King David Center

National Labor Relations Board - Board Decisions

Aug 6, 1999

328 N.L.R.B. 1141 (N.L.R.B. 1999)

KING DAVID CENTER 1141
PVM I Associates, Inc. d/b/a King David Center and
U.S. Management, Inc./I.I.M.S. and 1115 Nurs-
ing Home Hospital and Service Employees Un-
ion-Florida

International Union of Industrial Service Transport
and Health Employees District 6 PVM I Associ-
ates, Inc. d/b/a King David Center and U.S.
Management, INC./I.I.M.S. and 1115 Nursing
Home Hospital and Service Employees Union-
Florida.

Healthcare Services Group, Inc. and 1115 Nursing
Home Hospital and Service Employees Union-
Florida. Cases 12–CA–16368, 12–CA–16380–2,
12–CA–16425, 12–CA–16427, 12–CA–16454, 12–
CA–16474, 12–CA–16523, 12–CA–16786, 12–
CA–16809, 12–CA–16839, 12–CA–16380, and
12–CA–16762
August 6, 1999
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On February 29, 1996, Administrative Law Judge
Robert C. Batson issued the attached decision. Respon-
dents PVM I Associates, Inc. d/b/a King David Center
and U.S. Management, Inc./I.I.M.S. (the Joint Employer
Respondents) and the General Counsel filed exceptions
and supporting briefs and the General Counsel filed an
answering brief to the Joint Employer Respondents’ ex-
ceptions.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
modified below,3 and to adopt the recommended Order,
as modified and stated in full below.4

1 In the representation case proceeding, the Board denied these Re-
spondents’ request for review of the Regional Director’s determination
that King David and U.S. Management are joint employers. In this
proceeding, Joint Employer Respondents have not excepted to the
judge’s conclusion that they are joint employers.
2 The Joint Employer Respondents have excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In adopting the judge’s finding that the Joint Employer Respondents
unlawfully discharged Lude Duval under the pretext that she did not
have her CNA certificate, we note that when the Joint Employer Re-
spondents discovered that Joyce Neloms did not have her CNA certifi-
cate she was not similarly discharged but was placed in a position that
did not involve patient care until she obtained the certificate. We also
note that Duval subsequently obtained her CNA certificate. Because of
this evidence of disparate treatment, the Joint Employer Respondents
have not shown that they would have discharged Duval even absent her
union activity.
The Joint Employer Respondents likewise have not demonstrated
that they would have discharged Jean Aliza notwithstanding his union
activity. They contend that Aliza was discharged for poor performance
and insubordination but direct our attention to only one other incident
in which a probationary employee was terminated for allegedly similar
conduct. On the other hand, the record contains dozens of “employee
counseling forms” noting performance deficiencies similar to those for
which Aliza was terminated, but which did not result in termination. As
for the alleged insubordination, we note that Aliza’s warning for that
infraction references termination only in the event of future outbursts,
and that other employees who were counseled for being insubordinate
were not similarly disciplined.
Respondent PVM I Associates, Inc. d/b/a King David
Center (King David) operates a skilled nursing facility in
West Palm Beach, Florida. Respondent U.S. Manage-
ment, Inc./I.I.M.S. (U.S. Management) provides King
David with certain nursing department employees, in-
cluding certified nursing assistants (CNAs) and dietary
employees pursuant to a contract with King David. King
David and U.S. Management are joint employers of those
employees. During the summer of 1993, the Union
commenced an organizing campaign among the Joint
Employer Respondents’ CNAs and dietary employees,
which continued for approximately 1 year. The Union
won the election held on August 5, 1994.
The judge found, inter alia, that the Joint Employer
Respondents violated Section 8(a)(1) of the Act by its
supervisors’ alleged surveillance of employees’ union
activities at a local restaurant and by Supervisor Celina
Caprisecco’s alleged interrogation of employee Jean Al-
iza; and that they violated Section 8(a)(3) and (1) of the
Act by the alleged imposition of more onerous working
conditions on employee Quetellie Jean-Baptiste and by
her alleged “constructive suspension” for 1 week. The
Joint Employer Respondents have excepted to those
findings, among others. We find merit in these excep-
tions, and, for the reasons set forth in sections 1, 2, and 3
below, we shall dismiss those complaint allegations.
The General Counsel has excepted, inter alia, to the
judge’s failure to address certain complaint allegations
pertaining to allegedly retaliatory reductions in staffing
levels and working hours. We agree that this was error,

3 The judge dismissed the complaint allegation that the Joint Em-
ployer Respondents unlawfully issued disciplinary warnings to em-
ployee Caty Joseph, and no party has excepted to that dismissal. Never-
theless, in his Conclusion of Law 10 (f), the judge named Joseph as a
recipient of unlawful disciplinary warnings. We shall delete Joseph
from that conclusion.
4 The Respondent Healthcare Services Group, Inc. (Respondent
Healthcare) provides laundry and housekeeping services to King David.
The judge found that Respondent Healthcare violated Sec. 8(a)(5) and
(1) by refusing to meet and bargain with the Union following an elec-
tion held August 5, 1993, in a unit of laundry and housekeeping em-
ployees. Respondent Healthcare does not except to this finding. How-
ever, the General Counsel has excepted to the judge’s failure to include
in his recommended Order and notice a provision extending Health-
care’s bargaining obligation for 1 year from the date Healthcare begins
to bargain in good faith. See Mar-Jac Poultry Co., 136 NLRB 785
(1962). We shall correct the Order and notice accordingly.
We shall also modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144 (1996).
328 NLRB No. 159
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1142
and for the reasons set forth in section 4 below, we shall
remand to the judge those unresolved issues for appro-
priate findings and conclusions.
1. Alleged surveillance
In mid-July 1994,5 Joint Employer Respondents’ qual-
ity assurance director, Lisa Megill, and Nurse Supervisor
Celina Caprisecco visited during lunchtime a pizza res-
taurant about a mile from the Joint Employer Respon-
dents’ facility. After they arrived, three union officials,
including Marie Jean Phillippe, and unit employee Mi-
chelle Williams appeared for a scheduled—but unpubli-
cized—union meeting. Phillippe and Williams were
seated about 5 feet away from the Joint Employer Re-
spondents’ supervisors; other employees subsequently
joined them. Megill and Caprisecco admitted recogniz-
ing Phillippe as a union representative who was attempt-
ing to organize the Joint Employer Respondents’ em-
ployees. Phillippe testified that the supervisors remained
at the restaurant for 90 minutes, drinking beverages and
smoking, but that they were not served food.
Although the judge assumed that the supervisors did
not know of the union meeting before they went to the
restaurant that day, he stressed that they became aware of
it after Phillippe and her group sat down at a nearby ta-
ble. The judge concluded that, “Megill and Caprisecco
prolonged their stay at the [restaurant] to observe the
meeting and the employees in attendance there.” Ac-
cordingly, the judge found that the Joint Employer Re-
spondents violated Section 8(a)(1) of the Act by engag-
ing in surveillance of its employees’ union activities.
Contrary to the judge, we find that the record is insuf-
ficient to support a finding of unlawful surveillance.
Thus, as the judge found, there is no evidence that Megill
and Caprisecco knew about the union meeting in ad-
vance. Furthermore, these supervisors had a legitimate
reason for being at the restaurant on their lunchtime and,
for all the record shows, their presence on the same day
as the union meeting was sheer coincidence. Although
the judge noted that it is unclear whether they were
served any food, he nonetheless stated he was “con-
vinced” that the supervisors “prolonged their stay” in
order to observe the union meeting. The judge’s conclu-
sion rests on pure speculation. Megill and Caprisecco
clearly had a right to patronize the restaurant located only
a short distance from the Joint Employer Respondents’
facility, and nothing in the law required them to leave the
premises when the union officials later arrived to conduct
a union meeting.
As explained in Gossen Co., 254 NLRB 339, 353
(1981), modified on other grounds 719 F.2d 1354 (7th
Cir. 1983):

Not all instances where employer representatives are at
or in the vicinity of the union activities of their subor-

5 All dates are in 1994, unless otherwise noted.
dinate employees amount to unlawful surveillance.
Thus, where purely fortuitous circumstances bring such
parties together there is no dogmatic legal principle by
which the employer would be declared to have violated
the Act.

In dismissing the surveillance allegation there, Gossen Co.,
254 NLRB at 353, also quoted from an earlier holding in
Atlanta Gas Light Co., 162 NLRB 436, 438 (1966), in
which the Board stated that:

[the employer representative’s] mere presence, without
more specific evidence that it was not for a legitimate
purpose, or that it was for the purpose of observing the
meeting, establishes neither surveillance of the meeting
by him, nor a reasonable basis for an impression of
surveillance in the minds of employees in attendance at
the meeting.

In short, the evidence here shows that Megill’s and
Caprisecco’s presence at the restaurant on the same day
as the union meeting was the result of “purely fortuitous
circumstances.”6 There is no reason that they had to
leave the restaurant once the union representatives and an
employee arrived there to conduct a union meeting. Ac-
cordingly, we find that the General Counsel has not es-
tablished that the Joint Employer Respondents engaged
in surveillance.7
2. Alleged interrogation
In early January, employee Jean Aliza began wearing a
union button on his shirt or jacket while at work at the
Joint Employer Respondents’ nursing home. On the first
day that Aliza wore the button, Caprisecco came into the
room where Aliza was bathing a patient and, after inquir-
ing about the patient, pointed a finger at the button and
“asked . . . what is this?” Aliza replied that it was a but-
ton and suggested that Caprisecco read it. Caprisecco
asked, “What the Union?” and walked away.
This evidence shows that Aliza was an open union
supporter who wore a button bearing the Union’s insig-
nia at work. Caprisecco merely asked Aliza about the
button as he attended to a patient and then, after Aliza
beckoned her to read it, made a vague inquiry about the
Union. Nothing in this exchange was remotely coercive
nor could it reasonably be found to have had a tendency
to interfere with Aliza’s exercise of Section 7 rights.
Thus, there cannot be any grounds for finding a violation
on this allegation. Rossmore House, 269 NLRB 1176
(1984), enfd. sub nom. Hotel Employees Local 11 v.
6 Standard Products Co., 281 NLRB 141, 151 (1986), modified on
other grounds 125 LRRM 3246 (4th Cir. 1987) (no violation where
employer had legitimate business reason for presence at site of union
meeting).
7 Compare Dayton Hudson Corp., 316 NLRB 85, 85–86 (1995),
where the Board reversed the judge and found that the employer en-
gaged in unlawful surveillance based on evidence that a group of man-
agers had followed the employees to the restaurant.
KING DAVID CENTER 1143
NLRB, 760 F.2d 1006 (9th Cir. 1985); accord: Santa
Rosa Blueprint Service, 288 NLRB 762 (1988).
3. Jean-Baptiste’s alleged assignment to more onerous
working conditions and alleged constructive suspension
Quetellie Jean-Baptiste has worked for the Joint Em-
ployer Respondents as a certified nurse assistant since
March 1992. She signed a union card and began wearing
a union button on her uniform about 1 month before the
August 5 election. About 2 weeks before the election,
Jean-Baptiste’s immediate supervisor, Yves Waterman,
told her that Quality Assurance Director Megill had a list
of names, that Megill knew who would be voting for the
Union, and that those who voted for the Union “will be
fired.”
After the election, on August 11, Megill issued Quet-
telie Jean-Baptiste a written warning for speaking Creole
in the kitchen the previous day.8 Jean-Baptiste claimed
that she had been on break when this incident had oc-
curred and refused to sign the form. Megill replied that
she did not care and that the Joint Employer Respondents
would terminate Jean-Baptiste if she received another
written warning. Later that same day, the Joint Em-
ployer Respondents transferred Jean-Baptiste from the
unit where she had worked for over 2 years to the acute
care section. Jean-Baptiste testified that she was unfa-
miliar with the patients in the acute care section and that,
already upset about the “write up” she had received, she
developed a “bad headache” after she began working in
the new area.
Thereafter, while working on August 14, Jean-Baptiste
had an “anxiety” attack in which she hyperventilated, fell
to the floor, and rolled around. Jean-Baptiste’s husband
was called and he took her to the hospital, where a physi-
cian treated and released her. Consistent with the Joint
Employer Respondents’ usual procedure, Director of
Nursing Betty Whelan required Jean-Baptiste to obtain a
physician’s statement regarding her physical and mental
health before returning to work. It took Jean-Baptiste 7
days to produce this statement and therefore she missed a
week’s work before returning to her job. The Joint Em-
ployer Respondents did not pay Jean-Baptiste for the
days she was absent.
The judge found, inter alia, that the Joint Employer
Respondents violated Section 8(a)(1) of the Act by
Waterman’s conduct in threatening Jean-Baptiste with
discharge and by creating the impression of surveillance
in referring to a list of names and stating Megill knew
who would be voting for the Union, and violated Section
8(a)(3) and (1) of the Act by issuing Jean-Baptiste a writ-
ten warning for speaking Creole and by imposing more
onerous working conditions in transferring her to the

8 We adopt the judge’s finding that the Joint Employer Respondents’
rule prohibiting employees from speaking Creole was overly broad and
that the Joint Employer Respondents disparately enforced that rule in
any event.
acute care unit. Because he further found that the Joint
Employer Respondents’ transfer of Jean-Baptiste and its
issuance of an unjustified written warning “brought
about” Jean-Baptiste’s anxiety attack, the judge con-
cluded that the 7 days of work that Jean-Baptiste missed
was “an unlawful constructive suspension,” further vio-
lating Section 8(a)(3) and (1) of the Act, and awarded her
backpay for that period.
Although we agree with the judge that the Joint Em-
ployer Respondents committed violations of the Act in
threatening Jean-Baptiste with discharge, creating an
impression of surveillance, and issuing a written warning
to her, we do not agree that the Joint Employer Respon-
dents unlawfully imposed more onerous working condi-
tions on Jean-Baptiste by transferring her to the acute
care section in its facility. Critically, there is no showing
that the work performed by certified nurse assistants in
this section was more burdensome, undesirable, or un-
pleasant than the duties that Jean-Baptiste had performed
as a certified nurse assistant in another area of the facility
for the previous 2 years. The only evidence on the issue
is that Jean-Baptiste was “unfamiliar” with the patients in
the acute care section.
We also disagree with the judge’s finding that Jean-
Baptiste was “constructively suspended” for 7 days. The
judge implicitly analogized this alleged violation to a
constructive discharge. The Joint Employer Respon-
dents’ actions, however, do not rise to the level required
under that standard.9 The Board has held that, to estab-
lish constructive discharge, the General Counsel must
prove that “the employer imposed intolerable work con-
ditions,” as well as that the change in conditions was
attributable to union activity. Groves Truck & Trailer,
281 NLRB 1194, 1195 (1986). (Emphasis added.) In
Crystal Princeton Refining Co., 222 NLRB 1068 (1976),
the Board emphasized that, “the burdens imposed upon
the employee must cause, and be intended to cause, a
change in working conditions so difficult or unpleasant,
as to force him to resign.” (Emphasis added.) Further the
Board has explained that a constructive discharge must
be a reasonably foreseeable outcome of the institution of
intolerable working conditions. Aero Industries, 314
NLRB 741, 742 (1994). The courts have similarly so
held, as stated in NLRB v. Grand Canyon Mining, 116
F.3d 1039, 1049 (4th Cir. 1997), enfg. 318 NLRB 748
(1995), that:

In order to prove constructive discharge, the General
Counsel must establish: (1) that the employer made the
employee’s working conditions intolerable; (2) that the
employer intentionally made the conditions intolerable;
and (3) that the employer did so because of the em-
9 We know of no case in which the Board has found a violation of
the Act on a “constructive suspension” theory. However, we need not
decide whether such a violation could ever be found, since the facts in
this case do not support the General Counsel’s theory in any event.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1144
ployee’s union activities. See NLRB v. Bestway Truck-
ing, Inc., 22 F.3d 177, 181 [22 LRRM 2206] (7th Cir.
1994); J.P. Stevens & Co. v. NLRB, 461 F.2d 490, 494
[80 LRRM 2609] (4th Cir. 1972).

