Garrison Valley Center, Inc.

National Labor Relations Board - Board Decisions

Dec 31, 1985

277 N.L.R.B. 1422 (N.L.R.B. 1985)

1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Garrison Valley Center, Inc. and District 1199E,
National Union of Hospital & Health Care Em-
ployees, RWDSU, AFL-CIO. Case 5-CA-
16239
31 December 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 12 September 1984 Administrative Law
Judge Marvin Roth issued the attached decision.
The Respondent filed exceptions and a supporting
brief.'
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge's rulings, findings, 2 and
conclusions as modified3 and to adopt the recom-
mended Order.
The judge found that the Respondent's asserted
reason for discharging Brown-i.e., for leaving a
patient unattended in a bathtub-was pretextual.
However, he did not specifically apply a Wright
i The Respondent also filed a motion to reopen the record to admit
into evidence the decision of the Maryland Department of Employment
and Training Board of Appeals , which found that Brown was guilty of
gross misconduct and was therefore disqualified from receiving any un-
employment benefits The Respondent contends that the state agency's
finding that Brown acted in knowing violation of the Respondent 's rules
and that the Respondent had no knowledge of any union activity at the
time Brown was discharged requires a reversal of the judge's decision
The General Counsel agrees that the decision should become part of the
record, but moves that the Board also reopen the record to admit addi-
tional evidence regarding the circumstances of the hearing . In view of
the judge's explicit direction to the parties to forward to him any final
decision on Brown 's claim-albeit only if such decision were rendered
while the instant case was pending before the judge-and because the
state agency ' s decision constitutes previously unavailable evidence, the
Respondent 's motion is granted We do not find such decision control.
ling, however, because the state agency 's determination was rendered
under a statute with different definitions , policies, and purposes from the
National Labor Relations Act. Moreover, our decision, as well as that of
the judge, " must be based upon an independent consideration and evalua-
tion of the evidence received in this unfair labor practice proceeding "
See Justak Bras & Co, 253 NLRB 1054 fn 1 ( 1981) Further, and be-
cause we find the state agency 's decision not to be controlling , we find it
unnecessary to pass on the General Counsel's motion
2 The Respondent has excepted to some of the judge's credibility find-
ings . 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
3 We adopt the judge's conclusion that the Respondent , through
Housekeeping Director Williams, violated Sec 8(a)(1) of the Act by so-
liciting employee Pringle to inform on the union activities of other em-
ployees In so doing , we note Pringle's credited testimony , which was
omitted by the judge in his decision , that before Williams told Pringle
that if she found out anything she should tell Williams , Pringle told Wil-
liams that she "was going to find out about what [Williams] was talking
about " Even considering Pringle ' s additional testimony , however, we
find that Williams' statement clearly constituted an unlawful solicitation
Line4 analysis. Notwithstanding the judge's failure
to apply a Wright Line analysis, we find that the
judge's findings satisfy the analytical objectives of
Wright Line. As found by the judge, Brown was
the most active employee on behalf of the Union.
Two days after the first union meeting, which
Brown had helped to arrange, Williams, the Re-
spondent's housekeeping director, told Brown that
she knew a "secret" about Brown and was going to
tell Campanella, the Respondent's administrator.
Four days later, about an hour before Brown's dis-
charge, Williams referred to Brown as the "ring-
leader" during a conversation with employee Prin-
gle about union activity at the Respondent's facili-
ty. Both incidents indicate that the Respondent
knew Brown was leading the union campaign and
that the Respondent harbored animus toward
Brown. Also, Brown was discharged only 6 days
after the first union meeting for conduct the Re-
spondent had tolerated in the past and despite her
otherwise good work record. In view of the above
findings , it is clear that the General Counsel estab-
lished a prima facie case that Brown's union activi-
ties were a motivating factor for her discharge.
The judge also considered and rejected the Re-
spondent' s defense that Brown was discharged for
a bona fide reason-i.e., leaving a patient unattend-
ed briefly while performing other work-in con-
formance with its past practice. He found that the
evidence demonstrated that the Respondent had
tolerated brief absences for work-related reasons
and would discharge an employee only when seri-
ous injury or death resulted from the employee's
conduct. The judge also found, based on the testi-
mony of Brown, employees Roles and Pringle, and
Supervisor Houldsworth, that leaving patients un-
attended in a bathtub was not unusual at the Re-
spondent 's facility. He further noted that Campan-
ella herself left the patient unattended when she
went out to find Brown. Based on the judge's find-
ings, we conclude that the Respondent failed to
meet its burden under Wright Line of establishing
that it would have discharged Brown even in the
absence of her union activities. Accordingly, we
agree with the judge's conclusion that the Re-
spondent's discharge of Brown violated Section
8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Garrison
4 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Car
1981), cert denied 455 U.S 989 (1982), approved in NLRB v Transporta-
tion Management Corp, 462 U S 393 (1983)
277 NLRB No. 164
GARRISON VALLEY CENTER
Valley Center, Inc., Garrison, Maryland, its offi-
cers, agents, successors, and assigns , shall take the
action set forth in the Order.
