Covenant Homecare

National Labor Relations Board - Board Decisions

May 23, 2000

331 N.L.R.B. 219 (N.L.R.B. 2000)

COVENANT HOMECARE 219
Covenant Homecare and Teresa P. Rector. Case 10–
CA–31593
May 23, 2000
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND
BRAME
On January 14, 2000, Administrative Law Judge Kelt-
ner W. Locke issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed a brief in response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.

Jeffrey D. Williams, Esq., for the General Counsel.
Jeffery W. Bell, Esq. (Ford & Harrison), of Atlanta, Georgia,
for the Respondent.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard
this case on November 18, 1999, in Knoxville, Tennessee.
After the parties rested, I heard oral argument, and on Novem-
ber 19, 1999, issued a bench decision pursuant to Section
102.35(a)(1) of the Board’s Rules and Regulations, setting forth
findings of fact and conclusions of law. In accordance with
Section 102.45 of the Rules and Regulations, I certify the accu-
racy of, and attach hereto as “Appendix A,” the portion of the
transcript containing this decision.2
CONCLUSION OF LAW
Based on the entire record, I find that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. I further find that the Respondent
has not violated the Act in any manner alleged in the complaint
as amended.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In affirming the judge’s findings, we note that there is insufficient
evidence of disparate treatment.
2 The bench decision appears in uncorrected form at pp. 246–259 of
the transcript. The final version, after correction of oral and transcrip-
tional errors, is attached as “Appendix A” to this Certification.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
ORDER
The complaint is dismissed.
APPENDIX A
BENCH DECISION
[Errors in the transcript have been noted and corrected.]
246
JUDGE LOCKE: On the record.
This is a bench decision in the case of Covenant Homecare
and Teresa P. Rector, Case 10–CA–31593. It began on March
29, 1999 when Ms. Rector, whom I will call the “Charging
Party,” filed an unfair labor practice charge against Covenant
Homecare, which I will call the “Company” or the “Respon-
dent.” The Company has admitted that it was served with a
copy of the charge on March 30, 1999. Based on Respondent’s
admissions I find that the charge was filed and served as al-
leged.
After an investigation, the Regional Director for Region 10
of the National Labor Relations Board, which I will call the
“Board,” issued a Complaint against Respondent on July 30,
1999. In issuing this Complaint, the Regional Director acted
for and on behalf of the General Counsel of the Board, whom I
will refer to as the “General Counsel” or the “Government.”
The complaint alleged that on or about September 30, 1998,
Respondent discharged Teresa P. Rector and five other em-
ployees named in the complaint, that it did so because its em-
ployees engaged in concerted protected activities and to dis-
courage other employees from engaging in such activities, and
that the discharges violated Section 8(a)(1) of the National
Labor Relations Act.
247
In its Answer, Respondent has admitted that it discharged the
six employees as alleged in the Complaint, but it has denied
that it took this action for the alleged discriminatory purpose,
and it also denied violating the National Labor Relations Act.
On November 18, 1999, I conducted a hearing in this matter
in Knoxville, Tennessee. At the close of proof, counsel for the
General Counsel and for the Respondent gave oral argument
and today, November 19, 1999, I am issuing this bench deci-
sion.
For the reasons I will discuss, I find that the government has
not established that Respondent violated the Act in discharging
the six employees and, therefore, recommend that the Board
dismiss the complaint.
Undisputed Allegations
Before discussing the issues in controversy I will first make
findings of fact on the undisputed allegations, based on the
admissions in the Respondent’s answer to the complaint.
Respondent has admitted that it is a Tennessee Corporation
with an office and place of business in Knoxville, Tennessee,
and that it has been engaged in the business of providing in–
home patient health and hospice care. I so find.
Respondent also has admitted that, during the 12–month pre-
ceding issuance of the complaint on July 30, 1999, in conduct-
ing the business operations I have just described, it derived
gross revenues valued in excess of $250,000.00

331 NLRB No. 21
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 220
248
and purchased and received, directly from outside the State of
Tennessee, goods valued in excess of $50,000.00. I so find.
