents
discharged five employees in violation of Section 8(a)(3) of
the Act. These employees, together with the facility at
which he was employed and the date of discharge (as
amended at the hearing) were:
Herman Schrader, Midtown facility-June 29, 19715
Jeannye Turner6-July 23
Gwin Pettigrew, East facility-June 7
Wilma E. Kirkhoff, East facility-June 7
Stella Manning, Midtown facility-June 3
The evidence will be considered in the order set forth
above.
A. Herman Schrader
Schrader was employed by the Midtown facility on April
1, as a security officer and for general custodial work. He
worked from 9 p.m. to 6:30 a.m. and received $3.25 per
hour. During the first 2 weeks of his employment he was
3 The case was ably briefed and ably tried
4 Americana Nursing Centers, Inc , is the parent corporation
5 Unless otherwise noted all dates hereafter refer to 1971
6 Turner did not appear at the hearing and the complaint is dismissed as
to Turner
T Resp Exh 7 lists the first floor duties as check to see if flag is down,
secure doors, vacuum lobby carpet, and dust mop and wet mop patients
dining room, feeders dinning room, hall elevators, P T and 0 T Depts,
given no custodial duties but checked and set up his own
security system (security had previously been maintained
by a commercial security organization). At the end of the 2
weeks he was given a list of custodial duties for his
approval or for suggestions by Assistant Administrator
Fred Moon.7 Schrader made no suggestions, changes, or
complaints according to Moon. Schrader was discharged
on June 29 for his alleged failure to perform his custodial
duties properly.
Schrader testified that after he had been employed at
Midtown for about 4 weeks he received complaints about
working conditions from the girls employed as nurses aides
and Schrader told them he would contact a union
representative. He did reach a Mr. Sanford of the Union
who told him he or another representative would be in
touch with the aides. For some time after that Schrader
talked to the girls as they left at night and answered their
questions, to the best of his ability, about the Union. He
estimated he talked to about 12 girls. This was the extent of
Schrader's union activity.
About the middle of May, Schrader was called into
Facility Director Cogil's office where Cogil and Moon
discussed complaints about his work. According to
Schrader, he was accused of having told a supervisor, Mrs.
Middleton, that she was to be fired. Schrader denied this
but admitted he was instructed to apologize to Mrs.
Middleton and did so. He was also accused of starting
rumors (undefined) about Cogil and Moon to which
Schrader testified, credibly, that when working with
women one had to deal with rumors. Schrader's reply to
this criticism was ambiguous but he stated it made Cogil
and Moon happy. The third topic, Schrader's alleged
neglect of his custodial duties, was passed over lightly
although Cogil told him to get together with Moon and
work it out. Schrader told Moon that he could not perform
both his custodial and his security duties properly and that
he thought security more important.8 He received no
further reprimand until the day of his discharge.
On June 29 Cogil came in about 6:30 a.m., called
Schrader to his office, and first asked him to resign and
then told him he was finished. He was charged with having
cursed three supervisors and with leaving the main dining
room, the feeder dining room, and the hall dirty. Schrader
told Cogil, "It's a kind of meager reason to get rid of an
employee just because of not doingjanitorial duties." As to
the charge that he cursed three supervisors, Schrader made
the perhaps unusual reply that he did not believe it. No
supervisor or nurses aide testified as to this charge .9
Despite his protests he was terminated.
Arthur Cogil, administrator at Midtown from December
1969 until August 15, 1971, testified that he hired Schrader
to replace the security service which had been operating at
Midtown and also to perform custodial services which had
been performed by Midtown's regular custodial staff. He
activities room 3 times weekly. laundry room 3 times weekly. replace light
bulbs, and put up the flag at dawn
s Schrader admitted on cross-examination that he was not able to
complete his janitorial duties He also testified that he was instructed to
make his rounds for security check once an hour Schrader thought the
check should be made every 15 minutes and followed the dictates of his own
judgment
9 Resp Exh 15 was rejected as hearsay on this issue
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Schrader's first responsibility upon arrival at
9 p.m. was to check all doors and windows on the first
floor and to check that no unauthorized persons were in
the building. He was to make hourly rounds thereafter and
to check employees as they entered or exited from the
building for their own protection. Since Cogil did not work
the hours Schrader did he saw him only when he (Cogil)
came in early. He and Schrader would chat about the job
and Cogil stated he had occasion to point out to Schrader
things (unspecified) he had not done. He also testified that
he had received complaints from Moon, his assistant, that
Schrader was not performing his janitorial work properly.
