Care Manor of Farmington, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1995

318 N.L.R.B. 725 (N.L.R.B. 1995)

725
318 NLRB No. 88
CARE MANOR OF FARMINGTON, INC.
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Drywall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). Except as clarified below, we have
carefully examined the record and find no basis for reversing the
findings.
We note that the judge generally credited the testimony of the Re-
spondent’s witness, Raquel Reyes, that Bonet was terminated for
violation of its absenteeism policy. As explained below, however, we
have found that the Respondent was not entitled to rely on its prior
unlawful discipline of Bonet in December 1992, or on Bonet’s con-
duct in June 1993 that apparently complied with its disciplinary sys-
tem, to justify Bonet’s termination under its progressive disciplinary
policy. Accordingly, although we disagree with the judge’s ultimate
conclusion concerning motive, we do not view our treatment of the
evidence as inconsistent with the judge’s credibility resolutions.
2 Except where otherwise stated, all dates refer to 1993.
3 It is true, as the Respondent points out in its answering brief, that
there is no direct evidence of concurrent union animus in the instant
case. The severity of the prior unfair labor practices, however, the
fact that Bonet was a target of them, and the timing of her discipline
in the instant case in proximity to the litigation of the prior case and
to the Union’s certification distinguish this case from Trustees of the
College of Holy Cross, 297 NLRB 315 (1989), and Carolina Paper
Mills, Inc., 254 NLRB 1071 (1981), on which the Respondent relies.
Additionally, we note that in Care Manor of Farmington, Inc., 318
NLRB 330 (1995), the Board found that the Respondent unlawfully
refused to bargain with the newly certified Union within a week of
Bonet’s termination; we therefore find that the Respondent’s union
animus continued through the time it discharged Bonet.
Care Manor of Farmington, Inc. and Ramonita
Bonet. Case 34–CA–6253
August 25, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On July 12, 1994, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed 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 record in light of the
exceptions and briefs, and has decided to affirm the
judge’s rulings, findings,1 and conclusions only to the
extent consistent with this Decision and Order.
The General Counsel excepts to the judge’s finding
that the Respondent did not violate Section 8(a)(3) and
(1) of the Act by warning Charging Party Ramonita
Bonet on June 26, 1993, and terminating her on July
24, 1993,2 for ‘‘excessive absenteeism’’ and ‘‘failure
to notify [her] supervisor.’’ For the reasons set forth
below, we disagree with the judge and find merit in
the exceptions.
As the judge observed, in order to establish that an
employer’s discharge or discipline of an employee vio-
lates Section 8(a)(3), the General Counsel must estab-
lish that union activity was a motivating factor in the
action taken against the employee. NLRB v. Transpor-
tation Management Corp., 462 U.S. 393, 401 (1983),
approving Wright Line, Inc., 251 NLRB 1083 (1980),
enfd. on other grounds 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). Once the General
Counsel has met this burden, the burden then shifts to
the employer to establish, by a preponderance of the
evidence, that it would have taken the action even in
the absence of the employee’s union activity. Wright
Line, supra.
In the instant case, the record establishes that Bonet
was openly active in the organizing campaign begun in
September 1992 by New England Health Care Em-
ployees Union, District 1199, SEIU, AFL–CIO at the
Respondent’s nursing care facility. She distributed au-
thorization cards and attended union meetings at a
nearby restaurant, as well as two negotiating sessions
between the Union and another of the Respondent’s fa-
cilities. The Respondent’s administrator, Janet Acousti,
also attended those sessions. The campaign culminated
in the Union’s certification on July 8. The Respondent
terminated Bonet less than 3 weeks later.