Harvey A. Holzman, Esq., for the General Counsel
Carl S. Silverman, Esq., of Baltimore, Maryland, for the
Respondent.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, "Administrative Law Judge. This case
was heard at Baltimore, Maryland, on June 5, 6, and 7,
1984.11 The charge was filed on March 12 by District
1199E, National Union of Hospital & Health Care Em-
ployees, RWDSU, AFL-CIO (the Union). The com-
plaint, which issued on April 23 and was amended at the
hearing, alleges that Garrison Valley Center, Inc. (the
Company or Respondent) violated Section 8(a)(1) and (3)
of the National Labor Relations Act. The gravamen of
the complaint is that the Company allegedly engaged in
coercive interrogation, creating the impression of surveil-
lance of union activities, and soliciting employees to
inform the Company about union activities, and dis-
charged employee Theatus Brown because of her union
and concerted activities. The Company's answer denies
the commission of the alleged unfair labor practices. All
parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally, and to file
briefs. The General Counsel and the Company each filed
a brief.
On the entire record in this case2 and from my obser-
vation of the demeanor of the witnesses, and having con-
sidered the briefs and argument of the parties, I make the
following
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, a Maryland corporation with an office
and place of business in Garrison, Maryland, is engaged
as a health care institution in the operation of a nursing
home providing medical and professional care services
for the elderly. In the operation of its business, the Com-
pany annually derives gross revenues in excess of
$100,000 and annually receives at its Garrison facility
goods and services valued in excess of $40,000 directly
from points outside of Maryland. I find, as the Company
admits, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
I All dates herein are for 1984 unless otherwise indicated.
2 The General Counsel and Respondent have each filed motions to
correct the transcript The General Counsel disputes two of Respondent's
proposed corrections I am granting the General Counsel's motion in full,
and Respondent's motion with one exception and one qualification In ad-
dition I have found other errors, only one of which affects the substance
of testimony The official transcript of proceedings is noted and correct-
ed.
II. THE LABOR ORGANIZATION INVOLVED
1423
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. BACKGROUND: HISTORY OF UNION
REPRESENTATION AND THE PRIOR UNFAIR LABOR
PRACTICE CASE
On December 1, 1977, the Company purchased and
took over the operation of the Garrison facility. Ida
Campanella became and still is administrator and an
owner of the facility. As of December 1, 1977, the Union
was the collective-bargaining representative of the em-
ployees at the facility, and the Company, as successor
employer, became obligated to recognize and bargain
with the Union. In a subsequent unfair labor practice
proceeding (Garrison Valley Center, 246 NLRB 700
(1979)), the Board found that in early 1978 the Company,
by Campanella, violated Section 8(a)(1) and (3) of the
Act by pointing out or otherwise identifying to its em-
ployees prounion workers as "troublemakers" and by dis-
criminatorily discharging two leading union adherents
because of their union activity. The Board further found
that the Company violated Section 8(a)(5) and (1) of the
Act by unilaterally changing terms and conditions of em-
ployment. In so finding, the Board's administrative law
judge discredited the testimony of Campanella and Di-
rector of Housekeeping Mary Williams in material re-
spects, finding that their testimony "did not impress me
as trustworthy or reliable." Like Campanella, Williams
remained in her position at the time of the present case.
Some time after the Board's decision, following unsuc-
cessful contract negotiations, the Union abandoned its
representative status, and was no longer the bargaining
representative when the present case arose.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
Theatus Brown began working at the Company's nurs-
ing home in July 1982 as a nursing assistant . The position
is also known as nurses aide or certified geriatric assist-
ant (CGA). Following completion of a training course,
Brown received her state certification in November
1982. Brown was generally regarded as a good and con-
scientious employee, although in January 1984 she re-
ceived a written warning for tardiness, which was a
common problem at the facility. Brown was never given
oral or written warning for neglect or inattention to a
patient of any deficiency other than tardiness . In Febru-
ary the employees discussed their common concerns,
principally unannounced overtime. On February 9 or 10
Brown contacted Union Organizer Judy McBride, and
the following Monday (February 13), pursuant to
McBride's request, and having solicited employees to
sign a petition, she gave McBride the names and tele-
phone numbers of some 13 or 14 employees who might
be interested in joining the Union. McBride then contact-
ed the employees. On February 14 McBride met with
Brown and nursing assistant Barbara Roles at a fast food
restaurant near the nursing home, and arranged for a
larger meeting which was scheduled for the following
evening at the Union's hall in downtown Baltimore,
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 15 miles from the nursing home. That afternoon
(February 14), Brown spoke to some five or six employ-
ees about the meeting. Some 15 of 16 employees, consti-
tuting about 40 percent of the employee complement, at-
tended the February meeting, and all of them filled out
union authorization cards.3 McBride gave Brown (but no
other employee) extra authorization cards, and Brown
subsequently solicited and obtained some four or five
signed authorization cards at the nursing home.