Applied to the present constructive suspension claim, the
test would be whether conditions were forseeably so intoler-
able as to provoke the anxiety attack that resulted in Jean–
Baptiste’s loss of 1week’s work.
Although Jean-Baptiste’s reassignment to the acute
care section may have been attributable to her union ac-
tivity as the judge found, there is no evidence that the
working conditions there were either more onerous or
“intolerable,” a necessary predicate to establishing con-
structive action, or even that the Joint Employer Respon-
dents expected Jean-Baptiste to perform more difficult
assignments than other certified nurse assistants assigned
to this area.10 Indeed, Jean-Baptiste went on working for
the Joint Employer Respondents in the acute care section
when she returned after her medical absence. Moreover,
the General Counsel offers no evidence that the Joint
Employer Respondents intended to cause the “anxiety”
attack suffered by Jean-Baptiste or that it was a reasona-
bly foreseeable consequence of the change of assign-
ment. Accordingly, the complaint allegation relating to
constructive suspension, shall be dismissed.
4. Changes in CNA staffing levels and working hours
The complaint alleges that the Joint Employer Re-
spondents unlawfully reduced the staffing levels of
CNAs in retaliation for a union organizing drive among
CNAs and dietary employees during the summer of
1994. The complaint also alleges that the Joint Employer
Respondents reduced the work hours of CNA Marie Pi-
erre Louis in retaliation for her union activity. Although
the parties presented evidence on these issues, the judge
did not make any credibility resolutions or rule on these
specific allegations.11
Because the issues involve factual determinations
about Joint Employer Respondents’ staffing require-
ments during that time and those determinations may
require credibility resolutions, we shall sever these alle-
gations and remand them to the judge for his findings
and conclusions on these issues.12

10 See Purolator Products, 270 NLRB 694, 694–695 (1984), enfd.
121 LRRM 2120 (4th Cir. 1985) (unpublished), in which the Board
reversed a judge and found that the employer had not violated Sec.
8(a)(3) and (1) of the Act by assigning employee Raeford to different
jobs in the absence of evidence that they were “more onerous” to per-
form.
11 We find that the judge’s Conclusion of Law 10(a), which refers to
the Joint Employer Respondents’ increasing the employees’ work load,
does not clearly address the complaint allegations noted above.
12 The Joint Employer Respondents have also excepted to the judge’s
finding that they violated Sec. 8(a)(3) and (1) when they discharged
Luders Estril for allegedly failing to call in when he was going to be
absent. In his decision, the judge cited testimony and the arguments of
the parties, but failed to reconcile the conflicts in the testimony or pro-
vide sufficient rationale to support his conclusion. Accordingly, we
ORDER
The National Labor Relations Board orders that
A. Respondent PVM I Associates, Inc. d/b/a King
David Center and U.S. Management, Inc./I.I.M.S., West
Palm Beach, Florida, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against its
employees because of their membership in, or activities
on behalf of, 1115 Nursing Home Hospital and Service
Employees Union-Florida or any other union, or because
they engage in other protected concerted activities.
(b) Coercively interrogating employees as to their own
or other employees’ activities on behalf of the Union.
(c) Creating among its employees the impression that
their union activities are under surveillance.
(d) Threatening its employees with discharge, suspen-
sion, or other unspecified reprisals because they engage
in activities on behalf of the Union.
(e) Promulgating and enforcing a rule prohibiting its
employees from conversing in their native Creole lan-
guage except on break and in break areas.
(f) Calling its employees “troublemakers” and threat-
ening them with disciplinary warnings because they en-
gage in activities on behalf of the Union.
(g) Interfering with its employees attempts to engage
in union activity by more closely monitoring their work
performance.
(h) Threatening to, and changing, work schedules be-
cause employees engaging in union activity.
(i) Rescinding previously granted schedule accommo-
dations because of its employees union activities.
(j) Attempting to remove union insignia from its em-
ployee clothing.
(k) Issuing disciplinary warnings to its employees be-
cause they engaged in activities on behalf of the Un-
ion.
(l) Permitting International Union of Industrial Service
Transport and Health Employees District 6 access to its
premises for purpose of campaigning while denying
1115 access to its premises for same reason.
(m) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Jean Aliza, Lude Duval, Marie Larose, Ernest Duval,
Marie Pierre Louis, Michelle Williams, and Carline Dor-
sica full reinstatement to their former jobs or if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority and any other rights
and privileges previously enjoyed.

shall remand the matter to the judge for the sole purpose that he eluci-
date the basis for his finding that Estril was discriminatorily discharged.
KING DAVID CENTER 1145
(b) Make Jean Aliza, Lude Duval, Marie Larose,
Ernest Duval, Marie Pierre Louis, Michelle Williams,
and Carline Dorsica whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy sec-
tion of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
suspensions or discipline, and within 3 days thereafter
notify the employees in writing that this has been done
and that the discharges, suspensions and discipline will
not be used against them in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
copies of the attached notice marked “Appendix A.”13
Copies of the notice, on forms provided by the Regional
Director for Region 12, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent 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 the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate 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 the date of the unfair labor practices.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
B. Respondent Healthcare Services Group, Inc., West
Palm Beach, Florida, its officers, agents, successors and
assigns, shall
1. Cease and desist from
(a) Refusing and failing to bargain with 1115 Nursing
Home Hospital and Service Employees Union-Florida as
the exclusive representative of the employees in an ap-
propriate unit pursuant to Section 9(a) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

13 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(a) Recognize and, on request, bargain with 1115
Nursing Home Hospital and Service Employees Union-
Florida as the exclusive bargaining representative of the
employees in the appropriate unit and if an agreement is
reached as to wages, hours, and other terms and condi-
tions of employment embody the understanding in a
signed written document. The appropriate unit is:

All full-time and regular part-time housekeeping and
laundry employees employed by Respondent at King
David Center in West Palm Beach, Florida; excluding
all other employees, guards and supervisors as defined
in the Act.

(b) Within 14 days after service by the Region, post
copies of the attached notice marked “Appendix B.”14
Copies of the notice, on forms provided by the Regional
Director for Region 12, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent 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 Healthcare to ensure that the notices are
not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings,
the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent
shall duplicate and mail, at its won expense, a copy of
the notice to all current and former employees employed
by the Respondent at any time since the date of the unfair
labor practices.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that Case 12–CA–16454 be
severed and remanded to the judge to elaborate on his
rationale for finding that the Respondent violated Section
8(a)(3) and (1) when it discharged Luders Esteril and that
Case 12–CA–16786 be severed and remanded to the
judge for findings of fact and conclusions of law on the
issue of whether the Respondent reduced the staffing
levels of certified nurse assistants in general, and Marie
Pierre Louis in particular, in retaliation for their support
for the Union. The administrative law judge shall prepare
a Supplemental Decision containing such credibility
resolutions, findings, conclusions, and recommendations
as deemed necessary, consistent with this remand Order.
Following service on the parties, the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
apply.
14 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1146

MEMBER FOX, dissenting in part.
I agree with my colleagues with respect to their adop-
tion of most of the violations of Section 8(a)(1), (3), and
(5) found by the judge.1 Contrary to the majority, how-
ever, I would also adopt the judge’s findings that the
Joint Employer Respondents violated Section 8(a)(1) by
surveilling a union organizing meeting at a local Pizza
Hut restaurant and Section 8(a)(3) and (1) by transferring
Quettelie Jean-Baptiste to a more onerous work assign-
ment and by constructively suspending her.
The majority notes that Quality Assurance Director
Megill and Supervisor Caprisecco had a legitimate rea-
son for being at the restaurant on their lunchtime and that
the fact that a union meeting happened to take place at
the same time was sheer coincidence. I would agree if
the evidence stopped there. However, as the judge found,
having chanced up on the union meeting, the two man-
agement officials prolonged their lunch well beyond that
which they normally took. (Caprisecco testified that she
“very rarely took lunch,” let alone a lunch that lasted
nearly 2 hours.) I therefore would find that Caprisecco
and Megill extended their time beyond the normal
lunchbreak for the purpose of surveilling the union meet-
ing.
The majority disagrees that the Joint Employer Re-
spondents’ transfer of Quetellie Jean-Baptiste to the
acute care wing of the Joint Employer Respondents’ fa-
cility violated Section 8(a)(3) and (1) of the Act or that
she was constructively suspended for 7 days. In so do-
ing, however, the majority fails to view these actions in
the context of the Joint Employer Respondents’ other
unfair labor practices against her, which they find. Thus,
the majority agrees that the Joint Employer Respondents
threatened Jean-Baptiste with discharge, created the im-
pression of surveillance by telling her that the Joint Em-
ployer Respondents knew who would be voting for the
Union and that they would get in trouble, and discrimi-
nated against her by issuing her a written warning for
speaking Creole. On the very same day as the unjustified
warning, the Joint Employer Respondents transferred an
already upset Jean-Baptiste to a job with which she was
unfamiliar and followed behind checking her work 5
minutes after she finished with each patient.2 Under
these circumstances the judge found, and I agree, that the
transfer constituted an imposition of more onerous work-
ing conditions against Jean-Baptiste in retaliation for her
support of the Union. Moreover, when the Joint Em-
ployer Respondents’ actions that day provoked Jean-
Baptiste to suffer an anxiety attack, its insistence that she
obtain a doctors release before she could return to work

1 In view of the fact that it is cumulative, I find it unnecessary to de-
cide whether Caprisecco’s questioning Jean Aliza about his union but-
ton constituted unlawful interrogation.
2 Prior to her transfer, her supervisor would check on her work once
or twice per shift.
was tantamount to suspending her for an event which it
had provoked and which was beyond her control. I
would find that this was an effort to further punish her
for her support for the Union. Accordingly, I dissent
from the majority’s reversal of the administrative law
judge’s finding on this issue.
APPENDIX A
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 vio-
lated the National Labor Relations Act and has ordered 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 coercively interrogate our employees as
to their own or other employees’ union activities or sup-
port.
WE WILL NOT create the impression among our em-
ployees that their union activities are under surveillance.
WE WILL NOT threaten our employees with discharge,
suspension, or other unspecified reprisals because they
engage in activities on behalf of the Union.
WE WILL NOT promulgate or enforce a rule prohibiting
our employees from conversing in their native language
in order to restrict their union activities.
WE WILL NOT call our employees “troublemakers” and
threaten them with discipline because they demonstrate
support for the Union.
WE WILL NOT interfere with our employees’ attempts to
engage in union activity by more closely monitoring their
work activities.
WE WILL NOT threaten to, and change, our employees
work schedules because they engage in union activities.
WE WILL NOT rescind previously granted schedule ac-
commodation because our employees engage in union
activities.
WE WILL NOT attempt to remove union insignia from
our employees’ clothing.
WE WILL NOT issue disciplinary warnings to our em-
ployees because they engage in activities on behalf of,
the Union.
WE WILL NOT discharge or suspend our employees be-
cause of their membership in, or activities on behalf of
1115 Nursing Home, Hospital and Service Employees
Union–Florida or any other union because they engage in
activities on behalf of the union.
KING DAVID CENTER 1147
WE WILL NOT permit an intervening union access to our
facility for union campaign purposes while denying 1115
Nursing Home, Hospital and Service Employees Union–
Florida access to our facility for that purpose.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Jean Aliza, Lude Duval, Marie Larose,
Ernest Duval, Marie Pierre Louis, Michelle Williams,
and Carline Dorisco full reinstatement to their former
jobs, or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
and any other rights and privileges previously enjoyed.
WE WILL make Jean Aliza, Lude Duval, Marie Larose,
Ernest Duval, Marie Pierre Louis, Michelle Williams,
and Carline Dorisco whole for any loss of earnings and
other benefits suffered as a result of our unlawful con-
duct, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove form our files any reference to the unlaw-
ful conduct against these employees, and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that this unlawful conduct will not be
used against them in any way.
PVM I ASSOCIATES, INC. D/B/A KING DAVID
CENTER AND U.S. MANAGEMENT, INC./I.I..M.S.

APPENDIX B
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 vio-
lated the National Labor Relations Act and has ordered 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 refuse to recognize and bargain with
1115 Nursing Home Hospital & Service Employees Un-
ion-Florida on request as the duly certified collective-
bargaining representative of our employees in the appro-
priate unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed by Section 7 of the Act.
WE WILL recognize, and on request bargain with 1115
Nursing Home Hospital & Service Employees Union-
Florida as the exclusive bargaining representative of our
employees in the appropriate unit and if an agreement is
reached as to wages, hours, and other terms and condi-
tions of employment, embody the understanding in a
signal written document. The appropriate unit is:

All full-time and regular part-time housekeeping and
laundry employees employed at King David Center in
West Palm Beach, Florida, excluding all other employ-
ees, guards and supervisors as defined in the Act.

HEALTHCARE SERVICES GROUP, INC.
George S. Aude, Esq., for the General Counsel.
Elliot J. Mandel, Esq. (Kaufman, Naness, Schneider & Rosen-
sweig, P.C.), of Jericho, New York, for the Employer, King
David Center.
William Wolfe, of Deerfield Beach, Florida, for the Employer,
Healthcare Services Group, Inc.
Howard Susskind, Esq. (Susskind & Sugarman), of Miami,
Florida, for the Union. (Not Present.)
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge. These cases,
consolidated for trial, was tried before me at West Palm Beach,
Florida, on 15 trial days between February 6 and March 31,
1995, based on a third order consolidating cases, amended con-
solidated complaint, and notice of hearing, the operative com-
plaint herein, issued by the Regional Director for Region 12
(Tampa, Florida) of the National Labor Relations Board (the
Board). Pursuant to the National Labor Relations Act
amended, 29 U.S.C. 151 et seq. (the Act). The complaint al-
leges that PVM I Associates, Inc., d/b/a King David Center and
U.S. Management, Inc./I.I.M.S., Joint Employers (Respondent
or King David), engaged in numerous acts in violation of Sec-
tion 8(a)(1), (2), and (3) of the Act. The complaint further al-
leges that Healthcare Services Group, Inc. (Healthcare or Re-
spondent Healthcare) committed acts in violation of Section
8(a)(1), (3), and (5) of the Act.
All charges and amended charges herein were filed by 1115
Nursing Home Hospital and Service Employees Union-Florida,
(the Union or 1115). The charges in 12–CA–16380 were filed
on July 15, 1994,1 and in 12–CA–16762 on November 25,
1994, alleging conduct in violation of Section 8(a)(1), (3), and
(5) by Healthcare. The charges were timely served. The re-
maining 10 charges allege conduct in violation of Section
8(a)(1), (2) and (3) of the Act by King David. The charge in
Case 12–CA–16380–2 was filed on July 15; 12–CA–16425 was
filed on August 1 and amended September 16; 12–CA–16427
was filed on August 1 and first amended August 18, a second
amended charge filed on September 16 and a third amended
charge on December 8; 12–CA–16454 filed on August 16 and
amended on September 16; 12–CA–16523 filed on August 31;
12–CA–16786 filed on December 5 and amended on January
26, 1995; 12–CA–16809 filed on December 14 and 12–CA–
16839 was filed on December 30. All charges and amended
charges were timely served on King David.