The record clearly establishes the Respondent’s ani-
mus toward the Union generally and Bonet in particu-
lar. Thus, the Board has already found in a related pro-
ceeding that, during the Union’s organizing campaign,
the Respondent: (1) promulgated an unlawful no-solici-
tation rule, interrogated its employees, and threatened
them with discharge if they continued engaging in
union activities, in violation of Section 8(a)(1) the Act;
(2) discriminatorily discharged two employees in viola-
tion of Section 8(a)(3); and (3) removed an employee
from her work schedule and terminated her in violation
of Section 8(a)(3) and (4). Care Manor of Farmington,
Inc., 314 NLRB 248 (1994). These violations occurred
as late as February 1993, less than 6 months before
Bonet’s final warning and termination. Significantly, in
that prior proceeding, the Respondent was also found
to have violated Section 8(a)(3) by issuing written
warnings and a suspension to Bonet in December 1992
because of her union activities, including a disciplinary
warning for absenteeism issued December 15, 1992.
Id. at 255. Based on the foregoing, and on the Re-
spondent’s unlawful application of its disciplinary pol-
icy, discussed below, we find that the General Counsel
has established that Bonet’s discharge was discrim-
inatorily motivated.3
The Respondent contends that the action taken
against Bonet was lawful because it was prompted by
her reporting late for work on July 17, failing to report
or ‘‘call out’’ on July 19, calling out on July 21, 22,
and 26, and calling out less than 2 hours before her
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Reyes testified that Bonet’s work performance was not consid-
ered in terminating her.
5 314 NLRB 248, 255 (1994). The judge’s decision, adopted by
the Board issued on October 22, 1993.
6 The written warning in evidence states that ‘‘Ramonita Bonet
called out on 6/11/93; 6/17/93 thus violating the absenteeism policy.
Will review employee file.’’ Bonet also received a 3-day suspension
on June 24 for failing to clean a room. The complaint alleged that
the suspension violated the Act, and the judge made no specific find-
ings about it. In the absence of exceptions, we adopt the judge’s
finding, implicit in his dismissal of the complaint, that the suspen-
sion did not violate the Act. The Respondent concedes that perform-
ance related discipline was not a factor in the Respondent’s decision
to discharge Bonet.
7 As explained below, it appears that Bonet did violate the Re-
spondent’s absenteeism policy as a result of her attendance record
in July. Specifically, the judge found that Bonet was late to work
on July 17, absent from work without calling out on July 19, and
absent July 21 through 23, and July 26 because of back pain. Bonet
followed the call-out procedure on July 21, 22, and 26, but was late
calling out on July 23. Accordingly, the evidence shows that she was
absent on July 19 and 23 without complying with the Respondent’s
call-out procedure.
shift on July 23.4 The Respondent, in its letter brief to
the judge and its answering brief to the Board, does
not specifically address the warning issued to Bonet in
June. For the reasons stated below, we reject the Re-
spondent’s reliance on Bonet’s absenteeism and find
that it was used as a pretext for the discipline imposed
in June and July.
The Respondent has a written, four-step progressive
disciplinary policy on absenteeism. The policy, in per-
tinent part: (1) requires that employees ask to be ex-
cused for time off in the future; (2) requires employees
to communicate with the Respondent concerning a pro-
spective absence (call out) at least 2 hours prior to the
start of their shift if they cannot report to work; (3)
deems employees to have voluntarily resigned if they
are absent for 2 or more consecutive days and fail to
call out; and (4) defines excessive absenteeism as two
or more unexcused absences in a 30-day period, with
two latenesses counted as one absence. The policy fur-
ther indicates that if attendance reflects the foregoing
‘‘patterns of behavior, your [s]upervisor will . . . issue
an official verbal warning.’’ Continued violation of the
policy results in a second written warning, followed by
a final written warning, and termination if the final
written warning is disregarded. The Respondent pre-
sented no evidence to clarify if or how an absence may
be considered to be unexcused for reasons other than
a failure to provide the 2 hour advance call-out notice.
Bonet’s disciplinary record for absenteeism nomi-
nally tracks this four-step procedure, but it fails to es-
tablish in response to the General Counsel’s Wright
Line prima facie case that her discipline would have
resulted regardless of her union activity. On the con-
trary, and as explained below, such reliance does not
withstand scrutiny and establishes the illegality of the
final warning and termination.