Throughout these events and until her discharge on the
morning of February 21, Brown was the most active em-
ployee on behalf of the Union.4
Brown testified that on the morning of February 17, at
work, Housekeeping Director Williams told her that she
knew a secret about Brown and was going to tell Ad-
ministrator Campanella. Brown answered that she did
not care as long as she did her work. Employee Pringle
testified that on the morning that Brown was discharged,
between 9 and 9:30 (about 1 hour before the discharge),
Williams engaged her in conversation while she was
giving a patient a bath. Pringle testified that Williams
said that "you usually know what's going on around
here." Pringle asked if she was talking about what hap-
pened on Sunday (referring to a dispute about who
would be assigned to the lower level that day). Williams
replied no, that she heard they were trying to get a
union around here. Pringle falsely answered that she
heard nothing, whereupon Williams added that she heard
that Brown was the ringleader. Pringle again asserted
that she heard nothing. Williams then told Pringle that if
she found out anything she should tell Williams, but
should not mention her name. Williams, in her testimony,
denied having any conversation as described by Brown,
and denied having any conversation with Pringle about
union activity until Friday, February 24, 3 days after the
discharge. Williams testified that on Wednesday or
Thursday she overheard part of a conversation in which
employee Roles said that she had left patients alone in a
tub (the Company's asserted reason for discharging
Brown) whereupon someone else mentioned the word
"union." Williams further testified that she could not
hear the rest of the conversation, and that this was the
first she heard about a union, but that on Friday, because
she and Pringle were close friends, she asked Pringle
whether someone was trying to get a union in there. Ac-
cording to Williams, Pringle answered, "No, not that I
know of," and "nobody tells me anything," adding that
"Brown is gone and they will probably never find out."
Notwithstanding Pringle's enigmatic reference to Brown
a The cards of Brown and Pringle, which were the only cards present-
ed in evidence in this proceeding, were undated, and in the case of Prin-
gle, unsigned , but were otherwise filled out No evidence was presented
which would indicate that the union activity took place at different times
or under different circumstances than those described in the testimony of
McBride, Brown, Roles, and Pringle I credit their testimony concerning
the union activity, including the February 15 union meeting.
4 On February 29 the Union filed a petition for a Board-conducted
election (Case 5-RC-12173) which, because of incorrect addressing, was
not received by the Company until the second week in March. There
was no contact between the Company and the Union before March.
During the election campaign the Company actively opposed unioniza-
tion. The election was held on April 17. The Union won and was certi-
fied as bargaining representative.
in the context of a conversation about union activity,
Williams testified that she did not question Pringle fur-
ther, and said nothing to Campanella because she had
not learned anything. Campanella testified that she was
not aware of any union activity until March 5, when she
heard about the election petition, and that Williams had
no input in Brown's discharge . Campanella's subordinate,
Director of Nursing Mildred Cook, who was Brown's
supervisor, also testified that she had no knowledge of
any union activity until mid-March, after she quit her job
(Cook left the nursing home on March 2).
I credit Pringle and Brown. Pringle was still in the
Company's employ at the time of the present hearing.
She was also in the Company's employ during the prior
unfair labor practice proceeding, including notice post-
ing, and was therefore aware that the Company had fired
two employees because of their union activity. As Wil-
liams herself testified, they were good friends. In these
circumstances, it is unlikely that Pringle would knowing-
ly testify falsely against the Company and Williams. I
have less reason to credit the testimony of Williams and
Campanella. In the prior unfair labor practice case, the
administrative law judge, who heard more extensive tes-
timony by Williams than I did in the present proceeding,
found both of them to be less than credible witnesses.
Moreover, Williams' version, unlike that of Pringle, is in-
herently improbable, except insofar as it demonstrates an
admitted proclivity toward unlawful conduct, i.e., inter-
rogation. According to Williams, when she heard the
word "union," she immediately inferred that there was a
union organizing campaign . On the basis of what Wil-
liams allegedly overheard, it is equally likely, if not more
so, that the employee was simply suggesting that Brown
would not have been arbitrarily discharged if there were
still a union at the nursing home. If, as indicated by Wil-
liams' testimony, she was very much interested in finding
out about an organizing campaign , then it is unlikely that
Williams would have ended the conversation after Prin-
gle dropped a hint that Brown had something to do with
it. If the conversation occurred as described by Williams,
then it is probable that she asked no further questions of
Pringle because she already knew that Brown was the
leading union activist. However, Williams' testimony
does constitute an admission that she had no reservations
about questioning employees concerning union activity,
without legitimate reason or assurance against reprisal,
and that she would report anything she learned to Cam-
panella. In sum, I credit the testimony of Pringle and
Brown, and I find, on the basis of that testimony and the
admissions of Williams, that by February 17 Williams
knew that Brown was leading a union organizing cam-
paign, and that she so informed Campanella. There is no
evidence of any "secret" about Brown other than her
union activity, and Williams subsequently indicated to
Pringle that she already knew that Brown was the "ring-
leader." Additionally, I have credited Brown and Pringle
because, for reasons which will be discussed, the only
reason advanced by the Company for Brown's discharge
was pretextual, leaving Brown's union activity as the
only evident reason for her discharge.