Schrader was discharged solely for his failure to perform
these duties and Cogil stated he was, at the time of
discharge, unaware of Schrader's union activity.
Fred Moon was assistant administrator at Midtown. He
was present at the hiring of Schrader who was told he
would be given 2 weeks to work on the well. At the end of
that time he gave Schrader the list of custodial duties,
supra, required to be performed and stated Schrader voiced
no objections. In the second week of May he was present at
a brief conference in Cogil's office at which Schrader was
told he would have to do better on the custodial work.
Moon stated that he came in early one morning a week to
relieve Schrader and that he usually stopped by on
Thursday nights after he left school. From his observation
on these occasions he would point out Schrader's failure to
complete his cleaning assignments. In these discussions
Schrader stressed his security problems which Moon
thought were not too important. On this issue of the
relative importance of the two functions Moon and
Schrader never agreed and this led to his termination.
Conclusions
The case of Schrader, as do the cases of the other
dischargees, presents the familar and usually difficult
problem of determining the motive of an employer in
discharging an employee from interference drawn from
testimony and evidence often in direct conflict. No precise
formulae have been devised and the initial decision is left
largely to the intuition, if not the speculation, of the Trial
Examiner.
I do not find that the allegation that Schrader was
discharged in violation of Section 8(a)(3) of the Act is
sustained by a fair preponderance of the evidence.
Schrader was employed for only a short period of time and
his union activity consisted only in advising the girls who
worked nights that if they had complaints they might well
seek union affiliation and in contacting a union organizer
on their behalf. It was stipulated that he was not a member
of the bargaining unit nor eligible to vote in the election. It
is true that Respondents expressed their opposition to the
Union in letters and speeches to their employees at both
the Midtown and the East facilities but it engaged in no
unlawful conduct in its antiunion campaign. There were no
interrogations, no threats, nor any promises of benefit to
any employee. This leaves the case of Schrader and the
other alleged discriminatees free from any cloud of
accompanying unlawful conduct designed to frustrate
union organization.
I think a fair reading of the testimony, and particularly
Schrader's testimony, will convince the reader that a
serious breach existed between Cogil and Moon, on the
one hand, and Schrader, on the other, in their concept of
the relative importance of his own functions.10 Schrader
understandably attached more importance to his security
duties which were more prestiguous, more interesting, and
less taxing than mopping floors. On the other hand, Cogil
and Moon, as may be gathered not only from their
testimony but from the impressive list of janitorial
functions to be performed, obviously attached far lesser
significance to security. Since neither Cogil nor Moon
worked the same hours there was no opportunity to
observe Schrader's allotment of time between his jobs.
Judgment was based solely on observation of results which,
in the case of his janitorial duties, were tangible. For the
same reason there was no opportunity for observation of
his on-the-job performance and for more specific and
constructive criticism. The conclusion could be reached
that the complaints against Schrader were trifling and that
his alleged derelictions were not serious enough to merit
discharge. That, of course, is substituting the Trial
Examiner's judgment for that of management. The defect
in the General Counsel's case is that there is little evidence,
apart from per se inference , that either Cogil or Moon
knew of Schrader's activity in bringing the aides and the
Union together (Cogil denied that he had any such
knowledge). I find some difficulty in accepting such an
inference where the activity took place on a night shift
divorced from close managerial supervision. I find greater
difficulty in finding that, even had Cogil or Moon such
knowledge, that the discharge was attributable to such
activity. The discharge of Schrader, who was not a member
of the bargaining unit, could not foreseeably have impact
on the union campaign or the forthcoming election. His
union activity was not sufficiently prominent to accom-
plish such a purpose. In any event I am unwilling to make
a finding of violation based on one inference supported
only by another inference. I do not find the discharge of
Schrader violated the Act.