1 All dates herein are 1994 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1148
The complaint alleges a plethora of unlawful conduct by su-
pervisors and agents of King David which violate Section
8(a)(1) of the Act including surveillance and creating the im-
pression of surveillance of its employees union activities; coer-
cive interrogation; threats to discharge, issuing disciplinary
warnings and change of work schedules as well as unspecified
reprisals because of its employees’ union activities and essen-
tially every other 8(a)(1) violation ever alleged in any com-
plaint. The complaint alleges that King David unlawfully dis-
charged 12 employees and suspended 2 other employees for
several days in violation of Section 8(a)(3) and (1). Addition-
ally it alleges the issuance of numerous verbal and written
warnings also in violation of Section 8(a)(3) and (1). The com-
plaint also alleges that King David violated Section 8(a)(2) and
(1) of the Act by allowing International Union of Industrial
Service Transport and Health Employees District 6 (District 6),
to come on its premises to campaign while denying that privi-
lege to 1115.
As to Healthcare the complaint alleges that King David
caused it to discharge one employee in violation of Section
8(a)(3) and (1) of the Act and in violation of Section 8(a)(5)
and (1) it refused to bargain with the Union after the Union’s
certification as the exclusive collective-bargaining representa-
tive of its employees in an appropriate unit. Additionally
Healthcare’s only alleged supervisor, Tom Rathe, is alleged to
have threatened employees with unspecified reprisals.
Both King David and Healthcare admit all procedural allega-
tions of the complaint but deny that they have violated the Act
as alleged therein.
I find that the General Counsel has sustained his burden of
establishing by a preponderance of the credible evidence that
the Respondents have violated the Act in a substantial number
of the allegations and has failed to do so in others.
All parties have been afforded full opportunity to appear, in-
troduce evidence, to call witnesses, examine and cross-examine
witnesses, to introduce all relevant documentary evidence and
to file posttrial briefs. Briefs were filed by the General Counsel
and King David and have been carefully considered. Based
upon the entire record including my observation of the de-
meanor of the witnesses testifying under oath.2 I make the
following

2 Essentially all of the General Counsel’s witnesses were
Haitian and spoke Creole as their native language. Most of
these witnesses, with the exception of King David’s, supervi-
sor, Yves Waterman, none of the supervisory personnel spoke
Creole. However when a witness was testifying with respect to
statements made to them in English, I required that they testify
in English to demonstrate that they could understand the lan-
guage to that extent—additionally. The facts found are based
on the record as a whole and my observation of the witnesses.
The credibility resolutions, here, have been derived from a
review of the entire testimonial record and exhibits with due
regard for the logic of probability. The demeanor of the wit-
nesses and the teachings of NLRB v. Walton Mfg. Co., 369 U.S.
404 (1962). As to those witnesses testifying in contradiction to
the findings here, their testimony has been discredited, either as
having been in conflict with the testimony of credible witnesses
or because it was in and of itself incredulous and unworthy of
belief. All testimony has been reviewed and weighed in light of
the entire record. No testimony has been predetermined.
FINDINGS OF FACT
I. JURISDICTION
At all material times, PVM I Associates, Inc. d/b/a King
David Center (King David Center), a Florida corporation, with
an office and place of business located at West Palm Beach,
Florida, where it is engaged in the business of operating a
skilled nursing facility (King David).
During the past 12 months, King David, in conducting this
business operation derived gross revenues in excess of
$250,000 and purchased and received at its facility goods val-
ued in excess of $50,000 directly from points located outside
the State of Florida.
At all material times, Kind David has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
At all material times, U.S. Management, Inc./l.l.M.S. (U.S.
Management), a New York corporation, with an office and
place of business located in Brooklyn, New York, has been
engaged in the business of supplying personnel to various em-
ployers, including Kind David Center.
At all material times, King David Center and U.S. Manage-
ment have been parties to a contract which provides that U.S.
Management is the agent for King David Center in connection
with supplying King David Center with nursing department
personnel at King David Center’s West Palm Beach, Florida
facility.
At all material times, U.S. Management has possessed con-
trol over the labor relations policies of King David Center and
administered a common labor policy with King David Center
for certain employees of King David Center at its West Palm
Beach, Florida facility.
At all material times, U.S. Management and King David
Center have been joint employers of certain employees of King
David Center at its West Palm Beach, Florida facility.
At all material times, Respondent Healthcare, a Pennsylvania
corporation, with an office and place of business located in
Deerfield Beach, Florida, has been engaged in the business of
providing laundry and housekeeping services to various nursing
facilities all over the United States, including King David Cen-
ter, in West Palm Beach, Florida (Respondent Healthcare’s
facility).
During the past 12 months, Respondent Healthcare, in con-
ducting its business operations derived gross revenues in excess
of $250,000 and purchased and received at its facility goods
valued in excess of $50,000 directly from points located outside
the State of Florida.
At all material times, Respondent Healthcare has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits and I find that
1115 Nursing Home Hospital and Service Employees Union-
Florida is a labor organization within the meaning of Section
2(5) of the Act.
I also find that International Union of Industrial Service
transport and Health Employees, District 6 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
KING DAVID CENTER 1149
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and Background
King David Center is a skilled nursing facility located at
West Palm Beach, Florida. It is operated by PVM I Associates,
Inc. which holds the Florida state license to operate the facility.
PVM is owned by TNS Nursing Homes, Inc., which in turn is
owned by Continental Health Affiliate, Inc. U.S. Management,
pursuant to a contractual commitment with PVM I, provides
them with personnel, including CNAs3 and dietary employees
and PVM I is obligated to pay U.S. Management a certain fee
for these employees. Both PVM I Associates, Inc. d/b/a King
David Center and U.S. Management/I.I.M.S.D. were found by
the Acting Regional Director for Region 12 to be a joint em-
ployer. The Board denied review of this finding. Healthcare is
a corporation engaged in the business of providing housekeep-
ing and laundry services at various Healthcare facilities, includ-
ing the King David facility. Healthcare and King David Center
operate pursuant to a contractual relationship which can be
terminated without cause by King David Center.
In July 1993, the Union, 1115, began an organizing drive
among the employees at King David and Healthcare under the
direction of organizer Marie Jean Phillippe. The employee
organizing committee at King David consisted of Ernest Duval,
his wife, Lude, Pierre Exile, Carline Dorisco, and Michelle
Williams. The committee at Healthcare appears to be Jean
Damond and an employee, Solomon. It appears these commit-
tees obtained some authorization cards from other employees
but it was not until December 1993 and January 1994 that un-
ion meetings were held with the employees and union lapel
buttons were distributed to the employees of both King David
and Healthcare which were openly worn by many employees
while at work.
On January 25, 1115 filed a petition in Case 12–RC–7692
for a unit of employees at King David and on January 28 filed a
petition in Case 12–RC–7695 for a unit at Healthcare. In late
February the cases were consolidated for hearing to determine,
inter alia, whether a single unit of King David and Healthcare
employees would be appropriate or whether they constituted
separate units. At this hearing a representative of District 6
appeared as a surprise intervenor and on the bases of two au-
thorization cards and was permitted to intervene in the King
David unit only.
On June 17, the Acting Regional Director for Region 12 is-
sued his Decision and Direction of Election finding separate
units to be appropriate. The unit at King David is:

All full-time and regular part-time nursing department CNAs
and dietary employees employed by PVM I Associates, Inc.,
d/b/a King David Center and U.S. Management/I.I.M.S., Joint
Employers, at the King David Center located in West Palm
Beach, Florida; excluding all other employees, including
LPN’s, RNs, care plan CNAs, medical records CNAs, ward
clerks, central supply aides, dietary technicians, maintenance
employees, activities aides, restorative therapy aides, respira-
tory therapists, nursing administrative secretaries, reception-
ists, admissions clerks, physical therapy aides, physical ther-
apy assistants, guards and supervisors as defined in the Act.

The unit found appropriate at Healthcare is:

3 Certified nursing assistants.
All full-time and regular part-time housekeeping and laundry
employees employed by Healthcare Services Group, Inc., at
the King David Center located in West Palm Beach, Florida;
excluding all other employees, guards and supervisors as de-
fined in the Act.

An election was conducted on August 5, in both units and
1115 received a majority of votes cast in both units. Objection
to the election at King David were filed by the Employer and
District 6.4
Objections to the election was also filed by Healthcare but
were dismissed by the Regional Director and on September 12,
and 1115 was certified in the above described unit.
The General Counsel argues that from the time Respondent
learned of its employees interest in the Union, which he sug-
gests was almost immediately, i.e., in July 1993, it entered upon
a course of harassment and discrimination designed to dissuade
its employees from obtaining union representation. This, the
General Counsel asserts, Respondent achieved by more closely
scrutinizing employees work; issuing counselings or warnings
to its employees for alleged deficiencies in their work perform-
ance for things it had not previously done and implementing
schedule changes and other methods of harassment.
The Respondent contends that any changes in its scheduling
or other work rules it may have made were necessitated solely
by business and efficiency and was not motivated by the union
activity of its employees. It further argues that the discharges;
suspensions and other adverse actions taken against any em-
ployee would have been taken without any union activities and
thus under the Wright Line5 doctrine it has established by a
preponderance of evidence that even if the General Counsel
made a prima facie case that it has met its burden of showing
that the same action would have been taken absent union activ-
ity.
In its opening statement at trial and in its posttrial brief Re-
spondent strenuously argues that due to the language barrier
between supervision and the employees most of witnesses pre-
sented by the General Counsel should not be credited. As
noted elsewhere, the testimony was that 95 percent of the unit
employees were Haitian and Creole was their native language.
Some spoke and understood the English language to a very
limited extent. Yves Waterman was the only Haitian supervi-
sor and could speak and understand Creole fluently and English
extremely well. None of the other supervisors including Direc-
tor of Nursing Betty Whelan and Quality Assurance Control
Nurse Lisa Megill, the two principle supervisors here involved,
spoke or understood Creole, and apparently made no effort to
learn. It is apparent, however, that the supervisors and employ-
ees communicated well enough to operate the business.
In this regard the Respondent used the example of the possi-
bility that an employee who was told they could be replaced in
the event of a strike might construe the word “replaced” as
“fired.”
4 These objections were consolidated for hearing with the unfair la-
bor practices herein. In order to expedite the question concerning rep-
resentation raised by the objections, on July 26, 1995, I issued an order
severing the objections from the unfair labor practices case and on
August 3, 1995, issued my decision recommending that the Union be
certified. On November 1, 1995, the Board adopted my decision and
issued a certification of representation in the unit described above.
5 Wright Line, 251 NLRB 1083 (1980).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1150
It is granted the language barrier makes this case somewhat
more difficult. However, I find that most of the employees
understood enough of the English language to convey truthfully
what was said to them.
The Respondent issued to each of its employees a detailed
“Employee Handbook” upon their commencing work at King
David. (G.C. Exh 10.) This pamphlet set forth in very direct
language all elements of employee conduct and patient care. It
also detailed employee classification and responsibilities as
well as its absentee policies and “call in” rules. It further
spelled out disciplinary procedures and causes for discharge or
other discipline.
From the totality of the record testimony of both the General
Counsel’s and Respondents’ witnesses it is abundantly clear
that prior to the onset of union activity the strict provisions of
these rules were seldom enforced and it appears that manage-
ment and the employees viewed the handbook more as a loose
guideline for employees activities and conduct and not a strict,
no exceptions document. It is also evident that management
made many exceptions to the rules set forth here by permitting
employees exceptional absences without reprimand or disci-
pline as well as accommodating employees by making special
shift arrangements for some reasons and permitting them to
vary their shift and hours. Such instances will be demonstrated
below in discussions of the facts of many of the employees
discharges. In other words management worked with employ-
ees to accommodate their individual needs i.e., attending
school, giving weekends off to attend church activities and
other reasons.
However, as is frequently the case, upon the advent of seri-
ous union activity the Respondent dusted off its handbook and
began to utilize it to harass and discriminate against its em-
ployee who supported the Union. I believe these observations
will be amply demonstrated in the discussions below.
B. Refusal to Bargain by Healthcare
I shall address this allegation first inasmuch or there is no
material dispute as to the facts. This issue arises from the com-
plaint in Case 12–CA–16762 alleging that since about Novem-
ber 10, 1115 requested Healthcare to meet and bargain with it
as the certified collective-bargaining representative of an ap-
propriate unit of employees and that since that date Healthcare
failed and refused to do so unless and until the representation
question of certain unit of employees of King David, not in-
cluded in the unit, was resolved, asserting that it was futile to
engage in collective bargaining at that time.
After the Unions certification in the above-described Health-
care unit on September 12, either the Unions’ attorney, at that
time Alan Elster, or its Regional Director Enrique Santiago,
requested Respondent to meet with it and bargain. The record
is unclear as to how on October 24, a meeting was arranged.
Nevertheless on October 24, at about 9 a.m. Healthcare’s Re-
gional Manager, William Wolfe, and its marketing manager,
Ralph McClurg, met with Santiago and 1115 Business Repre-
sentative Maury Tanenbaum for negotiations. Wolfe is the
only witness testifying with respect to this one meeting. The
Union did not submit a proposal but Tanenbaum quoted wage
rates he wanted and vacations and holiday pay. Wolfe ob-
served that he thought that was way out of line. Tanenbaum
asked Wolfe if he was ready to sign a contract. Wolfe said he
was not and that he was inexperienced in negotiations and
asked that the Union send a written proposal. The meeting
lasted about 1 hour.
On October 31, the Union sent its written proposal to Wolfe
asking for future negotiating dates. Wolfe testified that he did
not respond because the written contract contained the same
figure as those discussed at the meeting.
On November 10, Alan Elster, attorney for the Union, tele-
phoned Wolfe regarding dates for negotiations. It is not denied
that Wolfe told Elster that Healthcare could not enter into a
contract with the Union until the other unit, referring to the
King David unit, had been certified.6 Wolfe told Elster that
King David would find some reason to terminate Healthcare if
they became union.7 As noted above the results of the election
in the King David unit, which the Union won, was pending
resolution of objections to the election. Wolfe refered Elster to
the president of Healthcare, Dan McCartney. Elster contacted
McCartney who told him that Healthcare could not give the
Union a contract at King David while the other unit was unde-
cided because if they did so King David would terminate their
contract. Neither Wolfe nor McCartney would give Elster
dates on which it would meet and they did not thereafter con-
tact him. Finally 1115 Florida Director Santiago directed Elster
to file charges against King David alleging their refusal to bar-
gain. This Elster did and the charge in Case 12–CA–16762 was
docketed on November 25.
On receipt of the charge by Wolfe, he called Dan McCartney
and did nothing else. About January 19, 1995, the investigating
agent for Region 12 sent Wolfe a letter advising that he was
investigating the case and asked for his cooperation. Thereaf-
ter, on January 23, Wolfe wrote a letter to Region 12 Regional
Director with a copy to Elster, stating that Healthcare would
bargain with the Union and gave several dates. Elster, who at
that time no longer represented the Union, testified that he
merely placed the letter in a file and did not forward it to 1115.
Wolfe testified that he was never asked to give a statement to
the Board, but thereafter a complaint issued. Wolfe made no
attempt to contact Santiago or Tannenbaum who had been the
union representatives at the single meetings the parties had.
Analysis and findings
It is evident on the undisputed facts here that Healthcare had
no intention of entering into a collective-bargaining agreement
with the Union as long as the election in the King David unit
was unresolved. Regardless of the reason an employer might
have for refusing to bargain with the duly certified representa-
tive of its employees, here the fear of losing their contract with
King David, it is well settled that such refusal violates Section
8(a)(5) and (1) of the Act. Moreover, in this case even had
Respondent met with the Union for negotiations it could not
have bargained in good faith as long as it had no intention of
executing a contract.
The Respondent did not cure the violation by agreeing to
meet after refusing to do so for more than 2 months and only
after unfair labor practice charges were filed against it. In SKS
Die Casting, 294 NLRB 372 (1989), the Board held the Em-
ployers refusal to negotiate violated Section 8(a)(5) and (1) not
withstanding that the refusal lasted only 9 days and the Em-

