Nursing Center at Vineland

National Labor Relations Board - Board Decisions

Aug 31, 1994

314 N.L.R.B. 947 (N.L.R.B. 1994)

947
314 NLRB No. 158
NURSING CENTER AT VINELAND
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 Konig was reluctant to acknowledge either the number or loca-
tion of his nursing homes.
2 All dates hereinafter are 1992 unless otherwise specified.
Michael Konig t/a Nursing Center at Vineland and
Communications Workers of America, Local
1040, AFL–CIO. Cases 4–CA–20962–2, 4–CA–
20984, 4–CA–21083, 4–CA–21093, and 4–CA–
21360
August 31, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On August 27, 1993, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The Re-
spondent filed exceptions and a supporting brief to the
judge’s decision.
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Michael Konig t/a Nursing
Center at Vineland, Vineland, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Henry R. Protas, Esq., for the General Counsel.
Stuart Bochner, Esq. (Horowitz and Pollack, P.C.), for the
Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Philadelphia, Pennsylvania, on March 24
and May 5 and 6, 1993, based on unfair labor practice
charges filed on August 7 and 14 September 25 and 30,
1992, and January 15, 1993, as amended, by the Commu-
nications Workers of America, Local 1040, AFL–CIO (the
Union), and complaints and orders consolidating complaints
issued by the Regional Director of Region 4 of the National
Labor Relations Board (the Board), on October 7 and No-
vember 5, 1992, and February 26, 1993. The consolidated
complaint alleges that Michael Konig, t/a Nursing Center at
Vineland (Respondent or the facility) violated Section
8(a)(1), (3), (4), and (5) of the National Labor Relations Act
(the Act). Respondent’s timely filed answer denies the com-
mission of any unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS AND THE UNION’S LABOR
ORGANIZATION STATUS PRELIMINARY
CONCLUSIONS OF LAW
Respondent, a sole proprietorship, is engaged in the oper-
ation of a long-term nursing care home in Vineland, New
Jersey. In the course and conduct of its business operations
at that facility during the past year, it received gross reve-
nues in excess of $100,000 and purchased and received
goods and products valued in excess of $50,000 directly
from points located outside the State of New Jersey. The
consolidated complaint alleges, Respondent admits, and I
find and conclude that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The complaint alleges, Respondent admits, and I find and
conclude that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. Background
The Nursing Center at Vineland is one of a number of
nursing homes in New Jersey and other States owned by Mi-
chael Konig. The Vineland facility has three long-term care
units, A, B, and C, and a residential unit. It employs reg-
istered nurses, nurses aides, and approximately 30 to 35 li-
censed practical nurses (LPNs), as well as housekeeping,
laundry, kitchen, and clerical employees to staff its three-
shift operation. Prior to the certification of the Union as their
representative, the LPNs were not represented by any labor
organization.
Respondent’s proprietor, Michael Konig, travels among his
approximately 15 nursing homes1 maintaining no fixed of-
fice. Diane Croiter is the regional manager. The facility or
executive director is Sheree Urgo; Abbie Aponte is the direc-
tor of nursing; Samantha Newman is the administrator; Cathy
Lacey is the admissions director; and Phyllis Culley, John
Ventura, and Deidre Fronzek are or were supervisors. The al-
leged discriminatees, Darlene Lindsey, Diane Caine, Nancy
Schafer, and Carmen Ocasio, are LPNs.
B. Union Activity
Union activity among Respondent’s LPNs began in about
June 19922 with leafletting outside the facility and the post-
ing of union literature on bulletin boards within it. The
leafletting was observed by management; Cathy Lacey told
Darlene Lindsey and Wanda Walker to go straight to their
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 According to Lindsey’s uncontradicted testimony, Konig had
taken a bonus away from Lindsey when, after he had been ordered
by a governmental agency to pay her $2600 in unpaid overtime, she
had refused to accede to his demand that she sign the check back
over to him.
4 Respondent offered no evidence with respect to most of the
8(a)(1) allegations and did not put on an affirmative case. Konig and
Urgo were adversely examined by the General Counsel and were
questioned by Respondent’s counsel, with their testimony essentially
limited to the 8(a)(3) and (4) issues. Other than to assert, in general
terms, that the statements of the Employer’s representatives did not
cars when they left the facility and not talk to the two men
who were outside trying to organize for the Union.
When they exited work, Lindsey, Carmen Ocasio, and
Isaida Villaneuva spoke with the union representatives.
Ocasio told the others that she saw someone watching them
through a window and they arranged to meet further down
the street. They continued their discussions, expressing inter-
est in organizing, taking authorization cards to distribute
among the LPNs, and providing information to the Union.
Subsequently, Sheree Urgo, the director, told Lindsey that
she had been seen running down the street, chasing after the
union representatives.
Lindsey, Ocasio, Caine, and Schafer assumed roles as
spokespersons for the Union on their respective shifts, passed
out authorization cards, answered employee questions and
announced and attended union meetings. They secured signed
authorizations from 17 of the LPNs; of those, about 10 were
solicited by Lindsey.
The Union filed its petition (Case 4–RC–17874) for a rep-
resentation election on June 8. A hearing was held on July
8. Schafer, Lindsey, Caine, and Ocasio were the only em-
ployee witnesses; they testified on behalf of the Union. At
issue was whether the LPNs were already represented by an-
other labor organization (Local 35, IBT) which purportedly
represented a broader unit throughout Konig’s New Jersey
operations under an existing agreement which would have
been a bar to the union’s petition, the appropriateness of a
unit limited to LPNs and whether Lindsey, Ocasio, and a
third LPN were charge nurses with supervisory authority.
The employees described their duties and responsibilities;
they testified that they had never been made aware of their
inclusion in Local 35, IBT’s bargaining unit and that they
had never received any benefits under its agreement.
The local press covered the hearing and Lindsey’s picture
appeared in the newspaper. About a week later, Urgo told
Lindsey that having her picture in the paper did not help the
facility at all. Urgo complained that patient’s families were
concerned about who was taking care of the patients while
the nurses were trying to organize a union.
The Decision and Direction of Election issued on Sep-
tember 17. The Regional Director found that the Local 35
contract was no bar to the election, that a unit of LPNs was
appropriate and that Lindsey, Ocasio, and the third LPN
were not supervisors. An election was conducted and, on Oc-
tober 27, the Union was certified as exclusive collective-bar-
gaining representative of the following appropriate unit of
employees:
All full time and regular part-time Licensed Nurses
(LPNs) employed by the Employer at its 1640 South
Lincoln Avenue, Vineland, New Jersey facility, exclud-
ing all other employees, registered nurses, quality assur-
ance employees, nurses aides, clerical employees,
housekeeping employees, dietary employees, laundry
employees, guards and supervisors as defined in the
Act.