Further, Respondent has admitted, and I find, that at all ma-
terial times it has been an Employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the National
Labor Relations Act.
Respondent also has admitted that at all material times Ethel
Owens held the position of Director of Human Resources and
was a supervisor and Agent of Respondent within the meaning
of Sections 2(11) and 2(13) of the Act respectively. I so find.
Additionally, Respondent has admitted that on or about Sep-
tember 30, 1998, it discharged the following employees:
Teresa P. Rector, Betty Tallent, Stephanie Hamill, Cynthia
Rockey, Michael Newheart, and Andrea Rogers. Based on
Respondent’s admissions in the record as a whole I so find.
Disputed Allegations
Because Respondent has admitted discharging these employ-
ees, the main issue before me concerns the lawfulness of the
discharges which in turn depends upon Respondent’s motiva-
tion. From the testimony of the various witnesses a remarkably
consistent picture emerges. The employees who were dis-
charged were all social workers. Their jobs involved visiting
the homes of patients, making a social work assessment of each
patient’s needs, and taking action to meet those needs. For
249
example, a social worker might contact a resource in the com-
munity to arrange special services for a patient.
Because of recent changes in the Company’s organizational
structure, many of the social workers experienced feelings of
insecurity about their jobs. This insecurity involved both a fear
of job loss, resulting from downsizing, and concern about who
supervised their work and how that supervision affected it.
Respondent employed persons in other professions, notably
nursing, to perform other services for homebound patients. For
a considerable time Respondent employed a separate supervi-
sor, a social worker herself, to oversee the social workers.
Apparently for efficiency, it eliminated the social worker su-
pervisor and placed the social workers under the same supervi-
sors as the visiting nurses. This change lasted a number of
months but apparently proved unsatisfactory. For reasons
which are not entirely clear on the record, management decided
to reinstate the position of social worker supervisor.
In the abstract such a change would be unlikely to evoke a
negative reaction among the social workers who felt more com-
fortable reporting to someone in their own profession than to a
nurse. However, Respondent’s choice of a person to fill this
position, and the way it went about this choice, did result in
some dissention.
250
The record indicates that Respondent made no announce-
ment in advance that it was creating the position of social
worker supervisor and did not give the social workers an oppor-
tunity to apply for the job. Rather, it selected and appointed a
person and then announced it.
Moreover, a number of social workers were concerned that
Respondent had filled the job with a person less experienced
than themselves. Additionally, some social workers were con-
cerned about the possibility that Respondent had discriminated
on the basis of sex or age. The person selected was a man and
younger than some of the social workers who were not selected.
On September 21, 1998, the social workers had to attend a
meeting at Respondent’s Offices in Knoxville. Because they
worked in various locations in a number of counties, this meet-
ing produced the unusual situation of the social workers coming
together in one place.
The six social workers named as discriminatees in the Com-
plaint, as well as at least two other social workers who were not
named in the Complaint, decided to have their own meeting
after the official one. The private meeting took place in the
home of the Charging Party.
It began between 10:30 and 11:00 a.m., probably closer to
11:00, on September 21, 1998. It lasted about an hour. At this
meeting the social workers discussed the possibility of
251
age or sex discrimination, the qualifications of the person se-
lected to be their supervisor, and what they should do.
At the end of the meeting, at least one person made a com-
ment concerning how they should record the time spent in the
meeting on their time sheets. These sheets use a numerical
code system to describe what the employee was doing.
Notwithstanding testimony that the social workers did not
have a “discussion” concerning what time code should be used,
no witness denied that this subject came up. Whether or not the
comments about time sheets satisfied the definition of “discus-
sion,” from the testimony and demeanor of the witnesses I have
no doubt that the social workers were concerned about the code
they used to record their time because it might reveal that they
had attended this unofficial meeting.
A week later the person selected to be social worker supervi-
sor learned about the meeting from a social worker who at-
tended it. This social worker, Sharie Arnold, advised the social
worker supervisor, Bobby Brown, that she was concerned about
how the social workers reported the time spent in the meeting
on their time sheets. Supervisor Brown relayed this informa-
tion to higher Management, which began an inquiry. Also on
September 28, 1998, social worker Arnold prepared a memo
concerning the meeting which she had earlier described to Su-
pervisor Brown.
