In Home Health, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 2001

334 N.L.R.B. 281 (N.L.R.B. 2001)

IN HOME HEALTH, INC. 281
In Home Health, Inc. and International Longshore-
men’s Association, AFL–CIO. Case 5–CA–
29110
June 8, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE
AND WALSH
On April 2, 2001, Administrative Law Judge Benjamin
Schlesinger issued the attached decision. The General
Counsel filed exceptions and a supporting 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 the record
in light of the exceptions1 and brief and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, In Home Health, Inc.,
Minnetonka, Minnesota, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
Substitute the attached notice for that of the adminis-
trative 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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT announce and grant our employees a
wage increase to dissuade them from supporting the In-
ternational Longshoremen’s Association, AFL–CIO pro-
vided, however, nothing shall be construed as requiring
us to rescind any wage increase we previously granted.

1 No exceptions have been filed to the judge’s findings that Respon-
dent violated Sec. 8(a)(1).
WE WILL NOT threaten our employees with job loss
if the Union calls an economic strike at our facilities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed our employees by Section 7 of the
Act.

IN HOME HEALTH, INC.

John S. Ferrer, Esq., for the General Counsel.
Patrick R. Scully, Esq. (Sherman & Howard, L. L. C.; Robert J.
Deeny, Esq., on the brief), of Denver, Colorado, for the Re-
spondent.
Herzl S. Eisenstadt, Esq. (Gleason & Matthews, P.C.), of New
York, New York, for the Charging Party.
DECISION
FINDINGS OF FACT
BENJAMIN SCHLESINGER, Administrative Law Judge.
Shortly after Charging Party International Longshoremen’s
Association, AFL–CIO (Union), filed its petition for an elec-
tion, Respondent In Home Health, Inc. increased the hourly
wages of its certified nurses assistants (CNAs).1 That increase
was granted, the complaint alleges, in order to influence their
votes and affect the results of the upcoming Board-conducted
election, in violation of Section 8(a)(3) and (1) of the National
Labor Relations Act.2 Respondent denies that it violated the
Act in any manner.
Respondent, a Minnesota corporation based in Minnetonka,
is a national home health and hospice company providing ser-
vices in 15 States from 39 locations, including those involved
in this proceeding, Virginia Beach and Suffolk, Virginia. Dur-
ing the year ending October 17, 2000,3 Respondent derived
gross revenues in excess of $100,000 and performed services
valued in excess of $5000 directly to customers outside Vir-
ginia. I conclude that Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and a health care institution within the mean-
ing of Section 2(14) of the Act. I also conclude that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
On June 29, the Union mailed to the Regional Office for Re-
gion 5, with a copy to Respondent, a petition for certification
(Case 5–RC–15051) of a unit of CNAs dispatched from Re-
1 The functions of the CNA, who is certified by the Commonwealth
of Virginia, was described by one witness as follows: “To go out and
do personal care to the clients, wherever they may be—their home,
hospitals, facilities—bathe them, dress them, to assist with their medi-
cation. We’re dealing with combative, Alzheimer’s, AIDs, hospice. To
make sure that they’re safe and do what they need to do for them as far
as personal care, shop for them, feed them.”
2 The relevant docket entries are: The charge was filed on July 20
and the complaint was issued October 17, 2000. This case was tried in
Virginia Beach, Virginia, on February 22, 2001.
3 All dates are in 2000 unless otherwise stated.
334 NLRB No. 37
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 282
spondent’s two Virginia offices. It was received by the Re-
gional Office on July 3.4 It probably arrived at Respondent’s
office no later than the same day, but certainly by July 5.
Shortly after, on July 10, Phyllis Moran, Respondent’s director
of operations for the two Virginia offices, issued the following
notice to all of Respondent’s CNAs and companions5 (collec-
tively, home health aides):

