Nursing Center at Vineland

National Labor Relations Board - Board Decisions

Aug 15, 1995

318 N.L.R.B. 337 (N.L.R.B. 1995)

337
318 NLRB No. 31
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.
No exceptions were taken to the judge’s finding that the Respond-
ent violated Sec. 8(a)(5) of the Act by refusing to bargain with the
Union unless and until the Union requested withdrawal of its NLRB
charge. We find merit in the Charging Party’s exceptions to the
wording of the Order and notice, and we shall modify the Order and
notice to conform to the violation found.
2 We deny the General Counsel and Charging Party’s exceptions
to the judge’s dismissal of an 8(a)(5) allegation that in bargaining
with the Union the Respondent failed and refused to meet at reason-
able times and for reasonable hours. Although the judge found Staff
Representative Robert Yaeger to be a truthful witness, he neverthe-
less found that Yaeger’s testimony regarding this allegation was in-
exact and inaccurate instead of being the accurate and detailed testi-
mony which was necessary to support the allegation. For these rea-
sons, the judge found that the General Counsel failed to prove the
complaint allegation. We find that the record evidence supports the
judge’s findings and conclusions.
3 See, e.g., Public Service Co., 312 NLRB 459, 461 (1993);
Cliffstar Transportation Co., 311 NLRB 152 fn. 4 (1993).
4 See Opportunity Homes, Inc., 315 NLRB 1210 (1994).
5 We also note that the Respondent had failed to argue in the ear-
lier representation proceeding (Case 4–RC–17874), that Grimaldi
was a supervisor. In that proceeding, the Regional Director classified
all the LPNs, including Grimaldi, as employees within the bargain-
ing unit. The Respondent had contended that three of those LPNs
(but not Grimaldi) were supervisors, and the Respondent filed no re-
quest for review of the Regional Director’s Decision and Direction
of Election that found none of the LPNs to be supervisors. The Re-
spondent was thus barred from raising the LPN supervisory issue in
any subsequent challenge to the certification. Flatbush Manor Care
Center, 314 NLRB 702, 703 fn. 4 (1994).
6 The Supreme Court held that the Board’s construction of the
phrase ‘‘in the interest of the employer’’ in Sec. 2(11) of the Act
was incorrect, and that supervisory status determinations based on
that reading were invalid. The Court did not decide that the nurses
whose status was at issue in that case were supervisors, but merely
remanded for a determination of their status based on an application
of the other language in Sec. 2(11). The decision of the Regional
Director in the representation proceeding involving the Respondent’s
Continued
Michael Konig t/a Nursing Center at Vineland and
Communications Workers of America, Local
1040, AFL–CIO. Cases 4–CA–21936, 4–CA–
21948, 4–CA–22042, and 4–CA–22433
August 15, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On May 23, 1994, Administrative Law Judge Mar-
ion C. Ladwig issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, a motion
to reopen the record, and an answering brief to the
Charging Party Union’s exceptions. The General Coun-
sel filed cross-exceptions, a supporting brief, and an
opposition to the Respondent’s motion to reopen the
record. The Union filed exceptions, a supporting brief,
an answering brief to the Respondent’s exceptions, and
a brief in opposition to the Respondent’s motion to re-
open the record.
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, briefs, and motion
and has decided to affirm the judge’s rulings, findings1
and conclusions2 as modified below and to adopt the
recommended Order as modified.
I. THE RESPONDENT’S CHALLENGE TO THE
EMPLOYEE STATUS OF ROBERT GRIMALDI
We agree with the judge, for the reasons stated by
him, that the Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Robert Grimaldi. The
Respondent, seeking to show that Grimaldi was a su-
pervisor within the meaning of Section 2(11) of the
Act and that it therefore could not be liable under Sec-
tion 8(a)(3) for discharging him, moves to reopen the
record in order to put on evidence of Grimaldi’s al-
leged supervisory status. The Respondent argues that it
was precluded from raising that issue during the trial
of this case because the Supreme Court’s decision in
Health Care & Retirement Corp. v. NLRB, 114 S.Ct.
1778 (1994), which reversed some aspects of Board
law applicable to the supervisory status of charge
nurses, had not yet issued. The Respondent reasons
that it was not then on notice of a defensible theory
for arguing that Grimaldi was a supervisor. For the fol-
lowing reasons we disagree and deny the motion to re-
open.
The Respondent originally filed its motion to reopen
on this issue after the hearing had closed and the judge
had issued his decision. Efforts to inject a new issue
after the close of a hearing are normally deemed un-
timely,3 and we find that the Supreme Court’s issuance
of its decision in Health Care & Retirement does not
warrant a departure from that rule here. At the time
this case went to trial, the Supreme Court had already
granted certiorari in Health Care & Retirement, and
there was nothing to prevent the Respondent from rais-
ing arguments concerning supervisory status similar to
those that parties to many other Board proceedings, in-
cluding the successful party in Health Care & Retire-
ment, had raised.4 Yet the Respondent, while litigating
the supervisory status of Gwen Drew (now contending,
contrary to its position in an earlier representation pro-
ceeding, that she was not a supervisor), did not raise
any similar issue concerning Grimaldi. It is therefore
barred from raising it now,5 even assuming that the
Respondent were proffering evidence that is now rel-
evant in the light of the Supreme Court’s opinion in
Health Care & Retirement.6
338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
operation here rested on other language of Sec. 2(11), and the Re-
spondent has proffered no evidence in its motion to reopen in this
case that would necessarily compel a finding of supervisory status
under the Supreme Court’s holding in Health Care & Retirement.
7 We agree with the judge that counsel for the Respondent, in de-
nying Drew’s supervisory status, willfully interposed an answer to
a complaint allegation without a good-faith doubt of the facts as-
serted in the complaint and for the purpose of delay. We express our
strong disapproval of such conduct by Stuart Bochner, Esq., and
warn him against similar conduct in future appearances before the
Board. See Graham-Windham Services, 312 NLRB 1199 fn. 2
(1993).
8 Leach Corp., 312 NLRB 990, 991 (1993), enfd. 54 F.3d 802
(D.C. Cir. 1995).