6 At the representation hearing Healthcare had taken the position that
Healthcare’s laundry and housekeeping employees should be in the
same unit with the King David employees, insisting that was the only
appropriate unit.
7 The contract could be terminated without cause on 30 days notice.
KING DAVID CENTER 1151
ployers offer to bargain was in response to unfair labor practice
charges.
Accordingly, Respondent Healthcare violated Section 8(a)(5)
and (1) of the Act.
C. King David
With the numerous 8(a)(1) and (3) allegations including al-
leged discrimanatorily issued warnings or counselings to its
employees it is difficult to assimilate and organize this deci-
sion. Some of the 8(a)(1) allegations and 8(a)(3) discrimina-
tory actions against its employees will be discussed separately
while others will be dealt with in an analysis of the discharges.
1. Surveillance
The complaint alleges that in mid-July Respondent by Qual-
ity Assurance Director Lisa Megill and Nurse Supervisor Ce-
lina Caprisecco engaged in surveillance of employee’ union
activity. Marie Jean Philippe testified that she and Enrique
Santiago and another union representative, Courtney Richards,
had scheduled a meeting with some of the employees at the
Pizza Hut located about a mile, or a 5-minute drive, from the
facility. Phillippe stated that she arrived about 1:30 p.m. and
joined the other two representatives and employee Michelle
Williams. Phillippe recognized Megill and Caprisecco as su-
pervisors from the facility and Williams identified them by
name. Megill and Caprisecco were seated about 5 feet away
and remained there until about 2:55 p.m. when they left. Other
employees later came in. It is admitted that the meeting was
not publicized. According to Phillippe, at one point Megill
made a statement to Caprisecco about the Haitian boat people
in a voice intended to be loud enough for them to hear. Phil-
lippe made a statement to Richards in an equally loud voice to
the effect that they were boat people and that was why the Un-
ion was going to get in.
According to Phillippe, Megill and Caprisecco did not order
food but sat there drinking something from cups and smoking
cigarettes for almost an hour and half. She stated they were not
served any food not did they take any with them.
Megill and Caprisecco testified that they seldom left the fa-
cility for lunch, Megill’s stating that she would probably not go
out for lunch more than once a month. They admit going to the
Pizza Hut after considering going to a McDonald’s which was
nearby, arriving about “onish.” They also admit to seeing the
union representatives and Williams and being seated close to
them. They state they were there about an hour and the server
had forgotten to turn in their orders. It is unclear whether they
were ever served food. They, of course, deny making a state-
ment about Haitian boat people and inasmuch as it is not al-
leged as a separate violation I need not make a credibility de-
termination.
The Respondent argues that the union meeting was not
widely known and its supervisors did not know of it and merely
went to lunch at one of the restaurants closest to the facility.
Megill, as quality assurance director, was apparently second
only to Director of Nursing Betty Whelan, her mother, in au-
thority over the nursing department. Both Megill and Capriccio
were on duty.
The record reveals that Phillippe met with King David em-
ployees frequently at the Pizza Hut, particularly the organizing
committee, at times usually coinciding with the 3 p.m. shift
change. I think it highly probable, but do not need to find, that
the supervisors had been made aware of this. I credit Phillippe,
whose testimony in this respect is not denied, that Megill and
Caprisecco were there when she arrived at 1:30 p.m. and they
remained until 2:55 p.m. Assuming that the supervisors were
not aware, prior to their arrival that the union representative
were meeting with the employees at that time, they became
aware of it at the time Phillippe arrived. Megill testified that
she recognized her as one of the union people who were fre-
quently around the facility, especially at shift change. I am
convinced that Megill and Caprisecco prolonged their stay at
the Pizza Hut to observe the meeting and the employees in
attendance there.
Accordingly a preponderance of the evidence persuades me
that they were engaged in surveillance of the employees union
activities.
2. The no Creole rule
In May, the Respondent instituted a rule prohibiting employ-
ees from speaking to each other in Creole at any place in the
facility except the break areas. The employees were advised of
this rule by the posting of the following notice.

ATTENTION NURSING STAFF
It is the Policy of King David Center that employees will not
speak in any other language than English in the presence of
residents or family members. It is considered verbal abuse.
Please see page 3 of our State Survey. It is permitted to speak
your native language in break areas.

Respondent contends that it had an “in service”8 with its em-
ployees when this rule was implemented. It also had at least
some employees sign a paper containing the rule indicating that
they had read it. (R. Exh. 12.)9
The Respondent asserts this rule was implemented following
an inspection by the Florida Department of Health, Health Care
Financing Administration. Betty Whelan testified that the in-
spectors heard the employees conversing in Creole with each
other in the dining room while the residents were having a
meal. She testified that the inspectors deemed this to violate
the residents dignity and labeled it “verbal abuse.” The facility
was given a deficiency for this and was forced to take steps to
correct it. (R. Exh. 59, 3.)
The General Counsel argues that although Respondent may
have been compelled to take some action in this respect the rule
promulgated was far too broad in that it prohibited the speaking
of Creole in the facility to only break areas and that Respondent
created the rule as a vehicle by which it could limit the employ-
ees ability to engage in union activity. Its clear that manage-
ment considered the union organizing activity to be Haitian
business.
Although this rule was promulgated in May it does not ap-
pear that anyone received a writeup until around the week of
the August 5 election at which time some known union adher-
ents were given written warnings all of whom are alleged
8(a)(3) discriminatees here. Ernest Duval, the most active un-
ion supporter was given a written warning although he testified
he was not speaking Creole but merely waived to a Haitian
housekeeping employee. Quettelie Jean-Baptiste received a
writeup for speaking Creole in the kitchen while she was on
break and the nearest patient was outside the kitchen in the

8 An “in service” is when a supervisor calls employees together and
explains a change in any procedure.
9 The record does not reflect just where in the facility break areas are
located, or that there is any particular location.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1152
lobby watching television. Caty Joseph received a writeup for
violation of the rule for speaking Creole near the nursing sta-
tion when no residents were present. Whelan stated that except
for the break area one never knew when a resident or patient
would walk in.
According to Betty Whelan about 95 percent of the CNAs
were Haitian and judging from some who were called as wit-
nesses many had very little ability to converse in English. The
CNAs were the primary care givers to the residents none of
whom spoke Creole. I find it difficult to understand how it
would be more verbally abusive to the residents for the em-
ployees to converse with each other in Creole than for the resi-
dents to not be able to communicate with their primary care
givers. However, that is not my judgment to make.
With respect to this rule, I find it interesting that Respon-
dents counsel asked Whelan whether she had asked the inspect-
ing authorities to cite the facility for this in order to implement
a rule that would certainly impair the employees union activi-
ties. She, of course, replied in the negative.
I find the rule as written to be overly broad in that it permits
employees to converse in Creole only in break areas. It might
have been written so that the employees could converse in Cre-
ole in any nonpatient area.
I find that the rule was disparately enforced against known
union adherents and they received disciplinary warnings be-
cause of this union activity.
The remaining 8(a)(1) allegations might better be disposed
of a discussion of the alleged 8(a)(3) discriminatees. I shall
consider these in the order in which there were discharged.
1. Jean Aliza, February 25
Jean Aliza, a CNA, worked the 7 a.m.–3 p.m. shift on the
first floor under the direct supervision of Celina Capresecco
and was discharged on February 25, making him the first of the
12 alleged discrimanitees to be terminated. Aliza had worked
at King David from 1987 to some time in 1990 when he was
injured and had to quit. He was rehired April 14, 1993. His
termination occurred about the time of the hearing in the
underlying representation case.
Aliza testified that his union activity consisted of signing an
1115 authorization card (G.C. Exh. 34), wearing an 1115 lapel
pin on his shirt or jacket while at work (G.C. Exh. 13) and he
attended at least two union meetings. He started wearing the
union pin in early January. He testified that about the first day
he wore the union pin Celina Caprisecco came into room 115
while he was bathing a patient and after making an inquiry
about the patient pointed a finger at the union pin and “asked
me what is this?“ He replied that it was a button whereupon
she pulled closer to him and he told her to read it. He stated
that Celina asked, “What the Union?” She then looked at him
as if she were mad and walked away.
Aliza testified that prior to this time he had a good relation-
ship with both Capreseco and Megill and when inspecting his
work they would sometimes say “great.” After that day their
attitude changed and they talked to him as if they didn’t like
him and would admonish him for things he had not done and
place blame on him for patients for whom he was not responsi-
ble. He stated that prior to this time Celina and Lisa made
rounds twice a shift but after this they started making rounds
every 2 hours. He stated that prior to this they normally stood
at the door and looked the room over to see if everything was
okay, but after this they came into the room and checked every-
thing, the closets, patients drawers, and more closely inspected
the bed and other things. This closer scrutiny of employees
work because of their union activity is alleged in the complaint
and is corroborated by several other employees.
On February 24, the day before Aliza was terminated he was
doing morning care on a patient in room 121, which means
bathing, making the bed, passing food trays, etc. when Celina
and Lisa came in and checked everything they told him they
found a piece of bread and part of a banana in the patient’s
drawer. They said nothing at that time but as he was passing
food trays around noon he was called to the office. Lisa and
Celina were in the office and Lisa told Aliza that she had found
enough to fire him because the patient’s drawer was not clean
enough. Aliza stated that it was early and he would have time
to clean it. Aliza was asked to step outside and a couple of
minutes later he was called back in and Lisa told him since it
was early they would give him a chance to clean the drawer.
According to Aliza he said thank you and went back and
cleaned the drawer. At shift’s end, 3 p.m. he clocked out and
went home.
When he returned for work at 7 a.m. on the February 25 and
while awaiting an assignment from the charge nurse, Celina
asked him to come into the office where she told him to clock
out because he had been fired the day before. He told Celina he
would not clock out since she was the one who fired him she
could clock him out. She advised him that if he desired he
could wait and talk to the director of nurses, Betty Whelan.
Aliza waited until about 9 a.m. when Whelan and her daugh-
ter, Lisa Megill, arrived. He followed them into the office and
Whelan asked what he wanted and he told her that Celina had
told him to clock out he was fired. Whelan told him that he had
been nasty to Celina and even to her. She told him he had been
rude to Celina when Celina asked him about the union button
and that he never stopped to say good morning to her. Whelan
then told him his supervisor had fired him and there was noth-
ing she could do for him.
Aliza testified that during his first tenure of employment
1987 to 1990, when he was compelled to quit due to an injury,
he had received two warnings or counseling forms for his work
performance. The Respondent proffered five such writeups (R.
Exh. 37, a-e) which were rejected by me as being remote and
having no bearing upon his last term of employment, 3 years
later. Aliza also testified that prior to the February 24 incident
for which he was terminated he had not received any warnings
for his work performance or anything else. Based upon the
testimony of Capresesco, Megill, and Whelan and Respon-
dent’s argument in brief, Aliza’s work performance and con-
duct was satisfactory until February, when it suddenly became
extremely unsatisfactory. As noted, Aliza began wearing his
union pin in January and was questioned about it by Celina.
Respondent elicited testimony from Celina and Lisa that on
February 9, he received a warning for unsatisfactory work qual-
ity and was counseled concerning patient care. (R. Exh. 38.)
The Respondent elicited testimony from Celina that 2 days
later, on February 11, Aliza became rude and abusive to her
when another CNA was transferred to another floor necessitat-
ing the remaining CNAs to carry an increased work load for
that shift. It’s asserted that the charge nurse determined the
division of work to be fair and Aliza received a warning for his
rudeness and vocal outburst. (R. Exh. 39.) It is further asserted
that on February 23, Aliza refused instruction to assist another
CNA, Y. Domand, to move a patient, and received a counseling
for this from the charge nurse.
KING DAVID CENTER 1153
Capresecco testified that when she reviewed Aliza’s work
assignments on February 24 and found them to be lacking Aliza
became hostile and insubordinate for which he also received a
warning (R. Exh. 40.)
Aliza denied being shown any of these warnings or being
otherwise aware of them prior to his termination. None of the
warnings were signed by Aliza indicating that they had been
shown to him. Employees were not required to sign such writ-
ten warning.
Essentially all the employees testifying against whom ad-
verse action had been taken were shown written warnings
which they denied ever having seen. I credit Aliza in his denial
of being aware of any of written warnings Respondent alleg-
edly had given. I also credit him that Celina interrogated him
with respect to the union pin he wore on his uniform and per-
haps viewed Aliza’s response to her as rude since he refused to
tell her what it was but told her to “read it.”
Although the complaint alleges that Respondent began scru-
tinizing its employees work more closely in July, I find, based
on Aliza’s testimony that such closer scrutiny commenced
much earlier, about the time the petition was filed. In short, I
find that Respondent discharged Aliza because of his open
support for the Union in order to discourage union activity. By
Respondent’s own contention, until the time Aliza made his
union sentiments known his work had been, at least, satisfac-
tory for almost a year and suddenly it became unsatisfactory.
In my view once Aliza let his support for the Union become
known I believe he would have striven harder to avoid doing
something to give the Respondent a reason to fire him. In other
words he was set up by Lisa and Celina.
Accordingly, his discharge violates Section 8(a)(3) and (1) of
the Act.10
2. Lude Duval-April 21
Lude Duval worked for King David in the capacity of a CNA
from April 4, 1992, to April 21, 1994, when she was terminated
by Respondent allegedly because she did not have a CNA li-
cense or certificate from the State of Florida. Lude is the wife
of Ernest Duval the leading and most vocal employee union
supporter. Among other things he was the employee represen-
tative for the Union at the representation case hearing held
approximately February 22 and March 13 and 14. He also
made radio appearances with union organizer Marie Jean Phil-
ippe on a couple of Creole-speaking radio station urging King
David employees to support the Union.
Lude Duval signed an authorization card for 1115 in July
1993 and commenced wearing the 1115 union pin on her uni-
form in January when the representation petition was filed at all
times she was at work. (G.C. Exh. 13.) The Respondent does
not deny that it knew L. Duval was a strong union supporter.
Duval initially worked the 11 p.m. to 7 a.m. shift 5 days a
week. After about 6 months she requested Megill to let her
work two double shifts and one single shift a week because of