The Respondent’s progressive disciplinary policy on
absenteeism requires a verbal warning and two written
warnings prior to a termination. Her personnel file
shows that she received verbal warnings for failing to
call out in August 1991. In December 1992, she re-
ceived a verbal warning purportedly for twice failing
to call out. As detailed above, the December 1992 dis-
cipline was found to have violated the Act.5 The
record of discipline was never removed from her per-
sonal file, however, and its continued operative effect
necessarily tainted all subsequent discipline that relied
on it under the Respondent’s established progressive
discipline system. The Respondent was not entitled to
rely on the unlawful disciplinary warnings to support
Bonet’s subsequent discharge. See Dynamics Corp.,
296 NLRB 1252 (1989).
From December 29, 1992, through April 8, Bonet
was out of work with a back injury. Approximately 3
weeks after she returned to work, the complaint in the
prior proceeding issued. Thereafter, on June 24, Bonet
received a ‘‘final warning’’ for calling out on June 11
and 17.6 As the judge noted, counsel for the Respond-
ent conceded at the hearing, and Bonet’s phone records
establish, that she called out in a timely manner on
those dates. In the face of this explicit concession, it
is apparent that Bonet in fact adhered to the call-out
rule. In the absence of any further clarification for this
warning, and in view of the nature of the Respondent’s
affirmative burden upon the General Counsel’s prima
facie showing of an unlawful motive, we find that the
Respondent has failed to establish that any discipline
was warranted based on Bonet’s absences in June. We
therefore find that the June warning was unlawful. On
July 26, as a result of additional absences that month,
Bonet was terminated.7 In view of the unlawful appli-
cation, however, of the Respondent’s progressive dis-
ciplinary policy at the second and third steps, the Re-
spondent’s decision to terminate Bonet for a purported
infraction at the fourth step is unlawful, even assuming
that Bonet’s absences were the basis for this final dis-
ciplinary measure. Dynamics Corp., above.
Although the judge found that Bonet was absent for
6 consecutive scheduled workdays without providing a
physician’s note, we note that the Respondent’s written
policy is silent on medical excuses, that Bonet called
out in accordance with the written policy on each day
except July 19 and 23, and that in any event the deci-
sion was made to terminate her while she was out sick
and before she could provide such documentation. Sig-
nificantly, the Respondent tolerated Bonet’s prolonged
absence due to her back injury from December 1992
to April without repercussion. It was only after the
issuance of the complaint in the prior proceeding and
certification of the Union that the Respondent deemed
her absences due to back pain intolerable. On the basis
of the foregoing, we find that the Respondent has
727CARE MANOR OF FARMINGTON, INC.
8 Backpay shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), and New Horizons for the Retarded, 283
NLRB 1173 (1987). See generally Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
9 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’ 1 All dates are in 1993 unless otherwise noted.
failed to establish its Wright Line defense and that its
final warning to and termination of Bonet violated Sec-
tion 8(a)(3) and (1). Accordingly, we shall order that
the Respondent offer reinstatement to Bonet and make
her whole for any loss suffered as a result of her un-
lawful termination.8
ORDER
The National Labor Relations Board orders that the
Respondent, Care Manor of Farmington, Inc., Farming-
ton, Connecticut, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Issuing a final warning to and discharging em-
ployees in retaliation for their activities on behalf of
the Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Ramonita Bonet full and immediate rein-
statement to her former position of employment or, if
that position is no longer available, to a substantially
similar position without prejudice to her seniority or
other rights and privileges, and make her whole for the
loss she suffered as a result of the discrimination
against her, with interest, in the manner set forth in
this decision.
(b) Remove from its files all mention of the unlaw-
ful warning and termination and notify Bonet that this
has been done and that evidence of this unlawful activ-
ity will not be used as a basis of future actions against
her.
(c) Preserve and, on request, make available to the
Board or its agents for examination or copying all
records and documents necessary to analyze and deter-
mine the amount of backpay owed to Bonet.
(d) Post at its facility in Farmington, Connecticut,
copies of the attached notice marked ‘‘Appendix.’’9
Copies of the notice, on forms provided by the Re-
gional Director for Region 34, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous
place, 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
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent 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
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT issue a final warning to and discharge
you in retaliation for your activities on behalf of the
Union.
