Health Care & Retirement Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1993

310 N.L.R.B. 1002 (N.L.R.B. 1993)

1002
310 NLRB No. 162
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 We agree with the judge’s Conclusion of Law that the Respond-
ent suspended and discharged Kelly Croshier in violation of Sec.
8(a)(3) and (1) of the Act because she engaged in union and pro-
tected concerted activities. The General Counsel excepts to the
judge’s inadvertent failure to find in the text of his recommended
decision that Croshier’s discharge violated Sec. 8(a)(3). We correct
this omission.
In adopting the judge’s findings regarding Croshier’s suspension
and discharge, we find it unnecessary to rely on the Respondent’s
lawful antiunion campaign and its grant of a wage increase to sup-
port the judge’s conclusion that the Respondent harbored union ani-
mus. The wage increase granted by the Respondent was not alleged
to be an unfair labor practice and there is insufficient evidence to
support an inference that it was evidence of antiunion sentiment. The
record contains ample other evidence of animus, including the Re-
spondent’s independent violations of Sec. 8(a)(1) and the Respond-
ent’s pretextual justification for Croshier’s discipline. Member
Raudabaugh agrees with his colleagues with respect to their nonreli-
ance on the wage increase to show union animus.
In agreeing with the judge that the Respondent’s asserted reason
for Croshier’s suspension and discharge, i.e., that Croshier filed a re-
port falsely accusing another employee of patient abuse, was
pretextual, Members Devaney and Oviatt find it unnecessary to rely
on the judge’s belief that the rule under which the Respondent as-
sertedly disciplined Croshier was not applicable to reports of patient
abuse. Rather, Members Devaney and Oviatt rely on the judge’s
other findings, including the findings that the Respondent failed to
conduct a thorough investigation of the abuse incident and that phys-
ical evidence of the abuse existed and was known to the Respondent.
We also agree with the judge that the Respondent violated Sec.
8(a)(1) by discharging Nursing Assistants Susan Huls, Alice Dow-
ney, Zerma Van Bramer, and Pamela Parsons for their protected
concerted walkout in protest of the unlawful suspension of Croshier.
We find merit in the General Counsel’s exceptions to the judge’s
failure to find that the Respondent independently violated Sec.
8(a)(1) when it told the group of nursing assistants, in the presence
of other employees, including Doug Robertson, that if they left the
nursing home they were voluntarily terminating their jobs. J.E.L.
Painting & Decorating, 303 NLRB 1029 (1991).
We conform the judge’s legal conclusions, recommended remedy
and notice to his 8(a)(1) finding that the Respondent promulgated an
unlawful no-solicitation rule.
Health Care and Retirement Corp., Valley View
Nursing Home and Local 285, Service Employ-
ees International Union, AFL–CIO. Cases 1–
CA–28519, 1–CA–28541, and 1–CA–28743
March 31, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On May 22, 1992, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Gen-
eral Counsel and the Respondent filed exceptions and
supporting briefs. The Respondent filed an answering
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Health
Care and Retirement Corp., Valley View Nursing
Home, Lenox, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraphs 1(d) and (e)
and reletter the subsequent paragraphs.
‘‘(d) Telling employees that they were voluntarily
terminating their jobs by engaging in conduct that was
protected concerted activity.
‘‘(e) Enforcing rules prohibiting solicitation in its fa-
cility other than in immediate patient care areas.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate our employees about their
union activities.
WE WILL NOT threaten our employees with black-
listing because they engage in protected concerted ac-
tivities.
WE WILL NOT threaten employees with discharge for
engaging in conduct that is protected concerted activ-
ity.
1003HEALTH CARE & RETIREMENT CORP.
1 All dates are in 1991 unless otherwise noted.
2 Health Care and Retirement Corp. is the corporate parent of Val-
ley View Nursing Home. To differentiate between the two in this
decision, Health Care and Retirement Corp. will be referred to as
HCR.
WE WILL NOT suspend and discharge our employees
because they engage in protected concerted and union
activities.
WE WILL NOT enforce rules prohibiting union solici-
tation in areas of our facility other than in immediate
patient care areas.
WE WILL offer immediate reinstatement to employ-
ees Kelly Croshier, Susan Huls, Alice Downey, Zerma
Van Bramer, and Pamela Parsons to their former posi-
tions of employment, discharging, if necessary, any
employees hired to replace them, without prejudice to
their seniority or other rights and privileges previously
enjoyed, and WE WILL remove from our records any
references to our unlawful suspension and discharge of
Kelly Croshier and our unlawful discharges of Susan
Huls, Alice Downey, Zerma Van Bramer, and Pamela
Parsons and notify them in writing that this has been
done and that the discharges will not be used against
them in any way.
WE WILL make Kelly Croshier, Susan Huls, Alice
Downey, Zerma Van Bramer, and Pamela Parsons
whole for any loss of pay or other benefits they may
have suffered as a result of our unlawful discrimination
against them, with interest.
HEALTH CARE AND RETIREMENT CORP.,
VALLEY VIEW NURSING HOME
Avrom J. Herbster and Cheryl Ann Watson, Esqs., for the
General Counsel.
Margaret J. Lockhart, Esq., of Toledo, Ohio, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Be-
tween August 2 and November 22, 1991,1 Local 285, Service
Employees International Union, AFL–CIO (the Union) filed
unfair labor practice charges and amended charges against
Health Care and Retirement Corp., Valley View Nursing
Home (Valley View or Respondent).2 Based on these
charges, the Regional Director for Region 1 issued a series
of complaints in the captioned cases, culminating on Novem-
ber 29 in the issuance of a second order consolidating cases,
amendment to consolidated complaint, and order scheduling
place of hearing (complaint). The complaint alleges, inter
alia, that Respondent has engaged in conduct in violation of
Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act). Respondent has filed timely answer to the com-
plaint wherein it has admitted, among other things, the labor
organization status of the Union and the jurisdictional allega-
tions.
Hearing was held in these matters in Pittsfield, Massachu-
setts, on December 16–19, 1991, and January 27 and 28,
1992. Briefs were received from the parties on April 27,
1992. Based on the entire record, including my observation
of the demeanor of the witnesses, and after consideration of
the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of
business in Lenox, Massachusetts, is engaged in the oper-
ation of a nursing home. Respondent has admitted the juris-
dictional allegations of the complaint and I find that it is now
and has been at all times material, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview of the Dispute and the Issues for
Determination
HCR operates a number of nursing homes in the United
States, including the involved home in Lenox, Massachusetts.
Valley View’s employees are not unionized though employ-
ees at some of HCR’s other nursing homes are represented
by a union. In or about January, Certified Nursing Assistant
Kelly Croshier and some other nursing assistants began seek-
ing to organize the nursing assistants at Valley View.
Croshier and the other assistants were unhappy because cer-
tain pay raises promised by management had not been given
and problems with some of their working conditions, includ-
ing the amount and availability of medical supplies, had not
been addressed to their satisfaction. In an attempt to secure
their promised wages, Croshier and the other assistants took
a two-pronged approach. In late spring, they filed a series of
petitions requesting the raises with each level of Respond-
ent’s local management, and ultimately had one of the peti-
tions addressed by a regional official from HCR. At the same
time, they approached the Union and sought its help in orga-
nizing Valley View’s nursing assistants. The Union agreed to
help organize not only the nursing assistants, but practically
all hourly employees, including the kitchen and laundry em-
ployees. In this organizing effort, several meetings were held
and the matter was evidently widely discussed among the
employees at Valley View, though no authorization cards
were distributed. Respondent responded to the organizing
campaign with one of its own seeking to discourage the em-
ployees from supporting the union effort.
In June, when the pay petitions were being circulated and
the organization drive was becoming a matter of common
knowledge, HCR brought into Valley View a new adminis-
trator, Joyce Brewer, and a new director of nursing,
Maryanne Dus. These two women immediately began to in-
quire among the employees about their real and perceived
problems with the nursing home. As a result of these inquir-
ies, the nursing home took a number of steps, including im-
plementing an across-the-board 25-cent-an-hour pay increase,
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 At the outset of the hearing, the General Counsel, with my ap-
proval, amended the complaint to allege that Respondent’s rule on
solicitation was overly broad and unlawful under Sec. 8(a)(1) of the
Act.
to address the employees’ concerns. The effect of these steps
was to dramatically reduce employee interest in the Union.
By the end of July, the organizing campaign was stalled and
the Union and its strongest supporters at the nursing home,
including Croshier, decided to put the campaign on hold be-
cause of waning interest. This fact was not known by Re-
spondent at the time, however.
In the last week of July, Croshier, by now a well-known
union supporter, allegedly observed another nursing assistant,
Kris Robinson, physically abuse a patient. As will be dis-
cussed in detail, this is about as serious an occurrence as can
arise in a nursing home. Though required by Respondent’s
rules to report any such incident immediately, Croshier wait-
ed a day to report the incident, which resulted in the imme-
diate suspension of the alleged abuser. Respondent’s manage-
ment, primarily Dus, conducted an investigation into the mat-
ter and allegedly came to the conclusion that no abuse had
in fact taken place. Rather, she determined that Croshier and
another employee, Unit Supervisor Susan Patnode, were en-
gaged in a plot to have the alleged abuser discharged. As a
consequence of this alleged belief, Respondent recalled Rob-
inson to work and suspended Croshier, with the intent of fir-
ing Croshier if further investigation did not clear her.
On the day of Croshier’s suspension, most of the other
nursing assistants who were working at the time learned of
Robinson’s return and Croshier’s suspension. They became
outraged and after a confrontation with Respondent’s man-
agement, which refused to explain why Robinson had re-
turned and Croshier had been suspended, a number of them
walked off the job in protest. As they left, they were told
by management that they were voluntarily terminating their
employment, and in fact, were terminated as of the time they
left the facility. Later in the day, two more nursing assistants
joined the job action and were likewise terminated.
Shortly thereafter, two unit supervisors, Patnode and
Michele Tower, were allegedly terminated for inciting and
supporting the action of the nursing assistants. The General
Counsel contends that Croshier was suspended and termi-
nated for engaging in union and other protected concerted ac-
tivities and not the reasons advanced by Respondent. He also
contends that the job action undertaken by the nursing assist-
ants in walking off the job was protected activity and their
subsequent discharge for engaging in this activity was unlaw-
ful. He makes similar contentions with respect to the alleged
discharges of Patnode and Tower. Respondent’s position is
that Croshier was suspended and discharged for falsifying
documents, to wit, giving a false affidavit about observing
Robinson commit patient abuse. It further takes the position
that the walkout by the nursing assistants was not protected
by the Act and that such action calls for automatic discharge
under established disciplinary rules. With respect to Patnode
and Tower, it takes the position that they are statutory super-
visors and not subject to the protection afforded by the Act,
and further, that the two women were not discharged, but
voluntarily resigned for reasons unrelated to union or other
protected concerted activity. Within this broad factual back-
ground, the consolidated complaint raises the following
issues for determination:
1. Did Respondent, on or about June 9, interrogate em-
ployees about their union and protected concerted activity
and create the impression that such activity was under sur-
veillance by Respondent?
2. Did Respondent, on or about July 29, threaten employ-
ees with discharge and then discharge them for having en-
gaged in protected concerted activity, which included a work
stoppage and strike?
3. Did Respondent on or about July 29, indefinitely sus-
pend its employee Kelly Croshier, and thereafter on July 31,
discharge her for engaging in union and/or protected con-
certed activity?
4. Did Respondent, on or about July 30, threaten employ-
ees with blacklisting and loss of employment for having en-
gaged in union and other protected concerted activity?
5. Did Respondent, on or about July 31, threaten employ-
ees with unspecified reprisals for having engaged in union
and other protected concerted activity?
6. Did Respondent, on or about July 31, tell an employee
that she could have her job back if she did not engage in
protected concerted activities?
7. Did Respondent on or about July 31, discharge its em-
ployees Susan Patnode and Michele Tower for engaging in
concerted protected activities and making common cause
with other employees engaged in concerted protected activi-
ties?
8. Are Susan Patnode and Michele Tower supervisors
within the meaning of the Act?
9. Did Respondent, on various dates in April through July,
interrogate employees about their union and protected con-
certed activities?
10. Has Respondent, since on or about February 2, pro-
mulgated, maintained, and enforced an overly broad no-solic-
itation rule?3
With two exceptions, these issues will be discussed and
decided in the order in which they chronologically arise in
the factual context of involved events. The matter of the Re-
spondent’s no-solicitation rule and the supervisory status of
Patnode and Tower are not affected by these events and will
be discussed first.
B. Is Respondent’s Rule on Solicitation Unlawful?
The Respondent’s employee handbook contains the fol-
lowing rule with respect to the matter of solicitation:
No Solicitation
Solicitation by an employee of other employees is
prohibited while either person is on working time.
Working time is all time when an employee’s duties re-
quire that he or she be engaged in work tasks, but does
not include meal periods, scheduled breaks, or time be-
fore or after a shift. In addition, solicitation is prohib-
ited at all times in immediate patient care areas.
In addition, the following is contained in ‘‘HCR Rules for
Your Protection,’’ a manual of disciplinary rules applicable
to all employees:
TYPE B (SERIOUS)
1005HEALTH CARE & RETIREMENT CORP.
4 As will be discussed in detail in another context, Brewer gave
a 25-cent-per-hour pay increase to virtually all hourly employees.
Unit supervisors were excluded.
5 This proceeding is styled Mapleview Nursing Home, Inc., Em-
ployer and Local 285, Service Employees International Union, AFL–
CIO, CLC, Cases 1–RC–19539 and 1–RC–19541.
11. Soliciting or distributing written materials during
working time or in any work area or resident care area
is not permitted.
In the case of Heartland of Lansing Nursing Home, 307
NLRB 152 (1992), the Board expressly approved a finding
by the administrative law judge that the identical rule was
overly broad and in violation of Section 8(a)(1) of the Act.