GARRISON VALLEY CENTER
During February Brown was working on the first
shift, from 7 a.m. to 3 p.m., as a "PRN" or floater, in
that she was assigned on a daily basis as needed rather
than assigned to one area of the nursing home for the
entire month. The nursing home consists of the old
building and the new building, joined by an area known
as Golden Run. The nursing home has 38 semiprivate
bedrooms, each with 2 beds. On February 21 the home
was close to or at full capacity, having 74 to 76 patients.
Rooms 1 through 7 and the administrator's office are on
the first floor of the old building. Rooms 12 through 18
are located on the second floor of the old building, the
ambulatory section, where patients are generally able to
move about on their own. Golden Run connects the first
floor of the old building with the first floor' of the new
building. Rooms 8 through 11 are located in Golden
Run, and rooms 19 through 32 are located on the first
floor of the new building. There is also a nursing station
on that floor. The new building also contains a lower
level, which is connected to the first floor by a stairway.
Rooms 33 through 38, containing 12 patients, are located
on the lower level. The lower level is reserved for dis-
oriented patients. There is no nursing station on the
lower level. However, the lower level contains a dining
room, shower room, and laundry room, which is located
about 45 feet from the shower room. The shower room
contains a recently installed device known as a bather,
which replaced a conventional bathtub. The bather is a
self-contained bathing system which provides a tub,
shower, whirlpool, and sitzbath in one unit. For purposes
of a nursing home, the bather is a significant improve-
ment over a conventional bathtub in several respects.
The bather has a sliding side panel which enables the pa-
tient to be shifted directly from a mobile chair into the
bather. In the bather, the patient is placed in a seat
which is tilted slightly backwards.
On February 19 and 20 Brown worked the lower
level. On February 21 she arrived at work about 6:35
a.m., clocked in shortly before 7, attended report from 7
to 7:15 (when the nursing staff is informed of develop-
ments on the previous shifts and given their assignments),
and was,assigned to the lower level. The assignments
were made by Nursing Director Cook or, in her absence,
by the charge nurse. Brown then gave baths to two pa-
tients. She testified that about 7:30 she saw Cook walk-
ing in the hallway of the lower level, looking around
with her arms folded. Brown served breakfast to the pa-
tients between 8 and 9 o'clock. In this task she was as-
sisted by certified medicine aide Marie Harding. The
principal, but not exclusive, duty of the medicine aides
was to administer medicine to the patients. About 9 a.m.
Harding went upstairs to resume her regular tasks, leav-
ing Brown as the only nursing staff employee on duty on
the lower level. However, there was an employee
(Austin) on duty in the laundry room. About 9:30 Brown
resumed giving baths. She was giving a bath when an-
other patient, who for reasons of privacy will be referred
to as "X," attempted to enter the shower room for the
purpose of getting a bath. Patient X had numerous prob-
lems. He was about 4 feet tall, hydrocephalic, dwarfish,
with a mental age of 6 to 9 years (although in his 60's),
walked with difficulty and frequently fell, and had a
1425
heart condition and one kidney. However, he enjoyed
taking baths, and when he wanted to take one, he was
not inclined to let anyone stand in his, way. X could be
and sometimes was combative, and had previously been
placed in restraints, although the nursing home aban-
doned this practice as potentially hazardous to him.
Brown completed giving the third bath of the day
while keeping X out of, the shower room, She then
wheeled the patient to her room and, returned to the
shower room, where she found X undressed and seated
in the bather. Although it was not his turn for a bath,
she proceeded to run the water, soap him, and give him
a washcloth. Brown had adequate supplies for a bath, al-
though she did not have bags for soiled clothes. (Brown
testified that there were none available when she went to
the laundry room earlier that morning.) By this time
Brown had accumulated soiled clothes from four patients
on the floor of the shower room. Brown testified that as
X was washing himself, she picked up the soiled clothes
and took them into the laundry room. The door to the
laundry room was a self-closing, solid wood fire door.
Brown testified that the door had not completely closed
when she emerged from the laundry room and saw Ad-
ministrator Campanella leaving the shower room in the
direction of the stairs. Brown further testified that Cam-
panella said, "You know you have a patient in the,bath-
tub," that she answered that she did, and that nothing
else was said at this time. Campanella went upstairs and
Brown returned to the shower room. Brown testified
that she was gone from the shower room less than a
minute, and that she found X leaning back in his seat.
She completed the bathing process, and about 10 minutes
later heard the paging system announce that midmorning
refreshments were available on the dumbwaiter. She
went upstairs to the nursing station to get cups, where-
upon Cook told her that she should see Campanella.
Cook and Brown proceeded to Campanella's office.
Campanella's daughter, Assistant Administrator Gina
Campanella, was also present. Brown testified that Cam-
panella said she went downstairs and the patient was left
in the tub and she no longer wanted Brown working for
her because she could not trust Brown with the patients.