C. The Employer’s Response to the Union Activity
1. The 8(a)(1) violations and other conduct
evidencing animus
Shortly after the petition was filed, Urgo and John Ventura
(supervisor in charge of quality assurance) came to the B
unit where Lindsey was working. Prior to this time, it had
been the practice of the LPNs to sit in the area behind the
nurses’ station during their breaks. According to Lindsey,
Urgo was ‘‘in a rampage.’’ Urgo told Lindsey that she did
not want anyone sitting behind the nurses’ station. She threw
the chairs around and threatened to discipline anyone sitting
there. Lindsey asked what was wrong and Urgo replied,
‘‘You know what is wrong . . . You nurses want to play
games . . . I’m going to show you how to play games . . .
because I’m going to turn into a little bitch like [the facility
director at another of Konig’s nursing homes].’’
Lindsey told Urgo that she didn’t mean what she was say-
ing and Urgo insisted that she did. She told Lindsey, ‘‘You
nurses want to play games, you want a union, you know
what is the matter.’’ Lindsey compared Urgo’s behavior to
that of a ‘‘scorned woman.’’ Urgo replied that she would
show them and told Lindsey that Konig had asked her,
‘‘How does it feel to have the nurses have their foot up your
ass?’’ Urgo claimed that she was the only friend the nurses
had, the only one taking their side, and that this [i.e., the
union activity] was what she got in return. Lindsey insisted
that the union activity had nothing to do with Urgo and was
not Urgo’s fault. She pointed out, however, that when Konig
had taken away a bonus, Urgo had done nothing to get it
back.3
Urgo instructed Ventura to call the C unit. He reported
that the chairs had already been removed from behind the
nurses’ station. Urgo replied, ‘‘Well, good. I’m glad some-
body is on the ball and realizes I’m not playing.’’
Prior to this time, the LPN’s in the B unit had been work-
ing 8-hour shifts and were supposed to be going on to 16-
hour shifts, as the LPNs in the C unit were doing. Lindsey
asked Urgo when the change would occur. Urgo told her not
to worry about a schedule she was not going to give them
‘‘because of the Union.’’ When Lindsey argued that their
union activity was no reason to deny them the longer shifts,
Urgo said that she was also doing it because Aponte did not
want either the B unit LPNs or those in the C unit to work
16-hour shifts.
Lindsey’s credibly offered and uncontradicted testimony4
clearly establishes both Respondent’s animus toward the em-
949NURSING CENTER AT VINELAND
violate the Act but merely indicated its position with respect to the
representation matter or sought evidence to support its position in
that hearing, Respondent’s brief omitted reference to the 8(a)(1) and
(5) allegations.
5 This uncontradicted statement, an unlawful implied threat to her
job tenure, was not alleged as an independent violation. Fontaine
Body Co., 302 NLRB 863, 866 (1991).
6 Lindsey’s credible description of this meeting was consistent
with the testimony of Ocasio and Walker but more detailed.
ployees’ union activities and Urgo’s willingness to take un-
lawful reprisals against those employees because of their pro-
tected activities. Her imposition of more onerous working
conditions (the threat to discipline LPN’s who use the area
behind the nurses’ stations for their breaks, her removal of
the chairs from those areas, her threat to be ‘‘a little bitch’’),
and her revocation of previously planned and apparently de-
sired extended shift hours all violate Section 8(a)(1) as al-
leged in the complaint. Auto Sunroof, 298 NLRB 717 (1990);
Northern Wire, 291 NLRB 727 (1988).
On another occasion in June, Lindsey and Wanda Walker
were called into Urgo’s office. Urgo told them that the em-
ployees weren’t smiling and that nursing homes get cited
when the employees appear to be neglecting patient care be-
cause everybody is concentrating on union activity. It was at
this time that Urgo commented about Lindsey, Ocasio, and
Villaneuva having been observed ‘‘running down the street’’
after the union representatives. Urgo then asked Lindsey
whether she had signed a union card. Lindsey, in turn, asked
whether Urgo was asking her or telling her. When Urgo re-
peated her query, Lindsey said that it was none of Urgo’s
business.
Lindsey was right, it was none of the Employer’s business
whether she had signed a union authorization card. Urgo’s
interrogation of Lindsey, who was not an overt and open
union supporter at that time, in her office and in an animus-
laden atmosphere, violated Section 8(a)(1). Raytheon, 279
NLRB 245, 246 (1986); Sunnyvale Medical Clinic, 277
NLRB 1217, 1218 (1985); Rossmore House, 269 NLRB
1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985).
Nancy Schafer testified that, in mid-July, Fronzek asked
her, in passing, ‘‘What’s up with the Union?’’ Schafer
brushed off her query by asking Fronzek how she felt about
the Union. Fronzek replied that she was neutral on the sub-
ject. Under all the circumstances, including the essentially in-
nocuous phrasing of the query, Fronzek’s answer to
Lindsey’s question indicating no personal animosity toward
the Union, the fact that Fronzek is deceased, the disparity in
dates between the complaint’s allegation and Schafer’s testi-
mony and my finding of unlawful interrogation by Urgo, no
finding of a violation is warranted or required based on this
brief conversation.
At some point after Urgo’s ‘‘rampage’’ at the nurses’ sta-
tion, she called Lindsey to say that Konig wanted to meet
with her and several others. After talking it over with Ocasio,
Lindsey agreed that the LPNs would meet with Konig but
only if all of them could attend. Urgo checked with Konig
and a meeting was set for July 6.
While this meeting was held only 2 days before the R case
hearing, Konig testified that he doubted that it was in re-
sponse to the petition. A group of employees had concerns
and questions, he said, and sought a chance to question him
on ‘‘these matters.’’ Among the concerns was whether they
were already represented by another union, Local 35 of the
Teamsters, as management was claiming. He recalled no spe-
cifics of the meeting and what little testimony he gave was
not credible.
Between 10 and 15 LPN’s met with Konig, Urgo, and
Aponte in Urgo’s office on July 6. Konig did most of the
talking. He asked what problems and concerns the employees
had and suggested that they could be worked out without the
intervention of a new union. The employees questioned why
they were not being paid for overtime and why they could
not leave the facility on their meal breaks. Konig said he
would get back to them on these.
Someone asked how they could be represented by Local
35 without being aware of it. Konig told them that they were
represented by that union and that it was the union’s respon-
sibility to inform them, not his. However, he offered to con-
tact Local 25 on their behalf. In the course of this discussion,
Konig told the LPNs that if they wanted to belong to a
union, there were several others which they could join. How-
ever, he would do everything in his power to keep the CWA
out of his facility, he said. He referred to the CWA as an
intruder coming in to stop them from being a happy family.
Angrily, he told them that the discussion was getting off the
track and offered to meet with two of them as the LPNs’
representatives on a regular basis to discuss the problems at
the nursing home. A list of the problems voiced at the meet-
ing was compiled by Urgo.