9 All dates hereafter are 1993 unless indicated otherwise.
10 Of the three employee-members of the committee originally ap-
pointed by the Union, one (Darlene Lindsay) had been unlawfully
discharged by the Respondent (see Nursing Center of Vineland, 314
NLRB 947, 954 (1994), one (Patricia Chopek) was a part-time em-
ployee who got no more assignments after she began participating
in negotiations, and the third, Carmen Ocasio, worked on the 7
a.m.—3 p.m. shift. We have in this decision adopted the judge’s
Finally, we agree with the Charging Party that the
Respondent has vacillated regarding the supervisory
status of its RNs and LPNs in the various proceedings
involving these two bargaining units, advancing which-
ever argument would give it a tactical advantage in the
particular proceeding in which it was made. (Thus, the
Respondent made no claim that Grimaldi was a super-
visor until it faced liability for discharging him; and it
admitted supervisory status for Drew in the representa-
tion proceeding, where that kept her out of the unit,
but contended to the judge in this proceeding that she
was not a supervisor, when it was faced with an alle-
gation that she had issued an unlawful warning.) We
agree with the judge that the actions of the Respond-
ent’s counsel regarding the status of Drew in this pro-
ceeding were ‘‘not in good faith and [were] willfully
. . . frivolous.’’7
II. THE 10(B) ISSUE CONCERNING THE
RESPONDENT’S UNILATERAL WAGE RATE
DECREASE
A. The Judge’s Decision and the Parties’
Positions
The judge found that the Respondent unilaterally de-
creased the wage rate of LPN Harriet Boykin in July
1993 without notifying the Union or giving the Union
an opportunity to bargain about the reduction. He held,
however, that because the corresponding complaint al-
legation was based on a charge that was filed more
than 6 months after the initial decrease, the allegation
was barred by Section 10(b) of the Act. The judge did
not take issue with the established rule that the 10(b)
period does not begin running until the charging party
is on notice—either actual or constructive—of the ex-
istence of facts that would establish the violation.8
Moreover, he acknowledged that Boykin had not told
the Union about the Respondent’s action until January
1994, several weeks before the Union filed the charge.
He found, however, that the Union had constructive
knowledge before Boykin reported the matter, because
the Respondent and the Union had been engaged in
contract negotiations and the Union had one or more
unit employees on its negotiating committee.
The General Counsel and the Charging Party except,
contending that the Union lacked constructive knowl-
edge of the unfair labor practice, and that therefore the
10(b) period did not begin to run until Boykin commu-
nicated the information. For the reasons discussed
below, we agree; and we therefore reverse the judge’s
dismissal and find that the Respondent violated Section
8(a)(5) and (1) by unilaterally decreasing Boykin’s
wage rate.
B. Pertinent Factual Findings
Boykin was hired as an LPN and began working in
December 1992. Her wage rate included a $1 bonus
for each hour she worked during the previous month.
When she did not receive her June 1993 bonus check
in July, Boykin asked Executive Director Urgo why
she had not received her check. She was told by Nurs-
ing Director Aponte, who had taken over the bonus
program, that she had stopped it. Thus, the judge
found that Boykin’s wage rate was decreased starting
sometime in July 1993. Boykin did not report the Re-
spondent’s unilateral action to the Union until January
1994. She testified that she did not report the stopping
of the bonus check because ‘‘I didn’t know I could. I
didn’t know that we were really covered by the union
since the contract hadn’t been signed.’’
In July 1993, when Boykin was advised about the
termination of the bonus, the Union had a request for
information, including information about the employ-
ees’ wages, pending with the Respondent. The Re-
spondent had not provided the information despite the
Union’s renewal of the request, and the parties had
met for only three bargaining sessions since the
Union’s certification on October 27, 1992. A further
delay of negotiations between August 19 and October
20, 1993,9 was occasioned by the Respondent’s unlaw-
ful refusal to bargain while an unfair labor practice
filed by the Union was pending with this Agency. Al-
though in December the Union withdrew its charge
concerning the request for information, it is noteworthy
that the Respondent’s counsel had been withholding
some requested data at least through most of October.
Between the time that Boykin’s bonus was with-
drawn and the date that she informed the Union about
it, the union negotiating committee included only one
current employee, in part because of unlawful dis-
charges by the Respondent. The one current employee,
Carmen Ocasio, did not work on Boykin’s 3–11 p.m.
shift.10
339NURSING CENTER AT VINELAND
finding that Robert Grimaldi, an alternate representative on the nego-
tiating committee, was unlawfully discharged in June.
11 Oregon Steel Mills, 291 NLRB 185, 192 (1988), enfd. mem.
134 LRRM 2432 (9th Cir. 1989), cert. denied sub nom. Gilmore
Steel Mills v. NLRB, 496 U.S. 925 (1990).
12 Leach Corp., supra at 991, and cases there cited.
13 We acknowledge that the Union withdrew its unfair labor prac-
tice charge pertaining to withholding of information, so the Respond-
ent cannot be deemed guilty of any unlawful withholding. Nonethe-
less, in assessing the Union’s diligence under all the circumstances,
we can take account of facts—established by documents and
uncontradicted testimony—indicative of what information was made
available to the Union.
C. Analysis
As indicated above, the critical issue is whether,
under all the circumstances of its bargaining relation-
ship with the Respondent, the Union had constructive
knowledge of all changes in the unit employees’ wages
and benefits, whether or not the employees expressly
notified the Union of them. The concept of construc-
tive knowledge incorporates the notion of ‘‘due dili-
gence,’’ i.e., a party is on notice not only of facts actu-
ally known to it but also facts that with ‘‘reasonable
diligence’’ it would necessarily have discovered.11 It is
settled that a respondent asserting a 10(b) defense
bears the burden of establishing that the charging party
had such notice more than 6 months before filing the
charge.12
In finding that the Union had constructive knowl-
edge of the bonus termination on the basis of Boykin’s
knowledge, the judge construed Board precedents—in
particular Adair Standish Corp., 295 NLRB 985, 986
(1989), on which the General Counsel relied—as im-
plicitly holding that knowledge of bargaining unit em-
ployees concerning their terms and conditions of em-
ployment will be imputed to their collective-bargaining
representative unless, during the period of time at
issue, the employer was declining to recognize the rep-
resentative. The cases in fact set out no such strict rule
of imputation; rather, they simply indicate that whether
unit employees’ knowledge is imputed to their bargain-
ing representative for purposes of determining when
the 10(b) limitations period commences depends on the
factual context. An employer’s withholding of recogni-
tion is one factor that will militate against such an im-
putation of employee knowledge to the bargaining rep-
resentative. In our view, the facts established here also
militate against such a finding.
