Casa San Miguel

National Labor Relations Board - Board Decisions

Dec 22, 1995

320 N.L.R.B. 534 (N.L.R.B. 1995)

534
320 NLRB No. 50
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel and the Respondent excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions un-
less the clear preponderance 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 adopting the judge’s finding of various violations, we consider
it unnecessary to rely on the judge’s discussion of preelection cam-
paign conduct in finding that the Respondent harbored union animus.
2 We agree with the judge’s conclusion that the Respondent vio-
lated Sec. 8(a)(5) and (1) of the Act by unilaterally increasing
wages. In so doing, we note that the Respondent’s postelection con-
duct was unlawful under the rationale articulated in Mike O’Connor
Chevrolet, 209 NLRB 701, 703 (1974).
We agree with the judge that discriminatee Annie Mariano’s emo-
tional, spontaneous, and provoked attempt to strike her supervisor in
the face during a postdischarge discussion was not so flagrant as to
require forfeiture of her remedial right to reinstatement and backpay.
We do not rely on the judge’s suggestion that the success or failure
of such an assault determines the forfeiture issue. The Board reviews
all circumstances relevant to the misconduct in deciding this issue
on a case-by-case basis.
In agreeing with his colleagues that Mariano’s conduct does not
preclude the normal remedies, Member Cohen notes that the Re-
spondent does not argue to the contrary.
1 In its answers to the complaints Respondent admits it is an em-
ployer engaged in commerce within the meaning of Sec. 2(6) and
(7) of the Act and meets the Board’s applicable discretionary juris-
dictional standard. Also, at the hearing, Respondent stipulated that
the Union is a labor organization within the meaning of Sec. 2(5)
of the Act.
Casa San Miguel, Incorporated and Hospital &
Health Care Workers Local 250, Service Em-
ployees International Union, AFL–CIO and
Carol Bagley. Cases 32–CA–12812, CA–12832,
32–CA–12983, 32–CA–13070, 32–CA–13296,
and 32–CA–13477
December 22, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On December 7, 1994, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision. The
Respondent and the General Counsel filed exceptions
and supporting briefs.
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Casa San Miguel, Incor-
porated, Concord, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Daniel F. Altemus, for the General Counsel.
Daniel T. Berkley, Jenny Kim, and Karen V. Clopton (Ber-
man, Berkley & Lasky), for the Respondent.
Paul D. Supton (Van Bourg, Weinberg, Roger & Rosenfeld),
for the Charging Party, Local 250.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. An 11-
day hearing was held in the above-captioned cases during
May, June, and November 1993 and March 1994. This pro-
ceeding is based on: charges filed by Hospital & Health Care
Workers Local 250 (the Union), against Casa San Miguel,
Incorporated (Respondent), in Cases 32–CA–12812, 32–CA–
12832, 32–CA–13070, 32–CA–13296, and 32–CA–13477; a
charge filed by Carol Bagley against Respondent in Case 32–
CA–12983; and, the complaints issued in the aforesaid cases,
on behalf of the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region 32, alleging
that Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act. Respondent filed timely answers to the
complaints, denying the commission of the alleged unfair
labor practices.1
The complaints allege Respondent violated Section 8(a)(1)
of the Act by engaging in the following conduct: on about
September 24, 1992, engaged in the surveillance of its em-
ployees’ union activities by videotaping employees on a
union picket line; in May 1992 requested that employees
Lodring Ignacio and Joanne Mejia engage in the surveillance
of other employees’ union activities and report the results of
their surveillance to Respondent; on about October 26, 1992,
Assistant Administrator Laura Smith told an employee that
she did not want to hear the employee refer to the Union;
on about August 3, 1993, through Shift Supervisor Judy
Hughes, verbally promulgated a rule prohibiting the wearing
of a union insignia on the employees’ uniform, and has con-
tinued to maintain the rule; and, on August 12, 1992, dis-
charged Shift Supervisor Bagley because she ‘‘refused to
carry out or to assist in the carrying out’’ of the unfair labor
practices alleged in the complaints issued in Cases 32–CA–
12812, 32–CA–12832, 32–CA–12983, and 32–CA–13070, as
well as other unfair labor practices never perpetrated.
The complaints allege Respondent violated Section 8(a)(3)
and (1) of the Act by engaging in the following conduct, be-
cause of the employees’ union sympathies or activities: on
May 18, 1992, discharged employee Nita Celarbo, on July 1,
1992, discharged employee Annie Mariano, on July 22,
1992, discharged employees Fe Calabiao, Estella Abueg, and
Ethel Tarrosa, on July 23, 1992, discharged employee
Angelito Bellon, and on September 20, 1993, discharged em-
ployee Caridad Guzman; in October 1992 issued several
written counselings or reprimands to employee Luisa Yuson
and on September 23, and October 24, 1992, January 28, and
535CASA SAN MIGUEL
2 Unless stated otherwise all dates refer to the year 1992.
March 22, 1993, issued written warnings to employee Ben
Medina; in about June 1992, ceased offering overtime work
to employees Ben and Emma Medina; on May 18, 1992,
placed employee Tarrosa on probation, on July 22, 1992,
suspended employees Florencio Baldoza, Frineo Llever,
Ignacio, and Mejia, on September 4, 1992, suspended em-
ployee Llever, on February 19, 1993, suspended employee
Guzman, and on March 25, 1993, suspended employee Ben
Medina; on about October 7, 1992, ‘‘effectuated a change in
its employee tardiness policy regarding school class attend-
ance and issued written counseling notices to 30 employ-
ees’’; on November 26, 1992, discontinued its past practice
of providing a free meal for its employees on Thanksgiving
Day; and, since about January 9, 1993, failed and refused to
assign employee Abella to ‘‘on-call’’ work and since about
January 19, 1993, has refused to reassign Abella from ‘‘on-
call’’ to full-time employment.
The complaints allege Respondent refused to bargain with
the Union, within the meaning of Section 8(a)(5) of the Act,
by changing its employees’ existing terms and conditions of
employment without affording the Union an opportunity to
bargain with Respondent about the changes and their effect
on the employees, as follows: on about October 7, 1992,
changed its ‘‘employee tardiness policy regarding school
class attendance and issued written counseling notices to 30
employees’’; on November 26, 1992, discontinued its past
practice of providing a free meal for employees on Thanks-
giving Day; in October 1992, granted a wage increase to its
employees; and on about May 27, 1993, changed its vacation
policy by issuing a memo stating that ‘‘in the future no more
than one CNA on vacation at a time on night shift.’’
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. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Respondent, a corporation, owns and operates a 200-bed
skilled cared nursing and convalescent facility in Concord,
California, for the elderly. Its residents, who are often re-
ferred to as patients, range from those totally unable to care
for themselves to those in various stages of recuperation and
rehabilitation.
Moshe Shenker, a part owner of Respondent, is its presi-
dent. He is responsible for the Company’s finances and mar-
keting. Normally he does not involve himself in personnel
matters. If he observes an employee engage in improper con-
duct, he brings it to the attention of either a charge nurse or
a supervisor, who will handle the matter.
Lenore Shenker, the wife of Moshe Shenker, is Respond-
ent’s administrator. She is responsible for the day-to-day op-
eration of the facility, including the operation of all of the
facility’s departments. She relies on the several department
heads to do the day-to-day management of the facility, how-
ever, including the discipline of employees. In this last re-
gard, she testified that ‘‘most of the time’’ the department
heads are responsible for the discipline of the employees em-
ployed in their departments and, for ‘‘the rest of the time,’’
if a department head has a problem with an employee and
brings it to L. Shenker’s attention, L. Shenker and the de-
partment head discuss it.
The department involved in this case is the nursing depart-
ment. Esther Van Baren has been Respondent’s director of
nursing since March 1991. Karen Meagher was Van Baren’s
assistant, assistant director of nurses, from approximately
May 1992 2 until October 7, when she left Respondent’s em-
ploy and was replaced by Pat Rosen. Also involved in the
management of the nursing department is Respondent’s di-
rector of staff development, Julia Boeger, who has held that
position since April. Boeger is responsible for the hiring and
training of Respondent’s certified nursing assistants (CNAs).
Van Baren decides whether nursing department employees
are disciplined. She testified that a system of progressive dis-
cipline is followed in the nursing department: the employee
is first counseled and, if that does not work, is issued a writ-
ten disciplinary notice and, if that does not work, might be
suspended and would then be terminated if the employee
continued to engage in misconduct. Although this is the
usual disciplinary procedure, Van Baren testified there are
certain types of misconduct, which, by their very nature are
so serious that when an employee engages in this misconduct
the system of progressive discipline is not followed, instead
the employee is either promptly suspended or discharged.
Van Baren testified, however, Respondent normally uses a
system of progressive discipline before suspending or dis-
charging an employee and all of the supervisors employed in
the nursing department know that this department follows the
above-described system of progressive discipline.
Van Baren further testified there is a difference between
a ‘‘counseling and a disciplinary notice.’’ She testified coun-
seling is not discipline, but is ‘‘in the form of one on one
training or advising an employee of a particular problem that
has been noticed, and the supervisor brings it to their atten-
tion.’’ Likewise, Meagher testified that counseling reports
issued to employees were not considered to be a form of dis-
cipline. More specifically, Meagher testified that ‘‘a counsel-
ing is when you alert the CNA that there is a problem.
Here’s what we see is the problem. Don’t let it happen
again,’’ and testified if the counseled employee repeated the
offense, only then was the employee disciplined in the form
of a either a verbal or written warning or by a suspension.
Meagher also testified the system of discipline employed by
Respondent ‘‘generally was verbal counseling, then it was
written counseling, then it was discipline’’ and that the dis-
cipline could take various forms such as a written warning
or a suspension.
The usual procedure followed in the nursing department
concerning employee discipline, whether it involves the
issuance of a written disciplinary notice or a discharge or
suspension, is that the decision to discipline is made by Van
Baren. She testified that all of the disciplinary notices issued
in her department to employees by the supervisors or charge
nurses are brought to her attention before they are issued to
employees, and Van Baren is responsible for deciding what
disciplinary action, if any, will be taken in each case. Van
Baren conducts an independent evaluation of whatever dis-
ciplinary action the charge nurse or supervisor is rec-
ommending. More specifically, she testified when a charge
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Respondent’s work force is 75-percent Filipino.
4 The voting unit that Respondent admits in its answer to the com-
plaints is an appropriate bargaining unit for purposes of collective
bargaining was as follows:
All full time and regular part time employees, including LVN’s,
CNA’s, Dietary, Laundry, and Housekeeping employees, Steri-
lization Workers, Restorative aides, and maintenance employees
employed by Respondent at its Concord, California facility; ex-
cluding all professional employees, office clerical employees,
guards and supervisors as defined by the Act.
nurse or supervisor prepares an employee disciplinary notice,
the notice must first be submitted to her for approval before
being issued to the employee, that in deciding whether or not
to approve the recommended discipline she conducts an inde-
pendent investigation that includes the following: speaking to
the employee who is alleged to have acted improperly;
speaking to other persons who might be able to shed light
on the situation; reviewing the offending employee’s person-
nel file to determine the length of time the employee has
been employed by Respondents, and to determine if, during
that period, the employee was disciplined for misconduct of
the type now being attributed to the employee.
The employees employed in the nursing department are as-
signed to one of three shifts: ‘‘day’’; ‘‘p.m.’’; and ‘‘night.’’
The day shift is from 6:30 a.m. until 3 p.m., the p.m. shift
is from 2:45 until 11:15 p.m., and the night shift is from 11
p.m. until 7 a.m.
The facility is divided into four numbered work stations,
stations ‘‘1’’ through ‘‘4.’’ The central point of each station
is the nursing desk. A licensed vocational nurse (LVN) is as-
signed to each station on every shift and has the title of
‘‘Charge Nurse.’’ It is the charge nurses who are the imme-
diate supervisors of the work performed by the certified nurs-
ing assistants (CNAs) assigned to the stations. In addition,
there is a registered nurse on each shift, with the title of
nurse supervisor, to whom the shift’s charge nurses report
and who is responsible for the day-to-day operation of the
shift.
The number of CNAs employed on a shift, depend on the
shift and the patient census. During the times material to this
case there were between approximately 12 and 20 CNAs em-
ployed on the p.m. shift, the shift that figures prominently
in this case. The CNAs employed on the p.m. shift are 80-
percent Filipino whose native language is Tagalog, the lan-
guage of the Philippines.3 This group of employees, while
able to speak and understand English, are generally not as
proficient in English as with their native language and gen-
erally are more comfortable when using their native lan-
guage.
The CNAs perform a variety of services for the residents,
all of whom are elderly and many of whom are unable to
care for themselves in even the most basic everyday func-
tions. The CNAs feed, clean, and clothe the residents and
also move the residents about the facility. Each CNA is as-
signed to a group of residents, known as a ‘‘run,’’ and is pri-
marily responsible for the care of those residents, although
it is understood that a CNA will assist with other residents
when the need arises.
On August 13, the Union in Case 32–RC–3596 filed a rep-
resentation petition with the Board’s Regional Office seeking
to have the Board hold a representation election in a voting
unit that included Respondent’s CNAs and LVNs. Subse-
quently, pursuant to a stipulated election agreement approved
on September 3 by the Board’s Regional Director, the Board
in Case 32–RC–3596 conducted a secret-ballot representation
election on September 25 in a voting unit that included the
CNAs and LVNs.4 A majority of the eligible employees
voted in favor of union representation. Respondent filed
timely objections to the conduct of the election and on Octo-
ber 22 the Regional Director issued his report recommending
the objections be overruled in their entirety and the Union
be certified as the employees’ exclusive bargaining represent-
ative.
On April 5, 1993, the Board in an unpublished decision
directed that a hearing be held for the purpose of receiving
evidence concerning Respondent’s Objections 1 through 3.
This matter was consolidated for hearing with the unfair
labor practice allegations that are the subject of this proceed-
ing. During the hearing in this proceeding, after having re-
ceived all of the evidence relevant to the issues posed by Re-
spondent’s election objections, I severed Case 32–RC–3596
from the instant proceeding and on July 14, 1993, issued my
report and recommendations on objections in that case. I rec-
ommended that Objections 1 through 3 be overruled and that
the Board certify the Union as the exclusive bargaining rep-
resentative of the unit employees. Subsequently, on April 8,
1994, in an unpublished decision the Board adopted my rec-
ommendation and certified the Union as the exclusive collec-
tive-bargaining representative of the unit employees.
Respondent is opposed to its employees being represented
by the Union and has expressed its opposition to the employ-
ees. In this regard, the parties stipulated that between August
12 and September 25 Respondent’s employees were required
to attend meetings held during working hours when manage-
ment presented Respondent’s position about the union rep-
resentation election. It is undisputed that present for manage-
ment at some of those meetings were M. and L. Shenker,
Van Baren, Meagher, and Boeger. It is also undisputed that
during some of those meeting Respondent’s management
representatives indicated to the employees Respondent was
opposed to the employees being represented by the Union,
stated it was their opinion the Union would do the employees
no good, and explained to the employees the reasons why
Respondent felt the employees would be better off without
union representation.
In early May several of the p.m. shift employees including
Lodring Ignacio, Joanne Mejia, Ethel Tarrosa, Luisa Yuson,
Nita Celarbo, Florencio Baldoza, Angelito Bellon, and Irineo
Llever, on several occasions, while in the facility’s
breakroom and in the facility’s parking lot, discussed the
subject of union representation. Also during this period, on
or about May 9, p.m. shift employees Annie Mariano and
Caridad Guzman, who are sisters, met at Guzman’s home
with Union Representative Griffith. Subsequently, on May
23, approximately 10 of the p.m. shift employees including
Tarrosa, Mariano, Baldoza, Abueg, Yuson, and Celarbo, met
with Union Representative Griffith at Guzman’s home. Fol-
lowing the May 23 meeting the p.m. shift employees contin-
ued to discuss the subject of union representation and the
possibility of having the Union represent them. It was not
until late July, however, that the Union intensified its organi-
zational campaign. Commencing in the last week of July and
continuing to the week of the September 25 representation
537CASA SAN MIGUEL
5 The above findings concerning the employees’ union activity are
based on a composite of the testimony of the following witnesses:
Tarrosa, Celarbo, Bellon, Medina, Llever, Calabiao, Guzman,
Mariano, and Baldoza. Respondent’s director of nurses, Van Baren,
testified it was not until ‘‘the week after August 12,’’ that she first
observed employees wearing union buttons at work. I reject this tes-
timony because Van Baren’s testimonial demeanor was poor when
she testified about her knowledge of the employees’ union activity.
As I have discussed infra, she was in general a dishonest and an un-
reliable witness.
election the Union held a series of five organizational meet-
ings at the home of day-shift employee Ben Medina. Also,
during the last week of July, employees who were union ad-
herents, began to wear buttons at work that stated they fa-
vored union representation. On July 28 Baldoza was the first
p.m. shift employee to wear a union button on his uniform
at work and subsequently, on July 31, several of the other
p.m. shift employees began wearing union buttons on their
uniforms at work. As noted supra, it was on August 13 that
the Union filed its petition for a union representation election
in Case 32–RC–3596.5
B. The Alleged Independent 8(a)(1) Violations
1. Respondent asks employees Lodring Ignacio and
Joanne Mejia to spy on other employees’
union activities
The complaint alleges Respondent violated Section 8(a)(1)
of the Act by requesting that employees Lodring Ignacio and
Joanne Mejia ‘‘engage in the surveillance of fellow employ-
ees’ union activities and report the results of such surveil-
lance to Respondent.’’ The evidence pertinent to this allega-
tion and an evaluation of the evidence follows.
On July 30, when P.M. Shift Supervisor Carol Bagley dis-
covered that one of CNA Mejia’s patients, who was not able
to leave her bed, had not been turned in her bed, Bagley ver-
bally reprimanded Mejia for not having turned the patient
and instructed her to do so. Immediately thereafter, Bagley
discovered Mejia and Ignacio, another CNA on the p.m.
shift, in another patient’s bedroom with the door closed
speaking loudly in Tagalog, apparently about the fact that
Bagley had verbally reprimanded Mejia for not having turned
a patient. Mejia and Ignacio should have been taking care of
their assigned patients.
It is undisputed that Mejia and Ignacio acted contrary to
company policy when on July 30 they engaged in their
above-described conduct. In view of this, on July 30, Bagley
prepared two written disciplinary notices encompassing this
conduct—one for Mejia and the other for Ignacio—but con-
sistent with company policy did not issue them immediately
to Mejia or Ignacio. Instead, at the end of her shift that night
she left them in an envelope in Nursing Director Van
Baren’s office for Van Baren to approve their issuance when
Van Baren came to work the next day.
The next day, July 31, when Bagley arrived for work she
found a note at the timeclock asking her to come to Van
Baren’s office because Assistant Nursing Director Meagher
wanted to speak to her. When Bagley went to the office,
Meagher, who was there by herself, was holding Mejia’s and
Ignacio’s disciplinary notices that Bagley had left in the of-
fice the night before. Meagher asked Bagley, ‘‘[A]ren’t we
getting a little bit carried away with these write ups?’’
Bagley replied, ‘‘[N]o,’’ that she did not believe so and stat-
ed she thought not turning a seriously ill patient constituted
a serious nursing infraction and felt she was justified in
issuing the writeups. Meagher responded by instructing
Bagley to forget the writeups and told Bagley that she,
would take care of the writeups, and explained to Bagley that
Mejia and Ignacio ‘‘were informants for the Shenkers . . .
and that they were to mingle with the employees to find out
about the Union activities, and [Mr. Shenker] wasn’t going
to be . . . very happy with this.’’
The above description of what occurred on July 30 and 31
is based on Bagley’s testimony that was uncontroverted in all
but one respect; namely, when Respondent’s counsel asked
Meagher, ‘‘[D]id you at any time tell Carol Bagley that Jo-
anne Mejia and Lodring Ignacio were informants for the em-
ployer concerning Union activity,’’ Meagher testified,
‘‘[A]bsolutely not.’’ Meagher was not questioned about her
above-described July 31 meeting with Bagley and did not
deny she spoke to Bagley on about July 31 about the July
30 disciplinary notices prepared by Bagley for issuance to
Mejia and Ignacio. Nor did Meagher deny that she in effect
told Bagley to forget about those disciplinary notices because
Meagher would take care of them.
I credit Bagley’s above-described testimony in its entirety
because when she gave this testimony her testimonial de-
meanor—the way she spoke, the tone of her voice, and the
way she looked and acted—led me to believe she was a sin-
cere and conscientious witness, whereas the testimonial de-
meanor of Meagher was poor.
As described supra, pursuant to Respondent’s usual proce-
dure it was Nursing Director Van Baren’s responsibility to
evaluate the disciplinary notices prepared by Bagley on July
30 concerning Mejia’s and Ignacio’s conduct that day. Van
Baren failed to testify why her assistant, Meagher, spoke to
Bagley about these disciplinary notices rather than Van
Baren, when it was Van Baren who conducted the investiga-
tion into the allegations set forth in the notices. Van Baren
testified she investigated the allegations set forth in the dis-
cipline notices Bagley had prepared for Mejia and Ignacio,
and further testified that based on her investigation ‘‘did not
feel they were justifiable, but it’s a judgment call. I did not
know for sure. I let them stand. I was concerned about them,
but I let them stand.’’
Van Baren, whose testimonial demeanor was poor when
she gave this testimony, did not explain who she spoke to
or what she did when, as she testified, she investigated the
allegations set forth in the disciplinary notices. It is undis-
puted she did not speak to Bagley about the disciplinary no-
tices, rather it was Meagher who spoke to Bagley about the
notices, and it is also undisputed that when Meagher spoke
to Bagley about the notices it was not in the nature of an
investigatory interview. Moreover, Van Baren’s further testi-
mony that she allowed Mejia’s and Ignacio’s disciplinary no-
tices to ‘‘stand’’ is controverted by what occurred. If the dis-
ciplinary notices had been allowed to stand, someone in su-
pervision, most probably Bagley, would have issued the no-
tices to Mejia and Ignacio and/or at the very least notified
them verbally that they had been issued these disciplinary
notices. This was not the case, for, as I have found supra,
Bagley was instructed by Meagher to forget about the dis-
ciplinary notices and told that Meagher would take care of
them. Moreover, it is undisputed that Bagley was never in-
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formed that Mejia and Ignacio were disciplined as rec-
ommended by Bagley. In fact, the disciplinary notices were
not placed in Mejia’s or Ignacio’s personnel files, which
would have been the case if Van Baren had decided to ac-
cept Bagley’s recommendation and issued the disciplinary
notices. Rather, the notices, which had been placed in
Bagley’s personnel file, were only belatedly placed in the
personnel files of Mejia and Ignacio on January 4, 1993,
after the pertinent charges had been filed in this case and
after the Board had commenced its investigation into those
charges. It is for the foregoing reasons, including Van
Baren’s poor testimonial demeanor, that I have rejected Van
Baren’s testimony that she let ‘‘stand’’ the July 30 discipli-
nary notices prepared by Bagley for issuance to Mejia and
Ignacio. Rather, I find Van Baren did not allow those dis-
ciplinary notices to ‘‘stand.’’
Based on the foregoing, I find that on July 31 Assistant
Nursing Director Meagher informed Bagley Respondent had
decided not to discipline employees Mejia and Ignacio, con-
trary to Bagley’s July 30 disciplinary notices, because Mejia
and Ignacio had agreed to mingle with the other employees
to find out about their union activities and act as informants
for Respondent.
I further find that this admission by Meagher, a high-rank-
ing management official who would ordinarily be privy to
such information, warrants the inference that, as alleged in
the complaint, Respondent requested employees Mejia and
Ignacio to ‘‘engage in the surveillance of their fellow em-
ployees’ union activities and report the result of such surveil-
lance to Respondent,’’ and by engaging in this conduct Re-
spondent violated Section 8(a)(1) of the Act.
I note that neither M. or L. Shenker nor Van Baren denied
this allegation or otherwise repudiated Meagher’s admission,
nor did Respondent call either Mejia or Ignacio to rebut the
General Counsel’s prima facie showing, based on Meagher’s
admission, that Mejia and Ignacio were spying on other em-
ployees’ union activities on Respondent’s behalf. In so con-
cluding, I considered Respondent’s contention that it is not
credible that because Mejia and Ignacio agreed to act as Re-
spondent’s informants, on July 31 Respondent ignored
Mejia’s and Ignacio’s misconduct, in view of the fact that
previously on July 22 Mejia and Ignacio had been suspended
by Respondent for abandoning their work station. I disagree.
Respondent’s contention rests on the assumption that it was
prior to July 22 that Mejia and Ignacio agreed to act as Re-
spondent’s informants, rather than subsequent to that date.
Moreover, the inference that Respondent’s unexplained fail-
ure to discipline Mejia and Ignacio for their July 30 mis-
conduct was due to Mejia’s and Ignacio’s agreement to act
as Respondent’s informants is consistent with the following
evidence: despite the seriousness of their July 21 misconduct,
the abandonment of their patients for a substantial period of
time, which was serious enough so as to result in Respond-
ent’s decision to suspend them, they received no discipline
whatsoever for their July 30 misconduct; and, despite the se-
riousness of their July 21 misconduct and the fact that they
had engaged in further misconduct on July 30, they were
named by Respondent’s management as ‘‘Employee of the
Month’’ for the nursing department for the months of August
and September for which they received cash bonuses.
2. On September 24 Respondent videotapes its
employees when they picket Respondent in support
of the Union’s organizational campaign
The complaint alleges that on September 24 Respondent
violated Section 8(a)(1) of the Act by engaging in the sur-
veillance of its employees’ union activities when it
videotaped employees on a picket line. The undisputed evi-
dence pertinent to this allegation and my evaluation of the
evidence follows.
On September 24, the day before the scheduled representa-
tion election in Case 32–RC–3596, the Union conducted a
demonstration on the sidewalk in front of Respondent’s facil-
ity, which included the picketing of Respondent’s facility.
Several of Respondent’s employees attended the demonstra-
tion and participated in the accompanying picketing.
On September 24 when the demonstration and the accom-
panying picketing began, Respondent’s maintenance and
housekeeping supervisor, Vera Lacuna, went to the roof of
Respondent’s facility where she set up a video camera on a
tripod. Then, in full view of all those on the ground in front
of the building, focused the camera on the persons attending
the demonstration and participating in the picketing. During
the demonstration and the picketing that accompanied it, La-
cuna filmed the proceedings, while at the same time she held
in her hands a note pad and pen and made what apparently
were notes of who was present and what was occurring.
There is no contention or evidence that the demonstrators,
including the picketers, crossed onto Respondent’s property,
or obstructed anyone from entering or leaving the Respond-
ent’s facility, or otherwise engaged in impermissible conduct.
The law is settled that absent proper justification, an em-
ployer’s videotaping of employees’ union activity violates
the Act because it has a tendency to intimidate and the mere
belief that something might happen does not justify the em-
ployer’s videotaping when balanced against the tendency of
that conduct to interfere with the employees’ right to engage
in union activity. See F. W. Woolworth Co., 310 NLRB
1197 (1993), and cases cited therein.
Respondent’s president, M. Shenker, testified Respondent
decided to videotape the employees’ union activity because
it wanted to be sure that none of the picketers crossed onto
Respondent’s property. He testified the reason Respondent
was concerned about this happening was on three occasions
employees’ motor vehicles had been vandalized while parked
in Respondent’s parking lot. More specifically, he testified
that on July 21 the p.m. shift supervisor’s motor vehicle had
been vandalized and that prior to July 21, on dates that Presi-
dent Shenker was unable to recall, the motor vehicles of two
other employees had been vandalized while parked in Re-
spondent’s parking lot.
President Shenker’s reason for videotaping the employees’
union activity does not justify this conduct because, as I have
noted supra, the law is settled that an employer’s mere belief
that something might happen did not justify the videotaping.
In any event, I am persuaded that President Shenker’s testi-
mony is not credible and that he did not really believe the
picketers might enter Respondent’s parking lot and vandalize
parked motor vehicles that were parked there or otherwise
damage property. There is no evidence whatsoever that Re-
spondent had reason to believe that the vandalization of the
three motor vehicles, which M. Shenker testified about, were
related to the employees’ union organizational campaign. In
539CASA SAN MIGUEL
6 I note that neither Administrator L. Shenker, who President
Shenker testified was a party to the decision to videotape, nor Super-
visor Lacuna, who did the videotaping, were called on to corroborate
President Shenker’s testimony concerning the purpose of the
videotaping.
7 Only Van Baren and Yuson testified about this meeting. Van
Baren did not deny Rosen was present.
fact there is no evidence that two of the three instances of
auto vandalization even occurred during the period of time
when the employees were engaged in their campaign to orga-
nize a union. For these reasons and because of President
Shenker’s poor testimonial demeanor when he testified about
this matter,6 I am persuaded that in videotaping the employ-
ees’ September 24 union demonstration and the accompany-
ing picketing, and in having Supervisor Lacuna take notes of
these activities, and in engaging in this conduct in a manner
that would be sure to make the employees aware of what it
was doing, Respondent’s purpose was to intimidate those
employees who attended the Union’s demonstration and par-
ticipated in the picketing.
Lechmere, Inc., 295 NLRB 92, 98–100 (1989), relied on
by Respondent, is distinguishable. There the employer’s
videotaping of the employees’ union activity was done by a
rooftop video camera which, during the employer’s normal
course of business, was located on the roof for the purpose
of preventing the vandalization of customers’ and employees’
cars parked in the employer’s parking lot and to allow the
employer to follow shoplifters out of its store. Here, the
video camera was placed on Respondent’s roof just for the
purpose of observing the employees’ union activity. It was
not a part of a security system designed to protect Respond-
ent’s facility during the normal course of doing business.
Moreover, the record indicates Respondent does not have
such a system and did not implement such a system even
after the three employees’ motor vehicles had been vandal-
ized in Respondent’s parking lot. Respondent’s failure to in-
stitute such a security system or even to institute some secu-
rity measures designed to prevent the vandalization of motor
vehicles parked on its parking lot buttresses my conclusion
that President Shenker was not a credible witness when he
testified it was Respondent’s concern about the possibility of
picketers vandalizing motor vehicles parked in the parking
lot that motivated Respondent’s decision to videotape the
employees’ September 24 union picketing of the facility.
Based on the foregoing, I find Respondent violated Section
8(a)(1) of the Act, when on September 24 it videotaped its
employees’ union activity without proper justification.
3. Assistant Administrator Laura Smith tells employee
Luisa Yuson not to discuss the Union
The complaint alleges Respondent violated Section 8(a)(1)
of the Act when on October 26 Assistant Administrator
Laura Smith ‘‘stated she did not wish to hear an employee
referring to the Union.’’ The evidence pertinent to this alle-
gation and its evaluation follows.
During the time material, Laura Smith was Respondent’s
assistant administrator. Her office was next to Administrator
L. Shenker’s office. Smith was regarded as a member of
management and as an equal to Nursing Director Van Baren
in the managerial hierarchy. She attended the daily manage-
ment meeting held for all of Respondent’s department heads.
Smith’s day-to-day duties concerned workers’ compensation
matters, public relations, and the processing of incoming pa-
tients. In addition, Smith was the person placed in charge of
the facility, when the administrator was absent for more than
1 month. This occurred on at least one occasion in 1992,
prior to the events material to this case. In view of the afore-
said circumstances, I find Respondent placed Smith in a po-
sition so that whatever she stated to the employees about the
Union would have been reasonably construed by the employ-
ees as having been said on behalf of Respondent. I, there-
fore, find under the doctrine of apparent authority that
Smith’s remarks about the Union, described infra, are attrib-
utable to Respondent.
As discussed more fully infra, CNA Luisa Yuson, who, on
October 23, was issued two disciplinary notices by Director
of Staff Development Boeger, was called to Smith’s office
on October 26, where, in the presence of Nursing Director
Van Baren and Assistant Nursing Director Rosen, she re-
ceived a third disciplinary notice from Smith for not follow-
ing Respondent’s workers’ compensation procedure in con-
nection with a work-related injury.7
It is undisputed that during the October 26 meeting Yuson
brought up the subject of the Union. According to Yuson’s
testimony the subject was raised when Smith accused Yuson
of being ‘‘mad’’ at Boeger and Yuson responded by denying
this and stating it was Boeger that was mad at Yuson be-
cause of Yuson’s union sympathies, whereupon Smith stood
up and angrily pounded the table with her fist and stated she
did not want to hear anything ‘‘here’’ about the Union. Van
Baren, on the other hand, testified that the subject of the
Union was raised when Yuson stated the reason she was not
feeling good had to do with ‘‘everything that was going on
with the Union’’ and Smith replied, ‘‘[T]hat’s not what
we’re discussing. We’re discussing the workmen’s com-
pensation issue and I don’t wish to talk about that right
now.’’
As indicated elsewhere in this decision, Van Baren’s de-
meanor was generally poor when she testified. When Yuson
testified about the part of the October 26 meeting at issue,
however, I received the impression from the way she looked
and from the manner of her testimony that her recollection
of that part of the meeting was unreliable having been dulled
by the passage of time, and that even after having her mem-
ory refreshed by what she stated in the affidavit submitted
to the Board, she was not a reliable witness when she testi-
fied about the part of the October 26 meeting involved here-
in. In this last regard, even after having her memory re-
freshed by her affidavit, Yuson’s testimony given about this
part of the meeting during direct and cross-examination dif-
fered in significant respects. Yuson testified on direct exam-
ination she told Smith that Boeger was mad at her ‘‘because
I am in the Union’’ and Smith replied, ‘‘I don’t want to hear
anything about the Union here,’’ whereas, during cross-ex-
amination Yuson testified she told Smith that Boeger was
mad at Yuson ‘‘because I mentioned something about the
Union’’ and Smith replied, ‘‘I don’t want to hear anything
about the Union in this facility.’’
Yuson’s initial testimony that Smith stated she did not
want to hear anything about the Union ‘‘here,’’ when viewed
in context, is plainly a reference to the October 26 meeting
between Yuson and Smith that concerned the disciplinary no-
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tice being issued by Smith to Yuson. This testimony is per-
fectly consistent with Van Baren’s testimony that when
Yuson brought up the subject of the Union, Smith told her
that because the Union was not what they were there to dis-
cuss, Smith did not want to talk about the Union at that time.
It is for the above reasons that I find Yuson’s above-de-
scribed testimony concerning the October 26 meeting, insofar
as it was controverted by Van Baren’s testimony, was unreli-
able and for this reason I credit that part of Van Baren’s tes-
timony that controverted Yuson’s.
Based on the foregoing, I find that at the October 26 meet-
ing, when Yuson brought up the subject of the Union, Smith
stated that as they were there to discuss a matter concerning
workers’ compensation and not the Union that she did not
want to talk about the Union at that time. I further find,
under the circumstances, that by precluding Yuson from dis-
cussing the Union during this meeting, Smith did not infringe
on Yuson’s statutory right to speak about the Union. I, there-
fore, shall recommend that this allegation be dismissed.
4. Respondent prohibits employees from wearing at
work a prounion emblem and message printed on their
work uniform
Respondent’s CNAs are required to wear a uniform; a
white smock that has a breast pocket. On August 3, 1993,
CNA Caridid Guzman, employed on the p.m. shift, came to
work wearing a white smock that had printed in black above
the front breast pocket the words ‘‘One Powerful Voice for
Health Care Workers’’ and had printed immediately below
on the pocket in black and gold the words ‘‘Local 250
S.E.I.U.,’’ with the word ‘‘Yes’’ along side of a box that
contained a checkmark. In August 1992, the period imme-
diately preceding the September 25 representation election,
Guzman had commenced wearing to work this uniform with
the Union’s message, and since August 1992 had worn it to
work 1 day each week.
On August 3, 1993, Judy Hughes, the p.m.-shift super-
visor, who is admittedly a supervisor within the meaning of
Section 2(11) of the Act, told Guzman that Guzman could
not wear the uniform with the Union’s emblem and message
anymore because of orders from Respondent’s management.
Guzman obeyed.
The complaint alleges that on or about August 3, 1993,
acting through Hughes, Respondent violated Section 8(a)(1)
of the Act by verbally promulgating a rule prohibiting the
wearing of a union insignia on employees’ uniforms and by
continuing to maintain that rule. Thus, the question for deci-
sion is whether Respondent violated Section 8(a)(1) by pro-
hibiting Guzman from wearing a work uniform at the facility
because it had a prounion emblem and message printed on
the front. The applicable legal principles governing this ques-
tion have been set forth by the Board in Mesa Vista Hos-
pital, 280 NLRB 298, 299 (1986), as follows (footnotes
omitted):
[E]mployees have the right to wear union insignia even
while at work. A hospital’s prohibition of the wearing
of insignia, however, on working and even on non-
working time in immediate patient care areas is pre-
sumptively valid. Outside immediate patient care areas,
and outside other areas where the hospital establishes
an adverse effect on patient care, employees retain the
right to wear union insignia while working. An em-
ployer may further restrict the right by demonstrating
‘‘special circumstances.’’
Guided by the above principles, I find Respondent did not
violate the Act by refusing to allow Guzman to wear her uni-
form to work with a prounion insignia and message printed
on the front. As noted in Mesa Vista Hospital, supra, the Act
does not prohibit Respondent from refusing to allow its em-
ployees to wear such a uniform during those periods of time
they work in patient care areas. I considered that Respond-
ent’s prohibition also prevents the employees from wearing
these uniforms in nonpatient care areas of the facility such
as the nurses’ break area. Unlike those situations, however,
when an employee attaches something to the employee’s
work uniform, such as a union button, which indicates that
the employee is supporting union representation, the Union’s
insignia and message involved in this case was a part of the
employees’ uniform and could not be removed. It is not
practical or possible for an employee when in nonpatient care
areas to wear a uniform with a printed prounion emblem and
message on the front, and then to change out of that uniform,
each time the employee enters a patient care area. In view
of these ‘‘special circumstances’’ and because the CNAs
were required as a condition of employment to wear the uni-
form involved, I am of the view Respondent was privileged
under the Act to inform Guzman she could not wear that uni-
form to work with a union emblem and message printed on
the front. In so concluding I also note there is no contention
or evidence that when employees attach union buttons to
their uniforms while at work, Respondent refused to allow
them to wear those buttons. Nor is there any contention or
evidence that while prohibiting its employees from wearing
uniforms with a prounion emblem or message printed on the
front of the uniform, Respondent permitted the employees to
wear uniforms on which other kinds of emblems or messages
were printed. It is for the foregoing reasons that I will rec-
ommend the dismissal of this allegation.
5. The August 12 discharge of P.M. Shift
Supervisor Carol Bagley
a. The evidence
On June 30 Respondent’s p.m. shift supervisor, Eva
Suitos, abruptly quit her job. To fill this vacancy Respondent
contacted the local nursing registry service and asked it to
send a registered nurse qualified to work as the p.m. shift su-
pervisor. The registry referred Carol Bagley, a registered
nurse with approximately 30 years of experience. On July 1
she began to work on the p.m. shift. This was not the first
time Bagley had worked at Respondent’s facility. During the
year prior to July 1, on no more than six occasions, she had
worked at the facility as a registry employee as the night-
shift supervisor.
On Friday, July 3, after Bagley had worked 1 or 2 days
as a registry employee on the p.m. shift, Respondent’s direc-
tor of staff development, Julia Boeger, who hires Respond-
ent’s nurses, asked Bagley to work for Respondent as its
p.m. shift supervisor. Bagley told Boeger that if she accepted
the job she would not be available to work weekends.
Boeger stated the job did not require her to work weekends,
that it was a Monday-through-Friday job that paid $18 per
541CASA SAN MIGUEL
hour. Bagley expressed her dissatisfaction with the rate of
pay and asked to speak to the Respondent’s owners. Boeger
stated the owners were out of the country and when they re-
turned Bagley could discuss her rate of pay with them and
asked Bagley to start work as p.m. shift supervisor on Mon-
day, July 6. Bagley agreed and on July 6 began to work in
Respondent’s employ as its p.m. shift supervisor.
The p.m. shift supervisor, as is true of the other shift su-
pervisors, is in charge of the nursing employees employed on
the shift and is admittedly a supervisor within the meaning
of Section 2(11) of the Act. The p.m. shift supervisor is nor-
mally the highest ranking supervisory official on the prem-
ises after approximately 5 p.m., when Nursing Director Van
Baren usually leaves the facility.
Bagley worked as Respondent’s p.m. shift supervisor from
July 6 until August 12, when she was discharged. As is the
case for all of Respondent’s employees, Bagley’s first 90
days of employment was regarded as a probationary period.
On July 6, before starting work, Bagley met for a few
minutes with Van Baren and Meagher in Van Baren’s office.
After they welcomed Bagley, Meagher, who did most of the
talking, stated she was happy that Bagley was ‘‘white’’ be-
cause Respondent had a very serious problem with the Filipi-
nos employed on the p.m. shift, that the Filipinos were all
related to one another like a ‘‘tribe,’’ that Respondent had
disciplinary problems with them, that they did what they felt
like doing, that they were not truthful, and that they were
stealing from Respondent. Van Baren added that the Filipi-
nos did what they wanted to do and did not speak English.
Meagher spelled out for Bagley, ‘‘Tagalog,’’ which is the
language the Filipinos spoke.
Meagher handed Bagley a stack of approximately 40 blank
employee disciplinary notices. She told Bagley to write up
such notices for ‘‘everything’’ and give them to ‘‘anybody,’’
and instructed her to place the notices she prepared in an en-
velope and place them under the door of Van Baren’s office
and that Van Baren would take care of them the next day
when she came to work. Bagley was cautioned by Meagher
not to write or say anything ‘‘racial.’’
Also, during this meeting, Meagher told Bagley the Filipi-
nos were ‘‘troublemakers’’ who wanted to start a union, and
that employees Joanne Mejia and Lodring Ignacio were
prounion activists. Van Baren agreed with Meagher’s obser-
vation that the Filipinos employed on the p.m. shift wanted
to start a union, and told Bagley Respondent did not need
a union. Bagley asked what was wrong with a union and
stated she did not see any harm in a union. Van Baren and
Meagher advised Bagley to wait and she would see what was
wrong with a union.
The above description of Bagley’s July 6 meeting with
Van Baren and Meagher is based on Bagley’s testimony.
Van Baren and Meagher gave substantially different accounts
of this meeting. Their testimony is set forth as follows.
Van Baren testified that on July 6 she briefly spoke to
Bagley, in Meagher’s presence, in a hallway. She testified
she introduced herself, apologized for not having the time to
sit down and speak with Bagley just then, told her she had
a problem keeping p.m. shift supervisors, that there was a
problem with patient care on the p.m. shift because the
CNAs did not answer the patients’ call lights, were absent
from their work stations when they should be on duty, that
English was not always spoken in front of the patients, and
told Bagley to make sure this type of conduct did not occur
and stated they would discuss more of Bagley’s duties at a
later date. Van Baren denied anything derogatory about Fili-
pinos was said during this meeting or that the subject of a
union was mentioned.
Van Baren further testified she and Meagher had a second
meeting with Bagley about Bagley’s job duties and that it
took place during the week of July 12, in Van Baren’s office.
According to Van Baren, at this meeting Van Baren dis-
cussed the following problems that had been occurring on the
p.m. shift: patients’ call lights not being answered by the em-
ployees; employees being absent from their work stations;
and employees reading while on duty instead of answering
call lights. Van Baren testified that at this second meeting
she also told Bagley she expected the nurses to be where
they were supposed to be and to do their jobs, and showed
Bagley the employee disciplinary notice form used by Re-
spondent’s supervisors to discipline employees and explained
to Bagley that Van Baren needed to have a written record
before disciplining an employee because Van Baren could
not discipline an employee based on hearsay such as a com-
plaint from a patient’s family, but needed more specific in-
formation. According to Van Baren, the meeting ended with
Van Baren informing Bagley that Van Baren wanted to be
upfront with Bagley about the p.m. shift’s problems, that in
the past the p.m. shift had a great many supervisors, most
of whom had quit or demanded to be transferred to another
shift.
In several significant instances Meagher’s testimony does
not corroborate or jibe with Van Baren’s. She failed to cor-
roborate Van Baren’s testimony about the second meeting
supposedly held in Van Baren’s office between Van Baren,
Meagher, and Bagley, during the week of July 12. Rather,
Meagher testified it was on July 6 that Bagley was sum-
moned to Van Baren’s office, where, at that time, Van Baren
and Meagher spoke to Bagley about her job. Meagher’s testi-
mony about this meeting was vague and evasive. It was de-
void of specificity. She testified that all Van Baren said at
the July 6 meeting was to repeat to Bagley what Meagher
had previously told Bagley on July 1, when Bagley first
came to work as a registry employee.
The record reveals that on July 1 Meagher merely re-
freshed Bagley’s memory about the way Respondent con-
ducted its operations and explained the duties of the p.m.
shift supervisor and told Bagley it was imperative that the
nurses speak English in patient care areas. Meagher denied
that on July 6 she told Bagley she was happy Bagley was
white, or there was a problem with the Filipino employees,
or the Filipinos were ‘‘troublemakers,’’ or they wanted to
start a union, or handed Bagley a stack of employee discipli-
nary notices. Meagher testified all that was spoken about at
the July 6 meeting was ‘‘how the shift was to be run.’’ Other
than this vague account of the meeting, however, Meagher
was unable to provide any of the specifics that either herself
or Van Baren spoke to Bagley about. In fact she testified she
did not remember anything Van Baren said at this meeting.
I also note that Van Baren’s testimony that during her
meeting with Bagley on July 6 and the week of July 12, that
Van Baren told Bagley there were serious employee discipli-
nary problems on the p.m. shift, is contradicted by
Meagher’s testimony. Meagher testified that as of July 6,
when Bagley took over the position of p.m. shift supervisor,
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
there were no serious personnel disciplinary problems on the
p.m. shift, but ‘‘just little minor things.’’ Meagher further
testified if there were ongoing problems with the personnel
employed on the p.m. shift that Meagher would have known
of them. Meagher testified that the only personnel problems
that occurred on the p.m. shift that she knew of involved
‘‘just little things.’’
In crediting Bagley’s account of her July 6 meeting with
Van Baren and Meagher and rejecting Van Baren’s and
Meagher’s testimony, I considered the above-described in-
consistencies in Van Baren’s and Meagher’s testimony and
their failure to corroborate one another, but the most signifi-
cant consideration in my crediting of Bagley’s testimony was
Bagley’s testimonial demeanor was good, whereas the testi-
monial demeanor of Van Baren and Meagher—the way they
spoke, the tone of their voice, and the way they looked and
acted while testifying—led me to believe they were not sin-
cere, conscientious, or reliable witnesses, but were interested
only in tailoring their testimony to suit Respondent’s case.
In mid- and late-July, on more than one occasion, when
Bagley and Meagher spoke about business-related matters, at
the end of their conversations, Meagher brought up the sub-
ject of the employees’ union activity, as follows.
Meagher asked if Bagley overheard the employees speak-
ing about the Union. Bagley replied they did not speak about
the Union in her presence. Meagher gave Bagley the follow-
ing instructions concerning the employees’ union activity: if
Bagley observed employees wearing union buttons to tell
them to remove them; if Bagley observed union literature or
notices of union meetings posted in the breakroom to remove
them; and told Bagley that the employees were not allowed
to discuss the Union and, if employees discussed the Union
or wore union buttons or posted union materials, that Bagley
was to write their names down and give those names to
Meagher. Bagley replied she believed it was illegal to write
up employees for discussing the Union, told Meagher em-
ployees could talk about whatever they wanted during their
break periods, and asked Meagher what was wrong with the
Union.
Also, once during this period when Meagher spoke to
Bagley about the employees’ union activity, Meagher told
Bagley if the Union succeeded in getting into the facility,
there would not be many of the employees left in Respond-
ent’s employ, explaining to Bagley she intended ‘‘to get rid
of the problem and get rid of all of [the employees] if she
had to,’’ and declared that Respondent intended ‘‘to clean
house.’’
Lastly, at the end of July, Meagher asked if Bagley had
followed Meagher’s above-described instructions concerning
the employees’ union activity. Bagley replied by stating she
had not followed Meagher’s instructions because it was not
her job to engage in that type of conduct and she felt that
what Respondent wanted her to do was illegal.
The above findings concerning Meagher’s mid- and late-
July conversations with Bagley about the employees’ union
activity are based on Bagley’s testimony. Meagher testified
she never issued instructions to Bagley about the employees’
union activity or instructed her to have the employees re-
move their union buttons from their uniforms. Meagher testi-
fied that once, on an undisclosed date, she instructed Bagley
to remove notices about union meetings posted in the time-
clock area because no notices were supposed to be posted
there. I rejected Meagher’s testimony and credited Bagley’s
because Bagley’s testimonial demeanor was good, whereas
Meagher’s was poor.
Early in August, Meagher told Bagley Respondent needed
a ‘‘strong person’’ to work weekends as the p.m. shift super-
visor and thought Bagley should do so. Bagley refused to ac-
cept the assignment. She told Meagher she had been hired
to work only weekdays and did not want to work for Re-
spondent on the weekends because on those days she was
available for work through the local nurses registry service
and did not want to give up that weekend work.
This description of Meagher’s early August conversation
with Bagley about working weekends is based on Bagley’s
testimony. Meagher testified she had no discussion with
Bagley about working weekends. I credited Bagley’s and re-
jected Meagher’s testimony because of Bagley’s good and
Meagher’s poor testimonial demeanor.
Van Baren testified that on August 3 she met with Bagley
in her office, just the two of them, at which time she criti-
cized Bagley’s work performance in several respects and,
during the meeting, recorded in writing the substance of what
was stated by herself and Bagley in the form of an ‘‘Em-
ployee Counseling Report,’’ General Counsel’s Exhibit 27,
herein sometimes referred to as the August 3 counseling re-
port. The August 3 counseling report that admittedly was not
given to or shown to Bagley is dated August 3 and signed
by Van Baren and in Van Baren’s handwriting it states that
Van Baren discussed with Bagley, ‘‘the following’’:
1. Conflicting stories re incident reports—Carol
[Bagley] stated all her write ups were true and factual.
2. Racial remarks—many employees have com-
plained she is making them—Carol [Bagley] denies this
and I told her this will not be tolerated.