B. Pettigrew and Kirkhoff
The cases of Pettigrew and Kirkhoff are to a large extent
interwoven and they will be considered together.
Pettigrew, hired in March 1970, and Kirkhoff, hired in
December 1969, were both employed as nurses aides on the
second shift (3 to 11 p.m.) at the East facility. Both worked
on the second floor. General McGowan was the adminis-
trator at this facility, Betty Mirkle was his assistant, Carol
Fridlin was director of nurses and Karen Bess was charge
nurse on the second floor.
The first difficulty either had with management was on
February 2611 when Kirkhoff was called to McGowan's
office. Kirkhoff's first testimony was that she was called to
the office and charged with being mean to a patient, a
charge later admitted to be untrue. On cross-examination
10 Schrader admitted that he attached greater weight to his security 11 While Ktrkhoff fixes the date as December 1970, 1 find the interview
duties and that on that point he not only disagreed with Moon but was took place in February, although I do not consider the date of particular
unwilling to subordinate security to custody import
AMERICANA NURSING CENTER
she admitted that she was told, as McGowan had testified,
that she was charged with poor performance, poor
appearance, and poor attitude. She was also told she would
have to report for work on time , attend service meetings,
cease her involvement in employees' cliques, and stop
discussing her personal affairs with patients and their
families. She denied McGowan's testimony that she was
threatened with discharge and asked for another chance.12
The immediate supervisor of Pettigrew and Kirkhoff was
Karen Bess who left the East facility on July 4. The first of
Bess' problems with Pettigrew and Kirkhoff (she was
charge nurse for about 5-1/2 months prior to leaving the
facility) concerned their treatment of a new nurses aide on
the second floor, Betty Storms. This consisted in complain-
ing to Bess that Storms was not doing her work and that
they had to double up and do it for her. As a result Storms,
who was a treatment aide, was transferred to the first floor
despite Bess' opinion that she was an excellent nurse. The
transfer was effected by Fridlin who stated that it was due
to complaints about Storm from Pettigrew and Kirkhoff
and complaints about their treatment of Storm which she
received from two other nurses aides, Irma Brake and Rita
Leath, to the effect that Pettigrew and Kirkhoff refused to
eat with her and "ostracized" her.13 According to Fridlin
the transfer was effected in April, according to Pettigrew it
took place 4 months or longer before their discharge.
The second major concern with Pettigrew and Kirkhoff
related to a "feud" which occurred between them. The
duration of this feud, its origin, and its termination are
subject to confused and contradictory testimony. Accord-
ing to Pettigrew it arose about 3 weeks before they were
fired when she was asked by Leath to assist her with
treatment of a patient. She agreed and Kirkhoff later
complained that this took her (Pettigrew) away from
helping other nurses on the floor. The feud or tension, as
Pettigrew described it, lasted only 3 or 4 days before the
two of them straightened it out. Nevertheless Pettigrew
admitted that on a night later in May Fridlin remained to
discuss the problem with Leath, Kirkhoff, and herself.
Pettigrew and Kirkhoff then told Fridlin they had resolved
the problem. Kirkhoff could not remember what occa-
sioned the feud or when it started but testified it did not
last very long and was ended about 2 to 3 weeks before
they were terminated. She also testified that Fridlin
"remained one night to discuss the problem with Pettigrew,
Leath, and herself and that they told her everything had
been worked out.