WE HAVE RECEIVED A PETITION FROM THE
NATIONAL LABOR RELATIONS BOARD FILED BY
THE LONGSHOREMEN’S UNION. THE PETITION
REQUESTS A GOVERNMENT-
SUPERVISED ELECTION TO DETERMINE IF THE
LONGSHOREMEN WILL REPRESENT YOU. IN
OTHER WORDS, THE LONGSHOREMEN WANT TO
SPEAK FOR ALL OF YOU WHEN IT COMES TO
DECISIONS ABOUT YOUR WAGES, HOURS AND
CONDITIONS OF EMPLOYMENT. IN ORDER TO
FILE THIS PETITION, THE UNION HAD TO SHOW
THE GOVERNMENT THAT AT LEAST 1/3 OF YOU
SIGNED A CARD THAT SAID YOU WANTED TO BE
REPRESENTED BY THE LONGSHOREMEN.
WE WANT TO ASSURE YOU THAT WE WILL DO
EVERYTHING LEGALLY IN OUR POWER TO
OPPOSE THE UNION. PUT SIMPLY, WE THINK THE
UNION IS A BAD IDEA, AND A BAD DEAL FOR
OUR EMPLOYEES. WE KNOW THAT THE GREATER
MAJORITY SUPPORT US IN THESE Views.
SEVERAL WEEKS AGO I RECEIVED
AUTHORIZATION TO MAKE A MARKET
ADJUSTMENT TO WAGES. I HAVE BEEN IN THE
PROCESS OF IMPLEMENTING THAT
ADJUSTMENT. I WILL CONTINUE THIS PROCESS
AS PART OF OUR COMMITMENT TO REMAIN
COMPETITIVE. I WILL ADDRESS MARKET CON-
DITIONS, AS NECESSARY, AND I HOPE YOU WILL
GIVE ME THAT CHANCE WITHOUT THE
INTERFERENCE OF THIS THIRD PARTY.
WE WILL BE TALKING TO YOU IN THE
COMING WEEKS ABOUT THINGS YOU SHOULD
KNOW ABOUT UNIONS AND ABOUT THIS UNION
IN PARTICULAR—SO STAY TUNED. IN THE
MEANTIME, DON’T LET ANYONE PUSH YOU
INTO A BAD DEAL. REMEMBER, YOU HAVE THE
RIGHT TO REVOKE A CARD IF YOU SIGNED ONE,
AND IF YOU HAVE NOT SIGNED ONE, YOU HAVE
THE RIGHT TO TELL THE UNION SALESMAN YOU
ARE NOT INTERESTED.

Three days later, on July 13, Evelyn Dennis, the extended hours
division supervisor, announced to the home health aides that
the “market adjustment” of wages had been completed, that the