Lindsey recalled questioning Konig about why he cared
which union represented them. He told her not to put words
in his mouth and said that ‘‘this is costing me a lot of
money.’’ She replied, ‘‘So what, we want a union.’’ He re-
sponded, ‘‘Why don’t you leave, Ms. Lindsey, this is not
your nursing home.’’5
On July 7, Urgo invited Lindsey, Ocasio, and Walker to
go to dinner with her. They accepted her novel invitation and
she took them to a hotel restaurant; Urgo picked up the
check. In the course of this dinner meeting, Urgo told them
that she had been hurt and angry when she found out that
they wanted a union because the LPNs had not given her a
chance to resolve any problems they had. She reminded them
of what Konig had said to her about her being too close to
the nurses and his questioning of how she felt now that they
‘‘had their foot up her ass . . . and were trying to get a
union in.’’ She told them, ‘‘All I’m asking is to give me the
opportunity to show you that we can work things out . . .
we could have committee meetings, we can write down a
contract ourselves, the four of us . . . you can make up what
you want, we’ll go over it. We’ll have meetings.’’ She asked
them to talk to the other nurses on their sections and urge
them to give her a chance to try and fix things in the facility
before the employees went ‘‘to another union.’’ She re-
quested an answer by the end of the week. Lindsey then told
Urgo that she and Ocasio, both of whom were scheduled to
work on the day shift of July 8, would be attending the hear-
ing.6
Lindsey and Villanueva spoke with Urgo during a break
in the hearing on July 8, telling her that she should not take
their union activity personally. ‘‘How could I fail to do so?’’
she asked, and said that the dinner of the previous evening
had been a waste of time. The nurses never got back to her
on the request that they form a committee of their own.
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Konig returned to the Vineland facility on July 13 for his
second meeting with the LPNs. At that time, he responded
to the complaints he had earlier solicited, stating that he
would appoint someone to authorize their overtime and
would permit them to leave the home on their meal breaks
so long as they punched in and out.
Diane Caine had worked on the 11 p.m. to 7 a.m. shift
before the hearing and then spent the daytime hours of July
8 at the hearing. After leaving the hearing and dining with
the Union’s representatives and the other witnesses, she
called in sick; she was exhausted after a full day without
sleep. In the course of his July 13 meeting, Konig was vo-
cally critical of her, accusing her of being ungrateful for all
the favors he had done her and of not having any consider-
ation for the home. He stated that he should have gotten rid
of her when he had the chance and angrily claimed that ‘‘this
union business was costing him thousands of dollars.’’
The complaints allege, and the foregoing evidence estab-
lishes that, in an effort to dissuade the employees from sup-
porting the Union, Konig and Urgo solicited their grievances,
impliedly promising to remedy them, granted them the bene-
fits they sought, and suggested that they form their own
committee or labor organization to deal with the Employer.
The violations are patent and uncontradicted. See Aquatech,
Inc., 297 NLRB 711, 713 (1990); Montgomery Ward, 290
NLRB 981, 983–985 (1988); Uarco Inc., 216 NLRB 1, 2
(1974); and Reliance Electric Co., 191 NLRB 44, 46 (1971).
Before the R case hearing, the LPNs, RNs, and supervisors
freely smoked at the nurses’ stations and in the room behind
those stations outside of visiting hours. They would also eat
at the nurses’ stations; Urgo even provided lunches or other
treats to celebrate successfully completed state inspections.
Sometime after the hearing, however, the employees heard a
rumor that there was going to be a crackdown on smoking
in the facility. Nancy Schafer and another LPN questioned
Fronzek about the rumored changes. Fronzek told them,
‘‘With everything that’s going on at the nursing home at this
point in time, I have to enforce these rules even though they
haven’t been enforced in the past, and that includes no smok-
ing or drinking coffee or soda at the nurses’ station.’’
Given that the only thing ‘‘going on at the nursing home’’
at that point in time was the LPNs union activity (at least
on the face of this record), I must conclude that Fronzek was
announcing a crackdown motivated by that activity. As Gen-
eral Counsel points out in his comprehensive brief, the strict-
er enforcement of rules, or the institution of new ones, so
motivated is violative of Section 8(a)(1). Jennie-O-Foods,
Inc., 301 NLRB 305, 312–315 (1991); Dynamics Corp. of
America, 286 NLRB 920 (1987).
2. Violations of Section 8(a)(3), (4), and (5)
a. Wright Line
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), provides
the analytical mode for resolving discrimination cases turning
upon an employer’s motivation. Under that test, the General
Counsel must first
make a prima facie showing sufficient to support the
inference that the protected conduct was ‘‘a motivating
factor’’ in the employer’s decision. Once accomplished,
the burden shifts to the employer to demonstrate that
the same action would have taken place notwith-
standing the protected conduct. It is also well settled,
however, that when a respondent’s stated motives for
its actions are found to be false, the circumstances may
warrant an inference that the true motive is an unlawful
one that the respondent desires to conceal. [Fluor Dan-
iel, Inc., 304 NLRB 970 (1991).]
A prima facie case is made out where the General Counsel
establishes union activity, employer knowledge, animus, and
adverse action taken against those involved or suspected of
involvement in the union activity which has the effect of dis-
couraging union activity. Farmer Bros. Co., 303 NLRB 638,
649 (1991).
In the instant case, a strong prima facie case has been
made out with respect to all of the alleged discriminatees.
Lindsey, Caine, Schafer, and Ocasio were each heavily in-
volved in union and other statutorily protected activity; their
activity included testifying as the only employee witnesses
on the petitioner’s behalf at the R case hearing. Respondent
was fully aware of their activity and had expressed both gen-
eralized union animus and particularized animus directed at
Caine and Lindsey. Respondent, moreover, has been shown
to be willing to violate the Act in numerous ways in its ef-
fort to avoid the Charging Party’s organizational efforts. As
will be shown below, each of the alleged discriminatees suf-
fered adverse actions at Respondent’s hands which could not
help but discourage them and others from engaging in further
union activity. The prima facie case thus established shifts
the burden to Respondent to demonstrate that those adverse
actions would have occurred even if there had been no pro-
tected activity. That burden has not been met. Respondent’s
defense, essentially that each of these employees became
emboldened by their union activity and thought they could
behave with impunity, is not supported by the record. To the
extent that Respondent’s justifications for its adverse actions
could be said to have sustained its burden, I have found them
to be false and pretextual.
b. Diane Caine
Diane Caine worked on the 11 p.m. to 7 a.m. shift. How-
ever, on July 21, the schedule clerk called her at 3 p.m. and
asked her to come in and work a double shift, starting imme-
diately. She refused because of insufficient notice. Shortly
thereafter, Fronzek called and asked Caine to come in, as a
favor to her, and promised her overtime pay if she did. Caine
came in at 7 p.m. At 9 p.m., Fronzek called Caine and asked
her ‘‘to be a good girl that night and not smoke on the
desk.’’ Fronzek told Caine that her job was on the line, that
Urgo wanted Fronzek to write Caine up if she saw Caine
smoking on the desk. Fronzek said that she would come
around to Caine’s station later that evening; she never did.
Caine denied smoking at the nurses’ station that night; her
testimony was not contradicted by any direct evidence. She
also testified that at least one other LPN, Dorinda Norval,
was smoking at the desk.
Caine worked on July 22, without incident. She was not
scheduled to work again until the 11–7 shift on Friday, July
24. On that day, however, Aponte called her about 3 p.m.
to tell her that she was suspended and off the schedule until
further notice. Aponte refused to tell her why and merely
951NURSING CENTER AT VINELAND
7 It was received over the General Counsel’s objection, only as
evidence going to Respondent’s state of mind. Respondent did not
support its argument that it should be admissible as affirmative evi-
dence under the so-called dead man’s exception to the hearsay rule,
although requested to brief the issue. Caine, who was familiar with
Fronzek’s handwriting and signature, claimed that it had not been
written by Fronzek. I reject it as affirmative evidence, except to the
extent that it contains admissions against Respondent’s interest; I
question whether it originated with Fronzek or had been voluntarily
given to Respondent by her.