Brown testified, in sum , that nothing else was said about
the reason for her termination and, specifically, that
nothing was said about any rule or whether this had oc-
curred in the past.
Administrator Campanella testified that on February
21 she arrived at her office at the nursing home and, pur-
suant to her usual practice, immediately began making
her rounds of the facility for the purpose of determining
whether the patients were receiving proper care. Cam-
panella testified that she followed no set route, but usual-
ly began at the kitchen, and that on this day she began at
the kitchen and then, for no particular reason, proceeded
to the lower level. She entered the hallway, saw the
shower door slightly open, went in, and saw patient X
alone in the bather, leaning forward and playing with
water. Campanella testified that she went out to inquire
who was taking care of the patient and why he was
alone. At one point she testified that she stood in the
hallway until Brown emerged from the laundry room.
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, at another point she testified that as she came
out of the shower room she saw Brown coming out of
the laundry room. Campanella testified that she asked
Brown if that was her patient. Brown said it was. Cam-
panella asked why she left him unattended, and Brown
answered that she went to take dirty clothes to the laun-
dry. Campanella asked if that could have waited until the
bath was over, and Brown admitted that it could have
waited. Campanella returned to her office and then sum-
moned Cook and Brown. Campanella did not consult
with Cook or anyone else before terminating Brown.
Campanella testified that in her office she again asked
Brown why she left the patient unattended, and Brown
again explained the reason and admitted that it could
have waited: Campanella further testified that Brown
said she had done this before, and did not know why she
was being terminated. Campanella testified that in dis-
charging Brown, she stressed the seriousness of the
matter, and that "it is a practice and policy of Garrison
that an unattended patient is never to be permitted."
Campanella testified, in sum, that she discharged Brown
because she left a patient unattended in a bathtub, and
for no other reason, that she so informed Brown, that the
identity or condition of the patient was immaterial to her
decision, and that even Brown's admission that she had
done this before did not affect Campanella's decision.
Gina Campanella was not presented as a witness. As in-
dicated, Nursing Director Cook was not present at the
incident, but was present at the termination interview.
Cook's version was closer to Brown's than that of Cam-
panella. Cook testified that Campanella said in making
her rounds she found a patient unattended in the tub,
that Brown was not supposed to do this, and it was
cause for immediate dismissal: Brown agreed and Cam-
panella said this was the only reason for Brown's termi-
nation. Cook did not, either in her testimony or in a file
memo which she prepared 3 days after the discharge, in-
dicate that there was any discussion of the reason for
Brown leaving the patient or any admission by Brown
that she had done this before.
I find, as admitted by Brown, that she left the patient
in order to take soiled clothes to the laundry room, and
that she was gone less than a minute. I further find, in
light of Campanella's admissions, that she left the shower
room in order to find Brown (or the person attending
the patient) and immediately saw Brown coming from
the laundry room. I credit Campanella's testimony that
Brown explained the reason why she left the patient.
Even if Campanella were discriminatorily motivated, it is
unlikely that she would have failed to ask why Brown
left the- patient, because Brown might have had a com-
pelling reason to do so. In a file memo, which Campan-
ella prepared the same day, she indicated, and correctly
so, that Brown left the patient in order to take dirty
clothes to the laundry room. Campanella would not have
known this unless Brown told her so, because Brown
might have gone to the laundry room to get supplies or
for some other reason. I also credit Campanella's testi-
mony that Brown admitted that-she had done this before,
because it is unlikely that Brown, an outspoken individ-
ual, would not have offered some justification for her
action. Indeed, it is the General Counsel's position in this
case that the Company has tolerated brief absences from
a bathing patient under comparable circumstances.
With regard to the merits of the Company's position,
the Company did not, except on two specific occasions,
ever post or otherwise announce a general rule that pa-
tients could not be left in a tub unattended, or that such
conduct was grounds for immediate dismissal. In April
1979 a nursing assistant left a patient unattended in a
bathtub in order to answer a call light. The patient was
found submerged in water. Two days later the patient
died and the assistant was terminated for "patient ne-
glect." Campanella testified that the patient did not die
as a result of the incident. However, a decision in the un-
employment compensation proceeding involving the as-
sistant indicated that the Company stated that the cause
of death was aspiration and pneumonia, and that water
was found in one lung.5 Thereafter the Company posted
a notice to the effect that patients could not be left in the
tub unattended. However, the notice was taken down
long before Brown began her employment, and no simi-
lar notice was posted until after her termination. The
Company's employee handbook lists 10 "examples of of-
fenses which are so severe that they may result in imme-
diate or automatic dismissal." The first of these is "negli-
gent or willful inattention to patients." The handbook
makes no specific reference to leaving a patient unattend-
ed in the bath. However, Campanella testified in sum
that such conduct is covered by the listed offense. In
order to obtain their certification, the nursing assistants,
including Brown, were required to take a state-adminis-
tered training course at the facility. It is undisputed that
in this course the assistants were taught never to leave a
patient unattended in the shower or bath. At the time
Brown took this course, the Company had not yet in-
stalled a bather in the lower level. However, the assist-
ants were not informed of any exceptions or qualifica-
tions to the rule. In sum, the assistants were not taught
that the rule was dependent on the condition or the pa-
tient, the duration or reason for leaving them unattended,
or the type of bathing equipment in use.