WE WILL NOT in any like or related manner interfer-
ing with, restraining, or coercing you in the exercise
of the rights guaranteed you by Section 7 of the Act.
WE WILL offer Ramonita Bonet full and immediate
reinstatement to her former position of employment or,
if that position is no longer available, to a substantially
similar position without prejudice to her seniority or
other rights and privileges previously enjoyed, and WE
WILL make her whole for the loss of earnings and
other benefits resulting from her discharge, less any
net interim earnings, plus interest.
WE WILL notify her that we have removed from our
files all mention of the unlawful warning and termi-
nation and that evidence of this unlawful activity will
not be used against her in any way.
CARE MANOR OF FARMINGTON, INC.
Thomas W. Doerr, Esq., for the General Counsel.
Stuart Bochner, Esq., of South Orange, New Jersey, for the
Respondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Based
upon a charge filed August 2, 1993,1 and an amended charge
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Respondent’s policy on absenteeism is as follows:
Our work goes on 24 hours a day, seven days a week. The work
of all departments is interrelated, and your presence is very im-
portant if we are to avoid interruption of the services we offer
to our patients. For this reason, we have rules regarding absen-
teeism and lateness. To insure the fair administration of these
rules, your Supervisor maintains a record of your attendance.
Failure to comply with the company’s rules will lead to discipli-
nary action and up to possible termination of your employment.
Absenteeism policy is as follows:
1. If you know will need time off in the future, consult with
your Supervisor and ask to be excused. Your Supervisor will
make every effort to make the requested time available.
filed September 30, by Ramonita Bonet, an individual, the
Regional Director for Region 34 issued a complaint and no-
tice of hearing (complaint) against Care Manor of Farming-
ton, Inc. (Care Manor or Respondent) on September 30. The
complaint alleges that Respondent suspended and then dis-
charged its employee Bonet for discriminatory reasons in
violation of Section 8(a)(1), (3), and (4) of the National
Labor Relations Act (the Act). The Respondent has filed an
answer to the complaint wherein it admits the jurisdictional
allegations and the supervisory status of its administrator,
Janet Acousti, and Supervisor Raquel Reyes.
Hearing was held in these matters in Hartford, Connecti-
cut, on February 7, 1994. Based on the entire record, includ-
ing my observation of the demeanor of the witnesses, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Connecticut corporation with an office and
place of business in Farmington, Connecticut, has at all ma-
terial times been engaged in the operation of a nursing home.
Having admitted in its answer the jurisdictional allegations of
the complaint, I find that Respondent 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 Section 2(14) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
New England Health Care Employees Union, District
1199, AFL–CIO (the Union) is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated the Act
by:
1. About June 24, issuing a written warning and suspen-
sion to Bonet.
2. About July 26, terminating Bonet’s employment.
A. Background Facts and Previous Discipline of Bonet
Ramonita Bonet began working for Respondent in March
1990 and was employed by Respondent as a housekeeping
and laundry aide until her termination on July 26. Her nor-
mal working hours were from 8 a.m. until 4 p.m. In Septem-
ber 1992, she became aware of the Union’s attempt to orga-
nize a group of Respondent’s employees and became in-
volved in the organizing effort in December 1992. She at-
tended union organizing meetings, signed an authorization
card, and solicited the signatures of two or three other house-
keeping employees on authorization cards. The union orga-
nizing meetings were held at the Silo Restaurant which is
nearby Respondent’s nursing home. At the invitation of the
Union, she attended two bargaining sessions between the
Union and another nursing home owned by Michael Konig,
owner of Respondent. These sessions were also attended by
Respondent’s administrator, Janet Acousti. She would then
report what happened at these sessions to the other house-
keeping employees.
The Union’s organizing effort was successful and after
winning a Board election, it was certified on July 8 as the
exclusive collective-bargaining representative of a unit of Re-
spondent’s employees, including its housekeeping employees.
