Bourne Manor Extended Health Care Facility

National Labor Relations Board - Board Decisions

Sep 15, 2000

332 N.L.R.B. 72 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 72
Bourne Manor Extended Health Care Facility and
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, Local 59, International Brother-
hood of Teamsters, AFL–CIO and Nancy-Anne
Bjorkman. Cases 1–CA–36936 and 1–CA–36993
September 15, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On June 26, 2000, Administrative Law Judge Wallace
H. Nations issued the attached decision. The Respondent
filed exceptions, a supporting brief, an answering brief,
and a reply brief. The General Counsel filed cross-
exceptions and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified2 and set
forth in full below.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In affirming the judge’s credibility findings with respect to the tes-
timony of Respondent’s former administrator, Garrett Driscoll, we find
it unnecessary to rely on the judge’s statement that the razors Driscoll
showed to employee Nancy Bjorkman on January 7, 1999, were not the
same ones given to Driscoll by Donald Bjorkman on September 8,
1998.
In his recitation of the facts of this case, the judge stated that “[n]o
collective-bargaining agreement had been reached as of the date of
hearing.” The judge sustained an objection to strike testimony regard-
ing whether the parties have reached an agreement. Because the judge
does not rely on the absence of a contract in his legal analysis, we find
that his reference to facts stricken from the record was harmless error.
In adopting the judge’s decision, Member Hurtgen does not rely on
remarks protected by Sec. 8(c) as evidence of animus. See his dissent
in Ross Stores, 329 NLRB 573, 578 (1999).
2 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, Inc., 325 NLRB 17 (1997).
3 In his decision, the judge concluded that the Respondent violated
Sec. 8(a)(3) and (1) of the Act by suspending and discharging Nancy
Bjorkman, finding that the reasons the Respondent asserted for disci-
plining her were pretextual. In accordance with Board precedent, e.g.,
Sterling Sugars, 261 NLRB 472 (1982), the judge’s recommended
Order requires the Respondent to remove from its files any reference to
the unlawful suspension and discharge. Nevertheless, in his cross-
exceptions, the General Counsel contends that the judge’s recom-
mended Order should be modified to require explicitly that the Respon-
dent remove from its files any reference to the reasons it asserted for
suspending and discharging Bjorkman. Because we find that the judge
has already provided the General Counsel the relief he seeks, it is un-
necessary to modify the judge’s recommended Order.
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, Bourne Manor Extended Health Care Facil-
ity, Bourne, Massachusetts, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Suspending, discharging, or otherwise disciplining
employees for engaging in union or other protected con-
certed activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days of this Order, offer Nancy Bjork-
man full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Nancy Bjorkman whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her in the manner set forth in the
remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension
and discharge of Nancy Bjorkman, and within 3 days
thereafter notify her in writing that this has been done
and that the suspension and discharge will not be used
against her in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary or useful in
analyzing the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at
its facility in Bourne, Massachusetts, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
1, after being signed by the Respondent’s authorized

4 If this Order is enforced by a Judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
332 NLRB No. 11
BOURNE MANOR EXTENDED HEALTH CARE FACILITY 73
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 7,
1999.
(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.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT suspend, discharge, or otherwise dis-
cipline Nancy Bjorkman or any of you for engaging in
union or other protected concerted activities.
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, offer Nancy Bjorkman full reinstatement
to her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Nancy Bjorkman whole for any loss
of earnings and other benefits resulting from her suspen-
sion and discharge, less any net interim earnings, plus
interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful suspension and discharge of Nancy Bjork-
man, and WE WILL, within 3 days thereafter, notify her
in writing that this has been done and that the suspension
and discharge will not be used against her in any way.

BOURNE MANOR EXTENDED HEALTH
CARE FACILITY

Linda Harris Crovella and William F. Grant, Esqs., for the
General Counsel.
David M. Mandel and Anthony D. Rozzotti, Esqs., of Boston,
Massachusetts, for the Respondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This
case was tried in Boston, Massachusetts, on December 6–8,
1999. The charge in Case 1–CA–36936 was filed by Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local 59,
International Brotherhood of Teamsters (the Union) on January
11, 1999, and the charge in Case 1–CA–36993 was filed by
Nancy-Anne Bjorkman, an individual, on February 1, 1999.1
An order consolidating cases, consolidated complaint and no-
tice of hearing (the complaint) was issued May 27, 1999. The
complaint alleges that Bourne Manor Extended Health Care
Facility (Bourne or Respondent) has engaged in conduct in
violation of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (the Act) by suspending and then discharging Nancy
Bjorkman.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, engages in the operation of a
nursing home at its facility in Bourne, Massachusetts. The Re-
spondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and a health care institution within the meaning of Sec-
tion 2(14) of the Act. It further admits that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Alleged Unlawful Conduct
At all material times, Respondent has operated a nursing
home in Bourne, Massachusetts. It is one of several nursing
homes owned by its parent corporation, Berkshire Health Care
Systems. From April 1992 until April 1998, Bourne’s adminis-
trator was Ken Persinko. From May 1998 until August 1999,
Gary Driscoll served in that capacity. From August 1999 to
present the administrator has been Thomas Lavallee. From