8 Respondent produced a rule, supposedly drawn from its policy
manual, but never introduced either that rule or the manual.
9 Urgo’s testimony, to the effect that there had been no prior dis-
ciplines issued under this policy because she was unaware of any
violations is patently incredible in light of the testimony of various
witnesses who identified employees and supervisors, including Urgo,
as smoking in the corridors and at the nurses’ stations, and the ad-
mission contained in what purports to be Fronzek’s statement about
the previously unenforced rule.
10 Konig’s claim that he was unaware of Caine’s union activity
and of her testimony at the R case hearing is similarly patently in-
credible, particularly in light of his verbal attack upon her at the July
13 meeting and his in-depth involvement in the homes’ daily activi-
ties, at least when the union’s supporters were involved.
stated that if she wanted to hear more, she should come to
a meeting with Konig on Monday. Caine said that if she was
not told why she was suspended, she would come in to work
as scheduled. After that conversation, Aponte called back to
ask if Caine really intended to appear at work that night.
When told that she did, Aponte threatened that she would be
physically ejected by the police.
Caine reported to the facility at 10:30 p.m. on Friday
night. Urgo (not normally present at that hour) and other su-
pervisors were there to observe her; Urgo called the police.
Caine was expelled even though she explained to the police
officers that she had come in so as to avoid being discharged
as a no-show.
On Monday, July 27, Caine came to Urgo’s office for the
meeting. Konig was there notwithstanding his claim that he
normally did not get involved in discharges of LPNs or
nurses’ aides ‘‘unless there are extenuating circumstances or
something is a bit out of the norm.’’ Also present were Urgo,
Aponte, and Croiter. Fronzek (who was still alive and in Re-
spondent’s employ at that time) was not there. Caine was ac-
companied by Darlene Lindsey, and both the steward from
Local 35, IBT and Local 35’s representative.
Caine asked why she was suspended. Konig said that that
was what they were there to find out. He told her that
Fronzek had said that she was smoking at the desk that night
and had insubordinately refused her order that she stop, even
blowing smoke in Fronzek’s face and becoming belligerent
and screaming when told to extinguish her cigarette. Caine
denied smoking and said that she had not seen Fronzek at
any time that night. Konig claimed to have been told by
Fronzek that there was a package of Dorals and a burning
cigarette at the desk. Caine pointed out that Dorals was
Norval’s brand, not hers. Urgo began to say that Fronzek
was going to retract her statement; Konig shut her up. He
claimed to have five witnesses and accused Caine of calling
them liars. Caine suggested that they were mistaken and
asked to see their statements; Urgo said that they were
locked in a drawer to which she did not have the key.
Caine asked Konig why they were doing this to her and
reminded him that she had been a good employee, one whom
Konig had even sent to work at other facilities. Konig re-
plied, ‘‘If this had happened a month ago, we wouldn’t have
to go this route. . . . Sometime when we’re alone, just the
two of us in a room together, I’ll tell you why.’’ Munsey,
the Local 35 steward, asked Konig why he was trying to get
Caine to admit to doing something she hadn’t done and
pointed out that even if she had been smoking, that was not
a dischargeable offense under the Local 35 contract. Konig
answered that he owned the facility and he made the rules.
Caine’s credible testimony as to these admissions stands
uncontradicted.
On the following day, Samantha Newman called Caine
and told her that ‘‘after a thorough investigation and the
meeting on Monday, they decided that [Caine] was termi-
nated.’’
Urgo claimed that she had been called by Fronzek during
the late evening on July 21, while at home. Fronzek had pur-
portedly told her that she was having a problem with Caine,
that she had spoken to Caine several times about eating and
smoking at the nurses’ station and that Caine had become
very insubordinate and continued to smoke at the station.
On July 22, Urgo allegedly took statements from Fronzek
and two employees who were supposedly present. Assuming
the admissibility of Fronzek’s statement,7 it asserts that, in
the course of a telephone conversation, she told Caine that
she was going to have to enforce previously unenforced rules
regarding smoking and eating and asked Caine to comply.
Caine, it relates, refused and got angry at her. She later ob-
served a pack of cigarettes and a smoldering cigarette at the
desk and subsequently saw, from a distance, Caine smoking
and appearing to blow smoke in her direction. According to
the statement, Fronzek did not directly confront Caine. The
two employees also gave short statements asserting that they
had seen Caine smoking. Respondent never questioned
Norval; neither did anyone ask any of the other employees
about Norval’s alleged violation of the newly imposed rule.
Norval was not an overt supporter of the Union.
I need not reach the question of whether Caine was smok-
ing at the nurses’ station on July 21. The evidence is clear
that there had been no enforcement of any purported no
smoking rule,8 before the union activity notwithstanding that
smoking, by employees and supervisors alike, was common
throughout the facility.9 The adoption of that rule, or the re-
assertion of a previously unenforced rule, immediately after
the R case hearing, was discriminatory. The disparate appli-
cation of that rule to discharge one of the leading union pro-
ponents and a witness for the Union at the R case hearing10
was similarly discriminatory. Dynamics Corp. of America,
supra.
Even apart from the discriminatory adoption and applica-
tion of the no smoking rule, it is clear that Respondent was
motivated in discharging Caine by her union activity.
Konig’s statements, to the effect that he would not have had
to discharge her if this had occurred a month earlier and that
he would someday tell her why she was being discharged,
are admissions that smoking was not the real reason. The ad-
mission that the stated reason was false warrants the infer-
ence that the real reason was one that Respondent desired to
conceal, one which was unlawful. Fluor Daniel, supra.
Moreover, it appears that Respondent set Caine up for dis-
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 She feared assignment to the A unit because she believed that
numerous errors were committed there, including missing narcotics,
which could jeopardize her license. She acknowledged that she con-
sidered the work in the A unit to be more physically demanding and
mentally stressful.
12 I do not find that Lindsey’s confusion as to the exact lengths
of each period of leave and the dates involved warrants that I dis-
credit her testimony. The dates set forth above are consistent with
the doctors’ notes excusing her from work.
13 Urgo implied that Lindsey’s private duty job was news to her,
but did not expressly deny that she had been aware of it earlier or
that she had been told by Lindsey that she would continue to hold
this job while on her leave. Neither Aponte nor Leibowitz testified.
charge. It reasserted the previously unenforced rule and then
called her in, instructing Fronzek to find her in violation so
that it could terminate her. At the subsequent meeting, both
Konig and Urgo exaggerated what Fronzek and others had
allegedly told them about the events of July 21. They were
also disinterested in whether other employees had smoked at
the nurses’ station that night.
Based on all of the foregoing, I find that Respondent dis-
charged Diane Caine in violation of Section 8(a)(3), (4), and
(1) of the Act.
c. Darlene Lindsey
On July 9, the day following the R case hearing, Urgo ob-
served that Lindsey had a can of soda on her cart as she
went about her rounds. Prior to the hearing, such conduct by
Lindsey or others had at most provoked a verbal reminder
that this was contrary to policy. This time, Urgo asked
Lindsey whether the soda can was hers and then walked on.