The judge’s finding states:
The Board has established a specific policy covering
health care facilities. Springfield Hospital, 281 NLRB
643, 665 (1986). This policy requires that such an em-
ployer’s ‘‘ban on employee solicitation be limited to
immediate patient care areas.’’ Eastern Maine Medical
Center, 253 NLRB 224, 226 (1980). The Respondent’s
rule is not so limited and is presumptively invalid.
There has been no showing that union solicitation in
working areas of the Respondent’s facility which are
not immediate patient care areas would either disrupt
care or disturb residents. Accordingly, I find that the
Respondent’s no solicitation rule is overly broad and
violates Section 8(a)(1). [307 NLRB at 159–160.]
I concur and make the same finding.
C. Are Respondent’s Unit Supervisors Statutory
Supervisors?
Section 2(11) of the Act defines a supervisor as one who
has
authority, in the interest of the employer, to hire, trans-
fer, suspend, layoff, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such actions, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but would require the
use of independent judgment.
To be found to be a statutory supervisor, one only must be
shown to independently exercise or have the power to inde-
pendently exercise one of the enumerated authorities.
A great deal of evidence was adduced in this proceeding
on the matter of the supervisory status of Respondent’s so-
called unit supervisors, the position held by Licensed Prac-
tical Nurses Susan Patnode and Michele Tower. The position
in question here is the next to last step in Respondent’s man-
agement hierarchy as it relates to the nursing function. At the
top of management is the facility Administrator, who is re-
sponsible for the entire facility. Valley View has a capacity
of about 140 beds and on average has about 135 to 138 resi-
dent patients living there daily. They are housed in three
wings, denoted A, B, and C. The facility employs about 116
persons. The unit supervisors and nursing assistants are under
the supervision of the director of nurses. Subordinate to this
position are some positions which are admittedly supervisory
in nature, such the administrative nurse manager, the patient
care coordinator/restorative manager, and staff development
coordinator, but are not involved in day-to-day supervision of
either the nurses or the nursing assistants. Respondent also
has what it calls patient assessment nurses and treatment
nurses, positions not related to this discussion. The unit su-
pervisors, who are primarily licensed practical nurses, are re-
sponsible for the immediate direction of the nursing assist-
ants. There are three nursing shifts. On the day shift, there
are 5 unit supervisors and 12 nursing assistants. On the 3 to
11 p.m. shift, there are 4 unit supervisors and 10 nursing as-
sistants. On the 11 p.m. to 7 a.m. shift, there are two unit
supervisors and five to six nursing assistants. They are paid
hourly in a range of $11 to $12 an hour. The nursing assist-
ants are also paid hourly, at a rate ranging from $6.75 to al-
most $8 an hour.4 The only salaried persons in the nursing
chain of command are the director of nursing and the facility
administrator.
The unit supervisor position has in the past been called a
charge nurse position. For whatever reason, HCR has been
attempting to change this position from one of ordinary em-
ployee to a statutory supervisory position. To this end, it has
in the recent past changed the title of the position to that of
unit supervisor, issued a detailed written job description
which insofar as it speaks to the supervisory function, vir-
tually tracks the language of Section 2(11) of the Act, and
has conducted seminars with persons holding the position on
supervisory functions. The General Counsel contends that
unit supervisors are not statutory supervisors, relying in part
on a determination to that effect made by Region 1 in a rep-
resentation proceeding involving another Massachusetts nurs-
ing home operated by HCR.5 Additionally, on January 21,
1992, the Board issued its decision in Health Care & Corp.,
306 NLRB 63, wherein it came to a similar conclusion in
a proceeding involving another nursing home operated by
HCR. Although I fully agree with both of these cases on the
issue of the supervisory status of the individuals therein in-
volved, I believe the facts adduced on this record require a
finding that Respondent’s unit supervisors are supervisors
within the meaning of Section 2(11) of the Act. I believe that
HCR has, at least with Valley View, finally allowed the unit
supervisors to independently exercise enough supervisory au-
thority as set out in their job descriptions to qualify them as
statutory supervisors.
The primary function of the unit supervisors is to provide
patient care. Respondent has a written job description for this
position which runs several pages in length. The majority of
the description details the responsibilities of the unit super-
visors in the provision of patient care. The job description
does confer certain specific powers relating to supervision of
the nursing assistants. According to their job description, unit
supervisors have the following authority and responsibilities:
(a) Have authority to assign nursing assistants to pa-
tients;
(b) Recommend and/or prepares revised work sched-
ules;
(c) Have authority to call in off-duty employees or
transfer employees to cover understaffing;
(d) Have authority to recommend transfers;
(e) Have authority to direct or re-direct employees;
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Have authority to evaluate employee perform-
ance;
(g) Recommend and communicates pay adjustments;
(h) Recommend or communicate promotions;
(i) Have authority to adjust grievances or make ef-
fective recommendations for adjustment of grievances;
(j) Have authority to discipline or recommend dis-
cipline of an employee;
(k) Have authority to issue, sign and communicate
disciplinary actions to employees.
(l) Have authority to suspend, suspend subject to dis-
charge, layoff or recall employees or effectively rec-
ommend these actions;
(m) Participate in recruiting or referring, inter-
viewing, screening and/or hiring employees;
(n) Responsible for orientation and/or training new
employees;
(o) Responsible for informing employees of new
policies and procedures;
(p) Have authority to release employees from imme-
diate work assignments; and,
(q) Have authority to approve time cards or over-
time.
It is clear from the evidence that unit supervisors at Valley
View, their job descriptions notwithstanding, do not have the
authority to hire, fire, or lay off nursing assistants. The pow-
ers or authority represented by items a, b, c, i, p, and q have
already been considered by the Board in Health Care Corp.,
supra, under facts relating to such items which are almost
identical to those adduced herein. The degree to which the
unit supervisors therein exercised the authority given them
did not make them statutory supervisors in the view of the
Board. The degree to which Respondent’s unit supervisors
exercise their above-enumerated powers and responsibilities
seems to depend to a great extent on the individual unit su-
pervisors desire to do so. The vast majority of a unit super-
visor’s working time is spent in the provision of patient care,
often working hand in hand with the nursing assistants in
providing such care. On a daily basis, the unit supervisors as-
signed nursing assistants to particular patients in a wing. The
nursing assistants were assigned to particular shifts and
wings by Dory Bard, the administrative nurse manager.
Some unit supervisors allowed the nursing assistants to make
their own patient assignments, though all retained the author-
ity to change such assignments if they disagreed with them.
Some of the unit supervisors seemed to give some thought
to such assignments, assigning assistants to groups of pa-
tients taking into consideration the patients level of need and
the relative skill levels of the assistants assigned to the wing.
Others apparently just made the assignments without much
thought or, as indicated, let the assistants assign themselves.
If patient needs dictated, the unit supervisors could shift
nursing assistants from one wing to another. Similarly, if a
shift was short of nursing assistants because of illness or
other unscheduled absence of the assistants assigned to the
shift, the units supervisors could and did call in other assist-
ants to work. The only apparent limitation on this authority
was that the unit supervisor was to try to avoid an overtime
situation when selecting the replacement. Otherwise, they
could exercise their discretion in who was called in.
Unit supervisors could and did authorize nursing assistants
to leave work in emergency situations. They could authorize
overtime, though this was reviewed by Bard.
The authority of the unit supervisors to administer dis-
cipline somewhat supports a finding that they are statutory
supervisors, though not strongly. The unit supervisors are
given seminars on employee communication by Respondent,
with emphasis on the disciplinary process. They routinely
counsel nursing assistants on the manner in which they give
patient care, settle disputes between nursing assistants, and
write up assistants for violations of work rules or inappro-
priate behavior, all without the need for any other approval
from higher management. Although there was some question
raised about the access afforded unit supervisors to the nurs-
ing assistant’s personnel files, I believe the best evidence
supports a finding that they did have access to prior discipli-
nary notices in the assistants’ files. There is no question con-
cerning the authority of the unit supervisors to issue verbal
counselings, written counselings, and written warnings to
nursing assistants. There is a serious question regarding
whether these warnings actually were used in meting out
practical discipline such as suspensions and terminations.
There were two or three incidents cited in the record to show
that unit supervisors can actually discipline nursing assistants
to the extent of suspending them, but these cited incidents
do not clearly support that proposition. Director of Nursing
Maryanne Dus remembered that Unit Supervisor Sue Ann
Zank suspended a nursing assistant for one afternoon for in-
subordination, without any contact with higher management.
Zank denied ever suspending anyone, and Dus gave Zank a
written counseling for inappropriate action in reference to
this incident. Unit Supervisor Joyce Ann Gardner testified
that one occasion, she suspended a nursing aide and on an-
other she was in the process of suspending an assistant when
the assistant quit. It appears that in the first instance also, the
assistant quit before the suspension was effective. Gardner,
however, clearly believed she had the power to suspend nurs-
ing assistants if such action was called for under Respond-
ent’s rules. I believe that at Valley View, the unit supervisors
have the authority to recommend discipline, not administer
discipline. Perhaps because the director of nursing, Dus, was
relatively new at her job during the timeframe for which evi-
dence about supervisory authority was adduced, the evidence
does not prove that she followed the disciplinary rec-
ommendations of the unit supervisors. Therefore, I do not
find that the disciplinary authority of the unit supervisors, by
itself, established supervisory status.
However, the authority of unit supervisors to evaluate and
reward nursing assistants strongly lends weight to the propo-
sition that they are statutory supervisors. First, the unit super-
visors do conduct independent evaluations of the nursing as-
sistants. To do so they utilize a rather elaborate form on
which they grade the assistants on an large number of job
elements, giving the assistant a grade of 1 to 5 on each ele-
ment. Adding all the grades and dividing that number by the
number of involved elements yields an overall grade of from
1 to 5. Annual pay raises are given in direct correlation with
this grade, i.e., from 1 to 5 percent. Though there appears
to be an institutional limitation on giving an assistant all
fives or all ones, there is no other limitation placed on the
evaluations by higher management and there is no intrusion
by such management in the evaluation process. Thus, the
1007HEALTH CARE & RETIREMENT CORP.
6 In my view, this power, as well as the degree of authority vested
in the unit supervisors to direct the nursing assistants, call in nursing
assistants, and adjust their grievances, distinguish this case from the
ones cited above as well as from Beverly Enterprises, 304 NLRB
861 (1991), Phelps Community Medical Center, 295 NLRB 486
(1989), and Passavant Health Center, 284 NLRB 887 (1987).
7 See Lincoln Lutheran, 290 NLRB 1077 (1988), Los Alamitos
Medical Center, 287 NLRB 415 (1987), and Pine Manor Nursing
Center, 270 NLRB 145 (1984).
level of an assistant’s annual salary increase, though as a
practical matter only in a range of 2 to 4 percent, is the deci-
sion of the unit supervisor. I believe and find that this func-
tion constitutes a reward or promotion within the meaning of
those terms in Section 2(11) of the Act. The manner in
which the evaluations affect the nursing assistants’ salaries at
Valley View differs markedly from the situations presented
in Mapleview Nursing Home, Inc., and Health Care Corp.,
supra. In Mapleview, there was no evidence that the evalua-
tions, on their own, resulted in any personnel action. There,
the director of nursing exercised complete discretion in
granting or denying wage increases, and alone determined if
an employee should receive a wage increase as well as the
amount of the increase. In Health Care Corp., the pay level
of nursing assistants was based solely on their seniority.
Moreover, the nurses in that case were not allowed to com-
pletely fill out the annual evaluations of nursing assistants,
the matter of the ultimate evaluation being left to the director
of nursing, who also presented the evaluation to the involved
nursing assistant. At Valley View, the entire appraisal is
completed by a unit supervisor, who also presents the ap-
praisal to the nursing assistant and counsels the assistant with
respect to matters that need improvement.6
On a step-by-step evaluation, I believe that the employee
evaluation is the only supervisory criteria which Valley
View’s unit supervisors were shown to have exercised inde-
pendently enough to qualify them as statutory supervisors.
However, I believe an overview of their authority and posi-
tion at Valley View will only support a finding that they are
statutory supervisors. It is clear from the the evidence in this
record that higher management views the unit supervisors as
supervisors, the unit supervisors view themselves as super-
visors, and the nursing assistants view them as supervisors.
They represent management in regular meetings they conduct
with the nursing assistants and play a significant role in the
disciplinary process at Valley View, including documenting
the facts surrounding the violation of Respondent’s rules by
nursing assistants and recommending discipline. They give
counseling, which amounts to remedial direction, to nursing
assistants, for violation of rules or professional conduct.
They do direct the work and immediate work assignments of
the nursing assistants, and on occasion, are the only rep-
resentatives of management on duty at Valley View. In most
respects, they perform their duties, including their super-
visory duties, without any guidance or interference from ei-
ther the director of nursing or the facility administrator. The
unit supervisors were shown to be the only supervisors of the
nursing assistants. In conclusion, I find that the unit super-
visors at Valley View were statutory supervisors at all times
material to the matters involved in the complaint.7
D. Discussion of the Events Leading to the Involved
Discharges and Allegations of Unlawful Interrogations
As noted earlier, the complaint allegations generally are
chronological in nature and fall into two groups, those in-
volving Nursing Assistant Kelly Croshier and certain other
assistants, and those involving Susan Patnode and Michele
Tower, who I find are statutory supervisors. In this section
of my decision, I will primarily discuss the allegations relat-
ing to the nursing assistants. In the same timeframe as the
suspension and discharge of Croshier and the discharge of
the nursing assistants who walked out are certain allegations
of unlawful interrogations and statements made by Respond-
ent’s management. Most of these actions were directed at
Unit Supervisor Michele Tower. As I have found that she is
a statutory supervisor, such actions are not unlawful. How-
ever, they will be noted as they are evidence of Respondent’s
interest in and opposition to the unionization of its employ-
ees.