Carol Fridlin testified that she had received complaints
from Bess that Pettigrew and Kirkhoff were disrupting the
second shift by refusing to speak to each other and by
coming to her with their complaints about each other.i4
Bess finally called Fridlin and asked her to come in on the
second shift and talk to them. On the evening of May 25
12 McGowan testified that an evaluation of Kirkhofrs work had been
prepared in February and that from that evaluation, made by Fndltn, it had
been decided to discharge her He relented when Kirkhoff asked for another
chance
13 This was confirmed, in substance, by Brake Leath was no longer in
the employ of East and did not appear
14 This allegation is confirmed, in substantial part, by that of Irma
Brake Brake also testified to an incident, denied by Kirkhoff, in which
Kirkhoff "teased" a patient, almost blind, identified as Mrs Henderson,
911
Fndltn worked until 9 p.m. and asked Pettigrew and
Kirkhoff if they had anything to talk over and was told the
problem was settled. According to Fridlin this was not
completely true because she also testified that after this
meeting of May 25 she asked Bess about the situation and
was told they had gone into a cold war, that they still
questioned her orders and were neither following her
orders or performing their work properly. During the week
before their termination Kirkhoff came to her office to
report that Pettigrew was not performing her job and
accused Pettigrew of taking some of the facility property to
her home. Pettigrew, on the other hand, complained to her
that Kirkhoff was not doing her proper share of the
workload.15 On June 7 Fridlin received a complaint from a
sister of a patient stating the patient, identified as Mr.
Thornberry, stated that he did not want to be treated
anymore by Kirkhoff because she had refused to give him
basic treatment.
Bess testified that there was a period of 1-1/2 to 2
months when Pettigrew and Kirkhoff were not speaking
and that the other aides were complaining to her about the
situation, all of which detracted from the efficient
operation of the floor. (There were only five aides to a
floor .) Bess complained to Fridlin who agreed to stay late
one night to resolve it (May 25). Bess did not testify as to
the results of this meeting except that she did state that the
relationship between Pettigrew and Kirkhoff and between
the two and the other nurses aide was no longer
unbearable.
Kirkhoff signed a union authorization on June 2 and
Pettigrew signed one on June 3. Both testified that
thereafter they assisted in preparing a list of employees to
give the Union so that they could be solicited. They also
testified that they discussed the Union with other aides on
lunch and coffee breaks but neither testified that these
discussions took place in the presence of any supervisor.
Kirkhoff, however, did testify that on June 2 she told Bess
that she had been asked to sign a union card but had
refused because she was afraid she might be fired if she
did.16
Turning to the date of discharge Bess testified that she
was called to McGowan's office by Fridlin about 12:30
p.m. McGowan told her he wanted her to know he was
discharging two of her aides, Pettigrew and Kirkhoff,
because "they had caused enough trouble and were
causing so much tension among the employees that the
other nurses aides had threatened to quit if there wasn't
something done about their employment and their work."
(The complainants were not named.) McGowan told her
he had no alternative but to fire them and then asked her if
she had heard of any union activity. She related her
conversation with Kirkhoff, above, and McGowan then
told her there was some talk of a union and that Pettigrew
about having a man in her room Brake complained to Bess about this and
also reprimanded Kirkhoff
15 Two evaluation reports (Resp Exhs. I and 2) were prepared by
Fndltn, dated June 7. which stated both Pettigrew and Kirkhoff were
terminated
i6 This conversation was confirmed by Bess Bess also testified that she
told Kirkhoff that if a union had been started she (Bess ) would have been
informed by either McGowan or Fndltn and that Kirkhoff had nothing to
worry about
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Kirkhoff were "some of the people" who were talking
about it.
McGowan testified that he told both Fridlin and Bess at
this meeting that a petition for an election had been filed at
Midtown and that he expected union activity at East. He
denied telling Bess that he had knowledge of union activity
on the part of Pettigrew or Kirkhoff and denied that he
had any such knowledge. He did have knowledge of or at
least suspicion of union activity acquired from Fridlin who
in turn had been told by Powers, a charge nurse, that an
employee discharged the previous week had called Powers,
told her there was union activity in the plant, and had
asked if that was the reason for her discharge. Fridlin
confirmed that at this meeting she told McGowan of her
conversation with Powers and also testified that she had at
that time no knowledge of any union activity on the part of
Pettigrew or Kirkhoff. Contradicting Bess, she stated
McGowan made no statement at this meeting that he was
aware of union activity on the part of either Pettigrew or
Kirkhoff.