4 The election was held on September 7, but the results were incon-
clusive.
5 A companion was described by one witness as “someone who can-
not administer hands on care, cannot give a bath. They’re just there to
assist, to sit like a babysitter or to run errands and to do light house-
keeping.” The five companions whom Respondent employed in July
were not included in the petitioned-for unit.
new pay rates were effective as of July 1, and that the employ-
ees would see the increase in their paychecks of July 17.6
Moran testified that she attended a meeting of the Virginia
Association of Home Care in May, where she first learned that
the Commonwealth had approved an increase in the amount of
medicaid personal care assistant (PCA) rate of reimbursement
for client services from $9.50 to $10.25. She then verified with
the department of medical assistance services that this increase
would be paid on July 1. On June 6 she held a business devel-
opment meeting with all her supervisors and reported on her
business referral program, noting that she was receiving refer-
rals from prospective clients but had no staff to fill all of the
jobs and that she was concerned with the loss of business. Her
notes from that meeting with Dennis, who was serving her sec-
ond day of employment and was attending her first meeting,
and Michelle Mankowski, whom Dennis was hired to replace,
reveal a discussion of the facts that “re availability of CNA for
assignment—recruiting is down—We’ll be discussing wages—
PCA rate to ↑ [increase] 070100 comments from CAN—our
wage scale is low.”
At another meeting with Dennis and Mankowski the follow-
ing day, she discussed the need to increase the wages of the
CNAs who serviced both private duty clients, those who were
covered by private insurance, and clients who were paid by
medicaid PCA reimbursement, a decision which she then made
and was to relay to Lisa Weber, Respondent’s corporate vice
president of operations at its corporate office in Minnesota. Her
notes corroborate this, too. They indicate that she renewed the
need for the salary adjustment, which she testified was a result
of “information that we had received regarding our wages” and
“in order to stay competitive and to be able to attract and retain
CNAs.” On June 12 Moran held a profit-and-loss telephone
conference call with Weber, in which Moran recommended that
she give her employees who worked for private clients (ex-
tended hours) 35 cents per hour and 50 cents for those reim-
bursed for medicaid, “because many of the aids [sic] worked in
the same departments, and our extended hours rate was also
lower than what most of the other agencies in town were paying
so we felt that this was the opportune time to go ahead and do
an across-the board rate adjustment.” Moran testified that the
increase was to be effective July 1 and that Weber agreed.
Moran’s notes appear to corroborate her testimony. They state:
“Recommend 35¢/hr for true [?] EH—50¢ for PCA effect
070100—OK for this.” From Weber’s notes of the same meet-
ing, there is a reflection that recruitment and retention of ex-
tended hours employees remained a major problem and that
“PCA rate to $11.25 eff 7/1 (↑ $.75) Will ↑ pay rates.”
Notwithstanding Moran’s testimony that she was disposed to
grant an increase, there was some evidence to indicate Moran’s
less than enthusiastic support for a pay raise. When the PCA
rate increase was announced in May, Regina Darden, Respon-
dent’s staffing coordinator who assigned CNAs to their jobs
and did their payroll, asked Mankowski for an increase for the
6 Respondent granted increases to all its CNAs and five companions.
As the General Counsel points out in his brief, apparently the amounts
of the increases were not consistent, but generally were within a few
cents of the amounts stated in this decision.
IN HOME HEALTH, INC. 283
employees. Mankowski said she would find out and returned
shortly with the response from Moran that employees would be
given a raise only if they asked for it, to which Darden replied,
as corroborated by human resources employee Bradenea Hen-
derson, “What kind of shit is that?” Moran’s answer was not
that of one who was anxious to increase the wage rate of the
CNAs to ensure that Respondent was not losing business to its
competitors. Mankowski, no longer employed by Respondent,
did not testify, and the record is silent about her whereabouts.
Moran never denied that this incident happened: Respondent,
nonetheless, attacks the testimony on two grounds: First, Re-
spondent contends that the General Counsel and the Union had
the power to subpoena Mankowski to testify, that they did not,
and that their failure to do so required an inference that she
would not have supported Darden’s testimony. However,
Mankowski was Respondent’s supervisor; and if anyone should
have elicited her testimony, it was Respondent. Second, Re-
spondent contends that Darden was prejudiced because she was
forced to resign involuntarily, had filed (unsuccessfully) an
unfair labor practice charge against Respondent, and had hired
an attorney to sue Respondent. However, none of her testimony
was shown to be false and little was even contradicted, includ-
ing the statement that she attributed to Mankowski, which was
corroborated by Henderson.
Ordinarily, I would take into consideration, in determining
Moran’s credibility, the fact that she had left Respondent’s
employ 2 months before the hearing. She would have little to
gain from her testimony and no reason to fabricate. However,
this proceeding started long before she left Respondent’s em-
ploy, and she had already prepared the defense, so she was
bound by what she earlier did to defend against the issuance of
the complaint. One incident to which she testified made no
sense at all. Moran testified about the June 6 meeting:

I specifically recall the day I met with Michelle and Evelyn on
the 6th that when I completed that meeting as I left their office
I went around and I spoke to the staffing coordinator at that
time and said to her I’m excited because I feel we’ll be able to
put in a wage adjustment that will certainly help with recruit-
ment and retention.