1 All dates are in 1998 unless otherwise indicated. Nancy-Anne
Bjorkman will hereinafter be referred to as Nancy Bjorkman.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 74
1989 until her suspension and discharge in January 1999,
Charging Party Nancy Bjorkman was employed by Respondent
as a certified nursing aide (CNA). Bjorkman initiated and was
deeply involved in two organizing campaigns by the Union at
the nursing home. The last campaign was successful and the
Union was certified at the facility the summer of 1998.2 There-
after Bjorkman maintained her high profile as a union activist
by participating as a member of the Union’s negotiating com-
mittee. On January 7, 1999, Respondent suspended Bjorkman
and then on January 11, 1999, discharged Bjorkman for the
alleged theft of two packages of disposable razors and for tak-
ing home and bringing back daily a bottle of sanitizer that was
the property of Respondent. This was the only discipline
Bjorkman was ever given during her years with Respondent.
The General Counsel asserts that the alleged reason for dis-
charging her is pretextual and that she was fired in retaliation
for her activities on behalf of the Union. I agree and will find
that Respondent violated Section 8(a)(1) and (3) by its dis-
crimination toward Bjorkman.
B. The Facts Behind Bjorkman’s Suspension and Discharge
1. Nancy Bjorkman is shown to be a good employee and a
leading union activist
Bjorkman was hired as a CNA by Respondent in June 1989.
She worked 40 hours a week on the night shift, from 11 p.m. to
7 a.m. Beginning in 1996, she attempted to get the Union in the
facility as the representative of the CNAs. In 1996, she con-
tacted the Union and met with some of its representatives and
secured authorization cards. She passed them out at work and
the workers who signed cards returned them to the Union. Ul-
timately a petition was filed and an election held, which was
lost by the Union. Bjorkman instituted a new campaign in 1998
and this one was successful for the Union. Respondent stipu-
lated that Bjorkman was a leading union proponent in both
campaigns and the Respondent was aware of her role in the
organizing effort. Bjorkman was an active member of the un-
ion negotiating team. Negotiations for an initial collective-
bargaining agreement began in August and Bjorkman attended
five or six bargaining sessions before being fired in January
1999. No collective-bargaining agreement had been reached as
of the date of hearing.
Respondent stipulated that Bjorkman was regarded by it as a
good dependable employee. She was named employee of the
year in one of her years with Bourne. As noted earlier, Respon-
dent terminated Bjorkman allegedly for the theft from the facil-
ity of two packages of disposable razors and for taking to and
from work a bottle of Respondent’s sanitizer, Purell.3 Respon-
dent learned of the alleged act of theft from Bjorkman’s es-
tranged husband, Donald Bjorkman. In February 1998, Nancy
Bjorkman obtained a restraining order against her husband.
This order was modified in mid-April to allow child visitation.
Since obtaining the restraining order in February, Nancy Bjork-

2 The only unfair labor practices alleged in either campaign are those
being litigated in this proceeding.
3 The Respondent’s employee handbook provides that theft or re-
moval of property from its facility is punishable by immediate termina-
tion.
Bjorkman has lived in the family home with three of her four
daughters and a granddaughter. Donald Bjorkman has lived
elsewhere.4 Respondent stipulated that Nancy Bjorkman in-
formed it that she had a restraining order against her husband.
On August 28, Bjorkman changed the locks at her house to
prevent her husband from entering it. On that day, her husband
did try to enter and was unsuccessful. He became angry and
yelled at Bjorkman, telling her, “I will get you for this.”5 Don-
ald Bjorkman was serious.
2. Nancy Bjorkman and another employee are accused of theft
by her husband and Respondent pursues the accusation against
Bjorkman, but not the other accused employee
Bourne’s then administrator, Driscoll, testified that on Au-
gust 28, Donald Bjorkman called him at his office. Bjorkman
told him that his wife had changed the locks on their home and
that their long-term marriage was going down the tubes.
Bjorkman said he was going to get even with his wife and then
accused her of stealing from the nursing home a long list of
items over a long period of time. Bjorkman then accused Re-
spondent’s nursing supervisor, Mike Silva, of passing informa-
tion to the Union and letting union representatives into Respon-
dent’s offices at night.6 He then accused his wife of stealing
diet pills and giving them to fellow CNA Amy Cordoza.
Bjorkman warned Driscoll not to call the local police because
the brother of a friend of Bjorkman’s wife works for the police.
In a subsequent conversation, Donald Bjorkman told Driscoll
that Bourne Manor nurse, Arlene Lima, was stealing items from
the nursing home and reselling them to the public. In yet a later
conversation Bjorkman accused Lima of smoking pot.
After concluding his conversation with Bjorkman on August
28, Driscoll immediately called Jeff Stevens, the director of
human resources for Respondent’s parent corporation. He testi-
fied that he realized that Nancy Bjorkman was a leading union
activist and was worried about where his actions in response to
Donald Bjorkman’s accusations would lead him. He told Ste-
vens what Donald Bjorkman had told him and was advised by
Stevens to call Ken Persinko who had received a similar call
from Donald Bjorkman a few years earlier.
Driscoll then called Persinko and related at least the portion
of the call from Bjorkman that related to Nancy Bjorkman.
Driscoll testified that Persinko said that Bjorkman had told him
a similar tale in about 1994 and that Bjorkman had offered to
provide proof. However, before they could meet, Bjorkman
suffered a heart attack and Persinko never did meet with him.
4 There was an issue raised by Respondent about whether Donald
Bjorkman lived in the family house until August 28, the restraining
order notwithstanding. Nancy Bjorkman testified that this was not the
case and that Donald Bjorkman had not lived in the house since the
granting of the restraining order in February 1998. Donald Bjorkman
did not testify. The only other evidence on this point is clear hearsay. I
credit Nancy Bjorkman on this point.
5 In October, Bjorkman had her husband arrested for a violation of
the restraining order.
6 Driscoll evidently believed this accusation involving Silva, noting
in his testimony that he had for some time suspected someone was
going through files and using the office xerox machine without authori-
zation.
BOURNE MANOR EXTENDED HEALTH CARE FACILITY 75
Persinko testified that about February 15, 1994, he received a
memo from Bourne’s director of nursing. The memo stated that
she had received a call from a Jim Gibson, who accused em-
ployee Arlene Lima of stealing property from the facility and
selling the property from her house. Persinko then called the
local police reporting the call and asking if they could help get
to the bottom of the accusation. According to Persinko, he was
instructed to first do an internal investigation. Persinko received
a call from Donald Bjorkman in May or June 1994. In this call,
Bjorkman first identified himself as Jim Gibson, then revealed
his true identity.7 Bjorkman told Persinko that his wife Nancy
and another employee, Arlene Lima, were stealing toiletries
from the facility and selling them. Bjorkman agreed to bring in
samples of the stolen merchandise within a few days. About 3
weeks then passed without Donald Bjorkman contacting
Persinko. Persinko then learned that Donald Bjorkman had had
a heart attack. Though he did not again speak with Donald
Bjorkman, Persinko assumed that he did not bring in the alleg-
edly stolen merchandise because of his health problems. At the
the time of the February memo and the May–June calls from
Donald Bjorkman, Persinko instructed supervisors to look for
any evidence of theft from the facility. At some point in this
rough timeframe, a pillowcase full of Respondent’s toiletries
was found hidden in a corner of Respondent’s storage room.
Persinko then looked into installing a video camera in the stor-
age room, but that course of action was too expensive. He in-
quired of the person in charge of the storage room whether
more toiletries than usual were being used, and that person was
not sure. Nothing was ever developed that tied the sack of toi-
letries to any employee. At some point during this period of
accusations, Persinko spoke with the Respondent’s parent com-
pany’s human resources director about the accusations.
Persinko was told that without physical proof, he should not
pursue the matter. Persinko did alert the supervisors to watch
Nancy Bjorkman. When he followed up with them at a later
point, they informed him they had not seen Bjorkman taking
anything.
Within a couple of days after talking with Persinko, Driscoll
again spoke to Stevens, who advised that if some proof was
forthcoming from Bjorkman, to continue to pursue the accusa-
tions. On the other hand, if Bjorkman could not provide evi-
dence, Stevens advised Driscoll to drop the matter. Driscoll
also spoke to the person in charge of inventory control for the
facility and learned there was no way of telling if items were
being stolen because of deficiencies in Respondent’s inventory
control program. This was the extent of his “investigation” into
the allegations of theft by employee Arlene Lima.
Driscoll said he looked into the matter of the alleged pill
theft and determined that the facility did not have an inventory
control procedure for the type of pills Bjorkman was alleged to
be taking, so he immediately stopped investigating this allega-
tion. Though he talked with supervisory personnel about how to
investigate the matter, he did not ask any supervisor or em-
ployee if they knew anything about Nancy Bjorkman stealing
medication. This was the totality of his “investigation” into the
alleged pill theft. In support of this unusual lack of interest in
the allegations made against Bjorkman regarding pill theft and
Lima regarding theft of many items, Driscoll said that he did
not pursue the matter because Donald Bjorkman did not give
him physical evidence supporting these allegations of theft. I
cannot find in the record where Driscoll even asked Bjorkman
to produce evidence supporting his allegations of theft by Lima.
In any event, he asked no supervisor or employee if they knew
anything about theft by Lima. He never confronted her about
the allegations of theft.