The terminations were effected expeditiously. Pettigrew
testified that she picked up her paycheck about noon on
June 7 and then returned home. She reported to work for
her shift about 2:30 p.m., went to the employees' dining
room, and was told by Bess that McGowan was looking for
her. She went to McGowan's office where McGowan and
Fridlin were waiting and she was told by McGowan that
she was being terminated. When she asked why she was
told that she was the cause of tension among the second
floor employees and was also told that she had some
patient's property at her home. When she denied this
McGowan made no reply but gave her 2 weeks' severance
pay and told to leave the building without talking to
anyone. On the way out she met Kirkhoff and told her
what had happened. She had never before been accused of
appropriating patient's property.
Kirkhoff testified that she met Pettigrew on her way in to
reporting for work and that when she went in she was told
by Fridlin that McGowan wanted to see her. She and
Fridlin went to McGowan's office where he told her she
was terminating her because she had caused "disharmony
on the floor." On asking for further explanation she was
told she was being let go and not to stay in the building
and McGowan arranged to have his assistant, Mrs. Mikel,
drive her home.
McGowan testified that Pettigrew and Kirkhoff were
terminated for unsatisfactory work and were based on
evaluations received on that day from Fridlin.17 There was
no discussion of these evaluation reports with either
dischargee. Nor was it explained why these evaluation
reports were submitted on that day with respect to
Pettigrew and Kirkhoff only or why these reports which
were issued on the anniversary of an employee's last pay
raise were made for Pettigrew and Kirkhoff on that
particular day. (It was not established that this was their
anniversary date.)
This summary does not include every detail of the
testimony relating to the work performance of Pettigrew
and Kirkhoff or the reasons for their termination but it
does embrace the substantial and material portions of such
testimony. It is sufficient for the purposes of reaching
decision.
Conclusions
Agreeing that the case is arguable and that reasonable
men could reach contrary conclusions I find that Pettigrew
and Kirkhoff were discharged in violation of Section
8(a)(3) of the Act for the following reasons.
I find Bess a truthful and credible witness. At the time of
the hearing she was no longer in the employ of Respon-
dents and was, in that sense , a neutral witness . It was true,
however , that she seemed on good terms with management
at East and that Pettigrew and Kirkhoff had caused her
aggravation in the performance of her duties as charge
nurse. There would be no reason for her to favor the
dischargees but her testimony indicated to me that she was
favoring no party; she was favoring the truth. I must credit,
first, her testimony that after she asked Fridlin to come in
and talk to Pettigrew and Kirkhoff about their feud on
May 25 she made no further complaints. She was satisfied
with the "cooling off" of their relations if not completely
satisfied with their relations with the other aides on the
second floor. The situation was no longer, as she described
it, unbearable. I also credit her testimony that McGowan,
when he told her what he had heard of union activity did
state that he had heard Pettigrew and Kirkhoff were the
leaders. While it is true that she did testify that she could
not recall McGowan's words verbatim I cannot infer that
this would include his specific mention of Pettigrew and
Kirkhoff. (She was not specifically cross-examined on this
point.)
As to the testimony of management, specifically
McGowan and Fridlin, as to the poor and unsatisfactory
work performance and the unharmonious relationships
between Pettigrew and Kirkhoff and the other nurses this
had all continued over some period of time prior to
Fridlin's confrontation with them on May 25. Fridlin was
satisfied on that date with their response that they had
settled their differences and no overt act occurred after
that date to cast doubt on their reconciliation. Fridlin did
testify that after that date both Pettigrew and Kirkhoff
came to her with complaints about each other but since
Fridlin did not work their hours this testimony is dubious.
Prior to May 25 Fridlin had relied on Bess for her
information as to the second shift and her direct contacts
with Pettigrew and Kirkhoff were infrequent.
Thus the sequence of events favors the conclusion that
the dischargees were discriminatory. Fridlin was satisfied
with the results of her interview with Pettigrew and
Kirkhoff on May 25 and Bess thereafter made no
complaints and, in fact, found the situation bearable.
