Clara Maass Continuing Care Center

National Labor Relations Board - Board Decisions

Feb 22, 1993

310 N.L.R.B. 514 (N.L.R.B. 1993)

514
310 NLRB No. 73
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard 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.
We note that one of the General Counsel’s witnesses testified to
two instances of interrogation by Supervisor Irene Schneider, occur-
ring during August 1991, within the 10(b) period. The judge, how-
ever, credited Schneider’s denial that any such interrogations oc-
curred.
1 All of these allegations relate to a single meeting that allegedly
was held in July 1991.
2 All of these allegations relate to a single conversation held be-
tween Allegra Shipley and Pettis. This conversation, according to
Shipley, occurred a couple of weeks after the meeting described in
fn. 1.
3 According to Chandler the Union had tried and failed to organize
the employees on earlier occasions.
4 For example, Allegra Shipley testified that the meeting at which
Meyers spoke about the Union occurred in July 1991. Shipley also
Clara Maass Continuing Care Center and District
1199J, National Union of Hospital and Health
Care Employees, AFSCME, AFL–CIO. Case
22–CA–18189
February 22, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
At issue is whether the Respondent engaged in con-
duct violative of Section 8(a)(1) of the Act within the
10(b) period.
On September 29, 1992, Administrative Law Judge
Raymond P. Green issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in opposition to
the exceptions.
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 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
William Milks, Esq. and Dorothy Karlebacb, Esq., for the
General Counsel.
Michael Barabander Esq. (Grotta Glassman & Hoffman,
P.A.), for the Respondent.
Donald Neilly, Representative, for the the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Newark, New Jersey, on May 18 and July 22,
1992. The charge was filed on December 27, 1991, and the
complaint was issued on February 10, 1992. In substance, the
complaint alleged:
1. That in July 1991, the Respondent by Patricia Meyers,
its assistant administrator, and Mary Anne Pettis, its director
of nursing, interrogated employees about their union activi-
ties, solicited grievances, created the impression of surveil-
lance, and implicitly threatened employees with unspecified
reprisals.1
2. That in late July 1991, the Respondent, by Pettis, inter-
rogated employees, solicited grievances, and implicitly
threatened employees.2
3. That in August 1991, the Respondent by Irene Schnei-
der, a supervisor, interrogated employees about their union
activities. (This relates to two alleged conversations between
Victoria Ortiz and Schneider.)
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that it is a health care institution
within the meaning of Section 2(14) of the Act. It also is
agreed by the parties that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
According to Carrie Chandler Butts, a patient care attend-
ant (PCA), the Union began its attempt to organize employ-
ees in April 1991.3
Chandler testified that there were two meetings where Pa-
tricia Meyers and Mary Anne Pettis spoke with employees
about the Union and union activities; one during April 1991
and the other at some unspecified time somewhere between
July 7 and Labor Day. In this regard, the General Counsel
also presented two other employee witnesses who testified
about attending a meeting some time in July 1991 where
there was discussion of a union.
All of the Respondent’s witnesses testified that there was
only one set of group meetings concerning the Union, those
being held on each of the Employer’s three shifts on one day
in April 1991. They further testified that, although there was
a set of meetings held on July 30, 1991, nothing was said
at those July meetings about a union.
The difference between the General Counsel and the Re-
spondent as to whether the meeting was in April or July is
significant because the l0(b) statute of limitations period be-
gins on June 27, 1991, and the Respondent correctly asserts
that anything said by management at a meeting in April 1991
cannot be the basis of an unfair labor practice complaint. The
date is also significant as the General Counsel’s witnesses
tended to be vague about dates and tied other conversations
to the alleged meeting in July.4
515CLARA MAASS CONTINUING CARE CENTER
testified that the had a private conversation with Pettis a couple of
weeks after that meeting at which Pettis interrogated her, solicited
grievances, and made threats. If, as the Company contends, the
meeting in question was held in April 1991 (rather than in July),
then the private conversation between Shipley and Pettis, assuming
it even occurred, could have had to be held either in late April or
in early May, either of which would be outside the 10(b) period.