7 Donald Bjorkman also initially called himself Jim Gibson in his
August 28 call to Driscoll.
3. Driscoll seeks evidence from Donald Bjorkman
On September 7, Driscoll again spoke over the phone with
Donald Bjorkman. Bjorkman reiterated his desire to get re-
venge against his wife. Driscoll then told Bjorkman that he had
to supply some physical evidence or Driscoll could not pursue
the theft allegations. Bjorkman said he might be able to get
some and they ended the conversation. (Emphasis added.)
Donald Bjorkman called Driscoll the following day. Bjork-
man said he had evidence for Driscoll in the form of razors.
Driscoll told him to meet him at a parking lot in town and they
did meet about half an hour later. Driscoll did not take a wit-
ness with him. According to Driscoll, Bjorkman gave him a
plastic Wal-Mart bag containing two sealed 10 packs of dispos-
able razors. Driscoll testified that Bjorkman said they came
from his home. Driscoll, knowing that Bjorkman had been
locked out of his home, testified that he assumed that Bjorkman
acquired the razors before he left. On the other hand, in their
conversation the previous day, Bjorkman did not say he had
evidence, rather, he only indicated that he might be able to get
some. He certainly did not say he was in possession of dispos-
able razors that had come from the nursing home.
It would appear more likely that Donald Bjorkman acquired
the razors after being told by Driscoll that he had to have
physical evidence. Given the fact that he could not get into his
house, it is more likely that he stole them from the nursing
home himself. Donald Bjorkman was also an outpatient at a
local hospital that used disposable razors identical to the ones
used by Bourne and could have obtained them from this source.
Driscoll left this meeting and returned to the nursing home.
He testified that he went to the storage room and found that the
razors supplied by Donald Bjorkman were identical to the ones
used by Bourne.8 Driscoll admitted that they do not specify
they are from Bourne Manor and could have come from some
other source.
In any event, the next day, Driscoll again spoke with Human
Resources Director Stevens and told him what had happened.
Stevens gave him instructions on how to proceed. Driscoll ar-
ranged for Donald Bjorkman to come to the nursing home and
be interviewed by Respondent’s attorney. Following this meet-
ing, the attorney prepared an affidavit for Bjorkman’s signature
and sent it to him for signing in late September. Bjorkman did
not return the affidavit. In late November another copy of the
8 The razors involved in this proceeding are Gillette disposable ra-
zors packaged in packs of 10. The packets have printed on them: “Not
for Retail Sale.” They also contain the wording: “Catalogue No.
4471GM, Baxter, distributed by Baxter Health Care Corporation, Deer-
field, Illinois.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 76
affidavit was sent to Bjorkman. According to Driscoll, this one
was returned in the first week of January 1999 and he got a
copy that week.9
4. Driscoll finally confronts Nancy Bjorkman about the
allegations of theft
Driscoll testified that he did not want to confront Nancy
Bjorkman with the allegations until he received the signed affi-
davit from Donald Bjorkman. Without the affidavit, he did not
consider the razors evidence enough to proceed. Yet, contrary
to his assertions, he decided in December that the matter had
been dragging on too long and he finally confronted the ac-
cused.
On December 7, Bjorkman was called into Driscoll’ office.
Driscoll informed her she was under investigation for theft. She
expressed disbelief and he assured her he was serious. She in-
quired if her husband was behind the investigation and Driscoll
said yes. Driscoll then asked her a series of questions and
documented her answers. He asked if she had ever taken Re-
spondent’s property for her personal use and she answered no.
He asked if she had ever taken Respondent’ property from the
nursing home to her residence. She answered that she had taken
a bottle of a sanitizing product, Purell, explaining that it was
not always available on her shift so she carried it with her. This
product is used to clean aides’ hands and medical instruments
between handling patients. To demonstrate what she was talk-
ing about, she reached into the bag in which she carried per-
sonal items and pulled out a bottle of the sanitizer.10 Though
Driscoll testified that he thought this was a serious matter, he
did not ask her to show him the contents of her bag. He never
asked to look in the bag.
Driscoll then asked a series of questions to discover if she
had taken home certain items he enumerated and she denied
doing so. Last he asked if there was ever in her home any
sealed bags of disposable Gillette razors labeled “Baxter for
institutional use.” Bjorkman said there might have been as she
buys disposable razors for herself and her daughters.11 She
denied taking any razors from the nursing home. The meeting
ended with Bjorkman urging Driscoll to continue the investiga-
tion by speaking with her coworkers.
Bjorkman next met with Driscoll on December 10 after a un-
ion negotiating meeting. At this meeting Bjorkman recalls
Driscoll calling her husband a “class one act” and noting that he

