Manor West, Inc.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 655 (N.L.R.B. 1993)

655
311 NLRB No. 67
MANOR WEST, INC.
1 The Respondent moved that the judge disqualify himself from the
instant proceeding on the grounds that the record reflected state-
ments by him which demonstrated hostility, bias, and prejudice to-
ward the Respondent. The judge denied the Respondent’s motion be-
cause he found that it was nonmeritorious and untimely filed. We
have carefully reviewed the record and we agree with the judge that
the motion to disqualify is without merit. We find, however, that the
motion was timely filed. Sec. 102.37 of the Board’s Rules and Regu-
lations states that a party may request that a judge withdraw from
the proceeding at any time before the judge files his or her decision
by filing with the judge ‘‘with due diligence’’ and ‘‘promptly upon
the discovery of the alleged facts’’ an affidavit setting forth the
grounds for disqualification. The hearing in this matter closed on
June 23, 1992, the Respondent filed its motion to disqualify on Au-
gust 14, 1992, and the judge issued his decision on October 23,
1992. Because the motion was filed only 7 weeks after the close of
the hearing and prior to the issuance of the judge’s decision, we can-
not conclude that the Respondent did not exercise due diligence and
promptness in filing the motion.
The Respondent also moves to strike ‘‘Appendix B’’ of the
judge’s decision on the grounds that it constitutes an unwarranted at-
tack on the Respondent’s counsel. App. B contains the judge’s spe-
cific findings on each of the Respondent’s allegations of bias. Be-
cause the judge relied on these findings in ruling on the motion to
disqualify, we find that the inclusion of App. B is necessary for a
complete record and therefore deny the Respondent’s motion to
strike.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In sec. III,B, par. 3 of his decision, the judge stated that the LPNs
met with Administrator Suzanne Poppelreuter on June 3, when in
fact they met with Director of Nursing Sue Helterbran; in sec.
III,C,2,c,(1), par. 7, the judge stated that an LPN in-training session
was conducted on February 5, 1991, when in fact it was conducted
on February 5, 1990; and in sec. III,C,2,c,(1), par. 8, the judge cited
an incorrect date for Passavant Health Center, 284 NLRB 887, 889
(1987). These inadvertent errors do not affect the outcome of the
case.
3 We shall modify the judge’s recommended Order to reflect our
reversal of his unlawful interrogation finding and to conform the re-
instatement language to that traditionally used by the Board. We
shall also issue a new notice to employees.
4 Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel
& Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985).
5 Contrary to his colleagues, Member Devaney would find
Helterbran’s questioning of Bishop violated Sec. 8(a)(1) of the Act.
In this regard, Member Devaney points out that the conversation
took place with the director of nursing, in her office, and at a time
when Bishop had not yet disclosed his support for unionization.
Member Devaney further notes that, although Bishop was the first
to refer to the employees’ union activities, Helterbran initiated this
Continued
Manor West, Inc. and Sandra Cullinan. Case 8–CA–
24132
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On October 23, 1992, Administrative Law Judge
Joel A. Harmatz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions as modified and to adopt the recommended
Order as modified.3
The judge found, inter alia, that the Respondent vio-
lated Section 8(a)(1) of the Act when Director of Nurs-
ing Sue Helterbran interrogated employee John Bishop
on June 13, 1991. The Respondent excepts to this find-
ing on the grounds that the judge failed to consider the
totality of the circumstances of the alleged interroga-
tion, and failed to balance properly the factors enun-
ciated in Rossmore House4 for determining whether an
interrogation violates the Act. Based on our review of
the evidence, as summarized below, we agree with the
Respondent that Helterbran’s questioning of Bishop
did not have a reasonable tendency to interfere with,
restrain, and coerce Bishop in the exercise of his rights
guaranteed by Section 7 of the Act.
LPN Bishop went to Helterbran’s office to discuss
an incident that occurred the previous night. During
the course of the discussion, Helterbran stated that
there ‘‘had been several problems popping up in the
facility with the staff and she was wondering if
[Bishop] could shed any light on the general situation
in the facility.’’ Bishop replied that he thought morale
was at a very low point and that ‘‘things were so bad
that the people were talking of starting a union.’’ He
also reported that he had been approached by LPN
Sandra Cullinan about starting a union. Helterbran then
asked Bishop how he felt about a union. Bishop re-
plied that it had its good and bad points, and that it
could be beneficial.
At the time of the discussion, the Respondent had
not engaged in any unlawful conduct, and it appears
that the Respondent had no prior knowledge of the em-
ployees’ union activities. Bishop initiated the conversa-
tion and volunteered the information about the Union.
Further, Bishop seems to have answered Helterbran’s
question honestly, in an exchange that was otherwise
free of threats, promises, or other coercive activity.
Under these circumstances, we do not find
Helterbran’s questioning to be coercive, and therefore
reverse the judge’s conclusion that the Respondent in-
terrogated Bishop in violation of Section 8(a)(1). See
Rossmore House, supra.5
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
topic by asking Bishop whether he could ‘‘shed any light’’ on the
problems ‘‘popping up’’ in the facility, and that Helterbran specifi-
cally asked Bishop how he felt about a union. In these cir-
cumstances, Member Devaney would find that the questioning of
Bishop reasonably tended to be coercive and was unlawful.
1 The name of the Respondent appears as amended at the hearing.
2 The name of the Charging Party appears as corrected at the hear-
ing.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3.
‘‘3. The Respondent violated Section 8(a)(1) of the
Act by informing an employee that his job was in
jeopardy because of his suspected involvement in ac-
tivity protected by Section 7 of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Manor
West, Inc., Austintown, Ohio, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
1. Delete paragraph 1(a) and reletter the subsequent
paragraphs.
2. Substitute the following for paragraph 2(a).
‘‘(a) Offer Sandra Cullinan immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privi-
leges previously enjoyed, and make her whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against her, in the manner set
forth in the remedy section of the decision.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten you with discharge because
of suspected or actual participation in activity pro-
tected by Section 7 of the Act.
WE WILL NOT discourage membership in a labor or-
ganization or participation in concerted activity for
mutual aid and protection by discharging or in any
other manner discriminating against you with respect
to wages, hours, or other terms and conditions of em-
ployment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Sandra Cullinan immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privi-
leges previously enjoyed and WE WILL make her whole
for any loss of earnings and other benefits resulting
from her discharge, less any net interim earnings, plus
interest.
WE WILL remove from our files, delete, and expunge
any and all reference to the unlawful termination of
Sandra Cullinan, and notify her in writing that we have
done so, and that her termination will not be used
against her in the future.
MANOR WEST, INC.
Nancy Butler, Esq., for the General Counsel.
David H. Shaffer and Gayle M. Montalto, Esqs. (Joondeph
& Shaffer), of Akron, Ohio, for the Respondent.
Staughton Lynd, Esq., of Youngstown, Ohio, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Youngstown, Ohio, on June 22 and 23, 1992,
on an original unfair labor practice charge filed on November
27, 1991, and a complaint issued on January 27, 1992, alleg-
ing that the Respondent, Manor West, Inc.,1 independently
violated Section 8(a)(1) of the Act by coercively interro-
gating and threatening an employee concerning union activity
and violated Section 8(a)(3) and (1) of the Act by on June
18, 1991, discharging its employee Sandra Cullinan.2 In its
duly filed answer, the Respondent denied that any unfair
labor practices were committed.
After close of the hearing, the Respondent filed a motion
to disqualify the administrative law judge pursuant to Section
102.37 of the Board’s Rules and Regulations. The motion
was accompanied by a supporting memorandum, together
with affidavits signed by the Respondent’s lead counsel,
David H. Shaffer, who described his practice as ‘‘limited to
representation of employers in matters arising under the Na-
tional Labor Relations Act,’’ and a second affidavit executed
by his associate, Gayle M. Montalto. These documents at-
tribute bias and prejudice, or an appearance thereof, to me
in the conduct of the hearing in the above-captioned matter.
657MANOR WEST, INC.
3 After close of the hearing, pursuant to an agreement made in the
course thereof, certain documents were received either by stipulation
or consent. Accordingly, the record is reopened to receive R. Exhs.
28, 29, and 30(a) and (b). In addition, a motion by the Respondent
to receive its additional Exhs. 23, 24, 25, 26, and 27 was denied in
a ruling by me dated July 29, 1992, and these documents remain in
a rejected exhibit file. In this regard, the record is reopened for re-
ceipt of:
ALJ Exh. 1(a) - Respondent’s motion dated June 25, 1992.
ALJ Exh. 1(b) - A description of rebuttal exhibits.
ALJ Exh. 1(c) - Respondent’s memorandum dated June 25.
ALJ Exh. 1(d) - Charging Party’s response dated June 29.
ALJ Exh. 1(e) - General Counsel’s reply dated July 7.
ALJ Exh. 1(f) - Respondent’s letter to ALJ dated June 25.
ALJ Exh. 1(g) - ALJ’s letter to Respondent dated July 6.
ALJ Exh. 1(h) - Respondent’s cover letter and ‘‘Reply Memo-
randum’’ dated July 2.
ALJ Exh. 1(i) - Respondent’s cover letter and ‘‘Supplemental
Memorandum’’ of July 14.
ALJ Exh. 1(j) - ALJ’s Ruling dated July 29.
Further, the record is also reopened to include the filings pertaining
to the Respondent’s motion to disqualify, as follows:
ALJ Exh. 2(a) - The Respondent’s motion to disqualify.
ALJ Exh. 2(b) - Memorandum in support of motion to dis-
qualify.
ALJ Exh. 2(c) - Supporting affidavit of David H. Shaffer.
ALJ Exh. 2(d) - Supporting affidavit of Gayle M. Montalto.
ALJ Exh. 2(e) - The General Counsel’s opposition.
ALJ Exh. 2(f) - The Respondent’s reply.
Finally, the Respondent’s posthearing brief, like its various other fil-
ings in connection with this case, is replete with erroneous represen-
tations of fact which, considering their number and materiality, may
not be lightly dismissed either as innocent mistake or fair argu-
mentation. The brief is made part of the record as ALJ Exh. 3 as
an aid to consideration of the reliability of characterizations made on
behalf of the Respondent which are either subjective or not
verifiable by the record. In addition, it is hoped that fully docu-
mented exposure of this proclivity will prove beneficial to any re-
viewing authority by encouraging a more credible and straight-
forward definition of what the evidence discloses than has been of-
fered at this level.
4 Following close of the hearing, the Respondent filed a motion to
correct inadvertent errors in the official transcript of proceeding. To
the extent consistent with my notes and recollection, for the most
part, the errors cited and others have been corrected on ‘‘APPEN-
DIX A’’ attached to this decision. [App. A has been omitted from
publication.] However, certain changes have been spurned because
they are not necessary to an understanding of the record. 5 All dates refer to 1991 unless otherwise indicated.
A timely opposition was filed by counsel for the General
Counsel, followed by a request on behalf of the Respondent
for leave to file a reply, which is granted. For reasons stated
infra, the motion for disqualification is denied as insubstan-
tial. The merits of the issues in controversy were briefed by
the General Counsel and the Respondent.
On the entire record,3 including my opportunity directly to
observe the witnesses and their demeanor, and after consid-
ering the posthearing briefs, I make the following4
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Ohio corporation, from its facility in
Austintown, Ohio, is, and has been, engaged in the operation
of a skilled long-term care nursing home and rehabilitation
center. In the course of that operation, the Respondent annu-
ally derives gross revenues in excess of $100,000, and pur-
chases and receives at the facility goods valued in excess of
$5000 directly from outside the State of Ohio.
The complaint alleges, the answer admits, and I find that
the Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
District 1199, the Health Care and Social Services Union,
SEIU, AFL–CIO (the Union) is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
This proceeding is essentially concerned with the dis-
charge of Sandra Cullinan, a licensed practical nurse (LPN).
The General Counsel contends that she was terminated in re-
prisal for union activity as well as conversations with co-
workers pertaining to wages and conditions of work, includ-
ing the possibility of a work stoppage in furtherance of em-
ployee interests. The Respondent defends essentially on
grounds that Cullinan, as an LPN, was a supervisor within
the meaning of the Act and hence was fair game for dis-
charge. Alternatively, the Respondent denies that Cullinan
was discharged in reprisal for any activity protected by the
Act. The complaint also includes allegations that the Re-
spondent independently violated Section 8(a)(1) of the Act
when, as the General Counsel contends, another LPN, John
Bishop, was interrogated and threatened concerning union ac-
tivity.
B. Interference, Restraint, and Coercion
By way of background, it appears that employees at the
Respondent’s nursing home are not represented by a labor
organization. Prior to the events in issue here, concern
emerged among the LPNs regarding the level of wages and
the amount of recent increases. In connection therewith, Su-
zanne Poppelreuter, the licensed administrator, of the home
met with them in May 1991.5
About the second week of May, Sandy Cullinan, the al-
leged discriminatee, contacted the Union, primarily because
of working conditions, including failure to abide by an al-
leged promise to furnish an adequate pay raise. It was
Cullinan’s position that this denial affected recruitment,
thereby causing staff shortages, which raised concern for pa-
tient safety. In addition, a lack of air-conditioning, as prom-
ised made it extremely hot. Bishop was informed by Cullinan
that she had contacted the Union.
On or about June 3, Poppelreuter again met with several
LPNs. Cullinan acted as spokesperson for the latter, and pre-
sented Poppelreuter a list of concerns that she had prepared
with input from other LPNs. Poppelreuter indicated that she
would make an effort to provide a response.
Against this background, on June 13, Bishop, who had at-
tended the meetings with Poppelreuter, called on Director of
Nursing Helterbran. His purpose was to discuss an aide
whose conduct precipitated an incident in his area the night
before. As he reported the incident, Helterbran advised that
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 See, e.g., Rossmore House, 269 NLRB 1176 (1984), enfd. sub
nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985).
7 Helterbran testified that her information from the aides was con-
firmed after her conversation with Poppelreuter, when Cullinan ap-
proached her stating, ‘‘You’re very lucky . . . . we were all going
to leave.’’
8 See, e.g., General Counsel’s Exhibit 9(c) (GCX–9(c)). Cullinan
was the only witness to the lunchroom conversation which triggered
her discharge. Her uncontested account fell easily within the protec-
tive mantle of Sec. 7 of the Act. Poppelreuter’s own testimony dem-
onstrates that Cullinan was discharged on the basis of the Respond-
ent’s understanding, gleaned solely from a report, as to what had
transpired in the lunchroom. The latter’s own description of the basis
for her action reflects that she acted on a proscribed motivation, for,
in the health care industry, an invitation to engage in a work stop-
page falls within the protective mantle of Sec. 7. See, e.g., Keyway,
263 NLRB 1168 (1982). Thus, the General Counsel has dem-
onstrated, virtually to the point of admission, that this discharge was
founded on considerations inimical to statutory guarantees.
there were several problems ‘‘popping up in the facility with
the staff,’’ and inquired if Bishop ‘‘could shed light on the
situation.’’ Bishop replied that morale was so low that people
were talking about starting a union and that he had been ap-
proached by Cullinan in that regard. Helterbran then inquired
as to Bishop’s feelings about a union. Bishop replied that it
had good and bad points and might be beneficial. The Gen-
eral Counsel contends that the Respondent violated Section
8(a)(1) through Helterbran’s inquiry concerning Bishop’s
union sentiment. The uninvited questioning of an employee
concerning union sentiment, at least facially, is coercive,
where waged, as here, by a high-ranking functionary at a
locus of managerial authority, and where addressed to an em-
ployee who had not previously disclosed his or her interest
or proclivities. On this record, I would find that the Respond-
ent thereby violated Section 8(a)(1)6 should it be concluded
that Bishop is an employee entitled to the protection of Sec-
tion 7 of the Act.