In the events which gave rise to the complaint allegations
herein, Certified Nursing Assistant (CNA) Kelly Croshier is
generally critically involved. Croshier was employed by Re-
spondent as a nursing assistant from March 5, 1990, until her
discharge on July 31. Her duties included taking care of the
patients, putting them to bed, washing them, feeding them,
and generally caring for them. Croshier worked on the 3 to
11 p.m. shift, 40 hours a week. She worked every other
weekend. She began her employment making $6.50 and hour
and was earning $7.01 an hour when she was terminated.
Her last annual job evaluation indicates that she is an above-
average employee and a caring nursing assistant.
At all times material, until mid-June, Tom Lusa was direc-
tor of nursing at Valley View and Kathy Fuller was the facil-
ity administrator. When Croshier was hired, Administrative
Nurse Manager Doris (Dory) Bard told her that she would
receive a 10-cent-an-hour pay raise after her 90-day proba-
tion period. However, after completing the probationary pe-
riod, she did not receive the promised raise and was told by
Bard that Respondent had discontinued this policy. Croshier
and all of the other nursing assistants working at Valley
View in late 1990 were given a 75-hour training program by
then Training Coordinator Joan Cooper. As a result of this
program and a qualifying test, the nursing assistants were
certified by the State of Massachusetts in February 1991.
During the certification training program, Croshier and the
other nursing assistant trainees were told they would receive
a raise upon certification. This promise was made by Cooper,
Fuller, and Lusa. This raise was not forthcoming after certifi-
cation so in monthly meetings with management, Croshier
and a number of other nursing assistants asked Fuller and
Lusa when they were going to get the raise. The employees
were put off and told that management was looking into the
matter.
Because they were not getting either the promised
postprobationary raise or the certification raise, Croshier and
some other nursing assistants prepared a petition dated May
10, requesting the certification raise. This petition, signed by
36 nursing assistants, was presented to Dory Bard and reads
as follows:
In a meeting at Valley View Nursing Home on May
9, 1991, between 7:00 p.m. and 8:00 p.m., the nursing
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Nursing Assistant Sue Huls testified that following this meeting,
she was approached by Unit Supervisor Sue Ann Zank who rhetori-
cally asked, ‘‘So the Five Chairs is where Kelly’s holding her meet-
ings?’’ Zank denied this statement; however, I credit Huls’ testi-
mony. Huls was an entirely credible witness, whereas Zank was any-
thing but credible. This statement, indicating surveillance by Re-
spondent was alleged to be a violation of Sec. 8(a)(1) of the Act,
but was deleted at some stage from the scope of the complaint. I
believe it does show that Respondent was interested in the orga-
nizing campaign and had correctly identified Croshier as the prime
mover in it.
9 Respondent was obviously aware of the nursing assistants’ dis-
pleasure over the wage situation because of the pay petitions which
had been presented to management. It was clearly aware of the
union organizing campaign as well. Patricia Gillette, HCR’s human
resources manager, was present at Valley View prior to the replace-
ment of Lusa and Fuller and remained until at least after the dis-
charge of the nursing assistants in late July and early August. There
is no purpose for her stay at Valley View set forth in the record ex-
cept to respond to the organizing campaign. Brewer at two points
in the record vaguely described Gillette’s duties as seeing how
assistants voiced their concerns about pay raises that
were promised us.
Most of us hired between January 1990 and October
1990 were promised a pay increase after our ninety day
probationary period. As each of us reached the end of
our probationary period we inquired about the pay in-
crease and were told that [it] is no longer being given.
We were also told by two supervisors that we could all
receive an increase after we became certified nursing
assistants. The certification was completed recently and
now we are being told that no such promise was ever
made. We feel we deserve these increases as they were
promised to us.
Your immediate attention in this matter will be ap-
preciated.
Croshier’s name is the first one listed on this petition. She
testified that she put her name first because she was willing
to accept any trouble that might result from the petition. On
May 17, Croshier handed the petition to Bard, who read it,
and returned it, telling Croshier to give it to Lusa. Following
this instruction, Croshier slipped the petition under Lusa’s of-
fice door that evening. The nursing assistants did not hear
from Lusa about the petition, but were told a couple of days
later that he had read the petition. Thus, five of the assist-
ants, including Croshier, took the petition to Administrator
Fuller on May 23. The petition was accompanied by a
memorandum that set forth the fact that the petition had first
been presented to Bard and Lusa. Fuller had no immediate
response to the petition. At a meeting between Fuller and all
the nursing assistants about 2 days later, she said she had no
answer for them and asked for more time.
Because they were receiving no clear answer, Croshier and
Nursing Assistant Pam Parsons called an 800 number listed
in the Respondent’s employee handbook for employee com-
plaints and received the names of two corporate executives
to whom complaints could be directed. These employees
were Erl Benson and Jim Millspaugh. Croshier and Parsons
then prepared identical letters to these men, which are dated
June 13 and which read as follows:
We would like to bring to your attention our con-
cerns regarding wage increases that were promised to
the nursing assistants at Valley View Nursing Home in
Lenox Massachusetts. Enclosed you will find copies of
memo’s presented to Doris Bard, day supervisor, Tom
Lusa, Nursing Director and Kathy Fuller, Administrator
for which we have received no response whatsoever.
Also, it come to our attention that there is one nurs-
ing assistant at Valley View that was hired at .25 cents
per hour more than anyone hired before or after her.
We would appreciate an explanation of why this has
happened.
We feel that we have been mislead and are entitled
to the pay increases that were promised. Your prompt
attention in this matter would be greatly appreciated.
Please contact Palmela Parsons or Kelly Croshier [tele-
phone numbers omitted].
In a parallel development, Croshier testified that talk about
joining a union began among the nursing assistants in Janu-
ary, when she and Pam Parsons first discussed the subject.
The nursing home had been the subject of an unsuccessful
organizing campaign by the United Food and Commercial
Workers Union (commonly referred to in this record as the
‘‘meat packers union’’) about a year previously. Croshier
asked Unit Supervisor Michele Tower for the name of some-
one to contact and was referred to Sheri Gimlewicz, the
union steward for the Local 285 of the SEIU at a nearby
unionized nursing home. Gimlewicz told her that the Union
did not want to step on toes and that the employees would
have to sign a letter stating they wanted representation by the
involved Union rather than the meat packers union.
Following this instruction, Croshier and another employee
prepared a letter stating their preference for the Union. This
letter was circulated among the nursing assistants and about
34 ultimately signed it. The last few signed at a meeting held
on June 8, at a restaurant, the ‘‘Five Chairs,’’ located about
a block from the nursing home. About 10 employees at-
tended this meeting. At this meeting the matter of the Union
was discussed and every one in attendance was for it.8
On June 15, Croshier had a picnic at her house to which
all Valley View employees, including management, were in-
vited. No management officials came and only a few em-
ployees showed up. Those who did were asked to sign a
sheet giving their names and addresses for use by the Union.
The approximately 13 persons in attendance signed the sheet.
Prior to this picnic, Croshier, Pam Parsons, Sheri
Gimlewicz, and an organizer from the Union, Carol Baker,
met at the ‘‘Luau Hale’’ restaurant. At this meeting, Baker
told the employees about the Union. The Union did not dis-
tribute authorization cards and no such cards were ever
signed by employees.
Around June 15, Respondent replaced Tom Lusa with
Maryanne Dus and Kathy Fuller with Joyce Brewer. At
about the same time, Croshier received a phone call from
HCR Regional Manager Erl Benson who told her that he had
made these replacements and would appreciate having a little
more time. She thanked him for responding and the con-
versation ended.
I find the matter of these replacements interesting to say
the least. No real reason was offered by Respondent for the
personnel changes and their timing strongly suggests they
were prompted by Respondent’s desire to defeat the union
organization campaign.9 The actions of Brewer on arrival
1009HEALTH CARE & RETIREMENT CORP.
things are going and seeing if the needs of the employees are being
met. However, the only concrete examples of her activities while at
Valley View are the preparation of two letters dealing with the union
organizing campaign and being consulted about the suspension and
discharge of Croshier.
Unit Supervisor Michele Tower testified that after the assistants
had presented their pay raise petition, she was called in to talk with
Fuller, who asked her if the petition had anything to do with union
organizing. Tower said she did not think so. Fuller then asked if she
had noticed interest in a union among the employees. Shortly there-
after, Tower had another conversation with Fuller in which Fuller
stated that she could lose her job if a union got into the nursing
home. She again asked what Tower knew about union activity, spe-
cifically asking if authorization cards were being circulated. She
asked if Tower had been asked to sign a card, and further asked
Tower to report the name of anyone signing a card. Fuller did not
testify in this proceeding. These interrogations by Fuller are alleged
in the complaint as as violations of the Act. Were it not for my find-
ing that Tower was a statutory supervisor, I would find them to be
violations of Sec. 8(a)(1) of the Act.
Nursing Assistant Sue Huls, a union activist, was told by Fuller
that ‘‘they are passing out cards from the union and if you sign one,
you lose your right to speak with us by yourself.’’
10 Although Brewer readily admitted holding meetings with all
hourly employees at this time to learn their concerns, she denied
meeting with employees and telling them why Respondent did not
believe it needed the Union, though her letter clearly states that. As-
suming Brewer’s denial is the truth, and I cannot find any testimony
of employees which would indicate that she directly discussed the
matter of the Union with them in meetings in this timeframe, then
the letter that her superiors prepared for her signature is false. Her
willingness to please her superiors by signing her name to a false
statement regarding the union damages her credibility in my mind.
11 Unit Supervisor Tower testified that she was made to watch this
film in the Company of Joan Cooper. Tower expressed her concern
that the film was inaccurate and one sided. The next day, Tower was
called into Dory Bard’s office, where Bard told her that Cooper was
upset with Tower’s comments and felt she was very prounion. Bard
asked if she in fact were prounion. Tower gave an ambiguous reply.
Later that day, Tower was approached by Cooper who said she
thought that Tower was prounion, explaining that during the last or-
ganizing campaign at Valley View, friends were pitted against
Continued
also strongly supports such a view. Brewer came to Valley
View from a position as assistant administrator at HCR’s
Crescent Hill Nursing Home in Springfield, Massachusetts.
On her arrival at Valley View, she met with small groups
of employees to introduce herself and to get a feel for the
condition of the nursing home. She asked each employee that
if they could ask for one thing, what would it be? From
these conversations, she made a master list of 10 major prob-
lem areas and determined what she could do to solve them.
The concerns were primarily with supplies, staffing, and
wages, with some lesser concerns. She was made aware of
the nursing assistants’ wage petition by her immediate cor-
porate supervisor, Erl Benson. Following this, she conducted
an area nursing home wage survey and found that Valley
View’s wages were below some of the others. She and Ben-
son decided to give an across-the-board 25-cent-per-hour
wage increase to remedy the situation. Dus similarly met
with groups of unit supervisors and nursing assistants to de-
termine their wants and needs. As a result of the their meet-
ings with employees, Brewer and Dus also made changes in
the manner in which supplies were ordered and made avail-
able to the nursing assistants. Staffing problems were deter-
mined to be primarily caused by abuse of the call-in proce-
dure and Brewer began strictly enforcing the rules on attend-
ance and filled open positions.
The steps management was taking to answer employee
complaints were explained to employees in a series of meet-
ing. At the meeting attended by Croshier, Brewer would not
allow questions or comments from the employees. It was
pointed out that the raises were not certification raises. This
upset Croshier who still felt that management was not keep-
ing its promises with respect to the certification and post pro-
bationary period raises.
About June 20, Croshier received another call from Ben-
son. He asked how everyone felt about the raise, and she told
him, ‘‘Well, we’re not giving it back.’’ She characterized her
comment as being a ‘‘smart ass.’’ According to Croshier, she
felt that Benson wanted a thank you, and she did not think
he deserved one.
On about July 2, a letter from Joyce Brewer was distrib-
uted to the employees of Valley View. According to Brewer,
this letter was prepared by Patricia Gillette and she was told
to sign and distribute it. The letter begins by saying, ‘‘During
the last few weeks, your Department Heads and I have been
talking with you about why we do not believe that we need
the Service Employees International Union in our facility.’’10
It further states that the Union is distributing authorization
cards, that the Union can achieve recognition through the
signing of such cards, and urges the employees to learn the
‘‘FACTS’’ before signing. It concludes by saying that man-
agement will be sharing information with them in the next
few weeks and urges any employee with a question about the
Union to ask his or her department head or Brewer.
Respondent’s admitted statutory supervisor and patient
care coordinator, Alison Apple, testified that she was aware
in the spring of 1991 that there was some union activity
going on among the nursing assistants. She attended meet-
ings of management conducted by Brewer and Dus wherein
the union was discussed and supervisors were told what they
could say to employees. At one such meeting, Brewer hand-
ed out the above letter and told the assembled management
that it was up to them if they wanted to distribute the letter.
Brewer impressed upon them that the nursing home did not
want to have a union. Nursing Assistant Alice Downey
credibly testified that Apple asked her if she had heard any-
thing about the Union and whether she was involved with the
Union. I mistakenly overruled a motion by the General
Counsel to amend the complaint to allege this statement as
an unlawful interrogation in violation of Section 8(a)(1).
However, as noted Apple testified and denied making the
statement. I credit Downey’s testimony over that of Apple’s
as I believe that Apple did not testify credibly over a matter
involving the suspension of Croshier. As the matter was fully
litigated on the record and as the matter of interrogations is
broadly alleged in the complaint, I do find this interrogation
unlawful.
Also in late June or early July, Croshier and other employ-
ees were required to view an antiunion movie. After the
movie, Croshier was approached by Joan Cooper who stated
that her husband was in a union and had nothing but prob-
lems with the Union. Croshier indicated she was not inter-
ested and walked away.11 Management also distributed to the
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
friends, resulting in broken relationships. She commented that she
would hate to see Tower become involved in anything like that.
Cooper did not testify in this proceeding. Tower also testified that
at about this time, Bard asked if she knew who was involved in the
union campaign.