9 Driscoll testified that he had a conversation with Bjorkman about
the delay in signing the affidavit. Driscoll testified that Bjorkman told
him that his attorney had advised him not to sign it as he might suffer
some unspecified economic harm as a result. As noted earlier, Donald
Bjorkman did not testify. The signature on the affidavit may be Bjork-
man’s or it may not be. Comparing the signature on the affidavit with
Bjorkman’s signature on official court documents is not conclusive.
Not one testified that they saw Bjorkman sign the affidavit. I will ac-
cept the affidavit into evidence only for the purposes of adding to the
understanding of the testimony about it. I do not give credit to any of its
contents and do not accept those contents as proven fact.
10 In this bag Bjorkman had a calendar, cigarettes, a calculator, a
medical dictionary, coffee, a gate belt, hand lotion, pencils, and other
personal items.
11 Bjorkman testified that she buys packs of Gillette disposable ra-
zors for about a dollar to a dollar and a quarter at local discount stores.
believed him about the allegations of theft. Driscoll also noted
that her husband was out for revenge.12 Bjorkman had heard
nothing from her coworkers about any investigation and she
asked Driscoll when he was going to interview them. Driscoll
did not answer. At this meeting, Driscoll seized upon Bjork-
man’s admission she takes Purell home between shifts. In re-
sponse to his questions, she related that the Purell stays in a bag
in her car when not at work and is not used for personal rea-
sons. She indicated she did not always take Purell with her and
that she had been taking it with her for about a year. She denied
ever keeping Purell at her home. She told him she had not dis-
cussed this practice with any supervisor. She indicated she did
not have access to the area where Purell was stored. She agreed
with Driscoll that she could have left the Purell in her locker at
the nursing home, but noted that it was easier just to leave it in
her bag. She again denied taking any other items away from the
nursing home.
Driscoll, on prompting, remembered he had asked the Re-
spondent’s staff development coordinator about the Purell
situation. This person told him that the product is stocked for
the use of nurses and CNAs to supplement hand washing, pri-
marily during the passing of meals and giving of medications.
Driscoll was immediately struck by the thought that meals are
not given on Bjorkman’s shift. He did find that Bjorkman was
telling the truth about the central supply where Purell is kept
being locked during her shift. Based on a note he made himself,
he believed that Purell was available at nurse’s stations. Where
he got this information is a mystery. He admitted he did not ask
employees about the availability of the product at the nurse’s
stations. Bourne’s former nursing supervisor, Michael Silva,
inter alia, corroborated Bjorkman’s assertion that Purell was not
always available on the units and if not on the unit, it would not
be available to aides on the night shift. He also testified that it
would have been useful to Bjorkman on her shift when dealing
with patients.
Driscoll testified that at this meeting he told Bjorkman that
he had received from Donald Bjorkman razors that Nancy
Bjorkman had allegedly stolen. Nancy Bjorkman remembers
this information being given at a meeting held on December 16.
Regardless of which date is correct, Driscoll at some point
around mid-December related the fact of the razors to Bjork-
man. According to Driscoll, she again denied stealing the ra-
zors and told him to ask her husband where he got them.13
On December 16, Driscoll again met with Bjorkman about
the theft issue. She was accompanied on this date by Union
Representatives Rick Fernandez and Tony Cruz. Driscoll asked
some questions and Bjorkman and the representatives asked if
he had spoken with any other workers about the allegations.
They also noted that they believed other employees had been
accused of theft and wanted to know if they were also being
investigated. The representatives asked for the names of the
12 Respondent’s counsel in his questioning of Bjorkman indicated his
doubt that Driscoll told her that he believed her husband. Driscoll him-
self testified that he did.
13 There is some dispute about whether certain things happened at
the December 10 meeting, at the December 16 meeting, or at a meeting
held January 7, 1999. I do not think it important as there is no real
dispute that these things happened at one meeting or the other.
BOURNE MANOR EXTENDED HEALTH CARE FACILITY 77
other accused employees, but Driscoll did not disclose them.
Fernandez remembers Driscoll asking about the Purell matter
and being told by Bjorkman that it did not leave her car and that
she brings it back daily. Driscoll told them that he considered
the credibility of Donald Bjorkman to be good, mentioning the
razors. Fernandez told Driscoll that the same kind of razor
blades, including the Baxter name, could be obtained at Tobey
Hospital, a local mental hospital. Fernandez or Cruz also asked
Driscoll if Donald Bjorkman had been in Bourne Manor and
Driscoll did not know.
About the middle of December Respondent received two
letters from employees and a petition signed by 18 employees
vouching for the honesty of Nancy Bjorkman. As will be dis-
cussed below, Driscoll did not want these.
5. Driscoll comes to the conclusion that Bjorkman should
be terminated
During the first week of January 1999, Driscoll received the
signed affidavit from Bjorkman. Driscoll testified that on
January 6, 1999, he sorted through what he knew and thought
about the Bjorkman situation and wrote his conclusions.
He wrote:

“FACTS:
l. D.B. no longer lives with N.B. who had the door
locks changed to keep D.B. out of the house.14
2. N.B. has a restraining order out against D.B.
3. D.B. would like to extract some revenge from N.B.
4. D.B. informed Bourne Manor that N.B. had been
stealing from the facility for years.
5. To back up his claim, D.B. delivered 2 bags of ra-
zors that he alleged N.B. had stolen from Bourne Manor.
6. N.B. denies the allegations and claims that her hus-
band is not stable and that he has concocted the allegations
to get her into trouble and do her harm.