Lindsey was subsequently called to the office and issued a
written verbal warning. Lindsey told Urgo that it was a joke,
that others had beverage cans on their carts all the time,
naming one employee in particular. Urgo replied that
writeups given to others were none of Lindsey’s business.
Lindsey accused Urgo of only writing her up because of her
union activity. Urgo did not deny this. The record contains
no evidence of others being written up for this, either before
or after the hearing.
Given my finding that Respondent had threatened to more
rigorously enforce work rules because of the union activity,
the evidence of both disparate treatment and prior lack of en-
forcement, the timing of this incident right after Lindsey tes-
tified and Urgo’s failure to deny the accusation that she was
motivated by Lindsey’s union activity, I find the violation as
alleged. Dynamics Corp. of America, supra. Respondent has
failed to sustain its burden that it would have so disciplined
Lindsey in the absence of her protected activity.
Lindsey had worked in the B unit since the start of her
employment. She had told management that if she were to
be transferred to the highly skilled A unit, she would quit.11
To this point in time, management had accommodated her
preference, even to the point of juggling overtime assign-
ments for her.
However, on July 28, Lindsey was called into a meeting
with Urgo, Aponte, and Diane Croiter, regional manager. She
was told that there were going to be some changes, that she
was going to be transferred to the A unit, as the charge
nurse. She refused to work as a charge nurse and accused
them of doing this in order to force her to quit, because of
her union activity. They told her to look upon it as a chal-
lenge. She told them she would not give them the satisfac-
tion of her quitting. When she asked if the transfer was to
be permanent, she was told that there was a possibility of her
moving back to another unit if she could not make it there;
Urgo said that she had another, unspecified, option. She was
ordered to report to the A unit on the following day.
In order to make room for Lindsey on the A unit, Caroline
Jenkins was transferred from the A unit to fill Lindsey’s slot
in the B unit. Respondent offered no explanation for Jenkins’
transfer out of the A unit or Lindsey’s transfer into it.
In light of the General Counsel’s strong prima facie case
and Respondent’s utter failure to offer anything by way of
explanation, the conclusion that the transfer was made for
discriminatory reasons is compelling. I note Respondent’s
knowledge of Lindsey’s threat to quit if ever assigned to the
A unit and the efforts made to create an opening for Lindsey
on that unit. The presence of three high level supervisors to
tell Lindsey that she was being transferred and Urgo’s highly
suspicious reference to ‘‘another option,’’ also strongly sug-
gest that what Respondent really wanted was Lindsey’s vol-
untary termination.
Lindsey worked 2 days on the A unit and suffered a fall
in the course of her work, injuring her back and revealing
a dangerous rise in her blood pressure. For the next 2 weeks
or so, she worked off and on, as she could. She was treated
for the back injury by Respondent’s physician, Dr.
Leibowitz, and by her own physician, Dr. Napoli, for her hy-
pertension. Dr. Napoli recommended that she take 3 weeks
off, from August 12 through 31. Dr. Leibowitz added an ad-
ditional week to her time off, to September 8. Lindsey also
took 2 weeks of vacation time.12 All of the leave was ap-
proved by Urgo. Lindsey filed no forms or claims for com-
pensation. While she expected that the bills from Dr.
Leibowitz and the physical therapist would be taken care of
by Respondent, she paid for Dr. Napoli’s services.
For more than a year, Lindsey had held a private duty job
in addition to her employment with Respondent. As she de-
scribed it, without contradiction, it was light duty, caring for
one elderly wheelchair bound woman in the evenings. The
work involved no lifting other than to assist her to use the
bathroom and to get into bed. She was permitted to rest, and
even sleep, while she was there.
Lindsey testified, credibly and without contradiction, that
both Urgo and Aponte were aware of her private duty job.
When she brought the doctors’ notes in for approval of the
leave, Urgo asked whether she would be able to continue her
private duty job. Lindsey said that she would do so as long
as she was able to. Aponte similarly discussed this outside
work with Lindsey when Lindsey came into the facility to
fill a prescription. Lindsey had also told Dr. Leibowitz about
this job when she was examined by him.13
According to Urgo, she learned of Lindsey’s private duty
job from her nursing supervisor and, at the end of August
or in early September, retained a private investigator to look
into it. That investigator went to the patient’s home on Sep-
tember 7 and determined that a woman named Darlene was
working there. A report to that effect was sent to Urgo on
September 9.
Urgo testified, however, that she called Lindsey on Sep-
tember 3, after she had received the investigator’s report.
953NURSING CENTER AT VINELAND
14 Lindsey testified that Urgo merely asked that she come in, as
a favor, which she refused. After her refusal, she received the Sep-
tember 3 telegram directing that she report. I credit Lindsey, noting,
in addition to their demeanor, the conflicts in Urgo’s testimony con-
cerning when, in relation to her call and the telegram, she had re-
ceived the investigator’s report. The dates appearing on Dr.
Leibowitz’ notes, the investigator’s report and the telegram all dem-
onstrate the implausibility of Urgo’s claims.
Urgo claimed that she told Lindsey that, inasmuch as she
was doing the same type of heavy-duty work for a private
patient that she would be doing at the nursing home but for
her injury, and was out on workmen’s compensation, she was
to return to work on September 4. When Lindsey refused,
Urgo sent her a telegram, directing her to report for work for
the first shift on September 4. To further complicate matters,
Respondent introduced notes from Dr. Leibowitz. One, dated
August 25, stated ‘‘If pt. [Lindsey] is able to work outside
NCV, pt. discharged from my care & return to work today.
Another. dated September 9, authorized her return to work
on a part time basis on that date.’’14
Inasmuch as the Employer was taking the position that the
LPNs were represented by Local 35, IBT, Lindsey called a
representative of that union and was advised to call off sick
and go to the doctor. She made an appointment with Dr.
Leibowitz for the following day. The doctor’s receptionist
told her that Lacey had been calling the doctor’s office,
‘‘bugging the doctor to get you back to work.’’ Lindsey then
called the nursing home. After unsuccessfully trying to speak
with Urgo, she told Fronzek that she was calling off sick.
She learned from Fronzek that she had been placed on the
schedule for only 1 day, September 4.
In addition to going through Local 35 with respect to the
order that she work on September 4, Lindsey filed grievances
with Local 35 over her written warning and her transfer to
the A unit. A meeting was set up with Urgo for some time
after September 4. Local 35’s representative asked Lindsey
to speak with Urgo about efforts Urgo had undertaken to
have the nurses sign cards for Local 35 and to secure a list
or petition which Urgo had.
When she went into the home, Lindsey met another LPN
who gave her a list of LPNs who purportedly wanted rep-
resentation by Local 35. She then went to Urgo’s office and
met with Urgo and Samantha Newman, facility administrator.
Urgo asked what had caused her to switch her allegiance be-
tween the two unions. Lindsey replied that she had always
been willing to do whatever the majority wanted. Urgo told
her that the nurses were tired of the CWA and wanted Local
35; she added several names to the list. Urgo then called
some of the nurses, and had Lindsey call at least one, to de-
termine if they were supporting Local 35. Urgo gave Lindsey
the list and told her to take it to the CWA to persuade that
union to give up its representational efforts.