Bard testified that Tower would come to her office every day she
worked and let her know about what was was going on in the build-
ing, including the union activity. She testified that it was possible
that she may have asked Tower about the Union after the showing
of the film. She denied asking Tower the identities of others who
supported the Union. On the other hand, Bard stated that she learned
from a housekeeping employee that several nursing assistants were
involved, including Croshier, Zerna Van Bramer, and Sue Carpenter.
I credit Tower’s version of her conversations with Bard over Bard’s
denials and equivocations. Bard was shown to have engaged in a
number of conversations with employees in which the Union was
discussed in one respect or another. I consider it highly improbable
that all these people made up these conversations. Again, these con-
versations were alleged to have violated the Act. I find that they did
not violate the Act only because of the Tower’s status as a super-
visor.
12 Perhaps not surprisingly, Brewer and Dus were reluctant to
admit their knowledge about the campaign. Dus was really less than
candid in my opinion on this subject. She testified that she was un-
aware of union activity when she first arrived, that there was no dis-
cussion of a union at that time, and that a unit supervisor told her
that there was no current union activity at the facility. She even de-
nied knowing about the nursing assistants’ pay raise petition until it
was shown to her by a Board agent. Given the fact that Brewer testi-
fied that antiunion films were being shown at this time, that Dus’
subordinate Dory Bard was inquiring about union activity at this
time, and that Alison Apple testified that Dus and Brewer led a man-
agement meeting on how to conduct a union campaign at some point
before July 2, I seriously question Dus’s credibility and her dis-
claimer of any antiunion motivation.
Similarly, I find Brewer’s testimony about her knowledge of union
activity to be disingenuous. She admitted knowledge that manage-
ment, presumably Gillette, was showing a movie to employees when
she arrived, but testified that she did not know what the movie was
about. She testified that no one talked to her about union activity
and she did not overhear anything about union organizing. She de-
nied any knowledge about union activity prior to her taking her new
post. Yet, there is no reason given for the personnel change, or why
HCR’s human resource department was taking such a keen interest
in Valley View. The only occurrence that was shown to be out of
the ordinary was the submission of the pay petition and the orga-
nizing campaign. She admits being asked to sign and distribute the
July 2 letter, written by Pat Gillette, shortly after she arrived at Val-
ley View, though she denies the truthfulness of the letter. She ig-
nored the testimony of her patient care coordinator, Alison Apple,
that she impressed on her staff the fact that the nursing home did
not want a union when giving them the July 2 letter and denies per-
sonally passing out the letter to her department heads, including
Apple. I believe that Brewer and Dus were installed at Valley View
because of the union activity and do not believe their statements to
the contrary. I further do not believe their expressed lack of knowl-
edge or interest in such activity. Their lack of candor will be taken
into account when making credibility determinations about the facts
surrounding the Croshier suspension and discharge and the discharge
of the other nursing assistants.
employees copies of newspaper articles about the rocky labor
relations at the newly organized Edgecombe Nursing Home
in Lenox.
In mid-July, at a regular meeting held by the unit super-
visors with nursing assistants, Croshier, and other assistants
continued to complain about supplies and other problems at
the nursing home. Unit Supervisor Susan Patnode told
Croshier that if she spoke on her own, she would be fired.
However, if the nursing assistants spoke together, they would
be safe as there is safety in numbers. Unit Supervisor Karen
Zink related her experience at another nursing home and ad-
vised the nursing assistants walk out in protest over matters
about which they were unhappy or dissatisfied. Unit Super-
visor Michele Tower agreed and began singing ‘‘United We
Stand, Divided We Fall.’’ Unit Supervisor Sue Ann Zank
abruptly left this meeting and wrote up a report, which she
gave Dus on or about July 29. The report attributes all the
these supervisors’ statements encouraging organization and
walking out as solutions to the assistants’ problems to Unit
Supervisor Patnode and concludes by saying: ‘‘After these
statements were made, the staff were ready for action, lets
stick together and do it. There was a very negative energy
charge and the staff was very loud and angry.’’
In July, Croshier and a few other nursing assistants, in-
cluding Alice Downey and Zerna Van Bramer, met with Ben
Hensler, another organizer with the Union who replaced
Carol Baker. He requested that they get him names and ad-
dresses of employees and they complied. The campaign be-
came stalled because the kitchen and laundry employees
were not interested. Hensler, later in July, informed Croshier
that the campaign was being put on hold, but to continue
working on it. Management had no idea that this was the
state of the campaign at the time. A letter distributed by
Brewer on July 30 clearly indicates that Respondent believed
the campaign was still fully underway. What Respondent’s
management did know was that Kelly Croshier was in the
forefront of the organizing campaign. Virtually every witness
testifying in this proceeding identified her as a strong union
supporter or the point person for the Union.12
At this point, the end of July, events at the nursing home
took a dramatic turn. Within the period from July 25 to Au-
gust 1, Croshier would be suspended and discharged and a
number of her fellow nursing assistants would be discharged
for walking off the job in protest of her suspension. Before
beginning a detailed discussion of these events, it must be
noted that these events occurred at a time when Croshier was
still vocal in her displeasure about the pay situation. She and
a number of other assistants were also vocal in their dis-
pleasure about the medical and patient care supply situation
at the nursing home, even though Brewer and Dus had been
addressing these concerns. Gillette was still at the facility
overseeing, according to Brewer, whether the nursing assist-
ants’ questions and concerns were being addressed, or in my
opinion, whether the organizing campaign was being prop-
erly addressed. Croshier had been warned by a unit super-
visor that she would be fired if she continued in her out-
spoken complaints, and the assistants had been encouraged
by their supervisors to band together and walk out in protest
if management did not address their concerns. In this atmos-
phere of charged emotions and antiunion pressure, the fol-
lowing scenario unfolded.
E. Was Croshier Suspended and Discharged for her
Union and Protected Concerted Activity?
In a nursing home, abuse of a patient or resident by an
employee is perhaps the most serious charge which can be
leveled at an employee. The Respondent has a written policy
with respect to patient abuse, which it defines as: Abuse
1011HEALTH CARE & RETIREMENT CORP.
13 Although most witnesses testifying herein agreed that incidents
of actual or perceived abuse should be reported immediately, a num-
ber of them indicated their understanding that abuse must be re-
ported within a 24-hour period.
14 The patient’s name will not appear in this decision. Because of
the description of the patient’s condition and actions, it is felt that
identifying him might cause unnecessary pain to his family.
shall be defined as any physical, verbal or other threatening
action shown to a resident or acts of neglect or omission
which causes injury, loss, harm, or emotional distress to a
resident. The policy requires that all acts of abuse shall be
immediately reported to a proper authority, and failure to re-
port abuse subjects the witness to the same discipline as the
abuser.13 Any person accused of abuse is immediately sus-
pended without pay, pending an investigation. The policy
states on this point:
The accused employee shall be permitted to return to
work only after it has been determined that they are
without involvement in the alleged act of abuse or ne-
glect. A full and thorough investigation shall begin im-
mediately following the report or discovery of the abu-
sive action and the administrator and Director of Nurs-
ing Service shall participate in the investigation which
should include interviews with any person having any
knowledge of the alleged incident.
The nursing assistants at Valley View were repeatedly in-
structed by management to report abuse or anything they be-
lieved to be abuse to their unit supervisors. Such reports are
to be made as soon as possible after the occurrence of the
allege abuse.
Croshier testified that on July 25, she went to work at 3
p.m., and was assigned to C wing along with two other as-
sistants, including assistant Kris Robinson. At about 9:30
p.m., Kris Robinson came to Croshier and asked for her help
in putting a patient to bed.14 This was consistent with the
nursing home policy that two people are supposed to lift pa-
tients. The patient was described by Croshier as being in his
80s and suffering from Alzheimer’s disease. Because of his
condition, he is unable to rationally communicate and could
not verify what happened to him. He was unstable on his
feet and according to Croshier, can get violent. The two as-
sistants wheeled the patient into his room where Robinson
grabbed him under one arm and Croshier grabbed him under
the other arm to lift him onto the bed. Croshier testified that
her face was right on his back and Robinson’s face was to
the front. As they lifted him, Robinson let go and Croshier
was holding him by herself. Robinson yelled, ‘‘He bit me.’’
Croshier noted that the patient does not have teeth. Croshier
testified that Robinson then punched the patient in the mid-
dle of his back quickly, about three times, with a closed fist.
Croshier testified that she was shocked, did not comment,
and put the patient into bed and walked out of the room.
Croshier testified that at this point she was angry and con-
fused. She stated that she did not say anything to Robinson
because she was afraid she may slap Robinson for hitting the
patient. Almost immediately the unit supervisor on duty,
Marge Mannion, asked Croshier to change a patient. She did
so and was in the same room with Mannion, who was seeing
to the needs of another patient. Croshier pointed out that the
patient she was changing had not been changed since supper,
and Mannion said she would speak to the assistant assigned
this task. Mannion inquired of this assistant when the other
patients in the room accused the assistant of not changing
them either. Mannion took no action with respect to these ac-
cusations. Croshier testified that she did not report that Rob-
inson hit a patient to Mannion at this time because she did
not think Mannion would do anything about it based on her
lack of action against the other assistant.
She told no one else about the hitting incident that night
and left work at 11 p.m. She testified that she was very con-
fused and upset. She did not hate Robinson and did not want
to get another employee in trouble. She had a troubled night
and when she reported for work the next day, she told fellow
nursing assistants, Alice Downey and Zerna Van Bramer,
about the incident the night before, looking for advice about
what to do. Van Bramer advised her to report the incident.
Van Bramer testified and corroborated this testimony, adding
that she told Croshier that failure to report abuse was also
patient abuse. Croshier told her that she had been afraid that
Robinson would be fired and also feared that Unit Supervisor
Mannion would overlook the incident. Van Bramer told her
that Robinson should be fired and should not be working
around the patients. She again urged Croshier to report the
incident. Croshier went to her wing and waited for the
wing’s unit supervisor for that day, Susan Patnode, to come
out of a nurses meeting. When she did, Croshier said she had
something to tell her and they went to a private room, where
Croshier reported the incident of alleged abuse. Patnode said
for Croshier to report it to Maryanne Dus.
She then found Dus in the employee lounge and the two
went into the hallway, where Croshier told her what had hap-
pened. Dus asked why she had not reported the incident
when it happened. Croshier replied that she forgot, explain-
ing she did not want to go into detail in the hallway where
others were present. Dus said she would handle the matter.
Croshier returned to work and was told by Patnode to fill out
an incident report. Croshier obtained the help of Van Bramer
and filled out the report. It states:
Kris Robinson asked me to help her put [patient] into
bed. We were putting him to bed and he bit Kris in the
arm. Kris let him go, I ended up holding him alone and
all of a sudden I saw her, with a closed fist, punching
him in the back about 3 times. Then I said, Kris, what
are you doing, he doesn’t have any teeth so it couldn’t
of hurt. I should have reported it to my unit supervisor
when the incident happened, but I didn’t think about it
until I got home. I felt negligent for not saying any-
thing.
The report also has a crude drawing of a person with a
mark in the area of the lower back indicating where the
punches landed on the patient.
The report was given to Dus and Croshier resumed her
normal duties. According to Unit Supervisor Patnode, Dus
called the wing to say she was coming up to examine the
patient. The patient was in a wheelchair, so Patnode and
Nursing Assistant Van Bramer put him to bed. They un-
dressed him and both noted three bruises on his upper back.
Van Bramer verified that they found the bruises and said
both were shocked. She did nothing further about this dis-
covery, believing that Patnode had or would file a report.
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Patnode gave a similar account of the incident, including her
finding of bruising, in a newspaper article printed on August 1,
1991. There was no comment by Respondent’s management in this
article or a subsequent one introduced in evidence. Patnode’s report,
made in response to Dus’ request, simply states that Croshier re-
ported the alleged abuse to her. It does not mention the inspection
of the patient by Patnode and Van Bramer.
16 Alison Apple testified that she took it on herself to check out
the patient on July 29. According to her, she found that he had a
pink area on his left shoulder which was a breakdown area from
pressure. She saw no redness or bruising on his back. She found no
bruises on his hands, arms or face as well, though she testified that
she had heard allegations by some nursing assistants that there were
bruises. She wrote a report of these findings and placed it on her
desk. She remembers telling Dus at some point that she checked the
patient and found nothing. However, she did not mention her written
report until she was in attendance at the first week of the hearing
in this proceeding. As is indicated on the record in this proceeding,
I have difficulty believing this testimony. The written report ap-
peared to me to have been written very recently and not some
months before. Additionally, there was no valid reason given why
such a report was not given to Dus at the time it was made, a time
when it would have had some real meaning. I do not credit the re-
port. In her testimony, Dus did not relate receiving any verbal report
from Apple with respect to the involved patient’s condition.
After they had put the patient to bed, they left the room.
Patnode testified that she encountered Dus on her way to the
patient’s room and told her that she had seen bruises. Dus
did not comment and went into the patient’s room. Dus came
out, looked at Patnode, and said, ‘‘Yeah, there were
bruises.’’ Patnode asked if Dus wanted her to document any-
thing, and Dus said she would take care of it. Dus instructed
Patnode to write up what Croshier had told her.15
Dus disputed this account of events. She testified that she
did check the patient and found two small healed open areas
at the top of his buttocks from old pressure sores. According
to Dus, he had a red mark about his midback which she at-
tributed to sitting in his wheel chair. She found no bruising,
swelling, or skin tears in the area Croshier indicated Robin-
son hit the patient. Robinson regularly wore a number of
rings on her hands and Respondent’s witnesses contended
that blows from her closed fist would certainly tear the pa-
tient’s skin. Of course, if blows were struck with an open
palm, the rings would not make contact. Dus denied that
Patnode said anything to her about checking the patient and
finding bruises. She did ask Patnode to write a statement
about the event.16
This is a very important point in this case. If there was
clear bruising on the patient’s back, then what Respondent
did thereafter was clearly a coverup, either with respect to
its actions against Croshier or to avoid the adverse publicity
that patient abuse can bring to a nursing home. Although as
I have indicated earlier, I do not believe that Dus was a can-
did witness in many respects, I really hesitate to doubt her
with respect to a medical finding. On the other hand, there
is no reason to doubt the professional integrity of either Unit
Supervisor Patnode, a LPN, or Nursing Assistant Van
Bramer. I will never know with absolute certainty whether
bruising existed or not. All of Respondent’s witnesses on this
subject were adamant in stating that virtually touching this
patient would result in some mark being left. However, as
will be noted below, the alleged abuser, Robinson, admitted
holding the patient’s arms and pushing his face away from
her. No evidence of bruising or other indicia of this physical
touching was noted by anyone. Thus, it appears to me that
the alleged abuse could have taken place without noticeable
bruising. However, I do believe that the investigatory actions
taken by Dus after her check of the patient were so patently
cursory as to seriously question whether she cared whether
there was patient abuse or not, and equally seriously call into
question the thoroughness with which she checked the pa-
tient. Because of my other problems with her credibility and
her lack of a thorough investigation into the matter in all
other regards, I do not credit Dus’ findings with respect to
bruising and will credit the testimony of Patnode and Van
Bramer on this matter.