10 A brief comment concerning credibility of particularly Whalen
and Megill. Both seriously impaired their credibility by testifying that
they had no interest in the union activity or whether or not the employ-
ees selected the Union to represent them. For instance Whalen testified
that when she first observed the union handbilling employees at the
entrance to the facility she had no feeling one way or the other. She
testified that “I couldn’t have cared less.” Megill also testified that it
didn’t make any difference to her what the employees did with respect
to the Union. These are clearly misstatements in view of their subse-
quent discrimination against union adherents.
her small children. The request was granted and she worked
those shifts as a floater.
On the first day of the hearing in Case 12–RC–7692 at which
her husband appeared with the Union, when she reported to
work at 3 p.m. supervisor, Yves Waterman, greeted her near the
nursing station and said, “I hear your husband was going to
Court with Mrs. Betty, what was going on?” Duval replied that
she didn’t know and he would have to ask Whelan. Waterman
then looked at her union pin and said, “Mrs. Duval, you can be
in trouble.” Although Waterman was the only supervisor who
spoke fluently both Creole and English, these comments were
made in English.
About March 16, the day after the conclusion of the ‘’R’’
case hearing which her husband had attended on behalf of the
Union, Lisa Megill approached her as she was drinking a glass
of water near the nursing station and addressed her in an angry
manner which she had never done before. According to Re-
spondent L. Duval received a “write-up” for this alleged serious
offense. Subsequently, perhaps later that day, Megill tele-
phoned Duval at home and told her that her schedule had been
changed, apparently meaning that she would have to work five
single shifts a week. In the same conversation Megill inquired
for the first time in Duval’s 2-year employment as to whether
she had a CNA certificate.11 Duval replied, “No.” but she
would bring papers to show that she was in the process of tak-
ing the RN or LPN test. Megill told her to bring the paperwork
in proving that she was taking the RN test, but admonished her
not to bring her husband because he gave her too much trouble.
Prior to this time nothing had ever been said about Duval’s
husband, Ernest, causing trouble.
L. Duval was scheduled to work the 11 p.m. to 7 a.m. shift.
When she arrived she found her timecard gone from the rack.
She inquired of Waterman, the 3 to 11 p.m. supervisor about
the card and was told Megill had told him to remove it.
Waterman telephoned Megill and Duval talked with her. Me-
gill told her that it was against the law for her to work without a
CNA certificate and added that Duval and her husband was
giving her too much trouble. Duval said, “Mrs. Lisa, after 2
years you just realized I don’t have any certificate as CNA.
Why you hire me . . . why you hire me after 2 years you just
realize that, and then when I spoke to you at 3:30 on Thursday,
why you—I was scheduled to work, why you don’t tell me
don’t go to work until I show you the paper?” As a result of
this call Duval was permitted to work that shift on condition
that she bring paperwork showing that she was taking the LPN
and/or RN tests. She did so on Friday and showed them to
Whelan and Megill. They made copies and permitted Duval to
continue to work.
On the following Saturday someone punched Duval’s time-
card when she was not there. Megill confronted her with this
and Duval credibly denied that she had done it since she was
not there. Megill again told her that she and her husband were
giving her too much trouble.
Lisa Megill inquired several times of Duval as to whether
she had gotten the results of her RN test. Finally, on April 20,
Duval told Megill that she had not passed her RN test. Megill
allegedly called Tallahassee, Florida, and claims she was told
that Duval could no longer work as a CNA and she was forth-
with terminated. The Respondent admits that Duval was one of
11 Duval’s qualification for the position of CNA will be set forth be-
low.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1154
its best CNAs and had never received a warning or counseling
for her work performance.
When Duval was hired Lisa Megill gave her a test which
Megill testified she had devised and gave to most CNAs, al-
though the test was not a substitute for the State CNA exam.
The Respondent contends that it underwent a review by the
U.S. Department of Health and Human services in which cer-
tain deficiencies were noted in its personnel records. As a re-
sult it conducted a full audit of all its personnel records and for
the first time discovered that Duval did not have her CNA li-
cense. Duval has a 3-year college degree leading to her RN
degree from a college in Belgium. She had worked with her
RN degree 1 year in Belgium and 5 years in a hospital in New
York under a special license prior to going to work at King
David. During the audit of its personnel files in which it dis-
covered Duval lacked a CNA certificate it missed the fact that
CNA Joyce Neloms also did not have such a license. However,
when it came to Respondents’ attention that Neloms did not
have a certificate it claims that it removed her from direct nurs-
ing care but employed her in another capacity until she ob-
tained the certificate. In June, Duval received her CNA certifi-
cate and 1115’s attorney, Alan Elster, sent a copy to Respon-
dent and requested immediate reinstatement of Duval. It
should be noted that 8(a)(3) and (1) charges had been filed on
Duval’s behalf at this time. Duval was never called back to
work or offered reinstatement.
It is abundantly clear that, if a CNA certificate is a prerequi-
site to work in that position, Respondent was, to say the least,
extremely careless and remiss in assuming that all such em-
ployees had a state certificate. If such were a requirement, why
did Lisa Megill devise her own test, which according to her she
gave to most, if not all, applicants for the position of CNA?
Duval had been employed by Respondent for 2 years and
admittedly her work record was spotless. It was not until after
she and her husband demonstrated their strong support for the
Union, 1115, that any question concerning her lack of a Florida
CNA certification was raised. Undoubtedly both Director of
Nursing Betty Whelan and Quality Assurance Nurse Lisa Me-
gill were aware of Duval’s credentials, albeit she did not have
and never had, a Florida CNA certificate. I find it inconceiv-
able that for more than 2 years Respondent was unaware that
Duval lacked this critical certificate. It is noted that it was not
the Department of Health and Human Services who found cer-
tain unspecified deficiencies with the Employers’ personnel
records who discovered Duval’s lack of a certificate, but Re-
spondent’s asserted full audit of all its personnel files.
I have no doubt that Respondent seized on this fact to termi-
nate Duval for the union activities of her and her husband.
From the overall record it is evident that Respondent could
have, as it did with Nelom’s who was antiunion and testified
for Respondent at trial given her a nondirect nursing position
until she obtained her CNA. Accordingly, I find that Duval’s
discharge violates Section 8(a)(3) and (1) of the Act. I further
find Yves Waterman’s questioning Duval about her husband’s
participation in the representation case hearing is unlawful
interrogation and his comment to her that she could get in trou-
ble for wearing the 1115 union prior constitute a threat of un-
specified reprisals.
3. Marie Larose—May 31
Larose worked as a CNA at King David from April 26, 1993,
to May 31, 1994, at which time she was terminated by Lisa
Megill who had left Larose’s name off the work schedule and
told her they did not need her or any Haitian to work there.
Larose worked the 11 p.m. to 7 a.m. shift for several months at
which time she was transferred to the 3 to 11 p.m. shift under
the supervision of Gretza Matses. She testified that she signed
an 1115 card in late January or February and at that time started
wearing the 1115 union pin on the left chest portion of her uni-
form while she was at work. (G.C. Exh. 13.)12
Larose testified that shortly after she started wearing the un-
ion pin Megill talked with her twice about it. Once in a hall-
way when she told her to take the pin off and the second time in
the office when she told her to take it off or she would be fired.
Larose’s pretrial affidavit mentioned only one such incident. In
any event I credit her that Megill told her to take the pin off or
she would be fired.
A short time later Megill told her that she had no full-time
work for her and reduced her from 5 days a week to 3 days a
week. Megill told her there was no more full-time work.
Larose testified that she liked her job and had bills to pay but
she would not take the pin off because Duval had told her to
wear it at all times she was at work.
On May 21, her name was not on the schedule. She told
Megill she did not see her name on the schedule and asked
why. Megill replied they did not need her any more and when
Larose asked why, Megill repeated that they did not need her
that she was fired. Larose again asked why and stated, “There
are no job for working Haitian here.” Larose thereupon left the
premises.
The Respondent argues that her termination was for an inci-
dent that occurred in December 1993, for which Larose re-
ceived a written counseling and apparently a 3-day suspension.
The December 4, incident involved a resident or patient in
room 229. Larose testified that the gentleman in room 229 was
so large and heavy that it required two people to turn him. At
that time there were three instead of four CNAs on that station.
The patient needed to be turned and, not being able to find any-
one to assist her, Lerose asked the patient to assist in turning by
pulling on their side bars so that she could clean him. The net
result is the side bars did not stay in position and the patient fell
to the floor. Larose immediately called her supervisor, Gretza
Matses. The two of them could not lift the patient back onto
the bed and Matses summoned two other CNAs. The four of
them managed to get the man onto a sheet and lifted him back
on the bed. Larose stated that he had a scratch on his head.
Matses took his vital signs and told Larose she wanted to talk
with her downstairs after work. At that time Larose told Mat-
ses that it was an accident in that she did not know the side bars
were “not in working order.” Matses told her to make sure it
did not happen again, that it was an accident. Larose went
home. She was not assigned to that patient again. The patient
died about a week later. However, there is no testimony that
the fall contributed to his death but, it was at that time that
Larose was suspended for 3 days.
The Respondent argues that Larose was discharged as a re-
sult of the December 4 incident. Megill testified that she de-
termined at that time to phase out Larose’s employment. Both
Director of Nursing Whelan and Quality Assurance Nurse Me-
gill testified repeatedly that patient neglect or abuse warranted

12 The General Counsel was unable to produce the union card Larose
testified that she signed. It should be noted that the petition in the
Representation Case was filed on January 24 and it is entirely likely
that Larose signed her card after the petition was filed and it would not
have been submitted to the Region in the union’s showing of interest.
KING DAVID CENTER 1155
immediate termination. It is not clear what Larose’s exercise of
poor judgment in the December incident of the patients falling
out of bed was considered, however, she received a counseling
and a 3-day suspension at that time and was justified in assum-
ing that was the extent of the discipline she would receive for
her lapse of judgment in that incident.
Respondent’s argument that Larose’s version of the dis-
charge meeting is filled with contradictions and is not borne out
by the record. Her statement that Megill told her there was no
work for her and that there was no work for any Haitians is not
inconsistent or contradictory and the fact that the Union was
not mentioned in the discharge conversation is not surprising as
in similar situations it usually is not.
Additionally, Larose’s testimony was not garbled as con-
tended by Respondent. However, her poor comprehension of
English and the necessity for an interpreter for most of her tes-
timony, particularly on cross-examination forms no basis for
discrediting her.
In December 1993, when Larose was given only a 3-day
suspension for that incident Respondent was not aware of her
union activity. I find the General Counsel has established a
prima facie case that antiunion animus was the primary reason
for Larose’s discharge and Respondent has not met his Wright
Line13 burden of establishing that it would have taken the same
action absent her union activity.
4. Suspension of Quettelie Jean-Baptiste—August 15
Jean-Baptiste worked at King David as a CNA from March
12, 1992 to August 15, 1994, when she was given a 1-week
suspension at which time she returned to work and was work-
ing at the time of this hearing. At relevant times herein she
worked the 3 to 11 p.m. shift under the supervision of Yves
Waterman. As noted above Waterman was the only supervisor
at Respondent who fluently spoke both Creole and English.
Jean-Baptiste signed an authorization card for 1115 on July 12,
1993 (G.C. Exh. 17), and began wearing the 1115 union pin
(G.C. Exh. 13) about a month before the August 5 election.
Shortly after the election Jean-Baptiste was transferred from
PVMI where she had worked for 2-1/2 years to the Medical
Acute Care Wing. Around August 14, Jean-Baptiste had what
was apparently an anxiety attack while at work. The paramed-
ics were called but did not take her to the hospital. Subse-
quently her husband, Emmanuel Jasney, took her to the hospital
where she was examined and released. Director of Nursing
Betty Whelan refused to let her return to work until she ob-
tained a doctor’s certification that she was able to work. Whe-
lan testified that this was standard procedure.
The General Counsel alleges several instances of interroga-
tion and threats by Waterman to Jean-Baptiste. Jean-Baptiste
testified that about a month before the election as she was walk-
ing down the hall to go on break Waterman stopped her and
asked her who gave her the pin. She replied that the Union did
and he asked why she put it on and she said because she wanted
to. He then asked what the Union was going to do for her. She
did not reply, but continued on her way. Jean-Baptiste testified
that Waterman made these statements in Creole, but that she
responded in English. She testified that again about 2 weeks
before the election Waterman approached her in the hallway
and in Creole told her before she voted for the Union that the
Union would do nothing for them. Waterman continued that
Lisa Megill had a list of names and knew who would be voting