Bonet received a verbal warning on December 15, 1992, and
two warnings and a 3-hour suspension without pay on De-
cember 24, 1992. The first warning alleged that Bonet vio-
lated the Respondent’s 30-day absenteeism policy, which
states if any employee within 30 days calls out of work when
scheduled to work twice or more is subject to disciplinary
actions. The warning given her on December 24, 1992, relat-
ed to alleged unsatisfactory job performance. The two De-
cember 1992 warnings were the subject of an unfair labor
practice hearing at which Bonet testified. The administrative
law judge conducting the hearing issued a decision dated Oc-
tober 22, in which he found, inter alia, that Respondent’s ac-
tions against Bonet violated Section 8(a)(1) and (3) of the
Act.
Bonet had also been given a previous warning in August
1991 related to absenteeism. It involved her failure to call 2
hours in advance of her shift to announce that she would not
work as scheduled. This was an official verbal warning.
B. Facts Relating to the Involved Discipline
Against Bonet
On December 29, 1992, Bonet suffered a back injury on
the job and as a result did not work from that date until
April 8. She filed a claim for workmen’s compensation for
this time. On June 24 she received a warning and suspension.
She testified that on June 11, because of back pain, she
called out sick. According to Bonet she called at about 5:28
a.m. and spoke with the nurse in charge of her shift. She
could not recall the name of the nurse. On June 17, she again
experienced back pain. On this occasion, she called the third
shift supervising nurse at about 5:23 a.m., asking that
Bonet’s supervisor, Raquel Reyes, be told that Bonet would
not be in the following Monday, or the day of the call, one
or the other. The record is unclear as to what Bonet meant
on this point. She testified that June 17 was a Saturday in
1993, whereas it was actually a Thursday.
In any event she missed June 17 and thereafter worked on
June 18 and her other scheduled days until June 24. During
this period, no one from management said anything to her
about a problem with her attendance. Reyes testified that she
gave Bonet a warning on June 21, but was not absolutely
sure of the date. The written warning is dated June 21. Ac-
cording to Bonet, on June 24, she was called into Adminis-
trator Acousti’s office at the end of her shift. She was told
by Acousti and Supervisor Reyes that she had violated the
policy against having two sick outs in a 30-day period.2 This
729CARE MANOR OF FARMINGTON, INC.
2. If you cannot report to work, you must call in and speak
to either your Supervisor or the Nursing Supervisor during hours
when your Supervisor is unavailable, at least two (2) hours be-
fore the start of your shift. This will permit your Supervisor to
make other arrangements to get your job done.
You should also know the following types of absenteeism will
have the indicated results:
1. If you are absent for two (2) consecutive days without call-
ing in to explain why you are not at work, you will be consid-
ered to have voluntarily resigned from your position, unless you
can demonstrate that you were unable to contact your Adminis-
trator, Department Head, or Supervisor.
2. Excessive absenteeism is defined as two (2) or more in-
stances of unexcused absence in any 30 consecutive day period.
Two (2) times late or two (2) time left early or a combination
of one (1) late and left early will count as one (1) occurrence
of absence. If your attendance reflects these patterns of behavior,
your Supervisor will call it to your attention and issue an official
verbal warning. If you continue to violate this policy, you will
be issued a second written warning. Further violation will result
in the issuance of a final written warning and ultimately termi-
nation of your employment if you disregard the final warning.
3 On the record in this proceeding, Respondent’s counsel stated
that the Respondent admits Bonet called in on the occasions in ques-
tion.
4 There were two written warnings prepared for these incidents.
The first relates to the two missed days and is dated June 21. The
second relates to the tissue matter, called ‘‘unsatisfactory work per-
formance’’ and is dated June 25. It does not specify what constituted
the unsatisfactory work performance. No explanation was offered
with respect to the conflict between the date of the latter warning
and the testimony that this warning was given on June 24, a day
earlier than the date of the warning.
5 This bit of evidence is not important except that it is an indica-
tion of a lack of credibility on the part of Bonet.
6 Reyes testified that she first heard about the therapist appoint-
ment at the unemployment hearing held on Bonet’s claim for unem-
ployment compensation following her discharge.