After all of this checking of the patient, Croshier learned
that Robinson had been suspended, presumably pending in-
vestigation. However, the next day, July 27, Robinson’s sus-
pension was lifted and she returned to work. Croshier asked
Patnode why the suspension was lifted, and Patnode inquired
of Joan Cooper, who told her it was none of her business.
Dus came into the facility that evening to make sure ev-
erything was running smoothly with respect to Robinson’s
return to work. She testified that Croshier was upset and
asked why Robinson was back. Dus merely replied that she
was not at liberty to say. Now at this point, if Dus believed
no abuse had taken place, why did she not say so? Why not
accompany Croshier to the patient’s room and have Croshier
explain why there was no bruising where she claims the pa-
tient was hit? For that matter, why not have Robinson and
Croshier confront each other about the incident? However,
Dus did nothing that would have provided some definitive
answer to the abuse question.
On Monday, July 29, Croshier reported to work at about
3 p.m. and found a note with her timecard which indicated
she should see Dus before beginning work. She then met
with Dus in her office. Dory Bard and Alison Apple were
also present. According to Croshier, Dus stated that Croshier
was suspended indefinitely pending an investigation. Croshier
asked why? Dus responded that she was suspended for fal-
sifying records and getting everybody against Kris Robinson.
Croshier denied this and stated that she had witnessed patient
abuse and could not understand why she was being sus-
pended and not Robinson. Dus told her to clock out and
leave. No further questions about the alleged abuse were
asked of Croshier. Croshier was discharged 2 days later for
falsifying records, which consisted of her written statement
about the alleged abuse.
Respondent’s reasons for this apparently unusual turn of
events follows.
According to Dus, her first reason for doubting the abuse
occurred was Croshier’s delay in reporting the incident. Al-
though I believe that Croshier should have reported the inci-
dent immediately under the rules, I do not find that the delay
really supports Dus’s assertions that the accusation of abuse
was a device to have Robinson fired. Certainly the con-
sequences of reporting abuse would likely be the discharge
of Robinson. Such a consequence would likely cause confu-
sion in Croshier’s mind as Croshier asserted. On the other
hand, if Croshier were seriously trying to get Robinson dis-
charged, nothing would be gained by delay in reporting the
abuse. Any physical evidence of abuse, if it existed, would
be present 24 hours later, and if it did not exist, would still
not exist. Thus, delay could only subject Croshier to possible
sanctions for not reporting the incident when it happened.
1013HEALTH CARE & RETIREMENT CORP.
17 Parsons testified that on the evening Robinson was suspended,
Keyser approached her and asked if she had ever seen Robinson hit
a patient. Parsons replied that she never had, though she had seen
her abrupt, impatient and sometimes rude. Parsons then inquired why
she was being asked this question. Keyser replied that she knew
Croshier did not like Robinson. Parsons said, ‘‘Do you think it
was—you know, do you think she just said it.’’ According to Par-
sons, Keyser said she could not answer that, thanked her and left.
Parsons denies ever telling Keyser that she did not believe Robinson
would ever hit a patient. Dus never asked Parsons about the state-
ments Keyser attributed to her.
18 The affidavit was used in cross-examination and I believed it
was introduced in evidence. While writing this decision, I discovered
it had not been, and informed the parties that it was being made part
of the record as Jt. Exh. 1. No objections to this procedure were
made by the parties.
Dus testified that after she had checked the patient. She
then brought Kris Robinson into her office, and brought in
Suzanne Keyser, a unit supervisor, as a witness. She told
Robinson of Croshier’s allegations and let her read
Croshier’s statement. Then she asked Robinson to write a
statement. Robinson became upset and said she did not hit
the patient. She wrote a statement denying the allegation of
hitting. The statement reads: ‘‘[Patient] had gone to bite me
and I grabbed his hands. I did not hit him in the back. No
I did not hit him in the back.’’ Dus apparently asked no
questions about the details of the incident nor did she ask
Robinson to elaborate on her statement, which simply
amounted to a denial. Dus then suspended Robinson pending
investigation in accordance with patient abuse policy.
According to Dus, after Robinson left, Keyser, who had
been employed as a unit supervisor at Valley View only
since May or June, told her that ‘‘they’ve been trying to get
rid of Kris Robinson for quite awhile. I’ve heard Sue
Patnode and Kelly Croshier state, on several occasions, that
no matter what it took they were going to see that Kris Rob-
inson lost her job.’’ Dus asked Keyser to write this informa-
tion in the form of a statement.
The statement given to Dus by Keyser offers virtually the
only basis on which Respondent could base its actions with
respect to Robinson and Croshier, bruising of the patient
aside. Thus the testimony of Unit Supervisor Keyser is very
important.
Keyser’s report that was submitted to Dus that night reads
as follows:
Within this past week on several occasions, Susan
Patnode and Kelly Croshier stated that they really want-
ed Kris fired and would see that it happened and hap-
pened real soon. Susan said she couldn’t stand Kris and
felt she was very incompetent. On 2 occasions this
week Kelly came to me A/B desk using profane lan-
guage that she felt it was unfair to work with someone
who liked hurting patients, etc. I spoke with Pam Par-
sons who had worked with Kris frequently since I’ve
been here. She told me in confidence, that she didn’t
believe Kris ever hit a patient. She had never seen her
being physically abusive and said she certainly would
have reported it if she had.17 As I stated earlier, I feel
Kris was set up and I don’t believe she struck at a pa-
tient. I find her to be a respectful hard worker that I
trust and rely on. Received 7/27/91 M. Dus.
The circumstances under which this statement was given
are interesting. Although Dus testified that the statement was
voluntarily given, Keyser admitted after being confronted
with her affidavit that Dus invited her to come to the defense
of Robinson.18 Keyser’s affidavit states with respect to her
written statement:
I had no hesitance in writing this report to Dus. Dus
explained to me that charges had to be filed through
Boston (The State of Massachusetts) on patients and
chances are that she [Robinson] would not be able to
work again in the nursing field. Dus said unless some-
one came to Robinson’s defense, the home would have
no alternative but to fire her (Kris). That bothered me
because I knew she did not do anything, that it was a
personality issue. Maryanne offered me the opportunity
to think about writing up my feelings and observations.
[Emphasis added.]
At this point, according to Dus, she had checked the pa-
tient and found no evidence of abuse. She doubts the story
of Croshier because of the delay in reporting it. Thus, if one
believes her testimony, she has an accusation of abuse with
nothing to back it up, but is telling Keyser that she will have
to fire Robinson unless someone comes up with a defense to
support Robinson’s denial. Keyser did not testify that Dus
told her that she found no bruising. I believe Dus’ invitation
to Keyser to supply a defense, coupled with no mention of
her alleged finding of no bruising, supports the testimony of
Patnode and Van Bramer that there was visible bruising of
the patient.
At the hearing, Keyser, who obviously disliked Croshier,
testified that she told Dus that she felt Croshier set Robinson
up to get her fired. She thought this because: ‘‘They had said
way back—after my second week there, that she was a bitch,
she was a patient abuser, that she didn’t belong working with
patients and they were going to make sure that she didn’t
stay there very long.’’ She attributes these statements to Unit
Supervisor Patnode, and Nursing Assistants Croshier, Kerry
Doughty, Laurie Tomashek, Alice Downey, and Susan Huls.
She testified that she heard these statements on a daily basis
beginning shortly after she came to Valley View. Her testi-
mony certainly expands both the timeframe in which alleged
threats to get Robinson fired occurred and expands the list
of alleged conspirators significantly. She added in response
to where she heard these statements: ‘‘Either I was on the
floor working and they were upset and had come to Sue Ann
[Zank] or myself saying that they couldn’t stand working
with her anymore, and that they were going to leave the fa-
cility if they had to work with her; or I was in the dining
room with the rest of the nurses eating lunch and they would
often come to the dining room and sit down and chat with
myself or Sue Ann [Zank].’’ Kelly and Sue Ann were ex-
tremely close friends. She testified that these comments were
made in the presence of Zank, Tower, Patnode, and Carol
Scarbrough. She brought none of these statements to the at-
tention of Dus prior to July 26.
She testified that Tomashek, Huls, and Croshier com-
plained to her while working that Robinson was a patient
abuser, did not belong working there, and they did not like
working with her and did not like her. They had cited inci-
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Indeed, Dus’ formal report to the State of Massachusetts about
the incident concludes with a summary paragraph called ‘‘FIND-
INGS.’’ This paragraph reads:
I found it difficult to believe that Kelly Croshier, C.N.A., who
has been employed at Valley View Nursing Home since March
5, 1990, and who has attended inservices provided by the facil-
ity on Resident Abuse failed to report this incident immediately
to her Unit Supervisor on July 25, 1991. In view of the signed
witness statement by Suzanne Keyser, L.P.N., Unit Supervisor,
I feel the allegations of Kelly Croshier were unfounded. I rein-
stated C.N.A. Kristina Robinson on July 27, 1991.
She did not rely on the alleged lack of bruising in her conclusions.
dents of what they considered patient abuse by Robinson to
Keyser. As a result, Keyser watched Robinson closely and
found no evidence that Robinson abused patients. She did
not volunteer her knowledge of the patient abuse allegations
made by the other nursing assistants to Dus.
A number of the nursing assistants, including Croshier,
Parsons, Huls, Van Bramer, and Downey, testified in this
proceeding that they did have problems with Robinson’s
work performance and gave specific reasons therefore, citing
specific instances of problems. All of them, and Unit Super-
visor Patnode, denied there was any plot, conspiracy, or at-
tempt to get Robinson fired, however. I believe their testi-
mony.
Dus testified that at some unspecified time during the in-
vestigation, she checked Robinson’s file and found no prior
accusations of abuse or anything about patient abuse or ne-
glect. According to Keyser’s affidavit, this check would have
taken place at or during the night of July 26. At some un-
specified time, Dus also checked the nurses’ notes with re-
spect to the involved patient and found nothing to support
the abuse charge. The nurses’ notes likewise do not contain
her findings with respect to the involved patient.
At this point, I again question what Dus found when she
checked out the patient. Had she found no physical evidence
of abuse, then why did she find it necessary to invite Keyser,
who obviously disliked Croshier, to supply a motive for
Croshier to lie about the incident, as evidenced in Keyser’s
affidavit. According to the affidavit and Keyser’s testimony
after having been confronted with the statement, Dus would
have fired Robinson if no defense to the charges of abuse
could be found. This statement of Dus strongly supports the
testimony of Van Bramer and Patnode that physical evidence
of the abuse existed.19 It would appear to me that normal
priorities for a nursing home in such a situation would be to
seriously try to determine what had happened. However,
Dus’ priority seems to have been to find a way to avoid a
finding of abuse, even if it had occurred. She did not interro-
gate Robinson about the details of the alleged abuse to com-
pare her story with that given by Croshier. Had she done so,
she may have been surprised. A review of Robinson’s testi-
mony and her employment record with Valley View reveals
a far different employee than the one Keyser described and
felt compelled to give support.
Kris Robinson had been employed by Valley View as a
certified nursing assistant for approximately 1-1/2 years at
the time of the hearing herein. She testified that she attended
two union meetings, one held at the Five Chairs restaurant,
and the picnic at Kelly Croshier’s house. She signed the pay
petition, but not the petition indicating a preference among
the nursing assistants for the S.E.I.U. Later she testified she
signed this petition and gave her address to Croshier for use
with the union effort. Her affidavit to the Board taken during
the investigation of this case indicates that she did not sign
anything for the Union.
Her version of the abuse incident is similar to Croshier’s,
except she denies letting go of the patient and hitting him.
She gave some confusing testimony about how she was hold-
ing the patient during the time of the incident, but ultimately
testified that she grabbed one or the other of the patient’s
hands and pushed his face away when he attempted to bite
her. She testified that she told Croshier that the patient had
tried to bite her, and Croshier remarking that he did not have
any teeth.
In response to the question, ‘‘Was there any truth to the
statement Croshier made about the alleged abuse?’’ Robinson
answered, ‘‘I don’t believe so.’’
After her suspension on July 26, she went to her home.
Later that evening, she again heard from Dus, who related
she had checked the patient, found no bruises, and that she
could return to work the next day. Again, if one believes
Dus, she knew this at the time when she asked Robinson to
give a statement earlier that day.
Robinson’s personnel file which Dus reviewed reveals the
following. It contains an employee warning notice dated 12–
27–90 stating that Robinson was asked by another nursing
assistant to ambulate a patient. Robinson told the other as-
sistant, ‘‘Well, if she goes down, I’m not holding on to her
because of my side.’’ The warning also notes that Robinson
was frequently unable to complete assignments or assist oth-
ers due to her side. This was signed by Unit Supervisor Sue
Ann Zank. Statements in Respondent’s files about this inci-
dent include one from the other involved nurses assistant,
Laurie Tomashek, which reads: ‘‘Lori asked Kris to help
walk R. B. to the bathroom, patient had to go. Kris said,
‘yes’, with a very snotty attitude, and said, ‘well, if she falls,
she is hitting the floor because I’m not holding on to her be-
cause of my side.’’ This version is corroborated by CNA
Mark Bushika and Unit Supervisor Sue Ann Zank.