According to Chandler, on or about April 18 or 19, 1991,
she was called into Meyers’ office where she was asked what
was going on with the Union. She states that she responded
that she didn’t know and that Meyers said that she (Meyers),
had heard about a union. According to Chandler, she told
Meyers that in her opinion the employees wanted someone
to talk up for then and that Meyers said that this was not
necessary as the Company was like a family.
Chandler states that on that same day in April, Meyers and
Pettis held a meeting with employees in the second floor din-
ing room where Meyers stated to the assembled employees,
‘‘Why do you want a union, we’re like a family.’’ Meyers
is alleged to have said that she knew who signed cards and
who attended union meetings. According to Chandler, Mey-
ers also stated that no one had ever been fired except in
cases of child abuse.
Chandler, who went on medical leave from April 22 to
July 6, 1991, testified that there was a second meeting held
sometime in the summer where Meyers and Pettis talked
about the Union. According to Chandler, Meyers essentially
repeated the same things that she had said at the previous
April meeting. She states that Meyers asked why the employ-
ees wanted a union inasmuch as they were supposed to be
a family and said that if they had and problems, the employ-
ees could come to Meyers with them. Chandler asserts that
Meyers stated that if a union got in there wouldn’t be any
more merit raises; that they wouldn’t be able to allow em-
ployees to go home early; and that the employees would not
get what they usually got. Chandler finally states that Pettis
said that the Employer could always get other attendants; that
attendants were ‘‘a dime a dozen.’’
Allegra Shipley, who also was a PCA on the second shift
with Chandler, testified that she attended a meeting at about
9:30 p.m. in July 1991, where Pat Meyers asked if the em-
ployees knew anything about the Union and also asked what
she (Meyers), was doing wrong. According to Shipley, Mey-
ers asked what a union could do that they (the Company),
couldn’t do. She states that Meyers said that with a union
things would have to change; that they would have to go by
the book; that the employees might not get free coffee any-
more; and that the Company would have to tighten up on
call ins.
While corroborating Chandler’s account in certain respects,
Shipley testified, on cross-examination, that she did not be-
lieve that Chandler was present at this meeting. She also tes-
tified that she did not recall any meetings in April where a
union was discussed and that there was a separate meeting
held in July 1991 where Meyers talked about an upcoming
state inspection, an Alzheimer’s unit, and day care unit. It is
noted that Shipley did not mention anything about Pettis’ al-
leged comments that attendants were replaceable or were a
‘‘dime a dozen.’’
Victoria Ortiz testified that some time in July 1991, she
attended a meeting where Meyers talked to the nurses. (Ortiz
worked on the 11 p.m. to 7 a.m. shift and this meeting would
have been at a different time of day in July than the meeting
attended by the PCAs on the second shift which runs from
3 to 11 p.m.). Ortiz states that during the first part of this
meeting, Meyers spoke about the upcoming state inspection
and about the proposed Alzheimer’s unit. She testified that
during the latter part of the meeting, Meyers asked the nurses
if they had heard anything a union and if the PCAs were
coming to the nurses for advice about a union. Ortiz states
that Meyers said that ‘‘they’’ (presumably the Company),
didn’t want the Union and that the nurses should tell this to
the other employees.
All of the Respondent’s witnesses emphatically asserted
that there was a group of three meetings held on July 30,
1991, one for each shift and that there was no mention of
a union or union activities made at any of these meetings.
They testified that all of these meetings on July 30 had to
do with the state inspection that was scheduled to occur
some time in August 1991 (the exact date being a surprise
to both management and employees), and with plans for a
day care center and an Alzheimer’s unit.
The Respondent’s witnesses testified that the only time
that Meyers held a set of meetings with employees con-
cerning union activities was in April 1991: such meetings
being held on each of the three shifts during a single day.