Cullinan was discharged on June 18. Later that day,
Bishop, at or about 4 p.m., was summoned to Helterbran’s
office. The latter opened the conversation by advising Bishop
that Cullinan had been terminated. Bishop indicated that he
had learned of the discharge. Helterbran stated that Bishop’s
name was ‘‘also brought up in the incident with Sandy
[Cullinan],’’ adding that there were several complaints about
Bishop’s ‘‘bad attitude.’’ She further explained that if the
complaint had been made by only one person, it would be
dismissed as a ‘‘personality conflict,’’ but because there were
‘‘several complaints,’’ she believed there was substance to
them, and should they continue, Bishop ‘‘also’’ would be
terminated. Bishop replied that his ‘‘attitude’’ had never been
questioned before, and he asked if Helterbran could be more
specific. She replied that she had nothing specific. Bishop
testified, without contradiction, that he had never been
warned, verbally or in writing, concerning his attitude.
The General Counsel contends that Helterbran thereby
threatened Bishop in violation of Section 8(a)(1). On the face
of his uncontradicted testimony it seems evident that he was
called to Helterbran’s office to be informed that his job was
in jeopardy. In doing so, Helterbran made vague references
to an undefined, unprecedented, ‘‘attitude problem’’ which
would not disassociate the threat of discharge from the fact
that she had implicated him in an ‘‘incident’’ with Cullinan
who had just been discharged. As shall be seen below, there
is no evidence that Cullinan engaged in any conduct other
than that which fell within Section 7 of the Act. In these cir-
cumstances, and as it is found below that the latter was dis-
charged on statutorally proscribed grounds, it follows that
unless the LPNs are supervisors, the Respondent violated
Section 8(a)(1) in this respect as well.
C. The Discharge
1. The motivation
Cullinan was hired on October 5, 1988, by the Respond-
ent’s predecessor, Sleigh Bell Nursing Home (Sleigh Bell).
She was discharged by the Respondent on June 18, 1991.
Throughout her tenure, she worked as an LPN. Although
customarily assigned to the evening shift, when discharged,
Cullinan was working the day turn. Apart from the fact that
she had previously contacted the Union, and the Respondent
knew it, Cullinan that day, at or about 1 p.m., while still on
her break, went to the lunchroom to have a coke. Several
aides and members of the dietary and housekeeping staff
were present, expressing outrage because they were bypassed
when a related facility supposedly had received a 75-cent
hourly increase. They discussed among themselves what they
might do about it, and solicited Cullinan’s opinion as to the
propriety of a walkout. She replied that she thought that ‘‘a
walkout would get somebody’s attention, but [she] did not
think it would be effective at that point in time.’’ Cullinan
advised that they would be better off organizing a union, and
that ‘‘a potential walkout down the road would be possible
if the company did not negotiate.’’
Cullinan then left to return to her station, but first stopped
at station 1 where she ran into Helterbran. Cullinan asked
Helterbran if anything had been done about a list of griev-
ances presented on behalf of the LPNs at the June 3 meeting
with Poppelreuter. Helterbran responded: ‘‘Sandy, Sandy,
Sandy, what am I going to do with you?’’ Cullinan then re-
turned to her station. About 5 or 10 minutes later, she was
summoned to Helterbran’s office, where she was told that
she was discharged ‘‘immediately.’’ Cullinan asked why,
whereupon Helterbran stated that she had ‘‘just heard a
rumor that [Cullinan] . . . had approached two employees to
walk out.’’ Helterbran, on request of Cullinan, refused to dis-
close the source of the ‘‘rumor.’’ Helterbran then escorted
Cullinan as she picked up her belongings and then to the
door of the facility. Cullinan was denied an opportunity to
speak either with the owner or the administrator of the facil-
ity.
Helterbran testified that on June 18, two aides reported
that Cullinan ‘‘was trying to get everyone to walk out.’’
Helterbran, in turn, between 12:30 and 1 p.m., relayed the
report to Suzanne Poppelreuter, the chief management func-
tionary at the facility. The latter instructed Helterbran to ter-
minate Cullinan.7
Poppelreuter confirms that she made the decision to termi-
nate Cullinan immediately on being informed by Helterbran
that the latter ‘‘was trying to get the nursing assistants to
walk out.’’8 There was no attempt on her part to seek out
Cullinan’s version of what might have occurred. She pro-
vides no other explanation for the cause of the discharge.
659MANOR WEST, INC.
9 Even if competent evidence showed that the Respondent acted on
‘‘a good faith belief’’ that misconduct was involved, it acted at its
peril in discharging Cullinan on that assumption. For if, as is the
case here, Cullinan’s actual behavior reflected nothing that would re-
move statutory guarantees, the Respondent’s good-faith belief would
be insubstantial. NLRB v. Burnup & Sims, 379 U.S. 21 (1964).
10 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
11 The Respondent employees three charge nurses. This position is
occupied by an LPN who receives a 50-cent hourly premium and
performs extensive paperwork. Cullinan never served in that capac-
ity.
12 Respondent’s Exhibit 2 (R. Exh. 2 or RX–2). Cullinan denied
that the signature appearing on the attached roll was hers, and she
could not recall ever attending a meeting in which it was explained
that the aides were under supervision of the LPNs.
By way of posthearing brief, counsel for the Respondent
states that Cullinan was discharged because of ‘‘her per-
ceived disloyalty to the Employer.’’ The assertion is spe-
cious. Neither Poppelreuter nor Helterbran was examined by
the Respondent as to any justification for the discharge, and
the record contains nothing which would lend substance to
this naked claim. Hence, based on Cullinan’s credited testi-
mony, which is the only evidence of what occurred during
the critical lunchtime conversation,9 it is concluded that, un-
less Cullinan is found to have been a statutory supervisor,
her discharge violated Section 8(a)(1) of the Act.
The General Counsel has also substantiated, prima facie,
that Cullinan was terminated in reprisal for union activity,
thus violating Section 8(a)(3) and (1) of the Act as well.
Uncontradicted evidence establishes that earlier, in the month
of her discharge, Cullinan had contacted the Union. Bishop,
in his June 13 conversation with Helterbran, informed the
latter that Cullinan had approached him concerning a union.
Union animus and the fact that any organization campaign
had been thwarted by the discharge of Cullinan were linked
by Poppelreuter, who after the discharge, stated in an internal
memo:
I honestly don’t feel with Ms. Cullinan gone there is
potential for a union here. I’m a little high strung when
I hear the word union. [GCX–9(c).]
The foregoing warrants an inference that union activity was
at least ‘‘a’’ motive for the termination. Against this back-
ground, the Respondent elected to refrain from presenting a
scintilla tending to demonstrate that the termination would
have occurred even in the absence of union activity.10 Here
again the Respondent appears to prefer argument to evidence.
In its posthearing brief, it is argued that union activity could
not have been a motivating factor because a document subse-
quently prepared by Poppelreuter indicates that organization
was unknown to her at the time of discharge. Here, the Re-
spondent seeks to gain comfort from a document, which not
only did it decline to offer, but also was received over its
objection on grounds of relevance. (GCX–9(c).) In any event,
the document is unsworn and Poppelreuter was not examined
as to the accuracy of its content. Poppelreuter was available,
but not examined as to what she knew about Cullinan’s
union proclivity at the time of discharge. Here again, the Re-
spondent failed to adduce evidence in substantiation of its
position and has allowed the record to stand without pro-
bative evidence as to just when Poppelreuter learned of
Cullinan’s involvement. Hence, apart from the supervisory
issue, the discharge also violated Section 8(a)(3) and (1) of
the Act.
2. The supervisory issue
a. Preliminary statement
As indicated, Suzanne Poppelreuter is responsible for over-
all operations at the home, a 98-bed facility. A number of
‘‘department’’ heads report directly to her, including house-
keeping, quality assurance, infection control, food service,
staff development, accounting, maintenance, and nursing. Of
concern here is the nursing department headed by Helterbran,
the director of nursing. Within her jurisdiction are RNs,
charge nurses,11 and LPNs. The LPNs report to the RNs,
who, at times material were called ‘‘nursing supervisors.’’
The LPNs, in turn, oversee, but join aides and orderlies in
providing hands-on, patient care.
Poppelreuter became administrator after the Respondent’s
acquisition of the facility in May 1990. The LPNs’ authority
under Sleigh Bell, the predecessor, at least inferentially,
would have been greater. Sleigh Bell was licensed as a an
‘‘intermediate care facility.’’ As such, it was required to re-
tain an RN only on the daylight shift. Thus, LPNs were the
sole arm of management at the facility during major portions
of the workweek.
The Respondent, however, was licensed at a higher level
of care, being a ‘‘skilled nursing facility,’’ a classification
that allowed housing for Medicare patients, but was subject
to more stringent requirements, including round-the-clock, 7-
day manning by an RN. Thus, after the Respondent acceded
to ownership of the facility and hired the requisite com-
plement of RNs, the LPNs seldom were the sole representa-
tives of management available in the home. On those limited
occasions, an RN was always on call. Although proportionate
staffing in the area of nursing care is not defined precisely
on this record, it is suggested that 11 aides worked the day-
light shift. Beyond that the only other testimony on the point
was testimony by Helterbran that on the afternoon shift, an
RN would ‘‘supervise’’ LPNs and seven to nine aides in the
entire home.
b. The appellation
At the threshold is a question as to whether LPNs, prior
to the Cullinan discharge, had been referred to within the Re-
spondent’s operation as ‘‘supervisors.’’ A form of this term
was in use at both Sleigh Bell and the Respondent, but the
usage did not suggest that LPNs had been awarded that title.
For example, on February 5, 1990, Sleigh Bell conducted
a periodic ‘‘in-service training’’ meeting. It was attended
solely by RNs and LPNs. The session was governed by a
documented agenda that expressly declared that the aides
were subject to the ‘‘supervision’’ of those attending.12 Ear-
lier, on July 16, 1987, a few months prior to Cullinan’s hire,
LPNs were counseled as to their role as an ‘‘immediate su-
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Bishop testified that after the discharge of Cullinan, the LPNs
were told that we would be called ‘‘supervisors.’’
14 Cullinan testified that to the best of her knowledge she did not
attend a meeting where the topics mentioned on March 7 were dis-
cussed. She identified her signature on the separate list presented by
the Respondent along with that document. RX–1(a). She could not
agree, however, that that particular sign-in sheet actually related to
the March 7 meeting. Although Bishop initially denied attending
such a meeting, after shown the attendance sheet bearing his signa-
ture, he did recall that he attended a session where those present
were informed of the grounds for immediate dismissal.
15 The Respondent’s ‘‘Employment Handbook,’’ p. 14, sets forth
a report off procedure which requires the employee to report lateness
in advance to his or her ‘‘immediate supervisor or RN supervisor.’’
GCX–7. There is no indication that this requirement is limited to the
nursing department, and, accordingly, the term immediate supervisor
as used there would not necessarily embrace the LPN.
16 NLRB v. Southern Bleachery & Print Works, 257 F.2d 235, 239
(4th Cir. 1958). Pine Manor Nursing Home, 238 NLRB 1654 and
cases cited at 1655 (1978). The issue of is not to be confused with
the agency concept of apparent authority, whereby an employer
would be bound by the conduct of those held out as empowered to
speak in its behalf. The result would be the same under this doctrine
whether the subordinate actually held such authority. Thus, the fact
that LPNs and RNs wore common uniforms and attended meetings
with management representatives might suggest to subordinates that
they were part of supervision, but would not override the need for
proof that Sec. 2(11) authority was actually held.
17 For example, this process was used by Cullinan to report that
she had directed an aide to clean up her work area. RX–3(c). On
another, she recorded that she had to intervene, through investigation
and identification of the aide responsible, where a patient that re-
quired feeding was not in fact fed. RX–3(d). She had also done so
in connection with a family complaint that a resident’s soiled gar-
ments had not been changed. At that time, Cullinan reported that the
aide in question also had made an insolent remark in front of the
relatives when alerted to their complaint. RX–3(e).
18 This is based on the testimony of Helterbran. It does not appear,
and it seems unlikely, that Helterbran would be the custodian of per-
sonnel files. There is no evidence that a duplicate is retained in the
employee’s personnel file.
pervisor of nurses aides . . . [and] to some extent house-
keeping personnel.’’ (RX–11.)
The General Counsel’s principal witnesses on the super-
visory issue were Cullinan, John Bishop, and Kathleen Best.
Bishop remains in the Respondent’s employ as an LPN. Best
occupied that position until her employment ended on Au-
gust 27, 1990. All three denied being informed that they
were supervisors.13
Consistent therewith, documentary evidence shows that
after the Respondent took over in May 1990, the expanded
corp of RNs and others at higher levels—but, not the
LPNs—were called supervisors. Thus, on March 7, 1991,
such a session was conducted for ‘‘all nurses and nursing su-
pervisors’’ at which the disciplinary system was explained.
RX–1(a). The meeting was attended by LPNs and RNs. RX–
1(b). Helterbran testified that the RNs were the referenced
‘‘nursing supervisors.’’ It follows, that the appellation,
‘‘nurses’’ on that announcement embraced the LPNs.14 This
conforms with several of the Respondent’s working papers.
Thus, on the monthly schedule affecting RNs and LPNs,
only the former are identified with ‘‘SUP,’’ which Helterbran
described as an abbreviation for supervisor. (GCX–5.) In ad-
dition, the job description issued by the Respondent for the
‘‘staff nurse’’ does not state that those covered are super-
visors. (RX–13.) Instead, that document requires that they
‘‘Assist supervisors in care and management of the unit. . . .
and [c]arry . . . out instructions of Supervisors.’’ Although
Helterbran testified that the reference was to LPNs and not
RNs, this construction seemed illogical on the face of the
document and in light of other objective proof as to just who
held the title of ‘‘supervisor.’’ The job description, which ap-
parently had not been circulated to those affected, does use
the term ‘‘supervise’’ to characterize a sector of the responsi-
bility of the staff nurse, and, thus, again uses the term in the
functional sense, without stating that the LPNs were called
supervisors.15 Finally, it is noteworthy that after Cullinan’s
discharge, among the changes affecting the status of the
LPNs was a new title. Thus, consistent with Bishop’s
undenied testimony, the term ‘‘nursing supervisors’’ was be-
stowed on them and removed from the RNs, who were given
the title, ‘‘nursing coordinator.’’
In any event, the question is somewhat beside the point.
For, it is the authority, rather than title assigned by the em-
ployer, that is determinative.16 Thus, the Respondent, in
order to prevail, is required to demonstrate by a preponder-
ance of the evidence, that Cullinan, actually possessed the
authority specified in Section 2(11) of the Act. Ohio Masonic
Home, 295 NLRB 390, 393 (1989). It is instructive, how-
ever, that after Cullinan’s discharge, the Respondent seized
on the opportunity to bestow the title on the LPNs.
c. Discipline
(1) The duty to monitor and report
Cullinan denied that she had a role, either as a participant
or consultant, in determining whether aides or orderlies
should be disciplined, or to what degree. Nevertheless, she
and other LPNs were expected to and, on a regular basis, did
in fact monitor, correct, and report failures in the perform-
ance of hourly personnel, particularly, the nurses aides. How-
ever, beyond the role of documentation, it is not so clear that
the LPNs have any role in disciplinary enforcement, directly
or through recommendation, either their own directives, ac-
cepted standards of patient care, or the Respondent’s policies
and practices.
Basically, the LPN would monitor and report on a variety
of matters affecting patient care. Every incident of signifi-
cance would be memorialized by the LPN in a ‘‘situation re-
port.’’ This document included a description of the infraction
and the nature of corrective action taken by the LPN.17 The
completed forms were submitted to the office of the director
of nursing, where they were filed and maintained.18 As might
be expected, it would not be unusual for a superior to take
followup action with the LPN involved to clarify or develop
further information with respect to data contained on his or
her ‘‘situation report.’’
In addition to the ‘‘situation report,’’ LPNs were encour-
aged to prepare forms called ‘‘employee problem area.’’
These documents also described incidents where employees
engaged in a breakdown of their responsibilities. Occasion-
ally, they would reflect that the LPN had taken steps to
counsel or correct aides for poor work practices or deviation
from routine health care norms. In one such document, under
date of December 16, 1990, Cullinan iterates that she had oc-
661MANOR WEST, INC.
19 The term discipline as used in this section includes every con-
ventional form of adverse action other than sending an employee
home. Action of this latter type is treated separately below.