IF: D.B. has falsely accused N.B.

THEN: D.B. would have had to preplan his presentation of
the physical evidence. This would entail:
1. Advance knowledge that we might require evidence.
2. Knowledge of the brand of razors used at the facil-
ity.
3. Knowledge of the name of the distributor that pack-
aged the razors.
4. The ability to then obtain the correct merchandise
before I asked for the proof,

OR:

5. Accomplish the above within 24 hours of being
asked for physical proof

HOWEVER:

I do not sense that either scenario is appropriate. Too
much needed to fall in place. Having spoken to D.B. nu-
merous times and having met with him on three separate
occasions, I find myself questioning his ability to manage
and carry out such a plan as well as his ability to maintain
the physical drive necessary to complete the plan. For my
part, a much more believable scenario would be for D.B.
to float the allegation and back it up with more allegations,
not with physical evidence.

14 D.B. is Donald Bjorkman and N.B. is Nancy Bjorkman.
Conversely, I find it credible to accept that his access
to the physical evidence was made possible because the
merchandise was in the home he shared with N.B. It is an
explanation that fits the circumstances, the individual, and
my best assessment of both.

AND SINCE:

N.B.’ s explanation, that

D.B. is not stable,
D.B. is only out to cause N.B. trouble,
And, maybe, D.B. bought the evidence at BJ’s or another
store (the evidence in question is not sold through retail chan-
nels.)
Does not provide me with any substance with which to dis-
credit the facts as presented by D.B.

CONSEQUENTLY:

Based on the information at hand, the physical evi-
dence at hand, and my assessment of both as of this 6th day
of January, 1999, it is my conclusion that N.B. has com-
mitted, ‘Theft or removal of property from the facility
premises.’”

As an observer of this trial, I believe that a scenario never
crossing Driscoll’s mind seems even more likely. That is, Don-
ald Bjorkman stole the razors from the nursing home. That
would explain why he thought he could get evidence of theft
without telling Driscoll what it would be until he had it. It
would explain how he got the razors when he was admittedly
locked out of Nancy Bjorkman’s house. It would explain how
he knew what kind of razor the nursing home used. It does not
take a mastermind to walk into a nursing home that is without
security and go to the storage room and walk away with two
bags of razors which would fit easily into a pants pocket. For-
mer Nursing Supervisor Silva testified that nonresidents were
in the nursing home from time to time. These included relatives
of the residents and employees. There was evidently no security
prior to the time Bjorkman’s husband gave Driscoll the razors.
Silva testified that the razors were kept in a utility room, which
was unlocked. Donald Bjorkman’s daughter, who is employed
by Bourne, offered evidence that he came to the nursing home
on August 29 or 30. She spoke to him in the hallway near the
dining room. Driscoll never asked the daughter or any other
employee if they had seen Donald Bjorkman at the nursing
home prior to his giving the razors to Driscoll.
Driscoll assumes that Bjorkman took the razors when he
moved out of Nancy Bjorkman’s. Even accepting arguendo that
Donald Bjorkman was living at Nancy Bjorkman’s house up to
August 28, there is no showing he knew the locks would be
changed on that date. If he was living there, he was locked out
without prior knowledge he would be locked out. Thus, he
would not have left with a supply of toiletries on that date. I
find the scenario that Donald Bjorkman stole the razors himself
more likely.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 78
I would also note that Driscoll’s written set of conclusions
which led to Bjorkman’s termination does not even mention the
matter of Purell.
6. Driscoll suspends, then terminates Nancy Bjorkman
On January 7, 1999, Driscoll summoned Bjorkman to his of-
fice. She took the two union representatives with her. At this
meeting, Driscoll gave Bjorkman the affidavit purportedly
given by her husband. The affidavit accuses Bjorkman of steal-
ing from the nursing home for 9 years. Specifically it accuses
her of stealing bags of razors, cans of shaving cream, tubes of
toothpaste, toothbrushes, and medical lotions and salves such as
Ben-Gay and Neosporin.15 This theft was alleged to be regular.
On a less regular basis, he accused her of stealing facecloths,
towels, sheets and blankets, and nutritional drinks intended for
patients.
The affidavit continues with a representation that the hus-
band had given this information to Driscoll and had offered to
bring proof of the theft. In that regard, the affidavit represents
that the husband provided two sealed bags of razors that he
alleged Bjorkman had brought home from Respondent’s facil-
ity.
Bjorkman branded the affidavit as lies and denied the allega-
tions. Driscoll then showed her two bags of razors, presumably
the ones given him by her husband.16 She denied taking them,
and asked if he had spoken to coworkers. He named no co-
worker to whom he had spoken. The union representative asked
if other employees the husband had accused of theft were being
investigated and Driscoll said no.
At this meeting, Bjorkman pointed out to Driscoll that Don-
ald Bjorkman had not lived at her home since she got a restrain-
ing order in the spring of 1998. She said there was court re-
cords of a break in by him in April 1998. She asked him to
check with Social Security to see where they had been sending
his disability checks. One of the Union representatives also
noted that Donald Bjorkman had been a patient at Tobey hospi-
tal, which used the same kind of razors as Driscoll was showing
them. Driscoll suspended Bjorkman without pay at the conclu-
sion of this meeting. He testified he wanted to check out some
things that were brought up at the meeting before terminating
her.
Driscoll testified that he thereafter called Donald Bjorkman’s
landlady, who agreed with his question suggesting August as
the date Bjorkman moved into her apartment. He spoke again
with Bjorkman who purportedly told him that he had been
forced to leave his residence in February, but moved back in
March and that fact was kept secret so he could collect a full
disability check. Driscoll testified that he checked with the
local court and could not find evidence of a break in April