The General Counsel presented evidence to the effect
that the Company was understaffed during January and
February, particularly in the lower level. On February 7
the State Health Department cited the Company for in-
sufficient staffing because one nursing assistant was
giving a bath at a time when no one else was attending
to patients in that section. The same situation existed On
the morning of February 21. The General Counsel also
posed numerous hypothetical questions about what might
happen if no member of the nursing staff was on duty in
the lower level or other section, or-what a nursing assist-
ant was expected to do if she was assigned alone to the
lower level, was giving a bath, and an emergency arose,
e.g, two patients were fighting. The difficulty with this
approach is that Brown did not leave the patient in the
5 The Company's files indicate that in September 1979 the Company's
then director of nursing gave the assistant an open letter of recommenda-
tion for employment, stating that she "resigned her position at this facili-
ty for personal reasons " That director was not presented as a witness in
this proceeding Whatever her reasons may have been, I find that in fact
the nursing assistant was discharged as a result of the incident
GARRISON VALLEY CENTER
bather because of understaffing or because of an emer-
gency situation. The nursing assistants were instructed
not to leave soiled clothes and linen on the shower room
floor. Brown testified that she was also instructed not to
place clothing on the chairs or even on the hooks in the
shower room, and that she could not use the hamper be-
cause when she went to the laundry room for supplies
that morning, there were no laundry bags available.
However, after giving the first two baths Brown left
soiled clothes on the bathroom floor for about an hour
during the breakfast period. Brown could also have re-
moved soiled linen after giving the third bath, before she
ran the water for the fourth bath. Brown also failed to
take reasonable steps to keep patient X out of the shower
room until she was ready for him. Specifically, Brown
failed to make use of a sliding bolt which was placed
high on the shower room door for the specific purpose
of keeping out patient X. Brown testified that the bolt,
which she described as a hook, was ineffective. Howev-
er, LPN Barbara Houldsworth, who was presented as a
General Counsel witness , testified that the bolt was
secure . In sum, I find that Brown failed to exercise
proper care when she left patient X for the purpose of
taking soiled clothes and linen to the laundry room, and
that she had no valid reason for doing so.
Therefore, with regard to the Company's defense, the
crucial question is not whether Brown acted improperly.
Rather, the question is whether the Company, by sum-
marily discharging Brown, acted in accordance with its
usual policy and practice in such situations. In this
regard the testimony is sharply disputed. At the outset of
this hearing, the parties stipulated that in response to the
General Counsel's subpoena request for the personnel
files of all employees who were warned, suspended, or
terminated for leaving a patient unattended in the bath-
tub during the period from April 1, 1979, through Febru-
ary 20, 1984, the Company produced only the file of the
employee who was terminated in April 1979. Administra-
tor Campanella subsequently testified concerning em-
ployees who were discharged for cause during 1983 and
January and February 1984. Two of these situations in-
volved neglect or inattention to patients. In one instance
a nursing assistant left a patient alone in a wet shower
room without proper restraints, although the assistant
had been warned several times before about doing this.
The patient (who was not then taking a bath or shower)
fell on the floor and broke her hip. In the second in-
stance, a nursing assistant who was assigned to the lower
level left the facility unannounced for about an hour for
personal reasons, thereby leaving the patients unattended
in her area. Campanella testified that with the exception
of the April 1979 incident and that involving Brown, she
never saw or was aware of a patient being left unattend-
ed in the bath and, 'that if' she knew of any such circum-
stance, she would have discharged the employee in-
volved. Campanella's testimony was corroborated by
former Nursing Director Cook and community health
nurse Sylvia Krome, who previously worked part time at
the facility and taught the course for nursing assistants.
Cook and Krome each testified that they never saw a pa-
tient unattended in a bath in the facility, and Krome fur-
ther testified that she would have reported any such in-
1427
stance to Campanella . Cook testified that nursing assist-
ants had asked her to stand by when they had to leave a
patient in the bath, and that she had observed housekeep-
ing employees also perform this function . The testimony
of the Company' s witnesses was contradicted by Brown,
nursing assistants Pringle and Roles and , most significant-
ly, by LPN Houldsworth. Brown testified that it was not
unusual for her or other nursing assistants to leave a pa-
tient in the bath for a short period of time in order to
obtain clean clothes or supplies which were not available
before the bath, to remove soiled clothes, to check on
another patient, or to use the hallway intercom to
summon a nurse to examine a bruise or deteriorating skin
on a patient's body Pringle testified that she briefly left
patients in the bath in order to respond to a call light,
stop patients from fighting, send up food trays, or obtain
bath supplies, and that Cook saw her on such occasions
and said nothing . Roles testified that she left patients in
the bath in order to get bath supplies or remove laundry,
and that on one such occasion Cook saw her leaving the
laundry room and asked where she had been, but said
nothing further.