20 Counsel for the Respondent cross-examined Cullinan at length
concerning her authority during the Sleigh Bell era. He represented
to me that through this tact, he would get Cullinan to admit that she
was a supervisor at Sleigh Bell and that this did not change after
Respondent’s accession as operator. However, as matters turned out
this combination would go unproven through the Respondent’s own
evidence. In any event, Cullinan conceded that at Sleigh Bell she
served as ‘‘the eyes and ears . . . on duty at the time,’’ because an
RN was present only occasionally. She insists, however, that she was
not asked for a recommendation on discipline, and never provided
one, but simply reported facts.
21 This testimony is no more reliable than Helterbran’s cor-
responding generality that RNs and LPNs are the ‘‘same’’ in that
‘‘their jobs are no different, they’re supervisory staff, they’re in the
same category as each other.’’ This, if true, would have a material,
if not dispositive impact on the result. For, the RNs, unquestionably,
at all times possessed indicia of supervisory status set forth in Sec.
2(11) of the Act. However, the LPNs are by no means at the same
level of authority. Thus, they are subordinate to the RNs. The RNs,
but not the LPNs, prior to the Cullinan discharge, were called ‘‘nurs-
ing supervisors.’’ Their hourly earnings range to more than 25 per-
cent higher than LPNs. GCX–6(a) and (b). More importantly, during
the relevant time frame, the RNs, not the LPNs, on their own, de-
cided on and disciplined the aides, scheduled the aides to their shift
and section, and routinely assigned them to patients. Is it possible
that counsel was unaware of these distinctions when this testimony
was exacted from the director of nursing?
22 Cullinan denied that during her tenure, a single representative of
the Respondent ever asked for a recommendation as to whether or
just what discipline should be invoked. This testimony was not de-
nied. Helterbran did relate that, on an infrequent basis, she did
‘‘query LPNs about recommendations for discipline.’’ However, she
appeared to stumble over the specifics of such requests, and, in any
event, the conversations she describes suggest an off-hand inquiry as
part of a running discussion concerning an aide’s performance, rather
than the type of direct request for a disciplinary recommendation
that would lead one to believe that the LPN was a participant in any
disciplinary process. Her testimony certainly does not suggest that
she ever requested an LPN’s opinion on discipline in connection
with a specific report of misconduct provided by the latter. More-
over, her testimony in this area was plagued by prejudicially leading
questions, and it was my impression that as to the material aspects
of this testimony, Helterbran, when pressed for details, detoured to
argumentation, rather than actual experience. Her testimony in this
respect struck as unreliable and is rejected.
casion to ‘‘advise’’ an aide ‘‘to do things over and do them
right.’’ (RX–3(f).)
Moreover, apart from formal reports, the LPNs could
maintain operational security by seeking direct intervention
of an RN, who ordinarily would be present, but if not avail-
able at the facility, would be accessible as ‘‘on call.’’
The Respondent suggests that LPNs when employed by
Sleigh Bell had authority to discipline and that this did not
change when it assumed ownership and control of the facil-
ity.19 It is conceivable that such authority existed at Sleigh
Bell.20 An LPN in-training agenda held by the latter on July
16, 1987, portends discussion pertaining to the appropriate
use of oral and written warnings, thus, possibly implying that
the LPNs in attendance had authority to effect such dis-
cipline. (RX–11.)
That this authority remained in place after May 1990 is
not so clear. The Respondent asserts in its brief that, in the
process of completing situation reports and problem area
forms, the LPNs were expected ‘‘to recommend further ac-
tion if necessary.’’ At least prior to the discharge, the record
fails to afford a foundation for this representation. Not one
witness testified that this was the case, nor does it appear
that the LPNs were ever encouraged to make any such rec-
ommendations. Helterbran did testify generally that after the
Respondent assumed control of the facility, there was no
change in the authority or responsibility of the LPNs. The
gap is not filled by this sweeping, highly argumentative ob-
servation.21 Nor is anything concrete forthcoming from an-
other of Respondent’s witnesses Karlon Ware, an LPN, who
presently serves as the Respondent’s staff development coor-
dinator. Ware agreed that, after the transition, the authority
of the LPNs was ‘‘basically the same.’’ Yet, neither testified
that LPNs were ‘‘expected’’ to make recommendations con-
cerning discipline, nor did they suggest that at any time be-
tween May 1990 and Cullinan’s discharge on June 17, 1991,
LPNs were informed that they had authority to recommend
or effect discipline in any conventional form.22 Finally, the
representation by the Respondent’s counsel is far from con-
firmed by the vast documentation offered by the Respondent
ostensibly to support its position. From this collection, it ap-
pears that during Cullinan’s employment by the Respondent,
not once did an LPN issue a recommendation on discipline,
or, on his or her own, dispense a reprimand or other penalty
cognizable under the established system of discipline.
Thus, whatever the situation at Sleigh Bell, the ‘‘situation
reports’’ and ‘‘problem area’’ forms on their face are con-
sistent with Cullinan’s denials that the Respondent’s LPNs
had authority either to recommend or issue any form of dis-
cipline. Indeed, on February 5, 1991, an ‘‘LPN in-training
session’’ was conducted by Helterbran and Poppelreuter on
behalf of Manor West. The agenda sheet used on that occa-
sion indicated that LPNs were informed that the aides were
under their supervision. Yet, that document includes no sug-
gestion that LPNs were empowered to issue warnings or dis-
cipline of any kind. Instead, their enforcement powers were
evident solely through instruction that they use the ‘‘situation
reports’’ and monitor the availability of the aides. (RX–2.)
Also noteworthy is the fact that the job description for the
‘‘staff nurse’’ defines the occupant’s role as providing ‘‘lead-
ership of the professional and non-professional staff.’’ It
fails, however, to entrust them with any authority to warn,
reprimand, or otherwise discipline. (RX–13.) Finally, the Re-
spondent introduced ‘‘corrective action forms,’’ documents
that allotted space for LPNs and higher ranking functionaries
to recommend suggested types of discipline, ranging from
reprimand to discharge. These documents existed and were
used by higher management prior to Cullinan’s discharge.
(RX–28.) However, consistent with the uncontradicted testi-
mony of LPN Bishop, it was not until August 1991 that
LPNs were authorized to issue them. (RX–18(a) through
(nn).) At that time, these documents replaced the ‘‘situation
reports.’’ This after-the-fact documentation stands as the sole
evidence that LPNs employed by the Respondent ever, acting
independently, ministered formal discipline.
On the foregoing, it is concluded that the enforcement role
of the LPNs, except in the extreme cases considered below,
and during the relevant time frame fell within the Board’s
admonition that ‘‘mere factual reporting . . . that do[es] not
affect job status or tenure do[es] not automatically constitute
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 In Ohio Masonic, supra, it was assumed that the LPNs inde-
pendently completed ‘‘oral warning’’ forms for placement in the em-
ployee’s personnel file. Here, however, prior to the Cullinan dis-
charge, the Respondent’s LPNs completed no document which con-
veyed, as a matter of form, that an infraction or subject of coun-
seling might be used against the employee in the future.
24 Beyond that there was no indication that the LPNs had any fur-
ther role in the imposition of discipline in such cases. Helterbran tes-
tified that the timecard procedure was designed to require the em-
ployee to report to the administrator on returning to work.
25 This directive came in a second conversation with the particular
aide. The ‘‘situation report’’ does not indicate what might have hap-
pened in the interim. The Respondent’s posthearing brief states that
in stating that the aide could ‘‘clock out’’ if she could not abide by
the rules, ‘‘Cullinen [sic] admitted that she exercised independent
judgment and that she warned the nurse aide [sic] without consulting
anyone.’’ Cullinan was not examined on this point and her testimony
is devoid of any such admission.
26 Although Bishop would have me believe that he would take this
step only after consulting with an RN, it was my distinct impression
that the threats were made spontaneously as the incident unfolded
without opportunity to seek views of a superior.
27 Kathleen Best testified that she clocked out aides in con-
sequence of two incidents. She insists, however, without contradic-
tion, that each was authorized directly by a superior, who did not
solicit Best’s opinion as to how or whether the individual should be
disciplined.
28 Best and Cullinan testified to this effect without contradiction.
supervisory authority.’’ Ohio Masonic Home, 295 NLRB
390, 394 (1989).23 Accordingly, the ‘‘situation reports’’ and
‘‘employee problem forms’’ simply ‘‘bring to an employer’s
attention substandard performance by employees without rec-
ommendation for future discipline, and an admitted statutory
supervisor . . . the director of nursing . . . makes an inde-
pendent evaluation of the employee’s job performance.’’
‘‘[T]he role of those delivering the warnings is nothing more
than a reporting function.’’ Passavant Health Center, 284
NLRB 887, 889 (1984).
(2) Emergency suspension
At Sleigh Bell, the LPNs could send an unruly aide home.
In this latter connection, Helterbran testified that from the
outset of her employment by Sleigh Bell she was told that
the LPN had the authority to clock out someone in the event
of a problem, removing his or her timecard for placement
under the door of the administrator.24 She concedes, how-
ever, that it was invoked on an infrequent basis and was a
measure to be used sparingly and only as a last resort.
Karlon Ware, an LPN called by the Respondent, who pres-
ently serves as its staff development coordinator, offered this
as the sole example of discipline that she was informed that
she could exercise as an LPN:
Well, I remember them saying that we could do that.
We could . . . clock someone out. We could pull their
time card. We could send them home, you know, if we
had to; if we let someone go, you know, not to worry
about it because if it was a mistake, you know, they
would correct it, you know, the next day.
But, that if we felt that a patient was not getting the
proper care, was in danger or even the staff member
that it was our responsibility to do this, you know, to
send that person home, to clock that person out.
Ware concedes that she never had occasion to take this step.
Consistent with the mutually corroborative testimony of
Ware and Helterbran, Cullinan’s prehearing affidavit states,
‘‘Before the institution of the R.N. supervisor position,
L.P.N.’s could clock aides out for misconduct.’’ Cullinan at-
tempted to qualify this statement, narrowing it to situations
where such action was directed by a superior. However, the
sworn prehearing affidavit describes the authority in the
broadest of terms, and in this respect, I am convinced that
LPNs in extreme circumstances were authorized by Sleigh
Bell to send an employee home.
The question is whether the LPNs could act independently
in this area after May 1990. Cullinan and Bishop denied that
such authority had been conferred by the Respondent. How-
ever, both had previously threatened to take this step against
recalcitrant aides. In December 1990, Cullinan authored a
‘‘situation report’’ in which she recorded that she told an
aide:
[T]o stop arguing and just do her job or she could clock
out and go home. [RX–3(a).]25
Most significant, however, was testimony by John Bishop.
The latter had never worked for Sleigh Bell, but was hired
by Manor West in September 1990. He testified to a pair of
incidents where he threatened to clock out an aide. The first
involved an aide who was told that she would be sent home
if she did not stop watching TV to neglect of patient care.
The second case was documented in memorandum dated
June 4, 1991. It involved an identical threat to an unruly
aide. (RX–6(a).)26
Nevertheless, Helterbran and Ware described this as a last
resort to be invoked only in extreme cases. Indeed, it was
so rarely invoked that not one of the LPNs that testified stat-
ed that they ever had occasion to do so, except on direction
by an RN.27 Moreover, the Respondent has not produced any
evidence that this ever had occurred in any other context.
Beyond that, necessity for the LPNs to invoke this measure
independently would have been lessened as of December
1990, when the Respondent met its staffing requirement for
round-the-clock, onsite presence of an RN. In these cir-
cumstances, it is concluded that this seldom, if ever, exer-
cised authority is within the realm of ‘‘extreme cir-
cumstances’’ discounted by the Board ‘‘as . . . insufficient
by itself to establish supervisory status.’’ Phelps Community
Medical Center, 295 NLRB 486, 492 (1989); Riverchase
Health Center, 304 NLRB 861 (1991); Highland Superstores
v. NLRB, 927 F.2d 918 (6th Cir. 1991).
d. Evaluation
Cullinan denied that her opinion concerning an aide or or-
derly was ever solicited. This, however, was implicit in the
Respondent’s system of evaluating employees. Thus, al-
though the LPNs had no access to personnel files of the
aides or orderlies,28 they contributed to the latter’s periodic
evaluations.
Under this system, it would be unusual for any one aide
or orderly to be rated by just one LPN. Instead, the LPNs
are required to prepare evaluations on each aide or orderly
that they had opportunity to work with during the relevant
period. The various ratings on each aide are then processed
663MANOR WEST, INC.
29 Contrary to the Respondent, the Board’s decision in Ohio Ma-
sonic Home, 295 NLRB 390 (1989), is not distinguishable on
grounds that the LPNs in that case ‘‘did not recommend that action
be taken on evaluations.’’ During the relevant time frame, the same
was true here. As in that case, the evaluation system included no
‘‘recommendations regarding promotions, wage increases, discipline,
or retention.’’ In other words, here, as well, the Respondent has
failed to demonstrate by credible proof that the evaluations impacted
on the rated employee’s job status.
30 RX–20(a) through (o). At the hearing, the Respondent produced
numerous ‘‘corrective action’’ forms and ‘‘atta boys.’’ Not one pre-
dated the Cullinan discharge. Helterbran attributed the absence of
earlier documents to the fact that the search was limited to the files
of incumbent employees. Considering the materiality of these docu-
ments, one would think that these documents would have been the
subject of an aggressive, comprehensive search. In any event, at my
direction, the parties agreed to a posthearing examination of the per-
sonnel files of former employees to ferret out any such documents
that would have predated the discharge. Apparently, nothing was
found other than the single ‘‘atta boy’’ noted above.
31 The Respondent states in its brief that ‘‘Karlon Ware testified
that the nurses aides [sic] job status was often affected by rec-
ommendation from LPNs, both formal and informal.’’ Having stud-
ied the cited sector of the record, as well as the entirety of Ware’s
testimony, I find no support for any such statement. In fact, when
Ware was asked by the Respondent’s counsel whether she was ever
told that management would take action because of any rec-
ommendation on her part, Ware replied:
Gee, I don’t think I had it like any formal, no.
32 In its posthearing brief, the Respondent states that Karlon Ware
‘‘corroborated’’ that this was ‘‘a long standing practice.’’ In fact,
Ware stated that she was unaware of how long any such practice had
been in effect. Moreover, as I understand her testimony, it was her
‘‘personal’’ practice to pass on a written commendation for a job
well done. I also did not believe Helterbran to the extent that she
suggests that complementary memos were used, prior to the dis-
charge, to choose between aides in the event of a cutback in hours.
The fact that only one issued by an LPN could be exacted in this
entire period makes it unlikely that personnel files were canvassed
for such documents in furtherance of such personnel action during
that time frame, or that ‘‘atta boys’’ signed only by LPNs then were
part of an entrenched system of reward.
33 Each station has a medication cart which contains all medica-
tions, including narcotics, for patients in the area. The LPNs are en-
trusted with the key to a medication cart, to which only they have
access. The LPN is also authorized to obtain the key to a medical
storage room in order to replenish medical supplies of a type that
do not require prescription. Medications, however, are subject to
‘‘reorder’’ when they near completion through an automatic tag pro-
cedure enabling the LPN to complete the process by contacting the
pharmacy in a separate building. Once delivered, the LPN would in-
ventory the medication as received and then place it in the medica-
tion cart.
by the staff development coordinator, who averages the scor-
ing, and prepares a ‘‘summary sheet.’’ The original LPN
evaluations then are destroyed. The director of nursing will
discuss the ratings with the aide, without participation of any
LPN. There is no evidence that the evaluations impact on op-
portunities for wage increases, retention, or promotion, or
other condition of a nurses aide’s performance.29
In its posthearing brief, counsel for the Respondent states
that ‘‘informal commendations are given to the nurses aides
by LPNs.’’ Documentation confirms that this was the case,
but that the practice did not make its mark until after the dis-
charge of Cullinan. Thus, it appears that, prior to June 18,
an LPN had taken this step on a single occasion, and at that
through a notation dated August 11, 1988, well prior to the
Respondent’s acquisition of the facility. RX–30(a). This sin-
gle isolated expression contrasted with the 15 written com-
mendations or ‘‘atta boys’’ proffered by the Respondent at
the hearing, all of which postdated the discharge.30 At least
3 years had lapsed between the earliest of the ‘‘atta boys’’
and Respondent’s Exhibit 30(a). It is fair to infer that in the
interim this practice had fallen into disuse. Considering the
hiatus, it is difficult to accept that any formal steps were
taken to by the Respondent prior to the discharge to encour-
age LPNs to submit commendations.