This memorandum, addressed to two Management officials,
is
252
in evidence as Respondent’s Exhibit 1. It list by name seven
social workers who attended this meeting, including the six
identified in the Complaint as alleged discriminatees.
The Arnold memo reported that no patient–related issues
were discussed in the meeting. It also stated “several options
were suggested at the end of the meeting to use for document-
ing the time used for this meeting.”
The next day, members of management conducted meetings
individually with each of the involved social workers. The day
after that, September 30, 1998, Respondent discharged the six
social workers named in the Complaint and one other social
worker.
In each case, Respondent’s stated reason for the termination
of employment was that the social worker had falsified the time
record for September 21, 1998. The time records, which are in
evidence, disclose the following:
Teresa Rector had logged portions of the meeting as Code 15
(signifying a lunch or break) and the remaining portion as Code
COVENANT HOMECARE 221
9 (signifying patient documentation). Stephanie Hamill logged
all of the time during the meeting as Code 2 (case coordina-
tion).
Cynthia Rockey also logged the meeting as Code 2 (case co-
ordination). Michael Newheart logged part of the meeting as
Code 1 (signifying travel/non-visit) and the remainder as Code
2 (case coordination). Andrea Rogers
253
logged part of the time spent during this meeting as Code 1 (for
travel) and part as Code 15 (for lunch or break). Betty Tallent
logged separate portions of the time as Code 29 (meaning
scheduling), Code 2 (care coordination) and Code 3 (care plan).
I find that at the time of the discharges, Respondent’s man-
agement had considered evidence showing that the social
workers had entered false time codes on their time sheets.
Further, I find that Respondent did not have any information
which reasonably would undermine or contradict its conclusion
that these employees had made false entries on their time
sheets.
Before it discharged these workers, Respondent also knew
that they had met on September 21, 1998 at Ms. Rector’s home.
The September 28, 1998 memorandum from social worker
Arnold clearly establishes that knowledge.
Moreover, I find that the credible evidence establishes that
the management officials who made the discharge decisions
were aware that, during their meeting on September 21, 1998,
the social workers were discussing Respondent’s appointment
of Bobby Brown to be their new supervisor and what to do
about it.
To determine whether the discharges are violative, I must
analyze the facts under the Board’s Wright Line framework
which involves a sequential examination of the evidence.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). At the first step,
the government must show that the alleged discriminatees had
engaged in Union or other concerted activities protected by the
Act.
The evidence establishes that the discriminatees attended
254
the meeting on September 21, 1998, at which they discussed
matters related to terms and conditions of employment.
Further, I find that their activity was concerted activity pro-
tected by Section 7 of the Act. Therefore, I conclude that the
evidence satisfies the requirements of the first step of the
Wright Line analysis.
Next, the General Counsel must show that Respondent was
aware of the employees’ protected activities. The September
28, 1998 Arnold memorandum and uncontradicted testimony
establish that the management officials who made the discharge
decisions knew about the protected activities of the employees
they terminated. Therefore, I find that Step 2 of the Wright
Line test has been satisfied.
The Government must also show that Respondent took an
adverse employment action. Respondent has admitted that it
terminated the employment of the alleged discriminatees. I
find that this third part of the Wright Line test has been satis-
fied.
Finally, the General Counsel must demonstrate a connection
between the protected activity of the employees and the adverse
employment action taken against them. There is no evidence to
establish that Management discharged the social workers be-
cause of what they discussed at the September 21, 1998 meet-
ing in Ms. Rector’s home.
Similarly, there is no direct evidence that management
255
discharged these employees because they had a meeting. For
example, no one testified that any supervisor or manager made
any statement connecting the discharge decision with the fact
that employees had acted in concert or had discussed working
conditions.
To prove a link between the protected activity and the ad-
verse employment action the government must, in this case,
rely upon whatever inference may be drawn from the facts.
The timing of events, for example, may provide the basis for
such an inference in appropriate cases. However, I do not be-
lieve this to be an appropriate case.