The Union’s ability to monitor changes in wages
and working conditions of any and all unit employees
was hampered, as shown above, by delays in the Re-
spondent’s submission of requested information.13 The
Respondent’s discharges of union activists further op-
erated to impede the flow of information between em-
ployees on all three shifts and knowledgeable union
representatives who could perceive whether a change
in pay or benefits was arguably unlawful under the
Act. It is unsurprising, then, that the Union was not
immediately aware in July that the Respondent had
unilaterally made a material change in a term of
Boykin’s employment.
The foregoing facts distinguish this case from
Moeller Bros. Body Shop, 306 NLRB 191 (1992), on
which the Respondent relies. In Moeller Bros., the
Board held that Section 10(b) barred an allegation of
an employer’s unlawful failure to make benefit fund
payments for certain unit employees. It reasoned that
the charging party union had actual knowledge of how
many body shop employees the employer was making
payments for (the number was indicated on regularly
filed fringe benefit forms) and, had it exercised due
diligence, the union would soon have discovered that
there were a number of other employees for whom
payments were not being made. The union had not
been denied access to the shop, and ‘‘[m]ere observa-
tion’’ would have disclosed the discrepancy in num-
bers. Id. at 192. Because no union representative had
ever bothered to visit the shop for 12 years and the
union was able to discover the violation immediately
when it finally got around to visiting, the Board found
a failure of due diligence and imputed constructive
knowledge of the violation outside the 10(b) period.
Here, by contrast, there is no evidence the Union
had been advised by the Respondent of bonus pay-
ments as a component of wages for any employees or
of changes in any such bonus payments; indeed, the
flow of information concerning terms and conditions
of employment had been impeded by the various cir-
cumstances discussed above. Furthermore, unlike the
employees working in the body shop in Moeller Bros.,
Boykin’s paycheck was not subject to general observa-
tion.
Accordingly, we find that the Union was not on no-
tice of the unilateral change in Boykin’s wage rate
until Boykin advised the Union of it, and therefore the
charge filed on February 14, 1994, about a month after
Boykin reported the change, was within the limitations
period established by Section 10(b).
Because wages are a mandatory subject of bargain-
ing and it is undisputed that the Respondent made the
change in Boykin’s wage rate without giving the
Union notice and an opportunity to bargain, we find,
on the merits, that the Respondent violated Section
8(a)(5) and (1) of the Act in making this change.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 4.
‘‘4. By refusing to bargain by unilaterally reducing
unit employee Harriet Boykin’s wage rate beginning
June 1993, the Respondent violated Section 8(a)(5) and
(1).’’
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1993 unless otherwise indicated.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mi-
chael Konig t/a Nursing Center at Vineland, Vineland,
New Jersey, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Refusing to bargain with the Union on the con-
dition that the unfair labor practice charges against the
Company be withdrawn.’’
2. Add the following as paragraph 1(c) and reletter
the subsequent paragraph.
‘‘(c) Unilaterally decreasing wages of unit employ-
ees without consulting with the Union and providing it
with an opportunity to bargain about the matter.’’
3. Add the following as paragraph 2(c) and reletter
the subsequent paragraphs.
‘‘2(c) Restore Harriet Boykin’s bonus structure and
make employee Harriet Boykin whole for any loss she
may have suffered by reason of the Respondent’s de-
crease in her wages, less any appropriate deductions,
plus interest.’’
4. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the Communications
Workers of America, Local 1040, AFL–CIO or any
other union.
WE WILL NOT unilaterally alter terms and conditions
of employment including wages and bonuses of unit
employees without consulting the Union and affording
the Union a reasonable opportunity to bargain on such
proposed changes.
WE WILL NOT refuse to bargain with the Union on
the condition that the unfair labor practice charges
against the Company be withdrawn.
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 Robert Grimaldi immediate and full
reinstatement to this former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed and we will make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis-
charge will not be used against him in any way.
WE WILL restore Harriet Boykin’s bonus structure
and WE WILL make her whole for any loss of earnings
resulting from the decrease in her wages, less any ap-
propriate deductions, plus interest.
MICHAEL KONIG T/A NURSING CENTER
AT VINELAND
Donna C. Richardson, Esq., for the General Counsel.
Stuart Bochner, Esq. and Steven B. Horowitz, Esq., of South
Orange, New Jersey, for the Respondent.
Lisa Morowitz, Esq., of Somerset, New Jersey, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. These
consolidated cases were tried in Philadelphia, Pennsylvania,
on February 10 and March 21, 1994. Charges against the Re-
spondent were filed by the Union in Case 4–CA–21936 on
July 30, 1993,1 in Case 4–CA–21948 on August 2, and in
Case 4–CA–22042 on September 1 (amended September 16
and October 4), and a consolidated complaint was issued
September 30 (amended December 1 and 21). The charge in
Case 4–CA–22433 was filed on February 14, 1994 (amended
March 10), and a complaint was issued March 16 and con-
solidated March 21, 1994.
In December 1992, after the Union was certified to rep-
resent the licensed practical nurses (LPNs), Robert
Grimaldi’s RN supervisor warned that both Grimaldi and his
LPN wife would be discharged if the Union pressed her
workers’ compensation claim. About early April, during ne-
gotiations for a first collective-bargaining agreement, the
Union publicized the warning and informed the Respondent
that it had retained an attorney ‘‘to represent Grimaldi.’’ It
encouraged its members to protest ‘‘at the nursing home on
behalf of the Grimaldis.’’
In late May, after Grimaldi became an alternate bargaining
committee member, an RN supervisor observed him distrib-
uting a union leaflet, criticizing the Respondent’s bargaining.
341NURSING CENTER AT VINELAND
He told the supervisor that the negotiations were stalled be-
cause the Respondent was not bargaining in good faith. On
June 2 the nursing director called Grimaldi to her office.
There she summarily discharged him, claiming that he gave
a resident one instead of two diuretic tablets and gave an-
other resident Tylenol instead of a narcotic Darvocet N100
pain medication—before hearing his vigorous denial. At the
trial the Respondent failed to present any evidence to support
the accusation that Grimaldi—for the first time—had given
improper medication.