3. States—p.m.’s is going better—in light of all the
complaints I’m getting I told Carol there needs to be
a line between harsh and strict.
4. Requested Carol use her name not ‘‘Pepper’’
while on duty.
Van Baren testified that during their August 3 meeting she
told Bagley she was concerned about the employee writeups
she had been receiving from Bagley because when Van
Baren spoke to the employees about those writeups she got
conflicting stories, that ‘‘everyone’’ was in an ‘‘uproar’’
about Bagley’s supervisory style, and not one of the persons
whom Van Baren had spoken to on the p.m. shift was ‘‘sup-
portive’’ of Bagley. When Bagley responded by stating she
thought things were ‘‘going better on the shift,’’ Van Baren
testified she informed Bagley that all of the employees were
upset, that Van Baren believed Bagley had not drawn the
line between ‘‘strict and harsh,’’ and told Bagley she had re-
scinded a couple of Bagley’s writeups. Van Baren also testi-
fied she asked Bagley to use her professional name over the
facility’s public address system rather than her nickname
‘‘Pepper,’’ asked what Bagley had said that caused employee
Martinez to believe Bagley had made a racial remark, and
Bagley replied her remark was ‘‘not meant that way.’’ The
meeting ended, according to Van Baren’s testimony, with
Van Baren stating she would meet with Bagley each week
to see where things were going.
543CASA SAN MIGUEL
8 Other than the two writeups issued to Abrams and Villar, Van
Baren testified she was not able to recall any of the other writeups
issued by Bagley that Van Baren revoked.
9 There is no evidence or contention that Van Baren gave or even
showed Bagley the August 3 counseling report.
Van Baren testified that the August 3 meeting was prompt-
ed by Bagley’s actions that Van Baren had personally ob-
served and by complaints made to Van Baren by nurses on
the p.m. and other shifts, which caused Van Baren to be con-
cerned that Bagley was not performing her job duties. On ac-
count of Bagley, Van Baren testified the p.m. shift was in
an ‘‘uproar’’ and some of the day-shift nurses refused to
work on the p.m. shift because of Bagley’s conduct.
Van Baren’s testimony that there was a meeting between
herself and Bagley on August 3 during which she criticized
Bagley’s work performance and memorialized what was said
in the August 3 counseling report was corroborated by
Meagher’s testimony. Meagher testified she was present on
August 3 in Van Baren’s office when Van Baren spoke to
Bagley about the matters contained in the August 3 counsel-
ing report and that Meagher observed Van Baren write that
report. I am convinced, however, that Meagher’s testimony
was a fabrication tailored by Meagher to suit Respondent’s
case. Initially, I note her testimony does not jibe with Van
Baren’s, who testified that on August 3 she met with Bagley
alone. In addition, Meagher initially testified that Van Baren
prepared the August 3 counseling report prior to a meeting
of management officials held in late July to discuss Bagley’s
work performance. When it was pointed out to Meagher that
this did not seem possible because the counseling report was
dated August 3, Meagher reluctantly acknowledged that the
report had been prepared after the late July meeting.
Meagher subsequently testified she first observed the August
3 counseling report on October 31, 1993, the day before she
testified in this case, rather than on August 3, 1993, and tes-
tified she had no independent recollection of having observed
it prior to October 31, 1993. In view of the above-described
inconsistencies in Meagher’s testimony and the fact that Van
Baren testified that the August 3 meeting was between solely
herself and Bagley and considering Meagher’s poor de-
meanor when she testified, I am persuaded Meagher’s testi-
mony that she was present at the August 3 meeting and ob-
served the August 3 counseling report being prepared by Van
Baren was a fabrication.
Regarding ‘‘1’’ and ‘‘3’’ of the August 3 counseling re-
port—employees were allegedly disputing the veracity of
Bagley’s disciplinary reports and Bagley was allegedly treat-
ing employees too harshly—Van Baren testified her basis for
believing Bagley had engaged in this conduct was as follows:
subsequent to July 21 Bagley’s ‘‘whole personality
changed,’’ and Bagley started to have ‘‘a lot of inconsist-
encies in her stories,’’ Bagley’s writeups ‘‘were not making
sense, her complaints were becoming not always consistent
with [her actions]. I had nurses . . . telling me they did not
feel her behavior was appropriate and there just seemed to
be a whole change in her personality that I cannot explain’’;
subsequent to July 21, in connection with the disciplinary re-
ports Bagley prepared, Bagley ‘‘never’’ supplied the docu-
mentation needed to substantiate the allegations in the report;
several of the nurses, including Charge Nurse Remy Hall,
LVN Desire Abrams, CNAs Anissa Villar, Joanne Mejia,
Lodring Ignacio, and Vicki McCauley, told Van Baren their
‘‘concerns’’ about Bagley; during the first week of August,
Van Baren met with all of the p.m. shift employees to deter-
mine what their problems were and several of the employees,
including Villar, Abrams, Hall, and McCauley told Van
Baren ‘‘they did not feel that Carol Bagley was fair with
them,’’ Villar specifically complained about a writeup she
had received by Bagley, and others also complained about
their writeups and problems related to Bagley; Bagley issued
more writeups than were ‘‘reasonably necessary,’’ several of
which Van Baren revoked including the ones issued in July
to Abrams and Villar;8 and, Bagley’s harshness toward the
employees was illustrated by her suggestion to Van Baren on
July 22 that CNAs Llever, Baldoza, Mejia, and Ignacio all
be terminated for having abandoned their work stations on
July 21.
Regarding paragraph ‘‘2’’ of the August 3 counseling re-
port—many employees complained that Bagley was making
‘‘racial remarks’’—Van Baren testified that she was in-
formed by clerk Emily Martinez, and Charge Nurses Hall
and Rosen, that on July 28 Hall, a charge nurse on the p.m.
shift, had been assigned to work overtime on the night shift
because a nurse on that shift failed to come to work and
Bagley angrily yelled that ‘‘the Filipinos get all of the over-
time and she was tired of it,’’ and Martinez, who is a Fili-
pino, became especially upset by this remark. Bagley denied
engaging in this conduct. She testified she complained to the
clerk who did the scheduling that the persons who scheduled
the overtime asked the same persons to work overtime and
did not ask anyone else and Bagley felt that the overtime
should be distributed equally among all of the employees.
Bagley denied stating it was only the Filipinos who received
the overtime or that she used words to that effect.
The testimony of Bagley, whose testimonial demeanor was
good, was not denied; neither Martinez, Hall, or Rosen were
called by Respondent to corroborate Van Baren’s testimony
that they had accused Bagley of making the racial remarks
attributed to her by Van Baren or to testify that Bagley in
fact engaged in this conduct. Rosen was not called by Re-
spondent to corroborate Van Baren’s testimony despite the
fact that at the time of the hearing she was a member of Re-
spondent’s management, its assistant nursing director, who
testified for Respondent concerning other matters. Under the
circumstances, and in view of Bagley’s good testimonial de-
meanor, I find she did not make the racial remark that Van
Baren testified other employees attributed to her.
Bagley testified that on August 3 Van Baren did not speak
to her about her work performance, that the August 3 meet-
ing between herself and Van Baren never occurred, and that
prior to the hearing in this case Bagley never knew about the
August 3 counseling report.9 She also testified Van Baren
never spoke critically to her about her work performance and
testified she never was counseled nor reprimanded for treat-
ing the employees she supervised too harshly. To the con-
trary, Bagley testified she was told by Meagher on more than
one occasion not to bring to work things from her home for
the employees and not to be so ‘‘friendly’’ with the employ-
ees.
Bagley testified that only one of the topics set forth in the
August 3 counseling report’s four numbered paragraphs was
ever discussed with her by Van Baren. This, she testified,
was the request that she not use her nickname while on duty.
Bagley testified Van Baren telephoned her at work and asked
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 As described in detail supra, under Respondent’s customary dis-
ciplinary procedure, a shift supervisor who desires to issue a discipli-
nary notice to an employees has to first submit the notice to Van
Baren who conducts her own independent investigation into the al-
leged misconduct before deciding whether to discipline the employ-
ees as recommended. In July, Bagley prepared disciplinary notices
for issuance to p.m. shift employees Abrams and Villar recommend-
ing they be issued written reprimands based on the same conduct;
the failure to turn a bedridden patient. On receipt of these discipli-
nary notices, Van Baren testified she investigated the matter by
speaking to Bagley as well as to Abrams and Villar and by person-
ally observing that the patient had not suffered a ‘‘skin breakdown,’’
which would have been the case if she had not been turned, and tes-
tified that based on her investigation she concluded that the patient,
as claimed by Abrams and Villar, had in fact been turned, and be-
cause of this declined to follow Bagley’s recommendation that they
be disciplined.
that she not use her professional name while at work, ex-
plaining to Bagley that Administrator L. Shenker had asked
that Bagley use her professional name rather than her nick-
name ‘‘Pepper,’’ and Bagley replied by telling Van Baren
she would comply with Administrator Shenker’s request.
I credit Bagley’s above-described testimony and reject in
its entirety Van Baren’s testimony concerning the August 3
meeting between Van Baren and Bagley. In doing so I con-
sidered Bagley’s good and Van Baren’s poor testimonial de-
meanor. I received the impression from the way Van Baren
spoke and the tone of her voice and the way she looked and
acted while testifying, that she was not a sincere or conscien-
tious witness, but was solely interested in tailoring her testi-
mony to suit Respondent. I also considered the following ad-
ditional factors: Meagher testified she was present at the Au-
gust 3 meeting, whereas Van Baren testified Meagher was
not here; and the inconsistencies contained in Meagher’s tes-
timony concerning the August 3 counseling report. The
aforesaid inconsistencies, when viewed in the light of
Meagher’s poor testimonial demeanor, indicate that Meagher,
like Van Baren, was not a sincere or conscientious witness,
but Meagher’s sole interest in attempting to corroborate Van
Baren’s testimony about the alleged August 3 meeting and
counseling report was to assist Respondent regardless of the
truth.
The above conclusion that the August 3 meeting did not
occur and, as Bagley also testified, Bagley’s work perform-
ance was never criticized by Van Baren, is further supported
by the lack of merit and/or substance to almost all of the
complaints set forth in the August 3 counseling report that
Van Baren testified was the basis for the August 3 meeting.
As set forth above, Van Baren’s testimony that portrays
Bagley as a person who suddenly suffered a ‘‘personality
change’’ and, who, as the result of the change in her person-
ality, turned into a tyrant, who commenced to treat the em-
ployees under her supervision unfairly, unreasonably, and too
harshly, is almost completely lacking in specificity. It con-
sists almost entirely of Van Baren’s vague and conclusionary
testimony. This includes Van Baren’s testimony about the
employees’ complaints about Bagley, which testimony, as
described above, was worded for the most part in vague and
conclusionary terms, completely lacking in specificity. Nor
was Van Baren’s testimony corroborated by the testimony of
any of the employees who allegedly complained about
Bagley’s conduct—not one of them was called by Respond-
ent to testify. In addition, other than the two writeups that
Bagley wanted Van Baren to issue to employees Abrams and
Villar, Van Baren was not able to identify any of the other
supposedly numerous unwarranted disciplinary writeups that
Bagley wanted Van Baren to issue to employees.10 Lastly,
Van Baren’s testimony that on July 22 Bagley suggested that
employees Llever, Mejia, Baldoza, and Ignacio be terminated
for having abandoned their work stations on July 21 is false
because, as I have found infra, this is not what occurred.
Rather, Bagley merely gave those employees a verbal rep-
rimand for their conduct and did not suggest to Van Baren
that their employment be terminated.
In sum, the only evidence of substance presented by Re-
spondent concerning paragraphs ‘‘1’’ and ‘‘3’’ of the August
3 counseling report, alleging Bagley was dishonest in dis-
ciplining employees and was treating employees too harshly,
is that once when she submitted disciplinary notices to Van
Baren that, after conducting her usual investigation, Van
Baren concluded the recommended discipline was unwar-
ranted.
Regarding paragraph ‘‘2’’ of the August 3 counseling re-
port, alleging that many employees complained Bagley was
making ‘‘racial remarks,’’ as I have found supra, Bagley did
not make the isolated racial remark Van Baren testified other
employees had attributed to her. Moreover, Van Baren’s poor
testimonial demeanor, when considered with the complete
absence of any corroboration for Van Baren’s testimony,
leads me to reject Van Baren’s testimony that such a com-
plaint was ever communicated to her.
Regarding paragraph ‘‘4’’ of the August 3 counseling re-
port, alleging Bagley was asked not to use her nickname
‘‘Pepper’’ while on duty, Bagley credibly testified Van
Baren telephoned her at work and told her that Administrator
L. Shenker had asked that she use her professional name,
rather than her nickname, and Bagley responded by stating
she intended to comply with Administrator L. Shenker’s re-
quest. There is no evidence or contention that after Respond-
ent’s initial request that Bagley stop using her nickname
while on duty, that Bagley continued to do so.
It is for the reasons set forth above that I find there is no
merit or substance to any of the complaints alleged against
Bagley in the August 3 report. This lends further support to
my conclusion that the August 3 counseling meeting never
occurred and that the August 3 counseling report was a part
and parcel of Van Baren’s fabrication of the August 3 meet-
ing.
In so concluding, I considered the testimony of Adminis-
trator L. Shenker and Meagher that before Van Baren’s Au-
gust 3 meeting with Bagley that Van Baren discussed
Bagley’s unsatisfactory job performance with them. As was
the case, however, with Van Baren’s above testimony con-
cerning her conversations with employees about Bagley’s
conduct, their testimony significantly omitted any specifics.
Other than Administrator L. Shenker’s testimony that she
told Van Baren she did not feel it was professional for
Bagley to use her nickname over the public address system,
when asked what was discussed about Bagley during the pre-
August 3 meetings between herself and Van Baren, Adminis-
trator Shenker was only able to testify ‘‘we discussed various
comments that we had heard from others on the staff.’’ Ad-
ministrator Shenker failed to describe with any specificity
545CASA SAN MIGUEL
11 Perez was not called by Respondent to corroborate Van Baren’s
testimony.
12 It is undisputed that the termination slip was never shown to or
given to Bagley.
whatsoever the substance of the ‘‘various comments’’ alleg-
edly discussed.
Meagher testified she was unable to remember what was
said about Bagley at the late July meeting she attended, and
then belated testified the reason for her poor memory was
she left the room before the meeting ended. When, however,
counsel for Respondent showed Meagher a copy of the Au-
gust 3 counseling report and asked if ‘‘some’’ of the issues
discussed at the late July meeting were included in this re-
port, Meagher testified, ‘‘[Y]es.’’
When viewed in the context of Meagher’s prior incredible
testimony concerning the August 3 meeting and the August
3 counseling report, Meagher’s ‘‘yes’’ to counsel’s leading
question is in my view another fabrication designed to aid
Respondent’s case regardless of the truth. Moreover, I am
convinced that this late-July meeting never occurred. Thus,
Meagher testified it was a meeting held in late July in the
office of M. and L. Shenker and was attended by both Van
Baren and Meagher as well as by M. and L. Shenker.
Meagher further testified that at this meeting Van Baren and
Meagher gave to M. and L. Shenker the file of information
they had complied about Bagley’s work performance, after
having conducted an investigation into Bagley’s work per-
formance. Neither M. nor L. Shenker or Van Baren corrobo-
rated Meagher’s testimony about such a meeting. I am con-
vinced that if such a significant meeting had occurred that
either Van Baren or one of the Shenkers would have testified
about it. I am convinced that the reason Meagher’s testimony
is uncorroborated is that the meeting never occurred.
Meagher’s fabrication of this meeting is simply another in-
stance of her disregard for the truth.
On August 10 Bagley was ill at work and apparently had
to leave work and go home. On the morning of August 11
she telephoned the facility and informed Van Baren she was
feeling all right and intended to come to work that day. On
her way to work, however, her motor vehicle broke down
and between 4:30 and 5 p.m. she telephoned the facility and
informed Van Baren of her car trouble, but told Van Baren
she had been informed the car was safe to drive and she
would come to work. Van Baren responded by advising
Bagley not to come to work that day because Respondent
had sufficient personnel to cover the shift and they would see
her tomorrow.
The above description of Bagley’s August 11 conversa-
tions with Van Baren is based on Bagley’s testimony. Van
Baren testified she spoke to Bagley over the telephone only
once on August 11, when Bagley spoke to Staff Coordinator
Ellenita Perez who informed Van Baren that Bagley was on
the telephone asking if she was needed for work that day.11
Van Baren testified she had Perez transfer the telephone call
to her and asked Bagley how she was feeling, Bagley replied
she felt fine and asked if she was needed for work that day,
Van Baren told Bagley she did not understand Bagley’s
question because Bagley was scheduled to work that day and
was the p.m. shift’s supervisor, and Bagley replied she would
come to work. Van Baren also testified that when she left
the facility that day at 4:30 p.m. Bagley was not there and
her position as p.m. shift supervisor had to be covered by an-
other person, and later that evening Van Baren was informed
by someone at the facility that Bagley had telephoned to say
her car had broken down and because of that had not come
to work. I rejected Van Baren’s uncorroborated testimony
and credited Bagley’s testimony because of Bagley’s good
and Van Baren’s poor testimonial demeanor.
On August 12 Van Baren telephoned Bagley at home and
told her that her employment had been terminated. Bagley
testified Van Baren told her she had been terminated because
she would not work on weekends and that Respondent need-
ed her to work on alternate weekends. Van Baren testified
she did not inform Bagley she was being terminated for re-
fusing to work weekends. Van Baren testified the reasons she
gave to Bagley for her termination were as follows: the pre-
vious week Bagley had been counseled by Van Baren and
the matters discussed then had not been ‘‘resolved’’; ‘‘there
was just too many problems and too many inconsistencies
and . . . [Van Baren] felt she was not the right person for
the job’’; she was not coming to work and Respondent need-
ed a p.m. shift supervisor who could be relied on to be at
work; and the problems on the shift seemed to be getting
worse. I credit Bagley’s aforesaid testimony and reject Van
Baren’s because Bagley’s testimonial demeanor was good,
whereas Van Baren’s was poor.
In discrediting Van Baren’s testimony about her conversa-
tion with Bagley on August 12 notifying Bagley of the rea-
sons for her termination, I considered Van Baren’s further
testimony that on August 12 at approximately the same time
she notified Bagley she was terminated, Van Baren and Ad-
ministrator Shenker prepared a termination slip for Bagley’s
termination stating the reasons for her discharge. This termi-
nation slip, Respondent’s Exhibit 18, is written on one of Re-
spondent’s ‘‘Employee disciplinary Notice’’ forms and is un-
dated and signed by Van Baren, but otherwise the contents
of the termination slip were written by Administrator L.
Shenker, who wrote:12
We have been concerned over your performance as
p.m. supervisor. Yesterday August 11, 1992 you called
in and asked if you were needed after having called in
also 1 day previously. As a supervisor, we find this a
preposterous statement and then, you still did not show
up for your shift—calling in 1-1/2 hours late leaving us
without a supervisor which is a key position. In the re-
cent past, you have not taken a station, when we did
not have another nurse to fill that vacancy. We have
found many inconsistencies in your various write-ups
and employee rapport. Based on these instances and
due to your short tenure we are terminating your serv-
ices at CSM.
Administrator L. Shenker testified the decision to dis-
charge Bagley was made by Van Baren and that Shenker
concurred in the decision. When asked to state what was said
by herself and Van Baren when they met and decided to ter-
minate Bagley, Administrator Shenker testified she was not
able to remember what was said other than that they dis-
cussed the decision to terminate Bagley and at that time their
decision was recorded in writing in the form of a termination
slip. Administrator Shenker further testified she was not able
to remember the reason for Bagley’s termination, unless she
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The pretextual nature of this allegation is further demonstrated
by Van Baren’s testimony that the alleged incident occurred on July
28 or 29, yet it was not one of the matters encompassed by Van
Baren’s August 3 counseling report, which Van Baren testified in-
cluded all of the matters that she believed were sufficiently serious
to require counseling.
14 In determining whether the record as a whole establishes Re-
spondent discharged Bagley because she refused to commit unfair
labor practices, I have used the method of analysis for determining
motivation in unlawful discrimination cases relied on by the Board
in Wright Line, 251 NLRB 1083 (1980), which was approved by the
Supreme Court in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
15 A majority of the p.m. shift’s employees were Filipinos.
was able to read the termination slip, Respondent’s Exhibit
18. It was only after having refreshed her memory by read-
ing Respondent’s Exhibit 18 that Administrator L. Shenker
was able to testify about what was said between herself and
Van Baren that led to the decision to discharge Bagley. In
view of this lapse of memory on the part of Administrator
L. Shenker, I pointed out that the record would show that in
contrast to her lack of memory about the discussion concern-
ing Bagley’s discharge between herself and Van Baren, she
had been able to remember what was said during her con-
versations connected with the discharge and discipline of em-
ployees, other than Bagley, and inquired if there was an ex-
planation for this. In response Administrator Shenker testi-
fied:
[B]ecause I was directly involved in the other ones. I
wrote up those other things. . . . I was independently
writing those things up along with discussions with
[Van Baren], or . . . what other department heads
would be involved at that particular time.
As Van Baren testified, however, the termination slip, Re-
spondent’s Exhibit 18, was written by Administrator L.
Shenker and according to the testimony of Van Baren, from
late July until the date of Bagley’s termination, Administrator
L. Shenker was in continuous communication with Van
Baren about the alleged problems Van Baren was having
with Bagley.
In other words, testimony presented by Respondent shows
that Administrator L. Shenker was supposedly continuously
and actively involved in the discussions that eventually re-
sulted in Respondent’s decision to discharge Bagley and, be-
cause of Shenker’s involvement in this decision, it was
Shenker, not Van Baren, who prepared Bagley’s termination
slip. Under the circumstances, it is unbelievable that Admin-
istrator L. Shenker had no independent recollection whatso-
ever of what was said during her August 12 meeting with
Van Baren that allegedly resulted in the decision to discharge
Bagley and to record the reasons for that decision in a termi-
nation slip that Administrator L. Shenker wrote out. It is also
significant that Van Baren failed to testify about what took
place at the August 12 meeting between herself and Admin-
istrator L. Shenker, which supposedly resulted in the prepara-
tion of Bagley’s termination slip by Administrator L.
Shenker and the telephone call to Bagley notifying Bagley of
her termination.
Considering Administrator L. Shenker’s poor testimonial
demeanor when she testified she was unable to remember
anything that was stated during her August 12 meeting with
Van Baren; considering Administrator L. Shenker’s poor tes-
timonial demeanor when, after reading what she had written
on Respondent’s Exhibit 18, she then testified about her Au-
gust 12 meeting with Van Baren; considering the incredible
explanation advanced by Administrator L. Shenker to explain
her inability to remember anything about her August 12
meeting with Van Baren that allegedly resulted in Respond-
ent’s decision to discharge Bagley; and, considering Van
Baren’s failure to testify about that meeting, I am of the
opinion that Administrator L. Shenker’s testimony about
what was said by and between herself and Van Baren during
that meeting was a fabrication and that Respondent’s Exhibit
18 was also a fabrication written after the fact, in an effort
to justify Bagley’s discharge.
To sum up, for the reasons set forth above, I find that
Bagley was not informed she was discharged for any of the
reasons set forth in Respondent’s Exhibit 18, but was noti-
fied by Van Baren on August 12 that she had been dis-
charged for refusing to work weekends. It is for this reason
and, for the other reasons set forth above, that I further find
Respondent’s Exhibit 18 to be an after-the-fact fabrication
written in order to disguise the real reason for Bagley’s dis-
charge. This conclusion is buttressed by the fact that the
record reveals that the allegations contained in Respondent’s
Exhibit 18 are without substance: On August 11 Bagley did
not call in and ask if she was ‘‘needed,’’ but, after having
dealt with a problem with her motor vehicle that had caused
her to be late for work, she telephoned Van Baren, explained
the situation, and offered to come to work, but was told it
was not necessary because Respondent had sufficient person-
nel to cover the shift; Bagley did not, as alleged, refuse to
accept an assignment to work as a nurse on a station when
Respondent did not have another nurse to fill the vacancy,
rather on the occasion in question, despite being ill, Bagley
remained on duty as assigned;13 and, as I have found pre-
viously in this decision, Respondent’s allegation that there
were ‘‘many inconsistencies in [Bagley’s] various writeups
and employee rapport,’’ is completely without substance.
b. Discussion
An employer violates Section 8(a)(1) of the Act by dis-
charging a statutory supervisor for refusing to commit an un-
fair labor practice against statutory employees. Country Boy
Markets, 283 NLRB 122 (1987), enfd. 869 F.2d 1397 (10th
Cir. 1989); Gerry’s Cash Markets v. NLRB, 602 F.2d 1021,
1023–1025 (1st Cir. 1979); NLRB v. I. D. Lowe, 406 F.2d
1033, 1034–1035 (6th Cir. 1969). The complaint alleges that
Respondent’s August 12 discharge of Bagley, a statutory su-
pervisor, violated Section 8(a)(1) because it was motivated
by Bagley’s refusal to commit unfair labor practices against
statutory employees. For the reasons set forth hereinafter this
allegation has merit.14
On July 6, when Bagley began to work for Respondent as
its p.m. shift supervisor, Assistant Director of Nurses
Meagher, in the presence of Director of Nurses Van Baren,
told Bagley that the Filipino employees employed on the
p.m. shift were ‘‘troublemakers’’ who wanted to start a
union,15 and Van Baren stated Respondent did not need a
union. Bagley replied she did not see any harm in a union.
547CASA SAN MIGUEL
16 The record does not establish that Respondent permits its em-
ployees to post materials of a personal or nonwork related nature on
the breakroom bulletin board, thus there is no showing that Respond-
ent’s instruction concerning the removal of posted union materials
would discriminate against employees’ union activity. Therefore, the
removal of the union material posted by employees would not have
violated the Act. See generally Honeywell, Inc., 262 NLRB 1402
(1982).
During mid- and late-July, Meagher asked if Bagley over-
heard the employees speaking about the Union and, with re-
spect to the employees’ union activities, gave Bagley these
instructions: if employees wore union buttons Bagley was to
tell them to remove the buttons; if employees posted material
concerning the Union in the breakroom, Bagley was to re-
move the posted materials; and, employees were not allowed
to discuss the Union. Meagher also told Bagley that if em-
ployees discussed the Union or wore union buttons or posted
union materials that Bagley should give their names to
Meagher. Bagley responded to Meagher’s above-described
instructions by asking Meagher what was wrong with the
Union, stating the employees did not speak about the Union
in her presence, and by stating she thought it would be ille-
gal for her to write up employees for discussing the Union
because, she explained, employees could talk about whatever
they wanted during their break periods.
At the end of July, Meagher asked if Bagley had followed
Meagher’s above-described instructions concerning the em-
ployees’ union activity. Bagley responded by stating she had
not followed Meagher’s instructions because it was not
Bagley’s job to engage in that type of conduct and because
she believed what Respondent wanted her to do was illegal.
Shortly after this, in early August, Meagher informed
Bagley that Respondent needed her to work weekends as
p.m. shift supervisor. Bagley refused to accept the change in
her work schedule, explaining to Meagher she had been hired
by Respondent with the understanding she would work only
weekdays, because on weekends she worked for the local
nurses registry service and did not wish to give up that
weekend work. In fact, when Bagley was hired by Respond-
ent as its p.m. shift supervisor, Respondent hired her for that
position with the knowledge she was not available to work
weekends.
On August 12, shortly after Bagley’s refusal to work
weekends, Van Baren notified Bagley that her employment
had been terminated because she refused to work weekends.
Admittedly, this was not the real reason for Bagley’s dis-
charge because, as Van Baren testified, Respondent had no
need whatsoever for Bagley to supervise the p.m. shift on
weekends.
In this proceeding, Van Baren testified the real reasons for
Bagley’s discharge had nothing whatsoever to do with her
refusal to work weekends, but she was discharged because
of the following: she had mistreated the employees she su-
pervised; once she had refused to accept a job assignment;
and, on August 11 had been absent from work. These rea-
sons, however, like the reason Van Baren communicated to
Bagley, were not the real ones for Bagley’s discharge, but,
as I have found supra, were after the fact fabrications ad-
vanced by Respondent to disguise the real reason for
Bagley’s termination.
The following circumstances, considered together, estab-
lish that a motivating factor for Respondent’s decision to dis-
charge Bagley was her refusal to obey Respondent’s instruc-
tion to engage in conduct that would have interfered with the
rank-and-file employees’ statutory right to engage in union
activity: the timing of Bagley’s discharge—she was dis-
charged shortly after she informed Respondent that because
she questioned its legality she would not follow Respond-
ent’s instruction to prevent employees from discussing the
Union and wearing union buttons in the facility, and to turn
the names of those employees over to Respondent; if Bagley
had obeyed those instructions her conduct would have inter-
fered with the statutory rights of the employees to discuss the
Union in such nonpatient care areas as the employees’
breakroom and to wear union buttons on their uniform out-
side of immediate patient care areas, absent special cir-
cumstances not shown to exist in this case;16 the reason that
Respondent gave to Bagley for her discharge, her refusal to
work weekends, was patently false and because of this Re-
spondent during this proceeding advanced entirely different
reasons for Bagley’s discharge; and, these reasons, like the
reason communicated to Bagley when she was discharged,
were false reasons completely without substance.
The aforesaid factors, viewed in their totality, establish
that a motivating factor for Respondent’s decision to dis-
charge Bagley was her refusal to commit unfair labor prac-
tices against statutory employees. I, therefore, conclude that
the General Counsel has made a prima facie showing that
Bagley was discharged for an unlawful reason.
The Respondent does not assert any business reason, other
than the ones that I have found to be completely without
substance, for discharging Bagley even if she had not refused
to commit unfair labor practices against statutory employees.
Therefore, it has not met its burden under Wright Line. I,
therefore, find Respondent’s discharge of Bagley on August
12 violated Section 8(a)(1) of the Act.
C. The Alleged 8(a)(3) and (1) Violations
1. The May 18 discharge of Nita Celarbo and
suspension of Ethel Tarrosa
a. The evidence
Ethel Tarrosa and Nita Celarbo were employed by Re-
spondent as CNAs on the p.m. shift; Celarbo since 1985 and
Tarrosa since 1986. They are Filipinos whose native lan-
guage is Tagalog.
Respondent’s rules of conduct provide that ‘‘speaking a
language other than English while on duty . . . could result
in some type of disciplinary action ranging from verbal
and/or written warning to full reprimand and termination.’’
During the period of time material to the discharge of
Celarbo and the suspension of Tarrosa, if employees spoke
Tagalog while on duty, Respondent’s charge nurses or super-
visors would normally only call the above rule to their atten-
tion and remind them not to speak Tagalog or, at the very
most, would issue a counseling report to the offender. It was
only after repeated violations of this rule that supervision
would issue a disciplinary notice to the offender and, if, after
receiving a disciplinary notice, the employee continued to en-
gage in this conduct, the employee received only another dis-
ciplinary notice and was not suspended or discharged (Tr.
798–803).
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Celarbo testified that prior to her May 18 discharge she dis-
cussed the Union with other employees at the home of employee
Guzman. It is clear from the record as a whole that this meeting oc-
curred on May 23.
18 Respondent offered no evidence to corroborate Van Baren’s tes-
timony that Tarrosa was placed on probation as well as being sus-
pended for 3 days. In addition, no one corroborated Van Baren’s tes-
timony that she submitted the above memo to the payroll department
on or about May 19.
On several occasions in May, prior to her May 18 suspen-
sion, Tarrosa, with other employees employed on the p.m.
shift, discussed union representation. These conversations
took place in the facility’s parking lot and in the employees’
breakroom.
On several different occasions, in May, prior to May 18,
during the break period, Celarbo discussed the Union with
other employees employed on the p.m. shift and once met
with four or five of the p.m. shift employees in the facility’s
parking lot where they discussed the subject of union rep-
resentation.17
Tarrosa’s suspension
On the morning of May 18, Tarrosa, at Respondent’s re-
quest, came to the facility, where she met with L. Shenker
and Van Baren. L. Shenker, the Respondent’s administrator,
did all of the talking for Respondent.
Tarrosa was given or shown copies of two ‘‘Employee
Disciplinary Notices,’’ General Counsel’s Exhibits 5(a) and
(b), which had been typed by p.m. Charge Nurse Pat Goel,
and were dated May 18 and signed by Goel and Van Baren.
One of the notices, General Counsel’s Exhibit 5(a), stated
on May 8 Tarrosa was ‘‘speaking foreign language while on
duty, sitting on residents bed and watching TV’’ and Goel
had ‘‘verbally counseled her on previous occasions.’’
The other notice, General Counsel’s Exhibit 5(b), stated on
May 8 Tarrosa had engaged in ‘‘insubordinate actions with
regard to patient care’’ and, in this regard, further stated
Goel ‘‘asked [Tarrosa] the status of a resident after a particu-
lar incident had occurred’’ and Goel ‘‘was given an answer
of ‘I don’t know’’’ and when Goel questioned Tarrosa fur-
ther, Tarrosa ‘‘threw the resident’s chart across the desk in
my general direction.’’
In the section of the above-described notices that provides
for ‘‘action taken,’’ Van Baren had written Tarrosa was sus-
pended without pay beginning on May 20 and ending on
May 23.
L. Shenker advised Tarrosa that because of Tarrosa’s mis-
conduct she had almost been discharged and explained the
reason why she had not been discharged was her father had
been employed by Respondent for a long time, and also told
Tarrosa that Nita Celarbo had already been discharged. L.
Shenker stated she had been prepared to discharge all of
Tarrosa’s friends who spoke Tagalog, asked if Tarrosa want-
ed to be ‘‘part of the solution or a part of the problem,’’ and
when Tarrosa answered she desired to be part of the solution,
L. Shenker stated if she wanted to be a part of the solution
to tell her friends not to speak Tagalog. Tarrosa responded
by stating she and Celarbo had been laughing and speaking
in Tagalog in a hallway, not in a patient’s room, and that
no patient had been present while they were engaged in that
conduct. L. Shenker informed her that employees while in
Respondent’s facility must speak English.
L. Shenker asked Tarrosa nothing about the part of the
disciplinary notice that alleged she had been ‘‘sitting on resi-
dents bed and watching TV.’’
Regarding the allegation that on May 8 Tarrosa had acted
insubordinate toward Goel, Tarrosa told L. Shenker she did
not throw a chart at Goel, as alleged, and gave the following
explanation of what had occurred: Goel asked for the room
number of patient Jones; Tarrosa replied she did not remem-
ber it and stated she could show Goel where the room was
located; Goel left with the medication cart and a few minutes
later Tarrosa, who had gotten Jones’ medical chart, informed
Goel she had the chart and, reading from the chart, gave
Goel the room number of patient Jones; and Goel asked
Tarrosa to return the chart back to the desk, which Tarrosa
did.
The above description of Tarrosa’s May 18 meeting with
L. Shenker and Van Baren is based on Tarrosa’s undenied
testimony.
Tarrosa credibly testified that the description of what oc-
curred between herself and Goel on May 8, as described by
Tarrosa to L. Shenker on May 18, is what occurred.
Tarrosa also credibly testified that during her May 8 work
shift she sat on an empty bed and watched TV and pre-
viously had engaged in this type of conduct, but Goel never
spoke to her about it.
I reject Respondent’s contention that on May 18, besides
being suspended for 3 days, Tarrosa was also placed on pro-
bation. This contention is based on a memo from Van Baren
to Respondent’s payroll department dated May 19 stating
Tarrosa had been placed on probation for 3 months. Van
Baren also testified that during Tarrosa’s May 18 meeting
with L. Shenker and Van Baren that a document was given
to Tarrosa stating she had been placed on probation. More
specifically, Van Baren testified the document in question
was not the above-described memo from Van Baren to the
payroll department, but was in the form of a written discipli-
nary notice stating Tarrosa had been placed on probation be-
cause of her misconduct. Van Baren’s testimony is contra-
dicted, however, by the undisputed fact that the disciplinary
notices issued to Tarrosa on May 18, supra, say nothing
about her being placed on probation and, as I have found
supra, nothing was mentioned at the May 18 meeting about
Tarrosa being placed on probation. Considering these cir-
cumstances and Van Baren’s poor testimonial demeanor, I
find Tarrosa was not placed on probation and that the May
19 payroll department memo prepared by Van Baren was
done so in an effort to bolster Respondent’s case in this pro-
ceeding.18
Celarbo’s discharge
On May 18 at approximately 9:30 a.m. Celarbo received
a telephone call at home from Respondent’s staff coordina-
tor, Ellenita Perez, who told her not to come to work because
her name had been removed from the work schedule and if
she wanted to know the reason to speak to Van Baren.
Celarbo immediately telephoned Respondent’s director of
staff development, Boeger, and asked why her name was re-
moved from the work schedule. Boeger responded by advis-
ing her to come to the facility and talk to M. and L. Shenker.
549CASA SAN MIGUEL
Celarbo stated she felt she had not done anything wrong and
was too upset to speak to the Shenkers.
Celarbo then, on May 18, telephoned Van Baren and asked
whether she had done something wrong because, she told
Van Baren, Perez had removed her name from the work
schedule. Van Baren answered by stating that ‘‘somebody’’
had reported Celarbo had engaged in the following conduct:
speaking Tagalog; sitting on a patient’s bed; and had been
insubordinate. Van Baren told Celarbo to come to the facility
to pick up her paycheck because, Van Baren stated, she had
been terminated.
The above description of Celarbo’s May 18 conversations
with Perez, Boeger, and Van Baren is based on Celarbo’s
testimony. It was undenied and uncontroverted except by
Van Baren, in one respect. Van Baren, who was not ques-
tioned about her May 18 telephone conversation with
Celarbo, while testifying about the reasons for Celarbo’s ter-
mination, stated that one of the reasons Van Baren decided
to terminate Celarbo was Celarbo told Van Baren she was
not going to come to the facility and talk to Van Baren about
the allegations of misconduct attributed to her. Celarbo de-
nied Van Baren asked her to come to the facility to speak
to her or to discuss the reasons for her termination. I credited
Celarbo’s testimony because her testimonial demeanor was
good, whereas Van Baren’s was poor.
Shortly after Van Baren on May 18 told Celarbo she was
discharged, Celarbo wrote Van Baren requesting something
in writing to explain the reasons for her termination. In re-
sponse, on or about May 25, Celarbo received an undated
letter, signed by Van Baren, which stated, in pertinent part,
‘‘[i]n reference to your termination on May 18, 1992. As you
were unable to come in and discuss the reasons for your ter-
mination in person as requested I had to speak with you on
the phone and gave you those reasons.’’
Celarbo credibly testified that during the course of her 7
years in Respondent’s employ she occasionally had sat on
patients’ beds while at work and was never warned about en-
gaging in this type of conduct.
Celarbo credibly testified that neither Charge Nurse Goel
or Van Baren ever spoke to her about speaking Tagalog
while at work. It is undisputed, however, that in the spring
of 1992 Karen Meagher, who at the time was a supervising
nurse, told a group of nurses including Celarbo not to speak
Tagalog while on duty because it upset the patients. Celarbo
and the nurses had been speaking Tagalog. Meagher re-
minded them it was a facility policy that everyone speak
English when on duty whether they were in a hallway or in
a patient’s room. In response, Celarbo told Meagher she real-
ized this but had just forgotten and that sometimes it was dif-
ficult for her to get an idea across in English.
Respondent’s reasons for discharging Celarbo and
suspending Tarrosa
Respondent’s director of nurses, Van Baren, was the only
member of management or of supervision to testify about
Respondent’s decision to discharge Celarbo and suspend
Tarrosa or to testify about the circumstances that resulted in
those decisions. A summary and an evaluation of her testi-
mony is set forth below.
General Counsel’s Exhibit 4 is, in pertinent part, a typed
letter dated May 8, addressed ‘‘To Whom it may concern:
D.O.N. [referring to Director of Nurses].’’ The letter that was
captioned ‘‘Subject: Collective Insubordination’’ is signed by
Pat Goel, who at the time was a charge nurse on the p.m.
shift. It reads as follows:
This letter is intended to address concerns regarding
insubordination thereby hindering patient safety and
quality of care. My concerns are as follows:
1. Frequently speak Filipino in my presence & or
others.
2. Repeatedly answer me with ‘‘I don’t Know,’’
when asked about patients’ status and or change
3. Observed sitting on patients’ bedroom and watch-
ing television.
4. Inappropriate placement of patients’ restraints.
5. Coerce other staff to be uncooperative.
6. Personal harassment
7. Asking me sarcastically at the end of the shift,
‘‘Did we give you a hard time?’’
8. They accuse me of getting nervous and panic
whenever the patient falls down and afterwards they
laugh and giggle.
Continued unruly behaviors as cited above will result
in endangerment of quality of patient care and safety,
possible loss of license; possible litigation; and discord
among staff in work environment.
*This is regarding Nita Cilarbo [sic] (CNA).
Van Baren testified she received this letter from Goel on
May 12 and the allegations set forth in the letter pertain to
Tarrosa as well as Celarbo. At another point, however, Van
Baren testified that on May 12 she received another letter
from Goel that was specifically concerned with the mis-
conduct engaged in by Tarrosa and testified this second letter
contained ‘‘pretty much the same information’’ as General
Counsel’s Exhibit 4. Respondent did not produce this alleged
second letter.
Regarding the two disciplinary notices issued to Tarrosa
on May 18, when she met with Van Baren and L. Shenker,
General Counsel’s Exhibits 5(a) and (b), Van Baren testified,
‘‘I asked [Goel] to do this [a reference to the allegations of
misconduct set forth in Goel’s May 8 letter] on the proper
form.’’ It is clear it was not until May 18 that Van Baren
supposedly instructed Goel to prepare these disciplinary no-
tices inasmuch as they are dated May 18. Van Baren did not
explain why, if Goel attributed the allegations of misconduct
set forth in her May 18 letter to both Tarrosa and Celarbo,
the disciplinary notices prepared by Goel that were issued to
Tarrosa on May 18 failed to include the majority of the alle-
gations set forth in Goel’s letter.
Van Baren testified Goel’s May 8 letters concerning
Tarrosa’s and Celarbo’s misconduct referred not to just inci-
dents that occurred on May 8, but to a whole series of acts
of misconduct that occurred prior to May 8 over a period of
several months and what occurred on May 8 was the ‘‘final
straw’’ for Goel. This testimony is highly suspect because it
is undisputed that prior to Goel’s May 8 letters to Van Baren
that Goel had never previously complained about either
Tarrosa or Celarbo to Van Baren. Nor had anyone else made
such complaints to Van Baren. I find it difficult to believe
that if either Tarrosa or Celarbo or both of them, prior to
May 8, had been engaging in the type of serious misconducts
set forth in Goel’s May 8 letter, that Goel would not have
told Van Baren they were engaging in this conduct. Accord-
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Van Baren testified she could not recall either the name of the
patient involved or the type of restraint involved. Tarrosa credibly
testified she never placed a restraint on a patient that had not been
authorized by a doctor’s order or that Goel ever spoke to her about
engaging in this type of conduct.
20 When asked how Tarrosa had coerced other staff to be unco-
operative, Van Baren testified, ‘‘[Y]ou’d have to ask her that, I can’t
give you a specific,’’ and when the question was repeated, testified,
‘‘I don’t recall at this moment.’’
21 As I have found supra, Van Baren did not ask Celarbo to come
to the facility and speak to Van Baren about the allegations set forth
in Goel’s letter.
22 I reject Van Baren’s testimony that prior to May 8 she had spo-
ken to both Tarrosa and Celarbo about the complaints she was re-
ceiving about the conduct of the p.m. shift generally. Van Baren did
not testify about these conversations, when they occurred or what
was said, and failed to explain why she chose Tarrosa and Celarbo
from among the several employees employed on the p.m. shift to
speak to about the fact that the shift in general had supposedly been
the subject of complaints. It is for these reasons, plus Van Baren’s
poor testimonial demeanor, which has led me to reject her testimony
ing to Van Baren’s testimony, however, the only complaints
she received prior to May 12 involved the conduct of the
p.m. shift in general without any mention of the names of
the employees involved. Also, when asked if during the pe-
riod she was receiving these complaints about the p.m. shift
she had ever spoken to Tarrosa or Celarbo or issued them
written disciplinary notices, Van Baren testified she had spo-
ken to them, but significantly failed to testify further about
these alleged conversations.
On the receipt of Goel’s letters on May 12, Van Baren tes-
tified she immediately conducted an investigation to deter-
mine whether the allegations set forth in the letters were true
insofar as they attributed the alleged misconduct to Celarbo
and Tarrosa. She testified the investigation consisted of her
speaking to the following persons: Charge Nurse Goel; the
p.m. shift supervisor; and two nursing assistants. Van Baren
testified she was unable to remember the name of the p.m.
shift supervisor who she spoke to and was also unable to re-
member the names of the two nursing assistants. Nor did she
testify about her conversations with these unidentified per-
sons.
Van Baren, at different times during her testimony, testi-
fied about remarks Goel made when Van Baren spoke to
Goel about the letters she had received from Goel on May
12. Goel’s remarks may be summarized as follows: Celarbo
was an employee that Goel had been having difficulties with
over a period of time; on May 8 and on occasions prior to
May 8 Celarbo and Tarrosa had been sitting on patients’
beds watching television instead of caring for patients; on
May 8 and on occasions prior to May 8 Tarrosa and Celarbo
had refused to obey Goel’s orders; on May 8 and on repeated
occasions prior to May 8 Celarbo had repeatedly answered
Goel with the comment ‘‘I don’t know’’ when asked about
patients’ status or change; on May 8 Tarrosa had used a re-
straint on a patient even though a physician had not author-
ized the use of the restraint;19 since January 1990 Tarrosa
had been coercing other staff to be uncooperative and on
May 8 had again engaged in this conduct;20 and Goel felt
she was being harassed and was ready to quit her job. This
was the extent of Van Baren’s testimony concerning what
was said by either Van Baren and Goel when Van Baren
spoke to Goel in connection with Van Baren’s investigation
into the allegations of misconduct supposedly attributed by
Goel to Tarrosa and Celarbo.
Van Baren testified that after concluding her investigation
a decision was made by herself and ‘‘administration’’ to dis-
charge Celarbo because her investigation had found Celarbo
to be guilty of gross negligence and insubordination; by
gross negligence, Van Baren testified she was referring to
those allegations in the May 8 letters that alleged ‘‘inappro-
priate placement of patients’ restraints’’ and ‘‘sitting on pa-
tient’s bedroom and watching television.’’ Van Baren also
testified Celarbo was terminated because Goel’s May 8 letter
showed she was not doing her job and because she refused
to come to the facility on May 18 and speak to Van Baren
about the allegations of misconduct set forth in Goel’s let-
ter.21
Van Baren testified Tarrosa was suspended, rather than
discharged, because, unlike Celarbo, she came to the facility
to discuss with Van Baren the matter of her discipline and
because she decided to give Tarrosa another chance because
her parents also worked for Respondent.
I reject in its entirety Van Baren’s above testimony set
forth in this section because: her testimonial demeanor was
poor—the way she spoke, the tone of her voice and the way
she looked and acted while testifying led me to believe her
sole interest was to tailor her testimony to suit Respondent’s
case regardless of the truth; there is no corroboration whatso-
ever for any part of her testimony—her testimony concerning
Respondent’s decision to discharge Celarbo and suspend
Tarrosa and the circumstances that led up to and resulted in
those decisions is based on information allegedly received by
Van Baren from Charge Nurse Goel and the p.m. shift super-
visor whose name Van Baren supposedly does not remember
and from two nurses aides whose names she also supposedly
cannot remember, none of whom were called on to corrobo-
rate her testimony; although Van Baren testified she inves-
tigated the allegations of misconduct set forth in Goel’s May
8 letters by speaking not only to Goel but to the unidentified
p.m. shift supervisor and the unidentified nurses assistants,
Van Baren failed to testify about the content of those alleged
conversations and, as set forth above, her testimony concern-
ing her conversation with Goel is completely lacking in spec-
ificity and has Goel simply parroting the conclusionary alle-
gations set forth in her May 8 letter; Respondent’s unex-
plained failure to produce the letter from Goel charging
Tarrosa with the same type of misconduct as alleged against
Celarbo in Goel’s May 8 letter, General Counsel’s Exhibit 4,
warrants the inference that the letter never existed and Van
Baren’s testimony about that letter was a fabrication de-
signed to support her further testimony that Goel had alleged
that Tarrosa, as well as Celarbo, was responsible for the mis-
conduct set forth by Goel in General Counsel’s Exhibit 4,
even though that exhibit on its face states, ‘‘This is regarding
Nita Cilarbo [sic]’’ and does not mention Tarrosa’s name;
and Van Baren’s testimony that she was informed by Goel
that Tarrosa and Celarbo for several months prior to May 8
had been engaging in the type of serious misconduct set forth
in Goel’s May 8 letter does not ring true because despite the
serious nature of the misconduct Goel had never previously
recommended that either Tarrosa or Celarbo be disciplined or
otherwise complained to Van Baren about their miscon-
duct.22 These are the reasons that have led me to reject in
551CASA SAN MIGUEL
that prior to May 8 she had spoken to Tarrosa and Celarbo about
their conduct.
23 When patients need assistance they push a button and a light
outside of their room goes on.
its entirety Van Baren’s testimony concerning Respondent’s
decision to discharge Celarbo and suspend Tarrosa and the
circumstances that prompted Respondent to reach those deci-
sions.
b. Discussion
The allegations that on May 18 Respondent discharged
Celarbo and suspended Tarrosa because of their union sym-
pathies and activities lack merit because, for the reasons
below, the whole record fails to establish Respondent knew
or believed these employees were union sympathizers or ac-
tivists. I, therefore, shall recommend the dismissal of these
allegations.
As I have found supra, Celarbo and Tarrosa in May, prior
to May 18, on different occasions in the facility’s parking lot
and breakroom, participated in p.m. shift employees’ discus-
sions about union representation. There is no evidence, how-
ever, of what was said during these discussions; whether
Celarbo or Tarrosa were particularly outspoken in favor of
union representation or whether they were just inquiring
about the benefits of union representation or were merely si-
lent participants. The Union during this period of time had
apparently not commenced its campaign to organize the em-
ployees, for it was not until May 23 that the Union held its
first organizational meeting for the p.m. shift employees.