7 Bonet, on cross-examination, denied knowledge of the Respond-
ent’s rules on absenteeism and calling out sick. I do not credit her
denial. She had signed, on February 2, 1990, a form reading: ‘‘I
have read and understand the company’s policy on excessive absen-
teeism. A copy of the policy has been provided to me.’’ She also
had been warned earlier about excessive absenteeism, and regardless
of the motivation behind the earlier warnings, certainly should have
Continued
is the same rule she allegedly violated in December 1992.
She explained to the supervisors that she missed work be-
cause of her back pain and noted that she had called in.3 She
was also given a warning and a 3-day suspension for leaving
a tissue on the floor of a room she had cleaned. Bonet told
them she cleans 60 rooms a day and cannot be in all the
rooms just to pick up a tissue dropped by a resident. Acousti
did not identify the room involved, saying only that, ‘‘Some-
body complained about the room.’’ This incident is similar
to the one which resulted in her receiving a suspension in
December 1992.4 Reyes testified that the unsatisfactory per-
formance warning was given as the result of several com-
plaints from residents about the cleanliness of certain areas.
It also involved a situation in which Bonet was doing her
nails at an improper time, and eating in the hallway. Accord-
ing to Reyes she approached Bonet about this and Bonet’s
comment was, ‘‘Oh, somebody already snitched on me.’’
On one of the written warnings given Bonet on June 24
she handwrote near the printed word suspension, ‘‘3 days;
6—25—7—13—14.’’ Bonet testified that Reyes put these
words on the warning form and she went over it with a pen
because the writing was not clear. She marked the dates,
which she contends were the days she was to be suspended,
so she would not forget them. There was a question in this
regard because she was scheduled for vacation beginning
June 28 and was scheduled to return on July 12. She testified
that because of this situation, she was to take 1 day of sus-
pension on June 25 and the other 2 on the first 2 days fol-
lowing her scheduled return from vacation, that is, July 13
and 14. The warning form for leaving the tissue on the floor
has written in the same spot ‘‘3 days, effective 6/25/93.’’ Re-
spondent had the original warning for the call outs and it did
not have the writing which Bonet claimed Reyes put on it.5
These warnings indicate they are final warnings and that
Bonet would be terminated if she again violated company
policy in these regards. Bonet admitted on cross-examination
that Acousti explained this to her. Reyes testified that at the
time these warnings were given, Bonet was verbally told that
she would be terminated if her behavior with regard to ab-
senteeism continued.
Bonet served her suspension sandwiched around her vaca-
tion. While on vacation she received a subpoena from the
Board to appear before the Board at its Hartford, Connecticut
office at 11 a.m. on July 19 to testify in Case 34–CA–5853,
et al., the case which is discussed earlier in this decision. On
July 15 she reported back to work and told Reyes that she
had been subpoenaed to appear at the Board on July 19. She
gave the subpoena to Reyes, and also told her that she was
scheduled to have a treatment for her back on July 19. Reyes
said nothing and returned the subpoena. According to Bonet,
there was no discussion on July 15 about changing Bonet’s
hours on July 19. On July 17, Bonet came to work 30 min-
utes late.
On Monday, July 19, according to Bonet, she went to ther-
apy for her back and then went to the Board’s offices and
testified in the involved hearing pursuant to the subpoena.
Appearing for Respondent in the hearing on that date were
its counsel and, inter alia, Supervisor Reyes. Reyes testified,
with respect to July 19, that Bonet had given her the sub-
poena and at the time told Reyes that she, Bonet, could not
financially afford to lose any more hours from work. Accord-
ing to Reyes, Bonet then asked her to arrange for her to
work in the morning so she could work and still attend the
hearing. Reyes told her that was no problem. After getting
Acousti’s approval, Reyes gave Bonet an amended schedule
for July 19, one that scheduled her to work from 7 a.m. to
12 p.m. Bonet did not report to work on July 19 and did not
call in. Reyes testified she had not been told about the al-
leged therapist appointment on July 19. According to Reyes,
Bonet arrived at the hearing after noon.6
Bonet was not scheduled to work on July 20, and on July
21, called out sick because of back pain. She also called out
sick on July 22 and 23. She was not scheduled to work on
July 24 and 25. She called out sick because of back pain on
July 26 and 27. A copy of Bonet’s phone bill reflects she
called Respondent on July 22 at 12:14 a.m., on July 23 at
6:35 a.m., on July 26 at 5:18 a.m., and on July 27 at 4:53
a.m. The entry for July 23 reflects that on that date, Bonet
violated the Respondent’s rule that sick out calls must be
made 2 hours before the scheduled start of the shift.7
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
become familiar with the Respondent’s policies about absenteeism
because of them.