In this respect, Meyers and the other company witnesses (ex-
cept for supervisor of nurses, Schneider, who states she was
not present), essentially testified that Meyers told the em-
ployee that she was aware that union cards were being
passed around, that she would prefer to be able to commu-
nicate directly with employees rather than have a third party,
that if there was a union everything that they had would be
negotiable and that the choice was one that was up to the
employees.
I am inclined to believe the Respondent’s witnesses and
conclude that these meetings took place in April and not in
July.
In addition to the testimony of three employees that they
attended meetings either in July or during the summer of
1991, the General Counsel introduced more handwritten
notes that Supervisor Irene Schneider made to herself.
(Schneider is the supervisor of the third shift). These notes,
which are on the back of the summer work schedule, indicate
that a meeting was held on July 30, 1991, where the topics
were the state inspection, a day care center, and an Alz-
heimer’s unit. Immediately beneath those notes is a notation
in what appears to be a different pen stating: ‘‘Re: Union
who wants Union? 11–7 Not aware.’’ Under that are some
other notes bearing the date July 31, 1991, and dealing with
other issues irrevelant to this case. Schneider, who impressed
me as an honest witness, acknowledged that the notes were
hers and that the comments regarding the Union were made
either late on July 30 or on July 31. However, Schneider’s
testimony was that the notes pertaining to the Union did not
refer to anything said at the the July 30 meeting, but rather
had to do with the fact that on that day, a number of the
night-shift employees had asked her what she knew about the
Union. That the reference to the Union did not relate to the
meeting, tends to be corroborated by evidence that they were
written with a different pen than the notes she took con-
cerning what was said at the July 30 meeting.
Unlike Respondent’s witnesses who testified that there was
a specific set of meetings held on July 30, 1991, the General
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The affidavits obtained from Chandler and Ortiz were obtained
during the investigation of separate charges alleging, inter alia, that
their discharges were unlawful. Neither of those charges are part of
the present case and both were withdrawn on December 30, 1991,
without any kind of settlements. I assume therefore that the Region
determined that the charges lacked merit.
6 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.
Counsel’s witnesses could only relate that the meetings at
which Meyers allegedly spoke about the Union were on
some unspecified dates. In the case of Chandler, she testified
that there were two such meetings, one in April 1991 and
the other on some unspecified date in the summer of 1991.
(In her pretrial affidavit, Chandler made no mention of any
April meetings and thereby implied that there was only one
meeting where Meyers spoke about union activity). Shipley,
on the other hand, testified that they could recall only one
meeting occurring on an unspecified date in July where
Chandler probably was not present. (In fact, Chandler’s
timecards show that they were not present on July 30, the
date that the Company asserts that the July meetings took
place.)5
That the meetings about the Union took place in April is
consistent with the uncontested evidence. The Union began
organizing and passing out authorization cards in April 1991.
It did not, thereafter, file an election petition with the Board
or demand recognition from the Employer. Since union activ-
ity commenced in April, it would be reasonable for the Com-
pany to respond in some manner as soon as it became aware
of that activity, rather than wait for 3 to 4 months to do or
say anything. Indeed, there does not appear to be any event,
circumstance or occurrence which reasonably would have
triggered some kind of antiunion response in July or at any
time after April.
To the extent that Company’s management or supervisors
made any statements to employees about unions or union ac-
tivities, it is concluded that such statements occurred in April
1991, outside the l0(b) period. I credit the denials by the Re-
spondent’s witnesses with respect to any remarks attributed
to them which are contended as being violative of the Act
and are alleged to have occurred in July or August 1991. As
it is my opinion that the testimony of General Counsel’s wit-
nesses was too vague, contradictory, and unreliable to sup-
port the contention of the complaint, I conclude that the evi-
dence does not tend to support the complaint’s allegations by
a preponderance of the evidence.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The complaint is dismissed.