Thus, it is not surprising there is no direct evidence of Re-
spondent’s knowledge that its p.m. shift employees, including
Celarbo and Tarrosa, were engaged in discussions about
union representation as early as May 18. I recognize, as I
have found supra, that in July Respondent requested its p.m.
shift supervisor and two of its p.m. shift employees to spy
for Respondent on employees’ union activity. There is no
evidence, however, that as early as May 18, prior to the
commencement of the Union’s organization campaign, Re-
spondent was engaged in this type of conduct.
Not only is there a lack of evidence to establish that Re-
spondent on May 18 knew employees Celarbo and Tarrosa
had been involved in discussions with other employees about
union representation, there is also a lack of evidence that, as
early as May 18, Respondent knew that its employees were
discussing union representation. And, as I have noted supra,
this is not surprising because the Union’s organizational
campaign apparently did not begin until May 23, when the
first organizational meeting was held by the Union at the
home of one of the p.m. shift employees.
As suggested by counsel for the General Counsel, I have
considered that even in the absence of direct evidence of em-
ployer knowledge of an employee’s union sympathy or activ-
ity, it is sometimes appropriate to conclude that the cir-
cumstances surrounding an employee’s discharge or suspen-
sion are sufficient to create an inference that the employer
knew about the employee’s union sympathy or activity. As-
suming in the instant case that the record as a whole estab-
lishes the reasons advanced by Respondent for Celarbo’s dis-
charge and Tarrosa’s suspension were false and/or pretextual,
this circumstance, even when considered with Respondent’s
evident extreme antiunion animus and with Respondent’s
surreptitious efforts in July to learn the names of the employ-
ees who favored union representation, it would still not war-
rant the inference that as early as May 18, prior to the start
of the Union’s organizational campaign, Respondent knew or
believed that Celarbo and Tarrosa were union sympathizers
or activists. It would be inappropriate for me to draw this in-
ference because of the following: the extremely limited na-
ture of Celarbo’s and Tarrosa’s union activity; the lack of
evidence that in their discussion about union representation
with other employees that either one of them indicated they
favored union representation; and, most significantly, the
lack of evidence to establish that as early as May 18 Re-
spondent knew that any of its employees were discussing the
subject of union representation.
2. The July 1 discharge of Annie Mariano
a. The evidence
Mariano was employed by Respondent as a CNA for al-
most 7 years—August 7, 1985, to July 1—on its p.m. shift.
In an effort to secure union representation for herself and
the other nurses employed by Respondent, on or about May
9 Mariano and her sister, Caridad Guzman, also employed on
Respondent’s p.m. shift as a CNA, met with Union Rep-
resentative Griffith at Guzman’s home. Subsequently, on
May 23, a union organizational meeting was held at
Guzman’s home attended by approximately 10 to 15 employ-
ees including Mariano and Union Representative Griffith.
Mariano solicited several employees to attend the meeting.
Mariano’s discharge
On July 30, Mariano was assigned to station 2 under the
supervision of P.M.-Shift Supervisor Eva Suitos. Mariano
was responsible for the care of seven to eight patients, one
of whom, Sorrentino, had been admitted to the facility that
day.
CNAs are required to assist not just the patients specifi-
cally assigned to their care. If a call light is on outside of
the room of a patient assigned to a CNA who is not in the
area, a CNA who is in the area must attend to the patient’s
immediate needs.23
On June 30, at approximately 4:45 p.m., Mariano, follow-
ing her daily practice, transported the several patients as-
signed to her care to the facility’s dining room for dinner.
She placed them in wheelchairs (geri-chairs) and one by one
pushed them from station 2 to the dining room. When she
entered the dining room with a patient, she prepared the pa-
tient for dinner, i.e., placed a bib on the patient.
As I have indicated supra, Mariano testified her daily prac-
tice, like the other CNAs, was to wheel her patients to the
dining room for their dinner. Director of Nurses Van Baren
and Assistant Director of Nurses Meagher denied this was a
part of Mariano’s duties. They testified that because Mariano
was assigned to care for Medicare patients, she was not al-
lowed to leave her station. Neither Van Baren or Meagher
explained how the Medicare patients assigned to Mariano’s
care were supposed to get to the dining room for dinner each
day. Because the testimonial demeanor of Van Baren and
Meagher was generally poor, whereas Mariano’s testimonial
demeanor was good, I have credited Mariano’s testimony.
Moreover, if, in leaving her station to wheel her patients to
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 The above description of Mariano’s July 1 termination interview
is based on a composite of Mariano’s and Meagher’s testimony.
They did not contradict one another when they testified about this
meeting.
the dining room, Mariano had violated a rule requiring her
to remain at the station, it is incredible that Shift Supervisor
Eva Suitos did not counsel or discipline Mariano for violat-
ing this rule, but instead, as described infra, counseled her
for having left the station to take her patients to the dining
room when there was no other CNA at the station to answer
the patients’ call lights.
On June 30, while Mariano was in the main dining room
attending to one of the patients she had wheeled to the din-
ing room, Shift Supervisor Suitos approached her and stated
she had been looking for Mariano because Sorrentino’s call
light was on and Mariano had been paged a couple of times
over the public address system to attend to this patient.
Mariano replied she had not heard the page and would go
immediately to the patient’s room.
Mariano, walking a little faster than usual, went imme-
diately to Sorrentino’s room and took care of the patient’s
needs. In the room, when Mariano arrived, was another
CNA, Kumar Biro, who told Mariano he had answered the
patient’s call light, but the patient’s son stopped him from
assisting the patient because he said his mother wanted a fe-
male CNA to assist her.
Subsequently, on June 30, at approximately 11 p.m.,
Suitos handed Mariano an ‘‘Employee Counseling Report,’’
signed by Suitos, which stated the reason for the counseling
was Mariano, who was assigned Medicare patients, left her
station when no one was there to answer her patients’ call
lights and Mariano had failed to answer a call over the pag-
ing system for the CNA assigned to Sorrentino. The report
further stated Mariano informed Suitos that Mariano had not
heard the page. Suitos concluded the report by stating
Mariano should be more alert and receptive to patients’
needs and to answer call lights on time.
When shown this counseling report by Suitos, Mariano
told her that the report was inaccurate because another CNA,
‘‘Clarita,’’ had been on duty at station 2 during the period
Mariano was away from the station transporting her patients
to the dining room.
On July 1, according to Meagher’s testimony, Meagher
and Van Baren decided to terminate Mariano’s employment
and, consistent with company policy, removed Mariano’s
timecard from the timecard rack and directed the payroll de-
partment to prepare Mariano’s final paycheck (Tr. 1379).
Subsequently, on July 1, when Mariano came to work at
2:45 p.m., she discovered her timecard had been removed
and that word had been left for her to go to Meagher’s of-
fice. When Mariano entered the office she asked Meagher
what was the matter. Meagher responded by asking her to
tell her about ‘‘last night.’’ Mariano stated she had been told
she had been paged twice, that she had not heard the page,
and as soon as she was told she had been paged she imme-
diately went to her station. Meagher informed Mariano that
Meagher and Van Baren had reviewed Mariano’s personnel
file and decided to terminate her employment. Meagher then
showed Mariano a one paragraph typed document, undated,
with Meagher’s name typed at the bottom, which read as fol-
lows:
Annie Mariano has had three separate incidents in-
volving Resident Neglect dating 8–13–86, 2–3–88, and
6–30–92. After reviewing Annie’s personnel file, and
finding numerous other infractions against facility poli-
cies, Administration has come to the decision to Termi-
nate.
On learning she had been terminated and having read the
above document, Mariano became very upset. She told
Meagher she felt she deserved another chance and begged
Meagher to rescind her termination. When Meagher stated
she would not rescind the termination, Mariano lost her
composure and started to cry and when Meagher left the of-
fice Mariano followed her and yelled that Meagher should go
to hell and tried to punch Meagher in the face, but was pre-
vented from doing so by another nurse who pulled her away
from Meagher, and Mariano then left the facility.24
Mariano credibly testified she had no knowledge of the al-
legations in the termination slip shown to her by Meagher on
July 1, which attributed incidents of patient neglect to
Mariano in 1986 and 1988. Respondent presented no discipli-
nary or counseling reports or other documentation memori-
alizing such allegations, nor did Respondent present any tes-
timonial evidence to substantiate those allegations and, as de-
scribed in detail infra, during the hearing when it gave its
reasons for terminating Mariano, Respondent did not mention
the alleged 1986 or 1988 allegations of patient neglect or
otherwise rely on them as contributing to Mariano’s dis-
charge. In view of all of the above circumstances, I find that
the 1986 and 1988 allegations of patient neglect attributed by
Respondent to Mariano in the July 1 termination notice,
never took place and Respondent had no reason to believe
they took place.
Respondent’s reasons for discharging Mariano
Respondent Director of Nurses Van Baren and Assistant
Director of Nurses Meagher were the only persons called by
Respondent to testify about Respondent’s decision to dis-
charge Mariano and the circumstances that resulted in that
decision. A summary and evaluation of their testimony is set
forth below.
During the week of July 1, Van Baren was present only
infrequently at Respondent’s facility. She was constantly at
Kaiser Hospital visiting her husband who recently had under-
gone major surgery. During this period she was present at
Respondent’s facility for only short intervals to handle mat-
ters that needed her immediate attention. It was not until the
week of July 6 that Van Baren was able to devote her full
time to her duties as director of nurses.
Meagher’s testimony
Meagher testified that on July 1 at the daily 9 a.m. meet-
ing of department heads, Jane Boyle, Respondent’s social
service director, told Meagher that the previous evening a pa-
tient’s family became very upset because of the lack of atten-
tion their mother had received and that Boyle herself had
personally witnessed what had taken place. Meagher testified
Boyle stated she had witnessed the following: the patient, a
female, needed to use the toilet; her son sought assistance for
her; a CNA was paged but failed to come; a male CNA as-
signed to the station attempted to assist the patient, who re-
553CASA SAN MIGUEL
25 Regarding the contents of Mariano’s personnel file read to her
by Meagher, Van Baren was only able to remember, so she testified,
that within the past month or two Mariano had thrown a glass at
a coworker.
fused his offer of assistance stating she wanted a female
CNA to assist her; Boyle asked P.M. Shift Supervisor Suitos
to get a female CNA; Mariano was paged; and, it was at
least 20 minutes before Mariano came to assist the patient.
Meagher testified that immediately after the 9 a.m. meet-
ing of the department heads, she ‘‘beeped’’ Van Baren, who
was at the Kaiser Hospital visiting her husband, that Van
Baren promptly telephoned Meagher, who told her about the
above incident as described by Boyle, and Van Baren in-
structed Meagher to review Mariano’s personnel file.
Meagher testified she reviewed the materials in Mariano’s
personnel file and a couple of hours after her initial tele-
phone conversation with Van Baren and met with Van
Baren, in Van Baren’s office, where they discussed the mat-
ter. She testified this meeting took place at approximately
lunchtime and during the meeting it was jointly decided by
Van Baren and Meagher to discharge Mariano.
Meagher testified the documents in Mariano’s personnel
file, which Meagher and Van Baren reviewed that resulted
in their joint decision to discharge Mariano, were as follows:
‘‘Employee Counseling Reports’’ dated April 5, 1991, March
4, 1992, and June 30, 1992, signed respectively by Shift Su-
pervisors Sharon Cissel, Thelma Smith, and Eva Suitos; and
an ‘‘Employee Disciplinary Notice’’ dated July 1, 1992,
signed by Dietary and Kitchen Supervisor Yvonne Senn.
The employee counseling report dated April 5, 1991,
signed by Shift Supervisor Cissel states the reason for the
counseling was Mariano had been ‘‘speaking a language
other than English while on duty’’ in violation of Respond-
ent’s rules of conduct that provide that employees must not
speak a language other than English while on duty. In the
bottom section of the report, which provides for the super-
visor to comment about the situation 1 week after the coun-
seling, Cissel had written that the ‘‘situation is improving.’’
The employee counseling report dated March 4, 1992,
signed by Shift Supervisor Smith states the reason for the
counseling was Mariano broke a glass in anger because she
was upset with her coworkers, and that even though no resi-
dents were present, Mariano ‘‘understands that this is not ac-
ceptable’’ and felt sorry about the incident and promised to
refrain from any further display of this type and apologized
to the charge nurse whose station was involved. In the bot-
tom section of the report, which provides for the supervisor
to comment about the situation 1 week after the counseling,
Smith wrote that the ‘‘situation is resolved.’’
The employee counseling report dated June 30, 1992,
signed by Shift Supervisor Suitos which, as found supra, was
shown to Mariano by Suitos on June 30, states the reason
for the counseling was Mariano, who was assigned to the
Medicare patients, left her station when no one was there to
answer her patients’ call lights and that when Mariano was
paged to attend to patient Sorrentino, she failed to answer the
page. The report further states Mariano explained to Suitos
she had not heard the page. The report concluded with the
statement that Mariano should be more alert and receptive to
patients’ needs and to answer call lights on time.
The employee disciplinary notice dated July 1, 1992, pur-
portedly signed by Dietary and Kitchen Supervisor Senn
states on June 30 Mariano ‘‘was paged twice and took her
time getting there.’’ Attached to the notice is a note purport-
edly signed by Senn stating Senn had gone to station 2 for
information about a new resident, Sorrentino, that the resi-
dent’s son told Senn there was no one there to help his
mother go to the toilet, Senn asked someone to page for
Mariano, Mariano was paged twice, CNA Kumar Biro of-
fered to assist the patient but his offer was refused by the
patient because she wanted a female CNA to help her, Senn
observed Mariano walking toward the patient’s room ‘‘very
slowly,’’ and the patient’s son was very upset saying he
could crawl faster than Mariano could walk.
Senn, who is still employed by Respondent, was not called
by Respondent to testify about the preparation of the above
disciplinary notice and attachment or about the events of
June 30 set forth in the attachment. Mariano credibly testi-
fied that on June 30 when she approached patient Sorren-
tino’s room that Senn was not in the area. Also, according
to Meagher’s above testimony, at the July 1 department head
meeting that Senn, as one of Respondent’s department heads,
presumably attended, it was Social Service Director Boyle,
not Senn, who supplied the information about Mariano’s al-
leged improper conduct. Meagher did not explain why it was
Senn, rather than Boyle, who prepared a disciplinary notice
for Mariano’s personnel file. Nor did Meagher testify how
the disciplinary notice came to be placed in Mariano’s per-
sonnel file and her testimony that it was in the file on July
1 is uncorroborated. In view of her poor testimonial de-
meanor and the aforesaid considerations, I have serious
doubts that this document existed on July 1 or, as stated in
the attachment to the notice, that Senn was actually present
at patient Sorrentino’s room when the events material to this
case occurred.
Van Baren’s testimony
Van Baren testified that during the morning of July 1,
while visiting her husband at Kaiser Hospital, she spoke to
Meagher, by telephone, who informed her there had been a
problem involving Mariano the previous day on the p.m.
shift, that Meagher read to Van Baren what P.M. Shift Su-
pervisor Suitos had stated in her June 30 counseling report
and told Van Baren that Dietary and Kitchen Supervisor
Senn had been present when the incident occurred. Van
Baren testified she responded by instructing Meagher to
speak to both Suitos and Senn and to review Mariano’s per-
sonnel file and after she had gotten all of the above informa-
tion to contact Van Baren and they would discuss the matter
further.
Van Baren testified that later on July 1, she spoke a sec-
ond time to Meagher, by telephone from Kaiser Hospital, at
which time Meagher told her she had been unable to speak
to Suitos, reviewed the contents of Mariano’s personnel file
with Van Baren, again read to Van Baren Suitos’ June 30
counseling report and reported what Dietary Supervisor Senn
had reported.25 This conversation ended, according to Van
Baren, with Van Baren informing Meagher that Van Baren
was ‘‘leaning towards’’ terminating Mariano, but Meagher
should interview Mariano and at that time Meagher should
make the final decision whether or not to terminate Mariano
based on Mariano’s ‘‘attitude’’ (Tr. 95). Van Baren later in-
consistently testified, however, that as a result of the infor-
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 That the decision to terminate Mariano was a final decision and
not a tentative decision is made abundantly clear by Meagher’s ad-
mission that immediately after the July 1 meeting between herself
and Van Baren, Meagher removed Mariano’s timecard from the
timecard rack and had Mariano’s final paycheck drawn up and made
ready. Moreover, Van Baren’s testimony that she instructed Meagher
to make the final decision concerning Mariano’s termination based
on what Mariano said during Meagher’s interview of her is not only
contradicted by Meagher’s testimony, but is also contradicted by
what Van Baren stated in the affidavit she submitted to the Board
during the Board’s investigation of this case. In her affidavit there
is no mention of this instruction. Quite the opposite, the affidavit,
in pertinent part, states: ‘‘On about July 1, I decided that [Mariano]
be terminated due to her actions on June 30. . . . I evaluated the
information [referring to the information communicated from
Meagher to Van Baren on July 1], made my decision and told
Meagher, by phone, to carry it out.’’
mation she received from Meagher in this second telephone
conversation, Van Baren decided at that time to terminate
Mariano, unless during Meagher’s interview of Mariano, that
Mariano could satisfactorily justify her June 30 conduct.
When asked what Mariano had done on June 30, Van
Baren testified that Van Baren had been told, presumably
during her conversations with Meagher, that Mariano had en-
gaged in the following conduct: ‘‘Ms. Mariano was assigned
to the Medicare Unit. She was off the Unit without permis-
sion. She did not respond to a patient needing assistance.
And when asked to respond, she argued about it in front of
the patient and the patient’s family.’’ (Tr. 90).
Van Baren also testified she had a third telephone con-
versation on July 1 about Mariano with Meagher, during
which Meagher reported what had occurred during Mea-
gher’s July 1 interview with Mariano. Van Baren testified
Meagher told her that when Meagher started to speak to
Mariano that Mariano became very abusive and screamed
and yelled at Meagher and that it was because of this con-
duct that Meagher just went ahead with the termination.
I reject in its entirety Van Baren’s and Meagher’s above
testimony concerning the reasons for Respondent’s decision
to discharge Mariano and their conversations that led up to
the decision. I was persuaded to reject their testimony and
to conclude that the reasons they advanced to justify
Mariano’s discharge were false and pretextual, by these con-
siderations: Van Baren’s and Meagher’s poor testimonial de-
meanor; the inconsistencies, contradictions, and improbabil-
ities in their testimony; their failure to follow Respondent’s
progressive disciplinary procedure; the reasons they advanced
at the hearing for Mariano’s discharge differed significantly
from the reasons that Meagher gave to Mariano when she
notified Mariano of her discharge; and, they rushed to dis-
charge Mariano without even speaking to Mariano or to
Mariano’s immediate supervisor, who had not recommended
that Mariano be disciplined for the incident that supposedly
triggered her discharge.
Van Baren’s and Meagher’s testimonial demeanor—the
way they spoke, the tone of their voices, and the way they
looked and acted while testifying about Mariano’s dis-
charge—led me to conclude they were not interested in truth-
fully recalling the events they were testifying about, but were
interested only in tailoring their testimony to suit Respond-
ent’s case.
Van Baren and Meagher contradicted each other in the fol-
lowing significant respects: Van Baren testified the decision
to discharge Mariano was made during a telephone conversa-
tion between herself and Meagher, whereas Meagher testified
it was made during a meeting between Meagher and Van
Baren in Van Baren’s office, where presumably Van Baren
had the opportunity to review the contents of Mariano’s per-
sonnel file; Meagher testified that during this meeting in Van
Baren’s office, Van Baren and Meagher jointly decided to
discharge Mariano, whereas Van Baren testified the decision
was made solely by Van Baren and it was only a tentative
decision subject to being changed by Meagher depending on
the outcome of Meagher’s interview with Mariano;26 Van
Baren testified Meagher told her that Meagher had gone
ahead with Mariano’s termination because when Meagher, on
July 1, started to speak with Mariano, that Mariano became
very abusive and screamed and yelled at Meagher, whereas
Meagher testified Mariano lost her composure and became
abusive only after Meagher had told Mariano that Meagher
and Van Baren had decided to terminate her after reviewing
her personnel file; and, in deciding to terminate Mariano,
Van Baren testified she relied in part on Meagher’s statement
that Mariano’s personnel file showed she had recently
thrown a glass at a coworker, whereas the record shows the
information contained in the March 4 counseling report
issued by Supervisor Suitos, which information Meagher tes-
tified she communicated to Van Baren, does not expressly or
by implication indicate Meagher had thrown a glass at a co-
worker, but merely states Mariano ‘‘broke a glass at station
3 in anger.’’
Neither Van Baren nor Meagher explained why, on July
1, when Meagher notified Mariano of her termination, she
gave Mariano a substantially different reason for the dis-
charge than was advanced by Van Baren and Meagher during
the hearing. As described supra, on July 1, Meagher, in writ-
ing, notified Mariano that Respondent’s decision to discharge
her was motivated in significant part by the fact that
‘‘Mariano has had three separate incidents involving Resi-
dent neglect, dated 8–13–86, 2–3–88, and 6–30–92.’’ In tes-
tifying about the reason for Respondent’s decision to dis-
charge Mariano, however, neither Van Baren nor Meagher
mentioned the alleged August 13, 1986, or February 3, 1988
incidents of resident neglect attributed to Mariano in the no-
tice of termination. Respondent offered no explanation why
these allegations were relied on in Mariano’s termination no-
tice, but were not mentioned by either Van Baren or
Meagher when they testified about the reason for Mariano’s
termination. The reason for Respondent’s failure to offer an
explanation for this significant omission in Meagher’s and
Van Baren’s testimony is that, as I have found supra, the
1986 and 1988 allegations of resident neglect attributed to
Mariano in her termination notice never took place and Re-
spondent had no reason to believe they took place.
In terminating Mariano, Van Baren and Meagher failed to
follow Respondent’s usual progressive disciplinary proce-
dure. As I have found supra, it is undisputed that in dis-
ciplining employees Respondent usually follows a system of
progressive discipline; first the employee is counseled and
only if the employee continues to engage in the misconduct
is the employee then issued a written disciplinary notice, and
if that does not put a stop to the misconduct, the employee
is either suspended or terminated. It is also undisputed, as I
have found supra, that a counseling report in an employee’s
555CASA SAN MIGUEL
27 On July 1 between 9 and 10 a.m. Van Baren first learned about
the June 30 misconduct attributed to Mariano, and it was during the
lunch hour that the decision was made to discharge Mariano.
personnel file is not a form of discipline, but is used to alert
the employee there is a problem and not to let it happen
again. It is only after an employee is issued a counseling re-
port and repeats the misconduct that the employee is dis-
ciplined. In the instant case, the information in Mariano’s
personnel file from Mariano’s immediate supervisor, Suitos,
which supposedly triggered Respondent’s decision to dis-
charge her, and the other information in the file from
Mariano’s previous immediate supervisors, which supposedly
contributed to that decision, consisted solely of ‘‘Employee
Counseling Reports’’ none which recommended she be dis-
ciplined. Thus, it is clear Respondent failed to follow its
usual progressive disciplinary procedure in discharging
Mariano.
To explain why Respondent failed to follow its usual sys-
tem of progressive discipline in discharging Mariano, Van
Baren testified that in issuing an employee counseling report
for Mariano’s June 30 conduct, Supervisor Suitos used the
wrong form, that Suitos should have used an employee dis-
ciplinary notice (Tr. 92–93). Later, in response to counsel’s
leading question, Van Baren now testified that supervisors
used ‘‘Employee Counseling Reports’’ and ‘‘Employee Dis-
ciplinary Notice’’ forms interchangeably (Tr. 1500), con-
tradicting her earlier testimony that Suitos on June 30 had
apparently inadvertently used the wrong form in writing up
Mariano. These forms on their face, however, clearly indicate
they were not meant to be used interchangeably, and other
than Van Baren’s conclusionary testimony to that effect,
there is no evidence whatsoever that they are used inter-
changeably. Quite the opposite, what the supervisors wrote
on the counseling reports contained in Mariano’s personnel
file clearly show they were intended to counsel rather than
discipline Mariano.
Meagher did not testify that Suitos had apparently used the
wrong form in reporting Mariano’s June 30 conduct or that
Respondent’s supervisors used the employee counseling re-
port and employee disciplinary notice forms interchangeably.
Instead, she testified in effect that the reason Mariano’s su-
pervisors, in writing up Mariano, used employee counseling
report forms, rather than employee disciplinary notice forms,
was that ‘‘a lot of times we ran out of disciplinary notices,
that’s why we had to use these.’’ But, when asked if she was
testifying that it was because Respondent had run out of dis-
ciplinary notice forms that Mariano’s supervisors had placed
employee counseling report forms rather than employee dis-
ciplinary notice forms in Mariano’s personnel file, Meagher
testified, ‘‘I can’t answer that. I’m not Eva Suitos. I did not
write that report.’’ There is no evidence whatsoever that any
of Mariano’s supervisors intended to recommend that
Mariano be disciplined for the conduct set forth in the three
counseling reports found in Mariano’s personnel file or used
counseling reports only because there were no more discipli-
nary notice forms available. Quite the opposite, what the su-
pervisors wrote on those reports clearly show they intended
to counsel rather than recommend Mariano be disciplined.
In discharging Mariano, Van Baren and Meagher failed to
follow Respondent’s usual practice of giving employees ac-
cused of engaging in misconduct an opportunity to present
their side of the story before deciding to discipline them. As
I have found supra, it is Respondent’s practice that before
Van Baren decides to discipline an employee based on a su-
pervisor’s allegations of misconduct, that Van Baren con-
ducts an independent investigation that includes speaking to
the accused employee and to other individuals, including
members of supervision, who might shed light on the situa-
tion. In Mariano’s case, as I have found supra, Respondent
did not give Mariano an opportunity to give her side of the
story before deciding to discharge her.
Meagher testified her reason for not speaking to Mariano
in order to give her an opportunity to explain what occurred
on June 30, before discharging her, was Meagher was unable
to contact Mariano. Meagher testified that during the morn-
ing of July 1 she telephoned Mariano’s home, was told by
the person who answered the telephone that Mariano was not
at home, so Meagher left a message that she wanted to speak
to Mariano. When asked if her effort to reach Mariano was
to instruct her not to come to work that day, rather than for
the purpose of asking her about the events of June 30,
Meagher evasively testified, ‘‘I really don’t know what I was
going to say, but I wanted to talk to her.’’
Even assuming Meagher testified truthfully when she testi-
fied she made an effort to reach Mariano by telephone on
the morning of July 1, it should not have surprised Meagher
that Mariano would not be home during late morning, since
Mariano was employed on the p.m. shift and had worked on
June 30 from 2:45 p.m. to approximately 11 p.m. Neither
Van Baren nor Meagher testified why it was necessary for
Respondent to act in such a hurry to decide what, if any, dis-
cipline to impose on Mariano for the June 30 conduct that
had been attributed to her. There is no apparent business rea-
son why the matter involved was so pressing that Respond-
ent could not have waited for another 3 hours to speak with
Mariano when she arrived for work about the misconduct at-
tributed to her before deciding whether or not to discipline
her. Yet, Respondent was in such a rush to discharge
Mariano that it did so even before it had an opportunity to
speak to Mariano’s immediately supervisor, Suitos, who had
written the counseling report that triggered Respondent’s de-
cision to fire Mariano. Moreover, there are certain unusual
circumstances that existed on July 1 that should have com-
pelled Van Baren to take more than the approximately 3
hours it took for her to reach her decision to discharge
Mariano.27 Thus, as described supra, during the week of July
1 Van Baren was present at Respondent’s facility for only
short periods of time to deal only with those matters that
needed her immediate attention, because she was spending
virtually all of her time away from the facility with her hus-
band who had recently undergone major surgery. Despite
these circumstances, which strongly suggests that Van Baren
would normally have acted slower than usual in deciding
Mariano’s fate, Van Baren within the space of only 3 hours
decided to fire Mariano and did so without even speaking to
Mariano or Mariano’s immediate supervisor, who had not
even recommended she be disciplined.
Based on all of the factors set forth above, I reject the tes-
timony of Van Baren and Meagher concerning Respondent’s
reasons for discharging Mariano and concerning their con-
versations that led up to Respondent’s decision to discharge
Mariano. Also, because of the same factors, I find the record
establishes that Respondent’s reasons advanced for Mariano’s
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
termination are completely without substance and are
pretextual in nature.
b. Discussion
On July 1, when she was discharged, Mariano had been
employed by Respondent as a CNA for almost 7 years. On
June 30, while performing her normal work routine, Mariano
was in the facility’s main dining room during the patient’s
dinner hour attending to her patients, when P.M. Shift Super-
visor Suitos approached her and stated she had been looking
for Mariano because one of Mariano’s patients, Sorrentino,
needed her assistance and Mariano had been paged a couple
of times over the facility’s public address system to go to
that patient. Mariano responded by explaining to Suitos she
had not heard the page and by immediately going to
Sorrentino’s room. Present in Sorrentino’s room was Kumar
Biro, another CNA employed on the p.m. shift who was as-
signed to the same station as Mariano. This CNA, who was
a man, informed Mariano when she entered Sorrentino’s
room that the patient’s son had stopped him from assisting
Sorrentino because he said his mother wanted a female CNA
to assist her to go to the bathroom. Later, near the end of
the shift, at approximately 11 p.m., Suitos spoke to Mariano
about her failure to promptly assist Sorrentino and prepared
an employee counseling report for Mariano’s personnel file.
This report dated June 30, signed by Suitos, states in sub-
stance that on June 30 Suitos had counseled Mariano because
Mariano, who was assigned to care for the Medicare patients,
left her station with no one there to answer her patients’ call
lights and failed to answer a page over the public address
system to assist patient Sorrentino. The report further states
Mariano explained to Suitos she had not heard the page.
Suitos ended the report by writing that Mariano should be
more alert and receptive to patients’ needs and to answer pa-
tients’ call lights on time. The report did not recommend that
Mariano be disciplined and, as found supra, a counseling re-
port such as this one, is not considered to be a form of dis-
cipline, but is used by supervision to alert the employee there
is a problem and for the employee not to let it happen again.
Nevertheless, the above incident supposedly triggered Re-
spondent’s abrupt decision to discharge Mariano the next day
before she began work.
The General Counsel contends Respondent’s reliance on
the June 30 incident to trigger its decision to discharge
Mariano was pretextual in nature, that the whole record es-
tablishes the real reason for Respondent’s decision was
Mariano’s union sympathy and activity, and in view of this
Respondent’s discharge of Mariano was unlawful as alleged
in the complaint. Respondent argues the General Counsel has
failed to make a prima facie showing that Mariano’s union
sympathies and activity was a motivating factor in Respond-
ent’s decision to discharge her, because there is a lack of
evidence to establish Respondent’s knowledge of Mariano’s
union sympathy and activity. I am persuaded, for the reasons
below, that the whole record establishes Respondent was
aware of Mariano’s prounion sympathy and activity and dis-
charged her for that reason in violation of the Act.
Mariano was one of the more active union adherents em-
ployed on the p.m. shift. The Union’s organization campaign,
insofar as it involved the p.m. shift’s employees commenced
on May 23 when Union Representative Griffith met at the
home of employee Guzman, Mariano’s sister, with between
10 and 15 of the p.m. shift’s employees, including Mariano.
Prior to this it was Mariano and Guzman who laid the
ground work for this organizational meeting, when, on ap-
proximately May 9, they met with Griffith at Guzman’s
home. In connection with the May 23 organizational meeting
held at Guzman’s home, Mariano solicited several of the
p.m. shift’s employees to attend the meeting.
Respondent knew the Union was engaged in an organiza-
tional campaign and that a significant number of its p.m.
shift’s Filipino employees were union adherents. On July 6,
when Supervisor Bagley began to work for Respondent as its
P.M. Shift Supervisor, she was told by Nursing Director Van
Baren and Assistant Nursing Director Meagher that the p.m.
shift’s Filipino employees, who the record reveals constituted
a majority of the employees on that shift, were ‘‘trouble-
makers’’ who wanted to start a union. Mariano was one of
the p.m. shift’s Filipino employees.
Respondent was attempting to learn the names of the p.m.
shift’s employees who were union adherents. In July, shortly
after she was hired by Respondent, P.M. Shift Supervisor
Bagley was instructed by Meagher to report to management
the names of the employees she overheard either discussing
the Union, or posting union literature, or wearing union but-
tons, and, during the latter part of July, in violation of Sec-
tion 8(a)(1) of the Act, Respondent solicited p.m. shift em-
ployees Mejia and Ignacio to spy for Respondent on their co-
workers’ union activity.
I am persuaded that July 6 was not when Respondent first
learned of the Union’s organizational campaign and the in-
volvement of the p.m. shift’s employees, but knew about this
prior to Bagley’s July 6 employment, by at least late June,
and on July 6 was merely informing the newly hired Bagley
what it already knew. I am also persuaded it is reasonable
to infer that when Respondent first learned of the Union’s or-
ganizational campaign and the involvement of the p.m. shift,
it took steps to identify which of the employees were union
adherents, and did not wait to do this until Bagley’s employ-
ment or until later in July when it informed Bagley it had
been using p.m. shift employees Mejia and Ignacio for this
purpose.
Respondent was extremely hostile toward employees who
were union adherents. This hostility is revealed by the fol-
lowing: on July 6, when P.M. Shift Supervisor Bagley began
work for Respondent, Van Baren and Meagher told her that
the Filipino employees employed on the p.m. shift were
‘‘Troublemakers’’ who wanted to start a union; later during
July, Meagher told Bagley that if the Union’s organizational
campaign succeeded that Respondent would ‘‘get rid of the
problem’’ by terminating all of the employees, a none-too-
subtle threat to terminate the employees because of their
union activity; and, when Bagley refused to comply with
Meagher’s request that she commit unfair labor practices
against the employees employed on the p.m. shift, Respond-
ent, in violation of Section 8(a)(1) of the Act, discharged
Bagley for her refusal.
Respondent’s decision to discharge Mariano was made in
unexplainable haste. On July 1 between 9 and 10 a.m., Re-
spondent’s Director of Nurses Van Baren first learned of the
June 30 incident, which supposedly resulted in Mariano’s
discharge, and reached her decision to discharge Mariano not
more than 3 hours later, even though due to the illness of
her husband Van Baren was only present at Respondent’s fa-
557CASA SAN MIGUEL
28 It is settled law that the same body of circumstantial evidence
may constitute proof both that an employer knew about an employ-
ee’s protected activity and that it took adverse action against the em-
ployee for unlawful reasons. Abbey’s Transportation Services, 284
NLRB 698 (1987), enfd. 837 F.2d 575 (2d Cir. 1988); Long Island
Limousine Service Corp., 468 F.2d 292, 295 (2d Cir. 1972).
cility for short periods of time and then only to deal with
those mattes that needed immediate attention. There is no
suggestion in the record that the matter of Mariano’s dis-
cipline was of such a nature that it needed Van Baren’s im-
mediate attention or that it needed to be decided in a matter
of only 3 hours.
In discharging Mariano, Respondent did not follow its
usual progressive system of discipline. The information in
Mariano’s personnel file from Mariano’s immediate super-
visor, Suitos, which supposedly triggered Respondent’s deci-
sion to discharge Mariano, as well as the other information
in the file from Mariano’s previous supervisors, which sup-
posedly contributed to that decision, consisted solely of
‘‘Employee Counseling Reports,’’ none of which recom-
mended that Mariano be disciplined. In view of these cir-
cumstances, it is undisputed that Respondent failed to follow
its usual system of progressive discipline in its rush to dis-
charge Mariano.
In discharging Mariano Respondent did not follow its
usual practice of conducting an investigation which, among
other things, would ascertain Mariano’s and Supervisor
Suitos’ version of the pertinent events of June 30 that sup-
posedly led to Mariano’s discharge. It is Respondent’s usual
practice before deciding to discharge an employee, based on
a supervisor’s allegation of misconduct, to conduct an inde-
pendent investigation, which includes speaking to both the
accused employee and the supervisor. Here Van Baren and
Meagher were in such a rush to discharge Mariano that they
did not speak to either Mariano or Suitos before deciding to
discharge her. The conduct of Van Baren and Meagher in de-
ciding to discharge Mariano without first even speaking with
Mariano and Suitos is even more remarkable considering that
Suitos’ ‘‘Employee Counseling Report,’’ which supposedly
strongly influenced Respondent’s decision to discharge
Mariano, did not even recommend that Mariano be dis-
ciplined for what had occurred on June 30.
Respondent advanced significantly different reasons for
Mariano’s discharge at different times and has now aban-
doned one of the more significant reasons included in
Mariano’s written notice of termination. On July 1, when
Meagher notified Mariano of her termination, she gave
Mariano a termination slip that informed Mariano that Re-
spondent’s decision to discharge her was motivated in sig-
nificant part by the fact that ‘‘Mariano has had three separate
incidents involving Resident neglect, dating 8–13–86, 2–3–
88, and 6–30–92.’’ When they testified about the reasons for
Respondent’s decision to discharge Mariano, however, nei-
ther Van Baren nor Meagher mentioned the alleged August
13, 1986, or the February 3, 1988 incidents of ‘‘resident ne-
glect’’ attributed to Mariano in the notice of termination.
They testified that the information in Mariano’s personnel
file that resulted in Respondent’s decision to terminate her
consisted of those documents that showed that on March 4,
1992, Mariano had broken a glass in anger, on April 5, 1992,
had spoken a language other than English while on duty, and
on June 30 had neglected one of her patients.
As discussed at great length supra, all of Respondent’s
reasons for discharging Mariano, those set forth in
Mariano’s written notice of termination as well as those ad-
vanced during the hearing, are either completely without
substance or pretextual in nature.
Respondent’s knowledge of the Union’s organizational
campaign and the p.m. shift employees’ support of the cam-
paign; Respondent’s efforts to learn the identify of the p.m.
shift employees who were union adherents; Respondent’s
evident union animus; Respondent’s haste in deciding to dis-
charge Mariano; Respondent’s failure to follow its usual sys-
tem of progressive discipline when it decided to discharge
Mariano; Respondent’s failure to interview either Mariano or
Supervisor Suitos before deciding to discharge her, in dero-
gation of the way it usually investigates matters involving
employees’ discipline; Respondent advanced different rea-
sons at different times for Mariano’s discharge, and has now
abandoned one of the major reasons it initially advanced for
her termination; and, all of the reasons advanced by Re-
spondent for Mariano’s discharge are either completely with-
out substance or pretextual in nature; when considered in
their totality the aforesaid factors are sufficient to create the
inference that Respondent was aware of Mariano’s union
sympathies and activity and discharged her for that reason.28
I, therefore, conclude that the General Counsel has estab-
lished by a preponderance of the evidence that Respondent’s
animus toward Mariano because of her prounion sentiments
and activity was a motivating factor for Respondent’s deci-
sion to discharge her.
The Respondent does not assert any business reason, other
than the ones that I have found to be without substance and
pretextual, for discharging Mariano even if she had not been
a union adherent. I, therefore, find that Respondent’s dis-
charge of Mariano on July 1, 1992, violated Section 8(a)(1)
and (3) of the Act.
As set forth infra, to remedy Mariano’s unlawful discharge
I have recommended the usual remedy of reinstatement and
backpay. Respondent does not content that Mariano forfeited
her right to reinstatement and backpay by virtue of her
postdischarge conduct; her attempt to punch Meagher in the
face. Nevertheless, because it involves the appropriateness of
the Board’s remedy in this case, I have considered this issue
and find that under all the circumstances, Mariano’s at-
tempted physical assault did not rise to the level of conduct
so flagrant as to require forfeiture of reinstatement and back-
pay.
In so concluding, I considered that only after Mariano had
unsuccessfully begged Meagher to rescind her discharge and
had become so distressed that she started to cry and obvi-
ously did not realize what she was doing, that Mariano at-
tempted to punch Meagher in the face. Thus, Mariano’s at-
tempt to physically assault Meagher was neither deliberate
nor premeditated, but was a spontaneous response to her un-
lawful discharge and, was clearly provoked by it. In other
words, what occurred here is that a normal nonviolent person
was goaded into momentary intemperance by the wrong al-
ready done to her. These circumstances, when considered in
the light of the applicable Board law that I am obliged to
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 It appears if Mariano had succeeded in striking Meagher in the
face, Mariano would have forfeited her right to reinstatement and
backpay. Carthage Fabrics Corp., 101 NLRB 541, 553–555 (1952)
(discriminatee hits supervisor in face with fist at time of discharge);
see also Family Nursing Home & Rehabilitation Center, 295 NLRB
923 (1989) (forfeiture by discriminatee who physically tried to strike
her supervisor with bowling trophy, used profanity, and ripped tele-
phone from wall). Logic would appear to dictate that a
discriminatee’s unsuccessful attempt to physically assault a super-
visor should be treated in the same manner as a successful attempt
to physically assault a supervisor. The rationale of the Board’s deci-
sions in the cases cited hereinafter, however, as applied to the cir-
cumstances of this case, appear to dictate a different result.
30 Llever was not present at this meeting because she was taking
care of a patient.
31 Bagley testified her reason for advising the CNAs not tell any-
one else about what had occurred was to prevent any one of them
from being terminated.
32 As discussed infra, this was not the first time an employee’s
motor vehicle had been vandalized while parked in Respondent’s
parking lot.
follow,29 has persuaded me to recommend, albeit reluctantly,
the usual reinstatement and backpay remedy in Mariano’s
case. Blue Jeans Corp., 170 NLRB 1425 (1968) (no forfeit-
ure when emotionally distressed discriminatee chased and
threatened to kill a supervisor with scissors after discharge);
Burlington Industries, 144 NLRB 272, 282 (1963) (no for-
feiture when supervisor provoked brief physical contact);
and, Precision Window Mfg., 303 NLRB 946 (1991) (no for-
feiture where emotionally distressed discriminatee called su-
pervisor obscene names, challenged him to a fight, and
threatened to kill him after discharge), enforcement denied
on this point, 963 F.2d 1105 (8th Cir. 1992).
3. The July 22 discharges of Fe Calabiao, Estella
Abueg, and Ethel Tarrosa, and the July 22 suspensions
of Florencio Baldoza, Joanne Mejia, Lodring Ignacio,
and Irineo Llever
a. The evidence
What occurred July 21 on the p.m. shift
On July 21 the station 3 and 4 nurses at work on the p.m.
shift were as follows: station 3—Charge Nurse Calabiao and
CNAs Baldoza, Llever, Mejia, and Ignacio; station 4—
Charge Nurse Linda Leonard and four CNAs including
Tarrosa and Abueg. Abueg had been scheduled to work at
station 3 on July 21, but switched assignments with Ignacio,
who had been scheduled to work at station 4. Calabiao,
Baldoza, Llever, Mejia, Ignacio, Tarrosa, and Abueg are Fili-
pinos.
The CNAs are entitled to a 30-minute meal break. The
practice is for a station’s charge nurse to notify the station’s
CNAs at the start of the work shift, when they are scheduled
that night to take their meal break and to write this informa-
tion in the chart maintained at the station’s desk.
On July 21 Calabiao scheduled Mejia’s and Ignacio’s meal
break from 8 to 8:30 p.m. and Baldoza’s and Llever’s 8:30
to 9 p.m. Baldoza and Llever took their break, as scheduled,
and returned to their station at 9 p.m., as scheduled. Mejia
and Ignacio did not return to the station from their break at
8:30 p.m., as scheduled. Therefore, at 8:30 p.m. when
Baldoza and Llever went on break, there were no CNAs left
at station 3 to assist patients. Because station 3 covers such
a large area, when Baldoza and Llever left the station at 8:30
p.m. for their break they did not realize the other CNAs as-
signed to the station had failed to return from their break, but
when they went to the breakroom and found Mejia and
Ignacio there, they must have realized that all of the CNAs
assigned to station 3 were off duty.
Bagley, the P.M. Shift Supervisor, discovered there were
no CNAs at station 3, when the facility’s alarm system alert-
ed her that some of the station’s patients were leaving their
area without the knowledge of the nurses assigned to the sta-
tion. Bagley immediately went to station 3 and discovered
that neither Charge Nurse Calabiao nor any of the CNAs
were there. She unsuccessfully tried to locate Calabiao by
having her paged, going to the room of each station 3 pa-
tient, and going to the room where the employees take their
breaks. As she entered the breakroom Ignacio was just leav-
ing and the other three CNAs assigned to station 3 were
there. Bagley said nothing to them at this time, but continued
her search for Calabiao until she observed Calabiao walking
toward station 3 from the direction of station 4. Bagley con-
fronted Calabiao and told her that all of the CNAs assigned
to her station were on their meal break away from the station
at the same time, leaving the patients unattended. Calabiao
replied it was not her fault because she had scheduled them
to take their breaks at different times, Mejia and Ignacio at
8 p.m. and Baldoza and Llever at 8:30 p.m. Bagley ended
this conversation by stating she would return later during the
shift, after the patients’ visitors had left, to discuss the matter
further.
Calabiao after her conversation with Bagley searched for
Mejia and Ignacio and when she located them they were still
taking their break, even though it had ended. Calabiao asked
why they had not returned to work and they did not answer
her.
Later, during the shift, Bagley met with Calabiao, Ignacio,
Baldoza, and Mejia.30 She told them she realized they were
working under a great deal of stress, but that was no excuse
for abandoning the station. She told them this was a serious
violation of accepted nursing practice, but she would only
give them a serious verbal reprimand, rather than a written
reprimand, because a written reprimand would constitute
grounds for termination. Bagley asked them to promise her
they would never again abandon the work station as they had
done that evening. The group apologized and stated they
would not engage in that type of conduct again. Bagley re-
peated her promise not to issue them a written reprimand for
their conduct.
Later during the shift, Bagley returned to station 3 and
spoke again to some of the CNAs. She told them they should
think about what they had done and realize it was a serious
breach of nursing practice and cautioned them not to tell
anyone else about the matter.31
When Bagley left the facility at the end of her shift on
July 21, approximately 11:30 p.m., she discovered that her
motor vehicle, which had been parked in the facility’s adja-
cent parking lot, had been vandalized; a tire was slashed, the
antenna ripped off, and the windshield cracked.32 Bagley im-
mediately telephoned a towing service and also reported the
559CASA SAN MIGUEL
33 Whether Bagley arrived for work shortly before 2:45 p.m., as
Bagley testified, or at approximately 4 p.m., as Respondent claims,
is not material to the disposition of this case.
matter to the police, and, as a result, did not arrive home
until approximately 3 a.m.
Bagley’s July 22 conversations with Meagher
On July 22 at approximately 9:30 a.m. Bagley telephoned
Respondent’s facility and spoke to Assistant Nursing Direc-
tor Meagher. Consistent with her promise not to write the
employees up for their July 21 conduct and consistent with
her warning to the employees not to inform anyone else of
their conduct, Bagley in her conversation with Meagher, did
not inform Meagher that station 3’s patients the previous
evening, had been without the service of all of the CNAs as-
signed to that station for a significant period of time because
all of the CNAs had been taking their meal break. Bagley
did inform Meagher, however, that her motor vehicle had
been vandalized the previous evening while parked in the
Company’s parking lot and told Meagher that because of this
she would have to buy a new tire. Meagher told Bagley she
had already heard about the incident and believed it was
done by employees to retaliate against Bagley, and that
President M. Shenker had said he would pay for the tire.
Meagher also told Bagley not to worry about being late for
work that day. Bagley did not indicate she felt the employees
were responsible for the damage done to her motor vehicle.
In fact she did not believe the employees were responsible.
The aforesaid telephone conversation was the only telephone
conversation Bagley had with Respondent’s management that
day.
Later that day, when Bagley arrived for work, either short-
ly before her usual 2:45 p.m. starting time or at approxi-
mately 4 p.m., Meagher met her as she entered the facility.33
Meagher told Bagley she had learned about the abandonment
of station 3, stated that she would ‘‘take care of’’ that matter,
and asked if Bagley had written up the incident. Bagley re-
plied she had not written it up because she had promised the
employees she would not write them up. Meagher stated
Bagley ‘‘needed to write these people up’’ so Respondent
could ‘‘legally cover’’ itself and also informed Bagley that
Calabiao had already been discharged. In addition, Meagher
told Bagley that Meagher had prepared language for Bagley
to use for her writeups and handed Bagley, General Coun-
sel’s Exhibit 10, a document written by Meagher captioned
‘‘Fe Calabiao’’ that read:
On the date of 7–21–92 while working on station III
on the 3–11 p.m. shift Fe could not be located for 45
min. by the NSG supervisor. She also allowed CNA’s
to leave the station & go on break without the proper
CNA floor coverage. There were nine residents left in
bed (out of a total census of 36) who should have been
in chairs. She also displayed insubordination to the reg-
istered nursing supervisor.
Bagley again told Meagher she did not want to writeup the
employees because she promised only to verbally reprimand
them and pointed out to Meagher that the language Meagher
had prepared for Bagley to use for Calabiao’s writeup was
not correct insofar as it stated Calabiao had been insubordi-
nate to Bagley because, Bagley told Meagher, no one had
been insubordinate to her. Bagley also told Meagher she had
no knowledge of that part of Meagher’s prepared language
that stated, ‘‘[T]here were nine residents left in bed (out of
total census of 36) who should have been in chairs.’’
Meagher insisted that Bagley comply with her instructions to
writeup the employees for their conduct on July 21 and told
her that the writeups should be backdated to July 21 because,
Meagher explained, ‘‘[I]t had to be legal and done right and
put in their files.’’ Accordingly, on July 22 Bagley prepared
and signed employee disciplinary notices for Calabiao and
Mejia, which she dated as having been issued on July 21.
The notice prepared by Bagley for Calabiao’s personnel
file included the same language as found in the above-de-
scribed language that Meagher had told Bagley to use, plus
these additional comments: ‘‘This is not the first time these
situations have occurred—And previous talks re: these prob-
lems have been ignored—showing insubordination to the
nursing supervisor.’’ In the space reserved in the notice for
‘‘Action Taken’’ Bagley checked ‘‘written reprimand &
verbal.’’
The notice prepared by Bagley for Mejia’s personnel file
reads as follows:
On this date while assigned to station III on the 3–
11 p.m. shift— Knowingly left on a dinner break with
co-workers and left Stat.III without proper CNA cov-
erage. Her & her co-workers were fully aware of the
situation & were given several warnings regarding this
problem. Chose to ignore responsibilities & left for a
break all together anyway—Shows insubordination for
R.N. Nursing Supervisor—Warned of the seriousness of
this act & its consequences it could have to the facility.