Houldsworth has been employed at the nursing home
since December 15, 1983, as a licensed practical nurse
(LPN). She has served as charge nurse on the day shift
and, in that capacity , is in charge of all nursing assistants
on the shift. The Company admitted that Houldsworth
was and is a supervisor under the Act. Houldsworth tes-
tified that, to her knowledge, there were occasions when
patients were left alone in the bather or tub for short pe-
riods of time, and that no disciplinary action was taken
on these occasions until Brown was discharged . 6 Houlds-
worth expressed the opinion that if Campanella knew
that employees left patients alone in the bath she would
fire them. However, Houldsworth admitted that she
based this opinion solely on what Campanella told her
after Brown was discharged. Therefore Campanella's re-
marks would constitute self-serving hearsay, rather than
a statement of company policy at the time of the termi-
nation. Brown testified without contradiction that shortly
before the present hearing, Houldsworth told her that
Campanella was wrong to terminate her because she was
good worker who did not make trouble, and that she
could not understand why Brown was terminated be-
cause everyone left patients in the bath unattended and
nothing was said. Houldsworth impressed me as a candid
person. It is unlikely that a person in her position would
knowingly testify falsely against the Company. I credit
Houldsworth, and I also credit the testimony of the em-
ployee witnesses. If the Company had an absolute policy
of terminating any employee who left a patient unattend-
ed in a bath for even a short period of time, regardless of
the reason, then , as a nursing supervisor, Houldsworth
would have been aware of that policy. Rather, the credi-
ble evidence indicates that the Company exercised dis-
cretion in this area, and that for whatever reason (wheth-
er inadequate staffing or other reason) the Company tol-
erated brief absences for work-related reasons, or aught
6 Contrary to the Company's argument (Br 18), Houldsworth made
clear in her testimony that the patients were left alone and not merely
"unattended " (See Tr 640, 641 )
1,428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
give a warning in some situations, -but imposed discharge
only in aggravated cases where the -absence resulted in
serious injury or death. -
Additional evidence also demonstrates that Campan-
ella did not act in accordance with usual company policy
and practice when she summarily discharged Brown.
That evidence begins with Campanella's own actions on
the morning of February 21. If it were of the utmost im-
portance that a patient not be left alone in the bath for
even a brief period of time, then,she would have re-
mamed in the shower room until Brown returned. In-
stead, she went out into the hallway to look for Brown,
leaving the patient alone again. Evidence was also ad-
duced concerning an incident in 1983. At that time Cook
summoned (or, according to her testimony, condoned the
summoning of) the nursing staff to a party on the, first
floor of the old building, leaving sections of the nursing
home, including the ambulatory section (section floor,
old building), unstaffed for some 15 to 30 minutes. The
party was interrupted by an ambulatory patient who told
them that she could not open the bathroom door. It was
determined that a patient had collasped and died of a
heart attack behind the door. No disciplinary action was
taken as a result of the incident. Insofar as pertinent to
this case, the testimony of nurse Krome presents an ir-
reconcilable contradiction. Krome testified that the am-
bulatory section was more like a hotel than a hospital,
because the patients could do things for themselves, and
the staff just had to make their beds. If so, then there
was no need to attend to their baths, because hotels do
not give baths to their residents, much less constantly
watch them in their baths. If not, then the incident of the
party involved "neglect or willful inattention to patients"
for which Cook was responsible.
Additional evidence further indicates that Campanella
discharged Brown for a pretextual reason., Although the
Company was understaffed, Campanella summarily dis-
charged Brown, an experienced and competent nursing
assistant , without even considering her overall record
and without even consulting' with or notifying Cook, her
immediate supervisor. The evidence also indicates that
the Company was engaging in close surveillance of
Brown on February 21. Brown testified that she saw
Cook in the lower level about 7:30, although Cook testi-
fied, that she normally made her first rounds between
6:30 and 7 a.m., prior to the first shift. I do not credit
Cook's testimony that she could not remember when she
next was Brown after the morning report. Campanella's
appearance on the lower level was at least a remarkable
coincidence. No sooner did Brown enter the laundry
room then Campanella appeared and promptly headed
for the shower room. The incident occurred about 10
a.m., which indicates that if Campanella followed her de-
scribed route, she must have swiftly exited the kitchen in
her haste to get to the lower level. I do not credit Cam-
panella's testimony that she did not know who was as-
signed to the lower level. The staff was relatively small
and Brown had been 'working there for the past 2 days.
Apart from Campanella's knowledge of Brown's union
activity, the Company had recently been cited for insuffi-
cient staffing on the lower level, and therefore Campan-
ella would have been highly sensitive to the situation
there. I find that Campanella and Cook engaged in sur-
veillance of Brown on the morning of February 21, and
that they were interested in getting something on her.