8 Reyes denied that the discharge had anything to do with the ear-
lier poor work performance warning and was only given for the rea-
sons given in the termination report form. As Reyes testimony in
this regard is supported by the termination forms, I credit this testi-
mony over that of Bonet.
9 She also violated the policy in December 1992; however, that
violation was excused by the administrative law judge in the prior
decision and I do not rely on that disciplinary warning.
On July 27, Administrator Acousti called Bonet at home
in the morning asking Bonet why she was out. Bonet ex-
plained it was because of her back. Acousti asked when she
was going to be able to return to work and Bonet said she
didn’t know. Acousti asked why Bonet had not contacted her
supervisor and let her know how long Bonet would be ab-
sent. According to Bonet, ‘‘I told Janet Acousti, the Admin-
istrator, I can’t tell Raquel Reyes how long I’m going to be
out because I have to wait for my results tomorrow. Tomor-
row was July 28 of ’93. Then I’m going to see Raquel Reyes
with my results and then I can tell her how long I [am]
going to be out.’’ According to Bonet, Acousti said, ‘‘Well,
Ramonita, you know that you are not reliable. You’re not—
you know, we are not your baby sitter, and you know that
no matter what, we have 120 beds to clean, and I have to
run this hospital. So, I [am] calling you to let you know that
we are terminating you.’’
Bonet testified that Acousti continued, giving her two rea-
sons for her termination. The first was for not calling in or
reporting to work on July 19, and Acousti did not know
where she was on that date. Bonet told her that Reyes knew
where she was because Reyes was at the Board when Bonet
testified. Acousti then mentioned the earlier 3-day suspension
for poor work performance.8 Acousti said she would mail
Bonet her last check. Later that day, Bonet called Reyes and
said she would come and pick up her check. Reyes said to
come in the next day. She went to the nursing home on July
28 and met with Acousti and Reyes. According to Bonet,
they had put all the reasons for her discharge in one large
warning and asked her to sign it. Bonet refused, got her last
paycheck and left.
The Respondent’s termination form under the printed por-
tion reading ‘‘Reason for Notice’’ reflects ‘‘Absenteeism,
Type C Minor’’ and ‘‘Lateness, Type C Minor and Type B
#14.’’ Under the ‘‘Comments and Explanation’’ section is
written: ‘‘Ramonita Bonet on 7/17 punch in late–8:30 am.
On 7/19/93, she was scheduled 7am–12pm, no call, no show.
On 7/21/93, 7/22/93, 7/26/93, Ramonita Bonet called out. On
7/23/93, Ramonita violated the two hour before shift to call
out policy.’’ ‘‘(a) excessive absenteeism. (b) failure to notify
supervisor.’’ A note from Acousti at the bottom of the form
states: ‘‘Phoned Ramonita 7–27–93 at 10:10 am [telling her]
that due to her lack of responsibility and reasons [given]
above, she is not longer eligible to be employed at Care
Manor.’’
Bonet filed for unemployment compensation and was chal-
lenged by Respondent. Respondent’s stated reason for the
termination was given as ‘‘excessive absenteeism, no show,
no call, failure to notify supervisor.’’ A further form filed in
connection with the claim tracks the termination report de-
scribed above.
Supervisor Reyes testified prior to Bonet’s July absences,
Bonet had discussed her need to go to therapy. Reyes testi-
fied that she told Bonet, ‘‘Listen, just let me know when you
have to go. Bring in the doctor’s note. I’ll work around you.