When, however, McGowan learned from Fridlin that there
was union activity at the facility and learned that Pettigrew
and Kirkhoff were involved in it 18 they were precipitately
discharged for conduct and performance relating back to a
period prior to May 25.
it Resp. Exhs I and 2 While Bess testified that she could not remember McGowan's exact words
18 This conclusion is based solely on the credited testimony of Bess that at this meeting she did not retract her testimony that he identified Pettigrew
McGowan designated them by name during the noon conference on June 7 and Kirkhoff as among those talking union
AMERICANA NURSING CENTER 913
C. Stella Manning
Stella Manning was employed as a nurses aide at the
Midtown facility from May 1970 until she was discharged
on June 3, 1971. Her assignment was to the fourth floor
and she worked from 8 a.m. to 4 p.m. Her charge nurse was
Mrs. White or Viola Hackerd, who substituted as charge
nurse.
In May 1971 she signed a union card at her home but
engaged in no other union activity.
On June 2 Manning was assigned to assist in the feeder
dining room where patients were served from 10 a.m. to I I
a.m.19 The aides, according to Manning, rotated some of
their duties in accordance with a list prepared by Virginia
Baker, director of nurses. On June 3 Manning was given a
union button by another employee and put it on her
uniform about 10 a.m. She testified it was about the size of
a dime and that other aides wore similar buttons at work.
On this morning Margaret Jacks, assistant director of
nurses, called Mrs. White and instructed her to send
Manning to the feeder room. She told White it was not her
turn to go and when she was again told to go she went to
see Fred Moon, the assistant administrator. She told him
what had happened and he sent her back upstairs where
she finished making her beds. Shortly thereafter Jacks
came up to the floor, told her she was fired, and to get her
hat and coat and leave. Manning went back again to Moon
who called in Baker and Jacks, who told him Manning was
fired for refusing to report to the feeder room. Moon,
according to Manning, told them he thought it was a silly
reason for firing her but the discharge struck. Manning
testified that prior to this incident she had received no
complaints or reprimands about her work.
Virginia Baker testified that she came to Midtown in
January 1971 and had been employed as director of nurses
since March 8. In her opinion standards of discipline and
job performance had been lax at Midtown and she made
efforts to correct this situation, including a reduction to
writing of any incidents involving nurses aides. These
would be kept by Baker and a copy placed in the aide's
personnel folder.
Baker testified that on April 22 Manning came down
from the fourth floor and sat down at the nurses' station on
the third floor where Baker had her office. Told to report
to the break area if she was on break or to return to work if
I she was not, Manning told her her (Manning's) work was
finished. Directly ordered to return, Manning did but
Baker stated she heard her cursing as she went down the
hall. (The report of this incident was received as Resp. Exh.
10.) Baker had another conversation with Manning later
that day in which she told Manning she was off the fourth
floor too much, that complaints had been received from
her coworkers and patients, and that she was subject to
discharge if she did not improve. On May 28 Baker
received a call for additional help from the dining rooms
and when she found Manning making a bed on the fourth
floor told her to report downstairs. When Manning
19 The feeder dining room was on the second floor Patients who
required assistance with their meals were served there
20 White was no longer employed at Midtown and was not a witness
refused, Baker told her to go or go home. Manning then
went down. (The report was received as Resp. Exh. 12.)
As to June 3, Baker testified that after Manning's refusal
to report to the feeder room she and Jacks discussed her
work and decided to terminate her and that both she and
Jacks were present at the interview in Noon's office where
Manning's shortcomings were reviewed. Manning stated
that it was unfair to assign her to the feeder room so often,
a charge that did not impress Baker. Under further
examination Baker stated that she did not recognize a
union button until after one had been pointed out to her
and that she had not noticed Manning wearing one that
day. She was aware that on or about June 2 the Midtown
facility had received a letter from the Union demanding
recognition.
Margaret Jacks testified that she had been employed by
Midtown as assistant director of nurses since March, when
Baker had been appointed director. On May 29 she
received a page from the dining room that more help was
needed. She called Mrs. Hackerd, on that day the charge
nurse on the fourth floor, and Manning answered the call.