The above findings concerning Bagley’s conversations
with Respondent’s management on July 22 about the events
of July 21 are based on Bagley’s testimony that conflicts
with the testimony of Respondent’s witness, Director of
Nurses Van Baren, whose testimony is corroborated in cer-
tain respects by Assistant Director of Nurses Meagher, Presi-
dent M. Shenker, Director of Staff Development Boeger, and
Administrator L. Shenker. Their testimony is summarized
and evaluated hereinafter.
Van Baren testified she arrived for work on July 22 at 7
a.m. and shortly thereafter received a telephone call from
Bagley who told her the following:the previous evening the
nurses assigned to station 3 abandoned the station for ap-
proximately 45 minutes, and she had been unable to located
Calabiao; Calabiao’s work performance had previously been
unsatisfactory; the CNAs assigned to station 3 were finally
located by Bagley in the breakroom taking an unauthorized
break; in the breakroom with the station 3 CNAs were CNAs
Abueg and Tarrosa, from another station, who were also tak-
ing an unauthorized break; Bagley instructed all of the CNAs
in the breakroom to return to their stations and they refused
to obey Bagley and laughed in Bagley’s face and questioned
her authority; this was not the first time Abueg and taken an
unauthorized break and been insubordinate to Bagley and
Abueg had also not gotten a patient out of bed for dinner
contrary to Bagley’s instruction; when Bagley left work that
night she discovered her motor vehicle had been vandalized,
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 Boeger testified the first time she learned about the abandon-
ment of station 3 was when, as she testified, sometime between 9:45
and 10:45 a.m. on July 22, Van Baren and President M. Shenker told
her this is what Bagley had reported.
35 Van Baren testified she was positive it was not until the night
of July 22 that Bagley left G.C. Exh. 7(g) (Mejia’s disciplinary no-
tice) because, since she did not possess G.C. Exh. 7(g) during the
morning of July 22 she had to prepare another disciplinary notice,
G.C. Exh. 7(f), concerning Mejia’s suspension.
which was parked in the facility’s parking lot; and, employ-
ees laughed at Bagley as they left the parking lot.
Van Baren also testified that Bagley after telling Van
Baren what had occurred on July 21, told Van Baren she
would not return to work unless the employees employed on
the p.m. shift were disciplined; she stated she would not
work with employees who had abandoned the station and had
refused to obey her instructions to return to work, because
she could not work with persons who behaved that way to-
ward her. Van Baren testified she responded to what Bagley
had told her by informing Bagley she intended to speak
about the matter to Administrator L. Shenker, assured Bagley
of management’s support, stated management did not want
her to quit, and while acknowledging there had previously
been problems between the p.m. shift’s employees and their
supervisor, told Bagley that management would work out
those problems with Bagley, and ended the conversation by
stating Van Baren would call Bagley back later that day to
discuss the matter further.
Van Baren testified that later the same morning, at ap-
proximately 9:30 a.m., while in the middle of the daily meet-
ing of department heads, she received a second telephone
call from Bagley and took the call while in the meeting room
in the presence of the several department heads. Among the
department heads who were present at that time were Presi-
dent M. Shenker, Assistant Nursing Director Meagher, Direc-
tor of Staff Development Boeger, Dietary Kitchen Supervisor
Senn, Housekeeping Maintenance Supervisor Lacuna, and
Shift Supervisor Thelma Smith.
Van Baren testified that when Bagley spoke to her on this
occasion, Bagley, who was crying, asked if Van Baren had
spoken to Administrator L. Shenker and stated she was at-
tempting to get her motor vehicle repaired and asked if Re-
spondent would pay for the damages, and Van Baren told her
she had not as yet spoken to Administrator L. Shenker, and
turned the telephone over to President M. Shenker.
President M. Shenker testified that during the July 22
meeting of department heads, Van Baren told him Bagley
was on the telephone and Shenker asked to speak to Bagley
after Van Baren had finished talking to her. He testified
Bagley told him about her motor vehicle being vandalized
and stated she did not believe she would come to work that
day because she was frightened. President M. Shenker testi-
fied he told Bagley Respondent would pay for all of the
damage done to her motor vehicle, not to be frightened, that
she was needed by Respondent as its P.M. Shift Supervisor,
that if she returned to work Respondent would give her as
much backup and help as possible, and testified Bagley
ended the conversation by stating she would report to work
that day, but would be unable to do so until 4 p.m.
Boeger testified that on July 22, at approximately 9:45
a.m., during the meeting of the department heads, Van Baren
received a telephone call and after talking on the telephone
for approximately 15 minutes turned it over to President M.
Shenker who continued to talk to whoever was on the tele-
phone. Boeger further testified that sometime within the next
hour she was informed by Van Baren and President M.
Shenker that Bagley had told them her car had been vandal-
ized the previous evening, that no one employed on the p.m.
shift had assisted her but had driven away laughing, and the
CNAs and the charge nurse had abandoned station 3 for 45
minutes.34
In the affidavit submitted by Van Baren to the Board dur-
ing the investigation of the charges in these cases, she stated,
in substance, that Bagley before leaving work on July 21 had
left in Van Baren’s office, the General Counsel’s Exhibit
7(g), the above-described employee disciplinary notice
Bagley prepared for Mejia’s personnel file, and General
Counsel’s Exhibit 7(h), the above-described employee dis-
ciplinary notice Bagley prepared for Calabiao’s personnel
file, and that Van Baren found the two disciplinary notices
in her office when she came to work at 7 a.m. on July 22
and, during the afternoon of July 22, Van Baren asked
Bagley to prepare additional employee disciplinary notices
for the personnel files of the other p.m. shift employees who,
on July 21, were absent from their work station and were un-
cooperative and insubordinate, but that Bagley never submit-
ted this requested written information to either Van Baren or
to anyone else from management.
Initially, when questioned at the hearing about the above-
described part of her affidavit, Van Baren testified it was all
correct except she did not remember whether General Coun-
sel’s Exhibits 7(g) and (h) were waiting for her in the office
on July 22 when she arrived at 7 a.m. for work or whether
Bagley gave them to her later that day. Subsequently, Van
Baren testified that during the morning of July 22 she had
in her possession General Counsel’s Exhibit 7(g) (the Mejia
disciplinary notice), but it was not until the afternoon of July
22 that she received from Bagley General Counsel’s Exhibit
7(h) (the Calabiao disciplinary notice). This is contrary to
Van Baren’s earlier testimony that she was positive it was
not until the night of July 22 that Bagley left General Coun-
sel’s Exhibit 7(g) in Van Baren’s office,35 and is contrary to
that part of Van Baren’s affidavit that states Respondent’s
decision to discharge Calabiao was based ‘‘primarily’’ on the
information contained in General Counsel’s Exhibit 7(h),
which Van Baren’s affidavit states was received by Van
Baren on her arrival at work at approximately 7 a.m. on the
morning of July 22.
President M. Shenker testified it was on July 22 at ap-
proximately 8:30 a.m. when he arrived for work that he
learned about the abandonment on July 21 of station 3 by
the p.m. shift’s employees. He testified Van Baren, in the
presence of Meagher, told him and Meagher that Bagley had
previously telephoned her and told her the p.m. shift had
abandoned station 3, that they could not be found for 45
minutes, and Bagley’s motor vehicle had been vandalized
and, according to President M. Shenker, Van Baren also told
him and Meagher she doubted whether Bagley would return
to work because Bagley had sounded frightened. President
M. Shenker further testified that Van Baren, while she was
speaking to them, was holding certain documents that Van
Baren told Shenker and Meagher were reports about the
561CASA SAN MIGUEL
36 Calabiao and Baldoza corroborated Bagley’s uncontroverted tes-
timony that on July 21 she promised Calabiao and the four CNAs
assigned to station 3 that her reprimand issued to them that evening
was meant to be only a verbal one and promised not to write them
up for their conduct, and cautioned them to keep their conduct to
themselves. I have considered that on July 21, at the conclusion of
the work shift, Bagley discovered her motor vehicle had been van-
dalized. There is no evidence, however, that Calabiao or the station
3 employees whom Bagley verbally reprimanded were responsible
for this. More significantly, there is no evidence that Bagley be-
lieved this to be the case and because of this reneged on her promise
to these employees.
above-described conduct that Bagley had slipped under Van
Baren’s office door before leaving work on July 21. Presi-
dent M. Shenker testified that while he did not read the re-
ports at that time, he discussed with Van Baren and Meagher
the possibility of discipline based on what had been reported
by Bagley, but no decision was reached at that time because
they had to attend the 9 a.m. daily meeting for department
heads.
Van Baren did not corroborate President M. Shenker’s tes-
timony about Van Baren’s 8:30 a.m. meeting with President
M. Shenker and Meagher concerning what she learned that
day from Bagley about the events of July 21. Nor was Presi-
dent M. Shenker’s testimony corroborated by Meagher, a
witness for Respondent, who was not questioned by Re-
spondent about this alleged meeting. Moreover, when asked,
‘‘[W]hen was the first time you heard on July 22 that there
had been problems the previous night,’’ Meagher did not
corroborate President M. Shenker’s testimony about the al-
leged 8:30 a.m. meeting between Meagher, President M.
Shenker, and Van Baren, but testified she first learned about
the problems of the previous night on the p.m. shift during
the 9 a.m. meeting of the department heads when Van Baren
stated that Bagley’s car had been vandalized and there ‘‘had
been a problem locating personnel on station 3.’’
Meagher was not questioned about Bagley’s testimony that
it was Meagher, not Van Baren, to whom Bagley spoke over
the telephone on July 22 at approximately 9:30 a.m. and did
not deny Bagley’s testimony. Meagher, however, did con-
tradict Bagley’s account of what occurred when Bagley re-
ported for work on July 22. Meagher testified that when
Bagley arrived for work on July 22 she ‘‘told me what hap-
pened. She said she just did not know how to write it up.
She said she had problems grammatically . . . constructing
grammatically correct statements,’’ and asked Meagher to
show her how to writeup what had occurred on the p.m. shift
on July 21 and, at this point, Meagher prepared General
Counsel’s Exhibit 10, the language for the disciplinary notice
concerning Calabiao’s conduct, and gave it to Bagley stating,
‘‘this is how I would write it.’’
Administrator L. Shenker, who was not present on July 22
at the 9 a.m. meeting of the facility’s department heads, testi-
fied when she arrived at the facility on July 22 at 10:15 a.m.
she met with President M. Shenker, Van Baren, and Meagher
at which time Van Baren, among other things, told Adminis-
trator L. Shenker Bagley had told her that the previous
evening Bagley’s car had been vandalized and station 3 had
been abandoned for 45 minutes. Administrator L. Shenker
further testified that in giving this information to her, Van
Baren also ‘‘referred to two written reports by Bagley.’’
Administrator L. Shenker also testified that later during
July 22, between 3:15 and 3:30 p.m., she met in her office
with Bagley, that this meeting was arranged by Nursing Di-
rector Van Baren, who, acting on Administrator L. Shenker’s
instruction, summoned Bagley to Shenker’s office. According
to Administrator L. Shenker what was stated during this
meeting, follows: Shenker asked Bagley to tell her what had
occurred during the previous evening; Bagley told her she
had been unable to find the CNAs and the charge nurse and
no one was present to assist her and when she paged for the
charge nurse no one answered; when she left work at the end
of the shift, she discovered her motor vehicle had been van-
dalized and the other employees left the parking lot without
aiding her; Shenker asked if during the evening of July 21
Bagley wrote ‘‘anybody up for anything,’’ explained to
Bagley Respondent needed the disciplinary notices she had
prepared ‘‘in order to make this Kosher’’ and so Respondent
had a completely clear picture of what occurred; Bagley re-
sponded by stating, ‘‘yes’’ she had prepared disciplinary no-
tices concerning the conduct she had described and these
written notices were in the purse she was carrying; Shenker
instructed her to give the disciplinary notices to Van Baren;
and, Bagley stated she would give them to Van Baren.
The principal reason I credited Bagley’s testimony con-
cerning the information she provided on July 22 to Respond-
ent’s management about the events of July 21 and who in
management she spoke to and what she said, is that Bagley’s
testimonial demeanor—the way she spoke, the tone of her
voice, and the way she looked and acted while testifying—
convinced me that she was a truthful and reliable witness,
whereas the poor testimonial demeanor of Van Baren,
Meagher, Boeger, and M. and L. Shenker the convinced me
they were tailoring their testimony about what occurred on
July 22 to suit Respondent’s case, regardless of what really
occurred. In addition, there are other factors, set forth herein-
after, which reinforce this conclusion.
It is not plausible that after promising Calabiao, Baldoza,
Mejia, Ignacio, and Llever that she would not write them up
for their July 21 conduct and after cautioning them not to tell
anyone else about their conduct because of its seriousness,
that the next morning Bagley would have informed Van
Baren of this conduct and issued an ultimatum to Van Baren
that unless Respondent terminated the employment of these
employees for leaving their work station unattended and for
being insubordinate to her, that Bagley would quit her job
with Respondent.36 Moreover, if Bagley had issued this ulti-
matum she most certainly would not have submitted to Van
Baren disciplinary notices concerning only Calabiao and
Mejia, and thereafter ignored Van Baren’s request that she
submit disciplinary notices for the other employees. If
Bagley, as Van Baren testified had told Van Baren that all
of the CNAs employed on station 3 plus CNAs Abueg and
Tarrosa had been in the breakroom at the same time taking
an unauthorized break, that when Bagley directed them to re-
turn to work they refused and laughed in her face and ques-
tioned her authority, and that unless these employees were
terminated she would quit her job, Bagley most certainly
would have promptly prepared disciplinary notices for each
one of these offenders, not for just Mejia and Calabiao.
As described above, when she testified about her receipt
of the disciplinary notices for Calabiao and Mejia prepared
by Bagley, Van Baren contradicted herself more than once
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 I note that Administrator L. Shenker also testified while she did
not take the time during the morning of July 22 to read the written
notices prepared by Bagley, which Van Baren mentioned Respondent
possessed, that sometime later that same day Shenker took the time
to look at these written reports.
and her testimony was contradicted by the affidavit she sub-
mitted to the Board during the investigation of these cases.
Meagher’s testimony concerning the reason she drafted the
language for Bagley to use in Calabiao’s disciplinary notice
was incredible. As described supra, when Bagley came to
work on July 22, according to Meagher, Bagley asked for
Meagher’s assistance in preparing Calabiao’s disciplinary no-
tice because she explained to Meagher that she ‘‘had prob-
lems grammatically . . . constructing grammatically correct
statements.’’ There is no evidence that prior to or subsequent
to this occasion Bagley, who had approximately 30 years’
experience as a registered nurse, ever sought the assistance
of Meagher or of any one else in preparing written reports
or that she otherwise had difficulty expressing herself in
writing. Moreover, Meagher’s testimony does not jibe with
the testimony of Van Baren that the disciplinary notice
Bagley prepared for Mejia was already in Van Baren’s pos-
session as early as 7 a.m. on the morning of July 22. If
Bagley was able to draft Mejia’s disciplinary notice without
going to Meagher for help with her grammar, why would she
need this kind of assistance for Calabiao’s discharge notice.
In finding General Counsel’s Exhibit 10 was drafted by
Meagher, without Bagley’s assistance, I considered that part
of the language contained therein is consistent with Bagley’s
testimony that on July 21 she was unable for approximately
45 minutes to locate Calabiao and during this period the
CNAs assigned to Calabiao’s station were away from the sta-
tion taking their break. I am convinced, however, Respondent
received this information from someone other than Bagley on
July 22 after it had already notified Calabiao she was dis-
charged. Perhaps Respondent received this information from
one of the other p.m. shift employees who observed Bagley
trying to locate Calabiao or from one of the several visitors
of patients who were present at station 3, when there were
no nurses available to assist patients and Bagley was search-
ing for Calabiao to remedy the situation. The conclusion that
Meagher did not receive the information contained in Gen-
eral Counsel’s Exhibit 10 from Bagley is bolstered by the
fact that the other language in the document could not have
originated with Bagley, who, contrary to what appears in
General Counsel’s Exhibit 10, credibly testified that Calabiao
was not insubordinate on July 21, but was cooperative and
respectful toward Bagley, as always. Bagley also credibly
testified she had no knowledge of the part of General Coun-
sel’s Exhibit 10 that alleges that Calabiao had allowed nine
residents to be left in their beds, who should have been in
chairs. The record reveals that Meagher included this latter
allegation, based on information given to her by Respond-
ent’s director of staff development, Boeger, who testified that
the previous evening at 5 p.m. she had visited the rooms of
each patient and observed that on station 3 that nine of the
residents were being fed their dinners while in bed, who
should have been taken to the facility’s dining room for din-
ner.
Department Heads Senn, Lacuna, Smith, and Meagher, al-
though present at the July 22 meeting of Respondent’s de-
partment heads were not called by Respondent to corroborate
the testimony of Van Baren that it was Van Baren, rather
than Meagher, who Bagley spoke to when she telephoned
Respondent’s facility at approximately 9:30 a.m. on July 22.
Senn, Lacuna, and Smith are still employed by Respondent,
and Meagher, although no longer employed by Respondent
testified on Respondent’s behalf about other matters and
when she testified gave me the impression she was more
than just friendly toward Respondent.
President M. Shenker’s above testimony that his July
22,8:30 a.m. meeting with Van Baren and Meagher was not
corroborated by either Meagher or Van Baren and, as I have
found supra, Meagher contradicted Shenker’s testimony by
testifying it was at the July 22, 9 a.m. meeting of Respond-
ent’s department heads that Meagher first learned about the
problems experienced with the p.m. shift on July 21.
Administrator L. Shenker’s testimony that when she ar-
rived at the facility on July 22 at approximately 10:15 a.m.
and met with Van Baren, President M. Shenker and
Meagher, that Van Baren informed her she had reviewed two
written reports that she had received from Bagley concerning
the events of July 21, was not corroborated by either Presi-
dent M. Shenker, Van Baren, or Meagher and is contradicted
by the testimony of Van Baren that at this point in time Van
Baren only possessed one written report from Bagley, the
disciplinary notice prepared by Bagley for Mejia.
Administrator L. Shenker’s further testimony about her
meeting with Bagley on July 22 between 3:15 and 3:30 p.m.
is rejected for these reasons: that the meeting occurred is not
corroborated by the testimony of Van Baren, who supposedly
directed Bagley to meet at this time with Shenker, pursuant
to Shenker’s instruction, and is inconsistent with Van
Baren’s testimony that Bagley did not arrive for work until
4 p.m. on July 22; and, Shenker’s testimony concerning what
was said by herself and Bagley at this meeting about the em-
ployees’ disciplinary notices prepared by Bagley is not con-
sistent with Shenker’s prior testimony that earlier that day
Van Baren had informed Shenker Bagley had already fur-
nished Van Baren with two written disciplinary notices con-
cerning the events of July 21,37 and also does not square
with Van Baren’s testimony that General Counsel’s Exhibit
7(g), Mejia’s disciplinary notice prepared by Bagley, had
been left on July 21 at the facility by Bagley for Van Baren,
or with Meagher’s testimony that when Bagley arrived for
work at 4 p.m. on July 22 she told Meagher she did not
know how to writeup what occurred on July 21. Moreover,
it is undisputed that during the afternoon of July 22, Bagley
did not give Van Baren any written report or notices con-
cerning the events of July 21. I find it difficult to believe
that if Bagley told Administrator L. Shenker that she pos-
sessed such written materials in her purse and stated, in re-
sponse to Administrator L. Shenker’s instruction, that she
would give those materials to Van Baren, that she would not
have done so. It is for all of these reasons, besides the poor
testimonial demeanor of Administrator L. Shenker, that I re-
ject her uncorroborated testimony that she met with Bagley
during the afternoon of July 22. I find this meeting never oc-
curred and that it is another instance of testimony fabricated
by one of Respondent’s witnesses in an effort to support Re-
spondent’s case.
It is for the above reasons that I rejected Respondent wit-
nesses’ testimony concerning the information Bagley pro-
563CASA SAN MIGUEL
vided to Respondent’s management on July 22 about the
events of July 21 and who in management she communicated
this information to and what was said, and credited Bagley’s
testimony.
Respondent decides to discharge Calabiao, Abueg, and
Tarrosa, and to suspend Baldoza, Mejia, and Ignacio
President M. Shenker testified that immediately after the
receipt of Bagley’s 9:30 a.m. telephone call on July 22,
President M. Shenker, Van Baren, and Meagher went to
President M. Shenker’s office, where they discussed what
discipline should be imposed on the p.m. shift’s employees
for their July 21 misconduct.
Van Baren testified that at one point during this discussion
the consensus was that all seven of the employees involved
in the alleged misconduct should be discharge, but eventually
it was decided to discharge Calabiao, Abueg, and Tarrosa
and to suspend for 3 days Baldoza, Mejia, Ignacio, and
Llever. According to Van Baren, it was ‘‘jointly decided’’ by
Van Baren and President M. Shenker to suspend Baldoza,
Mejia, Ignacio and Llever, rather than discharge them, be-
cause in considering their ‘‘discipline records’’ it was con-
cluded these four ‘‘had relatively good performance
records.’’
When the testimony of President M. Shenker, Adminis-
trator L. Shenker, and Van Baren is considered as a whole,
it establishes that Respondent’s decision to discharge
Calabiao, Abueg, and Tarrosa, and to suspend Baldoza,
Mejia, Llever and Ignacio, occurred sometime between 9:30
and 10:15 a.m. According to Van Baren, when this decision
was reached the following occurred: Van Baren immediately
prepared the documents needed by Respondent’s payroll de-
partment to issue the final paychecks to the discharged em-
ployees; President M. Shenker stated he would inform the
discharged employees by telephone about their termination;
Respondent’s director of staff development, Boeger, was in-
structed by President M. Shenker to notify the suspended
employees by telephone of their suspension; and subse-
quently, later that day, Van Baren prepared the discipline no-
tices for the dischargees, and either Van Baren or Boeger
prepared the discipline notices for the suspended employees.
It is not part of President M. Shenker’s duties to become
involved in personnel matters, including matters involving
employee discipline, and he normally does not do so. He tes-
tified his role in the July 22 decision to discharge and sus-
pend the above-named employees was that he agreed to do
whatever Van Baren recommended.
Administrator L. Shenker did not arrive at the facility on
July 22 until 10:15 a.m. and according to the testimony of
Van Baren and President M. Shenker the decision to dis-
charge and suspend the above-named employees had been
reached and was already in the process of being implemented
by the time Administrator L. Shenker arrived.
Administrator L. Shenker testified that when she arrived at
the facility at 10:15 a.m. she was notified of the decision to
discharge three and suspend four employees and met imme-
diately with President M. Shenker, Van Baren, Meagher, and
Boeger, at which time the basis for the decision was ex-
plained to Administrator L. Shenker who, based on what she
was told, concurred in the decision. Administrator L. Shenker
further testified that although Calabiao had a ‘‘good record,
her expected higher level of responsibilities as a charge nurse
was the determining factor in the decision to discharge her’’
and testified that Tarrosa and Abueg were discharged ‘‘be-
cause of their work records’’ and the other four CNAs were
suspended, instead of discharged, ‘‘because of their relatively
good work records.’’
As I have found supra, it was not until Bagley arrived for
work on July 22, in the mid to late afternoon, that she spoke
to anyone from Respondent about the way the nurses under
her supervision had conducted themselves at work during the
previous work shift. I also rejected, supra, President M.
Shenker’s uncorroborated testimony that on July 22 at ap-
proximately 8:30 a.m. he met with Van Baren and Meagher
at which time they discussed what discipline to impose on
the p.m. shift employees for the way they had conducted
themselves at work during the previous work shift. There-
fore, accepting the above testimony of Van Baren and M.
and L. Shenker as a reliable indication of when, on July 22,
Respondent decided to discharge Calabiao, Abueg, and
Tarrosa, and to suspend Baldoza, Llever, Mejia, and Ignacio,
it is clear that Respondent made this decision in less than 1
hour, before Respondent spoke to any of the seven employ-
ees so as to give them an opportunity to explain what had
occurred, before Respondent had received any communica-
tion from the employees’ immediate Supervisor Bagley about
what had occurred, and before it ever received a rec-
ommendation from Bagley about what, if any, discipline to
impose on one or more of the employees. Since Respondent
normally investigates allegations of employee misconduct be-
fore deciding what, if any, discipline to impose, Respond-
ent’s rush to discipline the seven employees herein can only
be characterized as extraordinary conduct.
Calabiao’s discharge
On July 22 Calabiao had been employed by Respondent
since February 1, 1988, first as a CNA, and then since 1990
as a charge nurse who normally worked the p.m. shift.
During the period immediately before her July 22 dis-
charge Calabiao on several occasions talked with other p.m.
shift employees ‘‘about the Union,’’ when they met after
work in the parking lot adjacent to Respondent’s facility.
On July 22, at approximately noontime, Calabiao received
a telephone call at home from President M. Shenker. He told
her she had been discharged and should come to the facility
the next day to pick up her paycheck. Calabiao asked why
she had been discharged. President M. Shenker replied
Calabiao could not ‘‘control’’ her CNAs who, Shenker told
Calabiao, had vandalized a motor vehicle by flattening the
tire and breaking the windshield and this was the reason for
her discharge. Calabiao stated she did not know what
Shenker was talking about. Shenker repeated Calabiao had
been discharged and should come the next day for her pay-
check. This ended the conversation.
The above description of this conversation is based on
Calabiao’s testimony. President M. Shenker testified that
when the decision to discharge Calabiao was made on July
22, he immediately telephoned Calabiao and told her that
Van Baren and he had decided to discharge her ‘‘because of
the events of the night before’’; that her station had been
abandoned by the CNAs for 45 minutes. Calabiao, according
to President M. Shenker, replied she would like to speak per-
sonally to Shenker about the matter, and Shenker told her to
come to the facility to pick up her termination check from
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
38 The above description of what occurred on July 27 is based on
Calabiao’s undenied testimony.
the payroll department and after she had received her check
to come to his office, and Calabiao stated she would come
to the facility on July 23 at 10 a.m. President M. Shenker
did not testify that anyone was present when he telephoned
Calabiao or that he had asked anyone to witness the tele-
phone call. Respondent Director of Staff Development
Boeger testified, however, that on July 22 President M.
Shenker instructed her to accompany him to Boeger’s office
while he made telephone calls he wanted her to witness, and
further testified that at this time she was present when Presi-
dent M. Shenker telephoned Calabiao and that she heard
President M. Shenker tell Calabiao ‘‘she was terminated for
abandoning her station.’’ Boeger did not corroborate the re-
mainder of President M. Shenker’s testimony concerning this
conversation. I credited Calabiao’s testimony and rejected
President M. Shenker’s and Boeger’s because Calabiao’s tes-
timonial demeanor was better than President M. Shenker’s
and Boeger’s that was poor.
Later, on July 22, Calabiao telephoned Van Baren’s office
and was told Van Baren was too busy to speak to her and
the call was referred to Meagher. Calabiao asked Meagher if
she was scheduled to work that day. Meagher told her she
was not scheduled to work, that she should not come to work
anymore, and that Van Baren would return her call. Van
Baren did not return the call.
Calabiao did not go to Respondent’s facility on July 23 for
her paycheck, as instructed by President M. Shenker, but
went there on July 27, at which time she asked to speak with
Administrator L. Shenker and the two of them met in Ad-
ministrator L. Shenker’s office.
Calabiao began the meeting by asking for her ‘‘termi-
nation papers.’’ Administrator L. Shenker told her the ‘‘ter-
mination papers’’ had not been completed and would be
mailed to her. Administrator L. Shenker asked if Calabiao
knew the reason for her discharge. Calabiao answered that
President M. Shenker had told her she had been fired be-
cause the CNAs who she supervised had broken a motor ve-
hicle’s windshield and flattened its tire. Administrator L.
Shenker stated President M. Shenker could not have told her
that. Calabiao insisted this was what she had been told over
the telephone by President M. Shenker. Administrator L.
Shenker telephoned President M. Shenker and asked him to
come to the office and when he entered told him Calabiao
was claiming he had told her the reason she was discharged
was because of the flat tire and broken windshield. President
M. Shenker denied saying this to Calabiao and stated the rea-
son she was discharged was because of Bagley’s writeup.
Administrator L. Shenker at this point, reading from a docu-
ment she was holding, stated Calabiao had been absent from
her work station for 45 minutes. When Calabiao was asked
by the Shenkers about her alleged 45-minute absence from
the station, Calabiao denied having been absent from the sta-
tion as alleged, and stated she never left the station.38
On July 29 Calabiao wrote Respondent asking for the ter-
mination papers she had requested during the July 27 meet-
ing. Shortly thereafter, Calabiao received from Respondent,
by mail, a memo addressed to Respondent’s payroll depart-
ment signed by Administrator L. Shenker, dated July 27,
which stated that effective July 22, Calabiao and been ‘‘ter-
minated for not following job description of charge nurse.’’
As I have found supra, the testimony of President M.
Shenker, Administrator L. Shenker, and Nursing Director
Van Baren, is to the effect that sometime between 9:30 and
10:15 a.m. on July 22, President M. Shenker and Van Baren
jointly decided to discharge Calabiao. President M. Shenker
did not testify why he and Van Baren reached this decision,
but testified he merely followed Van Baren’s recommenda-
tion. Van Baren testified her decision to discharge Calabiao
was based entirely on the information she received from
P.M. Shift Supervisor Bagley when Bagley telephoned her
on July 22 shortly after 7 a.m. and again at 9:30 a.m. (Tr.
1627–1628). I have found, supra, that no such conversations
occurred and that the only information Respondent received
from Bagley as of the time President M. Shenker and Van
Baren jointly decided to discharge Calabiao was that
Bagley’s motor vehicle had been vandalized on July 21
while parked in Respondent’s parking lot. In communicating
this information to Assistant Director of Nurses Meagher, as
described supra, Bagley did not expressly or by implication
indicate it was the CNAs employed on the p.m. shift who
were responsible for the damage done to the motor vehicle
or that she believed this to be the case. Nor is there evidence
that Respondent had received information that reasonably led
it to believe that any one of the CNAs employed on the p.m.
shift under Calabiao’s supervision were responsible for dam-
aging Bagley’s motor vehicle. Thus, it is not surprising the
record reveals that none of the p.m. shift employees, in par-
ticular the four employed on Calabiao’s station, were ever
disciplined by Respondent for damaging Bagley’s motor ve-
hicle. In view of the aforesaid circumstances, I find that the
reason President M. Shenker gave to Calabiao on July 22 for
her discharge—that Calabiao’s CNAs had vandalized
Bagley’s motor vehicle that indicated Calabiao could not
‘‘control’’ her CNAs—was patently false.
In its posthearing brief Respondent states its reason for
discharging Calabiao was ‘‘she abandoned her station and al-
lowed CNAs to also abandon her station at the same time
on July 21.’’ As I have found supra, this was the reason that
Respondent belatedly gave to Calabiao on July 27, as the
justification for its July 22 decision to terminate her employ-
ment. This could not have been Respondent’s reason for dis-
charging Calabiao, however, because, as I have found supra,
at the time it decided to discharge Calabiao—sometime be-
tween 9:30 and 10:15 a.m. on July 22—Respondent had not
learned that Calabiao had been away from her work station
for a substantial period of time on July 21 and during at least
a part of that time none of the CNAs assigned to the station
had been there to attend to the patients.
Considering that the reason given to Calabiao for her dis-
charge was a patently false reason; considering that at a later
date Respondent belated advanced an entirely different rea-
son to justify Calabiao’s discharge; considering that the new
reason could not have been the basis for Respondent’s deci-
sion because when Respondent decided to discharge Calabiao
it had no knowledge of Calabiao’s alleged misconduct; con-
sidering Respondent’s extraordinary haste in reaching its de-
cision to discharge Calabiao; and, considering Respondent’s
unusual conduct in rushing to discharge Calabiao without
conducting any kind of an investigation, contrary to its usual
practice; I find that altogether these considerations establish
565CASA SAN MIGUEL
39 This description is based on Baldoza’s testimony. Boeger testi-
fied when she told Baldoza he had been suspended for abandoning
his station, Baldoza responded by stating he felt the suspension was
unfair, but did not explain why. I credited Baldoza’s testimony, rath-
er than Boeger’s, because Baldoza’s testimonial demeanor was good,
whereas Boeger’s was poor.
40 Van Baren testified that the July 22 joint decision by herself and
President M. Shenker to suspend Baldoza, Llever, Mejia, and
Ignacio was based solely on the information Van Baren had received
from Bagley.
that the reasons relied on by Respondent for discharging
Calabiao are either patently false or pretextual in nature and
not the real reasons for her discharge.
The suspensions of Baldoza, Llever, Mejia, and Ignacio
On July 21 Baldoza, Llever, Mejia, and Ignacio were em-
ployed by Respondent as CNAs on the p.m. shift.
As I have found supra, early in May employees employed
on the p.m. shift began discussing the possibility of having
the Union represent them. During May, June, and July, prior
to July 21, Baldoza and Llever were among the p.m. shift
employees who met on several occasions in the Company’s
parking lot to discuss the possibility of having the Union rep-
resent them. Mejia and Ignacio were also present at some of
those meetings. Also, while in the employees’ breakroom,
Baldoza spoke to other employees on several different occa-
sions about the possibility of having the Union represent
them. Baldoza and Llever were among the employees who
attended the Union’s May 23 organizational meeting for the
p.m. shift employees held at the home of p.m. shift employee
Guzman.
On July 21, as I have found supra, P.M. Shift Supervisor
Bagley discovered that all of the CNAs assigned to station
3 were in the employees’ breakroom at the same time, leav-
ing their patients without assistance or supervision. Bagley
verbally reprimanded them for this conduct, which she char-
acterized as a serious violation of nursing practice. Bagley
promised, however, not to issue them a written reprimand
because, she explained to them, if Respondent’s management
discovered what had occurred she feared it would constitute
grounds for their termination.
On July 22, in the morning, Respondent decided to sus-
pend Baldoza, Llever, Mejia, and Ignacio for 3 days for their
July 21 conduct. As I have found supra, this decision was
reached in less than 1 hour and before Respondent spoke to
any of the employees, so as to give them an opportunity to
explain what had occurred, and it was reached before Re-
spondent spoke to P.M. Shift Supervisor Bagley about the
events of July 21 and had gotten Bagley’s recommendation.
On the morning of July 22, Boeger, Respondent’s director
of staff development, pursuant to the instruction of President
M. Shenker, telephoned Baldoza and Llever at their homes
to inform them of their suspensions. She told them they had
been suspended from work for 3 days because they had
abandoned their station for 45 minutes.
Baldoza’s response to Boeger’s message was to ask
Boeger for permission to come to the facility to speak to
Boeger and give his side of the story. Boeger denied the re-
quest; she told Baldoza he could only come to the facility
after his 3 days’ suspension.39
Llever’s response to Boeger’s message was to deny he had
abandoned the station. He told Boeger it was Ignacio and
Mejia who had not returned to the station at the end of the
scheduled break period and that Charge Nurse Calabiao
would confirm what he was saying. Boeger replied that
Calabiao had been discharged.
According to the testimony of Administrator L. Shenker
and Nursing Director Van Baren, Respondent’s July 22 deci-
sion to suspend Baldoza, Llever, Mejia, and Ignacio was mo-
tivated by its belief that they had abandoned their work sta-
tion. For the reasons hereinafter, I am persuaded that the Re-
spondent’s alleged belief that Baldoza, Llever, Mejia, and
Ignacio had abandoned their work station on July 21 was not
the real reason for its decision to suspend them, but was used
by Respondent as a pretext to suspend them for some other
undisclosed reason.
As I have found supra, what took place on July 21 was
that Mejia and Ignacio abandoned their work station, when
they failed to return to work at the end of their scheduled
30-minute break period, whereas Baldoza and Llever did not
abandon their work station because they were only absent
from the station during the 30 minutes allowed to them for
their scheduled break period. The record also reveals, as I
have found supra, that when Respondent decided to suspend
Baldoza, Llever, Mejia, and Ignacio, it had no reasonable
basis for believing that any one of them had abandoned their
station, inasmuch as it was not until several hours after the
decision had been made and communicated to the employees
that Supervisor Bagley informed Respondent about the aban-
donment of the station.40 In addition, the July 22 decision to
suspend the four employees herein was made in an extraor-
dinary rush and the manner in which it was made was con-
trary to the way in which Respondent, during the normal
course of business, makes disciplinary decisions. As I have
found supra, the decision was made in less than an hour after
Respondent supposedly first learned of the alleged mis-
conduct, it was made before Respondent spoke to any of the
suspended employees about the misconduct attributed to
them, so they could have an opportunity to explain what had
occurred, and it was made before Respondent had even spo-
ken to Supervisor Bagley about the events of July 21 and re-
ceived Bagley’s recommendation. Since Respondent normally
conducts an investigation into employees’ alleged mis-
conduct, before deciding what, if any, discipline to impose,
Respondent’s unexplained rush to suspend the four employ-
ees herein constituted very unusual conduct.
In its unexplained rush to suspend the four employees, Re-
spondent failed to even take the few minutes it would have
taken to examine the employees’ timecards, which would
have shown when on July 21 the employees had punched out
and then back in for their mealtime break. The timecards
would have provided Respondent with persuasive evidence
on the question or whether or not these employees had aban-
doned their work station by taking their meal break at the
same time. Respondent offered no explanation for its failure
to look at the employees’ timecards. To the contrary, Admin-
istrator L. Shenker testified she was sure Respondent must
have conducted such an investigation before reaching its de-
cision to suspend the four employees because, as she testi-
fied, it would have been good policy to conduct such an in-
vestigation.
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 President M. Shenker’s testimony that when he spoke to Llever
and told him his suspension had been rescinded, he did not know
Llever’s name is unbelievable, especially since it is undisputed that,
as described above, less than an hour earlier, President M. Shenker,
with other members of Respondent’s management, met with Llever
in Boeger’s office.
42 Van Baren testified her review of the personnel files of Baldoza
and Ignacio uncovered no other ‘‘major’’ failings and that because
of this and the fact that President M. Shenker had rescinded Llever’s
suspension, she felt it only fair to rescind Baldoza’s and Ignacio’s
suspensions. According to Van Baren, her decision not to rescind
Mejia’s, suspension was based on the fact that her review of her per-
sonnel file revealed other ‘‘writeups’’ and that Mejia, was not an ex-
emplary employee.
On July 22 Llever went to Boeger’s office between 2 and
2:30 p.m., when, in the presence of the Shenkers, Van Baren,
Meagher, and Boeger, he asked why he had been suspended.
Administrator L. Shenker replied he had been suspended for
abandoning his station for 45 minutes. Llever denied having
engaged in this conduct; he stated it was Mejia and Ignacio
who had been guilty of abandoning the station for 45 min-
utes, not Llever. No one responded to Llever’s assertion.
Llever then stated he had to continue working because he
could not afford the suspension. President M. Shenker re-
sponded that Llever could not return to work because he was
suspended. President M. Shenker at this point switched top-
ics. He stated that one of the Filipinos must have vandalized
Bagley’s motor vehicle. Llever informed President M.
Shenker he had no knowledge of this. President M. Shenker
then asked which one of the Filipinos had pulled the fire
alarm earlier that week, referring to the fact that in or about
the middle of July there had been a false fire alarm during
the p.m. shift. Llever answered he did not know who had
done this and explained that when the alarm sounded he was
not in the vicinity of the alarm box. President M. Shenker
remarked that one of the Filipinos must have been the guilty
party because it happened on the p.m. shift. The meeting
ended with President M. Shenker instructing Llever to re-
main in Boeger’s office for the meeting between manage-
ment and the p.m. shift that was to commence at approxi-
mately 2:45 p.m., the start of the p.m. shift.
Llever remained for the p.m. shift’s meeting with manage-
ment, which started at approximately 2:45 p.m. and ended at
approximately 3:15 p.m. When the meeting ended President
M. Shenker walked over to where Llever was standing and
told him to return to work, that his 3-day suspension had
been rescinded. Llever thanked him and went to work.
The above description of what occurred in Boeger’s office
during the July 22 meeting between Llever and Respondent’s
management and of what occurred between Llever and Presi-
dent M. Shenker when President M. Shenker later that after-
noon told him that his suspension had been rescinded, is
based on Llever’s credible testimony. His testimony of what
occurred during his meeting in Boeger’s office with manage-
ment was not controverted. His testimony, however, about
what occurred when President M. Shenker notified him that
his suspension was rescinded conflicts with President M.
Shenker’s testimony that after the July 22 meeting between
management and the p.m. shift employees had ended, Llever
walked over to where President M. Shenker was standing
and stated he wanted to speak to Shenker, Shenker stated,
‘‘[P]lease talk,’’ Llever stated, ‘‘I cannot afford to be sus-
pended for three days,’’ and, on hearing this, President M.
Shenker told Llever his suspension was lifted. I rejected
President M. Shenker’s testimony and credited Llever’s be-
cause President M. Shenker’s testimonial demeanor was
poor, whereas Llever’s was good. Moreover, it does not ring
true that President M. Shenker would rescind Llever’s sus-
pension based on his bare assertion that he could not afford
to be suspended, especially when, as here, it is undisputed
that President M. Shenker had ignored Llever’s identical plea
made less than 1 hour before.
President M. Shenker also testified that at the same time
he told Llever his suspension was rescinded, he told Van
Baren, who was standing right next to President M. Shenker,
that ‘‘I just lifted this gentleman’s suspension,’’41 and Van
Baren told President M. Shenker that since he had rescinded
Llever’s suspension Respondent would have to lift the sus-
pensions of Baldoza, Mejia, and Ignacio, and that President
M. Shenker instructed Van Baren to ‘‘go ahead’’ and rescind
their suspensions. According to President M. Shenker, he did
not instruct either Van Baren or Boeger to contact the em-
ployees who had been suspended earlier that day to tell them
their suspensions had been rescinded because, as President
M. Shenker testified, ‘‘I wasn’t involved in this anymore I
just . . . instructed them to lift the other suspensions.’’
Regarding the Respondent’s decision not to rescind
Mejia’s, suspension, President M. Shenker testified that
‘‘they’’ came to him and ‘‘suggested’’ Mejia’s, suspension
not be rescinded because of her past record and President M.
Shenker replied, ‘‘[I]t’s up to you.’’
Van Baren’s testimony concerning the events that resulted
in Respondent’s decision to revoke the suspensions of
Llever, Baldoza, and Ignacio and not to do so in Mejia’s,
case, and the manner in which Respondent reached that deci-
sion, conflicts in certain significant respects with President
M. Shenker’s above testimony and is not corroborated by
President M. Shenker’s testimony. According to Van Baren,
when President M. Shenker told Llever that his suspension
had been rescinded, Van Baren was not close enough to hear
what President M. Shenker said to Llever, contrary to Presi-
dent M. Shenker’s testimony that she was standing right next
to him. Van Baren also testified that when President M.
Shenker told her he had rescinded Llever’s suspension be-
cause Llever had stated he could not afford to be suspended,
that Van Baren told President M. Shenker that since he had
rescinded Llever’s suspension that Van Baren would have to
review the suspensions of Mejia, Baldoza, and Ignacio. This
conflicts with President M. Shenker’s testimony that at this
time he instructed Van Baren to rescind Mejia’s, Baldoza’s,
and Ignacio’s suspensions.
Van Baren further testified that following President M.
Shenker’s instruction to review the suspensions of the other
three CNAs, she conducted an independent evaluation of the
decision to suspend Mejia, Ignacio, and Baldoza, and at an
‘‘informal meeting’’ held later during the afternoon of July
22, in Boeger’s office, between herself, and the Shenkers and
Boeger, that all four of them decided it would be appropriate
to rescind the suspensions of Baldoza and Ignacio, and to let
stand Mejia’s, suspension, but it was Van Baren who had the
final word in making this decision.42 Neither the Shenkers
nor Boeger corroborated Van Baren’s testimony that such a
meeting occurred and, as described infra, the testimony of
567CASA SAN MIGUEL
President M. Shenker and Boeger warrants the inference no
such meeting ever occurred. Lastly, Van Baren testified she
was the one who instructed Boeger to telephone Baldoza and
notify him his suspension had been rescind, which is con-
trary to Boeger’s testimony that President M. Shenker was
the person who gave her that instruction, which is contrary
to President M. Shenker’s testimony that he gave no such in-
struction to either Van Baren or Boeger.
Boeger’s testimony about the events that resulted in Re-
spondent’s decision to rescind Baldoza’s suspension con-
tradicts Van Baren’s and President M. Shenker’s above-de-
scribed testimony. According to Boeger, it was Boeger, not
Van Baren, who was standing next to President M. Shenker
when he told Llever during the afternoon of July 22 that his
suspension had been rescinded. Boeger further testified, con-
trary to the testimony of both President M. Shenker and Van
Baren, that immediately after telling Llever his suspension
had been rescinded that President M. Shenker turned to
Boeger and told Boeger to telephone Baldoza and tell him
his suspension had been rescinded and explained to Boeger
that the reason he wanted Boeger to do this was because ‘‘he
[President M. Shenker] had revoked Llever’s suspension.’’
Boeger was confronted during cross-examination with an
employee disciplinary notice found in Baldoza’s personnel
file dated July 22, signed by Boeger, which showed that on
July 22 after writing on this notice that she had informed
Baldoza he had been suspended, Boeger later that day added
the following comment, ‘‘after an in-depth discussion with
Administration the decision was made to lift the suspen-
sion.’’ Despite the plain language of this notation, Boeger
testified no such discussion occurred in her presence. This is
contrary to Van Baren’s above testimony. Boeger further tes-
tified it was President M. Shenker who directed her to make
this entry in Baldoza’s disciplinary notice, which contradicts
President M. Shenker’s testimony that following his instruc-
tion to Van Baren to rescind the suspensions of Mejia,
Baldoza, and Ignacio that ‘‘I wasn’t involved in this any-
more.’’ For if Van Baren is credited, he was involved in a
later discussion with Van Baren, Administrator L. Shenker,
and Boeger concerning this matter, and, if Boeger is credited,
was so deeply involved in this matter so as to dictate the lan-
guage contained in the disciplinary notice included in
Baldoza’s personnel file.
I reject in its entirety, the above testimony of President M.
Shenker, Van Baren, and Boeger concerning Respondent’s
decision to rescind or not rescind the suspensions of Baldoza,
Llever, Mejia, and Ignacio, and the manner in which this de-
cision was reached. My principal reason for discrediting
them is when they testified, the way each of them spoke,
looked, and acted, and the tone of their voices, led me to
conclude they were insincere and unreliable witnesses who
were attempting to tailor their testimony to suit what they
felt were Respondent’s interests, in complete disregard of
what actually occurred. This conclusion was reinforced in my
mind when I reviewed the transcript and discovered the fol-
lowing: as described above, President M. Shenker, Van
Baren, and Boeger contradicted one another on several sig-
nificant matters; as described above, Van Baren’s testimony
on several significant matters was uncorroborated, when cor-
roboration should have been readily available; and, as de-
scribed above, President M. Shenker’s reason for deciding to
rescind Llever’s suspension, which supposedly resulted in
Respondent’s subsequent decision to rescind Baldoza’s and
Ignacio’s suspension, was implausible. It is for the foregoing
reasons that I find that the reasons Respondent has advanced
to explain its decision to rescind the suspensions of Baldoza,
Llever, and Ignacio are not the real reasons for that decision.
On July 22, after being notified by Boeger he had been
suspended for 3 days, Baldoza visited San Francisco where
he remained for the next 5 days, inasmuch as he was not
scheduled to work on July 25–26 and his suspension covered
the period of July 22–24. During his absence there was no
one at his residence to answer the telephone.
Boeger testified she telephoned Baldoza’s residence on
July 22, 23, and 24 for the purpose of notifying him that his
suspension had been rescinded, but was unable to reach him.
Baldoza’s credible testimony, which was not disputed by Re-
spondent, is that on his return to work on July 27 no one
informed him his suspension had been rescinded nor was he
ever informed by Respondent verbally or in writing that his
suspension had been rescinded. It is also undisputed that in
Baldoza’s paycheck for the period that includes July 22–24,
Baldoza was paid as if he had worked on those days, but the
voucher attached to his check indicated his pay for those
days had been treated by Respondent as sick leave pay
charged to Baldoza’s accrued sick leave benefits. It is also
undisputed that during this pay period Baldoza had not been
absent from work sick. Respondent offered no explanation
for its failure to ever notify Baldoza that his suspension had
been rescinded and why it treated his absences from work
from July 22–24 as paid sick leave.
Based on the foregoing, and the allegations of the com-
plaint, which admit Respondent only notified Llever and
Ignacio of their suspensions, I find Respondent on the same
day it notified Llever and Ignacio of their suspensions re-
scinded their suspensions. As to Baldoza’s suspension, I find
Respondent never notified him that his suspension was re-
scinded and while it paid him for the 3 days of work he
missed due to his announced suspension, it was paid to him
in the form of sick leave pay that was charged to his accrued
sick leave benefits.
Ethel Tarrosa’s discharge
On July 22, the day she was discharged, Tarrosa had been
employed by Respondent as a CNA since 1986 and worked
on the p.m. shift.
As I have found supra, on May 18 Tarrosa was suspended
for 3 days for, among other things, being insubordinate to a
charge nurse. As I have also found supra, Tarrosa was not
placed on probation.
As I have found supra, prior to her May 18 suspension
Tarrosa had been one of the employees employed on the
p.m. shift who were discussing the possibility of having
union representation. Following her May 18 suspension
Tarrosa continued to speak with the other p.m. shift employ-
ees on a regular basis about the possibility of having the
Union represent Respondent’s employees and was one of the
p.m. shift employees who attended the May 23 union organi-
zational meeting at employee Guzman’s home.
On July 21 Tarrosa worked on the p.m. shift at station 4
and was paired with CNA Abueg for the 30-minute
lunchbreak. On July 21 Tarrosa and Abueg ended their
lunchbreak and returned to work within the 30 minutes al-
lowed for their break. The record also establishes that neither
568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
43 Boeger was present at the start of the July 22 meeting between
Tarrosa and management, but shortly after the meeting began was
instructed to leave the office for the purpose of quieting the p.m.
shift that was waiting outside the office to meet with management
as soon as the meeting with Tarrosa ended.