15 Bjorkman told Driscoll at this meeting that Ben-Gay is not used
by the Respondent. He never bothered to check her assertion.
16 In this regard, we have only Driscoll’s word that the bags he
showed Nancy Bjorkman are the ones given him by Donald Bjorkman.
There was no witness to the exchange and of course, Respondent did
not call Donald Bjorkman as a witness. Curiously, the affidavit does
not mention anything about the razors other than they are packages of
Gillette disposable razors. It does not identify them as being supplied
by a company called Baxter.
1998. In this regard, General Counsel’s Exhibit 3, a copy of a
restraining order in favor of Nancy Bjorkman against Donald
Bjorkman reflects that he was restrained from contact with
Bjorkman on February 26, 1998, and that the order was modi-
fied on April 10, 1998. Thus, contrary to what Driscoll was told
by the court, there was a court appearance in April 1998 by
Nancy Bjorkman. At this time Driscoll also learned that
Bjorkman had been arrested in October for violating the re-
straining order.
Driscoll then checked with Tobey Hospital and learned that
they indeed did carry the same razors.17 He knew that Donald
Bjorkman had been a patient at that hospital, but did not inquire
of him whether he had been a patient there in August or Sep-
tember.
Notwithstanding his discovery that identical razors were
available to Donald Bjorkman at a hospital at which he was a
patient, Driscoll terminated Nancy Bjorkman’s employment the
next week. Incredulously, he testified that he thought Bjork-
man’s removal of Purell and disposable razors from the facility
without authorization was an offense of the same nature as
patient abuse. He testified, though having none of the physical
evidence he so strongly gives credence to, that he believed
Bjorkman was stealing other items as well, noting, without any
supporting evidence, that the home had a longstanding theft
problem. The only documented evidence of a theft problem has
to do with theft of property from residents.
The matter of the Purell will be addressed here. It is clear
that Bjorkman was not taking the Purell for personal, nonwork-
related use. She was simply carrying a bottle of the sanitizer to
ensure she had it when she needed it at work. Though this prac-
tice is perhaps a technical violation of Respondent’s rule, it
certainly did not violate the spirit of or reason for the rule. It is
clear that Respondent did not consider this as theft or it would
have terminated her immediately on her admission that she
carried the Purell away from the facility. Driscoll’s action, or
inaction, following Bjorkman’s admission shows that the mat-
ter was actually of no real concern to Respondent. He did verify
that she was telling the truth in that she could not get Purell
from the supply room in which it is kept as that room is locked
at night. He made no effort to learn whether her supervisor
knew she was taking the Purell in her bag, nor did he investi-
gate to determine whether this was a common occurrence
among Bourne’s staff. I believe and find that matter of Purell
was of no consequence and was merely used as a make weight
to bolster Respondent’s theft case.
C. Conclusions
In Wright Line, 251 NLRB 1083 (1980), the Board an-
nounced the following causation test in all cases alleging viola-
tions of Section 8(a)(3) or violation of Section 8(a)(1) turning
on employer motivation. First, the General Counsel must make
a prima facie showing sufficient to support the inference that
protected conduct was a “motivating factor” in the employer’s
17 Driscoll then called some other local nursing homes to see if they
carried the Baxter packaged razor. They did not. Though he knew the
name of the distributor of the Baxter packaged razors, he did not call
this distributor to ask what other entities in the area they supplied the
razors to.
BOURNE MANOR EXTENDED HEALTH CARE FACILITY 79
decision. Upon such a showing, the burden shifts to the em-
ployer to demonstrate that the same action would have been
taken even in the absence of the protected conduct. In Manno
Electric, 321 NLRB 278, 280 at fn. 12 (1996), the Board re-
stated the test as follows: The General Counsel has the burden
to persuade that antiunion sentiment was a substantial or moti-
vating factor in the challenged employer decision. The burden
of persuasion then shifts to the employer to prove its affirma-
tive defense that it would have taken the same action even if the
employees had not engaged in protected activity.
Counsel for the General Counsel has made such a prima fa-
cie case and meets the burden of persuasion. We are not dealing
here with a malcontent or problem employee. Nancy Bjorkman
was a long time, well-respected employee of Respondent. She
had never been disciplined and absolutely no problems with her
job performance will be found in this record. When out of the
blue, an honest employer receives allegations of theft by such
an employee, the only rational response would be to sincerely
hope that they are not true. That was not the response of Dris-
coll. Of course, there is the matter of Nancy Bjorkman’s union
activities. Respondent and more specifically, Driscoll were well
aware that Nancy Bjorkman was the leading union supporter.
Her activities on behalf of the Union were many and well
known. Respondent stipulated that it was well aware that
Bjorkman’s activity as a lead union proponent, an observer at
the election, and an active member of the negotiating commit-
tee up to the time of her discharge. She was also a “thorn in the
side” of Driscoll or “a pain in the ass” to him for, inter alia,
making him “eat crow” and write a letter admitting error in a
newspaper interview shortly after the union election. Former
Nurse Supervisor Silva testified that Driscoll had indicated that
he considered Bjorkman a thorn in his side. Though arguing
with Silva’s use of words, Driscoll recounted the newspaper
incident and allowed as he might have used the words “pain in
the ass” to Silva. Silva also testified and I credit that Driscoll
was opposed to unionization. Silva characterized Driscoll’s
feelings about the Union as disdain and arrogance. I believe the
characterization to be accurate. Silva was working at Bourne on
a per diem basis when Donald Bjorkman accused him of help-
ing the Union by giving it information and providing access to
the facility at night. Without any investigation, Driscoll had
Silva barred from ever entering the facility again.
As further evidence of its knowledge, Driscoll, who was new
to the facility during the last month of the organizing campaign,
repeatedly testified that he knew his discharge of such an active
union proponent would wreak havoc in the facility. Certainly,
Bjorkman’s union status was uppermost in Driscoll’s mind
when he first heard the accusations from Donald Bjorkman, as
the first person he called thereafter was Berkshire’s human
resource director. Thus, it is undisputed that Bjorkman was
heavily involved in union activity and such was well known to
Respondent.
The final element, whether Respondent was motivated by
unlawful considerations, is the crux of this case. I believe Re-
spondent conduct during its “investigation” of the allegations
leveled against Nancy Bjorkman, established beyond doubt that
the asserted reasons for Bjorkman’s discharge are purely pre-
textual. “The failure to conduct a meaningful investigation or to
give the employee an opportunity to explain has been regarded
as an important indicia of discriminatory intent.” K & M Elec-
tronics, 283 NLRB 279, 291 fn. 45 (1987). See also Electric
South, Inc., 327 NLRB 270, 287 (1998); and New England
Cold Storage & Warehouse Co., 326 NLRB 1471 (1998).
I believe and find that the investigation conducted by Dris-
coll was a total sham, and had as its purpose the sole goal of
affording an excuse to rid the facility of Nancy Bjorkman. I do
not believe her true guilt or innocence made any difference
whatsoever in the decision to terminate her. The reasons for my
belief and findings in this regard are many. First, Nancy
Bjorkman was not the only employee accused of theft by Don-
ald Bjorkman. Employee Arlene Lima was also implicated in
wrongdoing. She was accused of stealing a laundry list of Re-
spondent’s property and reselling these items. Yet Driscoll did
virtually nothing to investigate Donald Bjorkman’s claims with
respect to her. He noted that the Respondent’s inventory control
procedures would not help determine if theft of the involved
property was occurring. But that was true in Nancy Bjorkman’s
case as well, and it did not stop him from pursuing allegations
against her. Driscoll further claims he did not pursue allega-
tions against Lima because he did not have any physical evi-
dence, such as razors, to support the accusations. This is pat-
ently absurd. First, if one is not offered such evidence without
asking, one must ask to get such evidence. There is no showing
that Donald Bjorkman was ever asked to provide evidence with
respect to his allegations about Lima. Perhaps he got the razors
from her.
Second, a standard form of investigation and one used by
Respondent in another employee theft case, is to ask supervi-
sors and fellow employees if they have any knowledge about
the allegations. Though this technique was followed to secure
evidence that led to the discharge of another employee accused
of stealing Respondent’s property, Driscoll did not ask anyone
about the allegations against Lima. Further, Respondent has
been shown to confront and ask employees accused of theft
about the accusations. In the fall of 1999, Respondent immedi-
ately did just that when a nurse was accused by another nurse
of stealing medication. The accused nurse admitted the theft
and was terminated immediately.18 Driscoll did not call the
police and report the allegations, even after receiving the ra-
zors. The record shows that Respondent had called the police in
other instances of suspected theft. This failure do to so is
strange since Driscoll compared the allegations against Nancy
Bjorkman as equal to patient abuse, which is about the most
serious charge than can be leveled against a health care pro-
vider. Such patent disparity in the investigation of Bjorkman as
opposed to Lima, and Driscoll’s refusal to even use Respon-
dent’s commonly used forms of investigation into the Lima
allegations, is sufficient in my estimation to clearly demon-
strate that unlawful motivation and animus were the moving