‘‘The authority simply to evaluate employees without
more is insufficient to establish supervisory status.’’
Passavant Health Center, 284 NLRB 887, 891 (1987). This
factor has been deemed unpersuasive in the absence of evi-
dence that ‘‘a nurses’ aide’s job was ever affected by an
LPN’s evaluation.’’ See Riverchase Health Center, supra,
304 NLRB at 861. Here, there is no persuasive evidence that
the evaluations submitted by the LPNs, or for that matter,
any complimentary memos, contributed in any sense to per-
sonnel decisions or actions31 with respect to aides or order-
lies.32 It is concluded that the LPNs’ role in connection with
periodic evaluations and ‘‘atta boys’’ therefore fail to sub-
stantiate the claim of supervisory status. Phelps Community,
supra, 295 NLRB 486, 490; Waverly-Cedar Falls Health
Care, 297 NLRB 390, 391 (1989), enfd. 933 F.2d 626 (8th
Cir. 1991).
e. Direction
Cullinan described her duties as primarily to pass out
medications,33 to provide treatments, and to do charting. The
evidence does not disclose the staffing ratios on the after-
noon shift normally worked by Cullinan. The day turn typi-
cally would be staffed by 11 aides and 3 to 4 LPNs. The
aides would be immediately responsible to the LPNs, not the
RNs. There is no question Cullinan and other LPNs are re-
sponsible ‘‘for overseeing the care provided by the aides.’’
Cullinan would be assisted by three to four aides. She de-
scribes her interaction with the aides as solely to assure that
patient care was carried out. For example, if she saw a resi-
dent in need, she would tell the aide assigned to that room
to take care of the problem or request the latter’s assistance
in completing the task herself. She would take the initiative
in assisting such a patient, and would record what had been
done, but made no written recommendations as to future ac-
tion appropriate for the health or well being of a patient. Pa-
tients under her care would be attended by several others that
had shiftwide responsibility, namely, a bath aide, med tech,
and two rehabilitation aides. Helterbran testified that, if these
latter individuals had any questions, they would address them
to the LPN in the area. As part of the patient care process,
the LPN would listen to complaints by family members and
relay them to whoever might be responsible.
The Respondent appears to contend that the role of LPNs
in several areas demonstrates that they exercise independent
judgment in directing aides. First, is the claim that they initi-
ate ‘‘daily staffing and adjustments.’’ In terms of scheduling,
LPNs have no input into advance assignment or the planning
of manpower utilization. Instead, this is performed entirely
by an RN, through preparation of a monthly schedule. Pursu-
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 There apparently is no firm practice in this respect. Cullinan tes-
tified that she made the phone calls herself and also requested that
the RN do so. Bishop testified that he simply informed the RN of
the shortage and she made the phone calls. Best testified that, in ad-
dition to herself, sometimes if the LPNs were busy, the aides them-
selves would call people they knew in an effort to alleviate the
shortage.
35 The Respondent would distinguish Ohio Masonic Home, supra,
and Pine Manor Nursing Home, 238 NLRB 1654 (1978), on grounds
that the LPNs in those cases lacked authority to call in a substitute
employee or to request that an aide work overtime. This is a distinc-
tion without material difference. For, as indicated, in this case, the
aide could not be compelled to work, and the calls were made in
accord with a predetermined scheme, thus, amounting to a
nonjudgmental, perfunctory task dictated solely by an unanticipated
absence.
36 Although the evidence is far from crystal clear in this respect,
the above is based on my understanding of testimony provided by
Cullinan, Bishop, and Best.
37 Apparently, as part of the effort to establish the quality of dis-
cretion used by the LPNs in this process, the Respondent produced
a ‘‘situation report,’’ dated October 14, 1990, which bore the signa-
ture of N. Raines, an LPN. RX–21. Raines was still employed at the
time of the hearing, but not called as a witness. The document as
a business record does not on its face establish that Raines acted
alone in effecting her solution. Indeed, the fact that she referred to
revisions in future schedules and different areas gives rise to the
possibility that others might have been consulted. Although the doc-
ument was identified by Helterbran, no foundation was laid estab-
lishing that she had firsthand knowledge of all aspects of the inci-
dent or its background. Only Raines was in a position to afford pri-
mary evidence as to just what occurred.
38 Counsel for the Respondent disagrees vehemently with this ob-
servation. He argues that the printed fire plan requires that the LPN
determine the order of evacuation. On the contrary, item 3 sets forth
the geographic sequence for evacuation. See also p. 5. Counsel for
the Respondent also reads this document as giving the LPNs discre-
tion as to how to proceed if patients are reported missing. This is
covered by item 4, subsec. A-12, which directs that a report be pre-
pared ‘‘on missing patients’’ and that it be given to the nurse on
station 1. Although this station customarily is manned by an LPN,
the document does not signify whether the latter retains the report
for action or simply transmits it to higher authority.
39 It is not without significance that the Board has deemed the
availability of a ‘‘disaster manual’’ as a factor that lessened the de-
gree of independent judgment exercised by LPNs. See, e.g., Phelps
Community, supra, 295 NLRB at 492.
ant thereto, aides are assigned to a particular shift, a par-
ticular area, and a particular cluster of patients. Adjustments
in assignments are made only where a previously scheduled
aide reports off, thus, creating an unanticipated deficiency in
manning. In such a case, the LPNs would first attempt to fill
the void either by themselves drawing on a list of aides
maintained at the stations, or by requesting an RN to solicit
a replacement by telephoning someone off duty.34
Counsel for the Respondent states that the LPNs ‘‘author-
ize’’ and ‘‘approve’’ overtime. However, overtime is only
one means of filling by an unexpected vacancy and is dic-
tated entirely by that eventuality. Helterbran was aware of no
other situation in which an LPN could take steps producing
overtime. On those occasions, in addition to soliciting the
unscheduled aides, the LPNs, on their own, will attempt to
correct the shortage by soliciting an on-duty aide to work an
extended shift. Should a volunteer emerge, overtime would
inevitably result. However, this effort by the LPNs is dic-
tated by the unmistakable, rather than anything requiring in-
terpretation or judgment. In these circumstances, the LPNs
are not viewed as ‘‘authorizing’’ or ‘‘approving’’ overtime in
any discretionary sense. They do sign overtime slips to attest
to the fact that the overtime hours were actually worked. In
doing so, they are simply supporting a recordkeeping func-
tion, while acting as witness to the event, an act that does
not entail independent judgment or supervisory authority.35
If no volunteer could be found, the nursing unit would
work short-handed, but only after balancing off the assign-
ments according to a scaledown formula. The latter is an
equation which defines the ratio per unit and alternative as-
signments based on the number of aides available. It too is
supplied by higher management to assist LPNs in this proc-
ess.36 The LPNs decide how the slot will be filled. Often,
they would not act alone, but confer with other LPNs in
order that the choice be fair to the affected aides, yet provide
adequate coverage. For example, Bishop explained that the
RN lists the aides on her schedule by patient rooms. He
would resolve a shortage by taking the last listed aided and
slotting that individual into the vacancy. He relates that oth-
ers might use an alternative method, rotating each aide up
one station. In each instance the determination would appear
to be based on two considerations, balanced coverage and as-
surance that the same aides are not burdened each time there
is a shortage.37 In any event, there is no perceptible basis for
concluding that the LPNs exercise independent judgment of
a responsible nature in this process. The Respondent, though
arguing that this is the case, does not explain where or how
this would be so. There is no indication that replacements
were contacted according to any subjective preference, such
as ability and fitness, rather than at random. The evidence
shows that changes to schedule are made only to cover unex-
pected absenteeism, and that LPNs have no discretion to alter
assignments to accommodate any other concern. In the cir-
cumstances, this isolated intrusion on a predetermined sched-
ule strikes as a ministerial, nonjudgmental matter. See
Riverchase Health Center, supra.
Beyond that, the Respondent points to a document defin-
ing the steps to be taken by an LPN in the event of fire, tor-
nado, and other emergency situations. (RX–16.) It is argued
that: ‘‘The plans are replete with duties which require LPNs
to exercise independent judgment.’’ As I stated at the hear-
ing, this document, down to the finest detail lays out a step-
by-step procedure to be followed. Nowhere does it state that
any aspect of the plan is committed to the personal judgment
and discretion of the nurse.38 The Respondent states that, this
very interpretation was made on the record even though I
had not read the document. The charge is facially curious.
If I had not examined it, the hunch was pretty accurate. Even
more mystifying is the observation in the Respondent’s brief:
‘‘Now that the Administrative Law Judge has had the oppor-
tunity to read the document, he will presumably concede that
his first impression was erroneous.’’ There is no need for
concession. Having read and reread this document, my initial
reaction stands firm; namely, that it, for very good reason,
is designed to minimize discretion or independent judgment
in the delicate process of securing patients in the event of
a life-threatening emergency.39
The Respondent adduced a quantum of evidence, appar-
ently as indicative of LPNs’ accommodation of those who
665MANOR WEST, INC.
40 RX–4(A); RX–7(a) through (h). Cullinan testified that the slip
could have been completed by an aide as well as an LPN. Bishop
averred that most commonly it would be handled by an LPN or RN.
41 Not a single witness testified or suggested that LPNs are author-
ized to effect or recommend discharge under any circumstances. The
Respondent’s attorney, however, appears to interpret a document as
indicating that LPNs at a meeting on March 7, 1991, were trained
to effect discharge. Thus, the Respondent’s brief states that at this
meeting ‘‘certain terminable offenses . . . were identified for the
LPNs to enforce together with a protocol for termination.’’ The doc-
ument, however, merely states that the nurses in attendance were to
be informed of the grounds for ‘‘immediate discharge’’ as well as
the ‘‘protocol’’ to be followed in effecting discharge. RX–1(a). It
does not state or imply that the LPNs possessed such authority and,
if that were the intent, surely the Respondent could have substan-
tiated that this was the case through direct testimony. There was
none. Instead, the more probable interpretation is substantiated by
John Bishop’s uncontradicted testimony the discharge issues were
discussed in context of behavioral standards expected of, and im-
posed on, the entire staff. I also credit Bishop’s denial that he ever
attended a meeting at which the LPNs were informed of the proce-
dure to be followed in effecting any form of discipline, suspend, or
issue reprimands of a disciplinary nature to subordinates.
42 The most extreme example is the ‘‘professional employee’’ re-
ferred to in Sec. 2(12) that must be engaged in work predominantly
intellectual and varied in character as opposed to routine mental,
manual, mechanical, or physical work and must perform work which
involves the consistent exercise of discretion and judgment in its
performance.
call in sick or to report absence on other grounds. It appears
that no authority was exercised in this connection. According
to Cullinan if an aide called in sick, she would record the
information as taken by herself, or as reported by anyone
else who may have taken the call, on a ‘‘report off’’ slip.
That document merely listed the name, date, and reason for
the absence.40 The completed form would be placed under
Helterbran’s door. There was no evidence that anyone in this
chain of communication, short of Helterbran, had or exer-
cised any authority to excuse or impose discipline for ab-
sence or lateness. Here again, there is no evidence that judg-
ment or authority was exercised by any LPN.
f. Cullinan and Bishop were not Section 2(11)
Supervisors
To make its case, the Respondent need merely substantiate
that the LPNs hold or exercise any one of the enumerated
functions set forth in Section 2(11) of the Act. See, e.g.,
Ohio River Co., 303 NLRB 696 (1990). Here, however,
Cullinan and her counterparts do not appear to promote, re-
ward, furlough, recall, determine wages, approve leave, hire,
discharge,41 or recommend such action. Aside from the fore-
going, the LPNs’ involvement in the disciplinary process, at
times material, was restricted to authority to protect the pa-
tients and the home from destructive behavior, a delegation
so rarely invoked, that it was shown to have been imple-
mented only on direction of a registered nurse. Moreover,
any authority to choose, assign, or transfer subordinates is
held and exercised by LPNs within severe constraints, name-
ly, only where last-minute absenteeism creates shortages in
coverage. In the area of evaluations, the ratings prepared by
the LPNs would be diluted by the fact that the same aide
would be subject to evaluation by more than one LPN, and
further reduced in import by the fact that the LPN would not
counsel or otherwise confront employees concerning the re-
sults. Moreover, these ratings are destroyed, rather than pre-
served in personnel files, and hence it is difficult to imagine
that the actions of any particular LPN were expected to im-
pact on the latter’s work situation or tenure.
In this light the supervisory issue turns essentially on
whether the record substantiates that LPNs at the time of
Cullinan’s discharge directed aides and/or orderlies ‘‘respon-
sibly’’ and under conditions reflecting the ‘‘the use of inde-
pendent judgment.’’ There is no question that the LPNs di-
rect the aides in furtherance of patient care. However, pursu-
ant to Section 2(11), this attribute of supervisory status must
be effected ‘‘responsibly’’ and must entail ‘‘the use of inde-
pendent judgment.’’
The inquiry under this standard is always complicated
where applied to individuals who perform highly responsible
work, pursuant to specialized skills, acquired through special
training and education. Work at higher levels of intellectual
accomplishment will always entail a significant element of
independent judgment.42 If those individuals hire, fire, dis-
cipline, or reward, or effectively recommend such action,
they clearly are beyond the purview of the Act. But, what
of those who, like the LPNs, do not possess such authority?
Does the Act turn away this group simply because they are
assisted by others with lesser skills in pursuing specialized
or intellectual endeavors? The Board traditionally has said,
‘‘No!’’ See, e.g., Neighborhood Legal Services, 236 NLRB
1269, 1273 fn. 9 (1978) (attorneys); Sav-On Drugs, 243
NLRB 859, 860 (1979) (pharmacists); Southern Bleachery &
Print Works, 115 NLRB 787, 791 (1956) (skilled craftsmen);
and Golden West Broadcasters—KTLA, 215 NLRB 760, 762
fn. 4 (1974) (remote TV directors).
The precedent attests to the generic thrust of this policy;
it by no means is a special creature of the health care indus-
try. At the same type, there is evidence that Congress in-
tended this formulation to extend to health care professionals
in this category. Thus, the House and Senate Reports which
accompanied their respective versions of the Health Care
Amendments of 1974 specifically endorsed this hedge
against overzealous supervisory determinations, stating:
The Committee notes that the Board has carefully
avoided applying the definition of ‘‘supervisor’’ to a
health care professional who gives direction to other
employees in the exercise of professional judgment,
which direction is incidental [to] . . . the professional’s
treatment of patients, and thus is not the exercise of su-
pervisory authority in the interest of the employer.
The Committee expects the Board to continue evalu-
ating the facts of each case in this manner when mak-
ing its determinations. S. Rep No. 766, 93d Cong., 2d
Sess. H.R Report No. 93–1051, 93d Cong., 2d Sess.
This principle was accepted as a declaration of Congressional
intent by every circuit court that considered the issue, includ-
ing, at least initially, the Sixth Circuit.
Thus, in 1981, the Sixth Circuit Court of Appeals in Bev-
erly Manor Convalescent Centers v. NLRB, 661 F.2d 1095
(6th Cir. 1981), acknowledged special care was necessary in
such a context:
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The problem in application is due to the fact that
‘‘health care professionals’’ often exercise certain kinds
of supervisory authority in treating those under their
care, but they do so in the exercise of independent pro-
fessional judgment not always strictly ‘‘in the interest
of the employer.’’