The primary issues are whether the Respondent: (a) unlaw-
fully discharged Grimaldi because he supported and assisted
the Union, (b) refused to bargain in good faith, violating Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations Act,
and (c) whether the Union filed an untimely charge alleging
the unilateral decrease in an employee’s wage rate.
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. JURISDICTION
The Respondent, a sole proprietorship own by Michael
Konig, operates a long-term nursing home at its facility in
Vineland, New Jersey, where it annually receives over
$100,000 in gross revenues and receives goods valued over
$50,000 from outside the State. The Respondent admits and
I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Discharge of Robert Grimaldi
1. Background
Grimaldi was hired October 2, 1992, as a graduate prac-
tical nurse. In December 1992, after he obtained his license,
he was promoted to licensed practical nurse (LPN). (Tr. 9.)
Meanwhile on October 27, 1992, the Union (CWA Local
1040) was certified as the collective-bargaining representa-
tive of the LPNs in the following appropriate unit (G.C.
Exhs. 1i, 1m):
All full-time and regular part-time Licensed Practical
Nurses (LPNs) employed by [the Respondent] at the
Vineland facility, excluding all other employees, reg-
istered nurses, quality assurance employees, nurse’s
aides, clerical employees, housekeeping employees, die-
tary employees, laundry employees, guards, and super-
visors as defined in the Act.
Grimaldi’s wife Antoinette, an LPN at the nursing home,
was injured on the job in November 1992. The Respondent
failed to file her claim for workers’ compensation as she re-
quested, and Grimaldi and his wife asked the Union ‘‘to get
our workmen’s comp claim through.’’ In mid-December
1992, Grimaldi’s supervisor, Gwen Drew, one of the six su-
pervisory registered nurses (RNs), asked Grimaldi how his
wife was doing and about the workers’ compensation claim.
(Tr. 12; G.C. Exh. 3 fn. 4.) When Grimaldi told her that
‘‘the CWA said that they would represent us,’’ Drew warned
that both Grimaldi and his wife would be discharged.
It is undisputed, as Grimaldi credibly testified, that Drew
told him (Tr. 13, 18):
You’re going to end up getting fired . . . if you know
what is good for you and your wife, [she should] just
come back to work.
Wouldn’t it be worth it for her to keep her nursing
license and for you to keep your job [rather than her
getting] a couple of weeks’ pay that she had missed?
And [Drew] said that, with such a corporation as large
as the Nursing Center’s corporation, that the CWA may
be good, but they can’t win over a corporation as large
as Mr. Konig’s.
. . . .
A. [Drew] said that we would never work as nurses,
that we would lose our licenses eventually, I would be
terminated, and that was . . . when I had told her that
we were seeking legal counsel through the CWA for
the workmen’s comp case.
This warning in mid-December 1992, over 6 months be-
fore the first charge was filed on July 30, is not alleged to
violate the Act.
2. Grimaldi’s union support
About the first week in April (2 months before Robert
Grimaldi’s summary discharge on June 2) the Union ran a
two-column article in its newsletter under the heading,
‘‘Nurse Threatened and Denied Worker’s Comp’’ (G.C. Exh.
21).
The article (G.C. Exh. 21 p. 2) reported that LPN Antoi-
nette Grimaldi was ‘‘hurt on the job last November’’ when
‘‘An IV pole with two casters instead of the usual four start-
ed to fall on a client, but Grimaldi got between the patient
and the pole. The pole knocked her unconscious as it fell.’’
The article stated that the Respondent never filled out the
workers’ compensation paperwork ‘‘or authorized her visits
to the specialist she needed to see.’’ It quoted Executive Di-
rector Sheree Urgo’s telling her that she was probably not el-
igible for workers’ comp.
The article further stated that Robert Grimaldi’s supervisor
(Gwen), Drew told him that
‘‘If [his wife] files any kind of lawsuit against the
facility, she will lose her job—even if false evidence
has to be filed against her.’’
‘‘Some people can repeatedly screw up and keep
their jobs, while someone who is wanted out will get
blamed for their mistakes,’’ Drew added.
‘‘They will make sure that you two never work as
nurses again. Does she really think a LPN can win
over a corporation as big as we are? . . . You better
explain these things to her and ask her if it’s really
worth it,’’ Drew said to Robert Grimaldi. [Emphasis
added.]
CWA Local 1040 has informed Drew, Urgo, [Assist-
ant Administrator] Samantha Neuman and facility
owner Michael Konig that it will not tolerate this treat-
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment for one of its members. It has retained an attor-
ney, William Covert, to represent Grimaldi.
. . . .
‘‘I cannot believe that a facility is treating a worker
so incredibly badly and then threatened her to boot,’’
Local 1040 President Carolyn Wade said.
‘‘I know that [our] members . . . are looking for-
ward to protesting at the nursing home on behalf of the
Grimaldis,’’ Wade added. ‘‘We can have war or we can
have peace, whichever management prefers.’’
The Respondent’s response was its counsel’s, Stuart
Bochner, letter to the Union, dated April 6 (G.C. Exh. 21).
The letter attached a copy of the newsletter article and ad-
vised that unless the Union ‘‘retracts these libelous state-
ments the Nursing Center and the individuals involved will
take legal action.’’
By this time Grimaldi was openly supporting the Union.
At the May 26 monthly union meeting, where he was ap-
pointed an alternate member of the bargaining committee, he
took about 20 copies of a leaflet that criticized the Respond-
ent’s bargaining. He distributed the union leaflets at the nurs-
ing center as he ‘‘went through to various nurses and left
some at each one of the nursing units.’’ (Tr. 11.)
It is undisputed that RN Kalita Galanko, whose super-
visory status is specifically admitted, observed Grimaldi’s
placing some of the leaflets on the A Unit desk. She asked
him how the bargaining was going. As Grimaldi credibly tes-
tified, ‘‘I told her that basically it was stalled and that noth-
ing was happening because they weren’t bargaining in good
faith, which is what the newsletter had said.’’ (Tr. 11–12;
G.C. Exhs. 1i, 1m.)
The next week Grimaldi was called to the office and dis-
charged.