I find that the Company discharged Brown because of
her union activity and thereby violated Section 8(a)(I)
and (3) of the Act. The Company was hostile to union-
ization and the Union in particular, as demonstrated by
its prior unlawful conduct, Williams' reference to Brown
as the "ringleader," and the Company's opposition to the
Union in the election campaign. By February 17 the
Company learned that Brown was the leading union ad-
herent. Within a few days the Company discharged
Brown for, a demonstrably pretextual reason. I further
find that the Company, through Housekeeping Director
Williams, violated Section 8(a)(1) by (1) creating the im-
pression of surveillance of union activity by implying to
Brown and telling Pringle that she was aware of the
union organizational campaign, and that Brown was the
"ringleader ," and -(2) soliciting Pringle to mform on the
union activities of other employees. See, respectively,
NLRB v. Terry Industries of Virginia, 403 F.2d 633, 635
(4th Cir. 1968), cert. denied 394, U.S. 918 (1969); Dubin-
Haskell Lining Corp. v. NLRB, 375 F.2d 568, 571 (4th
Cir. 1967), cert. denied 393 U.S. 824 (1968).
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, the 'Company has engaged, and is en-
gaging, in unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
4. By discriminating in regard to the tenure of employ-
ment of Theatus Brown, thereby discouraging member-
ship in the Union, the Company has engaged, and is en-
gaging, in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(1) and (3) of the Act, I shall recom-
mend that it be required to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Company discriminatorily ter-
minated Theatus Brown, I will recommend that the
Company be ordered to offer her immediate and full re-
instatement to her former job or, if it no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or other rights and privileges, and make her
whole for any loss of earnings and benefits that she may
have suffered from the time of her discharge to the date
of the Company's offer of reinstatement. I shall further
recommend that the Company be ordered to remove
from its records any reference to the unlawful discharge
GARRISON VALLEY CENTER
of Theatus Brown, to give written notice of such remov-
al to Brown, and to inform her that its unlawful conduct
will not be used as a basis for future personnel actions
against her. See Sterling Sugars, 261 NLRB 472 (1982).
Backpay shall be computed in accordance with the for-
mula approved in F. W Woolworth' Co., 90 NLRB 289
(1950), with interest computed in the manner and amount
prescribed in Florida Steel Corp., 231 NLRB 651 (1977).7
It will also be recommended that the Company be re-
quired to preserve and make available to the Board or its
agents, on request, payroll and other records to facilitate
the computation of backpay due.
I find in light of the prior unfair labor practice case,
which involved the same management as the present
case, that the Company has demonstrated a proclivity to
violate the Act and a hostility toward the purposes of
the Act in general. Therefore I am recommending that
the Company be ordered to cease and desist from in-
fringing in any manner upon the rights guaranteed in
Section 7 of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
The Respondent, Garrison Valley Center, Inc., Garri-
son, Maryland, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discouraging membership in District 1199E, Na-
tional Union of Hospital & Health Care Employees,
RWDSU, AFL-CIO or any other labor organization by
discriminatorily terminating employees, or in any other
manner discriminating against them with regard to their
hire or tenure or employment or any term of condition
of employment.
(b) Creating the impression of surveillance of employ-
ee union activity by telling employees about information
it received concerning such activity.
(c) Soliciting employees to inform Respondent about
the union activities of other employees.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Theatus Brown immediate and full reinstate-
ment to her former job or, if such job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or other rights and privileges previously en-
joyed, and make her whole for losses she suffered by
reason of the discrimination against her as set forth in the
remedy section of this decision.
(b) Remove from its files any reference to the dis-
charge of Theatus Brown and notify her in writing that
this has been done and that evidence of this unlawful dis-
7 See generally Isis Plumbing Co., 138 NLRB 716, 717-721 (1962)
B 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 .4$ of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur,
poses
1429
charge will- not be used as a basis for future personnel
actions against her.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of back pay due under the
terms of this Order.
(d) Post at its Garrison, Maryland place of business
copies of the attached notice marked "Appendix."9
Copies of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days inconspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond.
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
B 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 Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discourage membership in District
1199E, National Union of Hospital & Health Care Em-
ployees, RWDSU, AFL-CIO or any other union labor
organization, by discriminatorily terminating employees,
or in any other manner discriminating against you with
regard to your hire or tenure of employment of any term
or condition of employment.
WE WILL NOT create the impression of surveillance of
employee union activity by telling you about information
we received concerning such activity.
WE WILL NOT solicit you to inform us about the union
activities of other employees.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce you in the exercise of your right to
engage in union or concerted activities, or to refrain
therefrom.
WE WILL offer Theatus Brown immediate and full re-
instatement to her former job or, if such job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or other rights and privileges pre-
viously enjoyed, and make her whole for losses she suf-
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered by reason of the discrimination against her , with in- ful discharge will not be used as a basis for future per-
terest . sonnel actions against her.
WE WILL remove from our files any reference to the
discharge of Theatus Brown, and notify her in writing GARRISON VALLEY CENTER
that this has been done and that evidence of this unlaw-