13 Wright Line, 251 NLRB 1083 (1980).
for the Union continuing that those who did not vote for the
Union would be covered, but those who voted for the Union
would get in trouble, “They will be fired.” I find these state-
ments to constitute an impression of surveillance and threat to
discharge.
She testified further that about a week before the election as
she and another CNA, Alice Decime, were leaving work at 11
p.m., Waterman told them he was going to “write them up” and
give them a 3-day suspension for not responding to a patient’s
light on the first floor. They told him they did not see the light.
The following day, Jean-Baptiste appealed to Megill who told
her that since she didn’t see the light she would rip the warning
up and she wouldn’t have to sign it.
On the day of the election, after the votes were counted,
Waterman commented to Jean-Baptiste “Now you are happy
because the Union won,” Jean-Baptiste responded “why not.”
On August 10, Jean-Baptiste was taking her break with fel-
low employee Caty Joseph. They were in the small kitchen
warming their food in the microwave and conversing in Creole.
Yves Waterman passed by and overhearing their conversing in
Creole, asked if they were on break. Jean-Baptiste stated that
they were. The following day when Jean-Baptiste clocked in,
Lisa Megill told her she needed to see her in the office. When
she arrived there Megill showed her a warning form that Wa-
terman had prepared for speaking Creole in the kitchen. Megill
asked Jean-Baptiste to sign the form and Jean-Baptiste refused,
insisting that she was on break when they could speak Creole.
Megill told her she didn’t care but if she was written up again
she would be fired.
On the same day, a Sunday, that Jean-Baptiste refused to
sign the warning for speaking Creole, Megill changed her work
assignment from PVMI where she had worked for 2-1/2 years
to an acute care section where Jean-Baptiste was not familiar
with the patients. Jean-Baptiste testified, as did a number of
other employees, that after the Union petitioned for an election
and particularly after the election which the Union won, the
supervisors commenced making more frequent and through
inspections of the CNA work and was far more critical of them.
Jean-Baptiste stated that she was already upset about the unjus-
tified “write up” and developed a “bad headache.” Megill,
Whelan, and Caprisecco came by about 5 minutes after she
finished a patient. She testified that she could not breathe and
was hyperventilating.
Much testimony was adduced with respect to what occurred
when Jean-Baptiste had her “anxiety” attack on August 14. As
noted she testified and it is verified by Respondent’s witnesses,
that she was hyperventilating and fell to the floor and was
rolling around. The paramedics were called and someone tele-
phoned her husband, Emmanuel Jasney, who came to the facil-
ity to be with his wife. There is a dispute as to Jasney’s con-
duct when he arrived there. Whelan and others testified he was
loud, yelling and demanding that something be done for his
wife and that there was a confrontation at Whelan’s office. The
police were called and responded. It appears they were called
to have Jasney removed from the facility, however, he was not
arrested.
Jasney testified that he tried to get the paramedics to take his
wife to the hospital but they would not, allegedly because Re-
spondent’s representatives would not let them. Be that as it
may, Jasney took his wife to the hospital where she was appar-
ently seen by a physician and released.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1156
As noted above, Whelan required that she obtain a physician
statement regarding her physical and mental health before re-
turning to work which Whelan testified was the usual proce-
dure. She did so in 7 days.
The General Counsel argues that Jean-Baptiste’s condition
was precipitated by Respondent’s unfair labor practices of im-
posing more onerous working conditions and the issuance of
written warnings which were unwarranted to Jean-Baptiste, the
last one stating that she would be fired if she received another
one, and thus her loss of 7 days work should be construed as a
unlawful constructive suspension. He contends that the suspen-
sion flowed directly from the Employer’s unlawful actions.
The Respondent contends that it followed procedure after
such an episode in requiring Jean-Baptiste to be certified to be
mentally and physically able to perform her duties. The Re-
spondent erroneously asserts that Jean-Baptiste and her hus-
band refused emergency medical treatment. The evidence is to
the contrary. Jean-Baptiste’s husband, Jasney, pleaded with the
paramedics to take his wife to the hospital, but there is no evi-
dence that any proffered treatment was refused.
On balance, I find that the imposition of more onerous work-
ing conditions and the issuance of unjustified written warnings
with a threat to discharge because of Jean-Baptiste’s union
activities brought about the attack and thus her suspension was
an unlawfull constructive suspension.
5. Ernest Duval—August 17
As noted above, Ernest Duval was, without a doubt, the lead-
ing employee union advocate and that fact was well known to
the Respondent almost from the beginning. Duval was the first,
or among the first, employee to contact or he contacted by
1115. This occurred about July 1993. He and several other
employees signed union cards at that time and there were a
number of small union meetings arranged by Duval. However,
it was not until approximately December 1993, that the Union
began handbilling employees at the entrance to the facility at
which time Duval was prominently and openly involved. Du-
val personally obtained signed union cards from a number of
employees and gave cards to others for distribution. He also
distributed the union lapel pins to employees which they did
not begin to wear until early January and some not until after
the representation case petition was filed on January 24. A
week or so before the election he joined union organizer Marie
Jean Phillippe in a number of radio appeals to King David em-
ployees over Creole speaking radio stations.
Duval was employed by Respondent as a CNA from March
1992 to August 17, 1994, when he was terminated after receiv-
ing at least six written reprimands by various supervisors and
allegedly threatening a female supervisor on which occasion
the police were called.
That Duval was an excellent CNA, at least until about July
1994, is essentially admitted by the Respondent.
In fact at one point in 1993 when Lisa Megill left King
David for a job at another facility, Hill Haven, she persuaded
Duval to come to work for her there. It appears Duval worked
only part-time there because he remained a full-time employee
at King David.
Prior to July 1994, Duval had received one written counsel-
ing in February 1993. This concerned a patient whose nails he
had not cleaned or washed. He admitted this, but testified that
the patient was fighting and he could not hold her still to cut the
nails. Respondent contended that there was more than one
patient involved in this counseling. Be that as it may, Respon-
dent concedes that Duval was a very good CNA until about
July 1994 when he suddenly did an about face.
Duval commenced wearing his union pin about January 24,
when the Representation case petition was filed. He testified
that the first week in February while he was making a bed in
room 232 Lisa Megill came up to him and touched the pin and
asked him to tell her what it meant. She told him she did read it
but didn’t understand it. He told her it was for the Union. She
said, “You too,” and appeared to be surprised. According to
Duval, Megill immediately went next door to room 230 where
she asked Betty Augustine another CNA the same question
about her pin and Augustine told her it was a union pin for
1115. Megill again said, “You too” in what Duval construed to
be an angry or upset tone. A few minutes later Duval was pre-
paring the dining room on PVM 2 for lunch when Celina Capri-
secco, Megill and Whelan came on the floor and appeared to
Duval to be angry.
After lunch Megill came to Duval and said she wanted to
make rounds on his assignments. During the course of the
rounds Megill again said that she was surprised that he was for
the Union and according to Duval raised her voice and argued
about it. About 1:30 p.m. Duval was paged to the office where
he found Megill and Caprisecco who had a list of alleged defi-
ciencies they had found and told him to read it and sign it.
Duval told them he would not sign because he knew they were
giving him the warnings because he supported the Union. Me-
gill then got Whelan who asked Duval what happened. Duval
told her he felt they were giving him the warnings because of
his union pin and support. Whelan took the warnings and tore
them up and threw them in the garbage and told Duval “every-
thing will be fine.”
A few days later Director of Nursing Whelan called a meet-
ing of all CNAs on duty in the dining room of PVM2. Whelan
told the employees she did not care anything about the Union
and if they wanted to choose the Union she did not care but that
the Union could not do anything to them. She continued that if
she wanted to fire them she had the right to do so. She admon-
ished them to do everything they were supposed to do because
she could fire them at anytime, however, they were forced to
choose. Near the end of the meeting Megill spoke and again
told them the only chance they had was to do their job very
well and the Union could do nothing for them, because they
could fire them at any time. This version is corroborated by
other employees and Respondent admits that Whelan said no
matter what the outcome of the union election they would still
have to perform their jobs as in the past or face discharge.
Duval testified that several weeks before the August 5 elec-
tion Art Dryer came on the floor as the 7 to 3 supervisor. He
stated that they were often short handed and had to take care of
more patients. In early July as he was walking by a patient’s
room in another section of the facility he observed a patient on
the floor in a puddle of urine. He asked Art Dryer who was just
behind him to assist in getting the man off the floor. Duval
notified housekeeping to clean the urine from the floor and
placed the patient in a geriatric chair. Based upon Dryer’s as-
sertion subsequently given to Duval, he passed the room again
about 15 minutes later and heard the patient calling for help and
asserts he found him in the urine soaked bed trying to get out.
He then talked to Duval about the urine on the floor and Duval
told him he had reported it to housekeeping.
Just before the shift’s end Megill paged him to the office
where he found Megill, Dryer, and Celina Caprisecco. Dryer
KING DAVID CENTER 1157
described what happened and Duval was given a warning (R.
Exh. 3). Duval noted on the warning that it was not his patient
and refused to sign it. Duval was written up rather than the
CNA who was responsible for the patient.
Two or 3 days after the above incident Duval testified that he
and an LPN Audrey White had just cleaned, bathed, and dia-
pered a patient named Mark Herman after he had a BM. Duval
then went to room 242 to care for the patient there. According
to Duval, within 5 minutes there was a violent punch on the
door and Duval said, “come in.” Dryer entered and told Duval
to leave that patient, “right now” that he had a patient who was
dirty and very wet. He went to room 245 and found Herman,
the patient he and White had just cleaned, wet from stomach to
his shoes. He called LPN Audry White who came in and upon
inspection of Herman, told Duval that he was not wet from
urine. Duval said he put the clothes in a plastic bag and that
they did not have the odor of urine. Duval expressed the fear to
Celina that he was afraid Dryer was trying to get him in trouble
because he was supporting the Union. Apparently Duval did
not receive a “write-up” for this incident, but I believe it dem-
onstrates that Respondent was harassing him because of his
leadership in the union activity.
Duval acknowledges that Director of Nursing Whelan had a
meeting with employees and told them she could not tell them
not to speak Creole because that was their language, but not to
speak Creole in front of the patients. On August 3, 2 days be-
fore the representation election, Duval was summoned over the
intercom by Megill to come to her office. He went to the office
and told Megill he was on his lunchbreak and she told him to
come back after lunch. He returned at that time and was told
by Megill that Caprisecco had given him a writeup for speaking
Creole in front of the patients. He denied having done so and
told Megill that during breakfast a Haitian lady from house-
keeping had come up to the dining room and he was some dis-
tance away, about room 233. Upon seeing each other they
waved, but exchanged no words. Duval refused to sign the
form. Nothing was written in the space for “statement by em-
ployee.”
I credit Duval’s denial that he was speaking Creole in front
of patients. By this time Duval was convinced that the Re-
spondent was trying to find a reason to fire him and thus he
would not have done anything against the rules. Moreover,
Duval was precise in his recollection of what had occurred. A
short time before this event Megill had told Duval that he
would receive a warning everyday and after three such warn-
ings he could he terminated.
In this regard it is also noted that Waterman conducted anti-
union meetings with the employees in Creole and distributed
antiunion literature in both English and Creole.
Prior to 11 p.m. on August 4, Duval telephoned Susan Fa-
gan, the supervisor on that shift and told her he would not be at
work the next day. She asked if he was sick and he told her no.
He testified that he started to explain but she appeared to be
busy. Duval was an observer for the Union at the election the
following day.
When Duval returned to work on Monday, August 8, his
next scheduled day, Art Dryer paged him to the office where he
asked him to sign a written warning that Whelan had prepared
stating that he had been rude to Susan Fagan when he called in.
Duval asked to speak to Whelan since Megill was off. Duval
went to Whelan and asked about the warning. Whelan reas-
serted that Duval had been rude to Fagan and the warning
stayed. Whelan refused at Duval’s request to call Fagan.
The following day Duval went to Fagan’s office and asked if
she had a problem with him. He explained to Fagan that Whe-
lan had given him a warning for being rude to her. Fagan told
him she had no problem with him that “Mrs. Whelan just got
her own problem with you.” She did not elaborate.
Duval testified that just before and after the election all the
CNAs were very careful to be sure they did their assignments
right and if one finished before others they would assist each
other. On Tuesday, August 9, Duval testified that he had 11 or
12 patients because they were short handed. Near the end of
the shift Art Dryer told Duval he wanted to make rounds with
him. Duval testified that when they started he was very sur-
prised to find the call lines, which were supposed to be under
the patient’s pillow or in easy reach, were on the floor or had
otherwise been placed out of reach of the patient. He received
a page to go to Megill’s office where she showed him a “write-
up” by Dryer because the call lines were not in reach of the
patients. Duval told Megill that when he finished his rounds all
the lines were where they should have been and refused to sign
the write-up. Duval also told Megill that “this is a set-up” and
I’ll bring charges against you.” As noted, I credit Duval that he
was more careful with his assignments at this time because he
feared the Company was trying to find a reason to fire him.
On August 13, a Saturday, Duval reported for work and
while on his way from clocking in to his work assignment was
observed by Supervisor Gretza Matses and was given a warning
by Matses for not being on his floor. On the following day
Duval talked with Matses about the writeup. Matses told Duval
she had to have something on him for Saturday and Sunday or
on Monday she could be in big trouble and could lose her job
and she had a daughter to support. She added that she did not
have a problem with Duval.
Matses testimony with respect to these events is dramatically
different from Duval’s. She testified that she observed Duval
talking to a nurse away from his work station and she is unclear
whether it was that day or the following day, Sunday. August
14 that she gave Duval the written warning. She testified that
Duval became very belligerent and loud and demanded that she
tear it up and that she felt intimidated or threatened by him. In
any event the police were called and their report is dated Au-
gust 14, 1994. Her statement in that report is totally inconsis-
tent with her testimony on direct examination.
On cross-examination the police report was first introduced
and from that it appears that she also gave a written warning to
another employee, Janet Lorius, evidently for improperly park-
ing his car. In the report she names Lorius as the perpetrator of
the “verbal threats.” In the report she attributes to Lorius the
statements that she attributed to Duval in her testimony. The
report states Matses told the officer “a co-worker threatened her
life.” The statement goes on:

Matses told me that, Janno Lorius B/M 32 yoa, said to
her, “I’m going to kill you!” Lorius also told Matses, “I’ll
feed you and you’re daughter!”, Matses stated that she
does not know what that statement means, but felt very
threatened by Lorius.
Matses told me that the threats began when the CNA’s
formed a union. Matses told me that Lorius knows where
she lives and that she had a daughter. Matses feels very
intimidated and threatened by Lorius.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1158
Matses told me that another CNA, Ernest Duval B/M
also intimidated her but has not made any direct threats.14

When Duval reported for work his next scheduled day
Wednesday, August 17, he did not see his name on the sched-
ule. Nevertheless, he punched in and started to take the eleva-
tor when Supervisor Susan Fagan told him not to start to work
until he saw Celina Caprisecco. When Celina came in she told
Duval to go to the nursing office. Caprisecco and Fagan were
there. Caprisecco told him that he was fired because he threat-
ened Gretza and that there was a police arrest order and he
could not come into the facility anymore. He asked for a “pa-
per” showing he was fired and Celina told him any more ques-
tions and she would call the police and have him put out and
told Fagan to call the police. He told Celina not to call the
police he would go home.
It should be noted that Janet Lorius, the man reported to po-
lice by Gretza as having actually threatened her was given only
a 2-week suspension. It should further be noted that Duval’s
version of what transpired on August 13, between him and
Gretza was never sought.
It is evident from the foregoing that the Respondent was de-
termined to rid itself of the most vocal union supporter from the
beginning. I find that the discharge of Ernest Duval was clearly
for this enthusiastic support for the Union and am not con-
vinced that Duval engaged in the conduct Respondent attrib-
uted to him and for which it contends he was discharged. Ac-
cordingly, Respondents discharge of Duval and the several
written warnings that were given to him violates Section 8(a)(3)
and (1) of the Act.
6. Caty Joseph—August 17
Caty Joseph started working as a CNA at King David Center
sometime in 1990. She signed an 1115 card which she ob-
tained from Pierre Exile on June 26, and started wearing the
1115 union pin about 2 months before the election. She
worked the 3 to 11 p.m. shift under the supervision of Yves
Waterman.
On August 4, the day before the election at about 7:30 p.m.
Waterman paged Joseph to come to the office. When she ar-
rived there he closed the door and asked her if she knew any-
thing about the Union. She told him “No.” He asked that she
explain to him what the Union is. He told her the Union was
not going to do anything for her but would just take money
every 2 weeks from her check. She continued that he told her
that whoever voted for the Union would get fired and it would
be better to vote for King David.
About June 1993, Joseph started to school at North Tech and
upon showing Megill a letter from her teachers stating she was
in school she was permitted to report to work 8 to 10 minutes
late. On about Wednesday after the election when she reported
about 7 minutes late, Megill was standing by the time clock and
told her she had been late the last 2 days and the next time she
would terminate her.
Around August 10, Yves Waterman gave Joseph five write-
ups in 1 day, three for speaking Creole and two for not giving
patients showers. They were presented to her by Megill. Jo-
seph testified that she was on break when she was speaking
Creole on one occasion and another was at the end of the day.
With respect to the patients she did give a shower she stated

14 This report was written by the police officer based on what Matses
told him.
they were not on the shower chart and could bathe themselves.
I shall not spend a lot of time discussing these warnings alleged
to have been discriminatorily motivated in view of the fact that
Joseph fatally flawed her credibility for the reasons set forth
below.
On August 16, Joseph’s husband wrote a note for Joseph to
Lisa Megill stating in part, “I have an emergency which forces
me to be out of work for three weeks.” G.C. Exh. 27. She gave
the note to Megill on August 17, and testified that Megill said
“Okay, call me when you want to come back.” A few days
later Joseph called Megill and said she was ready to come back
to work. Megill told her to come back in on her 3 to 11 shift.
Joseph worked a few days and on September 9, her husband
wrote another note to Megill for her stating in relevant part that
she needed a 3-month leave of absence to take care of her child
because she was having babysitting problems. (G.C. Exh. 28.)
Joseph’s trial testimony was that Megill again said Okay and
she could call when she was ready to come back. It appears
that about 2 weeks later Joseph called and told Megill she was
ready to come to work. Megill told her she did not have an
opening on the 3 to 11 shift, but that she could work the 11 to 7
shift. Joseph told her she could not do that because of babysit-
ting problems. Joseph never contacted Megill again to find out
about a 3 to 11 opening. Thus it is evident that Joseph was
never fired.
As noted above, Joseph fatally flawed her credibility in the
following manner. On September 17, within 2 hours of leaving
the facility after Megill had told her it would be okay for her to
take a 2-week leave, Joseph was at the Comfort Inn in West
Palm Beach and gave an affidavit to the NLRB agent investi-
gating these unfair labor practice charges. In the affidavit (R.
Exh. 24) wherein she recited the above-mentioned conversa-
tions and warnings. In the last paragraph she states:

This morning I put in a letter that I needed a leave of absence
for an emergency. Lisa told me that I would be replaced and
that I would have a job no more. I never took vacation before.
I don’t know of other people have taken leaves of absence but
I have been there 4 years and never take vacation. I knew
they were going to fire me anyway and it was just a matter of
time for them to fire me.