The Respondent certainly acted swiftly on September 28,
1998 when it learned about the social workers’ meeting and
how they had coded their time sheets. Thus, the next day, Sep-
tember 29, Respondent conducted interviews of the involved
employees, and on September 30, 1998 it discharged the em-
ployees.
Other circumstances besides timing, however, call into ques-
tion what significance logically may be inferred from the speed
of Respondent’s action. If the employees had attended a Union
organizing meeting or if they had decided at their meeting to
take some specific action, such as contacting a lawyer or Gov-
ernment Agency to pursue a discrimination claim, then the
speed of the discharges might be interpreted as management’s
attempt to nip that action in the bud.
256
In this case, however, the social workers did not agree during
their September 21, 1998 meeting to take any specific action.
They just talked about working conditions.
Perhaps, if the record contained other evidence showing
management’s hostility towards discussion of working condi-
tions by employees, it would be reasonable to conclude that the
swiftness of the discharges reflected Management’s antipathy
to such discussions. However, the record does not suggest that
the Respondent had any such dislike of employee discussions.
Therefore, I do not draw any inference from the timing of the
discharges.
I find that the government has not proven the fourth Wright
Line requirement. Therefore, I conclude that the General
Counsel has not met his burden of proof.
However, even assuming that the government had estab-
lished what formerly was called a prima facia case, I would
conclude that Respondent had demonstrated that it would have
taken the same action against these employees in any case, and
regardless of their protected activities or lack of protected ac-
tivities.
Respondent presented credible evidence showing a consis-
tent pattern of discharging employees who had falsified their
time sheets. This evidence is particularly persuasive when
considered with the Respondent’s possible motivations for
making such discharges.
257
To accept the General Counsel’s theory, I must assume that
the Respondent felt so threatened by employees having one
meeting which might be called a “gripe session” that it was
willing to terminate most of its social worker compliment to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 222
keep such meetings from happening again. That does not
sound like plausible conduct, particularly because Respondent
had just decided that the social worker position was important
enough to deserve a separate supervisor.
On the other hand Respondent’s asserted motivation is
highly plausible. Management feared and wished to avoid a
federal investigation concerning Medicare fraud. An investiga-
tion might result from any irregularity in time records.
Considering the vigor with which the federal government,
through its Office of Inspector General of the Department of
Health and Human Services—as well as the agencies of the
Department of Justice—pursue health care fraud allegations, it
is very reasonable to believe the claim that management offi-
cials did not want to do anything which could result in an in-
vestigation.
It also may be noted that apart from a criminal investigation,
the government also may inquire administratively into per-
ceived irregularities in billing under Medicare. Such an inquiry
may result in delayed reimbursement of Medicare
258
claims. The prospect of such a cash flow problem also could
motivate the management of a home health agency to make and
enforce a zero tolerance policy concerning employees misre-
porting their time usage.
In sum, no evidence suggests any management fear or loath-
ing of employee “gripe sessions,” but credible evidence does
suggest management acted out of fear that time reporting ir-
regularities could cause a federal investigation. The fact that
Respondent decided not to bill Medicare for any time on the
time sheets affected by the misreporting further demonstrates
management’s concern.
The General Counsel has argued that evidence shows Re-
spondent did not always come down hard on employees who
misreported time on their time sheets. To reach such a conclu-
sion I must consider all the evidence presented at the hearing,
and not merely the information which was available to Man-
agement officials when they made the discharge decisions.
Such hindsight would not be appropriate. I must decide man-
agement’s motivation based upon the knowledge available to
management officials at the time they took the action.
In sum I conclude that the Government has failed to prove
259
the violations it alleged, and I recommend that the Complaint
be dismissed.
After the transcript is prepared and served on the parties and
on me I will prepare a certification of bench decision. Attached
to that certification will be the portions of the transcript which
record the bench decision I have just given. When my certi-
fication of bench decision issues, it will be served upon the
parties, and it will be that event, the service on the Parties,
which will begin the period for filing an appeal.
I have been tremendously impressed by the civility and the
professionalism of counsel in this matter and am very grateful
for how smoothly and cooperatively the evidence has been
presented. Thank you. The hearing is closed.