Lindsey left with the list. She took it to the Union but she
did not attempt to dissuade CWA from continuing to seek to
represent Respondent’s employees. On September 17, the
Decision and Direction of Election issued. CWA, it was
clear, was not abandoning its representational efforts.
Lindsey was scheduled to return to work on September 23.
In a chance encounter with Aponte on September 21, she
was told that Aponte, at least, welcomed her return. How-
ever, on September 22, Newman called to tell her to come
into a meeting at the facility. She met with Urgo, Aponte,
and Newman. Newman told her that she was being termi-
nated for refusing to come in to work on September 4 while
working in the same capacity as an LPN. Lindsey said that
they had known all along that she was continuing to work
on that job. Newman told her that she could not ‘‘double-
dip,’’ i.e., collect workmen’s compensation and work some-
where else. They argued over whether Lindsey was out on
compensation with Lindsey noting that she had filed no
forms and collected no benefits. When asked who she
thought was paying her medical bills, she pointed out that
Respondent had refused to pay them. She also pointed out
that she had been in and out of the facility since September
11 with nothing having been said to her about her employ-
ment status and accused them of discharging her because of
the Union, particularly because the Decision and Direction of
Election had just issued.
Lindsey’s discharge, following both a discriminatory warn-
ing and a discriminatory transfer which was intended to pro-
voke her to quit, presents a particularly strong prima facie
case. Respondent’s defense, that this employee was working
at a comparable job while out on a compensable injury and
refused an order to come in to work when this was discov-
ered, could on its face rebut that prima facie case.
However, analysis of the facts reveals that Respondent’s
defense is false and pretextual. First, Lindsey was not per-
forming comparable work, a fact that Respondent could have
determined by talking to Lindsey or by conducting a bona
fide and complete investigation. Her duties on the private
case were much lighter than those she did for Respondent.
She had but one patient, with no heavy lifting, and little that
was actually required of her during the shift. On duty in the
A unit, she had continuous responsibilities servicing 30 pa-
tients. The work involved considerable heavy lifting and
stress. Second, Respondent was aware of Lindsey’s private
duty work; both Urgo and Aponte knew from the start of her
injury leave that Lindsey would be continuing to work for
this patient. Moreover, Urgo’s reliance upon the report of
private investigator was a sham. She claimed to have called
Lindsey to come in to work after receiving that report. Her
call, however, was on September 3 and the investigation was
not conducted until September 7.
Neither has Respondent shown that Lindsey’s conduct was
improper. Lindsey had not sought any compensation beyond
payment of the medical expenses related to her back injury.
Neither was it shown that an employee would be precluded
from receiving compensation when disabled from her prin-
cipal employment merely because she had continued to work
at a preexisting job, the duties of which were not precluded
by her injury.
Finally, the timing indicates discriminatory motivation.
Lindsey was not terminated immediately after her refusal to
report for work on September 4 even though Urgo stated that
she was discharged in part for being a no-call/no-show. She
was permitted to come and go through the facility for more
than 2 weeks before being discharged. It was only after the
Decision and Direction of Election issued and was served on
Respondent that Lindsey was discharged. It is a reasonable
conclusion that Respondent, already angered by her union ac-
tivity, became further disturbed by Lindsey’s failure to con-
vince CWA to drop its representational efforts and dis-
charged her in reprisal.
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Konig’s role in such a minor matter demonstrates the depth of
his involvement in the day-to-day operations of the facility.
Based on all of the foregoing, I conclude that Respondent
discriminatorily warned, transferred and ultimately dis-
charged Darlene Lindsey because of her union activity and
because she testified on behalf of the Union-Petitioner in the
R case hearing, in violation of Section 8(a)(3), (4), and (1)
of the Act.
d. Carmen Ocasio
Carmen Ocasio has worked for Respondent as an LPN for
4-1/2 years. In April, she was working full time on the C
unit, five 8-hour shifts, including every other weekend. At
that time, Urgo assigned her the additional responsibility of
distributing medications in the residential unit, twice each
shift. Ocasio asked whether she would receive any extra
compensation. After checking with Konig,15 Urgo raised her
pay 25 cents per hour, expressly noting that she was doing
the residential ‘‘meds’’ and C unit full time. The raise was
‘‘for taking on this responsibility.’’
In August, Ocasio told Urgo that she was returning to
school to earn her RN degree. Starting in September, her
schedule was adjusted to accommodate her schooling. She
began to work 32 hours on the weekends (two double shifts);
she frequently picked up a fifth shift during the week for a
total of 40 hours. She continued to pass the medications in
the residential unit twice each shift.
Effective November 1, Urgo revoked Ocasio’s 25-cent in-
crease. The pay adjustment form stated, ‘‘Decrease in pay
status. Employee is no longer full time C unit and residen-
tial. Part time due to employee going to school. Mr. Konig
is aware. Employee may resume this status after she finishes
R.N. school.’’ Ocasio learned of the change from payroll;
she was told that it was done at Urgo’s direction. No one
had told her that she was now part time.
When her hours were changed in September, Ocasio was
working a schedule similar to that of Nancy Schafer. Schafer
testified, without contradiction, that she was considered full
time and that, when she started, an employee who worked
32 hours was deemed full time. Respondent has acknowl-
edged that it maintains no different wage scales or benefit
levels for its full and part time employees.
Given the strong prima facie case presented by the General
Counsel, the burden has shifted to Respondent to dem-
onstrate that this pay cut was not discriminatorily motivated.
Nothing beyond a naked claim that Ocasio was now part
time was proffered. That claim is false and, I conclude,
pretextual. She remained a full time employee. Moreover, the
raise had not been given because she had become full time,
it was given because she had taken on additional responsi-
bility, which she retained. Ocasio’s pay cut, I find, was moti-
vated by her union activity and her testimony in the R case
hearing and violates Section 8(a)(3), (4), and (1).
The Union had been certified as the employee’s statutory
representative just 3 days before Respondent took away
Ocasio’s raise. Respondent gave the Union no notice and no
opportunity to bargain about the pay cut. General Counsel
has alleged, and I agree, that such unilateral action must be
found to violate Respondent’s duty to bargain in good faith
under Section 8(a)(5) and (1) of the Act. See Nemacolin
Country Club, 291 NLRB 456, 463 (1988), and Schnadig
Corp., 265 NLRB 147, 170 (1982). The timing further sup-
ports the 8(a)(3) and (4) conclusion.
e. Nancy Schafer
Nancy Schafer had been employed as an LPN at the Vine-
land facility since October of 1989. She worked double shifts
on weekends and an additional shift during the week, on the
C unit. In addition to her activity in promoting the union and
testifying in the R case, she had spoken up during Konig’s
July 13 meeting.