The court went on to suggest acceptance of Congressional
will, explaining the relevant inquiry as follows:
[I]t is the intent of Congress in the health care field that
the Board ‘‘distinguish true supervisory authority from
the ‘professional’ judgment and discretion involved in
patient care. . . .’’ The distinction must be made, not
because professional care is a matter of routine involv-
ing no independent judgment, but because the inde-
pendent judgment which is necessarily involved in pa-
tient care, even if otherwise supervisory in character, is
not always strictly ‘‘in the interest of the employer.’’
The exercise of proper independent professional judg-
ment in directing employees, therefore, should not
alone align the professional with his employer as a su-
pervisor. [661 F.2d at 1101.]
It is important to note that the Sixth Circuit did not diminish,
disparage, nor in any sense discount this unambiguous at-
tempt by key committees in both the Senate and the House
of Representatives to preserve the distinction between imple-
mentation of professional responsibility and that exercised on
behalf of traditional employer interests. Nevertheless, the
case was remanded to the Board on the ground the Regional
Director’s analysis as ‘‘a sub silentio departure from the ana-
lytical method employed by the Board, pre-1974, and, there-
fore, a substantial deviation from the ‘‘Congressional direc-
tive’’ in 1974. [661 F.2d at 1103.]
Following the remand, the case was again reviewed by the
Sixth Circuit in 1984. See Beverly Enterprises v. NLRB, 727
F.2d 591 (6th Cir. 1984). As it had done earlier, the court
reiterated the governing test stating that:
[If the LPNs exercise] independent professional judg-
ment of a supervisory character . . . primarily in con-
nection with patient care, not in the interest of his or
her employer, then, pursuant to the above opinion and
the present state of the law, LPNs . . . are properly in-
cluded in the bargaining unit. On the contrary, should
the exercise of the LPNs independent professional judg-
ment of a supervisory character . . . [be] in the interest
of his or her employer, and not merely in the interest
of patient care, then, equally clear LPNs . . . should
not be included in the unit. [661 F.2d at 1105; 727 F.2d
at 593.]
Consistent with the foregoing, other courts have recog-
nized the Senate Report as binding legislative history, and
have reviewed Board determinations in this area in accord
with the definition set forth in the 1981 and 1984 Beverly
remands. See, e.g., Misericordia Hospital v. NLRB, 623 F.2d
808, 816 (2d Cir. 1980); NLRB v. St. Mary’s Home, 690 F.2d
1062, 1066–1067 (4th Cir. 1982); NLRB v. Res-Care, Inc.,
705 F.2d 1461, 1468 (7th Cir. 1983); Waverly-Cedar Falls
Center v. NLRB, 933 F.2d 626 (8th Cir. 1991); NLRB v. St.
Francis Hospital, 601 F.2d 404, 420 fn. 17 (9th Cir. 1979).
The Sixth Circuit in 1987 appeared to careen from this
line of authority. In NLRB v. Beacon Light Christian Nursing
Home, 825 F.2d 1076 (6th Cir. 1987), that court rejected a
Board finding that LPNs were not supervisors. In this in-
stance, the disagreement was more than factual and there was
no remand. Instead, the court denied enforcement of a bar-
gaining order, deeming the LPNs to be supervisors, on the
following rationale:
Where nurses otherwise meet the statutory definition of
supervisors, they are not disqualified [from being super-
visors] because the activity they are supervising is pa-
tient care. There is no support in either the text of the
Taft-Hartley Act or the legislative history of that Act
for such a position. Upon our reading of the statute, we
think that the law means exactly what it says, that indi-
viduals who . . . are supervisors, whether they are em-
ployed in the health care industry or any other industry.
In due respect, the court made no attempt to reconcile or
even discuss the position apparently taken by that court in
1981 and 1984 in the Beverly cases. The 1974 Senate Report
was acknowledged, but without comment other than the un-
explained statement that ‘‘The legislative history to the
Health Care Amendments of 1974 . . . supports our conclu-
sion as well.’’ It is difficult to reconcile the court’s rationale
with the prior applications of Congressional intent.
The Sixth Circuit’s position was clarified in 1992, when
it denied enforcement of another bargaining order, con-
cluding that RNs were improperly found to be eligible for
union representation. Beverly California Corp. v. NLRB, 140
LRRM 2960 (6th Cir. 1992). On authority of Beacon Light,
supra, the court reasoned that independent judgment exer-
cised in the health care industry warrants no difference in
treatment than elsewhere and that, in the case of health care
professionals, it is of no moment that the ‘‘activity they are
supervising is patient care.’’ Seeing no need to draw a dis-
tinction between authority exercised in the area of health
care, and that outside that area, the court reasoned that pure
professional judgment is always exercised in the interest of
the employer. The court also rejected the Senate Report as
indicative of Congressional intent, specifically stating:
[T]he Supreme Court would [not] be likely to hold that
a report issued by a single Congressional committee in
1974—a report not passed by either house and not pre-
sented to the President—could somehow alter the
meaning of a statute enacted by two-thirds vote of each
house of Congress in 1947. [Beverly California Corp.
v. NLRB, supra at fn. 7.]
Although the 1992 decision deemed the earlier Beverly cases,
supra, as ‘‘not to the contrary,’’ there, as in Beacon, it is dif-
ficult to reconcile the rationale and result from the test and
reasoning behind the remands in the earlier Beverly cases.
In any event, counsel for the Respondent has filed a
posthearing brief, which neglects to furnish to me a single
holding that would support his client’s position at the Board
level. In stressing these more recent Sixth Circuit reversals,
the Respondent states, ‘‘it is a needless exercise to debate
667MANOR WEST, INC.
43 This either means that counsel is of the view that his position
could not be sustained under Board precedent, or that he has abdi-
cated to me the responsibility for researching Board authority that
would support dismissal of the complaint. Surely, counsel is aware
that, irrespective of the Sixth Circuit’s view, as an administrative
law judge, I am duty bound to follow Board precedent, until re-
versed by the Supreme Court. See, e.g., Insurance Agents (Pruden-
tial Insurance), 119 NLRB 768 (1957). For, it is the endeavor and
duty of the Board to define a uniform national labor policy, as dis-
tinct from a patchwork of geographically diverse rules in order to
please certain authorities, but which, at the same time, would foster,
rather than diffuse ‘‘diversities and conflicts likely to result from a
variety of local . . . attitudes toward labor controversies . . . .’’ San
Diego Building Trades Council v. Garmon, 359 U.S. 236, 242–243
(1959). Moreover, even though this case arises in the Sixth Circuit,
there is no guarantee that a review proceeding will take place in that
jurisdiction. See, e.g., Harrison Steel Castings Co. v. NLRB, 923
F.2d 542 (7th Cir. 1991). For example, the Sixth Circuit’s recent de-
cision in Beverly of California, supra, happened to arise from a nurs-
ing home located in Johnstown, Pennsylvania. Thus, the Board might
guess, but is not in a position to anticipate with precision the locus
of appellate jurisdiction. For all theses reasons, the Board is not re-
quired, on either legal or pragmatic grounds, to automatically follow
an adverse court decision. Instead, it, respectfully, will regard such
a ruling merely as the law of that particular case.
44 This contrasts with the instant case, where, at least on the day
shift, a finding that LPNs are nonsupervisors will result in ratio of
1 supervisor for 18 employees. This would drop on other shifts, and
indeed that on daylight might well be overstated by the inclusion of
certain specialists, namely, the bath aide, a med tech, and two reha-
bilitation aides, all of whom may not be part of the nursing depart-
ment. Whatever their status, the Respondent, without reference to
precedent, states that, ‘‘This ratio [18 to 1] is inadequate for the pur-
pose of managing the care of patients in a nursing home.’’ This
overlooks the fact that the supervisory load is offset by the presence
of three to four persons who exercise nonsupervisory, lead authority
in the area of patient care. In any event, the Board has declared a
ratio of ‘‘about 1 to 18’’ that would ensue under a nonsupervisory
finding to be no more unreasonable than a ratio of ‘‘1 to 3’’ that
would exist in the event of a supervisory finding. Those figures,
therefore, were declared inconclusive in Phelps Community Medical,
supra, 295 NLRB at 492.
45 The Sixth Circuit itself distinguished Beacon on similar grounds
in Highland Superstores v. NLRB, 927 F.2d 918 (6th Cir. 1991). The
Board adopted this tact in Ohio Masonic Home, supra, 295 NLRB
at 395.
46 ‘‘The burden of proving supervisory status rests on the party al-
leging that such status exists.’’ Rahco, Inc., 265 NLRB 235, 247
(1982).
47 All dates refer to 1992.
what might be the law elsewhere.’’43 Thus, counsel for the
Respondent makes no attempt to address the question of
whether any independent judgment in directing subordinates
is confined to the LPNs’ professional duties in the area of
health care, or also entails authority with respect to non-
professional, personnel actions in the interest of the em-
ployer.
In any event, whatever the value in the observation, the
1987 and 1992 decisions by the Sixth Circuit are explainable
on the basis of considerations not to be found in the case at
hand. Thus, Beverly of California, supra, involved registered
nurses who generally are integrated critically with manage-
ment echelons, who oversee the LPNs, and who customarily
are the ranking management representative on duty during
evening and night shifts. See, e.g., Lincoln Lutheran of
Racine, 290 NLRB 1077 (1988). Indeed, the Board’s non-
supervisory finding in that case was imperiled by a highly
‘‘remarkable’’ ratio of only 1 supervisor for every 31 rank-
and-file employees.44
Major distinctions also exist from the record considered in
Beacon Light, supra. There, the court stated that ‘‘the LPNs
and RNs have virtually the same duties to direct patient care
and supervise and instruct aides.’’ There, no RN was present
on most shifts. There, the evaluation of aides by the LPN be-
came a part of the aide’s personnel file, and was considered
in promotion and demotion decisions. There, the LPNs com-
pleted counseling forms which were considered ‘‘disciplinary
reports’’ and which ‘‘normally result[ed] in formal discipli-
nary action after three or four are lodged for the same viola-
tion of the rules.’’45 Not one of these important vestiges of
authority were held, during the relevant time frame, by
Cullinan and her fellow LPNs. Moreover, unlike Beacon
where the LPNs and RNs assigned aides to patients, here pa-
tients are assigned to aides routinely by RNs, with no single
LPN having authority to alter those schedules except under
an authorized scheme deployed only where the staff is under-
manned.
In sum, this is simply a case where at times prior to the
discharge, the Respondent was intent on using the LPNs to
monitor, direct, and correct in the health care area for which
they were responsible, but not willing to entrust them with
authority to enforce these actions through the highly
judgmental process of reward and discipline. Thus, in the
case of these trained health care workers, authority to direct
aides and orderlies to conform with written rules and policies
and to provide health care in a manner compatible with the
health, safety, and comfort of the resident was more a matter
of observation and common sense than responsibly exercised
independent judgment. Accordingly, it is concluded that dur-
ing her employment with the Respondent, Cullinan and the
other LPNs routinely directed subordinates solely in connec-
tion with patient care, and lacked any and all supervisory in-
dicia required under Section 2(11) of the Act to exempt them
from statutory protection.46
IV. THE MOTION TO DISQUALIFY
A. Timeliness
After close of the hearing, counsel for the Respondent
filed a motion that I disqualify myself from further participa-
tion in this proceeding. Under Section 102.37, such a motion
is to be filed ‘‘with due diligence’’ and ‘‘promptly upon dis-
covery of the alleged facts.’’ The Respondent’s filing fails to
meet that requirement. It is founded entirely in matters oc-
curring prior to June 23, 1992,47 when the hearing was
closed. That same day, during the hearing, Attorney Shaffer
upbraided me:
Now, you’ve made very clear on the record your bias
and prejudice against the defense that the Employer is
presenting. You’ve made snide remarks about counsel.
You’ve made unfair and unsolicited criticisms of wit-
nesses. You have drawn opinions and conclusions from
documents you haven’t read. And you’ve come in here
and told us about your experience in the nursing home
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 My response to these accusations appears on the record at Tr.
412–413. Needless to say, these accusations are devoid of founda-
tion. Indeed, the most vicious seem to have vanished from the Re-
spondent’s filings in support of disqualification. In those documents,
there was no reference to ‘‘unsolicited criticisms of witnesses,’’ and
the inherently curious charge that I had ‘‘drawn opinions and con-
clusions from documents . . . [I hadn’t] even read’’ had also fallen
by the wayside.
49 In opposition to the motion to disqualify, counsel for the Gen-
eral Counsel asserts that the instant motion ‘‘is an attempt to achieve
a trial de novo before a different Administrative Law Judge to en-
able [the Respondent] . . . to present evidence which it should have
assembled and produced at the proceeding before Judge Harmatz.’’
Although the Respondent’s motive for the belated filing need not be
explored, it is necessary to correct a faulty observation in a reply
memorandum subsequently filed by its counsel. This latter document
argues that the General Counsel’s observation is ‘‘ridiculous on its
face’’ because the Respondent has ‘‘a complete remedy’’ through its
‘‘right to appeal.’’ However, as the General Counsel observes cor-
rectly, recusal would provide immediate, absolute relief from the ad-
verse evidentiary ruling. An appeal, on the other hand, offers no
guarantees, for relief would be available in that event only if the Re-
spondent were able to convince a reviewing authority that, prior to
trial, it had no access to relevant documents which rested in its own
files.
industry without regard for what this company actually
does. [Tr. 411.]48
These allegations are matched if not exceeded in ugliness
only by the sworn accusations set forth in the affidavits
signed and sworn to by Shaffer, and his associate, Gayle
Montalto. These attorneys have stated under oath that in ad-
dition to prejudging the ultimate issue, I accused a witness
of lying and brought a witness to tears by making her a ‘‘tar-
get.’’ The conduct attributed to me is lacking in ambiguity
and allows no room for hesitation. Were charges of such a
nature honestly held, it would be peculiar, at the least, that
an attorney with the proclaimed experience of Shaffer would
do anything other than bring the trial to an immediate halt.
Yet, not only did the trial proceed to its conclusion, but
the Respondent’s attorneys agreed to participate in a joint ex-
amination of its files to commence on June 24, the day after
the hearing’s close. On that very date, the Respondent filed
a motion to reopen the record to include certain business
records not offered during the hearing. (ALJ Exh. 1(a).) This
motion, in significant part, was opposed by the General
Counsel and Charging Party. (ALJ Exhs. 1(d) and (e).) An-
cillary to this issue, the Respondent submitted to me no less
than three statements in support of its position. ALJ Exhs.
1(c), (h), and (j). Not once was there intimation of any inten-
tion to raise issues as to the propriety of the proceeding.
After reviewing the motion against the record and research-
ing the matter, on July 29, I issued my ruling (ALJ Exh.
1(i)) in which all aspects of that motion were denied, except
where conceded by the General Counsel and the Charging
Party. In ruling against the Respondent, I stated, inter alia:
[I]t is noted that more than four months before the
hearing opened, the Respondent, on February 3, 1992,
filed its answer to the complaint, affirmatively declaring
that the alleged discriminatee, Sandra Cullinan ‘‘was
employed as a supervisor . . . and, thus, neither she
nor the activities which she allegedly engaged in are
protected by the Act.’’ Having raised the issue, it was
incumbent upon the Respondent to conduct a diligent
search and to proffer, at the hearing, all documents rel-
evant and necessary to substantiate its proof responsi-
bility in that regard. Publishers Printing Company, Inc.,
272 NLRB 1027, n. 1 (1984). Yet, the Respondent does
not deny that proposed exhibits 23, 24, 25, 26 and 27
were known to fit a mold of relevance, were in its files,
and, as such, were discoverable at that time. The rules
requiring that litigation be brought to an end through an
orderly, systematic, and efficient process take prece-
dence over the Respondent’s failure to do earlier, what
it proved capable of doing following close of its case
and the hearing itself. From all appearances, the post-
hearing search provided a convenient opportunity for
the Respondent to canvass its very own business
records with greater depth and thoroughness than on
prior occasions. This fortuity did not warrant a change
in the course of the litigation and would hardly support
a conclusion that the documents thereby uncovered
‘‘were somehow unavailable to Respondent at the time
of the hearing.’’ Arrow Elastic Corporation, 230 NLRB
110, n. 1 (1977), enf’d 573 F.2d 702 (1st Cir. 1978).