44 I note there is no contention or evidence that Tarrosa was re-
sponsible for the false fire alarm.
45 I also note that a review of the testimony of Administrator L.
Shenker, Van Baren, and Meagher, about their July 22 meeting with
Tarrosa, indicates that, according to them, Tarrosa said absolutely
Tarrosa nor Abueg acted insubordinate toward P.M. Shift Su-
pervisor Bagley on July 21. Quite the opposite, Bagley
credibly testified that during the events material to this case,
which occurred on July 21, Bagley never even spoke to
Tarrosa or Abueg.
On July 22 Tarrosa reported for work at her usual time,
between 2:30 and 2:45 p.m. Previously that day she did not
receive a telephone call at home from Respondent notifying
her of her discharge. I reject President M. Shenker’s testi-
mony that during the morning he telephoned Tarrosa for the
purpose of informing her she had been discharged. It is sig-
nificant that President M. Shenker failed to testify what he
supposedly told Tarrosa and what, if anything, Tarrosa said
to him. I credited Tarrosa’s testimony that she did not re-
ceive such a call, because her testimonial demeanor was
good, whereas President M. Shenker’s was poor.
On July 22, as Tarrosa was clocking in for work she was
instructed by one of Respondent’s clerical employees not to
punch the timeclock, but instead to go to Boeger’s office.
There, Tarrosa found the Shenkers, Van Baren, Meagher, and
Boeger waiting for her. Administrator L. Shenker began the
meeting by asking if Tarrosa knew why she was there and,
when Tarrosa answered, ‘‘no,’’ Administrator L. Shenker
asked her to turn around and look a the fire alarm on the
office wall and asked if that ‘‘rang a bell,’’ referring to the
fact that earlier that month a false fire alarm had been rung
during the p.m. shift. Administrator L. Shenker told Tarrosa
a lot of people were saying Tarrosa was the person respon-
sible for the false alarm, and asked if it was true. Tarrosa
denied having engaged in that conduct and asked for the
names of the persons who had accused her of doing this. Ad-
ministrator L. Shenker did not respond. Instead she told
Tarrosa to come to the facility the next day to pick up her
paycheck. This ended the meeting. Previously, during the
meeting, Administrator L. Shenker asked Tarrosa if she got
along with P.M. Shift Supervisor Bagley and, when Tarrosa
replied she got along just fine with Bagley, no more was said
about this. No reason for Tarrosa’s discharge was given dur-
ing this meeting, other than what has been set forth above.
Nor was Tarrosa given anything in writing that explained the
reason for her termination.
The above description of what occurred during the July 22
meeting between Tarrosa and Respondent’s management is
based on Tarrosa’s testimony. It was contradicted by the tes-
timony of Administrator L. Shenker, Van Baren, and
Meagher, as follows.
When asked what was stated during her July 22 meeting
with Tarrosa, Administrator L. Shenker testified, ‘‘[W]e told
her her reasons for termination,’’ but testified she was unable
to remember whether it was herself or one of the other man-
agement representatives who informed Tarrosa of the reasons
for her termination. When Administrator L. Shenker was
asked, however, to state the reasons given to Tarrosa, she
testified in terms that suggested it was Administrator L.
Shenker who had given the reasons to Tarrosa. Administrator
L. Shenker testified she told Tarrosa she had been discharged
for ‘‘the station abandonment’’ and did not offer any other
reason to Tarrosa for her discharge. She also testified that
when she spoke to Tarrosa about her discharge, she informed
Tarrosa she was still on probation and explained to Tarrosa
that her conduct of abandoning the station was absolute
grounds for termination because in the writeup that had re-
sulted in Tarrosa being placed on probation, Tarrosa had
been informed that any further misconduct during her proba-
tion period would be grounds for termination. Administrator
L. Shenker further testified that the July 22 meeting ended
with Tarrosa asking to be given the reasons for her termi-
nation in writing and, in response, Administrator L. Shenker
gave Tarrosa a copy of a memo to the payroll department,
signed by Administrator L. Shenker, which in substance con-
tained language consistent with Shenker’s above testimony.
Nothing was said to Tarrosa, according to Administrator
L. Shenker’s testimony, about Tarrosa being guilty of having
rang the false fire alarm earlier that month. Van Baren testi-
fied, however, that during the meeting Shenker did question
Tarrosa about the false fire alarm and Tarrosa responded by
denying being the person who was guilty of engaging in that
conduct. Van Baren also failed to corroborate Administrator
L. Shenker’s testimony that it was Tarrosa who initiated the
meeting and that, at the end of the meeting, Tarrosa re-
quested and was given the reasons for her termination in
writing. Otherwise, Van Baren’s testimony about this meet-
ing corroborated Administrator L. Shenker’s above-described
testimony.
Meagher, when asked by Respondent’s counsel what was
‘‘discussed’’ at this meeting, testified, ‘‘Tarrosa was on was
on probation for prior infraction and was facing possible ter-
mination’’ and was terminated. Meagher did not testify about
what was said or by whom.
I credited Tarrosa’s testimony about the July 22 meeting
and rejected the testimony of Administrator L. Shenker, Van
Baren, and Meagher primarily because Tarrosa’s testimonial
demeanor was good, whereas the testimonial demeanor of
Administrator L. Shenker, Van Baren, and Meagher was
poor. In addition, Tarrosa’s testimony was corroborated by
Boeger’s testimony that the reason why Tarrosa on July 22
was called to Boeger’s office to meet with Respondent’s
management had ‘‘something to do with the fire alarm.’’43
Boeger also testified that on July 22, prior to the meeting
with Tarrosa, that one of the CNAs, whose name Boeger
claims she was unable to remember, informed Boeger she
knew it was Tarrosa who had rang the false fire alarm earlier
that month, because she observed Tarrosa pulling the false
alarm, and, on receipt of this information, Boeger imme-
diately passed it along to one of the Shenkers.44
Also relevant in evaluating the testimony of Administrator
L. Shenker is the absence of corroboration for certain por-
tions of her testimony, when corroboration was readily avail-
able. Administrator L. Shenker’s testimony that it was
Tarrosa, not Shenker, who initiated the meeting, because Ad-
ministrator L. Shenker was informed by Boeger and Van
Baren that Tarrosa wanted to speak to her, was not corrobo-
rated by either Boeger or Van Baren.45 Nor did either Presi-
569CASA SAN MIGUEL
nothing during this meeting that does not seem plausible, if, as Ad-
ministrator L. Shenker testified, Tarrosa had requested the meeting.
46 As I have found supra, when Administrator L. Shenker notified
Tarrosa she was discharged, she indicated to Tarrosa that she was
being discharged because Respondent believed she was responsible
for having rung the false fire alarm earlier that month. Subsequently,
shortly after Tarrosa’s discharge, when her father Ben Medina, also
employed by Respondent, questioned President M. Shenker about
Tarrosa’s discharge, it is undisputed that President M. Shenker told
Medina that one of the reasons Respondent discharged Tarrosa was
‘‘for pulling the fire alarm.’’ There is no evidence whatsoever that
Tarrosa was responsible for the false fire alarm. Therefore, it is not
surprising Respondent does not now contend that one of the reasons
for Tarrosa’s termination was it believed she was responsible for the
false fire alarm.
47 Based on Abueg’s credible testimony that was not contradicted
by Respondent. Van Baren’s testimony that Abueg’s personnel file
contained a counseling report dated May 30, 1990, which involved
Abueg’s failure to punch in properly when she returned from a break
period, is the sole evidence offered by Respondent to controvert
Abueg’s testimony. 48 Based on the credible testimony of Abueg and Bagley.
dent M. Shenker, Van Baren nor Meagher corroborate Ad-
ministrator L. Shenker’s testimony that at the end of the
meeting Tarrosa requested and was given the reasons for her
termination in writing.
Van Baren testified that on the morning of July 22 Presi-
dent M. Shenker and Van Baren jointly decided to terminate
Tarrosa for these reasons (Tr. 247):
[D]ue to Bagley’s oral report to me that Tarrosa was
found in the breakroom during non-break time, with the
other CNAs when she/they should be on the floor
working (unauthorized break) and that Tarrosa was rude
and uncooperative when Bagley told her to go back to
work. The termination was also based on Tarrosa’s pro-
bation status.
These reasons, which are the reasons advanced by Respond-
ent for discharging Tarrosa, are completely without substance
because, as I have found previously in this decision, Tarrosa
was not in the breakroom during nonbreak time, Bagley did
not tell Tarrosa to go back to work, Tarrosa was not insubor-
dinate to Bagley, Tarrosa was not on probation, and Bagley
did not inform Respondent that Tarrosa had engaged in the
misconduct Van Baren claims Bagley attributed to Tarrosa.
This complete lack of substance in the reasons advanced by
Respondent for Tarrosa’s discharge, when coupled with Re-
spondent’s failure to mention those reasons to Tarrosa when
it notified her of her termination, convince me that the rea-
sons advanced by Respondent for Tarrosa’s termination are
not the real reasons, but were used by Respondent as a pre-
text to justify Tarrosa’s termination.46
Estella Abueg’s discharge
Abueg, who was notified of her discharge on July 22, had
been employed by Respondent as a CNA since 1988 and
worked on the p.m. shift.
During the almost 4 years of her employment, Abueg was
never disciplined by Respondent or told by Respondent her
conduct had been unsatisfactory, except once she was told
not to speak Tagalog.47
During the short time Bagley was Respondent’s P.M. Shift
Supervisor, prior to Abueg’s discharge, Bagley was never
critical of Abueg’s work performance, and Abueg was never
insubordinate to Bagley.48
On July 21 Abueg was scheduled to work at station 3, but
switched work assignments with Lodring Ignacio. Because of
this, on July 21 Ignacio worked at station 3 and Abueg
worked at station 4.
As I have found supra, on July 21, while working at sta-
tion 4, Abueg was paired with Tarrosa for the 30-minute
lunchbreak and they returned to work from their lunchbreak
within the 30 minutes allowed for the break. The record also
establishes, as I have found supra, that on July 21 Abueg
was not insubordinate to Bagley. In fact, Bagley credibly tes-
tified that during the events material to this case, which oc-
curred on July 21, Bagley did not even speak to Abueg.
In July, prior to her termination, Abueg was among the
p.m. shift employees who discussed the possibility of having
union representation. Previously, on May 23, she was one of
the p.m. shift employees who attended the Union’s organiza-
tional meeting at employee Guzman’s home. I considered
that Abueg testified this meeting occurred on July 23, how-
ever, it is clear from the record it took place on May 23.
Moreover, Tarrosa’s and Bellon’s credible testimony estab-
lishes Abueg was present at the May 23 organizational meet-
ing.
Abueg, who, was not scheduled to work on July 22 or 23,
received a telephone call on the morning on July 22 from
President M. Shenker. He told Abueg to come to the facility
to pick up her paycheck because she had been discharged.
He explained she had been discharged for being absent from
station 3 for 45 minutes and for refusing to obey the instruc-
tions of her supervisors. Abueg responded by stating she had
not worked at station 3 on July 21, that she had not aban-
doned her station, and had not taken a 45-minute break pe-
riod. She told President M. Shenker she intended to come to
his office to discuss the matter. President M. Shenker replied
there was no need for her to come to his office.
Disregarding President M. Shenker’s instruction not to
come to his office, Abueg went there on July 22, at which
time President M. Shenker spoke to her in the presence of
Administrator L. Shenker, Van Baren, Meagher, and Boeger.
President M. Shenker asked if Abueg knew what happened
at station 3. Abueg stated she had no knowledge of what oc-
curred there. President M. Shenker accused Abueg of taking
a 45-minute break, of abandoning patients, and not obeying
her supervisors. Abueg denied engaging in this conduct and
once again stated that on July 21 she had worked at station
4, not station 3. President M. Shenker failed to respond to
this, but at this point switched topics. He asked if Abueg
knew anything about the following events: the July 21
vandalization of Bagley’s motor vehicle; the false fire alarm
that had been rung on the p.m. shift earlier that month; and,
a sexual assault on a patient that also occurred earlier that
month. Abueg answered she knew nothing about those mat-
ters. President M. Shenker stated he believed her and stated
she was being placed on probation. He instructed her to
check on July 23 with Respondent’s staff coordinator, Ellen
Perez, who is responsible for scheduling the CNAs, to see
if she was scheduled to work.
Administrator L. Shenker then again asked if Abueg knew
anything about what occurred on July 21 on the p.m. shift.
570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
49 I note that Abueg specifically denied that Administrator L.
Shenker stated she intended to conduct a further investigation into
the matter.
Abueg again answered in the negative and accused Adminis-
trator L. Shenker of always blaming the Filipino employees,
even when they were not at fault. Administrator L. Shenker
disputed this accusation.
The meeting ended with Nursing Director Van Baren in-
forming Abueg she was on probation and should speak with
Perez to find out what her work schedule would be.
The above description of Abueg’s July 22 meeting with
Respondent’s management is based on Abueg’s testimony. It
was contradicted by the testimony of Administrator L.
Shenker, summarized as follows.
Administrator L. Shenker testified that present at this
meeting for management were only herself, Van Baren, and
Meagher. She also testified she was unable to remember who
spoke to Abueg on behalf of management; whether it was
Administrator L. Shenker or Van Baren. According to Ad-
ministrator L. Shenker, Abueg was once again informed of
the reasons for her termination, Abueg began to cry and
begged Administrator L. Shenker not to terminate her, Ad-
ministrator L. Shenker refused to rescind the termination and
explained to Abueg that she had been a party to very bad
misconduct, the abandonment of the station. Administrator L.
Shenker also testified she ended the meeting by informing
Abueg she would conduct a further investigation into the
matter and on July 23 give Abueg her final answer.49
I credited Abueg’s above description of her July 22 meet-
ing with Respondent’s management because her testimonial
demeanor was good, whereas Administrator L. Shenker’s
was poor and because President M. Shenker did not deny
Abueg’s testimony and the only witness Respondent called to
corroborate Administrator L. Shenker’s testimony, Assistant
Nursing Director Meagher, was unable to do so; Meagher
testified she was not able to remember what occurred at this
meeting and, when asked if Abueg was disciplined in any
way at this meeting, testified, ‘‘to the best I can remember,
I believe she was suspended for 3 days.’’ Moreover, Van
Baren’s testimony that on July 22 Van Baren prepared an
employee disciplinary notice recommending Abueg’s termi-
nation, General Counsel’s Exhibit 7(a), which she testified
Administrator L. Shenker gave to Abueg during the July 22
meeting, in Van Baren’s presence, does not square with Ad-
ministrator L. Shenker’s above testimony and conflicts with
Administrator L. Shenker’s further testimony, described infra,
that it was a copy of a memo to Respondent’s payroll depart-
ment prepared by Shenker on July 24, General Counsel’s Ex-
hibit 7(b), which Shenker gave to Abueg and that she gave
this document to Abueg on July 24, not on July 22. It is for
all of the above reasons that I rejected Administrator L.
Shenker’s testimony and credit Abueg’s.
Because July 23 was Abueg’s regular scheduled day off
from work, she did not check with Perez until the morning
of July 24 to determine if she was scheduled to work, and
was told by Perez she had not been scheduled to work. Perez
advised her to speak to Boeger about the matter, which
Abueg did immediately. Boeger told her that President M.
Shenker had wanted to speak to her on July 23. Abueg stated
President M. Shenker had not said this to her, but had in-
structed her to check with Perez to find out whether she was
scheduled to work. Boeger told Abueg to come to the facil-
ity.
On the morning of July 24, when Abueg went to Boeger’s
office, Boeger handed her two paychecks and when Abueg
observed one of the checks stubs stated she had been termi-
nated, she asked Boeger for her ‘‘termination papers’’ and
threatened not to leave the facility until she was given the
reasons for her termination in writing. Shortly after, on July
24, Meagher gave Abueg a copy of a memo addressed by
Administrator L. Shenker to Respondent’s payroll depart-
ment, dated July 24, which stated effective July 23 Abueg
had been discharged for these reasons: ‘‘insubordination to a
nursing supervisor. Had been previously written up for insub-
ordination and not following hospital policy and her job de-
scription.’’ Administrator L. Shenker testified she prepared
this memo on July 24, in response to Abueg’s July 24 re-
quest that she be given the reasons for her termination in
writing.
Van Baren testified that during the morning of July 22,
Van Baren, President M. Shenker, Meagher, and Boeger met
and jointly decided to discharge Abueg based on the infor-
mation Bagley had given to Van Baren earlier that morning,
which Van Baren testified was as follows: Abueg had taken
unauthorized breaks and was not available for patient care,
and when Bagley spoke to Abueg about this, Abueg was ar-
gumentative and would not listen to Bagley; this was not the
first time Abueg had been insubordinate to Bagley; and, con-
trary to Bagley’s instruction, Abueg had not gotten a patient
out of bed for the patient’s dinner. Van Baren further testi-
fied that on July 22, in deciding to discharge Abueg, Re-
spondent also considered ‘‘Abueg’s prior discipline history’’
and, in this regard, testified that although Abueg’s personnel
file contained no disciplinary notices or counseling reports
since May 1990, that prior to July 21 Bagley had complained
to Van Baren that Abueg had not followed Bagley’s instruc-
tions and was taking extra breaktime that made her unavail-
able for patient care.
Administrator L. Shenker testified the ‘‘main reason’’ for
Respondent’s decision to discharge Abueg was she aban-
doned her station on July 21. Administrator L. Shenker testi-
fied the other reason for Abueg’s termination was she did not
take her break period on July 21, as it was scheduled, inas-
much as Bagley had reported that on July 21 all of the
CNAs, including Abueg, were in the breakroom together. As
described supra, the termination notice Respondent gave to
Abueg that was signed by Administrator L. Shenker states
she had been terminated for ‘‘insubordination to a nursing
supervisor’’ and also stated she had been previously written
up for insubordination and for not following hospital policy
and her job description.
All of the above reasons advanced by Respondent for dis-
charging Abueg are patently false because, as I have found
previously in this decision: Abueg was not in the breakroom
on July 21 during nonbreaktime and did not take more than
the 30 minutes allowed for her break; on July 21 Bagley did
not instruct Abueg to return to work; Abueg was not insubor-
dinate to Bagley on July 21, nor at any other time during
Bagley’s employment as P.M. Shift Supervisor; Bagley did
not inform Van Baren that Abueg had engaged in the mis-
conduct that Van Baren claims Bagley attributed to Abueg;
during the almost 4 years she was employed by Respondent,
Abueg was never disciplined by Respondent or told by su-
571CASA SAN MIGUEL
50 The basis for the considerations set forth hereinafter have been
previously explained in detail in this decision.
51 It was not necessary for the General Counsel to demonstrate Re-
spondent knew of the individual union sympathies of each of the
employees, who, on July 22, Respondent decided to discharge and
suspend. Rather, the General Counsel prevailed by demonstrating
that Respondent had general knowledge of the union activity of the
Filipinos employed on the p.m. shift, and decided to terminate and
suspend seven of those employees in order to discourage union ac-
tivity or retaliate against the union activity of some. Guille Steel
Products, 303 NLRB 537 fn. 1 (1991).
52 The law is settled that where, as here, it has been shown that
the reasons advanced by the employer either did not exist or were
not in fact relied on, there is no remaining predicate for a determina-
tion that the adverse action would have taken place even in the ab-
sence of union activity. Wright Line, 251 NLRB 1083, 1084 (1980);
Limestone Apparel Corp., 255 NLRB 722 (1981); Postal Service,
275 NLRB 510 (1985).
pervision that her conduct was unsatisfactory; and, during the
time Bagley was P.M. Shift Supervisor, Bagley was never
critical of Abueg’s work performance. The complete lack of
substance in the reasons advanced by Respondent for
Abueg’s discharge convinces me that these reasons were not
the real ones for Respondent’s decision to discharge her, but
were used by Respondent as a pretext to justify the termi-
nation.
b. Discussion
As I have found supra, on July 22 Respondent decided to
discharge Calabiao, Abueg, and Tarrosa and decided to sus-
pend Baldoza, Llever, Mejia, and Ignacio. As I have also
found supra, the reasons Respondent advanced at the hearing
and gave to these employees for this decision were not the
real reasons, but were false and in large part completely
without substance and were used by Respondent as a pretext
to hide the real reason for its July 22 decision to discharge
and suspend the seven employees. Considering the false
and/or pretextual nature of the reasons advanced by Re-
spondent to justify this decision, the question for me to de-
cide is whether the whole record establishes that a motivating
factor for Respondent’s July 22 decision to discharge three
and suspend four of its employees was to discourage the p.m.
shift’s Filipinos from supporting the Union’s organizational
campaign and/or to retaliate against them for having sup-
ported this campaign. I find that the following considerations
support this conclusion:50 all seven of the employees who,
on July 22, Respondent decided to discharge or suspend were
Filipinos who had participated in the Filipino employees’ on-
going discussions about the possibility of having the Union
represent them; Respondent knew the Union was engaged in
a campaign to organize its employees and believed the Filipi-
nos employed on its p.m. shift were union adherents; Re-
spondent was hostile toward union representation and toward
employees who supported union representation; Respondent
believed that the Filipinos employed on its p.m. shift were
‘‘troublemakers’’ because they supported the Union’s organi-
zational campaign, and threatened to get rid of the ‘‘prob-
lem’’ of the Filipinos’ support of the Union by discharging
them; in deciding on July 22 to discharge and suspend seven
Filipinos employed on its p.m. shift, Respondent acted in an
inexplicable hurry; Respondent acted in such haste in making
this decision that it failed to even consult with the employ-
ees’ supervisor or to even speak to the employees involved
before making the decision, contrary to its normal practice
of conducting an investigation before deciding whether or
not to discipline an employee. When these factors are consid-
ered with the false and/or pretextual reasons advanced by Re-
spondent for its July 22 decision to discharge Calabiao,
Abueg, and Tarrosa and to suspend Baldoza, Llever, Mejia,
and Ignacio, I find they established that a motivating factor
in the decision was to discourage the p.m. shift’s Filipino
employees from supporting the Union’s organizational cam-
paign and/or to retaliate against the employees because of
Respondent’s belief that they were adherents of the Union.51
Alternatively, I find that the above factors, plus Respond-
ent’s efforts to learn the identity of the Filipinos employed
on the p.m. shift who were union adherents, when considered
in their totality, are sufficient to create an inference that on
July 22 Respondent knew that Calabiao, Abueg, Tarrosa,
Baldoza, Llever, Mejia, and Ignacio were among the Filipi-
nos employed on the p.m. shift who had been involved in
the employees’ ongoing discussions about having union rep-
resentation and decided to discharge Calabiao, Abueg and
Tarrosa and to suspend Baldoza, Llever, Mejia, and Ignacio,
for that reason.
In concluding that the General Counsel has made a prima
facie showing of the illegality of Respondent’s July 22 deci-
sion to discharge three and suspend four of its p.m. shift em-
ployees, I considered that within a matter of hours after noti-
fying employees Llever and Ignacio of their suspensions, that
Respondent notified them that their suspensions had been re-
scinded. This does not, however, undermine the General
Counsel’s prima facie showing that the decision to suspend
these two employees was unlawfully motivated. The inevi-
table and calculated effect of the message communicated by
Respondent to the Filipinos employed on the p.m. shift by
Respondent’s notification that it had discharged and sus-
pended the seven Filipino employees was to discourage them
from supporting union representation. The fact that two of
the suspended employees were later notified that their sus-
pensions had been rescinded did not erase the message from
the minds of the employees. Moreover, as I have found
supra, the reasons advanced by Respondent for rescinding
Llever’s and Ignacio’s suspensions were false, which lends
further support to the conclusion that the decision to suspend
them was discriminatorily motivated. In addition, Respond-
ent’s unexplained failure to ever inform Baldoza that his sus-
pension had been supposedly rescinded lends further support
to the conclusion that his suspension was unlawfully moti-
vated.
Respondent does not assert any business reasons, other
than the ones that I have found to be false and/or pretextual,
for its July 22 decision to discharge Calabiao, Abueg, and
Tarrosa and to suspend Baldoza, Llever, Mejia, and Ignacio,
even absent the employees’ union activity.52 I, therefore, find
that Respondent’s discharge of Calabiao, Abueg, and Tarrosa
on July 22, its suspension of Baldoza and Mejia, on July 22,
and its notification to Llever and Ignacio of their suspension
on July 22, violated Section 8(a)(1) and (3) of the Act, as
alleged in the complaint.
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. Angelito Bellon’s July 27, 1992 discharge
a. The evidence
Bellon, a Filipino, was employed by Respondent as a CNA
on the p.m. shift from January 1990 until his July 27 dis-
charge.
He was one of the Filipinos employed on the p.m. shift,
who, early in May, began to discuss the possibility of having
union representation and was among those who, on May 23,
attended the union organizational meeting held at Guzman’s
home for the p.m. shift. Subsequent to that meeting, until his
July 27 discharge, Bellon met often with others employed on
the p.m. shift to discuss the possibility of union representa-
tion. These meetings took place at Respondent’s facility as
well as at employees’ homes.
Bellon did not work on July 21. On July 22 he worked
a double shift; the day shift, which ended at 3 p.m., and the
p.m. shift, which had already started at 2:45 p.m. Also work-
ing a double shift with him that day was Jury Hitosis, an-
other CNA, who, like Bellon, was regularly employed on the
p.m. shift. Respondent’s policy is that an employee who
works a double shift must clock his timecard out at the end
of the first shift and immediately clock back in for the sec-
ond shift.
On July 22 at 3 p.m., the end of the day shift, Bellon and
Hitosis were walking to the timeclock to clock out for the
day shift and clock in for the p.m. shift, when Respondent’s
director of staff development, Boeger, shouted to them there
was an emergency meeting of the p.m. shift being held in
Boeger’s office, which is also used as Respondent’s class-
room, and instructed them to go to the meeting immediately.
Bellon replied that after they had clocked out and in they
would immediately go to Boeger’s office. Boeger responded
by shouting words to the effect that Bellon and Hitosis
should not worry about clocking out and in because Boeger
or someone else would sign their timecards to verify their
hours of work. Bellon and Hitosis ignored Boeger’s instruc-
tion and continued to walk to the timeclock, which was be-
tween 80 to 100 feet from Boeger’s office. After clocking
their timecards, Bellon and Hitosis went immediately to
Boeger’s office.
The above description of what occurred on July 22, when
Bellon and Hitosis ignored Boeger’s instruction to go imme-
diately to her office, is based on Bellon’s testimony.
Boeger’s testimony of what occurred differs. She testified
that Bellon and Hitosis on two separate occasions refused to
obey her instruction to go immediately to the office for the
meeting. She testified that when, as described above in
Bellon’s testimony, Bellon and Hitosis ignored her first re-
quest that they go immediately to the office for the meeting,
Boeger went into the office, where the p.m. shift employees
were gathered for the meeting, and the following occurred:
when she entered the office, President M. Shenker asked if
all of the employees were present; Boeger stated Bellon and
Hitosis were on their way to the timeclock; President M.
Shenker told Bellon ‘‘to get them in here now’’; Boeger
walked out of the office and told Bellon and Hitosis, who
were still on their way to the timeclock, to get into the office
because, she explained to them, President M. Shenker wanted
to start the meeting; Bellon turned around and ‘‘waived’’ at
Boeger and both Bellon and Hitosis ignored Boeger’s in-
struction and continued on their way to the timeclock;
Boeger returned to the office and told President M. Shenker
that Hitosis and Bellon would be there as soon as they
punched their timecards; and, President M. Shenker, who
said nothing, waited until Bellon and Hitosis came before he
began the meeting.
I credited Bellon’s testimony, rather than Boeger’s, be-
cause Bellon’s testimonial demeanor was good and Boeger’s
was poor. Moreover, President M. Shenker did not corrobo-
rate Boeger’s testimony.
In rejecting Boeger’s testimony, I considered it was cor-
roborated, in part, by Administrator L. Shenker’s testimony
that on July 22 when Administrator L. Shenker entered
Boeger’s office at the start of the meeting, that Boeger stated
she had told Bellon and Hitosis ‘‘twice’’ to come to the of-
fice and they had refused to follow her instruction. Adminis-
trator L. Shenker also testified that when Boeger said this,
Administrator L. Shenker gave instructions for the meeting
to begin without Bellon and Hitosis and it was not until after
the meeting was in progress for approximately 5 minutes,
that Bellon and Hitosis entered the office. Administrator L.
Shenker’s testimony, however, was not corroborated by
Boeger and was contradicted in part by Boeger’s testimony
that President M. Shenker did not begin the meeting until
Bellon and Hitosis arrived. Considering this, and considering
Administrator L. Shenker’s and Boeger’s poor testimonial
demeanor, and the failure of President M. Shenker to cor-
roborate their testimony, I am of the opinion that Adminis-
trator L. Shenker and Boeger, in an effort to bolster Re-
spondent’s case, exaggerated Bellon’s July 22 misconduct.
It is undisputed that immediately after management’s July
22 meeting with the p.m. shift, Bellon was asked to remain
in the office, at which time Administrator L. Shenker spoke
to him about his failure to obey Boeger’s instruction to im-
mediately go to Boeger’s office for the meeting. It is also
undisputed that at this time Bellon apologized for his insub-
ordination and that Administrator L. Shenker verbally rep-
rimanded him for his insubordination. There is, however, a
significant conflict between Administrator L. Shenker’s and
Boeger’s testimony as to who spoke to Bellon about his in-
subordination.
Administrator L. Shenker testified that at the end of the
p.m. shift’s employees July 22 meeting with management,
Boeger, and Administrator L. Shenker spoke to Bellon about
his insubordination and Boeger ‘‘wrote him up’’ for his in-
subordination, in the form of an employee disciplinary notice
(see Tr. 1926, 1928–1929). The employee disciplinary notice,
Respondent’s Exhibit 25, is an undated employee disciplinary
notice signed by Boeger, on which Boeger wrote:
[Bellon] refused to return to the classroom. When told
by me that I would sign his card he disregarded what
I had said and continued towards the timeclock. This is
considered insubordination and unwilling to follow di-
rections.
Administrator L. Shenker further testified Boeger explained
to Bellon why he was being written up, and Bellon apolo-
gized to Boeger for being insubordinate to her. It was at this
time, according to Administrator L. Shenker, that on the bot-
tom of the employee disciplinary notice prepared by Boeger
(General Counsel’s Exh. 25), Administrator L. Shenker
wrote, ‘‘[Bellon] later acknowledged that he continued walk-
573CASA SAN MIGUEL
53 This questionnaire on its face indicates it consisted of two car-
bon copies, as well as the original, and that the original is sent to
Bellon’s employer, that one copy is included in Bellon’s medical
record at Kaiser, and the remaining copy is retained by Kaiser’s
industrial/business office. Bellon was not given a copy of the ques-
tionnaire. The record does not show when Respondent received its
copy of the questionnaire.
ing and apologized,’’ and that in the section of the notice
that described what, if any, disciplinary action was taken
against Bellon, Administrator L. Shenker wrote that Bellon
had been reprimanded ‘‘verbally.’’
Boeger contradicted Administrator L. Shenker’s testimony
concerning Boeger’s involvement in Bellon’s verbal rep-
rimand. Boeger testified she was not able to remember when
she prepared Bellon’s disciplinary notice and admitted it
might have been prepared on July 23, rather than on July 22,
and denied she ever spoke to Bellon about his July 22 insub-
ordinate conduct or ever gave Bellon a copy of the discipli-
nary notice. Indeed, Boeger professed an inability to remem-
ber what she did with the notice after having prepared it.
This is one of the many instances in this proceeding when
the testimony of a management representative on a matter of
significance was not corroborated by the testimony of an-
other management representative, when corroboration should
have been readily available, but instead the representatives of
management gave conflicting testimony. It is for this reason
and because of Administrator L. Shenker’s poor testimonial
demeanor, that while I find that on July 22 Bellon was ver-
bally reprimanded for his insubordinate conduct, I further
find Boeger had nothing whatsoever to do with that rep-
rimand, which was handled solely by Administrator L.
Shenker, perhaps even to the extent of directing Boeger to
prepare General Counsel’s Exhibit 25, the disciplinary notice,
at some point subsequent to July 22.
As described supra, it is undisputed that Hitosis and
Bellon were equally insubordinate to Boeger on July 22, in-
asmuch as they both ignored Boeger’s instruction to go im-
mediately to Boeger’s office for the meeting of the p.m. shift
employees. It is also undisputed, however, unlike Bellon,
Hitosis was not asked to remain in the office at the end of
the meeting and, unlike Bellon, was not verbally rep-
rimanded or otherwise disciplined for his insubordination.
These conclusions are based on Administrator L. Shenker’s
testimony that Hitosis was not asked to remain in Boeger’s
office after the meeting of the p.m. shift for the purpose of
being spoken to about his insubordination, and Shenker’s fur-
ther testimony that she did not know whether Hitosis was
disciplined for his insubordination, but if he had been dis-
ciplined for that conduct Shenker would have been informed.
Under the circumstances, absent evidence that Hitosis was
disciplined for being insubordinate to Boeger on July 22, I
find he was not verbally reprimanded or otherwise dis-
ciplined for engaging in that conduct. Respondent offered no
explanation for its disparate treatment of Bellon.
On July 22, after having been verbally reprimanded by
Administrator L. Shenker for being insubordinate to Boeger,
Bellon worked the remainder of the p.m. shift as scheduled.
He was supposed to work July 23 on the p.m. shift. On the
morning of July 23, however, he telephoned the facility and
told the desk clerk he would not be at work that day because
he had a headache and was going to the Kaiser Permanente
HMO for medical treatment.
Bellon was treated by one of Kaiser’s doctors and, in con-
nection with his visit, filled out and signed a one-page docu-
ment entitled ‘‘Initial Industrial Visit Questionnaire And Em-
ployer’s Industrial Treatment Notice,’’ Respondent’s Exhibit
2, which, in the space reserved for his signature, states:
‘‘Dear Employer: Please be advised I have selected this facil-
ity for the purpose of providing medical treatment to cure or
relieve the effects of the injury described above.’’ In the por-
tion of the questionnaire that asked him to explain in detail
what happened to him ‘‘at work,’’ which caused him to be-
come ‘‘ill or injured,’’ Bellon wrote that during manage-
ment’s July 22 meeting with the p.m. shift employees, that
the CNAs had been ‘‘harassed’’ and ‘‘verbally abused,’’ and
Respondent’s facility was ‘‘understaffed’’ and Bellon was
under ‘‘stress and pressure’’ and as a result had a back pain
and a severe headache.53
On July 24, in the morning, Boeger telephoned Bellon at
home and told him that when he reported for work that after-
noon to bring with him a note from his doctor, a ‘‘doctor’s
certificate.’’ Accordingly, when he went to work that day,
Bellon took with him a note from the doctor who treated him
the day before. He gave the note to Administrator L.
Shenker, who met him in Respondent’s lobby as he entered
the facility to go to work. They did not discuss the contents
of the note, which stated in substance that the physician had
treated Bellon for a work-related illness or injury that in-
volved a worker’s compensation claim.
Bellon was not scheduled to work on July 25 or 26. On
the morning of July 27 Administrator L. Shenker telephoned
him at home and told him he had been discharged. She told
Bellon he had been discharged for these three reasons:
Bellon had received ‘‘three writeups’’; Bellon was not obey-
ing the facility’s policy and regulations; and, Bellon had
been insubordinate to Boeger. Administrator L. Shenker told
Bellon to come to the facility that day, after 3 p.m., to pick-
up his paycheck.
When Bellon went to the facility that afternoon for his
paycheck, he asked Administrator L. Shenker to give him the
reasons for his discharge in writing. Shenker told him she
was too busy that day to do this, but asked him to return the
next day. The next day, July 28, when Bellon returned to the
facility he was told by the front desk clerk to go to the of-
fice, where he found the Shenkers and Van Baren. Adminis-
trator L. Shenker gave him his ‘‘termination papers’’ and
told him one of the reasons he was terminated was for going
to Kaiser Permanente instead of to Martin Stuart, Respond-
ent’s doctor, who she stated was the doctor who care for Re-
spondent’s employees. Shenker stated the other reasons for
his termination were that he had been insubordinate to
Boeger and had received a ‘‘writeup’’ for his lack of ‘‘in
service.’’ This refers to the educational meetings that Re-
spondent’s employees are required to attend, where Respond-
ent explains to them the Company’s policies and the regula-
tions governing their conduct.
Regarding Administrator L. Shenker’s statement to Bellon
that one of the reasons for his termination was he had gone
to a Kaiser HMO physician on July 23 for treatment, rather
than to Dr. Stuart, Respondent’s physician, the record reveals
the following. Respondent’s director of staff development,
Boeger, testified that during the time material Respondent’s
policy covering employees’ workers’ compensation claims
was set forth in Respondent’s Exhibit 22 and that in explain-
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
54 As I have found supra, in deciding whether to discipline nursing
department employees, Respondent uses a progressive system of dis-
ing the Company’s workers’ compensation procedure and
policy to new employees during their orientation period,
Boeger used the language set forth in Respondent’s Exhibit
22. Boeger’s and Administrator L. Shenker’s testimony,
which is uncontroverted, is that during the time material, Re-
spondent’s Exhibit 22 was posted at Respondent’s facility on
the bulletin board in the employees’ breakroom. Respond-
ent’s Exhibit 22 reads as follows:
November 13, 1991
TO: All Dept. Supervisors
FROM: Administration
REF: WORKMAN’S COMPENSATION
It is our policy that everything possible will be done
to protect employees from injuries.
Safety is a cooperative understanding requiring par-
ticipation by every employee.
If an injury does occur, please follow the following
procedures:
1. IMMEDIATELY INFORM SUPERVISOR
2. ASK FOR AND COMPLETE AN INCIDENT
REPORT
3. SUPERVISOR WILL INVESTIGATE INJURY
(witness, reasons) & DOCUMENT ON REPORT
FORM
4. FORM WITH EMPLOYEE IS TAKEN TO
DEPT. SUPERVISOR
5. DEPT. SUPERVISOR INVESTIGATES INJURY,
DOCUMENTS AND DECIDES IF PHYSICIAN IS
NEEDED.
6. IF PHYSICIAN IS NEEDED:
MONDAY-FRIDAY—referred to Assistant Adminis-
trator 8:30 a.m.–5:00 p.m. for appt. and completion of
other forms.
Employee will be sent to:
DR. MARTIN STUART
401 GREGORY LN.
PLEASANT HILL, CA 94523
685–9146
5:00–9:00 p.m. Daily & 9:00 a.m.–9:00 p.m. Weekends
SUN VALLEY URGENT CARE
MEDICAL CENTER
1100 CONTRA COSTA BLVD.
CONCORD, CA
825–2000
7. In an emergency where the condition requires im-
mediate care, the supervisor may decide to send em-
ployee to Emergency Room of Mt. Diablo Medical
Center, when the above facilities cannot be reached.
8. BE SURE TO SEND A TREATMENT AU-
THORIZATION FORM WITH EMPLOYEE.
9. All employees must use the above policy for the
first 30 days, per state requirement. Any request to see
the employees personal physician must be arranged
when hired.
Laura F. Smith, Assistant Administrator
Van Baren, Respondent’s director of nurses, testified that
once or twice a year, at educational meetings, also known as
‘‘in service’’ meetings, Respondent usually explained to its
employees the procedure they were suppose to follow regard-
ing medical treatment for work-related injuries. Van Baren
did not, however, testify who conducted those meeting or
what was stated to the employees on that subject, and, as de-
scribed supra, Boeger testified it was the language contained
in the posted notice, Respondent’s Exhibit 22, which Boeger
read to new employees during their orientation. The manage-
ment representative who was the most competent person to
testify for Respondent about its workers’ compensation pol-
icy and procedure, Assistant Administrator Laura Smith, who
administers it, was not called by Respondent to testify al-
though she is still in its employ. In short, the record as a
whole fails to establish that during the time material, when
Respondent informed its employees about its workers’ com-
pensation policy, that it told them anything other than what
was contained in the posted notice, Respondent’s Exhibit 22.
Regarding Bellon’s testimony that Administrator L.
Shenker told him one of the reasons for his discharge was
due to the ‘‘writeups’’ he had received, the sole evidence of
‘‘writeups’’ received by Bellon during the 2-1/2 years of his
employment, is Administrator L. Shenker’s testimony that
when she decided to discharge Bellon she relied, in part, on
the following ‘‘writeups,’’ which she testified were in
Bellon’s personnel file: Respondent’s Exhibit 37(e), an em-
ployee disciplinary notice dated October 18, 1990; and, Re-
spondent’s Exhibits 37(c), (d), and (f), Employee counseling
reports respectively dated September 24, 1990, February 12
and December 26, 1991. The aforesaid documents were re-
ceived in evidence, not for the truth of the matters contained
therein, and no evidence was presented that in fact Bellon
was either counseled or disciplined for the conduct set forth
in those documents or engaged in that conduct.
The above ‘‘writeups’’ read, in substance, as follows: the
September 24, 1990 counseling report states Bellon was
counseled for having been late for work on three occasions,
without supervision’s approval, and without having notified
supervision he would be late; the October 18, 1990 Discipli-
nary Notice states Bellon had been issued a written rep-
rimand for behaving in an inappropriate and discourteous
manner toward his supervisor and had been warned that if
he did not cease this type of conduct immediately he would
be terminated; the February 12, 1991, counseling report stat-
ed Bellon was counseled for having left one of his patients
‘‘unchanged and wet’’ for a period of almost 3 hours; and,
the counseling report dated December 26, 1991, states Bellon
was counseled for not having met the ‘‘inservice requirement
of 24 hours per year,’’ and states Bellon would be unable to
renew his license as a CNA if he did not have 48 hours of
‘‘inservice’’ over a 2-year period and would have to get at
least 2 hours of ‘‘inservice’’ each month or face suspension.
In summation, at the time of his discharge, in his more
than 2-1/2 years of employment with Respondent, Bellon had
been disciplined twice; in October 1990 he received a written
reprimand for being discourteous to his supervisor and on
July 22 was verbally reprimanded for being insubordinate to
Boeger. 54 Yet, on its receipt of Bellon’s doctor’s excuse that
575CASA SAN MIGUEL
cipline under which employee counseling reports are not considered
a form of discipline and for this reason are not relied on by Re-
spondent in deciding whether to discipline employees.
55 The July 27 memo, R. Exh. 37–A, states the reason for Bellon’s
discharge was that ‘‘employee written up several [times] for not fol-
lowing hospital policy and procedures. Final incident involved insub-
ordination to a licensed supervisor.’’ (Emphasis added.)
56 I also note that while Boeger testified that the decision to dis-
charge Bellon was jointly made by Van Baren and Administrator L.
Shenker, that Shenker’s testimony was to the effect that the decision
was Shenker’s decision that she discussed with Van Baren and
Boeger (Tr. 1930–1931). Van Baren was not called by Respondent
to corroborate Administrator L. Shenker’s testimony of how the de-
cision to discharge Bellon was reached or the reasons for that deci-
sion, and, as noted supra, Boeger’s testimony concerning Respond-
ent’s reason for discharging Bellon conflicts in certain significant re-
spects with Shenker’s.
57 Administrator L. Shenker testified it is Respondent’s department
heads who are responsible for discipline of employees and Shenker
only rarely becomes involved in such matters and then only to dis-
cuss the problem with the department head (Tr. 1895–1896).
58 The basis for each of these factors has been set forth in detail
previously in this decision.
indicated he had gone to a Kaiser physician for treatment
concerning a work-related injury or illness, rather than to Re-
spondent’s physician, Respondent abruptly decided to dis-
charge him, without even first questioning him or affording
him an opportunity to relate his version of what occurred.
Since there is no evidence or contention that Bellon had pre-
viously engaged in similar conduct, and considering that
Bellon’s personnel file revealed to Respondent that in his 2-
1/2 years of employment Bellon had only been disciplined
for conduct having no relationship whatsoever to his failure
to seek medical treatment from Respondent’s doctor, and
considering that his discipline consisted of merely a written
and a verbal reprimand and that the written reprimand was
issued 1-3/4 years prior to his discharge, it is clear that in
abruptly discharging Bellon Respondent failed to follow its
usual system of progressive discipline.
Respondent’s administrator, L. Shenker, testified that on
receipt of the doctor’s excuse from Bellon on July 24, which
indicated he had gone for medical treatment for a work-relat-
ed injury or illness on July 23 to a Kaiser HMO physician,
rather than to Respondent’s physician, Respondent decided to
discharge Bellon for engaging in this conduct, as well as for
having been ‘‘written up’’ several times in the past, includ-
ing his last writeup for being insubordinate to Boeger. Ad-
ministrator L. Shenker further testified that what ‘‘caused’’
Respondent to discharge Bellon was his failure to go to Re-
spondent’s physician on July 23 for medical treatment, in-
stead of Kaiser (Tr. 1925, R. Exh. 37–B). Conflicting with
this testimony is Administrator L. Shenker’s later testimony,
given during cross-examination, that Administrator L.
Shenker discharged Bellon because he acted insubordinate to
Boeger, when on July 22 he failed to obey Boeger’s instruc-
tion to go immediately to the meeting of the p.m. shift em-
ployees (Tr. 1952, 1972). This testimony is consistent with
a memo from Administrator L. Shenker to Respondent’s pay-
roll department dated July 27 that states, in substance, that
the incident that triggered Bellon’s discharge was his insub-
ordination toward Boeger. 55 It is also consistent with
Boeger’s testimony that Van Baren and Administrator L.
Shenker ‘‘jointly’’ decided to discharge Bellon because on
July 22 he was insubordinate to Boeger (Tr. 362–363; G.C.
Exh. 14).56 Administrator L. Shenker’s and Boeger’s testi-
mony, however, that it was Bellon’s insubordinate conduct to
Boeger on July 22 that triggered Respondent’s decision to
discharge him is patently false because it is undisputed that
Administrator L. Shenker on July 22 only gave Bellon a
verbal reprimand for his insubordinate conduct. Clearly, if
Respondent viewed Bellon’s insubordination as sufficiently
serious to warrant his discharge it would have given him
more than merely a verbal reprimand for this conduct.
I reject in its entirety Administrator L. Shenker’s testi-
mony about Respondent’s reasons for discharging Bellon and
find those reasons were not the real ones, but were used by
Administrator L. Shenker as a pretext to hide the real reason.
Administrator L. Shenker’s poor testimonial demeanor and
the following additional considerations, discussed in detail
supra, taken together, led me to these conclusions: Adminis-
trator L. Shenker’s testimony concerning the way in which
Respondent’s decision to discharge Bellon was reached and
the reasons for that decision was not corroborated by either
Van Baren or Boeger, who, according to Administrator L.
Shenker discussed the decision with Shenker; Hitosis and
Bellon were both equally insubordinate to Boeger on July 22,
yet Administrator L. Shenker disciplined only Bellon and
failed to explain the reason for this disparate treatment; Ad-
ministrator L. Shenker offered shifting, conflicting and, in
part, completely implausible reasons for Bellon’s discharge;
in deciding to discharge Bellon, Administrator L. Shenker
unexplainably failed to follow Respondent’s usual system of
progressive discipline, and failed to afford Bellon the oppor-
tunity to explain why, on July 23, he visited a Kaiser physi-
cian for medical treatment for a work-related injury or ill-
ness, rather than Respondent’s physician; and, Administrator
L. Shenker failed to follow her usual practice of not involv-
ing herself in the discipline of employees,57 but, as I have
described supra, for unexplainable reasons she personally
issued Bellon a verbal reprimand for being insubordinate to
Boeger and subsequently personally decided to discharge
Bellon and personally notified Bellon of his discharge and
prepared virtually all of the paperwork connected with the
discharge.
b. Discussion
As I have found supra, Bellon was one of the Filipino em-
ployees employed by Respondent on its p.m. shift who regu-
larly met with other Filipinos on that shift to discuss the pos-
sibility of union representation. I am of the opinion that the
record as a whole establishes Respondent was aware of
Bellon’s union sympathy and activity and on July 27 dis-
charged him for that reason. The several factors which, when
viewed in their totality, led me to this conclusion, are as fol-
lows:58 Respondent knew the Union was engaged in an orga-
nizational campaign and that a significant number of its p.m.
shift Filipino employees were union adherents; Respondent
was attempting to discover the names of the Filipinos em-
ployed on the p.m. shift who were union adherents; Re-
spondent was extremely hostile towards the Filipinos em-
ployed on its p.m. shift who were union adherents because
they were union adherents; Respondent did not follow its
usual system of progressive discipline when it discharged
Bellon, but deviated from that system; Bellon was the victim
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
59 As I also found supra, President M. Shenker thereafter rescinded
Llever’s July 22 suspension.
of disparate treatment; Respondent advanced different rea-
sons for Bellon’s discharge, some of which were in conflict
and implausible; and, all of which were pretextual—they
were not the real reason for Bellon’s discharge, but were
used by Respondent as a pretext to hide the real reason. Al-
together these factors are sufficient to create the inference
that Respondent was aware of Bellon’s union activity and
sympathy and discharged him for that reason. I, therefore,
conclude that the General Counsel has established that Re-
spondent’s animus toward Bellon because of his union sym-
pathy and activity was a motivating factor for Respondent’s
decision to discharge him.
Respondent does not assert any business reason, other than
the ones that I have found were pretextual, for discharging
Bellon even if he had not engaged in his union activity. I,
therefore, find Respondent’s discharge of Bellon on July 27,
1992, violated Section 8(a)(1) and (3) of the Act.
5. Respondent’s alleged failure, commencing in mid-
July, to offer overtime work to Benjamin
and Emma Media
The complaint alleges that in or about June 1992 Respond-
ent violated Section 8(a)(3) and (1) of the Act by ceasing to
offer overtime work to employees Benjamin and Emma
Media. I find that the General Counsel has failed to establish
that Respondent ceased offering overtime work to the
Medinas, and for this reason shall recommend that the alle-
gation be dismissed.
Benjamin Medina has been employed by Respondent as a
CNA on the day shift since October 1991. His wife, Emma
Medina, is also employed by Respondent as a CNA on the
day shift.