3. Grimaldi’s summary discharge
About 3:30 p.m. on June 2, at the beginning of his shift,
Robert Grimaldi was called to Nursing Director Abbie
Aponte’s office, in the presence of Assistant Administrator
Samantha Neuman and staff LPN Michael Farrell. Seeing
‘‘Insulin for Mary Gould left in med cart [not] refrigerated
as per facility practice’’ written on a sheet of paper (G.C.
Exh. 2, reverse side) on Aponte’s desk, Grimaldi told Aponte
yes, he had forgotten to put it away. The insulin had been
left, locked and unharmed, in the medication cart. (Tr. 9–10,
27, 49–51, 55.)
It is undisputed, as Grimaldi credibly testified (Tr. 10):
[Aponte] told me that wasn’t the reason why she had
called me in there; and she said that two patients stated
that I did not give them medications, and she said that
the patients are alert and oriented and they know what
medications they are to receive.
She said that I was terminated, that this was a seri-
ous charge, and that I was terminated. I insisted that I
gave the medications properly. I’m positive that I gave
them proper medications at the proper times. She said
that wasn’t the case and that I was terminated, asked
for the keys to the med cart, and I told her that I want-
ed union representation, and she said that Michael
Farrell was a staff LPN and a member of the Union;
therefore, he was my union representative by proxy.
And I said that was not the case, and she said that I
was terminated and to leave. I refused to sign the dis-
ciplinary note and then left.
The disciplinary action sheet, dated June 2 (G.C. Exh. 2),
stated that Patient G.G. ‘‘was given 1 tab Lasix 40 mg; order
reads 80 mg. Resident states only received 1 tab.’’ It also as-
serted that Patient L.L. ‘‘states was denied Darvocet N100
[that] was ordered and Tylenol was given in lieu of Darvocet
N100. However, Darvocet N100 was signed twice. These
residents are alert and oriented; they are aware of meds and
their needs.’’ It further stated that Patient L.L. was ‘‘denied
pain medication and in pain and medication was signed as
given (narcotic) not following physician’s orders.’’ (The ref-
erence to the insulin continued on the back of the sheet.)
Thus, the next week after a supervisor observed Grimaldi
passing out the union leaflet, and based solely on the pur-
ported word of two patients, the Respondent summarily dis-
charged Grimaldi for giving a patient (identified as ‘‘G.G.’’)
one instead of two tablets of Lasix (a diuretic that is not a
controlled substance), and giving a patient (identified as
‘‘L.L.’’) a Tylenol tablet instead of Darvocet N100, a pain
medication that is a controlled and regulated substance. (Tr.
43–44, 46.)
The Respondent did not call Nursing Director Aponte or
any other witness to support the claim that Grimaldi had
given improper medication, or to explain why it decided to
discharge Grimaldi without first checking with him to deter-
mine if there was any truth to the purported complaints.
There is no supporting evidence that two patients actually
made the complaints.
Grimaldi testified that he had given medication to about 28
or 30 patients and that he was positive that he ‘‘gave them
proper medications at the proper times.’’ (Tr. 10, 46–47.) By
his demeanor on the stand, he impressed me most favorably
as a truthful, forthright witness.
He had never before been accused of giving improper
medication. His only previous incident involving a controlled
substance occurred about the first of December 1992, pre-
sumably when he was still working as a graduate practical
nurse, before being promoted in December to an LPN. He
found a Tylenol No. 4 tablet (containing codeine) in his
pocket at home and tried to return it to the nursing home.
Aponte later gave him a receipt for the tablet, formally dis-
ciplined him for removing the tablet from the facility, and
said she would give him a 1-day suspension sometime in the
future, but never did. (Tr. 9, 12, 39–42.)
4. Supervisory status of RN Gwen Drew
Although the Respondent had admitted in the previous
representation proceeding the supervisory status of the six
registered nurses employed at the nursing home, it belatedly
denied at the trial that one of them, RN Drew (who now
works elsewhere), was a supervisor.
In Case 4–RC–17864 the Regional Director made the fol-
lowing findings in his Decision and Direction of Election,
issued September 17, 1992 (G.C. Exh. 3 fn. 4):
The nursing department is headed by the Director of
Nursing [Abbie Aponte], and consists of six RNs, at
least one of whom is present on each shift, the 30
343NURSING CENTER AT VINELAND
LPNs sought by the petition and 87 nurse’s aides. RNs
supervise the LPNs and nurse’s aides.
[LPN Darlene] Lindsey [a charge nurse or team lead-
er] testified that she has given two verbal and two writ-
ten warnings to nurse’s aides. The written warnings
were issued after consultation with and upon the direc-
tion of RN supervisors, the [Director of Nursing] or the
Executive Director [Sheree Urgo]. [Emphasis added.]
Based on the foregoing, I find that . . . Lindsey’s
warnings were issued upon instruction of admitted [RN]
supervisors, after consulting with management officials
. . . [and] do not establish supervisory authority.
Thus, in the representation case, the Respondent admitted
that the six registered nurses (one of whom was Gwen Drew)
were supervisors. The Respondent offered no evidence at the
trial to the contrary. It admitted in its answer that Kalita
Galanko (another one of the six RNs) is a supervisor (G.C.
Exhs. 1i, 1m).
Near the beginning of the trial when the General Counsel
presented, as background evidence, Grimaldi’s testimony of
Drew’s warning of discharge—to reveal a discriminatory mo-
tivation for Grimaldi’s subsequent discharge—the Respond-
ent’s counsel moved to strike the testimony (Tr. 13–14):
MR. BOCHNER: That person is not alleged to be Su-
pervisor in the Complaint.
THE WITNESS: She’s an RN.
. . . .
MS. RICHARDSON [for the General Counsel]: Your
Honor, yes, I can ask the questions to lay the founda-
tion for her supervisory status.
MR. BOCHNER: No. You can’t because whether she
is a supervisor or not is not the relevant issue. What
is relevant is that she’s not alleged in the Complaint to
be a supervisor. . . .
. . . .
JUDGE LADWIG: Is there any question about the su-
pervisory status of this individual?
MR. BOCHNER: Judge, I have no idea.