In view of this credibility finding I am unable to credit Jo-
seph in any of her testimony. Accordingly, I find the General
Counsel has not established by a preponderance of the evidence
any violation of the Act based on Joseph’s testimony.
This finding does not mean that I credit Megill and Water-
man where their testimony conflicts with Josephs.
7. Luders Esteril—August 25
Luders Esteril worked as a CNA at King David from Febru-
ary 1992 until August 25, 1994, when he was terminated alleg-
edly for failing to call in when he was going to be absent on
February 24. He worked the 7 a.m. to 3 p.m. shift on the first
floor under the supervision of Celina Caprisecco at the time of
his discharge. Esteril joined 1115 on September 14, 1993, by
signing a card and wore the 115 union pin on his lapel from
before the time the petition was filed until after the election on
August 5, 1993.
Esteril testified that the day the petition for an election was
filed Director of Nursing Whelan approached him with the
petition in her hand and asked if he had signed and asked him if
he had signed a card for those union people and he admitted to
her that he had. He further testified that about a week before
KING DAVID CENTER 1159
the election quality assurance nurse Megill asked if he ever
went to the union meetings. He told her he had and she admon-
ished him not to listen to them because everything they said
was not true. She urged him to support the Company and told
him she did not want the Union. Esteril said that prior to the
election he had an excellent working relationship with all his
supervisors including Megill, Dryer, and Caprisecco, but after
the election they began making rounds more often and more
thoroughly inspected the CNA’s work. On August 9, he was
summoned to the office where the three supervisors mentioned
above gave him a written reprimand for several alleged work
deficiencies they had discovered when making rounds. Esteril
either denied the offenses or his responsibility for them. He
refused to sign the warning. During the 2-1/2 years Esteril had
worked there he had received only one written warning which
concerned the failure to clean a patient’s nails.
The events leading up to Esteril’s discharge are not in sub-
stantial dispute. About August 9, Esteril approached Lisa Me-
gill and requested permission to be absent August 20 and 21.
Megill told him she would try to find a replacement and that he
should also look for one as it was his primary responsibility.
On August 16, Esteril put his request in writing and Megill told
him to continue to look for a replacement as neither of them
had found one at that point. Esteril testified that at that time
Megill asked him if anyone had asked him for money that
morning and said she had heard they were collecting money to
put him, Esteril, in the newspaper or on the radio to tell people
the way she and Capresecco were treating the CNAs. All su-
pervisors at King David maintained a call list from which they
can obtain a fill in when an employee is absent on any given
shift.
Esteril did not find a replacement and admittedly did not ask
Megill if she had prior to his taking off from work August 20
and 21. When he returned to work he was summoned to the
office by Megill and was given a writeup for no-call, no-show
with the admonition that if he received another warning he
would be fired. Esteril worked that shift. However, the follow-
ing day he testified that at about 5 a.m. he called the facility and
asked for a supervisor and was told the supervisor was busy.
He testified that he told the woman with whom he was talking
that he was calling in sick. He did not obtain the name of the
woman and did not report for work that day.
The Respondent contends that its policy is that an employee
calling in sick must speak to a supervisor. Respondent claims
that it inquired of all female employee present at that time and
none admitted having received a call from Esteril. When he
returned to work the following day he was discharged by Art
Dryer for failing to call in. It is not contended that prior to this
time Esteril had any attendance problem.
The Respondent contends that it had a firm written policy
concerning no call/no shows and that it had discharged other
employees for failing to call in and thus its treatment of Esteril
was no different and its action would have been the same ab-
sent his union activities.
The General Counsel argues that prior to the Union’s win-
ning the election Megill regarded Esteril as a very good CNA
and that the warning given for his August 20 and 21 absence
was in retaliation for his support of the Union. He further ar-
gues that Megill made no effort to find a replacement for Es-
teril since several supervisors testified to having call lists for
that purpose and that there was testimony indicating there were
perhaps an overabundance of CNAs in mid-August in view of
the fact some were being sent home. The General Counsel also
contends that in view of Megill’s demonstrated union animus
she should not be credited and that Esteril would not have
stayed out of work without calling in in view of the warning
given him on August 22. He also points out that Esteril’s wife,
Marie Esteril, who was discriminatorily discharged on Decem-
ber 9, testified that Art Dryer had told her that Esteril’s support
for the Union was the reason neither he nor his wife could work
at King David.
I find that Respondent seized upon Esteril’s conduct here as
a pretext to fire him for his union activities and that the dis-
charge violates Section 8(a)(3) and (1) of the Act.
8. Claudette DeLinois—November 4
DeLinois testified that she started work at King David in
July of 1994 and went through a 1-week orientation on the 7
a.m. to 3 p.m. shift after which she worked the 11 p.m. to 70
p.m. shift under the supervision of Susan Fagan. She was not
eligible to vote in the August 5 election, but asserts that almost
from the beginning she wore the 1115 union pin given to her by
Michelle Williams. She testified that before the election while
she was on lunch break she met Betty Whelan getting off the
elevator and Whelan asked her why she wore the union pin and
she replied that she wore it for the union. DeLinois testified
that before the election Fagan would check her rooms once a
shift but after the election she would check them three times a
shift.
She testified that her last day of work was November 4, at
which time she was fired by Lisa Megill. She stated that on
November 5, Lisa Megill called her at home and told her she
needed to see her in her office. That afternoon she went to
Megill’s office. Megill told her that the patient in room 127
window had complained about her. DeLinois told Megill that
the patient in 127 could not talk. Megill then told her it was the
patient in 123 window who had reported that DeLinois had told
her to turn her “call light” off and slammed the door. The fol-
lowing morning the nurse found dried feces on the patient.
DeLinois stated that she had changed the patient three or four
times during the shift.
I have some problem with DeLinois credibility, including,
but not limited to her demeanor. The Respondent introduced
his Respondent Exhibit 55 which is a new employee data sheet
containing six names of new employees, including DeLinois
which is for the pay period ending August 13 and thus would
establish the DeLinois was not hired until after the August 5
election. Also Respondent’s Exhibit. demonstrates that DeLi-
nois received her first paycheck on August 13, to which the
General Counsel stipulated. These exhibits demonstrates that
DeLinois was not hired until after the election. Thus, Whelan
could not have interrogated her about her union pin prior to the
election. DeLinois’ testimony to the effect that Fagan made
rounds “every fifteen minutes after the election” compared to
once or twice a shift prior to the election can not be given any
credence in view of the fact she did not work at King David
prior to the election. This testimony must have been based on
what other employees had told her.
Not withstanding Respondent’s extreme union animus, I do
not credit DeLinois testimony that Megill told her at the dis-
charge interview “all you Haitian people brought in the Union.”
This is no way lends to Megill’s credibility. DeLinois was
simply more unworthy of credibility than Megill in this in-
stance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1160
Accordingly, I find and conclude that DeLinois was termi-
nated because of inefficiency in her work performance and not
because of her union sympathies.
9. Marie Pierre Louis—November 9
Pierre Louis was employed by King David as a CNA from
October 1993 on the 3 to 11 p.m. shift to November 9, 1994, at
which time she was discharged for allegedly refusing to take a
patient to the bathroom. Yves Waterman was her supervisor
until mid-August, after the August 5 election at which time
Mary Walgousse became her supervisor. As with most of the
employees Pierre Louis known support for the Union was dem-
onstrated by wearing the 1115 union lapel pin on her uniform.
Pierre Louis had difficulty comprehending English and much
of her testimony was given through the interpreter. However,
her demeanor demonstrated to me that she was truthful and the
fact that she had difficulty conveying what had occurred does
not detract from that fact. On the other hand, Mary Walgousse,
who was among the last of Respondent’s witnesses to testify
was entirely too glib and emphatic in her testimony which ap-
peared to have been well rehearsed. Accordingly, I credit Pi-
erre Louis.
Pierre Louis credibly testified that in early October after the
election Walgousse knocked on the door of room 126 where
Pierre Louis was bathing a patient and changing the bed. Pierre
Louis asked who was there and Walgousse told her it was her
supervisor. Pierre Louis told her she was bathing the patient
but Walgousse came on into the room at which time Pierre
Louis pulled the privacy curtain. Walgousse told Pierre Louis
that she was doing a good job but that she needed her to do an
even better job. The reason she needed her to do a better job
was that Lisa Megill had told her every CNA on the 3 to 11
p.m. shift was for the Union. She continued to the effect that
Megill had indicated they were looking for a reason to get rid
of them.
Pierre Louis also testified, as did a number of other wit-
nesses, that prior to the election there were six CNAs on their
section on the 3 to 11 p.m. shift. Shortly after the election the
number of CNAs was reduced to four, thus creating a heavier
workload. The Respondent contends that any reduction in the
staff was due to a declining patient census and the work load of
each CNA remained about the same. In addition she testified
that her workdays per week was reduced from 5 to 4 days.
On November 8, Walgousse testified there was an incident
with a patient who complained that an aide had refused to take
her to the bathroom. The patient could not identify the aide.
Walgousse took two aides into the room and the patient identi-
fied Pierre Louis. Walgousse evidently made a report of the
incident but did not deem it a basis for any disciplinary action
at that time. However, when Pierre Louis reported for work on
November 9, and started to work she was called to the nursing
station. Walgousse was there but took Pierre Louis to the
downstairs breakroom where she, Walgousse, told her that Lisa
Megill had left a paper saying she had a complaint and to fire
Pierre Louis. Pierre Louis denied refusing to take a patient to
the bathroom and Walgousse told her she was sorry that she
knew she was a good worker but that she had no choice since
Lisa Megill had left a paper directing Walgousse to fire her.
Voluminous testimony from many witnesses, both the Gen-
eral Counsel’s and Respondents’, indicated that many of the
patients there were senile and some suffered from Alzheimer’s
disease. Thus it may well be that the patient’s complaint was
not well founded nor the identification. Moreover the record
discloses that CNAs were not always discharged for such al-
leged conduct. Indeed one example is that one employee,
Margy Jeter was accused of slapping a patient and the incident
was investigated by the State Attorney’s office, yet Jeter was
still permitted to work.
I find that Megill seized upon this alleged incident to rid Re-
spondent of another union adherent and thus violated Section
8(a)(3) and (1) of the Act.
10. Michelle Williams—November 11
Williams worked at King David as a CNA from August 1990
until November 11, 1994, at which time she was discharged by
Director of Nursing Betty Whelan for excessive call outs (ab-
sences) and “giving out information.” The General Counsel
alleges the discharge as a violation of Section 8(a)(3) and (1)
and argues that Respondent seized on these things to fire her
because she was one of the more vocal union supporters. She
worked the 11 p.m. to 7 a.m. shift and at material times here
under the supervision of Susan Fagan.
She signed an 1115 union card November 15, 1993 (G.C.
Exh. 33), and obtained four or five cards from a union organ-
izer which she gave to other employees. From about the time
the representation petition was filed she wore the 1115 pin
while at work and in addition thereto she wore an insignia stat-
ing that she was a union steward and also one stating, “Vote for
1115.”
Williams’ credibly testified that in mid-July as she was
checking the schedule Yves Waterman told her the Union was
no good and she should remove her union buttons and stop
talking about it. He then made a motion as if to physically
remove the buttons himself, but apparently did not touch her.
Williams admits she had received several counseling warn-
ings during her 4 years at King David including one given her
by Gretza Matses for sitting down on the job. She also admits
she did not have a good attendance record throughout her em-
ployment. The employee handbook (G.C. Exh. 9) states to the
effect that employees are permitted two call-ins per quarter and
in excess could result in suspension or termination. Williams
testified that at a meeting with the employees in June, Megill
had said they were permitted three call-offs per month. Megill
denied this and no other employee testified with respect to this
statement. It cannot be credited. Clearly Williams was mis-
taken.
The Employees attendance records subpoenaed by the Gen-
eral Counsel; reveals that Williams did indeed have an atten-
dance problem. In 1992 Williams had 19 call-ins and in 1993
she had 17 and the record does not reveal that the Employer
took any disciplinary action against her. It is unclear as to
whether the permitted call-ins are for sickness only or for any
reason. Williams had a total of 14 call-ins in 1994 at the time
of her discharge. One of Williams call ins which particularly
irked Respondent was on August 4, the day before the election.
Williams was among the first to come to the polling area to
vote on August 5. She overheard Megill tell Whelan that she
had called in the previous night and she was the first in line to
vote and did not appear to be sick.
On August 6, Megill gave Williams a warning for excessive
absences and particularly the August 4 one when she came to
the election with no sign of discomfort. Williams also received
another warning on August 12 alleging that she failed to do
anything during the first half hour of her shift. Megill testified
that in October she again reminded Williams of the absentee
policy.
KING DAVID CENTER 1161
On November 11, Whelan called Williams in and told her
she was terminated for excessive absenteeism and giving out
information. Williams assumed the information she allegedly
gave out to which Whelan was referring was information to the
Union. However, it appears the information Whelan was refer-
ring to was information given to a local newspaper involving
the death of a patient and resulted in a critical article about it in
the November 6 issue. (R. Exh. 61.) Williams denied having
given the information to the newspaper and Whelan does not
explain why she thought it was Williams. The patient about
whom the information was given had never been one of Wil-
liams’ patients and thus Whelan did not posses a good-faith
belief that it was Williams.
Not withstanding the policy concerning call ins in the em-
ployee handbook, it is evident the policy was not uniformly
enforced. Indeed Williams and others had exceeded the permit-
ted call ins in previous years. Indeed in 1993, Joyce Nelmons
had 22 call-ins with no disciplinary action.
Indeed in 1992 and 1993 Williams absentee record was
worse than in 1994 and she was not disciplined. It is noted
there was no union on the scene at that time. Thus, I find that
Williams discharge violates Section 8(a)(3) and (1) of the Act.
11. Carline Dorisca—December 7
The complaint alleges that Respondent violated Section
8(a)(3) and (1) of the Act by refusing Dorisca’s request for a
schedule change and by discharging her on December 7.
Dorisca worked as a CNA for 2 years at King David and was
discharged allegedly for failing to properly care for a patient
assigned to her.
Dorisca’s union activities consisted of signing an 1115 card;
wearing an 1115 pin on her uniform at work; attending the
representation hearing as a witness for the Union and acting as
the union observer at the August 5 election. Dorisca testified
that the day following the representation hearing Yves Water-
man asked her about her attendance there and she told him he
would have to talk to Director of Nursing Betty Whelan.
About 2 weeks prior to the August 5 election she submitted a
request to Lisa Megill for a schedule change so she could attend
a school. Dorisca wanted to work two double shifts and one
single each week.15 Dorisca and other witnesses testified to a
meeting with employees the day before the election at which
Whelan, Megill, and Waterman spoke. Dorisca stated that
Megill told them that if the Union came in there would be no
more special schedules. However, after the meeting Megill told
Dorisca she could have her requested schedule change. The
day after the Union won the election Megill told Dorisca her
request was denied. Later Dorisca and other CNAs were sent
home by Megill who told them they were over staffed.
About 2 weeks before her discharge Dorisca was told by her
supervisor, Susan Fagan, that she had recommended to Megill
that Dorisca be given a raise and Megill had told her to put it on
hold.
Respondent contends that Dorisca was discharged on De-
cember 7 when assistant director of nurses found a patient for
whom Dorisca had been responsible for on the previous shift
covered by dried and caked feces and urine. Dorrett Waterman
the assistant director of nurses testified that about 8 a.m. on
December 7 she had occasion to see patient Virginia Reynolds