Schafer was working a double shift on August 29, 6:45
a.m. to 11:15 p.m., assigned to team 2. As part of her duties
on that team, she was required to distribute the patients’
medications (pass meds), a duty she would not not normally
perform. At the 10 a.m. med pass, residential patient CZ
came into the office. Schafer noticed that CZ’s chart author-
ized two different pain medications, Tylenol and Percocet, a
prescription drug. Residential patients are expected to request
such medications when and as the need arises. Schafer asked
CZ if she wanted anything for pain and, when the patient
said yes, asked her which one she wanted. CZ didn’t know
and asked for the one she always got. Shafer said she had
doctor’s orders to give her either one and again CZ indicated
that she didn’t know which one she needed. Schafer said,
‘‘Well, if you don’t know the name of this, how am I sup-
posed to give you this medication?’’
Present in the office during this exchange was Phyllis
Culley, the supervisor. Culley interjected that Schafer should
ask the patient if she was having mild or severe pain and
Culley then asked that question of CZ. CZ was unable to un-
derstand until the question was rephrased, ‘‘Do you hurt a
little or a lot?’’ When she said ‘‘a lot,’’ Culley told her that
when she was hurting a lot, she should ask for the Percocet.
Schafer then dispensed the Percocet and signed it out on the
narcotics log.
After CZ left the office, Schafer questioned whether CZ
belonged in the residential unit. She noted that the residential
patients should be taught to know their own medications well
enough to ask for them. CZ, she opined, was unable to do
that. Culley told Schafer that several patients were being
moved from the residential unit for that very reason. Schafer
described Culley as replying to her in an abrupt and short
fashion but denied that Culley criticized her handling of the
patient.
Schafer saw CZ again at the 2 p.m. med pass. CZ apolo-
gized to Schafer for being short with her, saying, ‘‘Some-
times we get old and say things we don’t mean.’’ She did
not ask for any medications at that time. Neither did she ask
for any medication when Schafer saw her at the 6 p.m. pass.
At 7 p.m., while Schafer was on her supper break with
LPN Kim Urso, Pat Patterson, the nurses’ aide from the resi-
dential unit, asked why CZ had not been given pain medica-
tion at 6 p.m. She was told that CZ had not requested any.
Patterson said that CZ was now asking for it. Urso told her
that Schafer would be over to give CZ the medication when
they finished their break. At 7:45 p.m., Schafer went to the
residential unit, found CZ in the smoking room, and asked
her whether she needed Percocet. When CZ said that she did,
Schafer gave her the medication and recorded it.
Schafer next saw CZ at the 10 p.m. med pass when she
was given her routine medications. At that time, CZ asked
for more pain medication. Schafer had to refuse as it was
955NURSING CENTER AT VINELAND
less than 6 hours since she had been given Percocet. On the
following morning, Schafer saw CZ at the morning med
pass. CZ was friendly and commented on a mental trick she
had developed for remembering the name of her pain medi-
cation. CZ requested and was given her pain medication at
that time.
When Schafer next reported for work, on September 5, she
was called into Aponte’s office and told that she was sus-
pended until she could have a meeting with Konig on Sep-
tember 7. Aponte would only tell her that it involved serious
patient issues.
Schafer met with Konig, Urgo, Aponte, Newman, and
Lacey on September 7. Phyllis Culley, the only supervisor
who witnessed the incident, was not present. According to
Schafer’s uncontradicted testimony, Konig claimed that a pa-
tient had alleged that Schafer had refused to tell her the
name of her medication and then refused to give it to her.
This, Konig said, had been witnessed by the patient’s room-
mate and by Culley. Schafer was told that she had been
physically and mentally abusive to a patient and that she had
withheld that patient’s pain medication from 8 p.m. until 11
p.m. at which time, she had been ‘‘nasty’’ to her. Urgo inter-
jected that the patient thought that Schafer ‘‘would kill her.’’
When Schafer questioned this, Urgo retracted that claim. In
the course of the meeting, Konig told her that ‘‘it was not
her other activities within the facility’’ to which he was tak-
ing exception, just the patient issues. Schafer denied all the
allegations; she never withheld any medications from this pa-
tient, she said. Rather, she gave her the medications when
they were requested. She denied that she saw the patient at
11 p.m. on August 29; she was in the process of making her
report to the incoming nurse at that time.
Schafer’s testimony concerning her involvement with pa-
tient CZ was credibly offered and is uncontradicted. The
records of medications dispensed confirm Schafer’s testi-
mony as to what medications she gave CZ and when. Re-
spondent did not proffer the testimony of Supervisor Phyllis
Culley or any other witness to these events. Respondent’s
failure to present any such evidence, particularly the testi-
mony of Culley, warrants that I credit Schafer and draw the
adverse inference that had they done so, those witnesses
would have corroborated Schafer. Martin Luther King Sr.
Nursing Center, 231 NLRB 15 fn. 1 (1977).
Respondent reported the allegations against Schafer to the
State’s Office of the Ombudsman for the Institutionalized El-
derly and suspended her. Schafer spoke with the Ombudsman
by telephone on a number of occasions but he did not inter-
view her in person notwithstanding her repeated offers to
meet with him. She gave him a written report of the events
and the names of the other nurses with her at the 11 p.m.
report, the time when she allegedly was ‘‘nasty’’ to the pa-
tient. The Ombudsman only spoke to one of those witnesses,
according to information Schafer had received.
According to Urgo, the decision to terminate Schafer was
made when Respondent received the Ombudsman’s report.
That report, received by Respondent on January 15, stated:
After an investigation conducted by this Office on
September 15, 1992, we were able to obtain sufficient
information that the patient may have been verbally
abused by the nurse.
The nurse was suspended from the facility, and we
were informed that the facility intended to terminate her
employment.
In light of the results of this investigation no further
action will be taken by this Office.
Schafer was terminated on January 15 for alleged verbal
and mental abuse of the patient. The State took no action
against her license as a practical nurse.
Other nurses testified about several incidents involving pa-
tients which, they claimed, resulted in no report to the Om-
budsman’s office or other discipline. Three incidents in-
volved the failure of either an LPN or a supervisor to pro-
vide a scheduled treatment to a patient. The fourth incident
involved a report by a patient to LPN Wanda Walker that
Cathy Lacy, Respondent’s admissions director, had phys-
ically pulled that patient by the arm to force her to go to the
hairdresser. Walker reported this complaint to Aponte and
documented it on the patient’s chart. Lacey is still employed
at the facility. The record is devoid of any evidence that this
incident was ever reported to the Ombudsman.
The State of New Jersey apparently requires that all com-
plaints of patient abuse involving the institutionalized elderly
be reported to the Ombudsman. If CZ actually alleged that
she had been abused, Respondent could not be faulted for
making such a report. Given Schafer’s uncontradicted testi-
mony concerning the events of August 29 and 30, and the
failure of Respondent to adduce available witnesses or other
evidence to contradict her, I must discredit Urgo’s claim that
the patient made such an allegation. Any report made to the
Ombudsman office must have originated with Respondent.
Konig’s unsolicited reference to Schafer’s other activities
within the facility, in the course of the September 7 meeting,
evidences the discriminatory motivation for making such a
report. That conclusion is further evidenced by Respondent’s
disparate failure to report other incidents of potential abuse,
particularly the complaint by a patient against Respondent’s
admissions director, Lacey.