Counsel Donna Richardson then protested (Tr. 15) that ‘‘it
is certainly untrue that Mr. Bochner . . . has no idea about
[Drew’s] supervisory status.’’ She was referring to Bochner’s
April 6, 1993 letter (G.C. Exh. 21) threatening legal action
unless the Union retracted ‘‘libelous statements’’ in its news-
letter (which, as discussed above, reported Supervisor Drew’s
warning that the Respondent ‘‘will make sure’’ that the
Grimaldis ‘‘would never work as nurses again’’).
Counsel Bochner insisted (Tr. 16–17) that whether or not
Drew is a supervisor, ‘‘that’s not the issue. . . . I may turn
out and admit that she’s a supervisor’’ (emphasis added) and
added ‘‘We don’t get to the issue of whether or not she’s
a supervisor until we get to the issue of whether or not the
Complaint is being amended to allege that she is a super-
visor.’’
Regarding the relevance of Drew’s alleged threat—being
outside the 10(b) period, but offered as background evi-
dence—the counsel conceded (Tr. 17):
MR. BOCHNER: I would think that it certainly would be
relevant to show motivation, and I’m not saying it’s not
relevant if Ms. Drew is a supervisor and if we had no-
tice that they were going to rely on her supervisory sta-
tus for anything. [Emphasis added.]
After Grimaldi credibly testified (Tr. 22) that Drew at-
tended management meetings with Executive Director Sheree
Urgo and Assistant Administrator Samantha Neuman, Coun-
sel Bochner stated (Tr. 23): ‘‘I need very little time’’ to de-
termine whether the Respondent wants to stipulate Drew’s
supervisory status. ‘‘What I need time on is . . . to find out
what her testimony might be, and to find out whether I want
to call her as a witness.’’ He added that he thought ‘‘the su-
pervisory part is easy’’ and (Tr. 25) ‘‘I’ll be able to stipulate
[one way or the other] after one telephone call.’’ He did not
indicate if he considered it necessary to speak to Drew (rath-
er than a management official) to determine her supervisory
status.
After lunch on the first day of trial, when the General
Counsel sought to introduce the Decision and Direction of
Election (G.C. Exh. 3), in which the Regional Director found
that the Respondent admitted the supervisory status of the six
RNs, counsel Bochner stated (Tr. 65), ‘‘I would think it
probably is not necessary’’ to get a lot of evidence on super-
visory status. [Emphasis added.] He next stated (Tr. 68): ‘‘I
have briefly spoken to Ms. Drew, who was on her way to
work when I reached her’’ and could not talk. He still did
not reveal whether the Respondent would stipulate her super-
visory status. He stated, ‘‘I would request that the matter be
adjourned for sufficient time so that I can find her, talk to
her, and, if necessary, subpoena her appearance.’’
Later that day, February 10, 1994, the General Counsel’s
motion was granted to amend the complaint to allege that
Gwen Drew was a supervisor (Tr. 110, 113). The trial was
adjourned over 5 weeks until March 21, 1994. (Tr. 116.)
By March 21, 1994, when the trial resumed, the Respond-
ent had decided not to call Drew as a witness, leaving undis-
puted her warning that the Respondent would discharge
Grimaldi if the Union pressed his wife’s workers’ compensa-
tion claim. Instead, without any explanation for reversing its
position in the representation proceeding, the Respondent de-
nied the allegation that Drew was a supervisor (Tr. 141):
‘‘Mr. Bochner: The allegation is denied.’’
Near the end of the trial, over the Respondent’s objections
(Tr. 25, 253–257), the Union’s counsel recalled as a rebuttal
witness LPN Harriet Boykin, who credibly testified that
Drew had been an RN supervisor at the nursing home and
that the RNs discipline their subordinates. Boykin, working
as a charge nurse, ‘‘go[es] through several supervisors during
the week,’’ working under three different registered nurses as
her immediate supervisors. When she, as a charge nurse, has
a particular problem with a coworker, she notifies the RN su-
pervisor, who directs the course of action to be taken and
Boykin is obligated to carry forth that direction. Boykin and
the other LPNs take orders from the RN supervisors. (Tr.
257–260.)
There is no evidence to the contrary, and the Respondent
does not deny in its brief that Drew was a supervisor. I find
that RN Drew (who attended management meetings, as
Grimaldi credibly testified) was a supervisor within the
meaning of Section 2(11) of the Act.
As found, the Respondent had previously admitted the su-
pervisory status of its six registered nurses (one of whom
was Gwen Drew). It also admitted in its answer the super-
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
visory status of Kalita Galanko (another one of the six RNs).
Moreover, its counsel stated at one point at the trial that he
‘‘may’’ admit Drew’s supervisory status. Yet, when the Re-
spondent decided (after a 5-week adjournment of the trial)
not to call Drew as a defense witness—leaving undisputed
her warning that the Respondent would discharge Grimaldi
if the Union pressed his wife’s workers’ compensation
claim—the counsel announced a reversal of the Respondent’s
previous admission. He categorically denied the allegation
that Drew was a supervisor.
I find that Counsel Stuart Bochner, when he belatedly de-
nied RN Drew’s supervisory status, did not do so in good
faith. I find that in reversing the Respondent’s previous ad-
mission, he was willfully taking a frivolous position, both for
delay and to abuse the Board’s processes. The Board may
want to express its disapproval of such conduct.
Compare the Board’s Rules and Regulations, Sec. 102.21,
that the signature of an attorney on an answer constitutes a
certification that ‘‘to the best of his knowledge, information,
and belief there is good ground to support it’’ and ‘‘not
interposed for delay’’ and that ‘‘for a willful violation of this
rule an attorney may be subjected to appropriate disciplinary
action.’’ Graham-Windham Services, 312 NLRB 1199 fn. 2
(1993).
5. Contentions of the parties
The General Counsel contends that because the Respond-
ent ‘‘failed to call a single witness’’ and failed to ‘‘produce
other evidence in the form of documents such as patient
complaint forms or medication records,’’ an adverse infer-
ence should be drawn that if the Respondent had done so,
the evidence would have corroborated Grimaldi’s denial that
he failed to dispense proper medication to two patients. Mar-
tin Luther King Nursing Center, 231 NLRB 15 fn. 1 (1977).
Regarding the Respondent’s motivation, the General Coun-
sel cites RN Supervisor Drew’s warning that Grimaldi would
eventually be terminated for seeking union assistance in the
workers’ compensation dispute, the Union’s publication of
the newsletter indicating its support of Grimaldi and his wife
and its ‘‘soliciting the membership to protest’’ on their be-
half, and Grimaldi’s becoming an alternate member of the
negotiating committee and being observed by RN Supervisor
Galanko distributing the union pamphlet.