Another written warning prepared by Unit Supervisor
Zank details two incidents in which Robinson acted unpro-
fessionally in Zank’s view. Zank recommended further dis-
cipline, including discharge if another such incident occurred.
Another incident occurred on 6–26–91 and resulted in a
counseling by Michele Tower. This was caused by Robin-
son’s rudeness to a patient’s family.
An incident report dated 6–12–91 details an incident in
which Robinson evidently let a patient fall, injuring the pa-
tient. Unit Supervisor Patnode wrote up this incident report,
but did not recommend any action be taken against Robin-
son. This incident was brought to Dus’ attention by Patnode.
Dus commented at the time that she should have written
Robinson up about the incident. It seems strange to me that
if Patnode was looking for a reason to have Robinson dis-
charged, she did not even attempt to have Robinson dis-
ciplined over this incident.
The file also revealed to Dus Robinson’s only annual eval-
uation given in late December 1990 or early January 1991.
This evaluation rates her at 2.8 (below average) and rec-
ommends continued employment only with reservations.
With respect to her patient care, the evaluation rates her as
below standard, and comments that she does not always give
competent or complete care. It suggests that she is not a
1015HEALTH CARE & RETIREMENT CORP.
20 Zank was a less than candid witness. She demonstrated hostility
towards the General Counsel and was unwilling to agree with any-
thing inconsistent with Respondent’s position, even when her testi-
mony conflicted with her earlier documented actions. She tried to
find excuses for anything she may have written negatively about
Robinson. She testified that she did not take the alleged Patnode and
Croshier threats about Robinson seriously when she heard them, but
changed her mind when the Robinson-Croshier incident occurred.
However, she had no reason for her failure to volunteer her informa-
tion, instead waiting until Dus sought her out. She gave no reason
for waiting until July 29 to report events of the nurses meeting, and
pointedly, for naming only Patnode as making suggestions that the
nurses assistants should organize and walk out. The evidence of
other witnesses establishes that Unit Supervisors Tower and Zink
made similar statements. I do not credit Zank’s testimony or state-
ment about the alleged Croshier-Patnode threats about Robinson.
team player and rates her below standard on human relation-
ships. It also suggests that Robinson control her emotions.
Robinson’s written response to the evaluation states: ‘‘I think
I do my job in a good way. How can you work with employ-
ees if they are not willing to work with you. How can you
work with members if they are backstabbers.’’
She did not agree with any of the negative ratings or re-
marks on the evaluation, given by Unit Supervisor Sue Ann
Zank. She believed that Zank was sort of stabbing her in the
back. Though her signature appears on a written record of
a verbal waring given her in October 1990, she denied hav-
ing ever seen it at first, then admitted she had read it pre-
viously. She denied that the substance of the warning, given
by Zank, was true.
Robinson categorically denied every other allegation from
anyone testifying that she had ever done anything wrong, in-
cluding dropping a patient while working with Pam Parsons,
dropping a patient who began to urinate, and washing a pa-
tient with an incorrect cleaning agent. She testified that ev-
eryone who said anything about her lied. She disagreed with
any negative connotation that could be derived from any in-
cident testified about or documented in the record. She con-
sidered every negative thing said or written about her in the
record to be wrong or untrue, though she had no reason why
all of the people involved would say incorrect or untrue
things about her.
Had Dus chosen to question Robinson to any extent, Rob-
inson’s inability to admit any failing would have been read-
ily apparent. Yet, as far as this record is concerned, she was
never asked about the incident in any detail until she testified
in this proceeding. Any reasonable person hearing Robin-
son’s testimony would have serious doubts about Robinson’s
denial of the charge of abuse and, I believe, would have in-
vestigated the incident as fully as possible. Yet, Dus, with
no serious questioning of Robinson, whose personnel file
was replete with incidents of problems, and apparently ac-
cepting the wholly unverified and solicited allegations by
Keyser of a plot to have Robinson fired, decided there was
no abuse. She then called Administrator Brewer and they dis-
cussed the matter. They decided in view of what Dus knew,
that they were going to reinstate Robinson and that this was
a falsified case of abuse. Dus then called Robinson and told
her to come to work the next day.
Dus testified that the next day, July 27, she again checked
the patient and again found nothing to indicate that he had
been hit in the back. I do not credit this testimony for the
same reasons that I did not credit her earlier alleged finding
of no bruising. She reported the incident to the State of Mas-
sachusetts as required by law.
Nothing else was done until July 29. Dus made a further
report to the State, and talked about the incident with Re-
spondent’s Regional Manager Erl Benson and HCR Human
Resource Manager Patricia Gillette, who was still at the fa-
cility. They then made the decision to suspend Kelly
Croshier. As noted earlier, Croshier was summoned to Dus’
office, told she was being suspended for falsifying records
about the abuse incident which Croshier denied, and Croshier
left.
Following this meeting, a number of the nurses assistants
working at the time learned of Robinson’s return and
Croshier’s suspension. After a confrontation with manage-
ment, they walked out of the facility in protest and were dis-
charged. This matter will be discussed in the next section of
this decision. Later, on July 29, according to Dus, she had
the names of several other nurses that Keyser had indicated
could corroborate the plot to get rid of Robinson. Dus sought
out Unit Supervisor Sue Ann Zank, who gave her a state-
ment about the Patnode-Croshier plot to have Robinson dis-
charged. This statement tracks the Keyser statement almost
verbatim. She also volunteered another statement, noted ear-
lier, accusing Patnode of encouraging the nurses assistants to
walk out to achieve their ends, during a July nurses assistants
meeting.20 Dus testified that she contacted Unit Supervisor
Karen Zink, but she could not corroborate the plot. This
ended her investigation of the abuse incident.
On July 30, Dus and Brewer decided to terminate
Croshier. The okay from Benson and Gillette was sought and
obtained. It was on this date that Brewer sent her letter to
the families of the residents informing them about Croshier’s
suspension, the alleged patient abuse and the walkout by the
nursing assistants. Interestingly, this letter, coauthored by
Gillette, goes on to state: ‘‘You should also be aware that
the Service Employees International Union, Local 285, is try-
ing to organize our employees. We are expecting them to be
passing out literature at the driveway periodically during the
next several weeks. Please be assured I and the staff at Val-
ley View will be doing everything possible to minimize the
disruption to our residents.’’ Therefore, it is clear to me that
as of the date that Respondent decided to discharge Croshier,
it still considered the union organizing campaign to be un-
derway.
On Wednesday, July 31, which was payday at the nursing
home, Croshier went to pick up her check together with
some of the nursing assistants who had walked out in protest.
As the group was entering the facility, they were stopped by
Dus, Brewer, and Bard. Bard handed everyone their checks,
except Croshier, who was asked to accompany Dus and
Brewer to Brewer’s office. As they entered the office, Dus
said that Respondent was terminating Croshier for falsifying
records. Croshier denied this and asked to see the records,
but Dus declined, saying they were personnel records and be-
longed to the nursing home. Croshier took her check and ad-
vised Brewer and Dus that they would be hearing from her
lawyer.
In deciding cases dealing with discriminatory suspensions
and discharges, the Board has established a causation test to
be utilized. In Wright Line, 251 NLRB 1083 (1980), the
Board held that the General Counsel must first make a prima
facie showing that protected conduct was a motivating factor
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the employer’s decision; the burden then shifts to the em-
ployer to demonstrate the same action would have taken
place even in the absence of protected conduct. I believe that
the General Counsel has clearly met his burden of proof.
Respondent was shown to have harbored antiunion animus.
It responded to the first hint of a union organizing campaign
by beginning one of its own against the Union. It showed
films to employees, wrote an antiunion letter to employees
over the signature of Brewer, and distributed newspaper arti-
cles designed to discourage support for the Union. I believe
it brought Dus and Brewer into the nursing home in further-
ance of its attempts to defeat the union campaign. In re-
sponse to Croshier’s and the other nursing assistants’ pay
raise petition, Respondent gave its employees a 25-cent-per-
hour acros-the-board pay raise. Though Brewer testified that
the raise was given as a result of an area pay survey, it is
clear that the impetus for giving a pay raise was the peti-
tions. HCR Regional Manager Benson even telephoned
Croshier after the raise was given to see if she was pleased.
It must have been a surprise to find that she was not. At vir-
tually all times material to the events covered by the com-
plaint herein, HCR had its Human Resources Manager Patri-
cia Gillette on premises, obviously guiding the campaign and
ultimately giving her approval to the personnel action taken
against Croshier.
Respondent knew of Croshier’s involvement in the cam-
paign. As noted above, almost every witness, whether pre-
sented by the General Counsel or the Respondent, identified
her as in the forefront of the union organizing campaign. She
was also vocal in her complaints about pay and supply prob-
lems, provoking Unit Supervisor Patnode to warn her in July
that she could be fired for being so vocal in her complaints.
The only witnesses that tried to downplay their knowledge
of the campaign and Croshier’s part in it, were Brewer and
Dus. This attempt to deny knowledge damages their credi-
bility badly in my opinion. All of their subordinates knew of
the campaign and Croshier’s role in it. Brewer was clearly
aware of the campaign as she wrote an antiunion letter to
employees in July and conducted at least one meeting con-
cerning the campaign, with Dus in attendance, wherein she
expressed the Respondent’s desire not to have a union.
Brewer wrote another letter expressing a clear belief that the
campaign was alive and well simultaneously with the dis-
charge of Croshier. Dus’ main witness against Croshier, Unit
Supervisor Keyser, knew of Croshier’s role as a strong union
supporter, and she had only worked at the facility about a
month longer than Dus and Brewer.
The abuse allegation gave Respondent an opportunity to
rid itself of the union’s leading proponent. Instead of con-
ducting an thorough investigation to determine if abuse oc-
curred, Respondent, through Dus, invited the shifting of at-
tention from the alleged patient abuser to Croshier and there-
after moved with remarkable speed to get rid of Croshier,
while ignoring any real possibility that patient abuse had oc-
curred. For the reasons noted above, I do believe that phys-
ical evidence of abuse existed and was known to Dus. In her
discussion with Keyser after suspending Robinson, she in-
vited Keyser to give her a defense of Robinson, noting that
she would have to fire Robinson if a defense could not be
found. Keyser, who obviously disliked Croshier personally,
complied and implicated Croshier and Unit Supervisor
Patnode in a conspiracy to have Robinson discharged. Prior
to Keyser’s allegation on July 26, no one had ever hinted to
Dus that Croshier or Patnode were out to get Robinson. As
noted above, only shortly before the abuse incident, Dus had
admonished Patnode for not giving Robinson a written warn-
ing for her actions in which a patient had fallen while in
Robinson’s care. Yet, this incident, which supplies clear con-
tradiction to an alleged desire by Patnode to have Robinson
fired, was ignored by Dus.
Having gotten her defense of Robinson from Keyser, Dus
reinstated Robinson without any further investigation. The
patient’s physician was not called in to examine the patient
and the patient’s family was not notified. Neither Croshier
nor Robinson, nor any other nursing assistant or unit super-
visor was thereafter asked about either the abuse or the al-
leged conspiracy prior to Croshier’s suspension. Respondent
apparently put on blinders at this point and proceeded to get
Croshier out of the nursing home. According to Respondent,
Croshier was suspended, pending investigation, for violating
Respondent’s Rule 4, ‘‘TYPE A (MAJOR),’’ which reads:
Falsification of or misrepresentation on facility
records, reports or other documents, or misuse, disclo-
sure or removal of any record, report or document.
Violation of this Rule will result in discharge for the
first occurrence.
Respondent did not consider Rule 1, ‘‘TYPE B (SERI-
OUS),’’ which reads:
Making false or malicious statements about a resi-
dent, employee or supervisor or the company.
Violation of this Rule may result in discharge, but if
discharge is not appropriate for the first occurrence, the
violator will receive a final written warning.
As I stated on the record, I do not believe that the rule
under which Croshier was disciplined is applicable. The ‘‘re-
port’’ which she is accused of falsifying is the report of the
incident of abuse, which she was required to write at Dus’s
insistence. I believe that the rule is intended to cover fal-
sification of medical and other reports and documents kept
by the Company in the ordinary course of its business. If one
believes Croshier lied about Robinson, and I do not, then she
probably did violate the lesser rule noted above. I find it
consistent with Respondent’s overall handling of this incident
that it chose to discipline Croshier under an inappropriate
disciplinary rule, one that required discharge. No other appli-
cation of the rule under which Croshier was discharged was
documented in the record.
The fact that virtually all the nursing assistants who were
working in the facility when Croshier was suspended walked
out in protest over the suspension did not lessen Respond-
ent’s intent to get rid of Croshier. These assistants made it
clear to Dus and Brewer that they believed Croshier and not
Robinson. It should be noted that even Keyser admitted hav-
ing heard that Robinson was a patient abuser from a number
of other employees. However, instead of prompting a more
thorough investigation, the nursing assistants’ action simply
got them fired as well as Croshier. Dus followed up on the
matter after the walkout by getting what I consider an unbe-
lievable corroborating statement from another unit supervisor
and calling the investigation over.
1017HEALTH CARE & RETIREMENT CORP.
All the circumstances surrounding Croshier’s suspension
and discharge lead me to find that the reasons given for them
were pretextual. Based on the ‘‘investigation’’ described in
this record, Respondent could not begin to be sure that abuse
had not occurred as stated by Croshier. Yet, it disciplines the
accuser, not the alleged abuser, in total contravention of its
apparent policy promoting the reporting of any real or per-
ceived abuse of a patient by an employee. Its actions in the
Croshier case not only will have a chilling effect on the next
nursing assistant who decides to openly support a union, but
on any nursing assistant who observes what he or she be-
lieves is patient abuse. Given Croshier’s position as a union
supporter, Respondent’s union animus, and its handling of
the abuse incident as discussed above, I find that Croshier’s
union and protected concerted activities provided the motiva-
tion for her suspension and discharge.