Darden denied that Moran had told her anything of the sort.
The reason for Moran’s excitement was unclear, especially
because there had been no corporate approval of her request
and the issue had not even been raised with Weber. I believe
Darden’s denial and find that the event to which Moran testi-
fied did not happen and was fabricated. If she made up that
incident, is it possible that she made up others, too? Her hand-
written notes of June 12, quoted above, are of particular con-
cern. Whereas almost all her writing was on the lines of the
page, only one line was not, the line that stated “OK for this,”
which was between two lines. I find that this must have been
inserted during the investigation of the unfair labor practice
charge; and it is equally probable that she, in order to bolster
Respondent’s case, also inserted “effect 070100” on the previ-
ous line.
Indeed, Weber admitted that her notes did not reflect that
there was any intent to coordinate the effective date of the wage
increase with the effective date of the PCA reimbursement rate
increase. And, other than “effect 070100” in Moran’s notes,
Respondent made no showing that any date was established for
the increase prior to Respondent’s receipt of the Union’s peti-
tion. That would be consistent with the fact that, despite the
purported loss of business and Moran’s desire for help with
recruitment and retention of CNAs, Respondent did nothing.
Respondent counters with Moran’s testimony that immediately
after Weber approved the increase on June 12, (Moran) told
Dennis to put it into effect. Yet Dennis, although called to tes-
tify, was never asked what she did in June to effectuate the
increase. Rather, absolutely nothing appears to have been done.
Clearly, there was no explanation of why Dennis had been un-
able to complete in June the administrative tasks necessary to
increase the pay of the employees for the first payroll in July.
Dennis did not sign the payroll change forms that had to be
completed for the wage increase until July 10; and, although
Moran testified that she directed Dennis to handle these tasks
about June 12, as of July 5, she had not followed up on what
Dennis had done due to the fact that Moran “was orienting
another supervisor in another department, so [she] really did
not know whether or not all of those forms had been com-
pleted.” That could not have prevented her from asking Dennis
during all of June how she was proceeding with the rate in-
crease. And Dennis made no showing of what she did to im-
plement the decision to increase the wages other than to show
what she did beginning July 10. To Respondent’s contention
that the supervisory staff for extended hours had been reduced
to two persons, one very recent, Respondent still could have
directed Darden to perform the basically computer-oriented
work, Moran though would take about 4 of 5 hours and Hen-
derson estimated would take only 2.
All there is in this record is Respondent’s ipse dixit that, at
least as of the beginning of July, it could not have implemented
the increase. According to Moran, she was sick on July 3, the
office was closed for the holiday of July 4, and she did not
return to the office until Wednesday, July 5. Even after her
return, however, no effort was made to begin inputting the new
wage increase into the payroll system. Moran attempted to
excuse her lack of effort on the ground that it would have taken
too long to program the wage increases, even though she admit-
ted that she could still submit the figures by the end of that
Wednesday. But Darden’s and Henderson’s testimony demon-
strated that the changes could have been made timely.
Moran and Dennis claimed that employees were made aware
of the wage increase prior to the July 10 notice because em-
ployees were told of it when they picked up their checks at the
office, but neither Moran nor Dennis had direct knowledge of
the truth of their assertions. Respondent called not one em-
ployee witness to corroborate that he or she was informed of
the increase prior to July 10. Moran’s claim that she announced
at a staff meeting on June 20 that the wage increase would be in
effect on July 1 is also suspect. Whereas Respondent supported
the contentions that it wished to make with documents, such as
notes and weekly planners, Respondent did not corroborate
Moran’s testimony with her notes of or the weekly planner
from that meeting, or even the sign-in sheet, to prove that Dar-
den was present, which came from the same books as other
exhibits that Respondent produced at the hearing. Darden, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 284
only employee who had personal, daily contact with the CNAs,
for whom she did the payroll, credibly testified that she was
never told by anyone that the employees were going to be given
increases effective on July 1. Finally, it was only on July 10,
after the Union filed its representation petition that Moran is-
sued a public, written statement about the wage increase. She
did not issue one before, despite her purported excitement on
June 12 that “we’ll be able to put in a wage adjustment that will
certainly help with recruitment and retention.” Nor did she put
that increase in effect earlier in order to help recruitment and
prevent CNAs from leaving Respondent’s employ. In short, I
do not believe Respondent’s explanation and find that there was
no prior commitment to raise the wages of the CNAs on July 1.
The General Counsel contends that Respondent never even
decided on any wage increase at any time, accurately pointing
out that Respondent offered no documentation, such as a mar-
ket or employee survey, to support its rationale that other com-
petitors were paying more than it was and that there truly was a
loss of employees to its competitors. There was no documen-
tary evidence that Respondent was attempting to approach par-
ity with the wage rates that other local agencies were providing,
because there was no proof of what those agencies were paying.
Respondent failed to provide any newspaper ads to confirm its
recruiting efforts. There was no concrete showing that Respon-
dent turned aside any referral because of lack of staffing. All
Respondent showed was that its gross revenues from its ex-
tended hours division had declined, but it did not show the
reasons for the decline. Darden asked her superiors in May and
June to give the employees more money, but the answer was
always “no.” Furthermore, Respondent had no past practice of
granting a market adjustment wage increase or of granting a
wage increase based on an increase in the PCA reimbursement
rate despite Moran’s and Weber’s testimony that Respondent
had previously granted a general increase to employees. I found
their testimony vague and unsupported by specifics. At best,
there may have been an increase when Federal minimum wage
increases required them. Otherwise, some employees were
rewarded based on their yearly evaluations. Others, such as
CNA Chrystal Wilson, who was first employed in 1992, had
never before received an increase.
Despite these meritorious arguments, and despite my finding
that Moran altered her notes to reflect that the increase was
going to be made on July 1, which causes me to discredit the
similar testimony of Weber, there is no other hint in the record
that their notes were otherwise falsified or prepared specifically
to support Respondent’s defense to the complaint in this pro-
ceeding. I conclude that they did talk about an increase and
determined that there should be one in the future, but they had
not decided on the date to implement the decision. And Moran
had not implemented the decision by the time she received the
petition. It was only when she did that Respondent found it
imperative to announce the increase, which was clearly linked
to the employees’ union activities and Respondent’s desire to
remain nonunion, and start working on its implementation. In
granting the increase then, Respondent did so in order to affect
the results of any impending election and even, as its notice
stated, to convince employees not to sign union cards and to
revoke them, in violation of Section 8(a)(1) of the Act. NLRB
v. Exchange Parts Co., 375 U.S. 405 (1964). The Board ap-
pears to find this also a violation of Section 8(a)(3). Cooper
Industries, 328 NLRB 145 fn. 4 (1999). But see Perdue Farms
v. NLRB, 144 F.3d 830, 833 (D.C. Cir. 1998), refusing to en-
force in relevant part 323 NLRB 345, 352 (1997). I find it un-
necessary to determine this issue, because the remedy for the
additional violation is the same.
There is one other unfair labor practice allegation in the
complaint.7 In a flyer entitled “IF THE UNION WINS, YOU
COULD LOSE!!,” Respondent made the following statement:
“YOU COULD LOSE YOUR JOB, if the Union called an eco-
nomic strike and the Company hired replacement workers to fill
your job.” The Board has “made it clear that employers cannot
tell employees without explanation that they would lose their
jobs as a consequence of a strike or permanent replacement.”
An employer must convey to employees that they would have
recall rights in the event of a strike under Laidlaw Corp., 171
NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert.
denied 397 U.S. 920 (1969). Baddour, Inc., 303 NLRB 275
(1991). The phrase “lose your job” conveys to the ordinary
employee the clear message that employment will be termi-
nated. Respondent contends that the flyer was never distributed
to any employees. The testimony of Wilson, albeit internally
inconsistent and contradictory, was sufficient to prove that the
leaflet was distributed by Respondent, either by hand or mailed,
a fact never denied by any of Respondent’s witnesses. Accord-
ingly, by threatening loss of jobs, Respondent violated Section
8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The General Counsel requests that
the notice be mailed to all the employees, because the CNAs do
not work at Respondent’s facilities but typically at the client’s
home or a hospital. However, most go to Respondent’s Virginia
Beach facility on Mondays to be paid and then on those days or
other days pick up necessary supplies or paperwork. Accord-
ingly, they have sufficient opportunity to read the notice with-
out the unusual relief of forcing Respondent to mail it to all
employees. Madison Detective Bureau, Inc., 250 NLRB 398,
401–402 (1980), relied on by the General Counsel, is distin-
guishable. The employees did not report at all to the respon-
dent’s headquarters.
On these findings of fact and conclusions of law and on the
entire record,8 including my observation of the witnesses as