In the circumstances, the record will not be reopened
to entertain that ‘‘which Respondent could have, and
clearly should have, litigated at the hearing.’’ Cali-
fornia Pacific Signs, Inc., 233 NLRB 450 (1977);
Talbert Manufacturing, Inc., 250 NLRB 174, n. 1
(1980).
Two weeks later, on August 12, the Respondent filed the in-
stant motion seeking a new trial before a different judge.
The foregoing reveals that the effort to disqualify emerged
well after any substantiating facts would have become known
to the moving party, and only after, with knowledge of any
such facts, the Respondent sought intervention by the judge
to resolve a posthearing dispute among counsel. The Re-
spondent at that stage caused the proponents of the complaint
to commit time and resources in opposition to its posthearing
effort to supplement the record. The attempt to reopen and
the several filings made by the Respondent in support were
totally inconsistent with the existence of an intent to chal-
lenge the propriety of the proceeding or to claim that I was
unfit to render fair and impartial judgment on the issues pre-
sented. As matters turned out, the recusal effort would first
become manifest only after the Respondent received an ad-
verse ruling on the motion to reopen.49 In this light, the ef-
fort to disqualify was untimely under Section 102.37 of the
Board’s Rules. Nevertheless, because of the grave, but un-
founded, nature of the allegations, they must be addressed on
the merits.
B. The Allegations of Misconduct
The motion for disqualification is grounded on alleged
misconduct on my part, categorized in the ‘‘Memorandum in
Support of Motion to Disqualify,’’ as manifested by a rejec-
tion of evidence proffered by the Respondent without objec-
tion, prejudgment of issues, and a variety of ‘‘sarcastic’’ re-
marks addressed to David Shaffer, the Respondent’s attorney.
Although my conclusions and ruling on the merits of the mo-
tion are set forth immediately below, they are supported by
‘‘Appendix B’’ which has been attached to this decision, and
669MANOR WEST, INC.
50 The standard of care manifested throughout this proceeding is
not only evident on the face of the record, but also in the Respond-
ent’s various filings including those in support of the motion to re-
open, the posthearing brief on the merits, and the affidavits in sup-
port of the motion to disqualify. In the second line of his memo-
randum in support of motion to disqualify, Shaffer opens his argu-
ment with a major undetected inadvertence. Thus, in attempting to
describe an aspect of Board policy, he states:
The National Labor Relations Board requires that its judges
avoid ‘‘even the appearance of impartiality.’’
which contains a specific analysis of the record in light of
accusations and representations contained in the sworn affi-
davits offered in support of the motion.
Preliminarily, it is necessary to avow the obvious, namely,
that my duties in this case were undertaken with an abiding
interest in providing all parties a fair trial. There was no rea-
son to do otherwise. I had no prior acquaintanceship with the
case, the parties, or their counsel. At the same time, it was
my responsibility to assure a record, not only complete, but
one which contained as fair and honest accounting of the
facts as the adversary system might allow. To that end, as
always, it was my intention, aggressively, to preserve and
protect the record from the clutter and distraction of incom-
petent and nonprobative proffers—always inimical to timely
decision and effective review—and to provide guidance to
counsel as to what was expected of them by communicating
on the record and in straightforward terms my reasons for
acting for or against their wishes.
The thought and energy involved is not always appre-
ciated. It is a matter of record that my efforts in this respect
were met by Attorney Shaffer with ridicule and contempt. It
was my distinct impression that he held a circumscribed
view of the role and authority of the administrative law
judge, and that his conduct might have stemmed from a
faulty perception in that regard. For example, at several
points during the hearing, and again in support of the instant
motion, he complained, often and bitterly, that the judge ex-
cluded evidence without objection of counsel, or even that I
provided a rationale for actions though unsolicited by an at-
torney.
The authority of the administrative law judge is set forth
generally in the Board’s Rules and Regulations. Section
102.35 states:
It shall be the duty of the administrative law judge to
inquire fully into the facts as to whether the respondent
has engaged in or is engaging in an unfair labor prac-
tice affecting commerce as set forth in the complaint or
amended complaint . . . .
In furtherance thereof, subsection 102.35(f) of the Board’s
Rules authorizes the administrative law judge to ‘‘regulate
the course of the hearing.’’ Subsection 102.35(k) entrusts the
judge with power ‘‘[t]o call, examine, and cross-examine
witnesses and to introduce into the record documentary or
other evidence.’’
The exercise of this authority is by no means contingent
on the wisdom, good sense, qualifications, disinterest, or per-
ceptions of others. The procedural scheme assumes that the
independence, objectivity, and expertise of the administrative
law judge would lead to a fair, orderly hearing, and that
should unruly, impertinent, and ponderous behavior threaten
the process, the judge, not opposing counsel, should inter-
vene to control that which by definition impinges on that en-
deavor. Simply put, the judge does not sit as a marmorean
witness to endless maneuvering that tends to obscure truth,
to cause delay, or, in the end, to prevent a just result.
In this instance, the allegations of bias are not only insub-
stantial, but nothing more than an extension of Attorney
Shaffer’s will to manipulate facts and his rebellious dis-
approval of my efforts, with or without his cooperation, to
control the process in accordance with delegated authority,
established practice, and rules of evidence. His incessant
challenges to the most ordinary rulings, as well as his pre-
determined agenda, too often threatened to obfuscate, to pro-
long the hearing without warrant, and to burden the record
with the trivial and irrelevant. There is no question that
Shaffer and I hold sharp differences in a number of areas
that could affect the course of litigation. We obviously do
not place identical emphasis on detail, accuracy,50 effective
organization, and pertinence. These differences, coupled with
my greater authority with respect to the course and shape of
the hearing, have been confused by counsel into a baseless,
if not meretricious, claim of bias.
In the final analysis, there was neither bias, prejudice, nor
the appearance thereof associated with the trial of this case.
When the Respondent’s evidentiary pursuits were rejected, a
rationale was always provided. When its position was sound,
it was sustained. Moreover, the critical supervisory issue was
in doubt until the opportunity to review the record and the
relevant authorities presented itself. Not once was there the
slightest suggestion at the hearing that a determination had
been reached on the ultimate issue in dispute. Had that been
the case, counsel for the Respondent would have raised the
recusal issue in timely fashion, and without need for an in-
ventive approach to facts of record.
For all the above reasons, the motion for disqualification
is nonmeritorous both because untimely within the meaning
of Section 102.37 of the Board’s Rules and Regulations, and,
as detailed in ‘‘Appendix B,’’ insubstantial as a matter of
fact and law. The motion is denied.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
questioning an employee concerning his union sentiment, and
by informing an employee that his job was in jeopardy be-
cause of his suspected involvement in activity protected by
Section 7 of the Act.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by on June 18, 1991, discharging Sandra Cullinan in re-
prisal for her union and other activity protected by Section
7 of the Act.
5. The above unfair labor practices are unfair labor prac-
tices having an affect on commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
51 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
52 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
dered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
It having been determined that the Respondent unlawfully
discharged Sandra Cullinan, it shall be recommended that the
Respondent be ordered to offer her immediate reinstatement
to her former position, and to make her whole for any loss
of earnings or other benefits she might have sustained be-
tween the date of discharge and the date of a proper offer
of reinstatement. The backpay shall be computed on a quar-
terly basis as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and reduced by any net interim earnings, and
shall include interest in accord with New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended51
ORDER
The Respondent, Manor West, Inc., Austintown, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Questioning employees concerning their union senti-
ment.
(b) Threatening employees with discharge because of sus-
pected or actual participation in activity protected by Section
7 of the Act.
(c) Discouraging membership in a labor organization or
participation in concerted activity for mutual aid and protec-
tion by discharging or in any other manner discriminating
against an employee with respect to wages, hours, or other
terms and conditions of employment.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Sandra Cullinan immediate reinstatement to her
former position, discharging if necessary any replacement
subsequently hired to that job, or if nonexistent, to a substan-
tially equivalent position, and make her whole for losses sus-
tained by reason of the discrimination against her, with inter-
est, as set forth in the remedy section of this decision.
(b) Remove from its files, delete, and expunge any and all
reference to the unlawful termination of Sandra Cullinan, no-
tifying her that the action has been taken, and that the termi-
nation will not be used against her in the future.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Austintown, Ohio, copies of the
attached notice marked ‘‘Appendix C.’’52 Copies of the no-
tice, on forms provided by the Regional Director for Region
8, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX B
The Representations in Support of the Motion
to Disqualify
1. Preliminary statement
The charge of bias is a serious one. Where a judge has
engaged in conduct which is inappropriate and gratuitous, he
or she should step aside or be fair game for removal actions.
But what of unfounded requests for removal? In such
cases—whether out of a careless approach to fact or mal-
ice—the attempt to disqualify would entail a calculated, yet
unwarranted, disruption of the quasi-judicial processes and a
major inconvenience to other parties.
Although history fails to demonstrate enthusiasm for en-
forcement, restraints are in place as a hedge against the pre-
tenders. Section 102.37 of the Board’s Rules and Regulations
seeks to discourage baseless allegations by requiring that the
representations offered in support of a motion to disqualify
be sworn. Ethical considerations also play a role in the quest
for objectivity and truth. Thus, disciplinary rule 8–102(B),
The American Bar Association, Code of Professional Respon-
sibility and Canons of Judicial Ethics, defines as misconduct
the expression of ‘‘false and untrue and unfounded charges
of misconduct against an ‘‘adjudicatory officer.’’ In re Meek-
er, 414 P.2d 862, 869. The constraint applies to any allega-
tion which an attorney ‘‘knew, or should have known to be
false.’’ Violation of the standard has been described as:
[U]nethical and unprofessional conduct tending to bring
the bench and bar into disrepute and to undermine pub-
lic confidence in the integrity of the judicial process.
[See Kentucky Bar Assn. v. Heleringer, 602 SW 165
(KY, 1980).]
In this light, one would assume that a seasoned member
of the bar would exercise extreme caution to ensure factual
accuracy where the judge or a reviewing authority is asked
to inconvenience other parties and to alter the course of a
proceeding by in effect granting a new trial.
2. The accusations
a. The sequestration ruling
Shaffer, from the earliest moments of the trial, had tar-
geted me as an adversary. His reaction to a routine ruling on
the General Counsel’s request for sequestration was illus-
671MANOR WEST, INC.
53 The opening of the trial was delayed. Gayle M. Montalto, the
associate to Shaffer submitted an affidavit which states that ‘‘Judge
Harmatz blamed Mr. Shaffer for causing the delay and he was open-
ly angry with Mr. Shaffer before the proceeding began.’’ This rep-
resentation, though sworn, is inaccurate. It goes unmentioned in any
document signed by Shaffer. In fact, the proceeding was delayed to
permit the General Counsel to peruse voluminous material returned
at the trial by the Respondent pursuant to subpoena. The Respondent
was under no obligation to submit this data at any earlier time, and
Attorney Shaffer was not and could not be faulted for the delay.
Concern was exhibited by me on that occasion, but only toward the
General Counsel, who, at first, did not impress me as entirely re-
sponsive to my appeals that she proceed with sectors of her case that
were unaffected by unexamined documents, while reviewing the re-
maining subpoenaed materials under conditions that would not de-
tract from the hearing.
54 It is not without significance that Shaffer, at several points, sug-
gested on the record that there was no factual dispute on the motiva-
tion issue, and that, for that reason, he would not examine either
Poppelreuter or Helterbran in that regard. He did, however, in his
posthearing brief, argue that Cullinan was discharged for ‘‘dis-
loyalty.’’ Having declined to elicit any such testimony from either
Poppelreuter or Helterbran, Attorney Shaffer failed to develop a fac-
tual basis for this rationale.
55 Cocounsel for the Respondent, Montalto, expressed chagrin at
my attempt to organize the record in this respect. In her affidavit,
she opines:
I was amazed that Judge Harmatz would find premarked ex-
hibits was obstructive. I was also amazed that the Judge could
not manage to deal with a record which referenced exhibits sub-
mitted out of consecutive order.
In cases presenting extensive documentation, premarking is always
‘‘obstructive.’’ Apart from problems of chronology, there are no
guarantees that all premarked exhibits will be received or, for that
matter, even offered. For example, the Respondent’s counsel claims
to have premarked 170 documents, yet, according to my count, only
116 were received in evidence, with only 20 of the balance offered
and rejected. This shortfall obviously would have produced gaps in
exhibit numbers which would lead to confusion and entirely avoid-
able, problems in referencing and inventorying. Most important,
however, is the fact that, as indicated above, the premarking had no
regard for substantive organization, and, consequently, tended to en-
hance the risk of oversight and encumber the reference process.
56 For example, documents that had been issued by LPN John
Bishop reflecting his enforcement of the Respondent’s policies
against aides, had been premarked as R. Exhs. 30, 33, and 40; they
appear in the record as R. Exhs. 6(a) through (d). Call-in forms,
completed by Bishop that had been premarked as R. Exhs. 53, 54,
56, 69, 70, 75, and 83 were renumbered as R. Exhs. 7(a) through
(h). Corrective action forms signed by LPNs that were not called to
testify are now collected in R. Exhs. 18(a) through (nn), but were
premarked as R. Exhs. 32, 34 through 39, 41 through 51, and 130
through 151.
trative.53 He claims that, at the earliest stages of the trial, he
was ‘‘berated’’ by reason of his position in this regard.
Thus, at the inception of the trial, the General Counsel
moved for sequestration. The Respondent requested that he
be permitted to retain as his representative, Poppelreuter, the
administrator, when Helterbran, the director of nursing, was
testifying, and Helterbran while Poppelreuter was on the
stand. (Tr. 10.) On the face of the pleadings, it was fair to
assume that they would be key witnesses. The Respondent’s
answer denied, inter alia, that Cullinan was discharged for
unlawful reasons, while affirmatively stating that she was a
statutory supervisor. GCX–1(c). It was presumable that
Helterbran, who effected the discharge, and Poppelreuter,
who made the decision, were conversant with both the reason
for the termination and the supervisory issue.54 Accordingly,
to permit one key witness to testimony in the presence of the
other, obviously, would rob sequestration of all meaning.
After the Respondent was limited to a single representative
of choice, and sequestration implemented, Shaffer was em-
phatic in his attack on this routine exercise of discretion. (Tr.
11.)
He protested that I had wrongfully denied him a represent-
ative. When he reiterated that I was to blame for his incon-
venience, he was simply informed that he was not compelled
to make either Helterbran or Poppelreuter his representative,
and that his situation was caused by his own choice. (Tr. 9,
10, 11–12.) He would not let up. On the second day of the
hearing, he again found it necessary to interrupt me, once
more to carp at the sequestration ruling. (Tr. 259.) As shall
be seen below, the sequestion matter was not the only occa-
sion in which Attorney Shaffer and his associate would turn
a routine exercise of authority into attack on my competence.
b. The marking of exhibits
A second major irritant derived from my rejection of the
method used by Shaffer in ‘‘premarking’’ the Respondent’s
exhibits. In this connection, the matter opened when Shaffer
inquired as to whether I had special rules regarding the
premarking of exhibits. (Tr. 24.) I replied that I do, that I
never permit premarking because the exhibits come in out of
sequence and lead to confusion. However, at that juncture,
I advised that, because he had already premarked the exhib-
its, he would be indulged.
Later, however, it became evident that premarking would
lead to a totally convoluted record and hence was unaccept-
able. Thus, when the Respondent offered the same category
of documents, for the same purpose, ostensibly signed by the
same witness, yet premarked Respondent’s Exhibits 3, 10,
11, 12, and 13, I reconsidered. I directed that these docu-
ments be grouped and remarked as Respondent’s Exhibits
3(a) through (e), explaining:
I am responsible, not only for a decision, but an orderly
record . . . [a]nd to have the same subject matter jump-
ing seven exhibits is not an orderly record. [Tr. 129.]
As he had from the outset, Shaffer invoked the fact that he
had cleared this procedure with Associate Chief Administra-
tive Law Judge John M. Dyer during a prehearing conference
call. Shaffer was informed that I, not Judge Dyer, was re-
sponsible for the case.