She asked Manning to go to the dining room and when
Manning refused because she had been there the day
before she told Manning to either report or go home. Later
Jacks passed the dining room and saw Manning helping
out. (The report of this incident was received as Resp. Exh.
13.)
On June 3 Jacks had received another call from the
dining room for help and that she called Mrs. White, then
charge nurse on the fourth floor, and told her to send down
an aide. Later White came down and told her Manning
had refused to go. Jacks then told White to send Manning
home, but Manning, according to Jacks, refused to go
home. (This information she received from White.) 20 Jacks
and Baker then conferred on Manning's record and
decided to discharge her. Jacks then went to the fourth
floor, found Manning making a bed, and told her she was
terminated. It was then that the discharge "conference"
took place in Moon's office at which time Manning's
deficiences were reviewed and during which, according to
Jacks, Manning remained "rather mute."
Three other witnesses, Georgia Malone, a nurses aide,
Ethel Morgan, a treatment aide, and Violet Hackerd, a
substitute charge nurse, testified at some length to
Manning's deficiencies particularly her habit of using the
telephone for personal calls and visiting on the third floor.
Conclusions
I find, largely on the testimony of Baker and Jacks, that
Manning was discharged for cause, chiefly a lack of
cooperation amounting almost to insubordination. Baker
had taken over as director of nurses in March and
according to her own testimony proceeded to impose a
stricter discipline upon the employees. She gave the
impression of being something of a martinet and expressed
a no-nonsense attitude toward effective performance.
After her initial warning to Manning to remain on her
floor on April 22, Manning on May 28 refused to accept an
Jacks' testimony as to the facts related by White is hearsay and has been
disregarded, except her testimony as to what White told her
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order to report to the dining room until ordered by Baker
to report or go home. On the next day Jacks ordered
Manning to help in the dining room and again met a
refusal on the ground Manning had been there the day
before. Again she was given the option of working or going
home and took the assignment. On June 2 Manning again
worked in the feeder room. The next day when help was
again required she refused to report and, as she testified,
saw Moon and then went back upstairs where Jacks found
her making beds. Baker and Jacks then decided to fire her.
Placing some emphasis upon the fact that a sterner
discipline is required of those attending the sick and the
aged that is customarily required in other service industries
I think Manning's discharge was warranted. Had her union
activity been more prominent and open the decision would
be more difficult but it consisted only in signing a card at
home. It is true that she put on a union button "about the
size of a dime" dust prior to her difficulties with Jacks on
June 3, but that rather insignificant gesture was, according
to Baker and Jacks, unnoticed.21 In any event it could not
serve to establish an immunity against discharge for her
own intransigence.
Upon the foregoing findings and upon the entire record
in this case I make the following:
CONCLUSIONS OF LAW
1. By discharging two employees on June 7 for the
purpose of discouraging membership in a labor organiza-
tion Respondent East facility violated Section 8(a)(3) and
(1) of the Act.
2. The aforesaid unfair labor practices is an unfair
labor practice within the meaning of Section 2(6) and (7) of
the Act.
3. Respondent Midtown facility did not violate Section
8(a)(3) and (1) of the Act.
THE REMEDY
Having found the Respondent East facility engaged in
and is engaging in certain unfair labor practices it will be
recommended that it cease and desist from the same and
take certain affirmative action necessary to effectuate the
policies of the Act.
Having found the Respondent East facility discharged
Gwen Pettigrew and Wilma Kirkhoff in violation of
Section 8(a)(3) and ( 1) of the Act it will be recommended
that it offer Gwen Pettigrew and Wilma Kirkhoff full and
immediate reinstatement to their former jobs as nurses
aides, without prejudice to their seniority or other rights
and privileges , and make them whole for any loss of pay or
other monetary loss they may have suffered . Such loss is to
be computed on a quarterly basis with interest at 6 percent
per annum.
[Recommended Order is omitted from publication.]
21 Other employees wore similar buttons that day