During the last week of July approximately 10 of Re-
spondent’s employees attended a union organizational meet-
ing held at the Medinas’ home. There is no evidence the
Medinas engaged in union activity prior to that meeting or
otherwise expressed prounion sentiments. Subsequently, dur-
ing August and September, prior to September 22, employees
of Respondent attended three other union organizational
meetings held at the Medinas’ home.
Benjamin Medina testified that during 1992, prior to July,
he and his wife occasionally worked for Respondent on one
or more of their scheduled days off. CNAs who wanted this
‘‘extra work’’ gave their names to Ellenita Perez, Respond-
ent’s staff coordinator, and when Respondent needed CNAs
for this extra work, Perez contacted them.
Benjamin Medina further testified that beginning in about
mid-July and continuing until January 1993, Perez ceased of-
fering him or his wife the opportunity to work on their days
off, even though they had informed Perez they were avail-
able for the extra work.
Perez contradicted Benjamin Medina’s above testimony.
She testified that during the summer of 1992 on more than
one occasion she spoke to both Benjamin and Emma Medina
and asked them to work an extra day on their day off and
they refused to do so, and that eventually she ceased asking
them to work on their days off because of these refusals.
I credit Perez’ and reject Benjamin Medina’s testimony
because Perez’ testimonial demeanor was better than
Medina’s and because the General Counsel failed to call
Emma Medina to corroborate her husband’s testimony, thus
warranting the inference her testimony would have been ad-
verse to the General Counsel’s case.
Having found, supra, that Respondent did not cease offer-
ing overtime work to Benjamin and Emma Medina, as was
alleged in the complaint, I shall recommend that this allega-
tion be dismissed.
6. The September 4, 1992 suspension of Irineo Llever
a. The evidence
Llever is one of the Filipinos employed as a CNA on the
p.m. shift. He began work for Respondent in October 1990.
Llever was among the p.m. shift’s Filipinos who met on
a number of occasions during May through July to discuss
the possibility of having the Union represent them. In addi-
tion, as I have found supra, during the last week of July sev-
eral of the p.m. shift employees, including Llever, began to
wear a union button on their uniforms while at work. The
button was approximately 2 inches in diameter and read
‘‘Yes For Union.’’
As I have found supra, on July 22 Respondent notified
Llever he had been suspended for 3 days and, as I have also
found supra, Respondent’s decision to suspend him was mo-
tivated by its desire to discourage Llever and the other Filipi-
nos employed on the p.m. shift from supporting the Union’s
organizational campaign.59
On September 4, Llever was again suspended from work
by Julia Boeger, Respondent’s director of staff development.
When Llever came to work that afternoon he was not al-
lowed to clock in. Instead he was instructed to go to
Boeger’s office. Boeger told him he had been suspended for
3 days. In support of her decision to suspend Llever, Boeger
showed him three employee counseling reports dated August
28, September 1, and September 2.
The August 28 counseling report was signed by Charge
Nurse Eva Rivera and stated the reason for the counseling
was Llever had ‘‘harassed’’ Rivera, and described the alleged
harassment. The September 1 counseling report was also
signed by Rivera and stated the reason for the counseling
was Llever had been ‘‘insubordinate’’ to Rivera and de-
scribed the alleged insubordination. The September 2 coun-
seling report was signed by Charge Nurse Amore Santiago
and stated the reason for the counseling was Llever had been
insubordinate to Santiago, and described the alleged insubor-
dination.
Llever told Boeger that he had not harassed or been insub-
ordinate to either Rivera or Santiago, as alleged. He also ex-
plained to Boeger what had occurred between himself and
Rivera and between himself and Santiago on the occasions
described in the reports, and told Boeger he should not be
suspended for his conduct. Boeger responded by instructing
Llever to leave the premises immediately because his suspen-
sion started that day. Llever pointed out that Respondent had
not telephoned him at home and informed him of his suspen-
sion, so he had come to work, and, because of this, Llever
asked Boeger to allow him to work that day and start his
suspension the next day. Boeger refused, and when Llever
insisted he be allowed to work that day since he was already
there, Boeger threatened to telephone the police and have
577CASA SAN MIGUEL
60 Boeger denied making the above remark. I rejected her testi-
mony because Llever’s testimonial demeanor was better than
Boeger’s, which was poor.
him physically removed from the facility. Llever at this point
left the facility, escorted by Boeger, who told him that if he
wanted to return to work he could do so on September 9.
Llever replied that being suspended from September 4 to
September 9 was longer than a 3-day suspension. Boeger an-
swered, as Llever credibly testified, ‘‘[I]f you wish to come
back to work, come back on the 9th. If you don’t want to,
I appreciate it, because actually we are firing Filipinos.’’60
Prior to being notified on September 4 of his suspension,
Llever had not been shown any of the above-described em-
ployee counseling reports, nor had Charge Nurses Rivera nor
Santiago or any one from supervision previously discussed
the contents of those reports with Llever.
Boeger testified that on September 4 charge nurses Rivera
and Santiago gave Boeger the above-described employee
counseling reports and based on the contents of those reports
she decided to suspend Llever from work for 3 days. Boeger
testified her purpose in speaking to Llever on September 4
was not to give him an opportunity to explain or defend him-
self before she decided whether or not to discipline him.
More specifically, Boeger testified her decision to suspend
Llever was made before she spoke to him and was intended
to be a final decision regardless of Llever’s explanation.
Boeger also testified that because the charge nurses were
upset when they spoke to her on September 4 about Llever’s
conduct and because of Boeger’s past personal ‘‘experi-
ences’’ with Llever, that Boeger decided to suspend Llever
before giving him an opportunity to explain or defend him-
self. When asked to describe her past personal ‘‘experi-
ences’’ with Llever, Boeger testified ‘‘[H]e has a poor work-
ing attitude.’’ When pressed to be more specific about
Llever’s past misconduct and when it took place, Boeger tes-
tified, ‘‘I just don’t know. It was before these writeups, and
I experienced with Llever in the hallway when another CNA
asked him to help lift [a patient] . . . and he just walked
away,’’ because it was not his patient. When asked to de-
scribe her other personal ‘‘experiences’’ with Llever, Boeger
testified, ‘‘[J]ust encounters in the hallway,’’ which she was
not able to recall, and when asked to give her best recollec-
tion of those ‘‘encounters,’’ testified ‘‘[I]t’s just when you
say something to him he always has a comment to come
right back to you and twist everything around or I can’t re-
member word for word . . . it had to do with work because
we were at work. I can’t say anymore.’’ Boeger’s testimonial
demeanor was poor when she gave the aforesaid testimony;
it was not the demeanor of a sincere witness whose memory
lapse had been caused by the passage of time.
There is no evidence that prior to September 4 Boeger
ever spoke to Llever critically about his attitude or his work
performance. Admittedly, prior to September 4, Boeger never
issued to Llever or placed in his personnel file an employee
disciplinary notice or an employee counseling report. When
asked why she had never documented Llever’s prior mis-
conduct, Boeger testified, ‘‘I just stored it up here [referring
to her head]. I don’t know.’’ (Emphasis added.)
I reject in its entirety Boeger’s above testimony about her
reasons for not giving Llever a chance to explain or defend
himself before she decided to discipline him. Boeger’s testi-
monial demeanor was poor and, as described supra, except
for the one instance where Llever, in her presence, sup-
posedly refused to assist another CNA, Boeger was vague
and evasive when asked to describe her past personal experi-
ences with Llever that led her to conclude that he deserved
to be disciplined summarily without having a chance to de-
fend himself. Moreover, if Boeger in the past, as she testi-
fied, had ‘‘experiences’’ with Llever that demonstrated to
Boeger that Llever had a bad attitude or was otherwise not
conducting himself in a satisfactory manner, it is inconceiv-
able that Boeger would not have documented this conduct in
the form of a disciplinary notice or at the very least have
issued an employee counseling report for Llever’s conduct.
It is for the aforesaid reasons that I find Boeger had no valid
reason for not giving Llever a chance to explain or defend
himself before deciding to suspend him.
b. Discussion
As I have found supra, Respondent’s decision to suspend
Llever on September 4 was made by Boeger, who sup-
posedly made this decision because of the conduct attributed
to Llever in the three counseling reports Boeger supposedly
received on September 4 from Charge Nurses Rivera and
Santiago. Also, as I have found supra, Boeger summarily de-
cided to suspend Llever without giving him a chance to ex-
plain or otherwise defend himself against the allegations con-
tained in the counseling reports.
In view of the above circumstances, it is clear that in de-
ciding to suspend Llever, Respondent deviated significantly
from the way it normally decides whether or not to discipline
nursing department employees. Respondent’s director of
nurses, Van Baren, not Boeger, is responsible for disciplining
the employees in the nursing department. It is Van Baren to
whom the charge nurses, shift supervisors, or department
heads submit employee disciplinary notices or employee
counseling reports, and it is Van Baren who decides whether
or not employees shall be disciplined and, if so, the type of
discipline. Also, in deciding whether to discipline employees,
Respondent uses a progressive system of discipline under
which employee counseling reports are not considered as a
form of discipline and for this reason are not relied on by
Respondent in deciding whether to discipline employees. It
is also undisputed that before deciding whether to discipline
employees, Respondent’s policy is to give accused employ-
ees a chance to explain or defend themselves against the alle-
gations of misconduct.
Here, the decision to suspend Llever was not made by Van
Baren who usually makes decisions involving employee dis-
cipline. It was made by Boeger, who does not normally, if
ever, decides whether an employee should be disciplined,
and who, in deciding to suspend Llever, deviated from Re-
spondent’s usual system of progressive discipline inasmuch
as her decision to suspend Llever was based solely on infor-
mation contained in counseling reports, which are not nor-
mally regarded by Respondent as a form of discipline, and
Boeger further deviated from Respondent’s usual practice by
summarily deciding to suspend Llever without giving him an
opportunity to explain the misconduct attributed to him. Also
relevant in evaluating the bona fides of Boeger’s reasons for
suspending Llever is Respondent’s failure to explain why, if
Charge Nurses Rivera and Santiago were so upset about the
conduct set forth in the counseling reports, they never both-
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ered to speak to Llever about this conduct and delayed giv-
ing the counseling reports to management. In this last regard,
the employee counseling reports that Boeger testified were
given to her by Rivera and Santiago on September 4 were
dated August 28, September 1, and September 2. Boeger of-
fered no explanation for Rivera’s and Santiago’s delay in
submitting the reports to management. Nor did Boeger ex-
plain why these reports were not submitted to Van Baren, the
head of the nursing department, or Van Baren’s assistant,
Meagher, rather than to Boeger.
The aforesaid circumstances, in their entirety, when cou-
pled with Boeger’s poor testimonial demeanor that gave me
the impression she was more interested in tailoring her testi-
mony to suit Respondent’s case, rather than the truth, have
persuaded me to reject her testimony concerning her decision
to suspend Llever and to conclude that Boeger’s use of the
allegations contained in the counseling reports to suspend
Llever was a pretext designed to conceal Respondent’s real
reason for the suspension. I further find that the record as a
whole warrants the conclusion that it was Llever’s union ac-
tivity that was the motivating factor for Llever’s September
4 suspension.
As I have found supra, commencing in the last week of
July, Llever wore to work on his uniform a union button
stating, ‘‘Yes For Union,’’ thereby putting Respondent on
notice he was actively soliciting other employees to support
the Union’s organization campaign. That Respondent was
hostile toward Llever because of his activity on behalf of the
Union is evident from the several unfair labor practices that
I have found to have been committed by Respondent prior
to Llever’s September 4 suspension, including my finding
that when, on July 22, Respondent notified Llever he had
been suspended from work, it did so for the purpose of dis-
couraging him and the other Filipinos employed on the p.m.
shift from supporting the Union’s organizational campaign.
The foregoing circumstances, coupled with the pretextual na-
ture of Llever’s September 4 suspension, persuades me that
the General Counsel has established that Respondent’s ani-
mus toward Llever because of his union activity was a moti-
vating factor for Respondent’s decision to suspend him on
September 4, 1992.
Respondent does not assert any business reason, other than
the ones that I have found were pretextual, for suspending
Llever if he had not engaged in his union activity. I, there-
fore, find that Respondent’s suspension of Llever on Septem-
ber 4 violated Section 8(a)(3) and (1) of the Act, as alleged
in the complaint.
7. Respondent disciplines Benjamin Medina on
September 22 and October 26, 1992, January 28, and
March 22, 1993
Medina is employed by Respondent as a CNA on the day
shift. He has been employed in this capacity since the first
week of October 1991. His wife, Emma Medina, is also em-
ployed by Respondent.
During the last week of July, approximately 10 of Re-
spondent’s employees attended a union organizational meet-
ing held in Medina’s home. Thereafter, during August and
September, prior to September 22, three more union organi-
zational meetings were held in Medina’s home for the em-
ployees.
Prior to September 22, during the 11-1/2 months of his
employment, Medina did not receive a written reprimand and
there is no evidence or contention he had been otherwise dis-
ciplined or counseled. On September 22, 3 days before the
September 25 representation election, he received his first
written reprimand and subsequently, on October 26, 1992,
January 28, and March 22, 1993, received additional written
reprimands and on March 22, 1993, was suspended for 5
days
a. Medina’s September 22 discipline
(1) The evidence
As I have found supra, during the time material, Respond-
ent’s workers’ compensation claim policy was set forth in a
memo addressed to its department supervisors posted on the
bulletin board in the employees’ breakroom. The memo, Re-
spondent’s Exhibit 22, quoted in its entirety supra, reads in
substance as follows. If an ‘‘injury occurs, despite Respond-
ent’s policy to do everything possible to protect its employ-
ees from work related injuries, the injured employees must
follow this ‘procedure’’’: inform a supervisor who will give
the employee an incident report form to fill out; after inves-
tigating the injury and writing up an investigative report, the
supervisor will take the employee and the employee’s inci-
dent report to the department supervisor; the department su-
pervisor will investigate the injury and review the documents
and decide if the employee needs to see a physician; if the
department supervisor decides the employee needs to see a
physician; and it is during the hours of 8:30 a.m. to 5 p.m.,
the employee must go to Assistant Administrator Laura
Smith who will arrange for the completion of the necessary
paper work and arrange for the employee to be treated by
Dr. Martin Stuart. The memo concludes by stating that ‘‘all
employees must use the above policy for the first 30 days,
per state requirement’’ and states that ‘‘any request to see the
employees’ personal physician must be arranged when
hired.’’
On September 20, while at work, Medina told the Charge
Nurse responsible for his work station he was experiencing
pain in his back and chest that might make it impossible for
him to finish his shift that day. That evening he had an upset
stomach and diarrhea. The next morning, September 21, Me-
dina went to the Kaiser Permanente HMO for medical treat-
ment, after having first informed Respondent he would not
be at work because of an upset stomach and diarrhea.
During his September 21 visit to the Kaiser HMO doctor,
Medina told the doctor about his above-described symptoms,
including the pain in his back and chest. Medina’s back and
chest at that time were X-rayed and he was also given an
EKG. After examining the results of the X-ray and the EKG,
the doctor told Medina there was nothing wrong with his
back or heart. Then, after questioning him about his work en-
vironment, the doctor stated he was of the opinion that
Medina’s symptoms might be caused by work-related stress.
The doctor filled out and gave to Medina a document titled
‘‘Industrial Injury Visit Verification’’ that stated the doctor
had examined Medina on September 21 and diagnosed Me-
dina as having ‘‘Muscular Back Pain,’’ and stated Medina
‘‘has been ill and unable to work from September 21 through
September 23.’’
579CASA SAN MIGUEL
61 Rosen at this time was a charge nurse. In October she took
Meagher’s place as Respondent’s assistant director of nurses.
The above document that the doctor signed, was given by
Medina to his wife to take to Respondent’s facility, which
she did sometime during the afternoon of September 21.
On September 21, on receipt of the above-described note
from Medina’s doctor, Lenore Shenker, Respondent’s admin-
istrator, prepared a ‘‘written reprimand’’ for Medina in the
form of an ‘‘Employee Disciplinary Notice,’’ dated Septem-
ber 21, on which Administrator L. Shenker wrote that Me-
dina was being issued the written reprimand for the follow-
ing reasons:
You [Medina] called in on 9/20/92 saying that you
have an upset stomach and would not be at work on
9/21/92 . . . On 9/21/92 at 3:15 p.m. your wife deliv-
ered a [Doctor’s] Excuse from Kaiser for an ‘‘industrial
injury’’—with the [Diagnosis] of ‘‘Muscular Back
Pain.’’—You did not follow Hospital procedures. If, in
fact, this was a Workmans Comp. Injury, you did not
1) fill out an incident report—2) Go to [Respondent’s]
Workmans Comp [Doctor].
. . . .
. . . After calling Laura Smith, Assistant Adminis-
trator, you told her to ‘‘forget Workmans Comp claim
if that was a problem.’’ If you say that is not now a
Workmans Comp Claim, another Doctor’s excuse is re-
quired with your original reason for calling in.
Although the doctor had authorized Medina to be absent
from work through September 23, he returned to work on
September 22 and at the end of his work shift that day was
notified by Charge Nurse Patricia Rosen that Nursing Direc-
tor Van Baren was looking for him.61 Rosen escorted him
to the office of Assistant Administrator Laura Smith, who is
in charge of administering the Respondent’s workers’ com-
pensation claim policy. In Smith’s office, in the presence of
Rosen and Smith, Van Baren showed Medina the above-de-
scribed employee disciplinary notice, previously prepared and
signed by Administrator L. Shenker. Van Baren, Rosen, and
Smith accused Medina of having perpetrated a fraud by in-
forming Respondent he was going to be absent from work
due to an upset stomach, when the doctor’s certificate stated
he had incurred an industrial injury. Medina responded by
stating it was the doctor who had diagnosed his symptoms
as being work related and that Medina could not ‘‘dictate to
the doctor what to place in that certificate.’’
The above description of what occurred on September 22
in Smith’s office between Medina and Respondent’s rep-
resentatives Van Baren, Rosen and Smith, is based on
Medina’s testimony, which was not denied by either Van
Baren or Rosen, or Smith. Administrator L. Shenker testified,
however, it was Administrator L. Shenker who met with Me-
dina on September 22 and notified him of his written rep-
rimand and showed him the above-described employee dis-
ciplinary notice. When asked, what, if anything, Medina said
when he was told the written reprimand was being issued to
him, Shenker evaded answering the question; Shenker testi-
fied, ‘‘[H]e really did not say much.’’ I reject Administrator
L. Shenker’s testimony and credit Medina’s because Admin-
istrator L. Shenker’s testimonial demeanor was poor, whereas
Medina’s was good. Moreover, Respondent’s failure to call
either Van Baren, or Rosen, or Smith to corroborate Admin-
istrator L. Shenker’s testimony warrants the inference that
their testimony would have been adverse to Respondent.
Media testified he understood on September 21 that when
he incurred a work-related injury or illness, that under Re-
spondent’s policy he was required to make out an incident
report and visit Respondent’s doctor for treatment. He
credibly testified that on September 21 he did not follow this
procedure when he went to Kaiser Permanente with his back,
chest and stomach discomfort because he did not realize at
the time that he was suffering from a work-related injury or
illness and it was not until the doctor at Kaiser indicated this
to him that he was alerted to the fact that his symptoms
might be work related.
(2) Discussion
As described above, Respondent told Medina the reason
for his September 22 written reprimand was that on Septem-
ber 21 he had not complied with Respondent’s policy that an
employee must be treated by Respondent’s physician for a
work-related injury or illness. I am of the view that this was
not the real reason why Respondent disciplined Medina. This
opinion was influenced by the following considerations.
Respondent did not give Medina the opportunity to explain
or defend himself before deciding to discipline him. In fail-
ing to do so, Respondent deviated from its policy of giving
employees an opportunity to explain or defend themselves
before it decides whether to discipline them.
Respondent failed to follow its practice of having the head
of the nursing department, Van Baren, decide whether an
employee in that department should be disciplined. Instead it
was Respondent’s administrator, L. Shenker who decided to
discipline Medina, even though Shenker does not usually
concern herself in matters involving employee discipline.
Respondent failed to follow its usual system of progressive
discipline when it decided to discipline Medina. Thus, as de-
scribed supra, under Respondent’s system of progressive dis-
cipline, an employee is first counseled about the employee’s
misconduct; the employee is alerted by supervision to the
fact that he or she has engaged in an act of misconduct and
should not let it happen again. Only if the conduct occurs
again is the employee issued a verbal or a written reprimand,
or some other form of discipline, memorialized in the form
of an employee disciplinary notice. Respondent did not fol-
low this procedure in the case of Medina’s September 22 dis-
cipline, however, even though there is no evidence or conten-
tion that prior to Medina’s September 21 visit to Kaiser, that
he had violated the Company’s policy requiring employees to
visit Respondent’s physician for medical treatment concern-
ing work-related injuries. Also, in Medina’s 11-1/2 months
of employment with Respondent, Medina had not received a
written reprimand and there is no evidence that he was other-
wise the subject of discipline. Under these circumstances, it
is clear that Medina, under Respondent’s system of progres-
sive discipline, at most, should have been counseled for hav-
ing gone to Kaiser, rather than disciplined.
The above conclusion that Respondent deviated from its
system of progressive discipline by disciplining rather than
counseling Medina for going to Kaiser, rather than to Re-
spondent’s own doctor, is further supported by the fact that
Respondent’s posted notice that explains its workers’ com-
pensation claim policy, covers a situation when an employee
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
realizes that the employee’s injury is work related. It does
not expressly cover Medina’s situation, where an employee
goes to his own physician for medical treatment not realizing
his injury or illness was work related, until the doctor, after
examining the employee, indicates the illness or injury may
be related to the employees’ work environment. In such a sit-
uation Respondent normally gives the employee a chance to
rectify the situation (Tr. 1498, 1635). Here, however, Re-
spondent ignored Medina’s explanation that it was the Kaiser
doctor, not Medina, who diagnosed Medina’s pain and dis-
comfort as being work related. Indeed, according to the em-
ployee disciplinary notice prepared by Administrator, L.
Shenker, in connection with Shenker’s decision to discipline
Medina, not only did Medina explain to Respondent that it
was the doctor who had diagnosed his illness as work relat-
ed, but Medina had also assured Respondent’s assistant ad-
ministrator, Smith, that it was not his intention to file a
worker’s compensation claim against Respondent concerning
this illness. Nevertheless, despite the reasonableness of
Medina’s explanation, despite his assurance that he did not
intend to file a worker’s compensation claim, despite his past
unblemished disciplinary record, and despite the fact that in
the past he had not violated Respondent’s workers’ com-
pensation claim policy, Respondent’s administrator, L.
Shenker, who normally does not concern herself with the dis-
cipline of employees, summarily decided to discipline Me-
dina, without even affording him an opportunity to explain
or defend his conduct. Clearly, these circumstances establish
that in disciplining Medina, instead of merely counseling
him, Respondent deviated from its usual system of progres-
sive discipline and that the real reason for Medina’s dis-
cipline was not that he had gone to Kaiser on September 21
for medical treatment, instead of to Respondent’s physician,
but was merely used by Respondent as an excuse to dis-
cipline him for some other undisclosed reason. I further find,
for the reasons below, that the record as a whole warrants
the conclusion that it was Medina’s union activity that was
a motivating factor for Medina’s September 22 written rep-
rimand.
As I have found supra, during the 2-month period imme-
diately before Medina’s September 22 discipline, there were
four union organizational meetings held at his home attended
by Respondent’s employees.
As I have found supra, in an effort to discover the identi-
ties of the union activists and sympathizers in its employ,
Respondent asked Supervisor Bagley to report to manage-
ment the names of such employees and asked employees
Mejia, and Ignacio to spy on employees’ union activities on
behalf of Respondent. I considered that Bagley refused to en-
gage in this conduct, and was no longer in Respondent’s em-
ploy during the greater part of the time material to Medina’s
discipline, and that Mejia, and Ignacio were employed on the
night shift. Given Respondent’s effort, however, to enlist the
aid of Bagley, Mejia, and Ignacio to identify the union activ-
ists and sympathizers in its employ, it would be naive for me
to believe that Respondent stopped with these individuals
and did not solicit others in its employ to identify for Re-
spondent’s management the union activists and sympathizers
in its employ.
Respondent’s extreme hostility towards employees who
were union activists or sympathizers is evident from the un-
fair labor practices that I have found Respondent has com-
mitted in order to penalize or punish employees for having
supported the Union and/or to discourage them from support-
ing the Union.
Medina, who, in his previous 11-1/2 months of employ-
ment with Respondent had not been disciplined, was dis-
ciplined for the first time only 3 days before the September
25 union representation election.
The aforesaid factors—Medina’s union activity, Respond-
ent’s efforts to identify those employees who were union ac-
tivists or sympathizers, Respondent’s antiunion animus, and
the timing of Medina’s discipline—when considered in the
context of Respondent’s pretextual reason for disciplining
Medina, is sufficient to create the inference that Respondent
was aware of Medina’s union activity and discharged him for
that reason. I, therefore, conclude that the General Counsel
has established that Respondent’s animus toward Medina be-
cause of his union activity was a motivating factor for Re-
spondent’s decision to issue him a written reprimand on Sep-
tember 22.
Respondent does not assert any business reason, other than
the one that I have found was pretextual, for disciplining
Medina on September 22 even if he had not engaged in his
union activity. I, therefore, find that Respondent’s discipline
of Medina on September 22 violated Section 8(a)(1) and (3)
of the Act.
b. Medina’s October 26 discipline
(1) The evidence
During the week of October 19, Day-Shift CNA Hansa
Kamdar informed Respondent’s management she observed
CNA Florencio Baldoza abusing a patient. Respondent’s in-
vestigation of this allegation resulted in Baldoza’s discharge.
On the morning of October 26, or a day or two before,
Medina, during the morning break period, was seated at a
table in the breakroom with his wife Emma and with CNAs
Juris Calabaio and Agnes Weiss. They were discussing
Baldoza’s discharge. They all expressed surprise over his dis-
charge and asked one another why he had been discharged.
Kamdar, who was seated at another table in the breakroom,
got up and came over to the table where Medina and the oth-
ers were seated and asked why they always spoke about
Baldoza’s termination when she was around. Medina an-
swered that this was the first time they had discussed
Baldoza’s termination, and explained they had discussed the
subject because they were surprised to hear he had been ter-
minated. Kamdar stated she did not know why he was termi-
nated and was not responsible for his termination, and began
to cry.
The above description of Kamdar’s encounter with Medina
is based on the undenied testimony of Medina, whose testi-
monial demeanor was good when he gave this testimony.
Medina also credibly testified this was the only occasion
when he spoke about Baldoza’s termination in Kamdar’s
presence, and credibly denied accusing Kamdar of being re-
sponsible for Baldoza’s termination or asking Kamdar why
she had reported Baldoza, or that when he spoke to Kamdar
he used words to the effect that Baldoza had done nothing
wrong by using a pillow.
On October 26, between late morning and 3 p.m., the end
of Medina’s work shift, Medina was called to the office of
Assistant Administrator Smith, where, in the presence of
581CASA SAN MIGUEL
Smith and Assistant Nursing Director Rosen, Nursing Direc-
tor Van Baren showed Media an employee disciplinary no-
tice dated October 26 that had been signed by Van Baren
and Smith and that stated Medina had been issued a ‘‘written
reprimand’’ for the following reasons:
On the days of Oct 24th and 25th it was reported to
administration that you harassed a fellow employee re-
garding Florencio Baldoza. This is against hospital pol-
icy—the employee who was harassed told you to stop
and you refused. On 9/21/92 you were written-up for
failure to follow Hosp. policy. If you have any ques-
tions regarding hospital policy refer to your handbook
or contact your supervisor.
Van Baren told Medina it was Kamdar who had com-
plained about the alleged harassment. Van Baren warned Me-
dina his conduct would not be tolerated. Medina responded
by stating he had not harassed Kamdar, and explained to Van
Baren that what occurred was during a break period he had
been speaking to other employees about the reason for
Baldoza’s discharge, when Kamdar, who had not been a
party to the employees’ discussion, interjected herself into
the discussion by asking why it was that every time Kamdar
was present that the employees talked about Baldoza, and
started to cry. Van Baren replied this was not what Kamdar
had told Van Baren, and Van Baren instructed Medina to
leave Kamdar alone and told him she would not tolerate har-
assment. Van Baren also asked if Medina did not feel it was
wrong for a CNA to place a pillow over a patient’s face.
Medina replied he had never said that this type of conduct
was permissible. The meeting ended with Van Baren inform-
ing Medina she expected his behavior to stop immediately
and also expected him to assist Kamdar in her work, if she
needed help, because harassing another employee included
refusing to assist that employee.
The above description of the October 26 meeting between
Medina, Van Baren, Rosen, and Smith is based on a compos-
ite of the testimony of Van Baren and Medina. I have not
rejected Van Baren’s testimony, despite her poor testimonial
demeanor, because her testimony about this meeting did not
conflict with Medina’s.
Van Baren was Respondent’s sole witness with respect to
Medina’s October 26 written reprimand. She did not ex-
pressly testify why she decided to issue this written rep-
rimand. She did testify, however, about the circumstances
that caused her to prepare and sign the October 26 employee
disciplinary notice that notified Medina he had been issued
a written reprimand. Van Baren’s testimony is summarized
as follows. On the morning of October 26, Kamdar, who was
crying, told Van Baren that during the previous 2 days Me-
dina had ‘‘harassed’’ her by accusing her of getting Baldoza
fired, by asking Kamdar why she had reported Baldoza, and
by stating that Kamdar knew that what Baldoza had done
was not wrong. Van Baren, on being told this by Kamdar,
immediately contacted Respondent’s labor relations consult-
ant who directed her to prepare a statement for Kamdar to
sign. Van Baren, based on what Kamdar had told her, pre-
pared such a statement, and Kamdar signed it on October 26,
in Van Baren’s presence. This statement, Respondent’s Ex-
hibit 19, reads in pertinent part:
I was on duty as a CNA on both Sat. Oct. 24th and
Sunday Oct. 25th, 1992. On both of these days I was
approached by another CNA, Ben Medina. He kept
harassing me saying that I got Florencio fired. He kept
saying to me that Florencio was a nice man and that
he was nice and helped you why did you report him.
You know that there was nothing wrong with him put-
ting a pillow case like that. Because of these state-
ments, he has me in tears making it difficult for me to
do my job.
Van Baren further testified she met with Medina on Octo-
ber 26, as described supra, a few hours after having prepared
the above-typed statement for Kamdar’s signature. She fur-
ther testified that the reason she decided to discipline Medina
before even speaking to him about Kamdar’s accusation was
that if, after discussing Kamdar’s accusation with Medina,
there was a reason for her to change her decision, ‘‘at that
point it could have been changed’’ (Tr. 1629–1630). This
testimony is unbelievable, however, when viewed in the con-
text of Van Baren’s subsequent conduct. For, as described
above, it is undisputed that during his October 26 meeting
with Van Baren, Medina denied having harassed Kamdar, as
alleged in the disciplinary notice, and explained to Van
Baren what had in fact occurred and stated that the incident
had taken place in the breakroom in the presence of other
employees. Yet, Van Baren rejected Medina’s explanation
without even speaking to the other employees who were
present during the alleged harassment, so as to determine
whether Medina was telling the truth. In acting in this man-
ner, Van Baren deviated from her usual policy of conducting
an investigation prior to deciding whether or not to discipline
an employee.
As I have previously stated, Van Baren’s demeanor—the
tone of her voice and the way she spoke, looked and acted
while testifying—has led me to believe she was a dishonest
witness, more interested in tailoring her testimony to support
Respondent’s case than in the truth. This was also my im-
pression of her when she testified about her October 26 con-
versation with Kamdar and about the preparation of the typed
statement signed by Kamdar and about her reason for decid-
ing to discipline Medina even before affording him the op-
portunity to explain or defend himself against Kamdar’s ac-
cusations. In other words, because of Van Baren’s poor testi-
monial demeanor I am unwilling to accept her uncorrobo-
rated testimony concerning these matters.
(2) Discussion
In deciding to discipline Medina on October 26, Van
Baren deviated from Respondent’s usual practice in two sig-
nificant respects; she made the decision without first giving
Media an opportunity to explain or defend himself against
Kamdar’s accusations, and failed to conduct an investigation
to determine whether the accusations were true, even after
Medina had told her he had not engaged in the misconduct
attributed to him and specifically indicated to Van Baren that
there were witnesses present who would corroborate his ex-
planation. Van Baren was in such a hurry to discipline Me-
dina, however, that she summarily decided to discipline him.
These factors, when considered together with Respondent’s
violation of the Act when it disciplined Medina on Septem-
ber 22 for his union activity, persuade me that the General
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
62 As I have found supra, Respondent disciplined Medina on Sep-
tember 22 because of his union activity.
Counsel has established that a motivating factor for Respond-
ent’s decision to discipline Medina on October 26 was his
union activity.
Having found the General Counsel has established a prima
facie case to support the complaint’s allegation that Respond-
ent’s October 26 discipline of Medina violated the Act, the
remaining question is whether Respondent has demonstrated
by a preponderance of the evidence that it would have dis-
ciplined Medina on October 26 in the absence of his union
activity. For the reasons set forth hereinafter, Respondent has
not demonstrated this.
As I have noted supra, Van Baren was Respondent’s sole
witness with respect to Medina’s October 26 written rep-
rimand. She did not, however, expressly testify why she de-
cided to issue this written reprimand. The employee discipli-
nary notice, however, that Van Baren prepared and showed
to Medina on October 26 states, in substance, that the rea-
sons Medina was being disciplined were twofold: (1) Re-
spondent had been informed he had been harassing a ‘‘fellow
employee,’’ referring to Kamdar, which constituted a viola-
tion of hospital policy; and (2) this was not the first time
Medina had violated hospital policy because on September
22 he had been disciplined for failing to follow hospital pol-
icy. Thus, the reason that supposedly triggered Respondent’s
decision to discipline Medina on October 26 was Kamdar’s
report to Van Baren that Medina was harassing her, and a
contributing cause for the decision was that Medina had been
previously disciplined on September 22 for violating com-
pany policy.
As I have found supra, Van Baren’s uncorroborated testi-
mony concerning what caused her to believe Medina had
harassed Kamdar, is not reliable, thus there is no credible
evidence to support Respondent’s contention it would have
disciplined Medina on October 26 for harassing Kamdar
even in absence of Medina’s union activity. In any event,
since Medina’s employee disciplinary notice admits that a
contributing cause of his October 26 discipline was that on
September 22 he had been disciplined for his union activ-
ity,62 this establishes that Medina in all probability would not
have been disciplined on October 26 if he had not engaged
in union activity. It is for the foregoing reasons that I find
Respondent has failed to establish it would have disciplined
Medina on October 26 in the absence of his union activity.
I, therefore, find that Respondent violated Section 8(a)(1)
and (3) of the Act, as alleged in the complaint, by issuing
Medina’s October 26 written reprimand.
c. Medina’s January 28, 1993 discipline
(1) The evidence
Medina has worked on the day shift as a CNA since Octo-
ber 7, 1991. The day shift begins at 6:30 a.m. and ends at
3 p.m.
One of the duties of a day-shift CNA is to assist the pa-
tients to take showers. Patients are not required to take a
shower. If a patient is ‘‘alert,’’ able to communicate whether
the patient desires to take a shower, the CNA assigned to
care for that patient is required to ask the patient every other
day if the patient desires to take a shower and the patient
has the right to decline the offer of a shower. Prior to the
events material to Medina’s January 28, 1993 employee dis-
ciplinary notice, there was no requirement that patients be
showered in the morning. It was permissible for the CNAs
to have their patients shower in the afternoon, prior to the
end of the shift.
The above description of the obligation of the CNAs em-
ployed on the day shift to assist their patients to take show-
ers is based on the undenied testimony of Medina, whose
testimonial demeanor was good when he gave this testimony.
I considered that Assistant Nursing Director Rosen, as de-
scribed infra, testified that when she disciplined Medina on
January 28 for not having given showers to patients Chance
and Harvey that morning, she told Medina the patients were
not to be showered in the afternoon unless authorized by the
patients’ physician and that even if patient Chance had indi-
cated she did not want to take a shower, Medina was sup-
posed to check with the charge nurse about this. Respondent
presented no evidence, however, to controvert Medina’s
credible testimony that during the period he had been em-
ployed on the day shift, prior to January 28, 1993, it was
permissible for the CNAs to give their patients their showers
in the afternoon if they were unable to do so in the morning
and that the patients had the right to refuse to take a shower.
On January 28, 1993, Medina was working at station 3.
Two of his patients were Harvey and Chance. Medina testi-
fied it was his practice to have Harvey take his shower in
the afternoon, before Medina returned him to his bed, and on
January 28 it was Medina’s intention to follow that practice.
Medina’s testimonial demeanor was good when he gave this
testimony. I also note Respondent maintains charts for each
patient, which on a daily basis show whether or not the pa-
tients have been given a shower and, if so, the time of the
day the shower was given. Respondent failed to produce
Harvey’s charts to refute Medina’s undenied testimony that
it had been his practice prior to January 28 to take Harvey
for a shower in the afternoon rather than the morning.
Chance, as an ‘‘alert’’ patient, had the right to decline to
take a shower. On the morning of January 28, Medina asked
Chance whether she wanted to take a shower. Chance re-
sponded by shaking her head in a manner that indicated she
did not want a shower that day. Medina testified that al-
though Chance was not able to speak, she was mentally alert
and able to communicate to Medina whether or not she
wished to take a shower. Rosen testified to the effect that
Chance was not sufficiently mentally alert, to indicate wheth-
er or not she desired to take a shower. I credited Medina’s
testimony because his testimonial demeanor, which was good
when he testified about this matter, was better than Rosen’s.
On January 28, 1993, the charge nurse normally assigned
to station 3 on the day shift was apparently unavailable, so
the position was filled that day by Acting Charge Nurse Pa-
tricia Rosen, who was the assistant director of nurses. Rosen
had been the assistant director of nurses since October 1992.
Prior to October, Rosen, who is a licensed vocational nurse,
had worked for Respondent as a charge nurse whose duty
was to rotate among the various shifts. During this period,
however, she had worked only ‘‘occasionally’’ on the day
shift, the shift on which Medina was employed. Since her ap-
pointment in October 1992, as Assistant Director of Nurses
Rosen had not worked on Medina’s shift as a charge nurse,
until January 28, 1993.
583CASA SAN MIGUEL
63 This refers to the fact that a few days after January 28, Medina,
in the presence of Charge Nurse Grace Marilla, asked Chance
whether or not she wanted to take a shower. Medina credible testi-
fied he did this in order to corroborate that what he had told Rosen
about Chance on January 28 was true; that on January 28 Chance
was sufficiently alert so as to have had the ability to indicate to Me-
dina that she did not want to have a shower that day.
On the morning of January 28, when Medina returned
from his lunch break at 11 a.m., Rosen told him she had not
observed him taking Chance and Harvey for their showers.
Medina acknowledged this was true. Rosen said nothing fur-
ther to Medina. Instead, she left Medina and prepared an em-
ployee disciplinary notice that stated on January 28 Medina’s
work performance had been unsatisfactory because he had
not showered Chance and Harvey and had not checked with
Rosen about ‘‘any [patient] refusing or problem you may be
having.’’ Rosen testified she did not issue the aforesaid dis-
ciplinary notice in her capacity as Respondent’s assistant di-
rector of nurses, but acted in her capacity as acting charge
nurse (Tr. 2057).
On January 28, 1993 Rosen showed the above described
employee disciplinary notice to Medina, who, after reading
it, told Rosen since it was only 11 a.m., it was too early for
Harvey’s shower and explained to Rosen it was his practice
to give Harvey a shower in the afternoon before returning
him to his bed. Regarding his failure to have showered
Chance that morning, Medina explained to Rosen he had
asked if Chance wanted to take a shower and Chance had
indicated she did not want to take a shower that day.
The above description of what Medina said to Rosen after
reading the employee disciplinary notice is consistent with
Medina’s and Rosen’s testimony. Their testimony, however,
conflicts sharply about what, if anything, Rosen, said to Me-
dina. Medina testified that Rosen did not reply to the reasons
Medina explained to her for not having given showers to
Harvey and Chance that morning. Rosen testified that she re-
sponded to Medina’s explanation by stating: Chance did not
have the ability to inform Medina whether she wanted a
shower and, even if she had that ability, Medina was sup-
posed to check with the charge nurse before deciding not to
give Chance a shower; and, Medina’s practice of showering
Harvey in the afternoon was improper because all patients
were to be showered at the start of the day, absence a doc-
tor’s authorization.
On February 12, 1993, Medina sent the following letter to
Rosen:
This has reference to my write-up of January 28,
1993, concerning my failure to shower residents Joseph
Harvey and Mary Chance.
On resident Mary Chance, I asked her if she wanted
to have shower and she told me she do not want to
have shower. Mary Chance is an alert resident. To
prove my allegation that this resident is alert, I asked
her, in the presence of LVN Grace Marilla, if she wants
to have shower and she replied that she do not want to
have shower.63
On resident Joseph Harvey, I usually bath the resi-
dent before putting him back to bed in the afternoon.
When you called me as I was about to go to punch-
in my time card after lunch at 11 a.m., and informing
me that you wrote me up for not giving showers to my
two residents, I was surprised. I signed the write-up not
as an admittance for my failure to shower my two resi-
dents but an acknowledgment of what you wrote.
After this January 28, 1993, I took note of CNA’s
assigned in Station 3, who are supposed to be giving
showers to at least four (4) residents daily. I noticed
that some are not at all giving showers and that nothing
have been done against them.
Also, I would like to have copies of my write-ups
of Sept. 22, 1992 (going to hospital) and October 24,
1992 (harrassment) [sic] aside from the recent write-up.
I am enclosing herewith a self-stamped envelope for
whatever documents you can send me.
On or about February 14, 1993, Medina was called to Ad-
ministrator L. Shenker’s office and asked by her why he had
sent the above letter, rather than personally speak to Rosen
about the matters contained in the letter. Medina replied in
substance he felt more comfortable putting it in writing. Ad-
ministrator L. Shenker stated she thought it would be better
if Medina communicated in person with Rosen. The meeting
ended with Shenker refusing, without an explanation, to
comply with Medina’s request that Respondent provide him
with copies of the employee disciplinary notices that had
been issued to him in September and October 1992, and Jan-
uary 1993.
On direct examination, Rosen, when asked to describe the
circumstances that caused her to discipline Medina, testified
that at the start of the work shift on January 28, she in-
structed all of the CNAs, among other things, to make sure
to ‘‘get your patients to activities’’ on a ‘‘timely basis.’’ Sig-
nificantly, she did not testify she instructed them to take their
patients for their showers the first thing in the morning. Sub-
sequently, however, when I asked why, instead of merely
counseling Medina for his failure to shower Chance and Har-
vey that morning, she had disciplined him, Rosen testified in
effect that the reason she disciplined Medina was because he
acted insubordinate toward her. In support of this assertion
she further testified that at the start of the work shift on Jan-
uary 28 she ‘‘specifically’’ instructed all of the CNAs to get
their patients ‘‘up,’’ ‘‘showered,’’ and take them to their
‘‘activity.’’ I reject this testimony because of Rosen’s poor
testimonial demeanor. Moreover, if Rosen’s reasons for dis-
ciplining Medina, rather than merely counseling him, was his
insubordination, why did Rosen not expressly state this in
Medina’s employee disciplinary notice or when she spoke to
him on January 28?
(2) Discussion
Medina was disciplined on January 28 ostensibly for fail-
ing that morning to shower patients Chance and Harvey. This
was not, in my opinion, the real reason why he was dis-
ciplined.
As I have found supra, by failing to shower patients
Chance and Harvey on the morning of January 28, Medina
did not violate company policy or otherwise act improperly.
Respondent has no requirement that patients take a shower
in the morning, rather than during the afternoon, and patients
have the right to refuse to take a shower. Medina did not
take Harvey for his shower on the morning of January 28 be-
cause, consistent with Medina’s past practice, he intended to
shower Harvey that afternoon, and, when Medina on the
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
64 Medina’s testimony is corroborated by Boeger’s testimony,
infra, that on March 22, 1993, when she spoke to CNA Northrup
and the other CNAs specifically named by Medina as having been
pulling geri-chairs, they admitted to Boeger that ‘‘everybody’’ on the
day shift had been doing this.
65 Although the charge nurses are not supervisors within the mean-
ing of Sec. 2(11) of the Act, the record establishes that under Re-
spondent’s system of progressive discipline, the charge nurses are re-
sponsible for making sure that the CNAs who work under their su-
pervision obey Respondent’s work rules. In carrying out this respon-
sibility, the record also reveals, they submit disciplinary notices to
the head of the nursing department, Van Baren, who conducts an
independent investigation before deciding whether the employees
should be disciplined as recommended by the charge nurses.
morning of January 28 asked if Chance wanted to take a
shower that day, she exercised her right not to take a shower.
Therefore, the reasons set forth on Medina’s January 28 em-
ployee disciplinary notice as the basis for his discipline are
completely without substance. This warrants the inference
that Respondent disciplined Medina for some other undis-
closed reason. The pretextual nature of Medina’s discipline
is demonstrated further by the additional circumstances set
forth hereinafter.
As discussed supra, whenever one of Respondent’s li-
censed nurses believes an unlicensed nurse has engaged in
conduct that warrants discipline, the licensed nurse, whether
it is a charge nurse, or a shift supervisor, or a department
head, must submit the disciplinary notice to the head of the
nursing department, Van Baren, who, after independently in-
vestigating the situation, decides whether to discipline the
employee. On January 28, 1993, however, Rosen in her ca-
pacity as an acting charge nurse, disciplined Medina without
consulting Van Baren. Rosen did not explain why she failed
to follow the customary disciplinary procedure in the case of
Medina’s discipline.
Rosen also summarily decided to discipline Medina, with-
out first asking him why he had not taken Chance and Har-
vey for their showers. Then, when Medina, after having been
informed that he had been disciplined, explained to Rosen
why he had not taken Chance and Harvey for their showers,
Rosen ignored his explanation even though it constituted a
valid reason for his conduct, and if Rosen had investigated
she would have discovered that Medina’s conduct was justi-
fied.
As indicated supra, it was very unusual for Rosen to work
as a charge nurse on the day shift. This was the first time
in several months that she had acted in this capacity. Yet,
Rosen did not consult with the day-shift supervisor or with
station 3’s regular charge nurse about Medina’s conduct. In
view of their day-to-day contact with Medina and the pa-
tients assigned to him, the day shift supervisor and the sta-
tion 3 charge nurse presumably would have been able to tell
Rosen whether Medina was telling the truth, when he ex-
plained to Rosen that Chance was sufficiently alert to indi-
cate she did not want to take a shower, and whether it was
Medina’s practice, sanctioned by supervision, to shower Har-
vey in the afternoon, rather than the morning. Instead, Rosen
summarily disciplined Medina.
The aforesaid circumstances, together with the lack of sub-
stance for the reasons advanced by Respondent in Medina’s
January 28 employee disciplinary notice, establish that
Medina’s failure to shower Harvey and Chance was not the
real reason for his discipline, but was used as a pretext to
discipline him for an undisclosed reason. I further find, for
the reasons below, that the whole record warrants the conclu-
sion it was Medina’s union activity that was a motivating
reason for Medina’s January 28, 1993 discipline.
As I have found supra, during the first 11-1/2 months of
his employment as a CNA, Medina was not disciplined until
September 22 and then again on October 26, and in dis-
ciplining him on those dates Respondent did so because of
his union activity, in violation of Section 8(a)(1) and (3) of
the Act. Thus, Respondent’s animosity toward Medina be-
cause of his union activity is evident from its discipline of
him on September 22 and October 26 because of his union
activity. This coupled with the false reasons advanced by Re-
spondent for Medina’s January 28, 1993 discipline, estab-
lishes that the Respondent’s animus toward Medina was a
motivating factor for its decision to discipline him on Janu-
ary 28, 1993.
Respondent does not assert any business reasons, other
than the ones that I have found were false and pretextual, for
disciplining Medina on January 28, 1993, even if he had not
engaged in his union activity. I, therefore, find Respondent’s
discipline of Medina on January 28, 1993, violated Section
8(a)(1) and (3) of the Act.
d. Medina’s March 22, 1993 discipline
(1) The evidence
Geri-chairs are mobile chairs commonly used at Respond-
ent’s facility by the CNAs to transport the patients. It is a
violation of Respondent’s policies governing employees’
conduct, as well as a violation of the regulations promulgated
by the California Department of Health, for Respondent’s
CNAs to transport patients in geri-chairs by pulling the
chairs backwards.
In August, when the California Department of Health in-
spected Respondent’s facility, one of the ‘‘deficiencies’’ that
the inspectors noted in their report was that the CNAs were
transporting patients by pulling them backwards in the geri-
chairs. Respondent’s management dealt with this deficiency
by holding meetings with all of the CNAs, where it was
made clear to them they were not to pull patients backwards
in the geri-chairs, but were to push the chairs forward.
Medina credibly testified that by March 1993 a significant
number of the day-shift CNAs, including Medina, once again
were pulling geri-chairs when transporting patients, because
it was easier to pull the chairs, rather to push them.64 Medina
also credibly testified that they had been observed doing this
by several of the charge nurses, but were not disciplined for
engaging in this conduct.65 The sole evidence that they were
also observed doing this by the shift’s supervisor or by a de-
partment head is Medina’s undenied testimony that Vera La-
cuna, the head of the Respondent’s housekeeping and main-
tenance department, observed him pulling a patient back-
wards in a geri-chair and said nothing to him.
During the morning of March 22, 1993, Boeger observed
Medina transporting a patient by pulling, rather than pushing,
the patient’s geri-chair. She told Medina to push rather than
pull the chair.
Later that same day, early in the afternoon, Boeger called
Medina to her office, where she had him read an ‘‘Employee
Disciplinary Notice’’ prepared and signed by Boeger, which
585CASA SAN MIGUEL
stated that on March 22 Medina’s performance had been un-
satisfactory because ‘‘he was seen pulling a resident back-
wards down the hallway in a geri chair’’ in violation of the
resident’s right to be treated with respect and dignity and in
violation of the rules and regulations governing employee
conduct. Medina read the notice, refused to sign it, and told
Boeger that the other CNAs on the day shift were pulling,
rather than pushing, the geri-chairs and specifically named
some of the CNAs he had observed doing this, one of whom
was Ginger Northrup. Boeger responded by stating that just
because Medina observed others pulling patients in geri-
chairs backwards, it did not excuse his conduct because, as
Boeger pointed out to Medina, all of the CNAs, including
Medina, had been previously informed by Respondent they
were not to pull patients backwards in geri-chairs.