Would Respondent have discharged Croshier in the ab-
sence of protected conduct? I believe this question can only
be answered in the negative. Respondent does not have a his-
tory of firing any employee prior to the Croshier incident for
making false reports about fellow employees. One wonders
if Dus is investigating the truthfulness of the various reports
contained in Robinson’s personnel file accusing her of less
than professional conduct with an eye to firing their authors.
Robinson contended these were all lies, just as she did
Croshier’s allegations about her abuse of the involved pa-
tient. Croshier was shown to be a conscientious nursing as-
sistant, well thought of from a professional standpoint by her
peers. Robinson was shown to be a problem employee, and
considered to be less than qualified professionally by her
peers. Any investigation involving the questioning of Robin-
son would have raised doubts about the veracity of her denial
of the alleged abuse. Any widespread investigation of the al-
legations of a conspiracy by Croshier would have turned up
employee after employee who would have denied the exist-
ence of such a conspiracy. Giving the Respondent the most
charitable view of the situation, it may have decided after a
thorough investigation that it could not prove beyond a doubt
that abuse occurred or did not occur. Under this set of cir-
cumstances, it is inconceivable that it would have discharged
Croshier, who was required by the Company’s rules to report
perceived abuse. Yet, as noted, a thorough investigation was
not conducted, Robinson was not questioned, and a defense
of Robinson was invited from a person who disliked
Croshier. Something other that a desire to reach the truth
about the abuse situation is reflected in this record, and I be-
lieve that is a desire to discharge Croshier for her protected
activity.
F. The Walkout in Support of Croshier and Subsequent
Discharge of the Involved Nursing Assistants
After her suspension, Croshier left Dus’ office to clock out
and met fellow employees Alice Downey and Sue Huls, and
in response to Downey’s inquiry as to why she was crying,
she replied that she had been ‘‘fucking suspended.’’ As she
proceeded down the hall, a patient asked what was wrong
and she replied that she had been suspended for reporting pa-
tient abuse. She then called for a ride home and went outside
the nursing home. There she told some kitchen and laundry
employees what had happened to her. As she was leaving the
premises, nursing assistant Sue Hulls yelled from a window
for her not to leave.
Huls then met with some of the other nursing assistants
suggested that if Respondent did not bring Croshier back or
give some reason why Croshier was suspended, they all walk
out in protest. Shortly thereafter, Huls met Bard and threat-
ened a work stoppage if Brewer would not meet with the
nursing assistants about Croshier’ suspension. Thereafter,
there was an announcement over the intercom telling all
nursing assistants to report to Dus’ office. She and the other
assistants started to the office, when a correction was an-
nounced over the intercom, stating that nurses were to come
to the office. A little later, the assistants were again called
to the office.
When they arrived, they were met by Dus, Brewer, Bard,
and Apple. Of the nursing assistants in the facility, only Rob-
inson was not present at the outset of this meeting. She came
in later. According to Huls, who I found to be an entirely
credible witness, Dus began the meeting by stating that it
had come to her knowledge that the assistants were con-
cerned about the circumstances with Kelly Croshier and that
the assistants were thinking of a walkout. She continued by
stating that Valley View had serious charges against
Croshier, and the assistants were just going to have to trust
her on this. Huls asked if suspension had anything to do with
the Union and Dus said no. Huls and Nursing Assistant Van
Bramer both testified that Dus did not look at the assistants
when giving this answer, but looked at the floor instead.
Huls testified that she asked the question because she was
sure that it had to do with the Union. Dus at this point re-
peated that she had serious charges against Croshier and that
the assistants would have to trust her. Huls replied that they
did not trust her. She explained that she did not trust Dus
and Brewer because they had not followed through on the as-
sistants’ complaints about the gloves they had to wear when
treating patients and the provision of supplies. Now they
were suspending Croshier. She told Dus that she did not
think it was fair that a good employee reports a case of pa-
tient abuse as they are required to do and is suspended, and
the reported employee, who is disruptive and abusive, is re-
called to work. She reiterated the point and said that the
nursing home was not a place she would want to work if
Croshier cannot have her job. Huls and the other assistants
then began to leave. Dus admitted that none of them said
they were quitting their employment.
They walked down the facility’s hall to punch out. Two
unit supervisors asked them to think out what they were
doing, and Huls replied that Respondent was not thinking
about them, about the residents, or about Croshier. After
punching out, the group of nursing assistants went to their
cars in the parking lot. Dus and Brewer followed them and
warned them that by leaving, they were voluntarily termi-
nating their jobs. Huls responded she realized this if Re-
spondent were not going to bring back Croshier. The group
of assistants that left under these circumstances included
Huls, Alice Downey, and Zerna Van Bramer. Some other
nursing assistants also left at this time, but were not named
in the complaint. The nursing assistants who participated in
the walk-out testified that they did not intend to quit their
employment by their action, but rather were protesting
Croshier’s suspension.
The assistants went to a nearby service station and began
crying because they had been told they were fired, and they
did not know what to do about paying their bills. Susan
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Nursing Assistant Laurie Tomashek evidently also walked out
sometime after the first group.
22 Respondent notes on brief that the notice requirements of Sec.
8(g) of the Act do not apply to unrepresented employees, thus a dis-
cussion of this point is unnecessary.
Patnode eventually came to the station and invited the assist-
ants to her house. Before they left, however, Nursing Assist-
ant Pam Parsons, who was scheduled to work from 5 to 9
p.m., saw the group as she was driving to work. She pulled
over and noted they were all crying and screaming. They
told her that they had just walked out of the nursing home
because Croshier had been suspended and Robinson returned
to work. They also told her to do what she wanted about the
situation. Parsons told them to wait, she would be back. She
then went to the facility and clocked in. Shortly thereafter,
she was told by Dory Bard that Croshier had been suspended
pending investigation and that Kris Robinson was back. Par-
sons asked why Croshier had been suspended, and Bard re-
plied that Respondent had some serious charges against
Croshier. She declined to specify what the charges were, but
said to trust management and that if Croshier was cleared,
she would be back in 3 days. Bard also commented that a
bunch of Croshier’s friends had walked out because of
Croshier’s suspension. After a few minutes, Parsons decided
to leave, told Bard that she was leaving, that she could not
deal with the situation and left. She described the condition
at the nursing home at this time as chaotic. She was not
aware that by leaving she was severing her employment rela-
tionship. She learned a couple of days later that her timecard
had ‘‘terminated’’ written across its face.21
The next day most of the involved assistants went to the
Massachusetts State Unemployment Office, where they were
told to write out a resignation and give it to the Company.
No explanation of why this advice was given appears in the
record, and no one offered any evidence to show that such
advice was not given. Therefore, I do not consider the fact
that the involved nursing assistants thereafter prepared and
presented resignations to be of consequence. It is clear from
the record that Respondent considered the employment of the
nursing assistants to be terminated when they left the facility
on July 29.
All the employees who walked out had the words
‘‘punched out left—terminate,’’ or similar words written on
their timecards. Dus prepared an employee separation report
in which she checked off a box that read that Huls (as well
as the other employees) were voluntary quits, and she wrote
‘‘walked off job 7/29/91’’ and ‘‘would not rehire.’’ Brewer
prepared a statement in which she wrote that Huls was con-
sidered ‘‘a voluntary quit after abandoning the residents
under her care on 7/28/91. As per Rules for Your Protection
#7A.’’ Rule 7A states that ‘‘Abandoning your job by walk-
ing off the shift without permission of your supervisor or ad-
ministrator’’ is a major violation which result in discharge.
Brewer testified that Respondent terminated the nursing as-
sistants who walked out on July 29. Furthermore, Dus admit-
ted that the employees walked out in support of Croshier,
and she could assume that if Croshier were returned to work,
the employees who walked out would have returned. Brewer
could envision no situation involving employees who walked
out or struck ‘‘without permission’’ that would not be con-
sidered abandonment of the job.
On the Wednesday of that week, the involved nursing as-
sistants picked up their checks and turned in their resigna-
tions. Respondent notes that none of the assistants asked for
reinstatement. This would have been unlikely in my view be-
cause the reason for their walkout, the suspension of
Croshier, had not only not been reversed, but Croshier was
discharged.
The General Counsel contends that the nursing assistants
were engaged in concerted protected activity when they
walked out and were discharged by Respondent for engaging
in that activity. Respondent contends that they were not en-
gaged in protected activity, and in fact, voluntarily quit their
employment when they left the premises. I believe it is clear
that the walkout was concerted and was made in protest over
the suspension of Croshier. As I have found that the suspen-
sion of Croshier was motivated by her union activity and was
thus a violation of Section 8(a)(1) of the Act, the walkout
was over Respondent’s unfair labor practices. Such activity
has heretofore been considered by the Board as an unfair
labor practice strike and afforded the protection of Section 7
of the Act. Limestone Apparel Corp., 255 NLRB 722 (1981),
Masonic Home, 206 NLRB 789 (1973), Danville Nursing
Home, 254 NLRB 907 (1981), and Syn-Tech Window Sys-
tems, 294 NLRB 791 (1989).
Respondent argues that the involved employees did not
strike over the suspension of Croshier, but by walking out
knowingly and voluntarily quit their employment under Re-
spondent’s rules, which call any leaving of the premises dur-
ing working hours without permission to be voluntarily ter-
minating one’s employment. Such a rule cannot be lawful as
it would prohibit a strike under any circumstances. More-
over, the involved assistants did not quit their jobs. It is clear
from the testimony of Dus and Brewer, as well as Respond-
ent’s documentation of the incident, that they walked off the
job in protest and were terminated. The action of the assist-
ants in walking off the job was voluntary, the decision to ter-
minate them was that of management. Respondent could
have addressed the concerns of the assistants by either meet-
ing their demand for a reasonable explanation of Croshier’s
suspension, or by agreeing to rescind the suspension pending
an investigation. It did neither.
Respondent went to great efforts to demonstrate in this
record that the action of the nursing assistants created a cha-
otic condition in the nursing home on the day of the walkout
and for sometime thereafter. However, it considered its pol-
icy of not divulging its reasons for personnel actions to the
assistants to be more important than the certain problems that
a walkout of the assistants would cause. Again, I believe the
Respondent has its priorities out of order. The concern that
Respondent would have me show for the consequences of the
walkout is also greatly tempered by the fact that these same
nursing assistants were encouraged by Respondent’s super-
visors to take just the action they took in order to achieve
their goals. Respondent learned of this encouragement to en-
gage in a walkout on the day of the walkout, but did not
consider it a mitigating factor in its decision to terminate the
assistants who had followed the supervisors’ advice.22
Neither the nursing home nor its residents were shown to
have suffered any injury by virtue of the walkout. Indeed, in
a letter from Brewer to the families of residents dated July
30, she points out that staffing levels were being maintained
1019HEALTH CARE & RETIREMENT CORP.
23 C.N.A. Susan Carpenter, a current employee of Respondent, tes-
tified that on July 31, 1991, she had a conversation with Joan Coo-
per who told her that a number of nursing assistants had walked out
over the Croshier—Robinson incident. She added that Brewer and
Dus had tried to talk them out of it. The next day Carpenter received
a phone call from Dory Bard, who said she wanted to give Respond-
ent’s side of the story. Bard said that Croshier was trying to set up
Robinson to get fired by saying that she had hit somebody. Car-
penter said that it did not make sense that they would leave over
that. Bard then commented that, ‘‘well, if I have it my way, they’ll
never work in another nursing home again.’’ Bard admitted having
this conversation and all of the comments attributed to her except
the threat. I credit Carpenter’s version of the conversation. She had
absolutely no reason to lie, and Bard was shown in the record to
make comments beyond what one would expect from a supervisor.
Accordingly, as it is clear from the context of the conversation that
Bard was threatening to blacklist those nurses assistants who were
engaging in concerted protected activity for engaging in such activ-
ity, I find that Respondent, acting through Bard, has violated Sec.
8(a)(1) of the Act thereby.
24 On or about July 31, Tower submitted a resignation that reads:
It is with sincere regret that I must inform you of my resigna-
tion, to become effective immediately. For personal reasons, I
no longer feel I can continue my employment within a facility
that condones and rewards patient abuse.
Tower testified that she filed the resignation because she believed
she had been fired and was following the advise of the nursing as-
Continued
and resident care was being provided at the facility’s quality
standards. I cannot find that the nursing assistants took any
action which would deprive them of the protection of the
Act, and thus find that their discharge on July 29, 1991, by
Respondent, for engaging in concerted protected activities
violates Section 8(a)(1) of the Act.23
G. The Alleged Discharges of Michele Tower and
Susan Patnode
The General Counsel alleges that Unit Supervisors
Michele Tower and Susan Patnode were discharged on or
about July 31, 1991, because of their activities on behalf of
the Union or other protected concerted activity. Respondent
contends that they were not discharged, but voluntarily re-
signed, and in any event, were statutory supervisors and not
entitled to the protection of the Act under the circumstances.
I have heretofore found that the position held by these two
women, unit supervisor, is that of a statutory supervisor.
Therefore, even in the event they were discharged for activ-
ity that would be protected if they were ordinary employees,
there is no violation of the Act. However, I will make find-
ings with respect to the complaint allegations because certain
comments made by Respondent’s management with respect
to these two women bear on other issues, and the Board may
subsequently hold that they were not statutory supervisors.