As events unfolded, it became increasingly evident that the
premarking reflected a scatter-shot approach. The premarking
was so incoherent that one could assume the papers had been
tossed from the top of a building, gathered from the street
below, then marked in the order of retrieval. Although
premarking always creates sequential problems, that was only
an incidental defect in the Respondent’s approach to building
an exhibit folio. Thus, its marking was thoroughly
unstructured in terms of the nature of the document, its
source, or content.55 Those that would question this observa-
tion need only compare the original markings still visible on
some of the documents, against the manner in which they
now appear in the record.56
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
57 My acquaintance with this method of organizing massive exhib-
its dates back more than 30 years. In almost 20 years as an adminis-
trative law judge, it has been used over and again in cases involving
numerous documents, without a whimper from counsel, and more
often than not at their instance. Never had the arrangement fueled
controversy, and not once had an attorney experienced difficulty in
comprehending or adapting to the system.
58 Tr. 136, 145. In her affidavit, Montalto states that she felt
‘‘rushed’’ in remarking the exhibits according to my directive. What-
ever her situation, it is noted that counsel were provided time off
the record to perform the task. It was my impression that we did
not resume until the Respondent’s counsel signaled that they were
ready. There was neither denial of a request for additional time nor
a claim that ample time had not been provided.
59 Tr. 207. In addition, I directed that the Respondent remark sec-
tors of R. Exhs. 18 as (bb) through (nn). (Tr. 333.) The exhibits
were identified for the record and received on the basis of that in-
struction. Tr. 333–335. It apparently went unheeded and these docu-
ments appear as R. Exhs. 18 (ab) through (an).
60 It would be an impossible venture, and I have not endeavored
to explain away each and every disparaging characterization leveled
by Shaffer and his associate. However, the general untrustworthiness
of the various filings, both sworn and unsworn, that they have en-
dorsed willingly in this case offer a sound barometer for weighing
these comments as well.
61 This is particularly necessary in light of counsel for the Re-
spondent’s misguided assertion that the allegations, whether or not
valid, must be accepted by default because unchallenged. Thus, At-
torney Shaffer stated in reply to the General Counsel’s opposition
to disqualification:
Nowhere does the counsel for the General Counsel dispute the
factual contentions (and affidavit evidence) attached to the mo-
tion. The allegations are therefore uncontroverted. By her silence
. . . the General Counsel has tacitly conceded all the serious
factual allegations upon which the recusal motion is predicated.
When this hearing was closed, all documents of the same
ilk had been collected under the same exhibit number and,
with exception of supplementation, appear in the order in
which they were presented for authentication. There was no
ingenuity in this approach, and I cannot lay claim to being
the author.57 In this case, it has produced a document file,
whereby the Respondent’s ‘‘170’’ documents were consoli-
dated under 27 separate exhibit numbers. One need only
know the subject matter to be in a position to locate a par-
ticular document with speed and efficiency.
Shaffer, though assisted by an associate, on a continuing
basis, seemed unable to grasp the basic formula to be fol-
lowed, namely, that documents of the same type, offered for
the same purpose, especially if identified by the same wit-
ness, should be alphabetized under a single, consecutive
number. He manifested his inability to proceed, at one point,
by enlisting my assistance with the following comment:
We’re going to challenge your exhibit marking skills
here, Judge, because we’re going to give you some that
are numbered from 17 through 107 in three exhibits.
[Tr. 136.]
On that occasion and others, I endeavored to assist Shaffer
in conforming to the simplistic formula.58 After the formula
had been explained and demonstrated on several occasions,
Shaffer still could not get it right, having attempted to lump
in a single exhibit disciplinary forms and ‘‘report off
sheets,’’ documents that obviously had no relation to each
other.59
Although I sensed a noncooperative spirit, if not ‘‘smart-
ing’’ from the outset, it would become apparent that my ef-
fort to provide systematic access to the numerous documents
involved was viewed with utter contempt by the Respondent.
In his memorandum in support of the motion to disqualify,
Shaffer describes this directive as ‘‘a source of hostility di-
rected at me by Judge Harmatz and they were a source of
on-going controversy and disruption.’’ In fact, the record
shows that any ‘‘controversy’’ was generated by Shaffer, and
that the ‘‘hostility’’ was directed at me.
Thus, on the final day of the hearing, Shaffer sought to
introduce a document which included an unrelated attach-
ment. This triggered a critical comment on my part con-
cerning the degree of thought that had not gone into prepara-
tion of the numerous documents, together with the observa-
tion that the still legible, original markings showed no logical
sequence. Shaffer replied:
Judge Harmatz, you know, I’m going—you have been
the sole and complete author of the absolute confusion
that has been created in the record here. It was your
nitpicking personal subjective preference for numbering
exhibits that has caused . . . us the most unbelievable
confusion in trying to present a case that was already
to go and was completely orderly. [Tr. 414.]
c. Other miscellaneous allegations
Whatever the explanation for Attorney Shaffer’s resistive
conduct at the trial, there is no excuse for the representations
in his sworn affidavit, offered in support of his motion to
disqualify. With a plethora of pejoratives,60 he has gilded
and twisted, if not actually misstated, a record which is there
for all to examine. Facts are manipulated in order to portray
routine rulings as insidious behavior. Why an experienced at-
torney would resort to such tactics is an unknown. Although
it is unfortunate that these matters need be labored through
a detailed analysis, this level of behavior must be exposed
for what it is. To that end, major aspects of the affidavits
submitted in support of recusal are analyzed below.61
ITEM 4. Shaffer states that ‘‘from the commencement of
the hearing and through its conclusion the following day,
Judge Harmatz made repeated sarcastic and critical remarks
of me and my client.’’ The sworn averment that any such re-
marks were made concerning the Respondent or any of its
representatives is defamatory and absolutely false. Although
I hesitate to detract from the enormity of this misstatement,
there is no question that Shaffer’s performance during this
hearing—as he felt mine—was worthy of prodding and cor-
rection.
ITEM 8. Here, Shaffer avers that I ‘‘refused to allow evi-
dence to be received into the record, even though there was
no objection made to its offering.’’ The assertion that there
was a refusal to receive ‘‘evidence’’ into the record, at the
least, involves a deceptive and inflammatory misuse of the
English language. Nowhere does Attorney Shaffer identify
such evidence. He could not do so because there was no evi-
dence to exclude. Instead, as shall be seen, the incident
merely involved curtailment of argumentative cross-examina-
tion, which took place only after the witness testified repeat-
edly that she had no evidence to give. (Tr. 158–152.)
673MANOR WEST, INC.
62 His associate, Montalto, appears to labor under a complete mis-
understanding as to what was going on. She states in her sworn affi-
davit that the document was excluded because of my ‘‘opinion that
the witness could be lying and her testimony would never be suffi-
cient to corroborate and support the relevancy of the exhibits.’’ Ob-
viously, the opposite was true, for the documents were not relevant
to determination of the witnesses’ credibility, let alone any other
issue.
Thus, the incident arose during examination of the alleged
discriminatee, Cullinan. On direct examination, Cullinan, in
response to inquiry by the General Counsel, denied that she
ever had been told that she was a ‘‘charge nurse.’’ On cross-
examination by Shaffer, she indicated that she understood
that position to have been occupied by an LPN that worked
days, that it involved a 50-cent hourly premium and required
additional paperwork. Shaffer then sought to equate the au-
thority held by all LPNs with that held by the charge nurse,
posing the following:
Q. So each would have the same measure of author-
ity over aides and orderlies, correct?
A. I don’t know, I wasn’t a charge nurse.
Despite this response, Shaffer persisted, prompting my inter-
vention to express my own difficulty understanding how the
witness, having never held the position, could respond. (Tr.
149.) Attorney Shaffer argued back, ‘‘she doesn’t have to be
a charge nurse to know what they do or if there is any dif-
ference between them.’’ I suggested: ‘‘If you have somebody
who was a charge nurse and knows what they do, put her
on.’’ Although Attorney Shaffer later would do so, he in-
sisted on wasting time through Cullinan, finally propounding:
The fact that you weren’t told you were a charge nurse,
how did that impact on your job or your responsibility?
When the witness expressed confusion at this inquiry,
Shaffer was cut off. Obviously, the comparison sought by
Shaffer would be meaningless until a charge nurse testified
that the position involved statutory indicia of supervisory sta-
tus. Yet, Shaffer elected to grind out the comparison with
one who at best could merely offer hearsay, and, who al-
ready, at least twice, had professed to a lack of knowledge
of all elements of the position. He was cut off when it be-
came obvious that the examination had become argumen-
tative and nonproductive. There is absolutely no basis for the
assertion that I ‘‘refused to allow evidence to be received
into the record . . . .’’
ITEM 9. Shaffer avers that I, relying on the ‘‘work prod-
uct’’ privilege, foreclosed him from questioning a witness
even though ‘‘the objection was not raised by anyone.’’ This
was not the case. On cross-examination, Shaffer questioned
LPN John Bishop as to what was discussed at a meeting at-
tended by Bishop, discriminatee Cullinan, and her attorney,
Lynd. The General Counsel objected, stating that the inquiry
‘‘involves conversations between attorneys and clients.’’
Once posed, I solicited Shaffer’s position on the objection.
He observed that Bishop was not Lynd’s client and therefore
no attorney/client privilege attached. However, the ground
for the objection was stated in broad terms, embracing ‘‘con-
versations between attorneys and clients,’’ and hence suffi-
cient to include work product. The views of Shaffer were so-
licited in that regard. Shaffer stated that this was not work
product, but offered no rationale or authority. The objection
was sustained, along with the observation that conversations
with witnesses preliminary to litigation were within the work
product privilege. See, e.g., Visual Scene v. Pilkington Bros.,
508 So.2d 437, 442–443 (Fla. App. 3 Dist. 1987).
In a major example of distortion, Shaffer avers that Judge
Harmatz expressed his unsolicited opinion that a witness for
Respondent ‘‘could be lying.’’ The allegation is highly in-
flammatory. Yet, no remark of this nature in the form of
‘‘opinion’’ or otherwise was expressed by me on or off the
record to anyone. During the cited incident, Helterbran was
on the stand. She identified documents as summaries of eval-
uations prepared by LPNs. She testified that the evaluations
actually prepared by the LPNs had been destroyed. She ac-
knowledged that, on their face, the documents did not iden-
tify input from any LPN. (R. Exhs. 15(a) through (r). Tr.
316.) All were rejected because cumulative to, and not an
independent source of, evidence corroborative of Helterbran’s
testimony that LPNs made the underlying evaluations. In ex-
cluding them, I endeavored to explain to counsel:
These documents, as they have been described by
Ms. Helterbran, the documents that she prepared, they
do not reflect upon her credibility in one way or the
other with respect to the critical aspects of her testi-
mony, mainly that the feedstock for this document
comes from documents that are usually prepared or
evaluations that are usually by LPN’s.
She prepared these documents, not as an LPN. They
are not indicative of any evaluations prepared by LPN’s
. . . .
Nevertheless, Shaffer did not seem to ingest that these docu-
ments were collateral to Helterbran’s testimony. As he per-
sisted in his disagreement with my ruling, I attempted to ex-
plain further that the documents did not reenforce
Helterbran’s credibility because:
They’re parallel things. If she’s lying about one, she
could be lying about the other. If she’s telling the truth
about one, the other doesn’t matter.
The documents do not reflect on her credibility.
They’re irrelevant. It’s quite possible . . . . It’s quite
possible that these documents could be based on judg-
ments made below by people other than LPN’s.
You cannot tell from the face of these documents
where the feedstock information came from or whether
it originated . . . beyond the person who completed it,
namely, Ms. Helterbran.
Therefore, the document is of no use. It’s of no
greater value than Ms. Helterbran’s testimony. It does
not reenforce that testimony. [Tr. 317–318.]
Hopefully, Shaffer was aware that these remarks did not in
any sense convey an opinion or evaluation of Helterbran’s
credulity. The documents were excluded because they failed
on their face to reflect any input from LPNs and because
they in no way reflected on credibility.62
Nevertheless, although Shaffer had made his record
through Helterbran, and had been apprised thoroughly of the
cumulative nature of Respondent’s Exhibit 15, he insisted on
a complete regurgitation of this process later that afternoon.
(Tr. 481–491.) At that time, he again offered these precise
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
63 When Helterbran identified the documents, I was under the mis-
apprehension that she had authored them.
64 This was registered just after Shaffer admitted that ‘‘there is no
doubt about it,’’ the Respondent maintains an admissions depart-
ment. Tr. 163–164.
65 Contrary to Shaffer’s representation, no evidence was offered
that LPNs ever exercised discretion over whom and under what cir-
cumstances a patient would be admitted. In fact Cullinan’s denial of
such authority was confirmed by Helterbran’s testimony that LPNs
exercise no discretion as to such matters. In this light, it is incon-
ceivable that Shaffer was unaware that Cullinan had testified accu-
rately.
66 In his affidavit Shaffer erroneously states that he had elicited
this response from the witness.
exhibits through the author of the documents—Karlon Ware,
a former charge nurse, now holding the position of ‘‘staff de-
velopment nurse.’’63 Ware obviously could not cure the de-
fect specifically noted when the documents were offered
through Helterbran. Shaffer would not give up, arguing that
the summaries had to be based on collective evaluations by
the LPNs. Again I explained:
Except you’re overlooking something; her testimony
establishes that. This document does not establish that.
This document stands for nothing without her testi-
mony. So, if her testimony is true, you don’t need the
document. If her testimony is false, the document does
not make it true. The document is purely collateral. The
same problem that we had when some other witness
testified that she . . . did these entries.
. . . .
[W]e’ve climbed this ladder once with Ms. Helterbran
on the stand. I explained it to you then. I explained it
to you just now. If you can’t understand it, well, it’s
a personal problem.
The objection is sustained.
This document does not show that LPNs prepared
evaluations. Her testimony shows that. Ms. Helterbran’s
testimony shows that. These documents do not show
that.
It is astonishing that Shaffer in good faith has now made an
allegation under oath to the effect that he walked away from
this hearing and understood from the record that my expla-
nations for the lack of relevance of Respondent’s Exhibit 15
were indicative of adverse judgment on the quality or credu-
lity of Helterbran’s testimony.
ITEM 10. Here, Shaffer complains that I ‘‘stopped’’ his
cross-examination when Shaffer ‘‘began asking the Charging
Party about LPN responsibilities as they related to the admis-
sion of patients.’’ The record betrays this accusation. In fact,
the interrogation of this witness had commenced four pages
earlier, and was preceded with at least two denials that LPNs
had authority in that area. (Tr. 162–163.) Later when Shaffer
sought to reopen the matter, he was told by me that ‘‘She
[Cullinan] has no discretion over admission.’’ With this,
Shaffer stated: ‘‘Judge, you’re prejudging this thing.’’64 (Tr.
166.) He next represented that ‘‘Company witnesses will tes-
tify that before they had an admissions nurse, the LPN’s han-
dled patient admissions.’’65 (Tr. 166.)
As matters turned out, the cross-examination was not at all
‘‘stopped.’’ Shaffer’s cross-examination of Cullinan contin-
ued, ending only with her denial that there was ever a point
during her employment that ‘‘there was not an admissions
nurse handling patient admissions.’’ (Tr. 167.)
ITEM 11. Shaffer states that I showed my ‘‘preconceived
notions about Respondent’s operations through interrupting
his examination of Helterbran, arguing with her, and ‘‘refus-
ing to allow her answers to stand.’’ This is an absolutely
false portrayal of what transpired at transcript 362–364, the
cited sector of the record.
ITEM 12. Here, Shaffer states that I showed ‘‘his obvious
prejudgment of Respondent’s case’’ in a colloquy pertaining
to Respondent’s Exhibit 6(a). This document bears the signa-
ture of LPN John Bishop and was introduced through him.
My recollection and repeated reviews of Bishop’s testimony
show no problem with the document, which was received
without objection. (Tr. 208.)