Without any explanation, the Respondent contends in its
brief (at 6):
Finally, the Complaint alleges violation of Section
8(a)(3) of the Act in the Respondent’s treatment of em-
ployee Robert Grimaldi. Counsel for General Counsel
has not proven that Respondent’s actions were in any
way related to Grimaldi’s Union activities or were
pretextual. Rather, the evidence clearly indicates, and
Grimaldi admits himself, that the Employer’s actions
pertained to Grimaldi’s discipline over the improper use
and failure to account for medication and controlled
substances. It is clear from the testimony that Respond-
ent had proper reason to discharge Grimaldi because in
all respects he violated both Employer policy and State
and Federal law with respect to controlled substances.
There can be no justification for this conduct nor can
it in any way be deemed pretextual. No violation of
Section 8(a)(3) should be found.
6. Concluding findings
RN Supervisor Drew, who attended management meetings
with Executive Director Urgo and Assistant Administrator
Neuman, revealed to Robert Grimaldi the Respondent’s dis-
criminatory motivation in December 1992 when Drew
warned that the Respondent would discharge Grimaldi and
his wife if the Union pressed the wife’s workers’ compensa-
tion claim. Undoubtedly this motivation was reinforced when
Grimaldi provided a full account of the warning to the
Union, which about early April promulgated the warning in
its newsletter and encouraged its members to protest at the
nursing home.
Afterward Grimaldi actively supported the Union at the
nursing home, becoming an alternate bargaining committee
member. In late May he also made himself a more prominent
supporter of the Union by distributing its leaflet at the home
and telling an RN supervisor the content of the leaflet, that
the Respondent was not bargaining in good faith.
The following week, although the Respondent had never
before accused Grimaldi of giving any resident improper
medication, its director of nursing called him to her office
and summarily discharged him before giving him any oppor-
tunity to be heard on an accusation that he had given im-
proper medication to two residents. She had prepared a dis-
ciplinary action sheet, terminating him for giving one instead
of two diuretic tablets to one patient and giving Tylenol in-
stead of a narcotic pain medication to another. Although
Grimaldi insisted that he gave the medications properly, she
repeated that he was terminated and ordered him to leave.
Particularly because of (a) the timing, the week after
Grimaldi’s prominent union support, becoming an alternate
member of the bargaining committee and assisting the Union
in conveying to the nursing home employees its belief that
the Respondent was stalling and not bargaining in good faith,
(b) Grimaldi’s participation with the Union in promulgating
the Respondent’s earlier warning (through RN Supervisor
Drew) that it would discharge Grimaldi and his wife if the
Union pressed the wife’s workers’ compensation claim, and
(c) the Respondent’s summarily discharging Grimaldi for a
first-time failure to give proper medication without first
checking with him to determine if it actually happened, I
find that the General Counsel has made a prima facie show-
ing that Grimaldi’s union support was a motivating factor in
the Respondent’s decision to discharge him. Therefore, as
held in Wright Line, 251 NLRB 1083 (1980), the burden
shifted to the Respondent to demonstrate that it would have
discharged Grimaldi in the absence of his union support.
Clearly the Respondent has failed to carry this burden. Not
only has the Respondent failed to demonstrate that it would
have discharged Grimaldi for such a claimed first-time defi-
ciency if he had not supported the Union, but it also has
failed to prove that there was any deficiency. The Respond-
ent did not call any witness, or present other evidence, to
prove either a fact or a belief that Grimaldi had not given
the proper medication, or that either of the two residents had
actually made a complaint. Moreover, because of Grimaldi’s
demeanor on the stand, I credit his testimony that he is posi-
tive that he gave the patients proper medications.
I therefore find that by discharging Robert Grimaldi on
June 2, 1993, the Respondent discriminated against him in
violation of Section 8(a)(3) and (1) of the Act.
345NURSING CENTER AT VINELAND
B. Refusal to Bargain
1. During pending NLRB charge
The complaint alleges that since about August 19 the Re-
spondent ‘‘refused to bargain further with Union unless and
until the Union requests withdrawal of charges it filed.’’
On August 2, after the Respondent and Union had agreed
on July 28 to continue bargaining on August 23 (G.C. Exh.
17), the Union filed a refusal-to-bargain charge against the
Respondent in Case 4–CA–21948. The charge (G.C. Exh. 1c)
alleged that the Respondent had not provided certain docu-
ments requested since November 19, 1992, and had canceled
numerous scheduled bargaining sessions, sometimes giving
less than 24 hours’ notice.
On August 19 the Respondent notified the Union (G.C.
Exh. 18) that the
Employer will await instructions from the NLRB and
the outcome of that litigation to continue bargaining. If,
on the other hand, the Union expects us to continue our
good faith negotiations, we will do so. We are ready,
willing, and able to meet with you as scheduled on Au-
gust 23, 1993. However, we will not do so should your
choice be pursuing the matter through the NLRB. [Em-
phasis added.]
The Respondent’s only defense for refusing to bargain
while the NLRB charge was pending is stated in its brief (at
4) as follows:
While certainly [if] Respondent acted in accordance
with such a threat there would be a technical violation
of Section 8(a)(5), in point of fact Respondent never
carried out any aspect of this supposed threat. Rather,
after the letter was sent Respondent continued with ne-
gotiations and continued placing offers and counter of-
fers on the bargaining table at all sessions which oc-
curred thereafter. [Emphasis added.]
Contrary to this contention that it ‘‘never carries out any
aspect of this supposed threat,’’ the Respondent stated other-
wise at the trial (Tr. 108):
MR. BOCHNER: The letter says what the letter says,
clearly.
JUDGE LADWIG: Now, when did you retract that po-
sition, either by your action or by word?
MR. BOCHNER: I would say, Judge, somewhere in
and around October 20.
Thus, the Respondent admitted at the trial that it did, for
a period of time, carry out the ‘‘threat’’ or ‘‘supposed
threat’’ in its August 19 letter that it ‘‘will await . . . the
outcome of that litigation [of the pending NLRB charge] to
continue bargaining.’’ It did not retract that position until (in
Counsel Bochner’s words) ‘‘somewhere in and around Octo-
ber 20.’’ By the Respondent’s own admission, it was refus-
ing to bargain for a 2-month period because of the pending
NLRB charge.