Tower is a licensed practical nurse and was employed by
Respondent as a unit supervisor from April or May 1990 to
on or about July 31, 1991. She was initially hired in the po-
sition on a casual, on call, basis, working on the 3 to 11 p.m.
shift. Under this arrangement her weekly hours ranged from
a low of about 16 hours to a high of 60 hours. In November
1990, her status changed to full time, working at least 32
hours per week. Again, in February or March 1991, her sta-
tus changed to one where she worked different shifts during
the workweek. This change was prompted by difficulties
Tower was encountering balancing her work with raising her
children. By the summer, it became too difficult and she re-
signed. The then director of nursing, Tom Lusa, asked her
to rescind her resignation and offered her casual, on-call
work again. She accepted this arrangement in May. She usu-
ally worked on the 3 to 11 p.m. shift.
She testified that from the day she began work at the nurs-
ing home she felt it needed a union. She learned the nursing
assistants were talking about a union in January. Whenever
she was asked about unions by assistants, she would encour-
age them to organize. As noted earlier, in response to a re-
quest by Croshier, Tower directed her to call Sheri
Gimlewicz, the union steward at Edgecombe Nursing Home,
where Tower had previously worked. Tower testified that she
also supported the nursing assistants organizing effort in
meetings the unit supervisors held with the assistants. She
noted one such meeting in July, discussed earlier, where she
attempted to get across to the assistants the point that they
had strength in numbers, without openly encouraging them to
organize. Tower remembered singing ‘‘United We Stand, Di-
vided We Fall’’ during this meeting.
Tower testified that she was fired on July 31. She had
worked the previous day. On July 31, she was in and out of
her house during the day, returning in the afternoon to pre-
pare to go to work at another job she had, when she discov-
ered a message to call Dory Bard on her answering machine.
As she was running late, she waited to return the call until
she arrived at her other job, caring for an ill child. She re-
turned Bard’s call at about 3 to 3:15 p.m. Bard told her that
she was in a meeting and she would call back. However, in-
stead of Bard calling, Dus called shortly after 5 p.m., and
said, Michele, we are not going to need you tonight. Tower
knew she was scheduled to work that night and her schedule,
once set, was rarely changed. Thus, she testified that she was
shocked. Dus said she hoped this was not a problem, and
Tower explained that is was as she had already obtained a
sitter for her children. Tower asked if she was to report to
work the following night as scheduled and Dus said no, the
nursing home would no longer need her services. Tower
asked why, and Dus said she could not discuss that at the
time and hung up.
At about 7 p.m., she called Dory Bard and asked what was
wrong, and had she done something wrong. Bard said no,
you did not do anything wrong, you are an excellent nurse.
Tower asked why had they fired her. Bard said she could not
tell her why. Tower began crying and begged her to do so.
Bard finally said that was because of personalities and that
she would have to prove to Dus that she could ‘‘lay low and
keep quiet’’ for a month. After further pressing, Bard elabo-
rated that she had to prove that she will not speak to Susan
Patnode, Karen Zink and Shift Supervisor Barbara Cardalico.
If she could do that, Bard said she would help get Tower’s
job back.
Dus testified that she had learned of Tower’s behavior in
the July nursing assistants meeting from Unit Supervisor
Zank, presumably on July 29. Because of this behavior, she
did not want Tower to work again until she had spoken to
her about the incident and perhaps had given her a warning.
Dus denies that she fired Tower during her telephone con-
versation and testified that Tower resigned before she could
speak with her again.24 Bard admits her telephone conversa-
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sistants who told her she had to resign to collect unemployment ben-
efits.
tion with Tower, but denied agreeing that Tower had been
fired. She admitted that she told Tower that she had to lay
low until she heard from them again, but explained that she
meant that Tower would have to stop acting hysterical like
she was acting in her telephone conversation. Bard testified
that she had planned putting Tower back on the schedule
after she had spoken with Dus, but Tower resigned the next
day and she never thereafter spoke to her again. I credit
Tower’s version of her conversation with Bard and Dus.
Bard’s explanation of the conversation, and especially the ex-
planation of the laying low comment did not make sense,
whereas Tower’s version does. Similarly, Dus did not call
and request that Tower come in and speak with her, or wait
until Tower came into work to speak to her as she could eas-
ily have done. There was no purpose in calling Tower and
telling her not to report to work unless she was either fired
or suspended. To gauge the seriousness with which Dus must
have taken Tower’s encouragement of the nursing assistants,
one must realize that July 31 was the third day of the walk-
out, and according to Respondent’s witnesses, they were hav-
ing a great deal of trouble getting sufficient staffing. If Re-
spondent is truthful about its staffing difficulties at this time,
Tower’s services should have been in great demand.
I also believe it is clear that Tower believed she was fired
and I similarly believe that was a logical assumption to make
based on the calls from Dus and Bard. Bard indicated she
would have to wait a month and prove that she could dis-
associate herself from certain other nurses, one of whom,
Patnode, was also in trouble for encouraging the assistants to
walk out. Therefore, her continued employment was contin-
gent on her convincing Dus that she would cease engaging
in what would be protected activity if she were not a statu-
tory supervisor. She was never called or put on the nursing
home work schedule thereafter. Her resignation, which was
prompted by her belief that she had been fired, was accepted
without comment by Respondent.
Because I have found Tower to be a statutory supervisor,
I do not find that Respondent violated the Act by discharging
her. On the other hand, if she is found not to be a statutory
supervisor, then her discharge was clearly and admittedly the
result of her protected activity, encouraging fellow employ-
ees to organize themselves.
Susan Patnode, an LPN, was employed as a unit super-
visor by Respondent from November 29, 1990, until July 31,
1991. She was employed on an on-call or casual basis. In
April, this changed to a 24-hour part-time position. In her re-
quest for this position, she indicated that she could work 40
hours per week. In the time that followed, she worked about
37 hours per week on average. In this position, she could not
pick her days off as she could as an on-call employee.
With respect to union activity, she testified that in July,
she met with Union Organizer Ben Hensler to discuss orga-
nizing the unit supervisors. She discussed what he told her
with other unit supervisors, including Suzanne Keyser, Sue
Ann Zank, and Carol Scarbrough. The group discussed, inter
alia, who they thought would be interested in a union. A few
days later while on break at the nursing home, she again dis-
cussed the matter of the Union with Zank and Michele
Tower. In this discussion, she pointed out that nurses at
unionized nursing homes made more money. She knew the
nursing assistants were engaged in union activity because
they were very vocal about it, especially Croshier.
With respect to the nurses assistants meeting in July, she
testified that she told Croshier, who was vocal in her com-
plaints about staffing and supplies, that if she spoke on her
own, she would be fired. However, if the nursing assistants
spoke together they would be safe as there is strength in
numbers. She also testified that similar comments were made
by Tower. According to Patnode, Unit Supervisor Karen
Zink told the assistants they had the power to walk out. Unit
Supervisor Zank reported these statements to management on
or before July 29, attributing the advice to walk out to
Patnode.
On July 27, Patnode tendered a resignation stating that her
last day of work would be August 9. On July 31, an em-
ployee separation report was filled out by Dus, which reflects
that Patnode resigned, and noted that she would not be al-
lowed to work out her notice, and indicated she would not
rehire Patnode. At the time of her resignation, she was
scheduled to work several days in the upcoming 2 weeks.
Dus testified that she and Brewer decided not to let Patnode
work out her notice because of her reported behavior in the
nursing assistants’ meeting.
When Patnode went to get her paycheck on Wednesday,
July 31, she was told to meet with Dus and Brewer, who
were at lunch at the time. Bard came up and the two went
outside the home. Bard told Patnode that she was in a lot
of trouble, because she had been seen with the nursing assist-
ants at the service station by an assistant named Missy Bur-
bank. Bard said that management believed that Patnode set
the whole scenario up. Patnode denied it. Bard continued by
saying that though Patnode was a fine nurse, she talked too
much, was a troublemaker, and voicing her opinion had got-
ten her into trouble. Bard said that it was all union stuff and
that there was no (patient) abuse. Patnode asked how they
knew there was no abuse, because there was no investigation.
That ended the conversation.
Bard testified that Patnode said how terrible it was about
the girls who walked out. Bard said she just listened and did
not say much. She testified that she did not tell Patnode that
Brewer and Dus had decided not to let her work out her no-
tice period, though she knew of this decision and reason for
it. She denied saying Patnode was in trouble, and that Dus
and Brewer believed she had instigated the walkout. She
could not recall saying that management knew that she was
at the service station with the nursing assistants, though she
admitted that she knew this fact at the time of the conversa-
tion. I credit Patnode’s version of this conversation. The
knowledge Patnode gained from this conversation was accu-
rate, was within Bard’s knowledge and could not have been
gained by Patnode from another source. Had Patnode not
been a supervisor, I would find that Bard’s calling her a
troublemaker for voicing her opinion, clearly a reference to
Patnode’s comments in the nursing assistants meeting, would
constitute an independent violation of Section 8(a)(1) of the
Act.
Shortly thereafter, she met with Dus and Brewer. Dus said
she had received Patnode’s resignation letter and that her
services were no longer needed, that she was to leave, and
that she would be paid until August 9. She asked why they
were doing this, and received no answer. Finally, Brewer
1021HEALTH CARE & RETIREMENT CORP.
25 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.
said it was for the betterment of the Company. They would
not let her go into the nursing home and escorted her to the
door.
Patnode said that she did not intend to resign totally from
her position with the nursing home, but wanted to go back
to an on-call status. The only evidence of this is the language
of her resignation. This reads: ‘‘I hereby resign my position
of 24 hour Unit Supervisor at Valley View Nursing Home.
My last day of work will by August 9th. If you wish to call
me to help fill in, please feal free.’’ I cannot find that this
language clearly supports Patnode’s contention that she was
asking to be placed in a casual, on-call position after August
9. It could more easily be read to mean that they could call
her for work between the date of the resignation and August
9. Moreover, there were no casual, on-call positions available
at the time of her resignation. Such positions are posted at
the facility when they are available.
It is clear from the testimony of Dus and Brewer as well
as the employee separation report filed by Dus that Patnode
would have been discharged had she not resigned. However,
she did resign and her reasons for doing so had nothing to
do with her activity with the nursing assistants or her union
activity. If she were not a statutory supervisor, I would find
that Respondent violated the Act by not letting Patnode work
out her notice period, and by noting on her personnel file
that she would not be rehired. Such actions were admittedly
taken because of Patnode’s encouragement of the nursing as-
sistants to organize themselves.
CONCLUSIONS OF LAW
1. Respondent Health Care and Retirement Corp., Valley
View Nursing Home is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Local 285, Service Employees International
Union, AFL–CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent’s position of unit supervisor is that of a su-
pervisor within the meaning of Section 2(11) of the Act and
thus, Michele Tower and Susan Patnode are statutory super-
visors.
4. Respondent has engaged in the following unfair labor
practices in violation of Section 8(a)(1) of the Act:
(a) Acting through Alison Apple, interrogating Nursing
Assistant Susan Huls about her union activity, and that of
other employees.
(b) Acting through Doris Bard, threatening employees who
engaged in protected concerted activity with blacklisting be-
cause of such activity.
(c) On July 29, 1991, discharging Nursing Assistants
Susan Huls, Alice Downey, Zerna Van Bramer, and Palmela
Parsons for engaging in protected concerted activity, which
consisted of walking out on strike in protest of Respondent’s
unfair labor practice suspension of fellow employee Kelly
Croshier.
5. Respondent engaged in unfair labor practices in viola-
tion of Section 8(a)(1) and (3) of the Act by on July 29,
1991, suspending, and on July 31, 1991, discharging its em-
ployee Kelly Croshier because she engaged in protected con-
certed and union activities.
6. The unfair labor practices found above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. For the reasons set forth in the body of this decision,
Respondent is not found to have committed the other unfair
labor practices alleged in the complaint.
REMEDY
Having found that Respondent has engaged in and is en-
gaging in conduct in violation of Section 8(a)(1) and (3) of
the Act, it is recommended that Respondent be ordered to
cease and desist therefrom and take the following affirmative
action necessary to effectuate the policies of the Act.
Having found that Respondent, on July 29, 1991, unlaw-
fully discharged its employees Susan Huls, Alice Downey,
Zerna Van Bramer, and Palmela Parsons, and on that date,
unlawfully suspended and subsequently discharged its em-
ployee, Kelly Croshier, it is recommended that Respondent
be ordered to offer these employees immediate reinstatement
to their former positions, discharging if necessary any em-
ployees hired to replace them, without loss of any seniority
or benefits to which they would be entitled were it not for
Respondent’s unlawful action against them. I further rec-
ommend that Respondent be ordered to make them whole for
any losses they may have suffered by virtue of Respondent’s
actions, with backpay to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and
interest thereon computed in the manner set forth in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
I further recommend that any reference to the unlawful
discharges be removed from the records of Respondent and
that it provide the discriminatees with written notice of such
removal and inform them that their unlawful discharges will
not be used against them in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended25
ORDER
The Respondent, Health Care and Retirement Corp., Val-
ley View Nursing Home, Lenox, Massachusetts, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their union activities.
(b) Threatening employees with blacklisting because they
engaged in protected concerted activity.
(c) Suspending and discharging its employees for engaging
in protected concerted and union activities.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed by Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act.
(a) Offer immediate reinstatement to employees Kelly
Croshier, Susan Huls, Alice Downey, Zerna Van Bramer,
and Palmela Parsons to their former positions of employ-
ment, discharging if necessary any employees hired to re-
place them, without prejudice to their seniority or other
rights and privileges previously enjoyed, and remove from its
records any reference to the unlawful suspension of Croshier
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 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.’’
and the unlawful discharges of all these employees and no-
tify them in writing that this has been done and that the dis-
charges will not be used against them in any way.
(b) Make Kelly Croshier, Susan Huls, Alice Downey,
Zerna Van Bramer, and Palmela Parsons whole for any loss
of pay or other benefits they may have suffered as a result
of Respondent’s unlawful discrimination against them begin-
ning July 29, 1991, in the manner set forth in the remedy
section of this decision.
(c) 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.
(d) Post at its facility in Lenox, Massachusetts, copies of
the attached notice marked ‘‘Appendix.’’26 Copies of the no-
tice, on forms provided by the Regional Director for Region
1, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.