Later, on March 22, when he arrived home from work at
approximately 3:40 p.m., Medina received a telephone call
from Administrator L. Shenker, who told him that starting
the next day he was suspended from work for 5 days because
of the employee disciplinary notice he had received for pull-
ing the geri-chair and warned him that if he received another
disciplinary notice he would be discharged.
Boeger testified in effect she was the person who decided
to issue Medina’s March 22 employee disciplinary notice for
pushing a geri-chair. When questioned about what she did
with that notice on March 22, after Medina refused to sign
it, Boeger first testified that she was not sure whether she
‘‘gave it to the front office or [to] L. Shenker.’’ When
pressed further on this subject, however, Boeger testified she
gave the employee disciplinary notice to Administrator L.
Shenker, told Shenker she had observed Medina pulling the
geri-chair and that one of the deficiencies noted by the Cali-
fornia Department of Health’s inspection in August was that
CNAs were pulling geri-chairs. Boeger further testified she
told Administrator L. Shenker she did not know ‘‘what kind
of action to take’’ and Shenker responded by telephoning
Medina, in Boeger’s presence, and informing Medina he was
suspended for 5 days and, still in Boeger’s presence, by writ-
ing the following notation at the bottom of Medina’s March
22 employee disciplinary notice: ‘‘Upon investigation, ad-
ministration has decided to suspend Ben Medina for 5 work-
ing days. Last Warning.’’
Boeger was the only witness called by Respondent to tes-
tify about its March 22, 1993 decision to issue an employee
disciplinary notice to Medina and suspend him for 5 days.
Administrator L. Shenker who made the decision to suspend
Medina was not questioned about her reason or reasons for
imposing this degree of discipline. Nor was Administrator L.
Shenker asked to explain why it was her, rather than Nursing
Director Van Baren, who decided to suspend Medina. Like-
wise, Boeger failed to testify why it was Boeger, rather than
Van Baren, who decided to issue Medina’s March 22 em-
ployee disciplinary notice. As I have discussed supra, under
Respondent’s system of progressive discipline, it is Van
Baren who decides whether to discipline the employees em-
ployed in her department.
During Boeger’s examination by Respondent’s counsel, no
mention was made of the fact that almost contemporaneously
with Medina’s March 22, 1993 employee disciplinary notice
and 5-day suspension, that Respondent issued only verbal
warnings to each of the other CNAs employed on the day
shift for engaging in the same conduct as Medina. During
cross-examination, however, Boeger was confronted with
General Counsel’s Exhibits 36 and 37, which indicate on
their face that Respondent on March 25 issued verbal warn-
ings to each of the approximately 20 other CNAs employed
on the day shift for pulling patients backwards in geri-chairs.
General Counsel’s Exhibit 36 is a memo entitled ‘‘Verbal
Warning’’ dated March 25, 1993, from Boeger to Day-Shift
CNA Ginger Northrup, stating Boeger had been told by ‘‘an-
other CNA’’ that Northrup had been pulling geri-chairs back-
wards. The memo warns Northrup that if Boeger ever ob-
served Northrup doing this, Northrup would receive a ‘‘Dis-
ciplinary Notice’’ and stated Northrup knew it was improper
to pull patients backwards because she had been spoken to
about the rights of patients.
General Counsel’s Exhibit 37 is an ‘‘In Service Training
Report’’ dated March 25, 1993, signed by each of the 20
CNAs employed on the day shift. It states, in substance, that
Boeger and the assistant head of the nursing department
Rosen spoke to the day-shift CNAs on March 25 about push-
ing, rather than pulling, geri-chairs, and all 20 of the day
shift CNAs had received a ‘‘verbal warning’’ for pushing pa-
tients backwards in geri-chairs.
The significant portions of Boeger’s testimony elicited
during cross-examination concerning General Counsel’s Ex-
hibits 36 and 37 was as follows: On March 22, Medina told
Boeger that other day shift CNAs were pulling patients back-
wards in geri-chairs and specifically named some of them;
Boeger went and spoke to the CNAs named by Medina, who,
when confronted by Boeger, admitted to Boeger that ‘‘every-
body’’ was pulling patients backwards in geri-chairs (Tr.
1819, L. 5–12); Boeger then issued verbal warnings to the
CNAs who made this admission, one of whom was
Northrup; and, subsequently, on March 25, Boeger and
Rosen met with all of the day-shift’s CNAs, approximately
20, at which time they issued to each of them a verbal warn-
ing for having pulled patients backwards in geri-chairs.
Boeger testified Medina was penalized more severely than
the other day-shift CNAs for engaging in the same mis-
conduct because Boeger personally observed him pulling a
geri-chair, whereas Boeger only received hearsay information
that the other CNAs had been engaging in this conduct. I do
not believe this testimony for these reasons: Boeger’s testi-
monial demeanor, which generally was poor, was no dif-
ferent when she testified about Medina’s March 22, 1993
employee disciplinary notice and suspension; and, when
Boeger confronted Northrup and the other CNAs specifically
named by Medina as having been pulling patients in geri-
chairs, Boeger testified that Northrup and the others did not
deny having engaged in this conduct, but admitted to Boeger
that ‘‘everybody’’ was pulling the patients in geri-chairs,
thus, as to Northrup and the others who made this admission,
Boeger had more than hearsay information concerning their
misconduct.
In any event, Boeger’s above-testimony is not entitled to
any weight insofar as it pertains to Respondent’s reason for
suspending Medina for 5 days, rather than imposing a lesser
penalty for his misconduct, because Boeger was not com-
petent to testify about that matter. According to Boeger’s tes-
timony, it was Administrator L. Shenker, not Boeger, who
decided to suspend Medina, and, according to Boeger’s testi-
mony, Administrator L. Shenker did not explain or otherwise
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
66 As I have found supra, on March 22, 1993, CNA Northrup and
the one or two other day-shift CNAs, who Medina specifically
named as having pulled geri-chairs, admitted to Boeger that
Medina’s accusation was true. It is reasonable to infer that Boeger
promptly communicated this information to Administrator L.
Shenker. Neither Boeger nor Administrator L. Shenker denied that
Boeger did this.
indicate to Boeger what prompted her to treat Medina dif-
ferently than the other CNAs who had engaged in mis-
conduct identical to Medina’s.66 Administrator L. Shenker, a
witness for Respondent, was not questioned about Medina’s
suspension.
(2) Discussion
The factors set forth hereinafter have persuaded me that
the General Counsel has established that Respondent’s ani-
mus toward Medina because of his union activity was a mo-
tivating factor for Medina’s March 22, 1993 employee dis-
ciplinary notice and suspension.
Prior to September 22, during the 11-1/2 months of his
employment, Medina had not received a written reprimand
and there is no evidence or contention he had been otherwise
disciplined or counseled. Medina was first disciplined on
September 22, and then again on October 26, and again on
January 28, 1993. As I have found supra, Respondent dis-
ciplined him on those dates because of his union activity,
thereby violating Section 8(a)(1) and (3) of the Act. Thus,
Respondent’s animosity toward Medina because of his union
activity is evident from its past history of disciplining him
because of his union activity in violation of the Act.
During March 1993, before March 22, the day-shift CNAs,
including Medina, when transporting patients around the fa-
cility in geri-chairs frequently pulled the patients backwards,
instead of pushing the chairs as required by Respondent’s
work rules. As described in detail supra, when Respondent’s
management learned that its day-shift CNAs were transport-
ing patients by pulling them backwards in their geri-chairs,
it issued verbal warnings to all of the CNAs employed on
the day shift, except for Medina, who was issued an em-
ployee disciplinary notice and suspended for 5 days for en-
gaging in this conduct. As I have found supra, Respondent
offered no credible reason for treating Medina different than
the other offenders.
In placing an employee disciplinary notice in Medina’s
personnel file on March 22 and suspending him for 5 days
for having pulled a geri-chair, Respondent deviated from its
usual disciplinary procedure. As I have discussed supra,
under Respondent’s system of progressive discipline, Re-
spondent’s director of nurses, Van Baren, decides whether
employees in her department will be disciplined and the ex-
tent of the discipline. Here, for reasons not explained, the de-
cision to issue Medina’s March 22 employee disciplinary no-
tice was summarily made by Boeger and the decision to sus-
pend him for 5 days, rather than to impose some lesser form
of discipline, was summarily made by Administrator L.
Shenker.
Also as discussed supra, under Respondent’s system of
progressive discipline, the normal procedure is to merely
counsel employees who engage in misconduct, if it is a first
offense. Only if they have been previously counseled about
engaging in such misconduct are employees issued a verbal
or a written warning in the form of a disciplinary notice and
it is only after this that employees are suspended or termi-
nated for continuing to engage in the proscribed conduct.
Here, the day-shift CNAs, including Medina, had been coun-
seled by Respondent that they should not pull patients back-
wards while transporting them in geri-chairs, so, when, on
March 22, Respondent learned that they were engaging in
this conduct despite the prior counseling, Respondent, con-
sistent with its system of progressive discipline, issued verbal
warnings to all of the day-shift CNAs, except Medina, for
engaging in this conduct. Medina was issued an employee
disciplinary notice and suspended for 5 days. Thus, by dis-
ciplining Medina significantly more severely than any of the
other CNAs, not only did Respondent treat him differently,
but in doing so deviated from its usual system of progressive
discipline.
The aforesaid factors—Respondent’s animosity toward
Medina because of his union activity, Respondent’s history
of disciplining Medina because of his union activity, Re-
spondent’s disparate treatment of Medina, and Respondent’s
deviation from the usual way in which it disciplines employ-
ees—establish that Respondent’s animus toward Medina for
his union activity was a motivating factor for Respondent’s
decisions on March 22, 1993, to discipline Medina by
issuing him an employee disciplinary notice and suspending
him for 5 days.
I further find that Respondent has failed to demonstrate it
would have issued an employee disciplinary notice to Me-
dina on March 22 and suspended him for 5 days even absent
his union activity. Quite the opposite, the disparate way in
which Respondent treated Medina by placing an employee
disciplinary notice in his personnel file and suspending him
for 5 days, whereas all of the other CNAs were merely given
verbal warnings for having engaged in the identical mis-
conduct, establishes Respondent would not have issued Me-
dina an employee disciplinary notice and suspended him for
5 days absent his union activity. I, therefore, find that when
Respondent disciplined Medina on March 22, 1993, by plac-
ing an employee disciplinary notice in his personnel file and
suspending him for 5 days, it violated Section 8(a)(1) and (3)
of the Act.
8. Caridad Guzman’s February 19, 1993 suspension and
September 20, 1993 discharge
a. The evidence
On September 20, 1993, when she was discharged,
Guzman had been employed by Respondent since early 1989.
During the time material she was employed as a CNA on the
p.m. shift.
As discussed supra, the Union’s initial organizational
meetings for the p.m. shift were held in May at Guzman’s
home. Thereafter, during the months of May, June, and July,
Guzman attended other union meetings and frequently spoke
with employees about the Union.
Also, starting in August, as discussed supra, Guzman wore
a white smock to work, which had printed in black above its
breast pocket the words, ‘‘One Powerful Force for Health
Care Workers,’’ and on the breast pocket, the words ‘‘Local
250 SEIU’’ printed in black and gold, with the word ‘‘Yes’’
and a check mark within a box. Guzman wore this union em-
blem to work once a week from August 1992 to August
587CASA SAN MIGUEL
1993, when, as I have found supra, Respondent legally pro-
hibited her from continuing to wear it while at work.
As shown by the several documents that were in her per-
sonnel file on September 20, 1993, on February 12, 1993,
Guzman’s past record of discipline was as follows: On April
27, 1989, she received a written reprimand for speaking a
foreign language in front of a patient; on November 28,
1990, she received a written reprimand for recording that she
had given a patient a certain medical test or treatment, when
she had not; on January 10, 1991, she was counseled for
having spoken a foreign language while on duty; on January
17, 1991, she received a written reprimand for inappropriate
patient care and for acting insubordinate and antagonistic to
the supervisor who reprimanded her; on or about January 17,
1991, she was counseled and received a written reprimand
for improper care of a patient and was warned if she re-
ceived another disciplinary notice she would be terminated;
on September 22, she received a written reprimand for exces-
sive tardiness; and, on October 7, received a written rep-
rimand for being tardy for work on 3 out of the 8 days she
worked during the last payperiod and warned if the situation
did not improve she would be terminated.
On February 12, 1993, towards the end of the p.m. shift,
Shift Supervisor Judy Hughes met with CNAs Guzman,
Ignacio, and Simon and their Charge Nurse Pat Goel. Hughes
handed employee disciplinary notices to the CNAs that were
signed by Hughes. The employee disciplinary notice she
handed to Guzman (R. Exh. 45), stated Guzman’s perform-
ance on February 12 had been unsatisfactory because the
clerk had paged Guzman twice to transport patient Evanson
to her dialysis treatment, Charge Nurse Goel had asked
Guzman to help transport Evanson, Guzman had failed to
‘‘respond adequately to help,’’ and an off-duty nurse had to
help. The employee disciplinary notice stated that in the fu-
ture Guzman must act as part of the team and help as needed
in ‘‘a timely way.’’ The notice also advised Guzman she had
been issued the notice to give her an opportunity to correct
the situation and warned that a repetition of the described
conduct or continued unsatisfactory performance would result
in further disciplinary action up to and including dismissal.
In the section of the notice that described the ‘‘disciplinary
action’’ that Supervisor Hughes was recommending that Re-
spondent impose on Guzman for her February 12 mis-
conduct, the notice stated that Guzman had spoken to Charge
Nurse Goel about the matter. The notice, signed by Hughes,
did not recommend that Guzman be issued either a written
or a verbal reprimand or be disciplined by other means for
engaging in the described conduct, other than being issued
the disciplinary notice.
On February 12 when Hughes handed CNAs Guzman,
Ignacio and Simon their employee disciplinary notices, she
told them she was issuing them the notices because they had
not done what Charge Nurse Goel had asked them to do and
that Goel was upset about this. Guzman, Ignacio, and Simon
apologized to Goel; they stated they were sorry for what had
occurred. Goel responded by stating that if they followed her
instructions in the future she would personally inform Ad-
ministrator L. Shenker and President M. Shenker that they
were good workers.
The February 12 meeting ended with Hughes asking the
CNAs to sign their employee disciplinary notices. They re-
fused and told Hughes they had already apologized to Goel
for what had occurred. Hughes told them they did not have
to sign the notices and asked them to write their comments
on the back of their notices. Guzman, on the back of her dis-
ciplinary notice (R. Exh. 45), wrote, in pertinent part, that
while herself, Ignacio, and Simon had been told they had
been paged twice, they had not heard the page, and when Su-
pervisor Hughes had spoken to them about the incident, they
had explained their side of the story and apologized for what
had occurred because of the ‘‘miscommunication.’’
Guzman was the only witness who testified about Hughes’
and Goel’s February 12 meeting with Guzman, Ignacio, and
Simon, and the issuance of the employee disciplinary notices
to them. The above description of what occurred during this
meeting is based on the testimony of Guzman whose testi-
monial demeanor was good.
Regarding the events of February 12, 1993, which led to
the issuance of the employee disciplinary notices to Guzman,
Simon, and Ignacio, neither Guzman nor any of the other
participants testified about those events. The only testimony
elicited about those events was Guzman’s testimony that
‘‘the incident that caused [Guzman] to have a writeup [refer-
ring to the February 12 employee disciplinary notice]’’ was
that ‘‘I immediately did not follow the request of the charge
nurse’’ (Tr. 857, LL. 22–25).
It is undisputed that on the morning of February 19, 1993,
Nursing Director Van Baren telephoned Guzman at home
and told her she had been suspended from work and in-
structed her to come to the facility immediately.
Guzman testified that when she arrived at the facility that
morning she was taken to the office of Assistant Adminis-
trator Smith, where, in the presence of Respondent’s director
of staff development, Boeger, and Assistant Administrator
Rosen, she was informed by Van Baren she was suspended
for 5 days ‘‘because of the writeup of Bozena Korowski and
Judy Hughes.’’ Guzman further testified that only other thing
that was said to her during this meeting was that she was
told she had ‘‘a lousy attitude.’’
Regarding Van Baren’s reference to the writeup from
Bozena Korowski, the sole testimony about this ‘‘writeup’’
is Van Baren’s testimony that on September 20, 1993, when
Van Baren reviewed Guzman’s personnel file in connection
with Van Baren’s decision on that date to discharge Guzman,
one of the documents in the file, which Van Baren consid-
ered, was Respondent’s Exhibit 45, a one-page unsigned doc-
ument entitled ‘‘Incident Report.’’ On its face this document
is a form used by Respondent’s employees to report ‘‘acci-
dents’’ that involve patients. The document states that an
‘‘accident’’ occurred at station 1 during the p.m. shift on
February 12, 1993, and in the section that asks for a descrip-
tion of the ‘‘accident’’ and the names of the witnesses to the
‘‘accident,’’ states that on February 12, 1993, while on her
way home, Bozena Korowski observed Charge Nurse Goel
trying to get some help in transporting patient Evanson, who
weighed 202 pounds, to her dialysis treatment, that none of
the CNAs including Guzman offered to help, that Korowski
personally asked Guzman to help Goel, and that finally
Korowski, herself, assisted the patient. No testimony was
presented as to how and when this report came into Re-
spondent’s possession or who prepared the report. I note that
Van Baren, who failed to testify why Respondent decided to
suspend Guzman, did not testify what, if any, part of the de-
cision was attributable to the above-described report.
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
During the portion of this case involving the February 19,
1993 suspension of Guzman, neither Van Baren, Boeger or
Rosen were called to rebut Guzman’s above description
about the events of February 19. Nor did Respondent present
evidence that on February 19 it gave or showed Guzman any
document pertaining to the Respondent’s reasons for sus-
pending her. When the hearing reopened several months later
for the sole purpose of litigating Guzman’s September 20,
1993 discharge, however, Van Baren testified that in decid-
ing to discharge Guzman on September 20, 1993, she relied
on the information contained in several documents that were
in Guzman’s personnel file, one of which she testified was
a ‘‘Disciplinary Notice’’ dated February 19, 1993, signed by
Van Baren that stated (R. Exh. 45):
On further investigation of the incident occurring
2/12/93—We have decided to issue a suspension for 5
days in order to impress upon you the importance of
following your duties as a CNA you must act as a
team. After reviewing your file this is part of a pattern
of your behavior and is to cease immediately. Any fur-
ther in fraction of any rules will result in termination.
This is your last write-up.
Van Baren further testified that, as stated in the above notice,
she in fact told Guzman on February 19, when she met with
her, that any further infraction of the Company’s rules would
result in her termination. She testified she told Guzman this
on February 19 in the office of Respondent’s patient coordi-
nator in the presence of only Connie Mathis, Respondent’s
office manager. When asked to testify about the conversation
that occurred between herself and Guzman at that time, Van
Baren testified she discussed with Guzman that there were
three licensed nurses sufficiently angry with her so as to
have written her up, asked Guzman what has occurred on
February 12, Guzman told her what had occurred, and Van
Baren responded by showing Guzman all of the ‘‘other
writeups’’ in her personnel file that dated back to 1989, and
told Guzman that the above disciplinary notice was going to
be the last one.
I credit Guzman’s above testimony of what occurred on
February 19 and reject Van Baren’s because Guzman’s testi-
monial demeanor was good, Van Baren’s testimonial de-
meanor was poor, Respondent failed to call Mathis to cor-
roborate Van Baren’s testimony, and Respondent failed to
call either Rosen or Boeger to contradict Guzman’s testi-
mony.
On June 22, 1993, Guzman was suspended from work for
3 days. The employee disciplinary notice that informed her
of the suspension stated she had been suspended for violating
Respondent’s ‘‘attendance policy’’ because the reason given
by Guzman for her absence from work on June 19 was unac-
ceptable. The notice concluded by notifying Guzman that any
further violation of the Respondent’s ‘‘attendance and tardi-
ness’’ policy would result in her termination. The General
Counsel does not contend, nor does the complaint allege, that
Guzman’s June 22, 1993 suspension was unlawful.
On September 17, 1993, Guzman was assigned to station
3 on the p.m. shift, with three other CNAs and an LVN
charge nurse. The four CNAs and LVN charge nurse on Sep-
tember 17 failed to get station 3’s patients out of their beds
and dressed for dinner. This was a violation of the Respond-
ent’s standard procedures in effect at that time. This infrac-
tion of Respondent’s policy triggered Guzman’s September
20, 1993 discharge. The other three CNAs and the LVN
charge nurse received written reprimands for not dressing the
patients and getting them out of bed for dinner. None of the
other CNAs or the LVN charge nurse had been previously
disciplined.
On September 20, 1993, Guzman was notified of her dis-
charge by Nursing Director Van Baren’s memo. In the memo
Van Baren notified Guzman that Van Baren’s investigation
had revealed, among other things, that in violation of the Re-
spondent’s policy, Guzman on September 17 had failed to
dress her patients and get them out of bed for dinner and had
no legitimate reason for failing to do this. The memo then
concluded with Van Baren explaining her decision to dis-
charge Guzman, in these words:
Upon review of [Guzman’s] personnel file, she has
two prior suspensions. One involving resident care. She
was warned at this time that no further incidents would
be tolerated. Based on this the decision has been made
to terminate employment.
Van Baren testified that ‘‘part of the reason’’ why she de-
cided to discharge Guzman was that Guzman ‘‘already had
two suspensions’’ (Tr. 2139), and, when asked if she would
have made the same decision if Guzman had only one sus-
pension, Van Baren testified, ‘‘it’s really hard to answer
something in hindsight. I probably would have. I possibly
might not have.’’ (Tr. 2143–2144.)
b. Discussion
(1) Guzman’s February 19, 1993 suspension
The factors set forth hereinafter persuade me that the Gen-
eral Counsel established that Respondent’s animus toward
Guzman because of her union sympathy and activity was a
motivating factor for Respondent’s decision to suspend her
from work on February 19, 1993.
Respondent knew Guzman was a leading union adherent.
In August, prior to the scheduled September 25, 1992 rep-
resentation election, Guzman wore to work a union emblem
on her uniform that asked the employees to vote yes for
union representation and, in February 1993, was still wearing
that emblem to work once a week. Clearly, Respondent was
well aware of Guzman’s prounion sympathies and that she
was actively soliciting other employees to support the Union
in its campaign to organize the Respondent’s employees.
Respondent’s animosity towards employees who supported
the Union is evident from the numerous unfair labor prac-
tices I have found Respondent committed in 1992 and 1993
in an effort to discourage its employees from supporting the
Union.
Guzman was treated differently than CNAs Ignacio and
Simon. As described supra, on February 12 Respondent
issued employee disciplinary notices to CNAs Guzman,
Ignacio, and Simon for having that day failed to follow
Charge Nurse Goel’s request that they assist in transporting
a patient. Subsequently, 7 days later, Respondent suspended
Guzman for having engaged in this conduct. There is no evi-
dence that either Ignacio or Simon were disciplined in any
manner, other than being issued employee disciplinary no-
589CASA SAN MIGUEL
67 The record fails to establish that even absent Guzman’s Feb-
ruary 19, 1993 suspension, Respondent would still have discharged
her on September 20, 1993.
68 Unless otherwise stated, all of the evidence is based on the testi-
mony of Julia Boeger, Respondent’s director of staff development.
69 On September 25, as discussed supra, a majority of Respond-
ent’s employees, in a Board-conducted representation election, cast
their ballots in favor of union representation.
tices. Respondent’s failure to produce such evidence, which
is particularly within its knowledge, warrants the inference
that Ignacio and Simon received no further discipline for
having failed to do what Goel had requested of them. Re-
spondent failed to explain why Guzman was suspended for
5 days for the part she played in the events of February 12,
while Ignacio and Simon were issued only employee discipli-
nary notices.
The aforesaid factors—Respondent’s knowledge of
Guzman’s prounion sympathy and activity, Respondent’s
antiunion animus, and its disparate treatment of Guzman—
when considered with Respondent’s failure to explain its be-
lated decision to discipline Guzman by suspending her for
conduct she had committed 7 days earlier, for which
Guzman’s immediate supervisor had disciplined her by mere-
ly issuing her an employee disciplinary notice, establishes
that Respondent’s animus toward Guzman for her union
sympathy and activity was a motivating factor for Respond-
ent’s decision on February 19, 1993, to discipline Guzman
by suspending her for 5 days.
I further find that Respondent did not demonstrate it
would have suspended Guzman on February 19 even if she
had not engaged in union activity. Respondent failed to dem-
onstrate this because it failed to call Van Baren or any of
Respondent’s representatives involved in the decision to sus-
pend Guzman to testify about Respondent’s motive for treat-
ing Guzman differently than CNAs Ignacio, and Simon by
belatedly deciding to suspend Guzman 7 days after having
issued Guzman, Ignacio, and Simon only disciplinary notices
for their February 12 misconduct. Having failed to present
evidence of its motivation for suspending Guzman, Respond-
ent failed to rebut the General Counsel’s prima facie case.
I, therefore, find that when Respondent suspended Guzman
for 5 days on February 19, 1993, it violated Section 8(a)(1)
and (3) of the Act.
I considered Respondent’s contention, advanced in its
post-hearing brief, that its decision to suspend Guzman on
February 19 was based on her past disciplinary record. Re-
spondent elicited no testimony, however, that this was what
motivated Guzman’s suspension. In fact, when the record
closed on the portion of this case dealing with Guzman’s
February 19 suspension, the sole evidence of Guzman’s past
disciplinary record was her testimony that the disciplinary
notice she received on February 12 was not the first one she
had received, that she had received other disciplinary notices.
But no evidence whatsoever was presented about the extent
of Guzman’s past history of discipline or the reasons for
such discipline. Nor did Respondent elicit evidence that its
decision to suspend Guzman was based on her past record
of discipline. When the hearing reopened, however, several
months later for the sole purpose of litigating Guzman’s Sep-
tember 20, 1993 discharge, Van Baren testified that on Sep-
tember 20, 1993, in deciding whether to discharge Guzman,
she reviewed Guzman’s personnel file, and the file on that
date contained the several employee disciplinary notices, de-
scribed earlier in this decision, which she testified she re-
viewed in deciding whether to discharge Guzman. These
documents were received in the record solely for the purpose
of allowing Respondent to show what, if any, influence they
had on Van Baren’s decision to discharge Guzman. In any
event, Van Baren did not testify that these documents influ-
enced Respondent’s decision, made several months earlier, to
suspend Guzman.
(2) Guzman’s September 20, 1993 discharge
It is undisputed that Respondent’s decision to discharge
Guzman on September 20, 1993, was based in part on the
fact that Respondent had previously suspended Guzman for
5 days on February 19, 1993.67 As described in detail supra,
on September 20 Van Baren notified Guzman, in writing,
that Respondent had decided to discharge her because she
had already been disciplined twice; on February 19, 1993,
and June 22, 1993. Also, as described in detail supra, Van
Baren testified that Respondent’s decision to discharge
Guzman was based, in part, on the fact that Guzman had al-
ready been disciplined twice with suspensions; on February
19 and June 22, 1993.
Having found that Respondent suspended Guzman on Feb-
ruary 19, 1993, because of her union activity, in violation of
Section 8(a)(3) and (1) of the Act, and, having also found,
that Guzman’s September 20, 1993 discharge was based, in
part, on her February 19, 1993 suspension, it follows that
Respondent violated Section 8(a)(3) and (1) of the Act, when
it discharged Guzman on September 20, 1993.
9. On October 7, 1992, Respondent issues counseling
reports and employee disciplinary notices to 30
employees who had been late for work
a. The evidence68
On April 1, 1992, Boeger assumed the position of Re-
spondent’s director of staff development. She had been em-
ployed by Respondent in a licensed nurse capacity continu-
ously since 1988, first as an LVN and then as its patient care
coordinator.
Before and after Boeger’s employment as director of staff
development, and at all times material, employee tardiness
was defined by Respondent as when an employee punched
in for work more than 7 minutes late. Thus, whenever I use
the terms late or tardy hereinafter, they refer to an employee
who was more than 7 minutes late for work.
On April 1, when Boeger assumed the position of director
of staff development, a substantial number of employees fre-
quently came to work late. This situation existed even prior
to April 1 and continued through September (Tr. 1802, LL.
5–9; 1890, LL. 1–18).
Boeger, prior to April 1, knew that many of the employees
were frequently late for work (Tr. 1890, LL. 13–15), and
when she assumed the position of director of staff develop-
ment on April 1, this situation continued, and it was not until
October 7, shortly after a majority of the employees voted
in favor of union representation, that Boeger acted to put a
stop to the employees’ tardiness (Tr. 1890–1891).69 Prior to
October 7, the only thing Boeger had done to remedy this
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
70 The record is silent about what Boeger said to the employees.
situation was to speak to individual employees about their
tardiness. On October 7, Boeger instituted a new policy gov-
erning the number of days an employee could be late for
work during a payperiod.
Immediately before October 7, Boeger reviewed all of the
employees’ timecards for the last payperiod in September
and made the following decision: Those employees whose
timecards showed they had been late for work on more than
3 occasions during that payperiod would receive a counseling
report for their tardiness, if they had not been counseled or
disciplined previously for tardiness; and, those who had a
prior history of being counseled or disciplined for tardiness
would receive a disciplinary notice.
There is no evidence or contention that prior to this time
Respondent had a policy whereby employees who were tardy
more than three times during a payperiod were subject to dis-
cipline. To the contrary, the tenor of Boeger’s testimony war-
rants the inference that before October 7 no such policy ex-
isted. Boeger testified that for a period of more than 6
months prior to October 7, a large number of the employees
were frequently late for work and it was to remedy this situa-
tion that prompted her in early October to issue counseling
reports and disciplinary notices to 30 employees for being
late on more than 3 days during the payperiod ending Sep-
tember 30. If this policy existed previously, I am convinced
that Boeger would have implemented it long before October
7.
I considered Boeger’s testimony that when she orients new
employees about Respondent’s policies, one of the policies
included in the document that all the new employees must
sign, concerns ‘‘a thing about tardy and absenteeism’’ and
refers to ‘‘three absenteeism, three tardies.’’ According to
Boeger, this was where she got the idea for limiting employ-
ees to three tardy workdays during a payperiod. Boeger,
however, testified she was unable to remember what this ori-
entation paper said on the subject of tardiness. Boeger’s testi-
mony that she was unable to remember what the orientation
paper signed by new employees says on the subject of tardi-
ness was not given in a convincing manner and does not ring
true because the record reveals that conducting orientation
sessions for the new employees is a major part of Boeger’s
job and as part of that job she also explains Respondent’s
policies to the employees. Under the circumstances her testi-
mony that she had no memory of what the orientation paper
said about tardiness is incredible. I also note Respondent did
not produce a document indicating that prior to October 7
Respondent’s employees were subject to discipline if they
were tardy more than three times during a payroll period.
Respondent’s failure to produce such a document is not sur-
prising because Boeger testified that the policy that she im-
plemented on October 7 concerning the employees’ tardiness
had not been reduced into writing by Respondent (Tr. 1802,
LL. 10–17).
Boeger instituted this new policy on October 7 at a meet-
ing of the employees employed on the day and p.m. shifts.
Boeger spoke to them about their tardiness70 and issued
counseling reports and employee disciplinary notices to 30 of
the employees; counseling reports to those with no prior his-
tory of being counseled or disciplined for tardiness, and dis-
ciplinary notices to those with such a history. In deciding to
issue the 30 counseling reports and employee disciplinary
notices, Boeger reviewed the timecards for the last
payperiod, the one ending September 30, of all the employ-
ees employed on the day and p.m. shifts, with the object of
disciplining those whose timecards showed that during that
payperiod they were late for work on more than three occa-
sions.
b. Discussion
The complaint alleges that on October 7 Respondent vio-
lated Section 8(a)(3) and (1) of the Act because: (1) ‘‘Re-
spondent effectuated a change in its employee tardiness pol-
icy regarding school class attendance’’; and (2) ‘‘[Respond-
ent] issued written counseling notices to 30 employees.’’ For
the reasons below, I find that the second part of this allega-
tion has merit, whereas the first part is without merit.
(1)
Boeger’s undenied testimony, which was not controverted
by other record evidence, establishes Respondent did not
have a policy or a practice of allowing employees who were
attending school to be late for work, when their starting time
conflicted with their school schedule. It is for this reason that
I shall recommend the dismissal of the allegation that Re-
spondent violated the Act on October 7 by changing its em-
ployees tardiness policy regarding school class attendance.
(2)
On October 7 Respondent issued counseling reports and
employee disciplinary notices to 30 employees for being late
for work. It is my opinion that the wholesale issuance of the
counseling reports and employee disciplinary notices on that
day was motivated by Respondent’s animus toward the
Union and by a desire to punish employees because a major-
ity of them had voted in favor of union representation.
On October 7 the counseling reports and employee dis-
ciplinary notices were issued by Respondent to 30 employees
hard on the heels of the Union’s victory in the September
25 representation election. In an effort to discourage the em-
ployees from supporting the Union, as I have found else-
where in this decision, Respondent engaged in numerous un-
fair labor practices before and after its October 7 conduct at
issue herein. Further, for several months prior to October 7,
even before the start of the Union’s organizational campaign,
Respondent knew that many of its employees were fre-
quently late for work, yet it was only after a majority of the
employees voted in favor of union representation that Re-
spondent for the first time took meaningful disciplinary ac-
tion to remedy this problem, by instituting a new and more
stringent disciplinary policy to govern employees’ tardiness,
which resulted in 30 employees being issued counseling re-
ports and employee disciplinary notices on October 7. The
foregoing factors, taken together, establish a prima facie case
that the counseling reports and employee disciplinary notices
issued to 30 employees on October 7 for being tardy were
issued for discriminatory purposes. I further find, for the rea-
sons below, that Respondent has failed to rebut the General
Counsel’s prima facie case.
As I have found supra, Boeger testified that for several
months prior to October 7, even before the start of the
Union’s organizational campaign, Respondent knew that too
591CASA SAN MIGUEL
71 My review of the record convinces me that this violation, which
was not alleged in the complaint, was fully and fairly litigated in
connection with the complaint’s allegation that the counseling re-
ports and employee disciplinary notices issued to 30 employees on
October 7, pursuant to this new policy, were discriminatorily moti-
vated.
72 Boeger and Yuson testified about Yuson’s October 23 dis-
cipline. When their testimony conflicts I credited Boeger’s. I realize
I have found Boeger to be a dishonest witness in connection with
her testimony concerning several of the other allegations of the com-
plaint. In this instance, however, Boeger’s testimonial demeanor was
better than Yuson’s.
many of its employees were frequently late for work, yet it
was only shortly after a majority of the employees voted in
favor of union representation, that on October 7, for the first
time, Respondent took meaningful disciplinary action to rem-
edy the problem, when Boeger issued counseling reports and
employee disciplinary notices to 30 employees because,
based on Boeger’s review of the employees’ timecards, they
had been late for work more than three times during the last
payperiod. In deciding whether Respondent has rebutted the
General Counsel’s prima facie showing that the October 7
counseling reports and employee disciplinary notices were
motivated by Respondent’s union animus, the Respondent
must demonstrate that they would have been issued on Octo-
ber 7 even absent the Union’s organizational campaign.
Boeger testified the reason she waited several months,
until October 7, to do something about the employees’ tardi-
ness was she was ‘‘so busy getting used to [her] job’’ that
perhaps she did not realize the seriousness of the problem
until October, or, if she was aware of its seriousness earlier,
she did not have sufficient time to deal with the problem
until October 7 (Tr. 1889–1891). I reject this uncorroborated
testimony in its entirety because when Boeger gave it her de-
meanor—the way she spoke, the tone of her voice and the
way she looked and acted while testifying—was poor. Also,
it would be naive for me to believe that if Respondent had
serious problems concerning such a significant matter as em-
ployees’ tardiness, that Respondent’s administrator and her
several department heads would have allowed the problem to
continue for more than 6 months without taking steps to rem-
edy it. In view of Respondent’s failure to deal with this
problem for several months, I am persuaded the problem was
not as serious as portrayed by Boeger and was condoned by
Respondent, but that when a majority of Respondent’s em-
ployees voted in favor of union representation, in defiance of
Respondent’s announced opposition to the Union, that Re-
spondent seized on the employees’ tardiness, which had been
condoned in the past, as an excuse to punish them for having
voted in favor of union representation. I, therefore, find that
Respondent violated Section 8(a)(1) and (3) of the Act,
when, on October 7, it issued counseling reports and em-
ployee disciplinary notices to 30 employees for coming to
work late.
I am also persuaded that when the timing of the imple-
mentation of the Respondent’s new and more stringent policy
of disciplining employees who are late for work on more
than 3 days during a payperiod, is considered in the context
of Respondent’s union animus and the incredible reasons ad-
vanced by Respondent for the timing of the policy’s imple-
mentation, it establishes that the implementation of this new
policy was motivated by Respondent’s union animus and by
its desire to punish the employees for having supported the
Union’s organizational campaign. I, therefore, find that by
implementing a policy on October 7, whereby employees are
subject to discipline if they are late on more than three occa-
sions during a payroll period, Respondent violated Section
8(a)(1) and (3) of the Act.71
10. Luisa Yuson’s October 1992 discipline
a. The evidence
During October Luisa Yuson was employed by Respond-
ent as a CNA on the p.m. shift. She had been employed as
a CNA by Respondent since November 1989.
Yuson was one of the 30 employees who, on October 7,
were issued either a counseling report or an employee dis-
ciplinary notice by Director of Staff Development Boeger for
their tardiness; Yuson was issued a counseling report. As I
have found supra, Respondent issued these counseling reports
and employee disciplinary notices to retaliate against the em-
ployees for having voted in favor of union representation,
thereby violating the Act.
Yuson was absent from work on vacation from October 18
through October 22. During this time she participated in a
union demonstration held in front of Respondent’s facility.
Yuson was one of several persons who participated in the
demonstration by picketing Respondent’s facility. A news-
paper photographer took her picture on the picket line. It ap-
peared the next day in the local newspaper, apparently in
connection with a story about the demonstration.
On October 23, the first day she was back at work from
her vacation, approximately 1 hour after she returned, Yuson
was disciplined by Boeger, as described below.
(1) Yuson’s October 23 discipline72
It is standard operating procedure at Respondent’s facility
not to immobilize a patient with a restraint belt, unless there
has been written authorization by a physician to do this, or,
if a patient is out of control, the patient may be immobilized
with a restraint belt for 1 hour and during this period the Re-
spondent must secure a doctor’s authorization to restrain the
patient. If a CNA restrains a patient contrary to the above
procedures, not only is it a violation of Respondent’s stand-
ard operating procedure, it constitutes a violation of the regu-
lations regarding patients’ restraints enforced by the State of
California Health Department.
On October 23, at approximately 3:30 p.m., Boeger ob-
served that CNAs Yuson and Hitosis were about to use a re-
straint belt to immobilize patient Gladson in a geri-chair and
that patient Lammar, who was seated in a geri-chair imme-
diately behind Gladson’s, had been immobilized with a re-
straint belt. Boeger also observed that the medical charts for
these patients did not indicate a physician had authorized that
they be restrained.
Boeger instructed Yuson and Hitosis not to restrain patient
Gladson and asked who, among the CNAs, was responsible
for taking care of patient Lammar. Yuson answered that
Lammar was her patient, but that Lammar had been re-
strained by the prior shift, not by Yuson. Boeger reacted by
escorting Yuson to Boeger’s office, where, with Vera La-
cuna, the head of the kitchen and maintenance departments,
as a witness, Boeger prepared a written reprimand that she
gave to Yuson. The written reprimand, in the form of an em-
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
73 It is the responsibility of the CNAs to go to the charge nurse
at the start of the shift and ask about the status of their patients, at
which time the charge nurse gives them a verbal report. Yuson testi-
fied that on October 23 she did not ask the charge nurse for the re-
port because she did not want to disturb the charge nurse who, at
the start of the shift, was busy dealing with patients’ medication.
ployee disciplinary notice, stated that at 3:30 p.m. on Octo-
ber 23 Yuson had restrained a resident in violation of the
resident’s rights.
Boeger handed this disciplinary notice to Yuson and told
her there had been no orders from a physician to restrain ei-
ther patient Gladson or patient Lammar and despite this
Yuson had placed a restraint on Lammar and had been about
to do the same to Gladson. Yuson stated she had not placed
the restraint on Lammar, refused to sign the written rep-
rimand, and instead wrote on the bottom of the reprimand
that she had not placed a restraint on Lammar, but that the
day shift personnel had done this. It is undisputed, and I
find, that the day shift personnel had restrained Lammar.
Boeger responded to Yuson’s explanation by stating that
when Yuson began work at 2:45 p.m., she should have real-
ized that patient Lammar should not have been immobilized
by a restraint belt because the report that the station’s charge
nurse gave to Yuson at the start of the shift about the status
of Yuson’s patients should have alerted Yuson to the fact
that there was no physician’s authorization to restrain
Lammar. Yuson replied that she had not received a report
from the charge nurse.
On hearing Yuson say she had not received a report that
day from the charge nurse about the status of the patients as-
signed to her, Boeger immediately prepared and issued to
Yuson an employee counseling report that stated in substance
that Yuson was being counseled because of an ‘‘unsafe work
practice,’’ which it described as Yuson’s failure to ‘‘receive
a thorough report before starting resident care’’ that resulted
in a resident’s ‘‘right’’ being violated. Yuson read the coun-
seling report and told Boeger it was not her fault that she
had not received a report from the charge nurse because, she
explained, the charge nurse had not called Yuson to give her
the report.
It is the responsibility of the CNAs to read their patients’
medical charts (Tr. 835). If Yuson, on October 23, at the
start of the work shift, had checked patient Lammar’s medi-
cal chart, she would have seen there was no doctor’s author-
ization to restrain Lammar. The record also reveals Yuson
would also have discovered this if she had done the follow-
ing: gotten a report from the charge nurse at the start of the
shift about the status of her patients;73 or, if, at the start of
the shift, she had checked the list of her patients, known as
the ‘‘run list,’’ which indicates whether there has been a doc-
tor’s authorization to restrain a patient.
Boeger testified that the restraint of patient Lammar on
October 23 by the day shift did not excuse Yuson’s conduct
because if Yuson had been doing her job the way it was sup-
posed to be performed, by 3:30 p.m. she would have gotten
a report from the charge nurse about her patients or have re-
viewed the ‘‘run list,’’ which would have alerted Yuson to
the fact that Lammar should not have been restrained.
(2) Yuson’s October 26 Discipline
As I have found supra, during the time material, Respond-
ent’s workers’ compensation claim policy was set forth in a
memorandum addressed to its department supervisors posted
on the bulletin board in the employees’ breakroom. The
memo, described in detail supra, provided in substance that
in all instances involving work-related injuries, the injured
employee must use the Respondent’s doctor, Dr. Stuart, for
medical treatment for the first 30 days after the injury. CNA
Ben Medina testified he had been told by Respondent that
if he incurred a work-related injury or illness, that pursuant
to Respondent’s policy he was obligated to report it to the
Respondent and go to Respondent’s doctor, Dr. Stuart, for
his medical treatment.
On October 24 Yuson notified Respondent she would not
be at work that day because she had a doctor’s appointment.
On October 24 Yuson was absent from work because she
went to an HMO, Kaiser Permanente, for medical treatment.
She testified the reason she visited the doctor that day was
because of physical and mental stress suffered as the result
of the two writeups Boeger had issued to her on October 23.
More specifically, she testified that when she got home after
work on October 23 she was unable to sleep, was crying, and
experienced a pain in her back.
On October 26, when Yuson returned to work after her ab-
sence, she was called to the office of Assistant Administrator
Laura Smith, the management official who is in charge of
administering Respondent’s workers’ compensation claim
policy, when, in the presence of Nursing Director Van Baren
and Assistant Nursing Director Rosen, Yuson was given a
written reprimand, signed by Smith, in the form of an em-
ployee disciplinary notice, which stated:
You have failed to follow hospital policy-reference
to completing an incident report and attend our physi-
cian for 30 days. You went to Kaiser and reported a
worker comp. injury.
These procedures are covered in your hand book and
thru inservices throughout the year-you called in for
flu. . . .
When Smith gave Yuson the above-described written rep-
rimand, Yuson stated the reason she was not feeling good
had to do with ‘‘everything that was going on with the
Union,’’ and Smith replied, ‘‘[T]hat’s not what we’re dis-
cussing.’’ Smith told Yuson she was mad at Yuson because
she had gone to a Kaiser doctor, rather than to Respondent’s
doctor for a work-related industrial accident. Yuson made no
response. Smith then asked why Yuson had gone to Kaiser,
rather than to Respondent’s doctor for treatment. Yuson re-
plied that when she got home from work on the evening of
October 23, she experienced a pain in her back and could not
stop crying. Smith stated Yuson had told Respondent she had
the flu, Yuson denied this and stated she had told Respond-
ent’s clerk only that she would be absent from work due to
a doctor’s appointment. The meeting ended with Van Baren
instructing Yuson to contact Kaiser and to instruct Kaiser to
drop Yuson’s worker’s compensation claim and to ask Kaiser
to give Yuson copies of the worker’s compensation injury re-
port she had given to Kaiser.
Yuson knew Dr. Stuart was Respondent’s doctor, but
credibly testified that in her almost 3 years of employment
593CASA SAN MIGUEL
74 As indicated supra, Boeger testified that the reason why the day
shift’s negligence in restraining patient Lammar did not excuse
Yuson’s conduct was that if Yuson had done her job, as it was sup-
posed to have been performed on October 23, she would have dis-
covered that the day shift had erred in restraining patient Lammar.
Although this testimony explains the basis for the counseling report
that Boeger issued to Yuson on October 23, it fails to explain the
basis for the employee disciplinary notice that alleges Yuson had re-
strained patient Lammar.
with Respondent she had never gone to him for medical
treatment.
b. Discussion
(1) Yuson’s October 23 discipline
For the reasons below, I find the General Counsel has es-
tablished that Respondent’s antiunion animus was a motivat-
ing factor for its October 23 decision to issue Yuson an em-
ployee disciplinary notice and counseling report.
Respondent’s hostility to employees who support the
Union is evident, as I have found supra, from its discipline
and discharge of several employees because of their union
activities and sympathies and to discourage employees from
supporting the Union. Indeed, as I have found supra, only a
few weeks before its October 23 discipline of Yuson, Re-
spondent issued counseling reports and employee disciplinary
notices to 30 employees, including Yuson, for the purpose of
punishing them because a majority of Respondent’s employ-
ees had voted in favor of union representation.
Respondent knew Yuson was a prounion activist because,
as described supra, only a few days before being disciplined
on October 23, Yuson had picketed Respondent’s facility in
support of the Union’s organizational efforts and a picture of
her picketing had appeared in a local newspaper.
The timing of the October 23 discipline, occurring on the
first day Yuson was at work after having picketed the Re-
spondent’s facility on behalf of the Union, lends further sup-
port to the conclusion that the decision to discipline her was
discriminatorily motivated.
Also supporting this conclusion is the haste in which the
decision was made, contrary to Respondent’s usual discipli-
nary procedure. Thus, as I have found supra, whenever one
of Respondent’s licensed nurses believes an unlicensed nurse
has engaged in conduct that warrants discipline, the licensed
nurse, whether it is a charge nurse, a shift supervisor, or a
department head, must submit the disciplinary notice to the
head of the nursing department, Van Baren, who, after inde-
pendently investigating the situation, decides what, if any,
discipline is appropriate. On October 23, however, Boeger
disciplined Yuson without consulting Van Baren. Also,
Boeger was in such a hurry to discipline Yuson that she dis-
ciplined her for allegedly ‘‘restraining a resident [referring to
patient Lammar],’’ even though Yuson had explained to
Boeger it was the personnel on the prior work shift, not
Yuson, who had restrained Lammar. Yet, Boeger imme-
diately decided to discipline Boeger, contrary to Respond-
ent’s practice of conducting an investigation before deciding
to discipline an employee, and contrary to Respondent’s
practice of having Nursing Director Van Baren decide wheth-
er employees in her department are disciplined.
In sum, Respondent knew Yuson was a union activist, Re-
spondent’s unfair labor practices demonstrate its antiunion
animus, Respondent’s discipline of Yuson occurred on the
first day she was at work after having picketed Respondent
on behalf of the Union, and Respondent was in such a rush
to discipline Yuson that it deviated from the usual way in
which it decides whether to discipline employees. This evi-
dence supports a prima facie case that Respondent on Octo-
ber 23 reprimanded and counseled Yuson because of her
union activity.
Respondent failed to rebut the General Counsel’s prima
facie case by demonstrating that even absent Yuson’s union
activity it would have issued her a written reprimand on Oc-
tober 23. Respondent did demonstrate, however, it would
have counseled Yuson on that day even absent her union ac-
tivity. I, therefore, find Respondent violated Section 8(a)(1)
and (3) of the Act when it issued an employee disciplinary
notice to Yuson on October 23, but did not violate the Act
when it counseled her on the same day.
It is evident from the wording of Yuson’s October 23 em-
ployee disciplinary notice and the counseling report, that the
employee disciplinary notice that memorialized the written
reprimand issued to Yuson that day, was issued because she
allegedly restrained patient Lammar. It was the personnel
employed on the prior shift, however, the day shift, not
Yuson, who had erroneously restrained patient Lammar and,
on October 23, Yuson explained this to Boeger. Boeger ig-
nored Yuson’s explanation and decided to summarily dis-
cipline Yuson for someone else’s conduct and, in doing so,
acted contrary to Respondent’s usual practice of investigating
before imposing discipline and contrary to its usual practice
of having Nursing Director Van Baren make the disciplinary
decision involving nursing department employees. In view of
these circumstances, Respondent has failed to establish that
during the normal course of business, even absent Yuson’s
union activity, Respondent would have issued a written rep-
rimand to Yuson for restraining patient Lammar, after Van
Baren had conducted her usual investigation into the mis-
conduct attributed to Yuson in the employee disciplinary no-
tice prepared by Boeger.74
Respondent established that even absent Yuson’s union ac-
tivity, Respondent, on October 23, would have counseled
Yuson for, as stated in the counseling report, engaging in an
‘‘unsafe work practice’’ because ‘‘she did not receive a thor-
ough [sic] report before starting resident care,’’ which re-
sulted in her failure to discover that patient Lammar had
been erroneously restrained by the day shift. Thus, as I have
found supra, if Yuson on October 23 had performed her job
the way it was supposed to have been performed, she would
have discovered that the day shift had erroneously restrained
patient Lammar, and based on this information Yuson pre-
sumably would have taken steps to remedy this apparent
error. Under the Respondent’s system of progressive dis-
cipline, Respondent’s decision to counsel Yuson was clearly
commensurate with her conduct. Thus, even absent her union
activity, I am convinced Respondent would have counseled
Yuson on October 23 for having failed to perform her job
in a satisfactory manner that resulted in her failure to dis-
cover that patient Lammar had been erroneously restrained
by the prior shift.