That would not be a problem.’’ According to Reyes, she
never received a doctor’s note for any of the July absences
though she asked for them. In this regard, Bonet testified, ‘‘I
was not allowed to be out all I wanted. But if I am sick,
I cannot work for a day or two, I’m supposed to call. That’s
what I did. And I’m supposed to bring papers to my super-
visor. That’s what I supplied [them] with.’’ In response to
Respondent’s counsel’s question if she supplied such paper
to her supervisor for the July absences, Bonet testified, ‘‘She
didn’t give me a chance. I was fired before—before I had
a chance to get the papers.’’ At a different point in the
record, she testified that she gave Reyes the doctor’s notes
after her hearing on unemployment compensation. On rebut-
tal, Bonet claimed that she was never asked by anyone from
Respondent for doctor’s notices. Again, because of Bonet’s
shifting testimony, I credit Reyes’ testimony over that of
Bonet.
Reyes testified that she attended the unemployment com-
pensation hearing and heard Bonet testify that she had her
time of appearance at the Board hearing changed to 1 p.m.,
and admit that she had not supplied Respondent with doc-
tor’s excuses for her July absences.
Among other things, this case turns on credibility. At the
hearing I carefully observed the witnesses, and writing this
decision, I again carefully considered the testimony of Reyes
versus Bonet. I credit the testimony given by Reyes over that
given by Bonet whenever there is a conflict between the two.
I found Bonet’s testimony to often be inconsistent and shift-
ing, and in the case of her professed lack of knowledge of
the Respondent’s attendance rules, unbelievable. Similarly,
her allegations of the reasons Acousti gave her for her dis-
charge do not comport with written company documents
given Bonet on the same day.
C. Conclusions with Respect to Alleged Unfair
Labor Practices
Under Wright Line, 251 NLRB 1083 (1980), General
Counsel has the burden of showing animus on the part of the
Respondent and further, that Bonet’s union activity was mo-
tivating factor in its decision to discipline her. It is clear that
Respondent was aware of Bonet’s union activity, and was
well aware that she testified against the Respondent in the
July 19 hearing. I am certain of Respondent’s animus. Al-
though the record in this case is weak in that regard, I must
note that on the same day that I heard this case, I heard an-
other case, Case 34–CA–6258, in which Respondent’s ani-
mus toward the Union was strongly shown. Similarly, ani-
mus is shown in the earlier judge’s decision in Case 34–CA–
5853, et al.
On the other hand, I do not believe that animus was
shown to be a motivating factor in the decision to terminate
Bonet, and alternatively, the record supports a finding that
Respondent had legitimate business reasons for which it
would have terminated Bonet absent any discriminatory mo-
tivation. I credit Respondent’s testimony that Bonet was ter-
minated for violation of its absenteeism policy. Bonet vio-
lated the policy in August 1991 and received an official
verbal warning.9 She again admittedly violated the policy in
731CARE MANOR OF FARMINGTON, INC.
June 1993 and received a final warning and was verbally told
continued similar behavior would result in termination. As I
have credited Reyes’ testimony over Bonet’s, I find that she
again violated the policy by failing to call in on July 19, by
calling late on July 21, and by missing several consecutive
days just prior to her termination.
By her own admission, Bonet did not give Acousti or
Reyes any notice that she was going to miss 6 consecutive
days of work. She provided no medical documentation to
them to support her claim that she was medically unable to
work. There is no showing that the Respondent has excused
such repeated violations of its absenteeism policy with other
employees. This is not a case where a respondent has manu-
factured a reason to rid itself of a union adherent. Bonet re-
peatedly violated a nursing home policy, a policy for which
good reason exists. The Act should and does afford protec-
tion for those employees who choose to support a union
against an employer which harbors union animus. It does not
afford an employee immunization, however, against dis-
cipline for clear violations of known policies that are
evenhandedly applied. I cannot find that Bonet was unlaw-
fully discriminated against as alleged in the complaint.
CONCLUSIONS OF LAW
1. Respondent 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 Section 2(5) of
the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not engage in unfair labor practices as
alleged in the complaint.
[Recommended Order omitted from publication.]