I must further find that the Ombudsman’s report does not
justify Schafer’s termination. First, I note a significant ele-
ment of ‘‘bootstrapping’’ in Respondent’s contention. Re-
spondent asserts that it discharged Schafer because of the re-
port; the report indicates that the Ombudsman was not reach-
ing a final conclusion because Respondent had told him that
it intended to discharge Schafer. It is clear that Respondent
decided to discharge Schafer before the report issued and
independently of that report.
Moreover, even assuming that the Ombudsman’s report
antedated the decision to discharge Schafer, it does not sup-
port the claim that she abused a patient. The statement that
there was ‘‘sufficient information to substantiate that the pa-
tient may have been verbally abused’’ is a bureaucratic non-
conclusion. It is simply too weak a thread to support the dis-
charge of an employee of nearly 4 years’ tenure.
Accordingly, having found that Respondent disparately and
discriminatorily reported Schafer to the Office of the Om-
budsman, I must conclude that its reliance on the report of
that office fails to meet its burden of rebutting the General
Counsel’s prima facie case. Even assuming that the events of
August 29 and 30 were legitimately reported to that office,
I conclude that the ambiguous nature of the Ombudsman’s
report negates reliance upon it to meet Respondent’s burden
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 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.
of proof. I find that Respondent reported Nancy Schafer to
the Office of the Ombudsman and discharged her because of
her union activities, including her testimony in the R case
hearing, in violation of Section 8(a)(3), (4), and (1).
CONCLUSIONS OF LAW
1. By threatening to impose and imposing more onerous
and less desirable working conditions, by interrogating em-
ployees concerning their union activities, by soliciting griev-
ances and by soliciting employees to form their own labor
organization or grievance committee with whom it promised
to deal, and by promising to grant and granting improved
terms and conditions of employment, all in order to discour-
age employees from engaging in union activities and from
joining, supporting or voting for the Union, the Respondent
has violated Section 8(a)(1) of the Act.
2. By discriminatorily issuing warnings to employees,
transferring them to less desirable positions, reducing their
pay and discharging them because of their union and other
protected activities, including giving testimony under the
Act, the Respondent has violated Section 8(a)(3), (4), and (1)
of the Act.
3. By unilaterally reducing an employees’ hourly rate of
pay without giving the Union notice and an opportunity to
bargain, the Respondent has violated Section 8(a)(5) and (1)
of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent’s violations include a discriminatory
warning to and transfer of Darlene Lindsey and a discrimina-
tory reduction in pay affecting Carmen Ocasio as well as the
discriminatory discharges of Darlene Lindsey, Diane Caine,
and Nancy Schafer. In order to remedy these violations, Re-
spondent must revoke the warning issued to Lindsey and re-
move it from its files and restore Ocasio’s wage rate and
make her whole for any loss of earnings she suffered. Hav-
ing discriminatorily discharged Lindsey, Caine, and Schafer,
it must offer these employees reinstatement and make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offers of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). The offer of reinstatement to Lindsey
must be to a position in the B or C units, such as she occu-
pied prior to her discriminatory transfer to the A unit.
Respondent’s unlawful conduct began immediately upon
its notice of the employees’ union activities. It continued
throughout the preelection period and for several months
thereafter, encompassing nearly the entire spectrum of em-
ployer unfair labor practices. It included the discriminatory
discharges of three of the employees who testified on behalf
of the petitioner in the R case hearing and the discriminatory
reduction in the hourly wage of the fourth. Discrimination
against those who are witnesses in Board proceedings is a
particularly egregious act. Because of the Respondent’s egre-
gious and widespread misconduct, demonstrating a general
disregard for the employees’ fundamental rights, I find it
necessary to issue a broad Order requiring the Respondent to
cease and desist from infringing in any manner on rights
guaranteed employees by Section 7 of the Act. Hickmott
Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, Michael Konig, t/a Nursing Center at
Vineland, Vineland, New Jersey, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Threatening to impose and imposing more onerous and
less desirable working conditions, interrogating employees
concerning their union activities, soliciting grievances and
soliciting employees to form their own labor organization or
grievance committee with whom it promises to deal, and
promising to grant and granting improved terms and condi-
tions of employment, all in order to discourage employees
from engaging in union activities and from joining, sup-
porting or voting for the Union.
(b) Discriminatorily issuing warnings to employees, trans-
ferring them to less desirable positions, reducing their pay
and discharging them because of their union and other pro-
tected activities, including giving testimony under the Act.
(c) Unilaterally reducing rates of pay without giving the
Union notice and an opportunity to bargain.
(d) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
All full time and regular part-time Licensed Nurses
(LPNs) employed by the Employer at its 1640 South
Lincoln Avenue, Vineland, New Jersey facility, exclud-
ing all other employees, registered nurses, quality assur-
ance employees, nurses aides, clerical employees,
housekeeping employees, dietary employees, laundry
employees, guards and supervisors as defined in the
Act.
(b) Offer Darlene Lindsey, Diane Caine, and Nancy
Schafer immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered as
a result of the discrimination against them, in the manner set
forth in the remedy section of this Decision.
957NURSING CENTER AT VINELAND
17 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.’’
(c) Restore the 25-cent-per-hour raise to Carmen Ocasio’s
wage rate and make her whole for any loss of income she
suffered as a result of the discrimination against her.
(d) Remove from its files any references to the unlawful
discharges and to the warning issued to Darlene Lindsey and
notify the employees in writing that this has been done and
that the discharges and warning will not be used against
them in any way.
(e) 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.
(f) Post at its facility in Vineland, New Jersey, copies of
the attached notice marked ‘‘Appendix.’’17 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
on receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten to impose or impose more onerous
and less desirable working conditions, interrogate employees
concerning their union activities, solicit grievances, or solicit
employees to form their own labor organization or grievance
committee or promise to grant or grant improved terms and
conditions of employment in order to discourage employees
from engaging in union activities and from joining, sup-
porting or voting for the Union.
WE WILL NOT discriminatorily issue warnings to employ-
ees, transfer them to less desirable positions, reduce their pay
or discharge them because of their union and other protected
activities, including giving testimony under the Act.
WE WILL NOT unilaterally reduce rates of pay without giv-
ing the Union notice and an opportunity to bargain.
WE WILL NOT in any other manner interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and condi-
tions of employment for our employees in the bargaining
unit:
All full time and regular part-time Licensed Nurses
(LPNs) employed by the Employer at its 1640 South
Lincoln Avenue, Vineland, New Jersey facility, exclud-
ing all other employees, registered nurses, quality assur-
ance employees, nurses aides, clerical employees,
housekeeping employees, dietary employees, laundry
employees, guards and supervisors as defined in the
Act.
WE WILL offer Darlene Lindsey, Diane Caine, and Nancy
Schafer immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, WE WILL restore the
wage increase previously paid to Carmen Ocasio and WE
WILL make these employees whole for any loss of earnings
and other benefits resulting from their discharges (less any
net interim earnings) or wage reductions, plus interest.
WE WILL notify each of these employees that we have re-
moved from our files any references to their discharges or
warnings and that the warnings or discharges will not be
used against them in any way.
MICHAEL KONIG, T/A NURSING CENTER AT
VINELAND