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(2) Yuson’s October 26 discipline
As I have found supra, Respondent knew Yuson was a
union activist, Respondent’s unfair labor practices dem-
onstrate its antiunion animus toward employees known to be
union activists, Respondent’s October 26 discipline of Yuson
occurred shortly after she had picketed Respondent on behalf
of the Union and only 3 days after Respondent’s discipline
of Yuson because of her union activity. This evidence sup-
ports a prima facie showing that on October 26 Respondent
disciplined Yuson because of her union activity.
As discussed infra, Respondent failed to rebut the General
Counsel’s prima facie case by establishing it would have dis-
ciplined Yuson on October 26, even if she had not been a
union activist. I, therefore, find that by disciplining Yuson on
October 26 Respondent violated Section 8(a)(1) and (3) of
the Act.
As I have found supra, under Respondent’s system of pro-
gressive discipline, an employee is normally first counseled
about the employee’s misconduct; the employee is alerted by
supervision to the fact that the employee has engaged in an
act of misconduct and instructed not to let it happen again.
Only if the conduct occurs a second time is the employee
given a verbal or written reprimand in the form of an em-
ployee disciplinary notice. When on October 24 Yuson vio-
lated Respondent’s workers’ compensation claim policy by
going to her own personal physician for medical treatment
for a work-related illness, rather than to Respondent’s doctor,
Respondent issued her a written reprimand in the form an
employee disciplinary notice, despite the fact that there is no
evidence or contention that in the more than 2 years of her
employment with Respondent that Yuson had previously vio-
lated the Company’s workers’ compensation claim policy.
Nor did the nature of the violation warrant the more severe
discipline of a written reprimand, rather than a counseling re-
port. In this regard, the record reveals that Yuson’s conduct
did not cause Respondent irreparable injury, inasmuch as
when Yuson followed the instructions Van Baren issued to
her on October 26—have Kaiser stop processing her work-
er’s compensation claim and send Respondent copies of her
worker’s compensation claim injury report—Yuson would
have remedied her failure to follow the correct worker’s
compensation claim procedure, at presumably no expense to
Respondent. In view of these circumstances, I am convinced
that Respondent has failed to establish that during the normal
course of business it would have disciplined Yuson, rather
than merely counseled her, for having gone to her own per-
sonal physician, rather than to the Company’s physician, for
treatment of a work-related injury.
11. Respondent fails to assign Claire Abella to on-call
work and to reemploy her as a full-time employee
a. The evidence
Claire Abella was employed by Respondent as a full-time
employee from July 1986 until August 1992, first as a nurses
aide and then as a CNA. She worked primarily on the p.m.
shift. In August, at her request, Respondent changed her sta-
tus from full-time to on-call employee.
On an undisclosed date Abella began going to school dur-
ing the day full time. This made it difficult for her to get
to work on time inasmuch as her shift started at 2:45 p.m.,
so, in August, she asked Respondent’s director of staff devel-
opment, Boeger, if she could work part-time. Boeger told her
there was no part-time work available, but there was ‘‘on-
call’’ work available and if Abella wanted to change her sta-
tus from full-time to on-call employee, she should notify Re-
spondent in writing. Abella gave Boeger a letter that stated
she wanted to be employed as an on-call employee because
she was attending school. Respondent changed her classifica-
tion from full-time to on-call employee.
An on-call employee is employed when a full-time em-
ployee is unavailable to work the employee’s scheduled shift.
On those occasions, when Respondent is given sufficient no-
tice that the full-time employee will not be available, Re-
spondent’s Staff Coordinator Ellenita Perez has one of Re-
spondent’s two clerks, Patricia Sullivan and Emily Martinez,
contact an on-call employee to come to work.
As I have found supra, in August, on an undisclosed date,
Abella ceased working for Respondent full time and began
working for Respondent as an on-call employee. In Septem-
ber she worked in this capacity on 13 different days and
there were other days in September when, on being asked to
work, she informed Respondent she was unavailable.
As I have found supra, on October 7 Boeger called 30 em-
ployees to meet together in her office and issued them writ-
ten reprimands, in the form of employee disciplinary notices,
or counseled them, in the form of counseling reports, for
being frequently late for work. Abella was one of the em-
ployees at this meeting who received a written reprimand. As
I have found supra, Respondent violated the Act when it
issued disciplinary notices and counseling reports to the 30
employees, including Abella, because their issuance was mo-
tivated by Respondent’s antiunion animus and its desire to
punish the employees because a majority of them had voted
in favor of union representation.
Abella’s October 7 written reprimand stated in pertinent
part:
You have been counseled three times regarding tardi-
ness. Again you have been late 3 out of six days
worked last pay period. This will be your last warning.
If you can not [sic] show up on time for work, you will
not be called to come to work.
Respondent presented no evidence to establish, as stated in
the written reprimand, Abella had been previously counseled
about her tardiness.
When Boeger gave Abella this reprimand to sign, Abella
signed it and wrote on the back of the reprimand: ‘‘That’s
reason why I became on call because I’m going to school
but since they are calling me I told them that I will be com-
ing late, and they okayed.’’ Boeger read what Abella had
written and said nothing.
During the period predating the issuance of the October 7
reprimand, when Respondent’s representatives telephoned
Abella in the morning to see if she was available that day
to work as an on-call employee during the p.m. shift, Abella,
more than once, informed the person who called, either Staff
Coordinator Perez or desk clerk Sullivan, that she was avail-
able to work that day, but because of her school schedule
would be late for work, and, in response, either Perez or Sul-
livan, informed Abella that there was no objection to her
coming to work late. The 3 days she was late, referred to
595CASA SAN MIGUEL
75 The findings set forth in this paragraph are based on the testi-
mony of Abella whose testimonial demeanor was good. Abella’s tes-
timony was undenied.
76 This description of Abella’s November 25 conversation with
Boeger is based on the testimony of Abella whose testimonial de-
meanor was good.
77 This description of Abella’s December 3 conversation with
Boeger is based on the testimony of Abella, whose testimonial de-
meanor was good. Boeger did not deny Abella’s testimony. Quite
the opposite, Boeger testified that on or about December 3 she
‘‘could have had’’ the above-described conversation with Abella.
in the October 7 reprimand, were among the days on which,
as described above, either Perez or Sullivan assured Abella
that Respondent did not object to her being late for work.75
On October 7 while at work as an on-call employee,
Abella injured herself while lifting a patient. As a result of
that injury, she was not available for work until November
13, when Respondent’s doctor gave her a medical release au-
thorizing her to return to work. She worked for Respondent
on the weekends of November 14, 15, and 21–22. These
were the last days Respondent called her to work.
As I have found supra, the Union held demonstrations on
September 24 and in mid-October, in front of Respondent’s
facility, as part of its campaign to organize Respondent’s em-
ployees. Abella participated in both of those demonstrations
by picketing with others in front of the Respondent’s facility,
on behalf of the Union.
On November 25, when Abella visited Respondent’s facil-
ity to get her paycheck, she told Boeger she wanted to return
to work as a full-time employee. Boeger replied, ‘‘Okay, just
put it in writing and give it to Perez.’’76 That same day,
Abella gave a letter to Perez in which she asked to be rein-
stated to full-time employment.
On November 25, after speaking to Abella, Boeger placed
the following note in Abella’s personnel file: ‘‘Abella has re-
quested to return to full time work. At this time there is no
full-time openings. To remain on call.’’
According to the testimony of Boeger, who is responsible
for hiring nursing department employees, on November 25,
after Abella submitted her application for full-time employ-
ment and had left the facility, Boeger reviewed the contents
of Abella’s personnel file and, at that time, based on the con-
tents of the file, decided Abella was not qualified to be re-
employed as a full-time employee.
On or about December 3, Abella telephoned Boeger, stated
she needed a full-time job and inquired about her previous
request to be employed full time. Boeger replied Respondent
was unable to employ her full time in December because
Boeger had just hired someone else. Boeger ended the con-
versation by advising Abella to contact her again in January
for full-time work.77
At the end of each month, Perez, as part of her job as staff
coordinator, prepares the work schedule for the next month.
It shows who will be employed on which shifts for that
month. Late in December or on January 1, 1993, Abella tele-
phoned Perez and asked if she was on the work schedule for
January. Perez answered, ‘‘No.’’ Abella asked why not.
Perez stated Abella would have to speak with Boeger about
the matter and she would transfer her telephone call to
Boeger’s line. Perez then stated Boeger’s line was busy, but
assured Abella she would give Boeger the message and
would have Boeger return Abella’s telephone call. Boeger
never returned the telephone call.
The above description of Abella’s conversation with Perez
is based on the testimony of Abella, whose testimonial de-
meanor was good. Perez testified that when she received a
telephone call from Abella about getting back on the work
schedule, Perez ‘‘referred her to Julia Boeger.’’ I find this
warrants the finding that Perez did in fact inform Boeger of
Abella’s telephone call and of Abella’s message. Boeger
failed to explain why she did not return Abella’s telephone
call.
All of Respondent’s employees, the on-call as well as the
full-time employees, are required by Respondent to have an-
nual chest X-rays and physical exams, which Respondent
schedules and pays for. As an on-call employee Abella was
required by Respondent in December to have a chest X-ray
and on January 19, 1993 to have a physical examination.
On January 19, after taking her physical exam, Abella
went to Boeger’s office and asked Boeger about the status
of her request for full-time employment. Boeger replied she
could not employ Abella full time because Boeger had spo-
ken to ‘‘everybody’’ and ‘‘they [referring to everybody]
would not allow [Abella] to go back full time because [she]
had too many writeups.’’ Abella replied that in her 6 years
of employment with Respondent this was the first time any-
one had said anything about the subject of her writeups, and
asked if, by stating that ‘‘everyone’’ would not allow her to
return to work full time, Boeger was referring to Nursing Di-
rector Van Baren. Boeger answered, ‘‘everyone,’’ and told
Abella that even though Respondent could not employ her
full time, she would remain in Respondent’s employ as an
on-call employee.
The above description of Abella’s January 19 conversation
with Boeger is based on Abella’s testimony. Boeger did not
specifically deny Abella’s testimony. Boeger generally testi-
fied, however, that at no time did she ever inform Abella Re-
spondent did not intend to rehire her as a full-time employee.
Initially Boeger testified she did not know why she failed to
inform Abella of the decision not to hire her as a full-time
employee, but then testified her reason for not notifying
Abella of this decision was that, ‘‘I’m sensitive. I hate to
. . . hurt someone’s feelings and tell them that . . . you’re
fired. I’m not going to tell them that unless I have to.’’ I
reject Boeger’s testimony insofar as it conflicts with
Abella’s, because Boeger’s testimonial demeanor was poor,
whereas Abella’s was good, and Boeger’s testimony that she
never informed Abella of Respondent’s decision not to rehire
her as a full-time employee does not ring true.
It is undisputed that subsequent to Abella’s on-call em-
ployment on November 21–22, Respondent did not employ
her for on-call work, even though work of this nature was
available for her to perform during the next several months.
Likewise, it is undisputed that absent its decision not to
rehire Abella as a full-time employee, Respondent would
have rehired her as a full-time employee, because Boeger
testified Respondent had openings for full-time CNAs all of
the time ‘‘because we have a big turnover.’’
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b. Discussion
(1) Respondent’s failure to assign Abella to on-
call work
As I have found supra, subsequent to Abella’s November
21–22 on-call work assignment, Respondent failed to assign
her to any more of this work. The reason Respondent ad-
vanced at the hearing for not assigning Abella to do on-call
work, subsequent to November 22, was she had indicated to
Respondent she was not interested in being assigned to do
on-call work. Respondent’s Staff Coordinator Perez, testified
that by February 1993 she had concluded that Abella was not
interested in being assigned on-call work, so at that time Re-
spondent stopped calling Abella. Perez testified her basis for
this conclusion was during the preceding months, clerks Sul-
livan and Martinez told Perez that Abella was never available
for work. Perez testified she was unable to remember the
number of times Martinez and Sullivan told her this nor
could she remember what they said about their efforts to as-
sign Abella to on-call work.
Initially, Perez testified unequivocally that it was Martinez
and Sullivan, not Perez, who unsuccessfully attempted to as-
sign on-call work to Abella, and that Martinez and Sullivan
informed Perez of their lack of success. According to her ini-
tial testimony, Perez was not personally involved in Re-
spondent’s efforts to assign Abella on-call work during this
period. Later, however, Perez testified that on occasions
Perez personally unsuccessfully attempted to assign on-call
work to Abella. Perez was unable to remember when this oc-
curred, however, but testified it might have occurred in No-
vember or December. Later, when she was again asked if she
had spoken to Abella personally about coming to work,
Perez first testified she was unsure whether or not she had
done so, testifying ‘‘I think I did,’’ but then testified ‘‘on
some occasions I did’’ and further testified that on those oc-
casions Abella, without an explanation, told Perez she was
unable to work. Perez testified that the last time she person-
ally unsuccessfully attempted to assign on-call work to
Abella was ‘‘maybe November 1992,’’ at which time she
testified Abella stated she was unable to work.
Abella testified that subsequent to her November 22 work
assignment, during November, December and January, she
did not receive any calls for work from Respondent, that nei-
ther Perez, Martinez or Sullivan offered her work assign-
ments during that period. She further testified that once dur-
ing this period she asked Perez if work was available for on-
call employees, and Perez answered, ‘‘No.’’
I reject Perez’ above testimony in its entirety because her
testimonial demeanor—the tone of her voice and the way she
looked, spoke and acted when she gave this testimony—per-
suaded me she was not an honest or reliable witness, where-
as Abella’s testimonial demeanor was good. Moreover, the
trustworthiness of Perez’ testimony is suspect for these addi-
tional reasons: Perez’ inability to remember what Martinez
and Sullivan supposedly told her about their unsuccessful ef-
forts to assign on-call work to Abella; Perez’ inability to re-
member the number of times Martinez and Sullivan sup-
posedly spoke to Perez about their unsuccessful efforts to as-
sign on-call work to Abella; Perez gave conflicting testimony
concerning the basis for her belief that Abella was not avail-
able for on-call work-Perez initially testified she did not per-
sonally unsuccessfully attempt to assign on-call work to
Abella, that it was Martinez and Sullivan who did this, but
later Perez inconsistently testified that Perez personally un-
successfully tried to assign on-call to Abella. In view of the
aforesaid factors, plus Respondent’s failure to call either
Martinez or Sullivan to corroborate Perez’ testimony, I reject
Perez’ testimony in its entirety and find, as Abella testified,
that following Abella’s November 22 work assignment, nei-
ther Perez, Sullivan, or Martinez called her for work during
November, December, or January 1993 and during this pe-
riod, when Abella asked Perez if there was work available
for on-call employees, Perez answered, ‘‘[N]o.’’
Based on the foregoing, I find the reason advanced by Re-
spondent for its failure to assign Abella to on call work sub-
sequent to November 22 is false. I also find, for the reasons
below, that the record as a whole warrants the conclusion
that it was Abella’s union activity that was a motivating fac-
tor for Respondent’s failure after November 22 to assign
Abella to on-call work.
Respondent’s hostility toward employees who support the
Union is evident, as I have found supra, from its discipline
and discharge of several other employees because of their
union activity and sympathy. Indeed, as I have found supra,
shortly before it abruptly stopped assigning on-call work to
Abella, Respondent violated the Act when it issued counsel-
ing reports and employee disciplinary notices to 30 employ-
ees, one of whom was Abella, for the purpose of punishing
them because a majority of Respondent’s employees had
voted in favor of union representation.
Respondent must have known Abella was a prounion ac-
tivist because, as I have found supra, on September 24 and
again in mid-October, Abella picketed in front of Respond-
ent’s facility with other employees, in support of the Union’s
campaign to organize Respondent’s employees.
Abella’s picketing on behalf of the Union in front of Re-
spondent’s facility and Respondent’s antiunion animus, when
considered in the context of Respondent’s false reason for
having abruptly ceased assigning Abella to on-call work, is
sufficient to create the inference that Respondent was aware
of Abella’s union activity and because of its antiunion ani-
mus stopped assigning her on-call work. This evidence sup-
ports a prima facie case that Respondent’s failure, subsequent
to November 22, to assign Abella to on-call work was be-
cause of her union activity.
Respondent did not advance any business reason, other
than the reason that I have found was false, for abruptly
ceasing to assign Abella on-call work even if she had not en-
gaged in union activity. I, therefore, find that when, subse-
quent to November 22, Respondent ceased assigning on-call
work to Abella, that by engaging in this conduct it violated
Section 8(a)(1) and (3) of the Act.
(2) Respondent’s refusal to reemploy Abella full time
On November 25 at approximately the same time it ceased
assigning Abella to on-call work because of her union activ-
ity, Respondent, when asked by Abella to be reinstated to
full-time employment, decided she was no longer qualified to
be employed full time, yet failed to inform her of this until
January 19, 1993, despite the fact that Abella on December
3 and again on or about January 1 asked about her request
to be reinstated to full-time employment. I am convinced that
if Respondent really believed it had a legitimate business rea-
son for refusing to reemploy Abella as a full-time employee,
597CASA SAN MIGUEL
78 This conclusion is further supported by Abella’s frequent em-
ployment as an on-call employee by Respondent prior to November
25. I find it difficult to believe that if Boeger really believed
Abella’s employment record made her ineligible to care for Re-
spondent’s patients full time, that Boeger would have permitted Re-
spondent to employ her so frequently as an on-call employee.
Boeger was unable to explain this; when asked why Abella was em-
ployed on an on-call basis if her poor work record made her ineli-
gible to work full time, Boeger was unable to give an explanation
Continued
it would not have hesitated to promptly inform her of this
decision.
The timing of Respondent’s decision not to reemploy
Abella as a full-time employee, coming as it did contempora-
neously with its decision not to continue to use her as an on-
call employee because of her union activity, coupled with
Respondent’s failure to inform Abella for almost 2 months
that it had rejected her request to be reinstated to the position
of a full-time employee, persuades me that the General
Counsel has made a prima facie showing that Abella’s union
activity was a motivating factor in Respondent’s November
25 decision not to reemploy her full time.
Having found that the General Counsel made a prima facie
showing that Abella’s union activity was a motivating factor
in Respondent’s November 25 decision not to reinstate her
to her former position of full-time employee, the question
presented is whether Respondent has demonstrated it would
have refused to reinstate her as a full-time employee even
absent her union activity. For the reasons below, I find Re-
spondent has failed to demonstrate this.
On November 25, after Abella had asked Boeger to rein-
state her to her former employment status as a full-time em-
ployee, Boeger testified she reviewed the contents of
Abella’s personnel file and decided Abella was not qualified
to care for Respondent’s patients full time. Boeger testified
this decision was based on the contents of the following doc-
uments that she testified were in the personnel file: (1) an
employee disciplinary notice dated June 5, signed by Boeger,
which showed that on that date Abella had received a 3-day
suspension for using two diapers on a patient instead of one,
as required by Respondent’s policy; (2) the employee dis-
ciplinary notice, discussed supra, issued by Boeger on Octo-
ber 7 to Abella, which reprimanded her for being late getting
to work; (3) a series of one-page ‘‘reports’’ entitled ‘‘Late
Report’’ or ‘‘Absence Report’’ that indicated Abella had
been late for work once a month in January, February,
March, April and June, and three times in July, and had been
absent from work once a month during the months of Janu-
ary through May, and that after she began work in August
as an on-call employee had been late for work three times;
and (4) a written note signed by Boeger, dated October 8,
which read as follows:
Claire Abella called at approx 9:15 am telling me
that she needed to see a doctor. That she had hurt her
back last night while on duty. She told me that she hurt
herself with our resident Mr Webb. That she did not
use the hoyer lift like she should of. I told her she
needs to see Laura Smith. She also stated that she filled
out a Incident report and gave it to Judy the R.N. Su-
pervisor.
Boeger testified there were 9 or 10 employee disciplinary
notices in Abella’s personnel file. The only ones produced by
Respondent were the above-described June 5 and October 7
employee disciplinary notices. Boeger’s poor testimonial de-
meanor when coupled with Respondent’s failure to produce
any of the other employee disciplinary notices that Boeger
supposedly found in Abella’s personnel file on November 25,
persuades me that either they did not exist or, if they did
exist, their production, when viewed in the context of
Abella’s 6 years of employment with Respondent, would
have undermined rather than supported Boeger’s testimony.
As I have found supra, the October 7 employee discipli-
nary notice reprimanding Abella for her tardiness was unlaw-
fully issued because of the union activity of Abella and her
fellow employees and to punish the employees because a ma-
jority of them had voted for union representation.
Regarding the reports that showed the number of times
and dates on which Abella had been late for work in 1992,
other than the aforesaid unlawful October 7 written rep-
rimand issued to Abella for her tardiness, Respondent did not
reprimand Abella for her tardiness nor is there evidence that
Abella’s tardiness was excessive under a standard Respond-
ent expected its employees to abide by, especially when, as
here, it is undisputed that on the three occasions that Abella
was late for work as an on-call employee, Respondent knew
she intended to arrive for work late because of her school
schedule and had assured her it had no objection to her being
late on those days.
Regarding the reports that showed the number of times
and dates on which Abella was absent from work in 1992,
there is no contention or evidence that Abella was ever rep-
rimanded for her absenteeism or that it was excessive under
a standard Respondent expected its employees to abide by.
Regarding Boeger’s October 8 note about Abella’s on-the-
job injury, there is no contention or evidence that Abella was
reprimanded or even spoken to in a critical manner about her
failure to use the ‘‘hoyer lift’’ to physically lift the patient.
Even more significant, however, is the fact that the record
establishes Boeger wrote the note, not for purposes of dis-
cipline, but to notify Assistant Administrator Smith, who ad-
ministers Respondent’s worker’s compensation claim pro-
gram, that Smith needed to send Abella to Respondent’s phy-
sician for medical treatment pursuant to Respondent’s work-
er’s compensation claim program (Tr. 1743).
Boeger, throughout her testimony made it appear that she
decided not to reinstate Abella to a full-time position. As I
have found supra, however,on January 19, 1993 when
Boeger belatedly informed Abella that she was not eligible
for full-time employment because she had too many
writeups, Boeger explained to Abella that ‘‘everybody’’ was
responsible for this decision. Also, when asked during the
hearing if she was the person who decided that Abella was
not qualified to work full time, Abella testified she was only
‘‘one of the people’’ who made that decision. Respondent
called none of the other persons who, with Boeger, partici-
pated in making the decision not to reemploy Abella as a
full-time employee.
In summation, as I have discussed supra, a significant part
of Boeger’s reason for deciding not to reemploy Abella as
a full-time employee does not withstand scrutiny.78 This fac-
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and when she apparently realized there was no valid explanation lost
her composure (Tr. 1790–1791).
79 On December 20 two newly hired CNAs began work full time
for Respondent on its p.m. shift. Any uncertainty whether during the
normal course of business Abella would have been selected to fill
one of those vacancies must be resolved against Respondent in view
of the uncertainty caused by its unlawfully motivated decision on
November 25 not to reemploy Abella as a full-time employee.
tor when coupled with Boeger’s poor demeanor when she
testified about her reason for deciding not to reemploy
Abella as a full-time employee and with Respondent’s failure
to call the person or persons, who, with Boeger, participated
in the decision not to reemploy Abella as a full-time em-
ployee, persuade me that Respondent has not demonstrated
it would have refused to reemploy Abella as a full-time em-
ployee even absent her union activity. I, therefore, find that
by failing to reemploy Abella as a full-time employee on De-
cember 20, 1992, because of her union activity, that Re-
spondent violated Section 8(a)(1) and (3) of the Act.79
12. In 1992 Respondent allegedly discontinues its past
practice of providing a free meal for its employees on
Thanksgiving Day
The complaint alleges that in 1992 Respondent, in viola-
tion of Section 8(a)(3) and (1) of the Act, ‘‘discontinued its
past practice of providing a free meal for its employees on
Thanksgiving Day.’’ Counsel for the General Counsel in his
posthearing brief fails to point to the evidence that estab-
lishes this alleged violation nor does he request that I find
Respondent violated the Act by engaging in this conduct,
and, my review of the record failed to locate evidence that
establishes that in 1992 Respondent discontinued a past prac-
tice of providing a free Thanksgiving Day dinner to its em-
ployees. Therefore, I shall recommend the dismissal of this
allegation.
D. The Alleged Violations of Section
8(a)(5) and (1) of the Act
As set forth in detail supra, on September 25, 1992, a ma-
jority of Respondent’s employees in an appropriate unit
voted in favor of union representation in a Board-conducted
representation election, Respondent filed timely objections to
the conduct of the election, and, on April 8, 1994, in an un-
published opinion in Case 32–RC–3596, the Board adopted
my July 14, 1993 report that recommended that Respondent’s
objections be overruled and the Union be certified. Accord-
ingly, on April 8, 1994, the Board in Case 32–RC–3596 cer-
tified the Union as the exclusive collective-bargaining rep-
resentative of the unit employees.
It is settled law that when, as here, a majority of the vot-
ing unit employees cast their ballots in favor of union rep-
resentation that a unilateral change in the employees’ terms
and conditions of employment made pending determination
of the employer’s objections to the election have the effect
of bypassing and undermining the union’s status as the em-
ployees’ bargaining representative, in the event it is ulti-
mately certified. Thus, the employer acts at its peril in mak-
ing unilateral changes during this period and, if the union is
ultimately certified, as it was in this case, the employer’s
unilateral changes violate Section 8(a)(5) and (1) of the Act,
in the absence of a showing of compelling economic consid-
erations. Mike O’Connor Chevrolet, 209 NLRB 701 (1974).
1. On October 7, 1992, Respondent implements a new
policy governing the discipline of employees
for tardiness
As I have found supra, on October 7, Respondent violated
Section 8(a)(3) and (1) of the Act by instituting a new and
more stringent policy of disciplining employees who were
late for work, by subjecting them to discipline if they were
late on more than three occasions during a payroll period.
This change in policy was a significant and substantial
change in the employees’ terms and conditions of employ-
ment. It is undisputed that prior to implementing this new
policy Respondent did not afford the Union an opportunity
to bargain about the decision and its effects on the unit em-
ployees, because Respondent was contesting the Union’s
election victory. As discussed supra, however, by acting uni-
laterally in this matter, the Respondent acted at its peril inas-
much as its objections to the election were ultimately over-
ruled and the Union was certified as the employees’ exclu-
sive collective-bargaining representative. I, therefore, find
that Respondent refused to bargain with the Union within the
meaning of Section 8(a)(5) of the Act when, on October 7,
1992, it unilaterally instituted a new and more stringent pol-
icy of disciplining employees who were late for work on
more than three occasions during a payroll period. By engag-
ing in this unilateral conduct Respondent violated Section
8(a)(5) and (1) of the Act.
I considered that this violation was not specifically alleged
in the complaint that, in pertinent part, alleged that on Octo-
ber 7 Respondent refused to bargain within the meaning of
Section 8(a)(5) when it ‘‘effectuated a change in its em-
ployee tardiness policy regarding school class attendance,’’
without affording the Union an opportunity to bargain about
the matter. My review of the record, however, has persuaded
me that the violation found herein was fully and fairly liti-
gated in connection with this allegation and with the com-
plaint’s further allegation that on October 7, in violation of
Section 8(a)(3) and (1) of the Act, Respondent issued coun-
seling reports and employee disciplinary notices to 30 em-
ployees because of their union activities. In defending against
these allegations Respondent presented evidence that estab-
lished that 30 employees on October 7 were counseled and
disciplined pursuant to a new policy that was implemented
on that day by Respondent’s director of staff development,
Boeger, pursuant to which Respondent’s employees were
subject to discipline if they were late for work on more than
3 days during a payroll period.
2. In 1992 Respondent allegedly discontinues its past
practice of providing a free Thanksgiving Day
meal for its employees
The complaint alleges that in 1992 Respondent refused to
bargain within the meaning of Section 8(a)(5) by unilaterally
discontinuing its past practice of providing a free meal to its
employees on Thanksgiving Day. Counsel for the General
Counsel in his posthearing brief fails to point to the evidence
that establishes this alleged violation nor does he request that
I find Respondent violated the Act by engaging in this con-
duct, and, my review of the record failed to locate evidence
599CASA SAN MIGUEL
that establishes that in 1992 Respondent discontinued a past
practice of providing a free Thanksgiving Day dinner to its
employees. Therefore, I shall recommend the dismissal of
this allegation.
3. On May 27, 1993, Respondent changes its vacation
policy for the night shift
Respondent’s policy concerning the scheduling of employ-
ees’ vacations, which has been in effect since at least June
1, 1990, is set forth in a handbook given to newly hired em-
ployees, and reads, in pertinent part, as follows:
While vacations may be scheduled during any month
of the year, employees will be asked to state their writ-
ten preference for vacation dates. . . . Should conflicts
in scheduling occur, Administration has the right to de-
termine the number of people who will be on vacation
at any one time and the amount of vacation that can be
taken.
Alfredo Flores and his wife have been employed by Re-
spondent since June 1989 as CNAs on the night shift. In
1990, 1991, and 1992 Alfredo Flores, on behalf of himself
and his wife, submitted to Respondent joint vacation requests
that understandably asked that husband and wife be sched-
uled for their vacations at the same time. These requests
were granted, without objection, and in 1990, 1991, and
1992 the Floreses took their vacation from work at the same
time.
In May 1993, Alfredo Flores, on behalf of himself and his
wife, submitted their 1993 vacation request. As usual, it re-
quested that their vacations be scheduled for the same time.
In response, the Floreses received a memo dated May 25,
1993, from Boeger, Respondent’s director of staff develop-
ment, which read as follows:
I am granting one of your vacation request. Due to
the hardship it would create to night shift, if both of
you were to be on vacation at the same time. Please de-
cide which one of you would like to be off from July
5th to the 25th and I will approve it. The other will
need to choose another vacation date at a later time.
Alfredo Flores protested Respondent’s refusal to allow him
and his wife to take their vacation together and submitted an-
other vacation request on behalf of himself and his wife,
again requesting their vacations be scheduled for the same
time. This time Boeger granted the Floreses request but not
for as many days as they had requested. Boeger’s May 27,
1993 memo to the Floreses granting their request, stated in
pertinent part:
I have granted you your third choice of vacation
days. Please remember that in the future no more than
one CNA on vacation at a time on night shift. We will
consider a short overlap (emphasis added).
Boeger testified that in her May 27 memo, when she stat-
ed ‘‘in the future no more than one CNA on vacation at a
time on night shift,’’ she was following the company policy
described previously in this decision that states, in pertinent
part, that ‘‘should conflicts in [vacation] scheduling occur,
Administration has the right to determine the number of peo-
ple who will be on vacation at any one time and the amount
of vacation which can be taken.’’
Boeger also testified that on May 27 when she told the
Floreses that in the future no more than one CNA employed
on the night shift would be allowed to go on vacation at the
same time, she was informing them about an existing com-
pany policy. She admitted this policy had not been reduced
into writing and, when asked if it was a practice, testified
‘‘for me, yes it was’’ (emphasis added). I reject this testi-
mony. I am convinced that Boeger’s May 27 announcement
that in the future no more than one CNA employed on the
night shift would be allowed to take their vacation at the
same time was an announcement of a new policy. The basis
for this conclusion follows.
The wording of the May 27 announcement, ‘‘in the future
no more than one CNA on vacation at a time on night
shift,’’ indicates that in the past this had not been the policy.
If it had been, Boeger would have reminded the Floreses of
this, instead of telling them that ‘‘in the future’’ it would be
the policy. Moreover, in 1990, 1991, and 1992, the Floreses
took their vacations together, without objection. Respondent
failed to explain why, if its policy was to refuse to permit
more than one night-shift CNA to vacation at the same time,
it had always allowed the Flores to do this. Also significant
in evaluating Boeger’s testimony that prior to May 27 it had
been her practice to refuse to allow more than one night-shift
employee to vacation at a time, is the lack of corroboration
for this testimony. This lack of corroboration is significant
because of Boeger’s poor testimonial demeanor when she
testified about this matter.
It is for all of the above reasons that I reject Boeger’s tes-
timony and find that on May 27, 1993, when Boeger told the
Floreses that ‘‘in the future no more than one CNA on vaca-
tion at a time on night shift,’’ Respondent was instituting a
new policy that constituted a significant and substantial
change in the employees’ terms and conditions of employ-
ment.
Prior to implementing this new policy, Respondent did not
afford the Union an opportunity to bargain about the decision
to implement it and about its effect on the unit employees,
because the Respondent was contesting the Union’s election
victory. As discussed supra, however, Respondent acted at its
peril inasmuch as its objections to the election were ulti-
mately overruled and the Union was certified as the employ-
ees’ exclusive collective-bargaining representative. I, there-
fore, find that Respondent refused to bargain with the Union
within the meaning of Section 8(a)(5) of the Act when, on
May 27, 1993, it unilaterally instituted a new policy whereby
no more than one CNA employed on the night shift could
go on vacation from work at the same time. I further find
that by engaging in this unilateral conduct Respondent vio-
lated Section 8(a)(5) and (1) of the Act.
4. In October 1992 Respondent raises
its employees’ wages
Prior to 1992, for the past ‘‘few years’’ Respondent had
granted its employees a wage increase in or about August be-
cause it was during that time of the year Respondent re-
ceived its Medi-Cal insurance payments from the State of
California, which cover approximately 60 percent of Re-
spondent’s residents. The State requires that a small percent-
age of this money be paid to the employees in the form of
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
80 If the October 1992 wage increase was granted pursuant to non-
discretionary standards and guidelines, it is reasonable to assume Re-
spondent would have produced such evidence since it is the type of
evidence particularly within its knowledge.
81 The complaint does not allege nor does the General Counsel
contend that Respondent violated the Act by its delay in granting the
October wage increase.
a wage increase. There is no evidence, however, that the
State dictates the amount of the pay raise that Respondent
must grant to the employees. To the contrary, Respondent’s
President M. Shenker testified it is Respondent that decides
on the amount of the pay raise (Tr. 2041, L. 9–10).
In 1992, because of budgetary problems, the State of Cali-
fornia for several weeks, in the months of July and August,
paid its creditors, including Respondent, with IOUs, which
some banks refused to honor. The result was Respondent was
forced to borrow money and instead of granting its employ-
ees their annual wage increase in or about August did not
do so until October. Although the October pay raise was
granted pursuant to the Company’s policy of annually adjust-
ing the employees’ wages, there is no evidence Respondent
relied on preestablished guidelines or formulae in deciding
whether to grant the increase or in determining its size. As
I have noted supra, although a certain amount of the wage
increase was dictated by the amount of the Medi-Cal insur-
ance payment Respondent received from the State, it was Re-
spondent that determined the amount of the pay raise.
As I have discussed supra, an employer acts at its peril
when it fails to bargain with a union about changes in em-
ployees’ terms and conditions of employment during the pe-
riod when the employer is contesting the union’s election
victory, when the Board ultimately certifies the union as the
employees’ exclusive collective-bargaining representative. In
the instant case, since Respondent was contesting the
Union’s election victory it failed to afford the Union an op-
portunity to bargain with Respondent about Respondent’s de-
cision to increase the unit employees wages in October 1992
or about the effect of that decision on the employees. Al-
though this wage increase was granted pursuant to the Com-
pany’s policy of annually adjusting the employees’ wages,
there is no evidence Respondent relied on preestablished
guidelines or formulae in determining whether to grant the
wage increase or in determining its size.80 Under the cir-
cumstances, I find that by unilaterally increasing the wages
of the unit employees in October 1992, Respondent violated
Section 8(a)(5) and (1) of the Act, as alleged in the com-
plaint.81
CONCLUSIONS OF LAW
1. By asking employees Lodring Ignacio and Joanne
Mejia, during the latter part of July 1992 to report to the Re-
spondent about the union sentiments and union activities of
other employees, Respondent violated Section 8(a)(1) of the
Act.
2. By videotaping its employees’ union activity on Sep-
tember 24, 1992, Respondent violated Section 8(a)(1) of the
Act.
3. By discharging Carol Bagley on August 12, 1992, be-
cause she refused to commit unfair labor practices against
statutory employees, Respondent violated Section 8(a)(1) of
the Act.
4. By discharging the employees named below on the
dates beside their names because of their prounion senti-
ments or union activity or because it believed they were
union adherents, and/or to discourage Respondent’s employ-
ees from supporting the Union, Respondent violated Section
8(a)(3) and (1) of the Act:
Annie Maria July 1, 1992
Fe Calabiao July 22, 1992
Estella Abueg July 22, 1992
Ethel Tarrosa July 22, 1992
Angelito Bellon July 27, 1992
Caridad Guzman September 20, 1993
5. By suspending the employees named below on the dates
aside of their names because of their prounion sentiments or
union activity or because it believed they were union adher-
ents and/or to discourage Respondent’s employees from sup-
porting the Union, Respondent violated Section 8(a)(3) and
(1) of the Act:
Joanne Mejia July 22, 1992
Florencio Baldoza July 22, 1992
Irineo Llever September 4, 1992
Caridad Guzman February 19, 1993
Benjamin Medina March 22, 1993
6. By deciding to suspend employees Lodring Ignacio and
Irineo Llever on July 22, 1992, because of their prounion
sentiments or union activity or because it believed they were
union adherents or because it desired to discourage its em-
ployees from supporting the Union, and by notifying Ignacio
and Llever that they had been suspended, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
7. By issuing disciplinary notices to employees Benjamin
Medina on September 22 and October 26, 1992 and January
28 and March 22, 1993, because of his prounion sentiments
and union activity, Respondent violated Section 8(a)(3) and
(1) of the Act.
8. By issuing a disciplinary notice to Luisa Yuson on Oc-
tober 23, 1992, and another disciplinary notice to her on Oc-
tober 26, 1992, because of her prounion sentiments and
union activity, Respondent violated Section 8(a)(3) and (1) of
the Act.
9. By issuing counseling reports and disciplinary notices to
30 employees on October 7, 1992, for being late for work
in order to punish its employees for having supported the
Union and to discourage them from supporting the Union,
Respondent violated Section 8(a)(3) and (1) of the Act.
10. By instituting a new and more stringent policy on Oc-
tober 7, 1992, for disciplining employees who were late for
work and by engaging in this conduct for the purpose of
punishing its employees for having supported the Union and
to discourage them from supporting the Union, Respondent
violated Section 8(a)(3) and (1) of the Act.
11. By failing and refusing to assign on-call work to em-
ployee Claire Abella subsequent to November 22, 1992, and
by failing and refusing to reemploy Abella as a full-time em-
ployee on December 20, 1992, and by engaging in the afore-
said conduct because of Abella’s prounion sentiments and
union activity, Respondent violated Section 8(a)(3) and (1) of
the Act.
12. The Union is the exclusive representative of Respond-
ent’s employees in the following unit that is appropriate for
601CASA SAN MIGUEL
82 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
collective-bargaining purposes within the meaning of Section
9(b) of the Act:
All full-time and regular part-time employees, including
LVNs, CNAs, Dietary, Laundry, and Housekeeping em-
ployees, Sterilization Workers, Restorative Aides, and
Maintenance employees employed by the [Respondent]
at its Concord, California facility; excluding all profes-
sional employees, office clerical employees, guards, and
supervisors as defined in the Act.
13. Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally, without notice to or bargaining with the
Union, changing the unit employees’ existing terms and con-
ditions of employment, as follows: on October 7, 1992, insti-
tuted a new and more stringent policy of disciplining em-
ployees who are late for work, in October 1992 granted the
employees a pay raise; and, on May 27, 1993, instituted a
new policy pursuant to which no more than one CNA em-
ployed on the night shift may be scheduled for vacation at
the same time.
14. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
15. Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1), (3), and
(5) of the Act, I shall recommend a remedial order requiring
Respondent to cease and desist and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Because Respondent’s misconduct is so egregious and
widespread as to demonstrate a general disregard for employ-
ees’ rights, I shall include in my recommended Order a
broad cease-and-desist provision.
Having found that Respondent on October 7, 1992, vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally insti-
tuting a new and more stringent policy of disciplining em-
ployees who are late for work, and having further found that
this policy was instituted for the purpose of punishing the
Respondent’s employees for having voted for union represen-
tation, thereby violating Section 8(a)(3) and (1) of the Act,
I shall order the Respondent to rescind and cease giving ef-
fect to this policy and to remove from its records, including
the employees’ personnel files, all warnings and reports that
have been given as a result of the changed policy, and to in-
form each of the employees, in writing, that such references
have been removed and that these warnings and reports will
not be used as a basis for further personnel actions concern-
ing any of them.
To remedy the discharges found unlawful in this decision,
the Respondent shall offer Carol Bagley, Annie Mariano, Fe
Calabiao, Estella Abueg, Ethel Tarrosa, Angelito Bellon, and
Caridad Guzman immediate and full reinstatement to their
former positions of employment or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and
make them whole for any loss of earnings and benefits suf-
fered as a result of the Respondent’s unlawful conduct. Loss
of earnings shall be computed as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest computed in
the manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
To remedy the suspensions found unlawful in this deci-
sion, Respondent shall make whole Joanne Mejia, Florencio
Baldoza, Irineo Llever, Caridad Guzman, and Benjamin Me-
dina, for any loss of earnings and benefits suffered as a re-
sult of their unlawful suspensions, plus interest.
Having unlawfully issued disciplinary notices to Benjamin
Medina on September 22 and October 26, 1992, and on Jan-
uary 28 and March 22, 1993, and having unlawfully issued
a disciplinary notice to Luisa Yuson on October 23, 1992,
and another unlawful disciplinary notice to Yuson on Octo-
ber 26, 1992, the Respondent shall be ordered to remove
from its records, including the employees’ personnel files,
any reference to these warnings and shall inform each of
these employees, in writing, that such references have been
removed and that these warnings will not be used as a basis
for future personnel actions concerning any of them.
To remedy its unlawful failure and refusal to assign on-
call work to Claire Abella subsequent to November 25, 1992,
and to remedy its unlawful failure and refusal to reemploy
Claire Abella as a full-time employee on December 20, 1992,
Respondent shall immediately offer to reemploy Abella as a
full-time employee and to make her whole for any loss of
earnings and benefits suffered as a result of Respondent’s
aforesaid discrimination against her. Loss of earnings shall
be computed as prescribed in F. W. Woolworth Co., supra,
plus interest computed in the manner prescribed in New Ho-
rizons for the Retarded, supra.
Having found that Respondent violated Section 8(a)(5) and
(1) of the Act on May 27, 1993, by unilaterally, without no-
tice to or bargaining with the Union, instituting a policy pur-
suant to which no more than one CNA employed on the
night shift may be scheduled for vacation at the same time,
I shall recommend that Respondent be ordered to rescind this
unilateral change in the employees’ working conditions until
such time as it negotiates in good faith with the Union about
this subject to an impasse or until an agreement is reached.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended82
ORDER
The Respondent, Casa San Miguel, Incorporated, Concord,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Asking employees to report to Respondent about the
union sympathies and activities of other employees.
(b) Photographing or videotaping employees engaged in
union activities without proper justification.
(c) Discharging supervisors because they fail or refuse to
commit unfair labor practices against statutory employees.
(d) Discharging, refusing to reemploy, or disciplining em-
ployees because of their prounion sentiments or union activi-
ties.
(e) Refusing to bargain collectively with the Union by
making unilateral changes in the wages and other terms and
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
83 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.’’
conditions of employment of the employees represented by
the Union.
(f) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of their rights under Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Carol Bagley, Annie Mariano, Fe Calabiao, Es-
tella Abueg, Ethel Tarrosa, Angelito Bellon, and Caridad
Guzman, immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make them
whole for any loss of earnings and benefits suffered as a re-
sult of their discharges, in the manner set forth in the remedy
section of the decision.
(b) Make whole Joanne Mejia, Florencio Baldoza, Irineo
Llever, Caridad Guzman, and Benjamin Medina, for the loss
of earnings they suffered as a result of their unlawful suspen-
sions from work, plus interest.
(c) Offer Claire Abella immediate reemployment as a full-
time employee and make her whole for any loss of earnings
and benefits suffered as a result of Respondent’s unlawful
failure to reemploy her as a full-time employee and its pre-
vious unlawful failure to assign her to on-call work; backpay
to be computed in the manner set forth in the remedy section
of the decision.
(d) Remove from its files any reference to the unlawful
discharges of Bagley, Mariano, Calabiao, Abueg, Tarrosa,
Bellon and Guzman, the unlawful suspensions of Mejia,
Baldoza, Llever, Guzman, and Medina, and the unlawful re-
fusal to reemploy Abella as a full-time employee, and notify
each of them in writing that this has been done and that Re-
spondent will not use the discharges, suspensions and refusal
to reemploy against them in any way.
(e) Remove from its records, including the employees’
personnel files, any reference to the unlawful disciplinary no-
tices issued to Benjamin Medina on September 22 and Octo-
ber 24, 1992, and on January 28 and March 22, 1993, and
any reference to the unlawful disciplinary notices issued to
Luisa Yuson on October 23 and October 26, 1992, and notify
Medina and Yuson, in writing, that this has been done and
that Respondent will not use these notices against them in
any way.
(f) Rescind and cease giving effect to its unlawful policy
of disciplining employees who are late for work that was in-
stituted on October 7, 1992, and remove from its records, in-
cluding the employees’ personnel files, all warnings, reports
or disciplinary notices that were given as a result of this pol-
icy, including the 30 counseling reports and disciplinary no-
tices issued October 7, 1992, and inform each of the employ-
ees, in writing, that such references have been removed and
that these warnings, reports and notices will not be used as
a basis for further personnel actions concerning any of them.
(g) Until such time as it negotiates in good faith with the
Union to an impasse or until an agreement is reached, re-
scind the policy that no more than one CNA employed on
the night shift may be scheduled for vacation at the same
time.
(h) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(i) Post at its facility in Concord, California, copies of the
attached notice marked ‘‘Appendix.’’83 Copies of this notice
shall be in English and Tagalog, on forms provided by the
Regional Director for Region 32, 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 places including all
places where notice 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.
(j) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS FURTHER ORDERED that the complaints herein shall
otherwise be dismissed.
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.
WE WILL NOT ask our employees to report to us about the
union sympathies or union activities of other employees.
WE WILL NOT, without proper justification, photograph or
videotape employees who are engaged in union activities.
WE WILL NOT discharge a supervisor because the super-
visor fails or refuses to commit unfair labor practices against
rank-and-file employees.
WE WILL NOT discharge, refuse to reemploy, or discipline
employees because of their prounion sentiments or union ac-
tivities.
WE WILL NOT refuse to bargain collectively with Hospital
and Health Care Workers, Local 250, SEIU, AFL–CIO by
making unilateral changes in the wages or other terms and
conditions of employment of the employees represented by
that union.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their rights under
Section 7 of the Act.
WE WILL offer Carol Bagley, Annie Mariano, Fe Calabiao,
Estella Abueg, Ethel Tarrosa, Angelito Bellon, and Caridad
Guzman immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equiva-
lent jobs, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and WE WILL make
them whole for any loss of earnings and other benefits result-
ing from their discharge, less any net interim earnings, plus
interest.
603CASA SAN MIGUEL
WE WILL make whole Joanne Mejia, Florencio Baldoza,
Irineo Llever, Caridad Guzman, and Benjamin Medina for
the loss of earnings resulting from their unlawful suspen-
sions, plus interest.
WE WILL offer Claire Abella immediate reemployment as
a regular full-time employee and WE WILL make Abella
whole for any loss of earnings and benefits resulting from
our unlawful failure to reemploy her as a regular full-time
employee and to previously assign her to on-call work, less
any net interim earnings, plus interest.
WE WILL remove from our files any reference to the un-
lawful discharges of Carol Bagley, Annie Mariano, Fe
Calabiao, Estella Abueg, Ethel Tarrosa, Angelito Bellon, and
Caridad Guzman, the unlawful suspensions of Joanne Mejia,
Florencio Baldoza, Irineo Llever, Caridad Guzman, and Ben-
jamin Medina, and the unlawful refusal to reemploy Claire
Abella as a regular full-time employee, and WE WILL notify
each of them, in writing, that this has been done and that WE
WILL NOT use the discharges, suspensions and refusal to re-
employ, against them in any way.
WE WILL remove from our files any reference to the un-
lawful disciplinary notices issued to Benjamin Medina on
September 22 October 24, 1992, January 28 and March 22,
1993, and any reference to the unlawful disciplinary notices
issued to Luisa Yuson on October 23 and October 26, 1992,
and WE WILL notify each of them, in writing, that this has
been done and that WE WILL NOT use these disciplinary no-
tices against them in any way.
WE WILL rescind and cease giving effect to our unlawful
policy of disciplining employees who are late for work that
was instituted on October 7, 1992, and remove from our
records all warnings, reports or disciplinary notices that were
issued to employees as a result of this policy, including the
30 counseling reports and disciplinary notices issued on Oc-
tober 7, 1992, and WE WILL notify each of the employees,
in writing, that such references have been removed and that
these warnings, counseling reports and disciplinary notices
will not be used as a basis for further personnel actions con-
cerning any of them.
WE WILL, until such time as we negotiate in good faith
with Hospital and Health Care Workers, Local 250, SEIU,
AFL–CIO to an impasse or until an agreement is reached, re-
scind our policy that no more than one CNA employed on
the night shift may be scheduled for vacation at the same
time.
CASA SAN MIGUEL, INCORPORATED