18 Respondent’s food service supervisor reported to Persinko that a
cook named Rogers was stealing food. Persinko had the supervisor
question other employees and he came up with statements from those
with knowledge of the thefts. Persinko testified that the normal way to
do an investigation is to ask staff for their knowledge. Lavallee was
notified by a nurse that another nurse was stealing medications. He
immediately confronted her about this allegation and she admitted it.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 80
force behind Respondent’s investigation of Nancy Bjorkman.
“Blatant disparity is sufficient to support a prima facie case of
discrimination.” Dynabil Industries, 330 NLRB 360, 363
(1999). Importantly, Lima, as opposed to Bjorkman, had no
involvement with the union organizing campaign in 1998.
Further, other evidence shows that Respondent was not try-
ing to truly investigate and get at the truth. Before terminating
Nancy Bjorkman, Driscoll knew that Donald Bjorkman was out
for revenge against his wife, had been a patient at an area men-
tal institution during the investigation of Nancy’s alleged theft,
and had been arrested in October for a violation of the restrain-
ing order against him. He, however, considered Donald Bjork-
man to be trustworthy, more trustworthy than Nancy and other
longtime employees at the facility. He evidently did not find
trustworthy the two longtime employees who wrote letters to
management in support of Nancy Bjorkman and who un-
equivocaly stated they had never seen her take Respondent’s
property. He did not find trustworthy the 16 other employees
who sent a petition to management vouching for the honesty of
Nancy Bjorkman.19 He did prepare, after the December 7 meet-
ing, a detailed and very rational questionnaire for employees
designed to learn what they knew about employees taking Re-
spondent’s property without authorization. He chose however
not to use it. His reasons for not using it were:

I did not [distribute it]. The information I was seeking,
I think I pretty well received in the petitions that were
signed and handed over to me. This would have been a
duplicate [sic] of effort. There’s only two things I could
have had from this portion of the investigation, was proof
from someone else in the facility that they actually saw
Nancy removing merchandise from the facility or, no. two,
proof that she did not do that. And I did not feel, after put-
ting this together, because I had used this approach in the
past in another situation, I didn’t feel that, after going
through the work of putting this together, I did not feel
that it was going to answer either of those questions for
me, so I did not bother to take this step.