I find that the Respondent’s refusal to bargain with the
Union for this 2-month period, unless the Union requested
withdrawal of its NLRB charge, violated Section 8(a)(5) and
(1) of the Act.
2. Reasonable negotiating times and hours
The complaint alleges that the Respondent, from about
February 2 until December 9, ‘‘failed and refused to meet at
reasonable times and for a reasonable number of hours when
negotiating sessions were held.’’ (G.C. Exh. 1i; Tr. 110–
114.) In support of these allegations, the General Counsel
called one witness, Staff Representative Robert Yaeger, to
testify about scheduling, canceling, and postponing meetings
and about the length of the negotiating sessions.
Although Yaeger impressed me as being a truthful witness,
he apparently was testifying without having reviewed either
his pretrial affidavit or his bargaining notes (to which he re-
ferred from time to time during his testimony, but which are
not in evidence). Appearing to have only a hazy memory of
the various events over the 10-month period, he gave much
inexact and inaccurate testimony, instead of accurate, de-
tailed testimony that would support the allegations.
His testimony and his various letters written at the time to
Counsel Bochner do establish that meetings were held during
the 10-month period on March 5, April 21, July 6, October
20, and November 4, 18, and 29. (Tr. 83–94, 128–131; G.C.
Exhs. 10–13, 16.) Thus, there were long delays before the
July 6 and October 20 meetings.
The delay before the July 6 meeting, as well as part of the
delay after that meeting (before the August 23 meeting was
scheduled), was caused by the refusal of the Respondent to
provide requested information that the Union was seeking.
(G.C. Exhs. 13, 16; Tr. 86.) The allegations of refusal to fur-
nish information, however, were withdrawn before the trial.
(G.C. Exhs. 1i, 1r.) The 2-month delay before the October
20 meeting was caused, as found, by the Respondent’s re-
fusal to bargain while the NLRB charge was pending.
Because of the nature of Yaeger’s testimony, not being a
reliable account of the scheduling, cancellation, and post-
ponement of various meetings and the length of certain meet-
ings, I find that the General Counsel has failed to prove that
the Respondent failed to meet at reasonable times and for a
reasonable number of hours.
I therefore find that these allegations must be dismissed.
3. Unilateral decrease in wage rate
Since LPN Harriet Boykin was hired in December 1992,
her wage rate had included a $1-an-hour bonus for each hour
she worked during the previous month. Sometime in July,
when she did not get her bonus check for June, she asked
Executive Director Urgo why. Nursing Director Aponte, who
was present, explained: ‘‘I am taking over the bonus program
now and I stopped it.’’ The Respondent had not notified the
Union, nor given it an opportunity to bargain, about the re-
duction in the wage rate. (Tr. 201–203, 230, 247; G.C. Exh.
22.)
Boykin did not report to the Union that the Respondent
had eliminated her hourly bonus until January 1994 (Tr.
204). The Union filed its charge in Case 4–CA–22433 (G.C.
Exh. 1w), alleging a unilateral reduction in her hourly wage
rate, on February 14, 1994—over 7 months after the unilat-
eral change.
Boykin explained at the trial that she did not report the
stopping of the bonus check at the time because ‘‘I didn’t
know I could. I didn’t know that we were really covered by
the union since the contract hadn’t been signed’’ (Tr. 204).
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.
3 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.’’
As found, the Union was certified as the bargaining rep-
resentative on October 27, 1992, and the Respondent and
Union were engaged in contract negotiations.
I agree with the Respondent that the complaint in Case 4–
CA–22433 ‘‘should be dismissed as being barred by the pe-
riod of limitations specified in Section 10(b) of the Act.’’
Relying on Adair Standish Corp., 295 NLRB 985, 986
(1989), the General Counsel contends that the 6-month limi-
tation period did not begin to run until the Union had actual
or constructive knowledge of the unfair labor practice. The
General Counsel contends that ‘‘In Adair, it was of no sig-
nificance that members of the bargaining unit knew of the
[unilateral] change.’’
I find, however, that Adair is distinguishable. There, as the
Respondent points out in its brief (at 5), the Board said that
‘‘the fact that the members of the bargaining unit knew of
the change does not necessarily mean that the Union did,
particularly where, as here, the Employer has refused to rec-
ognize the Union.’’ (Emphasis added.) Similarly in Clark
Equipment Co., 278 NLRB 498, 529 (1986), which is cited
in Adair, the Board rejected the employer’s contention that
the union had constructive notice ‘‘where the Union is being
denied its lawful status as bargaining representative.’’ Here,
in contrast, the Respondent was bargaining with the Union,
which had one or more employees in the nursing home on
its negotiating committee. (Tr. 241–246.)
I find that the Union had constructive knowledge of the
decrease in Boykin’s wage rate. I therefore find that the
charge, filed over 6 months later, was untimely.
CONCLUSIONS OF LAW
1. By discriminatorily discharging Robert Grimaldi on
June 2, 1993, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
2. By refusing to bargain unless the Union requested with-
drawal of its NLRB charge, the Respondent violated Section
8(a)(5) and (1).
3. The General Counsel has failed to prove that the Re-
spondent refused to meet at reasonable times and for a rea-
sonable number of hours.
4. The charge filed by the Union in Case 4–CA–22433, al-
leging an unlawful unilateral reduction in an employee’s
hourly wage rate over 6 months earlier, was untimely filed
because the Union had constructive knowledge of the unilat-
eral action within the 10(b) 6-month limitation period.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having discriminatorily discharged an employee, the Re-
spondent must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in 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 recommended2
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) Discharging or otherwise discriminating against any
employee for supporting Communications Workers of Amer-
ica, Local 1040, AFL–CIO or any other union.
(b) Refusing to bargain unless the Union requests with-
drawal of an NLRB charge.
(c) 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 Robert Grimaldi immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him in
the manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this has
been done and that the discharge will not be used against
him in any way.
(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 Vineland, New Jersey, copies of
the attached notice marked ‘‘Appendix.’’3 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
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the consolidated complaint is
dismissed insofar as it alleges violations of the Act not spe-
cifically found.