7 Respondent, once again relying on Ross Stores, Inc. v. NLRB, 235
F.3d 669 (D.C. Cir. 2001), urges that this allegation, which resulted
from an amendment made during the hearing, be dismissed. With due
respect to the court’s decision, I am bound by Board law, which holds
that “the requisite factual relationship under the ‘closely related’ test
may be based on acts that arise out of the same antiunion campaign.”
Office Depot, 330 NLRB 640 (2000).
8 The General Counsel moves to amend various portions of the offi-
cial transcript. The motion is granted only to the following extent: On
p. 37, L. 11, “I’ll join” shall read “I will not join.” On p. 200, L. 19,
“July 15th” shall read “July 5th.”
IN HOME HEALTH, INC. 285
they testified and the briefs submitted by the General Counsel
and Respondent, I issue the following recommended9
ORDER
The Respondent, In Home Health, Inc., Minnetonka, Minne-
sota, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Announcing and granting its employees a wage increase
to dissuade them from supporting the International Longshore-
men’s Association, AFL–CIO (Union), provided, however,
nothing here shall be construed as requiring In Home Health,
Inc. to rescind any wage increase it previously granted.
(b) Threatening its employees with job loss if the Union
called an economic strike at its facilities.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
Virginia Beach, Virginia and Suffolk, Virginia facilities copies

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
of the attached notice marked “Appendix.”10 Copies of the
notice, on forms provided by the Regional Director for Region
5, after being signed by Respondent’s authorized representa-
tive, shall be posted by Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or closed the
facility involved in these proceedings, Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the
Respondent at any time since July 10, 2000.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.

10 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice “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.’’