15 The record reveals that prior to the election Respondent had ac-
commodated employees requests for altered schedules in order that
they may attend school.
in room 120. Waterman testified that when she arrived the
patient was calling for help and upon pulling the covers back
she found the bed to be dirty-wet and covered with feces.
Waterman got charge nurse, Cassandra Mickens, and nursing
supervisor Art Dryer. Waterman testified it would take several
hours for feces and urine to dry to that extent. Waterman found
that Dorisca had been the CNA for this patient on the 11 p.m. to
7 a.m. shift and that she had previous warnings she decided to
terminate her. Mary Walgousse was told by Waterman to ter-
minate Dorisca for this incident.
Dorisca testified that upon instructions she attempted to get a
urine sample from the patient in 120 at about 6 a.m. and left the
bed pan under her for about 10 minutes without success. She
reported to the charge nurse who said the next shift would have
to get the sample. She then returned to the patient and cleaned
her and changed the bed after which she gave her patient ice
and went home at 7 a.m. The CNA, Joyce Neloms, who had
been on duty for an hour was not reprimanded for not have
discovered the patient’s condition during that time.
Lisa Megill testified at length concerning the duties of the
CNAs and their standard routine at shift change. Her testimony
was that the CNA whose shift had ended would do rounds of all
patients, 10 to 12, with the incoming CNA. Even if that was
not done the incoming CNAs first duty was to “look in ” on all
patients for which they were responsible. It appears from the
incident report Respondent Exhibit 76 that Waterman found the
patient in that condition about 8 a.m., an hour after Dorisca
shift had ended. Further it appears that breakfast is served at
about 7:30 a.m. Waterman’s testimony that it would take sev-
eral hours for feces to dry to that extent and not be detected by
a CNA or nurse is almost inconceivable.
Accordingly, I find this incident was concocted, or at least
greatly exaggerated to give Respondent a reason to discharge
Dorisca for her union activities.
12. Monique Destine—December 9
Destine worked as a CNA at King David from October 1993
to December, 1994. Her union activity consisted of signing an
1115 card and at some point before the August 5 election she
testified she wore a union button (G.C. Exh. 13).
Destine was a Seventh Day Adventist who would not work
from Friday sundown until Saturday sundown. It appears that
she regularly worked Sundays and Mondays and was otherwise
on an “on-call basis.” Destine’s version of her employment is
difficult to understand as her skills in English were very poor.
When she returned she telephoned Art Dryer to inform him
she was ready to go back to work. Dryer told her he did not
have any hours scheduled for her then but that she could call
back. About December 9, Destine called Dryer again and was
informed that he had hired some new people but she could go
on an on-call basis as she had worked before and he would call
her if he needed her. It appears that Destine never called again.
It appears that the employer never completed a termination
form on Destine as it had for all the other employees it termi-
nated.
Not withstanding Respondent’s union animus and egregious
unfair labor practices I find the General Counsel has failed to
establish a prima facie case that Destine was terminated be-
cause of her union activities. Indeed he failed to establish that
she was terminated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1162
13. Marie Esteril—December 9
M. Esteril is the wife of Luders Esteril who has been found
herein to have been discriminatorily discharged on August 25.
M. Esteril worked as a CNA for Respondent from October
1993 until she went on maternity leave July 12, 1994, on the 11
to 7 shift on the first floor. She never returned to work.
About 2 weeks before the August 5 election Esteril testified
that Lisa Megill phoned her about the union election. During
the course of the conversation Esteril stated that Megill told her
. . . . ” If you not vote the Union, you can save your job. If you
vote the Union you can lose your job.” Before going on leave
Esteril’s only union activity consisted of signing a card for
1115 and wearing the union button (G.C. Exh. 13). Prior to
going on maternity leave Esteril‘s husband brought a note from
her doctor stating she should go on leave until after birth.
When she voted on August 5, she was observed by Yves
Waterman and Lisa Megill. Waterman asked if she was ready
to come back to work. Esteril replied that she had come to vote
the Union and was going home. Esteril gave birth in Septem-
ber. About mid-October Esteril called Megill and asked to be
put on schedule. Megill replied fine.
On November 1, Esteril returned to King David for the 11 to
7 shift she looked at the schedule and did not see her name and
without asking a supervisor about it she went back home. She
never called anyone to find out why her name was not on the
schedule. About 5 weeks later in mid-December a friend sug-
gested that she call King David. At that time Lisa Megill had
been terminated by King David and Esteril talked to Art Dryer
who had been her supervisor on the night shift. Dryer did not
immediately recognize the name. She explained who she was
and according to Esteril Dryer said he could not do anything for
her because she and her husband worked for the Union accord-
ing to what Celina and Lisa had told him and he could not put
her on the schedule.
Had Esteril desired to work at King David she would not
have waited 5 weeks to inquire why her name was not on the
schedule. The employee handbook states that 6 weeks is per-
mitted for maternity leave. Here, Esteril’s conduct persuades
me that Esteril was not terminated by Respondent. Art Dryer
admits to having received a call from Esteril on December 9,
and testified that he told Esteril that it would take a few days to
work her into the schedule. At that point Dryer says that Esteril
accused him of not putting her on the schedule because she was
involved in the Union. In short, I find Respondent did not ter-
minate Esteril because of her union activity.
14. Lina Pinquiere—mid-August suspension
Pinquiere has been employed as a CNA at King David on the
3 - 11 shift since November 1992. At material times here Ce-
lina Capresecco was her immediate supervisor. Pinquiere had
admittedly received several counselings about her work per-
formance during her more than 2 years’ of employment. She
wore the 1115 union pin prior to the election which appears to
be the extent of her union activity. During Pinquiere’s shift on
August 16, Capresecco told Pinquiere to put a patient back to
bed Pinquiere retorted that she was picking up the dinner trays.
Five to 15 minutes later Capresecco again instructed Pinquiere
to put the patient to bed and Pinquiere again retorted that she
was almost through picking up the trays and would put the
patient to bed when she finished. Capresecco became irritated
with Pinquiere’s ignoring her instructions and showing that
irritation told Pinquiere to clock out she was suspended for 3
days.16
Clearly, Capresecco considered getting the patient back to
bed more important than removing the food trays at that time.
It appears Pinquiere was blatantly defying her supervisor’s
instructions. The Respondent had discharged other employees
for similar conduct. I find that Respondent did not deem Pin-
quiere to be an effective union advocate. Had it done so it
would have terminated her. In short, I find Pinquiere’s 2-day
suspension was not related to her union activities and thus does
not violate Section 8(a)(3) and (1) of the Act.
15. Jean J. Domond—May 24
The Government alleges that Respondent King David caused
Respondent Healthcare to discharge Domond because of Do-
mond’s union activities and other unlawful reasons. The Gen-
eral Counsel offers Domond’s testimony further in support of
8(a)(1) allegations against both Respondent’s of solicitation of
employees to work against the Union and offering him a $4-
per-hour wage increase to assist them in defeating the Union.
Domond was hired by Healthcare in August 1991, to work in
the laundry at King David. It appears that Domond was re-
sponsible for nonpersonal items, i.e., sheets, towels, diapers,
and bibs while another employee was responsible for the pa-
tients personal items, i.e., clothing.
Domond signed a card for 1115 and testified he was on the
organizing committee. He also wore the 1115 union pin. (G.C.
Exh. 13.) He appeared at the R case hearing on behalf of 1115
one day.
Domond testified that 1 day before his discharge, in April or
May as he was finishing a break, Lisa Megill called him to
Betty Whelan’s office. After he arrived his supervisor, Tom
Rathe came in and slammed the door whereupon Megill locked
it. Present then were Domond, Megill, Whelan, and Rathe.
Domond testified that Megill told him she wanted to make a
deal with him. He alleges that she told him that if he would
assist them in getting rid of the Union she would get him a
wage raise to $10 per hour. Domond was then making $6 an
hour. He states he told her that all the people already knew
about the Union and there was nothing he could do. All the
supervisors present denied that any such incident occurred.
I do not credit Domond based on demeanor and the fact I
hereafter do not credit his testimony with respect to events
leading up to his discharge. In my opinion had such offer have
been made Domond would have jumped at it. This was a 75-
percent wage increase. Moreover, it appears that Domond was
not among the more influential union supporters who might
have been effective in assisting the Respondent to defeat the
Union. This allegation is dismissed.
The events leading up to Domond’s discharge started in mid-
May. Dwanna Brown, an employee of Hospice By the Sea,
was working at King David with a terminally ill patient.16
Brown was a very credible witness and I credit her testimony in
its entirety. The family of the patient with whom she was
working had bought him some new clothes. His wife was com-
ing to visit him and Brown could not locate his clothing. A
CNA suggested that they might be in the laundry room, but she
did not have time to get them for her. Brown went to the laun-

16 R. Exh. 49 indicates that she was actually suspended for only 2
days.
16 Employees of Hospice By the Sea worked at different nursing
homes and hospitals with terminally ill patients.
KING DAVID CENTER 1163
dry room where she found Domond whom she did not recog-
nize by name. She asked Domond about the personnel clothing
a couple of times and he ignored her. She thought there might
be a language barrier. She tried to get him to look on the rack
of clothing there. He kept saying, “I don’t know, I don’t
know.” Brown could not determine if Domond was under-
standing her. Domond was folding sheets and Brown says he
“just snapped” and started snapping the sheet toward her face
and calling her a “bitch” and “M F” as well as “whore” all the
time popping the sheet across her face. She testified that it was
a small area and she couldn’t get out the door. She finally
caught the sheet. All the time Domond was yelling at her. A
maintenance man named Walter Sterling over heard the yelling
and came in and Domond stopped.
Walter paged Tom Rathe for her. She met Rathe on the first
floor and they went outside where she reported to Rathe what
happened. They then went back to the laundry room where
Domond started yelling at Rathe. Brown also called her office
to report the incident. Thereafter Brown changed the hours she
worked at King David. Several employees reported to Brown
that Domond had made threatening and disparaging remarks
about her and Neloms testified to that affect. Brown testified
that even though she changed her hours quite often she would
look around to see Domond and she felt she was being stalked.
Brown reported this continuing conduct to the Hospice office
and to Rathe. Before Rathe could talk to Domond he received a
phone call from Betty Whelan the director of nursing at King
David and told him what she had heard about these incidents
and that she couldn’t have anyone working there who would
threaten her employees.
Rathe attempted to call his manager, Tom Oettenger and
Megill obtained some written statements. The decision was
made to terminate Domond the next working day a Tuesday for
his conduct toward Brown.
I find both King David and Healthcare had good reason to
believe that Domond had engaged in the conduct set forth
above.. I find he was terminated for that reason and his termi-
nation was totally unrelated to his union activity.
16. The 8(a)(2) allegation
The Government alleges that King David unlawfully sup-
ported and assisted District 6 by granting them access to its
facility to hold campaign meetings while prohibiting 1115 ac-
cess to the facility. Ernest Duval testified that the last week in
June and the first week in July he saw District 6 Business Man-
ager Jeffrey Metzger in the King David facility. District 6 was
an intervenor in the upcoming election. Metzger was at the
nurses station on PVM2 between 11 and 11:30 a.m. and also in
the dining room. Metzger talked to CNAs and LPNs while on
the floor and on at least one occasion brought donuts to the
nurses station.
On July 2, at about 2 p.m. Supervisor Gretza Matses an-
nounced over the facility P.A. system, “attention all staff, all
nursing staff, there is a mandatory meeting in the main dining
room at 2:30 p.m.” Duval attended and testified there were
about 15 CNAs and nurses there along with Matses, Metzger
stood in front and made a speech and passed out District 6 un-
ion literature. Matses asked Metzger what advantages District
6 had for the employees. Matses did not deny she attended
such a meeting. Other CNAs testified to this meeting also.
Metzger testified that he was at the King David facility only
once when he had a meeting with the LPNs for which District 6
was the recognized representative. However, Betty Whelan
testified there was no recognition agreement between King
David and District 6. Metzger admitted to having talked to
some of the CNAs.
Upon learning that representatives of District 6 had been
admitted to the King David facility to campaign, 1115 sent a
letter to Betty Whelan requesting access to the facility stating
that District 6 had been given such access to the facility to ad-
dress the employees. Such permission was denied.
Respondent, King David, argues that District 6 was there in
the performance of its duties as the collective-bargaining repre-
sentative of the LPNs.
The evidence is convincing that Metzger was in the King
David facility campaigning among the CNAs to gain support
for District 6 in the up coming election. The denial of equal
access to 1115 violates Section 8(a)(3) and (2) of the Act.
Castways Management, 285 NLRB 954 (1987).
CONCLUSIONS OF LAW
1. Respondent PVM 1 Associates Inc., d/b/a King David
Center and U.S. Management, Inc./I.I.M.S. Joint Employers
(King David) 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.
2. Respondent Healthcare Services Group, Inc. is now, and
has been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
3. The Union, 1115 Nursing Home Hospital and Service
Employees Union-Florida (1115), is now and has been at all
times material, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
4. The Union, International Union of Industrial service
Transport and Health Employees District 6, is now and has
been at all material times a labor organization within the mean-
ing of Section 2(5) of the Act.
5. The following employees of Respondent Healthcare Ser-
vices Group, Inc., constitutes a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act:

All full-time and regular part-time housekeeping and laundry
employees employed by Respondent at King David Center in
West Palm Beach, Florida; excluding all other employees,
guards and supervisors as defined in the Act.

6. At all times material, the Union, 1115, by virtue of Sec-
tion 9(a) of the Act, has been, and is, the exclusive representa-
tive of the employees in the unit set forth in paragraph 5 above,
for the purpose of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and condi-
tions of employment.
7. On or about November 10, 1994, the Union 1115 re-
quested Respondent Healthcare to meet and bargain with it as
the exclusive collective-bargaining representative in the unit,
for the purpose of negotiating the terms of a collective-
bargaining agreement.
8. Since on or about November 10, 1994, Respondent
Healthcare has failed and refused to meet and bargain with the
Union, 1115, which constitutes a violation of Section 8(a)(5) of
the Act which constitutes an unfair labor practice that interferes
with the free flow of commerce.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1164
9. By engaging in the following conduct the Respondent,
King David has engaged in Acts in violation of Section 8(a)(1)
of the Act.
(a) By engaging in surveillance of its employee’ union ac-
tivities and creating the impression that its employees union
activities are under surveillance.
(b) By threatening employees with discharge and/or suspen-
sion because they supported the Union and engaged in activities
on behalf of the Union.
(c) By calling employees troublemakers and threatening to
issue disciplinary warnings to its employees because of their
activities on behalf of the Union.
(d) By threatening to change work schedules and rescinding
previous accommodations it had allowed its employees for their
convenience because they engaged in activities on behalf of the
Union.
(e) By interrogating its employees about their union activi-
ties and such activities of other employees.
(f) By threatening its employees with unspecified reprisals
because they engaged in activities on behalf of the Union.
(g) By attempting to remove union insignia from its employ-
ees uniforms.
10. By engaging in the following conduct, Respondent King
David has engaged in conduct in violation of Section 8(a)(3)
and (1) of the Act.
(a) By more closely scrutinizing and inspecting its employ-
ees work and imposing more onerous working conditions by
increasing their work load because they supported and engaged
in activities on behalf of the Union.
(b) By implementing and enforcing an overly broad rule pro-
hibiting its employees, 95 percent of whom are Haitian, from
conversing in Creole except on their breaktime and in break
areas because they supported and engaged in activities on be-
half of the Union.
(c) By denying its employees CarIine Dorisca a request for a
schedule change because of her activities on behalf of the Un-
ion.
(d) By issuing written disciplinary warnings to its employee
Ernest Duval because of his union activity.
(e) By issuing disciplinary warnings to its employees Caty
Joseph, Luders Esteril, Oettelie Jean Jean-Baptiste, Michelle
Williams because they engaged in activity on behalf of the
Union.
(f) By suspending its employee Quettelie Jean-Baptiste for 1
week because she supported the Union and engaged in activi-
ties on behalf of the Union.
(g) By discharging and thereafter failing and refusing to rein-
state its employees named below because they engaged in ac-
tivities on behalf of the Union.
Jean Aliza—February 25, 1994; Lude Duval—April 21,
1994; Marie Larose—May 31, 1994; Ernest Duval—August 17,
1994; Luders Esteril—August 25, 1994; Marie Pierre Louis—
November 9, 1994; Michelle Williams—November 11, 1994;
and Carline Dorsica—December 7, 1994.
11. By engaging in the following conduct, Respondent has
engaged in conduct in violation of Section 8(a)(2) and (1) of the
Act.
By permitting representatives of International Union of In-
dustrial Service Transport and Health Employees District 6 to
come upon its promises for the purpose of attempting to organ-
ize its employees while denying 1115 Nursing Home Hospital
and Service Employees Union-Florida, similar access to its
premises.
12. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Healthcare engaged in conduct in viola-
tion of Section 8(a)(5) and (1) of the Act, and that King David
engaged in acts that violate Section 8(a)(3), (2) and (1) of the
Act, I shall recommend that both Respondents be ordered to
cease and desist therefrom and to take certain affirmative action
designed to effectuate the purposes and policies of the Act. It is
further ordered that the notice to post pursuant to this order
shall be printed in both Creole and English.
Having found that King David discriminatorily discharged
its employees: Jean Aliza, Lude Duval, Marie Larose, Ernest
Duval, Luders Esteril, Marie Pierre Louis, Michelle Williams,
and Carline Dorisca and discriminatorily suspended Quettelie
Jean-Baptiste for 7 days, I shall recommend that each of them
be offered immediate and full reinstatement to their former
positions of employment or if those positions no longer exists,
to substantially equivalent positions without prejudice to their
seniority and other rights and previously enjoyed and that each
of them be made whole for any loss of earnings they may have
suffered by reason of the discrimination against them with in-
terest thereon. Backpay shall be computed on a quarterly basis,
less net interim earnings as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). I also order
that King David expunge from all files any references to their
discharges and notify them in writing that this has been done
and that evidence of the unlawful actions will not be used as a
basis for any future personnel actions against them.
I further recommend that the personnel files of Ernest Duval,
Caty Joseph, Jean Aliza, Luders Esteril, Quettelie Jean-
Baptiste, and Michelle Williams be cleaned of disciplinary
warnings found above to be unlawful and that such will not be
used against them and they shall be notified such action has
been taken.
Inasmuch as I have found that Healthcare has failed and re-
fused to bargain in good faith with the duly certified collective
bargaining representative of its employees 1115, since Novem-
ber 10, 1994, it shall be ordered to, upon request bargain in
good faith with 1115 on all matters relating to wages, hours and
other terms and condition of employment and if agreement is
reach reduce same to writing and execute same. Such bargain-
ing obligation shall extend for 1 year from the time Healthcare
commences to bargain in good faith. Mar-Jac Poultry C.o.,
136 NLRB 785 (1962).
Finally, King David and Healthcare shall be ordered to post
separate appropriate printed notices in both Creole and English
to employees, copies of which are attached hereto as “Appen-
dix A” and “Appendix B” for a period of 60 days in order that
employees may be apprised of their rights under the Act, and
King David and Healthcare obligation to remedy the unfair
labor practices. Both notices shall be posted at King David and
Healthcare in places where notices are customarily posted in
order to address each employer’s specific violation.
[Recommended Order omitted from publication.]