On further deliberation, I realized that Shaffer inadvert-
ently referred to Respondent’s Exhibit 6(a) when he must
have meant Respondent’s Exhibit 6(c). This document was a
‘‘corrective action’’ form signed by Bishop. The document
on its face recorded the imposition of discipline. It was dated
August 9, 1991, after the Cullinan discharge. Counsel for the
Charging Party, Staughton Lynd, objected to Respondent’s
Exhibit 6(c) on this basis. Bishop, on examination by Lynd,
replied in the negative to a broad question as to whether his
‘‘duties or responsibilities’’ were altered after his title had
changed to ‘‘supervisor.’’66 The Respondent therefore in-
sisted that the document be received. Before ruling, I asked
Bishop whether he had the authority reflected on the face of
Respondent’s Exhibit 6(c) prior to Cullinan’s discharge. He
said, ‘‘No.’’ In support of recusal, Shaffer charges that I sus-
tained the Charging Party’s objection to the offer of this doc-
ument, after improperly questioning Bishop, in a fashion
which permitted him to change his answer. The accusation
is indicative. Considering what had already transpired on the
record, a possibility existed that the witness might have been
confused. Sensing this, it was within my authority to protect
the record against any unintended response. As matters
turned out, Bishop accurately responded to my question. Not
one document of this kind completed by an LPN, prior to
the Cullinan discharge, could be located in the Respondent’s
files. Not one of the Respondent’s witnesses testified that,
prior to the discharge, LPNs had issued or were authorized
to issue disciplinary warnings. Moreover, Attorney Shaffer
neglects to mention that Respondent’s Exhibit 6(c) ultimately
was received.
ITEM 13. Shaffer states that:
Judge Harmatz also displayed his disdain for me on
several occasions by berating my manner of preparation
of Respondent’s case. For example, after sustaining an
objection to a question, Judge Harmatz, not the object-
ing party, explained the rationale for the objection.
At the core of this allegation is a question posed to his own
witness, Helterbran:
MR. SHAFFER: Until you got drawn into this litiga-
tion did it ever occur to you that anybody would seri-
ously contend that the LPN was not a supervisor?
A. No.
675MANOR WEST, INC.
67 Montalto states that my ‘‘smug comments’’ concerning this doc-
ument ‘‘indicated [my] conclusions about the case’’ and made it ap-
parent that ‘‘Judge Harmatz had already determined the outcome of
the case.’’ Here again, it is absolutely inconceivable that a trained
attorney, speaking under oath, could in good faith hold to the notion
that adverse comment as to a single document, itself limited to emer-
gency situations, would radiate a conclusion as to the entire case.
MR. LYND: Objection.
JUDGE HARMATZ: Sustained.
MR. SHAFFER: On that basis, may I know the basis
for the objection?
JUDGE HARMATZ: . . . . What her personal thoughts
are and what she expected is not relevant to any issue
in this proceeding.
Obviously, the appropriate inquiry was not the basis for the
‘‘objection,’’ but the basis for my ruling. The question put
to the witness was fundamentally nonprobative, and its ex-
clusion was routine.
This ruling and rationale is linked by Shaffer with an ac-
cusation that I had berated the manner in which he ‘‘pre-
pared the Respondent’s case.’’ In doing so, he claims that I
made reference to ‘‘foresight and hindsight in relation to liti-
gation.’’ Quotes are employed to convey that the language
used was mine. Attorney Shaffer goes on to state that this
language implies that I regarded his ‘‘trial tactics . . . [as]
. . . somehow questionable.’’ In contrast with the allegation,
the cited segment of the record does not substantiate that the
quoted language was used by me or that words were used
critical of counsel’s trial tactics. (Tr. 320–321.)
ITEM 14. Shaffer avers that on another occasion, the writ-
er objected to a question by Judge Harmatz put to a witness.
Judge Harmatz refused to acknowledge it by stating: ‘‘I
don’t want to hear your objection.’’ The quote, though styled
as complete, was not. The allegation pertains to my effort to
clarify certain testimony by Helterbran concerning the duties
of LPNs when a patient is discharged. What actually took
place was as follows:
JUDGE HARMATZ: So . . . [the LPNs’] responsibility at
that point, is custodial; prior to that point they’re responsibil-
ities are the same custodial responsibility that they always
exercise while the patient was a resident, isn’t that right?
MR. SHAFFER: I’m going to object to calling it custodial—
JUDGE HARMATZ: I don’t want to hear your objection. I
want an answer from the witness, okay.
THE WITNESS: They would continue in their position as
duties of the nurse.
JUDGE HARMATZ: Right, right, that’s what I meant.
The objection was heard, acknowledged, and implicitly over-
ruled.
ITEM 15. Shaffer takes issue with my reference to his
‘‘leading’’ witnesses with ‘‘prejudicial terminology.’’ Here
again, he states that ‘‘it was hardly the place for the Judge
to make it an issue if counsel has not.’’ The record will at-
test to Shaffer’s propensity to lead. Language is very impor-
tant to the supervisory issue. The administrative law judge
must assure that it is used with precision and accuracy, and
under conditions likely to produce truth. Questions loaded
with such prejudicial terminology as ‘‘supervise,’’ ‘‘ap-
prove,’’ ‘‘authorize,’’ and ‘‘responsible’’ create risks as to
the reliability of the response, and burden the hearing, be-
cause of the frequent need for clarifying interrogation. (Tr.
365–367.) The regulation of this type of examination is not
contingent on the actions of opposing counsel.
ITEM 19. Shaffer asserts that I exhibited disdain for the
Respondent’s case as evidence was elicited concerning LPN
duties during an emergency. He points to my comments con-
cerning Respondent’s Exhibit 16, as indicating ‘‘prejudg-
ment’’ that LPNs did not function with independent judg-
ment when faced with an emergency. This document is self-
explanatory. It lays out in detail on a step-by-step basis the
procedures to be followed by LPNs in the event of fire or
tornado. The document was offered by the Respondent and
received. On its face, the document ‘‘discouraged inde-
pendent judgment’’ in covered situations. The remark by me
was founded on cold evidence.67 (Tr. 324.) Finally, it is
noted that although unmentioned in the affidavits, the Re-
spondent at the hearing and in its posthearing brief makes the
assertion that my comments at the hearing regarding this
document were expressed without having read the document.
The observation is without foundation. Moreover, it over-
looks the obvious question as to just how I could have
critiqued Respondent’s Exhibit 16 so accurately without hav-
ing read it.
ITEM 20. Shaffer’s sworn statement includes the fol-
lowing:
Judge Harmatz also displayed a preconception of facts
that Respondent’s LPNs were not supervisors later in
the proceeding. After respondent Exhibit 18 was offered
in evidence, Judge Harmatz asked if the opposing coun-
sel had any objection. After no valid objection was
made, Judge Harmatz suggested that opposing counsel
think further on the subject, as if to prompt them to ar-
ticulate what the judge thought would be a valid objec-
tion. [Emphasis added.]
The facts assumed in this representation, again, are not sub-
stantiated by the record. Thus, after verbally identifying each
of the separate components of Respondent’s Exhibits 18(a)
through (nn), I attempted to clear the way for their admis-
sion, by addressing opposing counsel as follows:
JUDGE HARMATZ: . . . Now, I don’t think there’s
any problem with the representation that these are ordi-
narily maintained as business records.
MS. BUTLER: Well, Your Honor, I would object to
these on a few grounds.
JUDGE HARMATZ: Now, wait a minute. Let’s not
change the issue . . . .
Now the first issue is whether they’re business
records. Does anyone have any problem with that?
MS. BUTLER: Well, I would argue that the nursing
home is in the operation of providing patient care. And
business records would technically be the patients’ files
and the documents reflecting what has occurred with
respect [to] the patients and not corrective action.
JUDGE HARMATZ: So, if somebody is manufacturing
automobiles the only thing that would be business
records would be the cost and material components that
go into the automobile and not the personnel files?
MS. BUTLER: That—
JUDGE HARMATZ: No, I’m sorry. Personnel
records—any kind of administrative records that are
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
68 There was not the remotest basis for suspecting that either was
anything other than a legitimate, authentic, business record.
69 Shaffer proclaims that this undertaking was discharged with
great care.
necessary and requisite to the operation of a business
are business records.
Think. Think about what helps you. Think about
what hurts. [Tr. 334–336.]
[Resumption of the Respondent’s examination of
Helterbran.]
Shaffer, in this instance, has transformed a rejection of the
General Counsel’s position (which, in turn, paved the way
for receipt of his own proffer) into a sinister act prejudicial
to the interest of his client.
In connection with this same exhibit, Shaffer argues that
certain comments made by me ‘‘left Respondent’s witness
believing the case was decided against Respondent and cre-
ated the impression of some preconceived conclusions
against the Respondent by the Judge.’’ This is incomprehen-
sible. The documents on their face show that LPNs who
completed them were in fact ministering discipline. They
were received.
The rub is that the earliest was dated August 9, 1991, after
Cullinan’s employment had ended. Helterbran could not re-
call whether this document had emerged before or after the
Cullinan discharge. The Charging Party objected to Respond-
ent’s Exhibits 18(a) through (nn) on this ground. The fol-
lowing ensued:
JUDGE HARMATZ: Well, I know the objection. I
know the basis for the objection. I would like to know
the earliest date. Does anybody remember the earliest—
MR. LYND: I believe its August, Your Honor.
JUDGE HARMATZ: Yes, I think it was August. That’s
my recollection, too, I mean before you suggested that.
I will receive them and I would like—the reason I
am going to receive them is not because I disagree with
you, but because I think they have a bearing on the
case in terms of certain subtleties that I’d rather not dis-
close at this time.
The ‘‘subtleties’’ pertained to the dates on these 40 docu-
ments and the fact that not one issued before the discharge.
Shaffer, having inquired of Helterbran as to when the docu-
ments were generated, clearly grasped the relevance of the
timing issue. It was left unexplained in the testimony of
Helterbran. LPN Bishop had previously testified that the doc-
ument in question emerged after the Cullinan discharge. As
matters turned out, the Respondent was given the opportunity
to demonstrate, on a posthearing submission, that these docu-
ments were in fact completed by LPNs prior to the dis-
charge. It is difficult to imagine that the Respondent’s coun-
sel was unaware of what was going on, or that he, or anyone
else could assume, that anything was said by me that sug-
gested that ‘‘the case was decided against Respondent.’’
ITEMS 21, 22, 23, and 24. An act of neglect furnishes the
basis for these allegations against me. When Shaffer offered
Respondent’s Exhibit 19, the General Counsel and Charging
Party questioned an attachment being of dissimilar content
and dated during a different time frame. Obviously the two
documents were unrelated. Yet, instead of simply with-
drawing the attachment, Shaffer sought an explanation from
Helterbran, the authenticating witness. When I interceded,
Helterbran acknowledged that the second document should
not have been attached. Contrary to the allegations of Shaffer
the witness was permitted to explain the discrepancy. How-
ever, there was no explanation other than her testimony that
she would not have attached the second document, and the
implication that it had been stapled together by someone
other than herself.
In addition, Respondent’s Exhibit 19 was described by
Helterbran as ‘‘an example of creative scheduling.’’ I picked
this up in chiding Shaffer that the attachment was ‘‘an exam-
ple of creative compiling of documents . . . . Just throw it
in there.’’ Beyond that he was importuned in no uncertain
terms as to his responsibility for every document presented
in evidence. He was also told that the oversight is:
a bit critical to me since I have been burdened with a
lot of documents that I don’t think are particularly rel-
evant. I’ve indicated to you that they weren’t relevant.
I don’t think that a great deal of care went into these
documents.
After I pointed out my expectation that ‘‘every document
. . . be carefully lathered before it is submitted in evi-
dence,’’ Shaffer implied that I had accused him of conduct
that was ‘‘unethical, immoral or dishonest.’’ To this I re-
plied, ‘‘I don’t consider negligence to be any of the things
you described . . . .’’ (Tr. 414.) Shaffer was repeatedly in-
formed on the record that there was no accusation that docu-
ments had been fabricated.68 (Tr. 409, 411, 414, 415.) Yet,
in his affidavit, Shaffer persists that ‘‘Judge Harmatz accused
me of ‘creative compiling of documents,’ which was tanta-
mount to a fabrication of evidence.’’
Shaffer complains that I demeaned his professionalism
when critical of the fact that there had been only a partial
prehearing search for ‘‘atta boys.’’ In fact that search turned
up 15 documents. (R. Exhs. 20(a) through (o).) Each was
dated after the discharge. Earlier, counsel for the Respondent
had submitted 40 ‘‘corrective action’’ forms. (R. Exhs. 18(a)
through (nn).) Each was similarly flawed, being dated after
the Cullinan discharge. It is inconceivable that the defense
team was unaware prior to the hearing that, at least on their
face, these documents were the most reliable and penetrating
evidence available in the Respondent’s arsenal to support the
critical argument that LPNs were authorized to and did in
fact engage in activity of a personnel nature, outside the
realm of patient care. It should have been equally obvious
that this evidence would have no utility if nonexistent during
the relevant time frame.
Moreover, a subpoena was outstanding, and presumably
the parameters of relevance in any search of personnel files
would have been set by counsel. As events unfolded, counsel
for the Respondent, prior to the hearing, would have known
that each of these 55 documents was flawed by their execu-
tion after the discharge. For, documents in both categories
had been marked in advance,69 and hence had been in pos-
session of the Respondent’s attorneys prior to hearing. Yet,
despite the potency of these documents, counsel apparently
took no steps to broaden the prehearing search in the interest
of discovering similar documents that might have been exe-
cuted during the relevant time frame.
677MANOR WEST, INC.
70 Tr. 264, 276–277, 284, 290–291, 292, 347, 348, 349, 352–356,
386, 388–389, and 392.
71 Tr. 303–304, 310, 315–316, 397, 399–400, 405, and 407–408.
72 Tr. 418–419.
73 Tr. 281, 360–364, 365–366, 367–368, 370–371, and 372.
To make matters worse, no other evidence was available
to the Respondent to substantiate that this was the case.
Helterbran, the only witness examined on the point, could
not state that LPNs had executed these documents on any
similar scale and while employed by the Respondent. The
best she could do was suggest that the possibility that such
documents existed. In doing so, she explained that there had
been no prior examination of personnel files of terminated
employees. I was confounded by the fact that counsel would
have gone to hearing on this basis without soliciting the
broadest possible search for these highly material documents.
In light of Helterbran’s explanation as to the abortive nature
of the search, and the importance of any existing, timely
‘‘atta boys’’ and ‘‘corrective action’’ forms, in my judgment,
the hearing could not be closed under those conditions. How-
ever, in order to avoid adjournment, leave was granted to
permit the Respondent further opportunity to complete the
record on a posthearing basis as to documents in both cat-
egories.
ATTORNEY MONTALTO. Before closing it is necessary to
address a serious allegation in the affidavit signed by
Montalto. In that document she avows that Helterbran had
been ‘‘the target of Judge Harmatz’ comments,’’ and at con-
clusion of her direct examination was ‘‘quite distraught,’’
and ‘‘shed tears to relieve her tension.’’ The gravity of this
assertion is obvious. In material part, it relates to subjective
matters, occurring behind the scenes, in an area where the
truth would not have been witnessed by anyone other than
those partisan to the Respondent. Beyond that, the attribution
that my actions were the cause is outrageous and totally lack-
ing in foundation. No elaboration is provided as to just what
might have been said by me suggesting that Helterbran was
targeted, or just what Helterbran might have been targeted
for. Helterbran was questioned by me on direct but only to
clarify her testimony70 and documents,71 or to narrow the
scope of overly broad questions propounded by counsel for
the Respondent,72 or to curtail the latter’s ponderous forays
into irrelevant areas.73 Any reader of the record will quickly
observe that there was nothing implicit or explicit in this ex-
amination that would suggest disapproval of the witness, or
that she was in any sense ‘‘targeted.’’ In fact, shortly before
the close of direct, I engaged Helterbran in what appeared
to be a good-humored exchange. At that time, there were no
signs that she was distraught or on the verge of tears, and
her responses on the record signaled that she was as content
as one could be in her situation. See Tr. 421–422.