The only conclusion he could have rationally drawn from the
petitions to which he makes reference is that Nancy Bjorkman
was honest and trustworthy. Driscoll evidently did not want to
develop evidence to support that proposition. As he stated a
little later in his testimony, “Relative to that, [whether Bjork-
man took property from the facility], I had received these, the
letters, the petitions, and these are primarily all the long-term
employees in the facility, who had worked here from night,
from day, from evening, and it was pretty obvious in the papers
that they were supporting, through this (letters and petitions),
the fact that Nancy had not taken anything out of the facility.”
(Emphasis added.)
Driscoll then testified that if all the employees at the nursing
home were interviewed and each said that Nancy Bjorkman had
not taken anything from the home, that would not have been
proof that she did not do it. Instead he relied solely on the word
of Donald Bjorkman. Driscoll also testified that the matter of

19 See GC Exh. 7. Eighteen employees signed the petition, but two of
them were the writers of the letters noted above.
the accusations against Bjorkman came up in a managers meet-
ing. The managers present expressed the concern that if Bjork-
man were terminated for theft, it would have a negative impact
on the facility. They noted that Bjorkman was a good em-
ployee. None of the managers present gave any indication that
they believed Bjorkman was taking the facility’s property with-
out authorization. Again, Donald Bjorkman’s trustworthiness is
viewed by Driscoll as better than his own management. I view
this entire portion of Driscoll’s testimony as clearly showing
that he had only one goal in his so-called investigation, to fire
Bjorkman without any regard to the truth.
Though the testimony discussed immediately above is, like
the matter of disparity of treatment, sufficient in and of itself to
prove unlawful motivation, there is more. Looking more care-
fully at whom Driscoll would have one believe he believed,
there are far more questions than rational answers. Rather than
give the benefit of the doubt to an exemplary 9-year employee,
Driscoll chose to believe a man who he implied was “odd,” a
drinker who lacked ambition, who ranted about revenge, and
made bizarre new allegations against employees each time he
spoke to Driscoll. Driscoll knew that Bjorkman had a restrain-
ing order against him and had violated it. He discounted or did
not believe some of the things Bjorkman told him. Yet he be-
lieved him over Nancy Bjorkman and all of the longtime em-
ployees who supported her on the issue of alleged theft.
This leads me to the razors. By hearing’s end, my faith in
Driscoll’s credibility was completely gone. I really no longer
believe that the razors shown to Nancy Bjorkman in the Janu-
ary 7, 1999 meeting were even the one’s given Driscoll by
Donald Bjorkman. At every turn, Driscoll refused to consider
any other “scenario” other than one in which Donald secured
the razors from his home. As I have pointed out earlier, a
stronger case can be made that Donald Bjorkman stole the ra-
zors himself. He had the opportunity and the motive. He was
proven to be in the nursing home the week before he gave the
razors to Driscoll. Driscoll knew he had been locked out of his
house and admitted that this was probably done without Donald
Bjorkman’s prior knowledge. In these circumstances, it is
highly unlikely he got the razors from his house. Driscoll also
completely failed to follow up and question Donald Bjorkman
when he learned a local hospital at which Bjorkman had been a
patient used the same razors as Respondent. As was the case
with the unused questionnaire, he clearly did not want to know.
Respondent evidently did not want me to learn the truth ei-
ther. It did not call Donald Bjorkman though he was the sole
source of evidence adverse to Nancy Bjorkman. I draw an ad-
verse inference from its refusal to call him and subject him to
interrogation about the matter of the razors and the allegations
he made. See Avondale Industries, 329 NLRB 1065 (1999). I
specifically draw the inference that Donald Bjorkman would
have testified that he did not get the razors from Nancy Bjork-
man’s home, and she did not take them from Bourne.
The General Counsel, for each and all of the reasons set forth
above, has established not only a prima facie case of unlawful
motivation, but also a compelling one. Respondent has wholly
failed to offer convincing proof that it would have suspended or
terminated Bjorkman absent her protected activity and its ani-
mus toward that activity. To believe Respondent was acting
BOURNE MANOR EXTENDED HEALTH CARE FACILITY 81
from lawful motivation, one must find that Driscoll had a good
faith belief that Donald Bjorkman was telling the truth about
his wife. Based on my assessment of Driscoll credibility alone,
that is a lost cause. I do not believe Driscoll on any issue deal-
ing with motivation behind the firing of Bjorkman. Based on
the objective evidence in this record, Donald Bjorkman was the
last person in the world a rational person would believe with
respect to his wife. He was shown to have been receiving men-
tal care, was the subject of a restraining order for spousal abuse,
had been arrested for violating that order, and was a man con-
sidered a drinker and odd by Driscoll. Yet Driscoll would have
me believe that he believed Bjorkman over the word of Nancy
Bjorkman and the host of fellow employees and managers who
implored Driscoll to believe his good, honest employee. As set
out in detail above, Driscoll ignored all evidence that proved
N. Bjorkman’s denial of theft, and ignored every avenue of
investigation that might prove her right. All of Driscoll’s fail-
ures in the investigatory process cast crushing doubt on Re-
spondent’s asserted good-faith belief in Donald Bjorkman’s
accusations. An assertion of good-faith belief will not be sup-
ported when the respondent has failed to conduct a proper and
complete investigation. See Fairfax Hospital, 310 NLRB 299,
301 (1993); Union-Tribune Publishing Co., 307 NLRB 25, 49-
50 (1992); and Doctor’s Hospital of Staten Island, Inc., 325
NLRB 730 fn. 3 (1998).
For all the reasons set above, I find that Respondent has vio-
lated Section 8(a)(1) and (3) by suspending and terminating its
employee Nancy Bjorkman.
CONCLUSIONS OF LAW
1. Respondent Bourne Manor Extended Health Care Facility
is an employer within the meaning of Section 2(2), (6), and (7)
of the Act, and a health care institution within the meaning of
Section 2(14) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent engaged in conduct in violation of Section
8(a)(1) and (3) of the Act by suspending and then terminating
its employee Nancy Bjorkman for engaging in union or other
protected concerted activities.
4. The unfair labor practices found to have been committed
by Respondent are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily suspended its em-
ployee Nancy Bjorkman on January 7, 1999, and then dis-
charged her on January 11, 1999, it must offer her reinstate-
ment and make her whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of discharge
to date of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
The Respondent is further ordered to, within 14 days from
the date of the Board’s Order, remove from its files any refer-
ence to the unlawful suspension and discharge and notify
Nancy Bjorkman in writing that this has been done and that the
suspension and discharge will not be used against her in any
way.
[Recommended Order omitted from publication.]